Information Note on the Court’s case-law 189

October 2015

L.M. and Others v. Russia - 40081/14, 40088/14 and 40127/14

Judgment 15.10.2015 [Section I]

Article 3

Expulsion

Proposed expulsion to Syria: expulsion would constitute a violation

Article 2

Proposed expulsion to Syria: expulsion would constitute a violation

Article 5

Article 5-1-f

Expulsion

Detention of asylum-seekers in respect of whom interim measure by Court preventing their removal was in force: violation

Article 34

Hinder the exercise of the right of petition

Restrictions on the asylum-seekers’ contact with their representatives: failure to comply with Article 34

Facts – The applicants are two Syrian nationals and a stateless Palestinian who had his habitual residence in Syria. In 2013 they entered Russia. In 2014 a district court found them guilty of administrative offences (breach of immigration rules and working witho ut a permit) and ordered their expulsion and their detention pending expulsion. On 27 May 2014 a regional court rejected their appeals, finding that the alleged danger to the applicants’ lives as a result of the ongoing conflict did not in itself constitut e sufficient grounds to exclude expulsion in respect of those guilty of administrative offences in the sphere of immigration. On 30 May 2014 the Court decided to indicate to the Russian Government, under Rule 39 of the Rules of Court , that the applicants should not be expelled to Syria for the duration of the proceedings before the Court. Two applicants have since then remained in a detention centre for foreign nationals, while the third escaped. Their applications for refugee status and temporary asylum were unsuccessful.

Law

Articles 2 and 3: While challenging the possibility of expulsion, the applicants had relied, inter alia , on the practice of the Russian Federal Migration Service in respect of people originating from Syria and th e UNHCR recommendation not to carry out expulsions to Syria. They had also submitted individualised information about the risks in the event of return. The arrival of a significant number of asylum-seekers from Syria a nd the need for that group to have additional protection could not have been unknown to the relevant authorities. The applicants had thus presented the national authorities with substantial grounds for believing that they faced a real risk to their lives a nd personal security if expelled.

However, the scope of review by the domestic courts had been confined to establishing that the applicants’ presence in Russia was illegal. The domestic courts had avoided engaging in any in-depth discussion about the dange rs referred to by the applicants and international as well as national sources describing the situation in Syria. The applicants had attempted to lodge requests for asylum and refugee status, but had been prevented from effectively participating in those p roceedings. In sum, the applicants’ allegations had not been dully examined by the domestic authorities in any of the proceedings.

The present judgment was the first to evaluate the allegations of a risk of danger to life or ill-treatment in the context of the ongoing conflict in Syria. According to the UNHCR documents, most European countries did not carry out involuntary returns to Syria. The latest UN reports described the situation as a “humanitarian crisis” and spoke of the “immeasurable suffering” of civilians, massive violations of human rights and humanitarian law by all parties and the resulting displacement of almost half of the country’s population.

Furthermore, the applicants originated from Aleppo and Damascus, where particularly heavy fighting had been raging. They were young men, who in the view of Human Rights Watch were in particular danger of detention and ill-treatment. One of the applicants had referred to the killing of his relatives by armed militia. Another applicant as a stateless Palestinian belonged to a group in need of international protection. The applicants had thus put forward a well-founded allegation that their return to Syria would be in breach of Articles 2 and/or 3 of the Convention. The Government had not presented any arguments or relevant information that could dispel those allegations, or referred to any special circumstances which could ensure sufficient protection for the applicants if returned.

Therefore, an expulsion to Syria woul d give rise, if implemented, to a violation of Article 2 and/or Article 3 of the Convention.

Conclusion : expulsion would constitute a violation (unanimously).

Article 5 § 1 (f): Since administrative removal amounted to a form of “deportation” within the me aning of Article 5 § 1 (f), that provision was applicable in the instant case. Since the applicants’ detention pending expulsion had been ordered by the court with jurisdiction in connection with an offence punishable by expulsion, the initial decision aut horising the applicants’ detention had been in compliance with the letter of the national law. During this initial period of detention, the authorities were still investigating whether their removal would have been possible. However, after the decision of the regional court no real action had been taken with a view to expulsion and the applicants had remained in detention without any indication of the time-limit or conditions related to the possibility of review.

Conclusion : violation (unanimously).

(See Az imov v. Russia , 67474/11, 18 April 2013, Information Note 162 )

Article 34: In their communications with the domestic authorities and their representative before the Court the applicants had relied on the possibility of meeting locally based lawyers and human rights defenders. Those meetings had been denied or made subject to formalities that were difficult to overcome. Furthermore, the applicants had not been given access to a telephone and could not therefore communicate properly with their representatives. In addition to being in detention, the applicants had a very poor command of Russian and had no family or social network which made them particularly at risk of unacceptable practice. They had comp lained that they had been forced to sign statements withdrawing their asylum requests. These statements, which had had negative consequences on the proceedings, had later been retracted by the applicants as having been given under duress and without a prop er interpreter. The Court noted with concern the absence of any meaningful reaction from the relevant authorities to those complaints.

Thus the applicants’ communication with their representatives had been seriously obstructed, preventing them from effecti vely participating in the domestic proceedings or the proceedings before the Court. The restrictions on the applicants’ contact with their representatives had constituted an interference with the exercise of their right of individual petition.

Conclusion : failure to comply with Article34 (unanimously).

Article 46: The respondent State was required to ensure the applicants’ immediate release.

Article 41: EUR 9, 000 to each applicant in respect of non-pecuniary damage.

© Council of Europe/European Court of H uman Rights This summary by the Registry does not bind the Court.

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