DISSENTING OPINION OF JUDGE DEDOV

I regret that I cannot join the majority of my colleagues, who have found a violation of Articles 3 and 5 of the Convention in the present case.

Article 5

It is clear that the applicants were not deprived of their liberty as they were free to leave the transit zone and fly to any other country, including their country of origin. Their application for asylum and the examination by the authorities cannot serve as a basis for finding that the Government detained the applicants or restricted their freedom of movement.

The Court did not find that the applicants ’ detention apparently occurred de facto as a consequence of any action by the State agents (seizure of passport or restriction of living space). Nor did the Court refer to the fact that the applicants could not leave the transit zone in any way other than by boarding a flight as they were aware that they would not be allowed to enter the State ’ s territory without a valid visa or residence permit. Otherwise, border control could be considered an outdated measure not compatible with a legitimate aim in a new globalised world construed according to the concept of fundamental rights and freedoms. In any case, the decision to stay in the transit zone was made voluntarily by the applicants themselves without any compelling reasons.

However, the Court took the opposite approach when examining these circumstances. In the key paragraph of the judgment (see paragraph 89) the Court concluded that the applicants had been deprived of their liberty because 1) they did not have the opportunity to enter Russian territory; 2) they did not choose to stay in the transit zone; and 3) their asylum application had not yet been considered. In my view, none of those three factors has anything to do with the deprivation of liberty. The only general remark that I can add here is that the above consideration reflects a neo-liberal concept of social life, where liberties prevail over the public interest and individual responsibility, so it appears that the State becomes responsible for any difficulties in private life even if those difficulties were provoked by the individuals themselves.

Article 3

As regards the allegation of inhuman treatment in the present case, the outcome depends on the first issue, namely, on whether the applicants were deprived of their liberty and whether they were under the control of the authorities. To my mind they were not, because the necessary factual circumstances were lacking. Obviously, the applicants placed themselves in a difficult situation (and this was their own choice), but we cannot say that the situation was degrading for their human dignity (compare Ananyev and Others v. Russia , nos. 42525/07 and 60800/08 , 10 January 2012 ). The applicants complained that the authorities did nothing to take care of them. In my view, this is a strange statement, but the Court has again agreed with this shifting of the burden from irresponsible aliens to the State authorities. This neo-liberal concept prevents the Court from raising the question: did the applicants try to solve their problems themselves? This is how the arbitrary shifting of responsibility starts to become an institutionalised interpretation of the Convention as an international instrument.

More general remarks

Such an interpretation (guided by a neo-liberal concept) has already led to the current ideological and political crisis in the West triggered by mass (and mostly economic) migration. The approach based on the above-mentioned concept makes it possible to require more from governments than is necessary. This approach does not encourage individuals to seek independence and responsibility, but instead develops completely opposite human qualities. Thus tolerance is expressed for those who would leave their home country for a better place rather than try to improve their life at home, make their own contribution to the national economic situation or fight for peace in their homeland. Why do we expect ourselves to be constantly active, to be involved in the education process, to show responsibility and initiative, to develop culturally, but not require such ambitions from others, or at least expect others to also be motivated to demonstrate those qualities?

Anyone in difficult circumstances must find opportunities to preserve his or her dignity. In the present case the applicants could have succeeded in achieving this. The choice of the applicants is quite representative. They are all young, healthy men aged between 25 and 35. They do not belong to any vulnerable group. However, even if they do belong to such a group the Court may take a controversial position. It may consider that “w hile it is true that asylum-seekers are considered particularly vulnerable because of everything they might have been through during their migration and the traumatic experiences they were likely to have endured previously” (see M.S.S. v. Belgium and Greece, cited above, § 232 ), yet at the same time conclude that the applicants “were not more vulnerable than any other adult asylum-seeker ... ” (see Mahamed Jama v. Malta , no. 10290/13 , § 100, 26 November 2015). I do not see any reason why in the present case the applicants could be considered vulnerable persons.

As an example of action taken to preserve one ’ s dignity, I would recommend seeing the great movie “The Terminal” starring Tom Hanks, whose character did not complain, but retained his dignity in difficult conditions, thanks to his personal qualities, his education and knowledge. His situation could be classified as detention and it was even worse than in the present case: he could not return to his home country because all flights had been cancelled for security reasons; his passport was not recognised as valid owing to the uncertain political situation in the country of origin; he had a valid visa, but it was arbitrarily cancelled by the “most democratic” authorities in the world, and he did not travel to a third country to look for a job.

In the present case, without having a valid permit to enter the respondent State, the applicants nonetheless believe that the whole world is open to them and that their arrival at the border of the country automatically creates the obligation for any State to take care of them, and to create a legal basis for detention with all the relevant procedural safeguards. This approach automatically (and therefore arbitrarily) shifts the responsibility onto the State for actions which are not within its control (general, or personal, unfavourable situation in the home country). Let me demonstrate how far (up to the fundamental elements of a State) the Court may go in its controversial considerations. This is an extract from the Riab and Idiab judgment (see Riad and Idiab v. Belgium , nos. 29787/03 and 29810/03, 24 January 2008, cited above):

“78 ... The Court considers that the fact of “detaining” a person in that zone for an indefinite and unforeseeable period without that detention being based on a specific legal provision or a valid decision of a court and with limited possibilities of judicial review on account of the difficulties of contact enabling practical legal assistance, is in itself contrary to the principle of legal certainty, which is implicit in the Convention and is one of the fundamental elements of a State governed by the rule of law ...”

Neo-liberals should accept that the freedom of movement is not without limits. I believe that this freedom is not limited by borders, but only by our own personal capabilities and aptitude. It could be never restricted for those who develop their personality and create new opportunities, and who are active. There are no borders for those who are in demand from professional companies, employers or an audience.

APPENDIX

No.

Application no.

Application name

1.

61411/15

Z.A. v. Russia

2.

61420/15

M.B. v. Russia

3 .

61427/15

A.M. v. Russia

4 .

3028/16

Yasien v. Russia