The applicant’s temporary detention pending a review of his deportation, without legal basis, violated the right to personal liberty and security!
JUDGMENT
Saidov v. Russia 26.07.2022 (app. no. 31872/19)
SUMMARY
Personal freedom and security. Temporary detention of a foreigner with a view to deportation, without the existence of a legal basis.
The applicant was temporarily detained pending a review of his deportation.
On 13 January 2016, the Court granted a request for an interim measure to suspend the applicant’s deportation from Russia in another case involving the same applicant. This measure was in place during all material events in this case. On 26 November 2018 the applicant was arrested for breaching immigration rules.
The applicant claimed that his detention from 10 to 24 December 2018 constituted a violation of national law and, by extension, of the ECHR.
The ECtHR held that the Regional Court, in considering the case, did not refer to any provision of national law which could give the national courts the right to extend or order the detention of a person in respect of whom the administrative decision to expel has been annulled and the government admitted in its submissions that there were no such provisions.
TheCourt found that the deprivation of the applicant’s personal liberty from 10 to 24 December 2018 did not have a strictly defined legal basis limited by adequate safeguards against arbitrariness. It therefore found a violation of the right to personal liberty and security (Article 5 § 1 of the ECHR) and awarded the applicant 3,000 euros for moral damage.
PROVISION
Article 5
PRINCIPAL FACTS
The present case under Article 5 § 1 of the Convention concerns the applicant’s allegedly unlawful detention between 10 and 24 December 2018, on the ground that the applicable provisions of the domestic law did not provide for the power of an appeal court to extend or order detention pending administrative removal when an initial removal order was annulled by the appeal court.
On 13 January 2016 a request for an interim measure staying the applicant’s removal from Russia was granted by this Court in another case lodged by the applicant. This measure was in place during all of the material events in the present case.
On 26 November 2018 the applicant was arrested for a violation of migration rules.
On 27 November 2018 the Belgorodsky District Court of the Belgorod Region (“the District Court”) ordered the applicant’s administrative removal and detention pending removal. It appears that the applicant had not informed the District Court of the interim measure indicated by the Court in Strasbourg.
On 10 December 2018 the Belgorod Regional Court (“the Regional Court”), sitting as an appeal court in a single judge formation, having been informed by the applicant about the interim measure indicated by the Court in Strasbourg, annulled the above removal order and remitted the case for reconsideration to the first instance. In respect of the applicant’s detention it was held that the applicant should stay in the temporary detention centre for aliens until the District Court reconsidered his case.
On 24 December 2018 the District Court, referring to the above interim measure indicated by the Court in Strasbourg, terminated the administrative removal proceedings.
On the same day the applicant was released.
THE DECISION OF THE COURT…
The applicant claimed that his detention from 10 to 24 December 2018 was in violation of national law and, therefore, of the Convention.
The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
The general principles assessing whether a deprivation of liberty of an individual is compatible with Article 5 § 1 of the Convention have been summarized in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 88-92, 15 December 2016), and Abdolkhani and Karimnia v. Turkey (no. 30471/08, § 130, 22 September 2009).
Turning to the circumstances of the present case, the Court observes that the provisions of the domestic law cited in the paragraphs 8 and 9 above provide that individuals may be placed in a specialised facility for foreign nationals in order to ensure enforcement of an involuntary removal order. Having noted that in its decision of 10 December 2018 the Regional Court ordered the applicant’s detention while simultaneously annulling the removal order and remitting the case for reconsideration by the District Court, the Court first needs to establish whether the requirements of “lawfulness” and the “absence of arbitrariness” were met before moving on to examine the issue of whether the applicant’s deprivation of liberty was governed by the exceptions set out in Article 5 § 1 (f) of the Convention (see Ranjbar and Others v. Turkey, no. 37040/07, § 39, 13 April 2010).
In its aforementioned decision the Regional Court did not refer to any provisions of national law that could entitle appeal courts to extend or order detention of a person in respect of whom the administrative removal order was annulled, and the Government in their observations admitted that there were no such provisions. The Court cannot agree with their argument that the implicit, because not restricted, competence of the appeal courts to order detention of a foreign national whenever they might find it necessary was “in accordance with a procedure prescribed by law” and satisfied the general principle of legal certainty. The judicial decisions submitted by the Government in order to illustrate such implicit competence of the appeal courts appeared rather to point to the contrary (see paragraph 11 above).
In view of the above, the Court finds that the deprivation of liberty to which the applicant was subjected from 10 to 24 December 2018 did not have a strictly-defined statutory basis circumscribed by adequate safeguards against arbitrariness (see Ranjbar and Others, §§ 41 and 43, and Abdolkhani and Karimnia, both cited above, § 135). The national system thus failed to protect the applicant from arbitrary detention and, consequently, his detention during this period cannot be considered “lawful” for the purposes of Article 5 of the Convention.
The Court concludes that there has been a violation of Article 5 § 1 of the Convention.
