The restriction of asylum seekers to an airport transit zone for a long time under miserable conditions violated the ECHR.


Z.A. and others v. Russia 21/11/2019  (no. 61411/15)

see here


Four men were held in the Moscow airport transit zone for a long time while authorities were examining their asylum applications. None of them, in the end, remained in Russia. Unanimous violation of the right to liberty and security and the prohibition of inhuman or degrading treatment.

The Court found in particular that Article 5 applies in the case of the applicants as their presence in the transit area was not voluntary, had been left without any assistance for the duration of their stay there, which lasted between 5 and 19 months depending on the applicant , there was no realistic prospect of being able to leave the area and the authorities had not complied with national legislation on the reception of asylum seekers.

Due to the lack of a legal basis for their incarceration in the transit area and their situation deteriorating as they faced obstacles to access to the asylum system, the Court concluded that there had been a violation of the rights of the applicants protected by Article 5 § 1 .

At the same time, the applicants’ conditions were appalling, as they had to sleep in the transit area, a very crowded and constantly illuminated area with no access to sanitary or cooking facilities. Violation of Article 3, as the treatment they were subjected to was degrading. According to the Court, furthermore, the prohibition of inhumane or degrading treatment is a fundamental value in democratic societies and is a cultural value closely linked to respect for human dignity, which is part of the very essence of the Convention.


Article 3

Article 5


The applicants are four individuals, Z.A., an Iraqi national; M.B., who holds a passport issued by the
Palestinian Authority; A.M., a Somalian national; and Hasan Yasien, a Syrian national. They were
born in 1987, 1988, 1981 and 1975 respectively.

Travelling independently from each other in different circumstances, the applicants eventually
arrived at Moscow’s Sheremetyevo Airport, where they were denied entry into Russia by the border
authority. They applied for refugee status in Russia, without success. Three of them spent between
five and seven months in 2015/2016 in the transit zone of the airport while A.M. was there for
almost two years.

Z.A. and Mr Yasien were eventually resettled by the office of the United Nations High Commissioner
for Refugees (“UNHCR”), in Denmark and Sweden. They left the airport in March and May 2016.
M.B. left the transit zone to take a flight to Egypt in February 2016 while A.M. left for Mogadishu in
March 2017 after losing hope of obtaining refugee status in Russia.


Article 5 § 1

The Court took note of concerns expressed by the Governments of Russia and Hungary, as a third
party, and agreed that the case had to be seen in the context of the challenges facing States owing
to the influx of large numbers of refugees and migrants.

However, the Court held that the case had little to do with whether the right to asylum or
asylum-shopping existed under international law but that it was about the legal basis for the
applicants being held in the airport and the conditions of their confinement there.
Applicability of Article 5

The Court reiterated previous case-law that four factors had to be taken into consideration when
distinguishing between a restriction on liberty of movement and deprivation of liberty when it came
to foreigners being confined in airport transit zones and reception centres. Those factors were: the
applicants’ individual situation and choices; the applicable legal regime and its purpose; the duration
of the measure and procedural protection; and the nature and degree of the actual restrictions.
The Court found among other things that the applicants’ presence at the airport had not been
voluntary, as it had been due to their travel routes, while the Russian authorities had been entitled
to perform checks of their claims before deciding to admit them. The purpose of a transit zone was
to hold people pending a decision and the authorities had not sought to deprive them of their
liberty. States also had a right to carry out such procedures and being made to wait for a short time
pending their completion was not deprivation of liberty.

However, the Government had not been able to point to any legal guarantees about the time
required to process the applicants’ asylum applications and on the maximum length of their stay in
the transit zone. Requirements that were laid down by law were not adhered to: for instance the
applicants had not been given certificates to show their asylum claims had been examined by the
migration authority and they had been left to their own devices in the zone rather than being
offered asylum accommodation.

The duration of a restriction was also an important point to consider. In this case, the processing and
subsequent judicial decisions on their asylum claims had been anything but speedy as the applicants
had spent between five and 21 months in the transit zone depending on their circumstances.
As to restrictions, the Court noted that the zone was continuously monitored by the Border Guard
Service, a branch of the Federal Security Service. The applicants’ freedom of movement had been
very restricted, in a way that was similar to certain types of light regime detention facilities.
Unlike a land transit border zone, leaving the airport would have required much planning and
organisation and the Court found that the Government had not substantiated its assertion that the
applicants had been free to leave at any time.

The Court concluded that Article 5 was applicable to the applicants’ case.

Compatibility of the applicants’ deprivation of liberty with Article 5

The Court noted the arguments by the applicants and UNHCR that there had been no legal basis for
the men’s confinement in the transit area, something the Government had essentially not disputed.
After examining the relevant law, the Court could find no trace of any provision which could serve as
grounds for justifying the applicants having been deprived of their liberty. For that reason alone
there had been a violation of Article 5 of the Convention.

However, their situation had been worsened by the fact that their access to the asylum system had
been impeded as there had been no information available in the transit zone on asylum procedures
and their access to legal assistance had been severely restricted.
Furthermore, they had experienced serious delays when attempting to submit and register their
asylum applications, they had not been given the necessary examination certificates, and there had
been delays in communicating some of the official decisions to them. They had also been held in an
area which had clearly not been suitable and the length of their stay had been excessive.
The Court concluded that each applicant had suffered a violation of their rights under Article 5 § 1.
Article 3
Many States faced an influx of asylum-seekers and migrants and the Court did not underestimate
the burden and pressure this placed on Governments. It was particularly aware of the difficulties
involved in the reception of asylum-seekers at major international airports.

However, the prohibition of inhuman or degrading treatment in the Convention was a fundamental
value in democratic societies and was a value of civilisation closely bound up with respect for human
dignity, which was part of the very essence of the Convention.

It was clear in the applicants’ case that the conditions in which they had lived in the airport transit
zone had been unsuitable for an enforced and lengthy stay.

Their having had to sleep on the floor in a constantly lit, crowded and noisy airport transit zone,
without unimpeded access to cooking or shower facilities and without outdoor activities or medical
or social assistance, had fallen short of the minimum standards of respect for human dignity.

The situation had been aggravated by the applicants being left to their own devices, in disregard of
Russia’s domestic rules on asylum procedures. Three of the applicants had eventually been
recognised by UNHCR as needing international protection, suggesting that their distress had been
accentuated by the events they had been through during their migration.

Taken together, the appalling conditions of their detention, which they had had to endure for a long
time, and the complete failure of the authorities to take care of them, had constituted degrading
treatment, in violation of each applicant’s right under Article 3 of the Convention.

Just satisfaction (Article 41)

The Court held that Russia was to pay 20,000 euros (EUR) each to Z.A. and Mr Yasien in respect of
non-pecuniary damage; EUR 15,000 in respect of non-pecuniary damage to M.B.; and EUR 26,000 in
respect of non-pecuniary damage to A.M.

The Court also awarded EUR 19,000 jointly to the applicants in respect of costs and expenses.


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