European Court of Human Rights

Information Note on the Court’s case-law No. 162

April 2013

Azimov v. Russia - 67474/11

Judgment 18.4.2013 [Section I]

Article 5

Article 5-1-f

Expulsion

Detention of applicant in respect of whom interim measure by Court preventing his removal was in force: violation

 

Facts - The applicant, a Tajikistani national, has lived in Russia since 2002, but regularly returned to Tajikistan for periods of several months. In November 2010 he was arrested in Russia and detained pending examination of a request for his extradition to Tajikistan, where he was wanted on charges of being a member of opposition movements allegedly responsible for armed riots. The request was subsequently approved by the Russian deputy Prosecutor General, and the extradition order was upheld by the Russian courts. A request by the applicant for asylum was rejected. In November 2011 the regional court ruled that the applicant’s detention could not be extended pending extradition, because the applicant had already been detained for the maximum twelve-month period permitted by law. At the same time, however, it indicated that since the applicant had been residing in Russia without the necessary papers, he was liable to expulsion (administrative removal) and could have been detained on that ground. The following day the town court found the applicant guilty of the administrative offence of unlawful residence in Russia, ordered his expulsion and placed him in detention pending expulsion because of the gravity of the offence and because the applicant had no stable income in Russia. No specific time-limit for the applicant’s detention was given. On 23 November 2011 the European Court issued an interim measure under Rule 39 of the Rules of Court requiring the Government not to remove the applicant to Tajikistan or elsewhere until further notice. In December 2011 the regional court confirmed the validity of the expulsion and detention orders, without setting a time-limit for the applicant’s detention.

Law - Article 5 § 1: It was common ground that the applicant had resided illegally in Russia for some months before his arrest. The Court was satisfied that the applicant’s detention pending expulsion had been ordered by a court having jurisdiction in the matter and in connection with an offence punishable with expulsion. However, the circumstances surrounding the applicant’s detention pending expulsion could be reasonably interpreted as suggesting that the real intention of the authorities had been to keep the applicant in detention with a view to his extradition after the maximum period set by the law for that purpose had expired.

The authorities had been aware of the applicant’s irregular immigration status from the moment of his arrest on 3 November 2010. Nevertheless, they had not cited that ground for detaining him until the time-limit provided for detention pending extradition had expired. It was the regional court examining the applicant’s extradition case which had recommended that the law-enforcement authorities re-detain the applicant on that new ground. Most importantly, the applicant had been detained “with a view to expulsion” while the extradition proceedings were still pending. The Russian authorities had occasionally used the expulsion (administrative removal) procedure instead of extradition. The applicant’s extradition had been “under the control of the President of the Russian Federation”, which implied that handing him over to the Tajikistani authorities (whether by expulsion or extradition) must have been regarded as a top priority. All this supported the applicant’s claim that the authorities had abused their power and that the new ground for detention had been cited primarily to circumvent the maximum time-limit for detention pending extradition.

Detention under Article 5 § 1 (f) had to in good faith and closely connected to the ground relied on by the Government. Those two conditions had not been met in the instant case, at least during the short period when the applicant’s extradition proceedings were still pending, and probably even after they were over. The overall length of the applicant’s detention (over two years and five months) could be divided into two periods. The first had lasted more than one year (between the applicant’s arrest in November 2010 and the last domestic judicial decision in that case in December 2011). That period could mostly be attributed to the three sets of proceedings (extradition, expulsion and asylum) which had taken place simultaneously. Those proceedings had been pursued with proper diligence without any long periods of inactivity imputable to the State. It was the period from December 2011 onwards which was a source of concern. The applicant’s detention during that time had been mainly attributable to the temporary suspension of the enforcement of the extradition and expulsion orders following the interim measure issued by the Court under its Rule 39 in November 2011.

The suspension of the domestic proceedings due to the indication of an interim measure by the Court should not result in a situation where the applicant languished in prison for an unreasonably long period. However, no specific time-limits for the applicant’s detention pending expulsion had been expressly set by the domestic courts. Under the applicable legislation the expulsion decision had to be enforced within two years and alien released once that period had expired. However, the rule limiting the duration of the detention of an illegal alien was not set out clearly in the domestic law. Nor was it clear what would happen after the expiry of the two-year period since the applicant would clearly remain in an irregular situation and would again be liable to expulsion and, consequently, to detention on that ground.

Detention with a view to expulsion should not be punitive in nature and should be accompanied by appropriate safeguards. In the instant case, however, the “preventive” measure was much more serious than the “punitive” measure (the maximum penalty for the administrative offence being thirty days). The authorities had not re-examined the question of the lawfulness of the applicant’s continuing detention at any stage when the Court’s interim measure was in force. Finally, although they had known that the examination of the case before the Court could take some time, they had not tried to find “alternative solutions” to secure the enforcement of the expulsion order in the event interim measure was lifted.

Conclusion: violation (unanimously).

(See also Keshmiri v. Turkey (no. 2), no. 22426/10, 17 January 2012; and S.P. v. Belgium (dec.), no. 12572/08, 14 June 2011, Information Note no. 142)

Article 5 § 4: Throughout the term of his detention pending expulsion the applicant had not had at his disposal any procedure for a judicial review of its lawfulness.

Conclusion: violation (unanimously).

The Court also held unanimously that the forced return of the applicant to Tajikistan would give rise to a violation of Article 3.

Article 41: EUR 5,000 in respect of non-pecuniary damage.

 

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