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Europejskiego Trybunału Praw Człowieka
z dnia 24 września 2019 r.
45852/17

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2019:0924JUD004585217

THIRD SECTION

CASE OF ISMAILOV v. RUSSIA

(Application no. 45852/17)

JUDGMENT

STRASBOURG

24 September 2019

This judgment is final but it may be subject to editorial revision.

In the case of Ismailov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,

Dmitry Dedov,

Gilberto Felici, judges,

and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 September 2019,

Delivers the following judgment, which was adopted on that date:

Postępowanie

PROCEDURE

1. The case originated in an application (no. 45852/17) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a stateless person, Mr Sherali Odinayevich Ismailov ("the applicant"), on 15 June 2017.

2. The applicant was represented by Mr K.I. Terekhov, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3. On 5 September 2017 notice of the complaints under Article 5 §§ 1 (f) and 4 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

Uzasadnienie faktyczne

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1973.

5. On 16 April 2007 the applicant was convicted by the Zyuzinskiy District Court of Moscow and sentenced to nine years' imprisonment.

6. On 14 July 2015 the applicant's stay in Russia was declared undesirable by the Ministry of Justice of Russia and on 9 December 2015 the migration authorities adopted a decision to deport the applicant.

7. On 15 December 2015 the applicant was released from the correctional colony and immediately re-arrested in the context of the deportation proceedings.

8. On 17 December 2015 the applicant was placed in detention pending deportation by the Moskovskiy District Court of Tver. On 14 June 2016 the Moskovskiy District Court of Tver extended his detention.

9. On 17 December 2015, 18 January 2016 and 1 May 2016 the migration authorities requested the Consular Services of the Embassy of Tajikistan to verify the applicant's nationality of that country and issue him a travel document.

10. On 14 September 2016, 14 December 2016 and 14 March 2017 the Moskovskiy District Court of Tver extended the detention pending deportation. The above orders were upheld on appeal by the Tver Regional Court on 19 October 2016, 14 March 2017 and 5 April 2017 respectively.

11. On 29 September 2016 the Consular Services of Tajikistan informed the migration authorities that the applicant had no Tajik nationality.

12. On 9 June 2017 the Moskovskiy District Court of Tver refused to extend the applicant's detention due to lack of progress in deportation proceedings.

13. On 14 June 2017 the applicant was released and on unspecified date left Russia.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14. For relevant provisions of the domestic law and practice, see Kim v. Russia, no. 44260/13, §§ 23-25, 17 July 2014.

Uzasadnienie prawne

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

15. The applicant complained that his detention pending deportation had been unlawful and that the domestic proceedings lacked diligence within the meaning of the exception provided for by Article 5 § 1 (f) of the Convention, which reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

(f) the lawful arrest or detention ... of a person against whom action is being taken with a view to deportation or extradition ..."

16. The Government contested that argument.

A. Admissibility

17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

18. The applicant argued that his detention pending removal had been devoid of purpose and unlawful and that the domestic proceedings lacked requisite diligence.

19. The Government in their observations argued that the applicant's detention had been in compliance with Article 5 § 1 (f) requirements.

20. The Court reiterates that the exception contained in sub–paragraph (f) of Article 5 § 1 of the Convention requires only that "action is being taken with a view to deportation or extradition", without any further justification (see, inter alia, Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996–V), and that deprivation of liberty will be justified as long as deportation or extradition proceedings are in progress (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009). If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible (see Chahal, cited above § 113; see also Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 74, ECHR 2007-II). In asking whether "action is being taken with a view to deportation", this Court has found that removal must be a realistic prospect (see A. and Others, cited above, § 167, and Amie and Others v. Bulgaria, no. 58149/08, § 144, 12 February 2013).

21. The question of whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features (see, mutatis mutandis, McKay v. the United Kingdom [GC], no. 543/03, §§ 41-45, ECHR 2006–X) and that the arguments for and against release must not be "general and abstract" (see, for example, Khudoyorov v. Russia, no. 6847/02, § 173, ECHR 2005–X (extracts)), but contain references to the specific facts and the applicant's personal circumstances justifying his detention.

22. Bearing these principles in mind the Court notes that the applicant was detained for almost eighteen months between 15 December 2015 and 14 June 2017. While the authorities took certain actions with a view to the applicant's removal, these actions were of the repetitive nature and isolated by months of unexplained inactivity. In any event there is no information about any specific actions aimed at the applicant's deportation after 29 September 2016 when the Consular Services of Tajikistan stated that the applicant had no nationality of that country.

23. It must be concluded that the Russian authorities did not exercise the due diligence, requisite under Article 5 § 1 (f) of the Convention, for the last eight months of the applicant's detention. There has accordingly been a violation of Article 5 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24. As regards the applicant's remaining complaints under Article 5 § 4 of the Convention, the Court, having regard to the facts of the case and the findings under Article 5 § 1 of the Convention, considers that it has examined the main legal question raised in the present application and that there is no need to give a separate ruling on the admissibility and merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

25. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

26. The applicant claimed 35,000 euros (EUR) in respect of non–pecuniary damage.

27. The Government stated that any award should be in compliance with the well-established case-law.

28. The Court, having regard to the above findings under Article 5 § 1 of the Convention, its case-law on the matter and acting on an equitable basis, awards the applicant EUR 3,000 in non-pecuniary damage.

B. Costs and expenses

29. The applicant also claimed EUR 5,400 for the costs and expenses incurred before the Court.

30. The Government stated that any award should be in compliance with the well-established case-law.

31. Regard being had to the documents in its possession and to its case–law, the Court considers it reasonable to award the sum of EUR 1,500 for costs and expenses in the proceedings before the Court. It considers it appropriate that this sum should be payable directly to the applicant's representative.

C. Default interest

32. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 5 § 1 of the Convention concerning an alleged unlawfulness of the applicant's detention pending deportation admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that it is not necessary to examine the admissibility and merits of the applicant's complaints under Article 5 § 4 of the Convention;

4. Holds

(a) that in respect of non-pecuniary damage the respondent State is to pay the applicant, within three months EUR 3,000 (three thousand euros) plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that in respect of costs and expenses the respondent State is to pay the applicant's representative, within three months EUR 1,500 (one thousand five hundred euros) plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 24 September 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips

Alena Poláčková

Registrar

President