European Court of Human Rights

 

 

THIRD SECTION

CASE OF RASULOV AND KIM v. RUSSIA

(Applications nos. 59387/18 and 25036/20)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

15 December 2022

 

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

In the case of Rasulov and Kim v. Russia,

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

          Darian Pavli, President,
          Ioannis Ktistakis,
          Andreas Zünd, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 24 November 2022,

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

PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2.  The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the lack of effective judicial review of their detention. They also raised other complaints under the provisions of the Convention.

THE LAW

I.        JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 5 § 4 of the Convention

6.  The applicants complained principally about the lack of effective judicial review of their detention. They relied, expressly or in substance, on Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

7.  The Court observes that the general principles regarding the availability of a mechanism for review of the continued detention have been stated in a number of its previous judgments (see, among others, A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009, and Chahal v. the United Kingdom, no. 22414/93, § 127, 15 November 1996, Reports of Judgments and Decisions 1996‑V).

8.  In the judgments adopted in the cases of Azimov v. Russia (no. 67474/11, §§ 150-55, 18 April 2013), Kim v. Russia (no. 44260/13, §§ 41-45, 17 July 2014), Khalikov v. Russia (no. 66373/13, §§ 61-66, 26 February 2015) and, more recently, M.D. and Others v. Russia (nos. 71321/17 and 8 others, §§ 136-40, 14 September 2021), in respect of issues similar to those in the present case, the Court held that the applicants, who were detained for the purpose of their expulsion, had had no access to periodic judicial review of their detention, in breach of Article 5 § 4 of the Convention.

9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. The Court has not been made aware of relevant developments in the process of adoption of the draft law amending the Russian Code of Administrative Offences (CAO) by the State Duma, which has been pending since 2017 in the wake of the Russian Constitutional Court decision of 23 May 2017 (see M.D. and Others, cited above, § 137 and the paragraphs referred to therein). In the absence of such developments, the fate of the proceedings initiated by the applicant in application no. 25036/20 directly on the basis of the above-mentioned decision of the Russian Constitutional Court illustrates the uncertainty of such avenue, which lacked the requisite accessibility, foreseeability and effectiveness (compare with J.N. v. the United Kingdom, no. 37289/12, § 88, 19 May 2016).

10.  Having regard to its constant case-law on the subject, the Court considers that in the instant case the applicants were deprived of a mechanism allowing individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings.

11.  These complaints are therefore admissible and disclose a breach of Article 5 § 4 of the Convention.

III.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

12.  The applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well‑established case-law (see L.M. and Others v. Russia, nos. 40081/14 and 2 others, §§ 149-52, 15 October 2015, and M.D. and Others, cited above, §§ 124-27, concerning detention pending expulsion ordered under the CAO, that exceeded the duration reasonably required for the purpose pursued).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

13.  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.”

14.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Mumanzhinova and Others v. Russia [Committee], nos. 724/18 and 8 others, 8 October 2019), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.

15.  The Court further 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that these applications disclose a breach of Article 5 § 4 of the Convention concerning absence of a mechanism allowing the applicants to institute proceedings for the examination of the lawfulness of their detention pending expulsion;

4.      Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);

5.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, the payment of which is to be made to any of the applicants’ representatives before the Court, for subsequent transmission to the applicants;

(b)  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.

6.      Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

      Viktoriya Maradudina                                                Darian Pavli

    Acting Deputy Registrar                                                President

 

 

APPENDIX

List of applications raising complaints under Article 5 § 4 of the Convention

No.	Application no. Date of introduction	Applicant’s name Year of birth	Representative’s name and location	First-instance court and date of detention order Date of release/court decision	Application for judicial review and release   Courts decisions	Other complaints under well-established case-law	Amount awarded for non-pecuniary damage (in euros) [1]
	59387/18 19/12/2018	Ural Khudayberdiyevich RASULOV 1977	Zharinov Kirill Moscow   Davidyan Eleonora Moscow   Trenina Daria Moscow	Almetyevsk Town Court on 17/12/2018 (upheld by the Supreme Court of Tatarstan on 25/12/2018)   Released by decision of the Almetyevsk Town Court on 31/12/2020	Tatarstan Supreme Court 25/12/2018	Art. 5 § 1 (f) - unlawful detention. - As of 24/12/2018 the authorities did not assess at regular intervals whether the applicant’s removal remained a “realistic prospect”. In this context, the applicant’s detention for more than two years, especially with the passing of time and without the possibility to ensure the periodic review of the reasons for his detention, exceeded what was reasonably required for the purpose pursued (see the above-cited cases of L.M. and Others, cited above, §§ 149-52, and M.D. and Others, cited above, §§ 124-27).	6,500
	25036/20 28/05/2020	Yevgeniy Lvovich KIM 1974	Sychev Sergey Anatolyevich Moscow	Zheleznodorozhny District Court of Khabarovsk, 10/04/2019 (upheld by the Khabarovsk Regional Court on 30/04/2019)   detention still pending according to information in the file	27/03/2020 application with the Zheleznodorozhny District Court of Khabarovsk, based on the Constitutional Court decision of 23/05/2017; dismissed on 13/04/2020 for lack of judicial procedure in the Russian law for such an application.   09/09/2020 application with the Zheleznodorozhny District Court of Khabarovsk, dismissed by the judgment of 11/09/2020 on the ground that the enforcement of the expulsion was pending since 29/05/2019 and relevant documents were being processed; in particular, the Bailiff Office requested on 04/10/2019 documentation which was still due from Migration Office of Khabarovsk. [the latter’s reply, essentially referring to the Uzbek Consulate’s information from 03/07/2019 that the applicant was not their national and rejecting request for certificate of return, was provided to the Bailiff on 30/10/2020].   The parties did not inform the Court about the outcome of the applicant’s appeal against the above-mentioned judgment.	Art. 5 § 1 (f) - unlawful detention – In particular after the Uzbek Consulate’s information from 03/07/2019 refusing to deliver a certificate of return, the authorities did not assess at regular intervals whether the applicant’ removal remained a “realistic prospect”. In this context, the applicant’s detention, especially with the passing of time and without the possibility to ensure the periodic review of the reasons for his detention, exceeded what was reasonably required for the purpose pursued (see the above-cited cases of L.M. and Others, cited above, §§ 149-52, and M.D. and Others, cited above, §§ 124-27).	9,500