Summary of a Judgment of the ECHR Concerning Administrative Removal and Application for Temporary Asylum (Case of S.K. V. Russia)
Avrupa İnsan Hakları Mahkemesi’nin, Sınır Dışı Etme Kararı ve Geçici Sığınma Başvurusuna İlişkin Bir Kararının (S.K. / Rusya) Özeti
Barış MESCİ
This article is a summary of the judgment of the European Court of Human Rights (“the Court”) on the application (no. 52722/15) lodged by S.K., a Syrian national, against Russian Federation.S.K., a Syrian national, was found guilty of remaining in Russia after the expiry of his visa and sentenced to a fine and a penalty of forcible administrative removal and was also placed in a special detention facility for foreigners. At a later date, the applicant applied for temporary asylum referring to the ongoing intensive military actions in Syria but his application was dismissed by Russian authorities.The Court concluded that the applicant’s removal from Russia to Syria would be in breach of Articles 2 and 3 of the European Convention on Human Rights (“the Convention”) regarding the right to life and prohibition of torture. Furthermore, the Court concluded that there has been a violation of Article 13 of the Convention in conjunction with its Articles 2 and 3, due to the fact that the review procedure for the penalty of administrative removal or a pending application for temporary asylum or pending judicial review of a refusal of temporary asylum did not have “automatic suspensive effect”. In addition, the Court found that there was no domestic legislation enabling the applicant to take proceedings for the judicial review of the lawfulness of his detention, and the domestic statutory framework does not allow the detention matter to be reassessed. Therefore, Article 5 §§ 1 and 4 have also been violated.
European Court of Human Rights, European Convention on Human Rights, Right to Life, Prohibition of Torture, Right to Liberty and Security, Right to an Effective Remedy, Administrative Removal, Temporary Asylum, Automatic Suspensive Effect.
Bu çalışma, Suriye vatandaşı S.K.’nın Rusya aleyhine Avrupa İnsan Hakları Mahkemesi’ne (“AİHM”) yapmış olduğu 52722/15 numaralı başvuru hakkında verilen kararın özetidir.Suriye vatandaşı S.K. hakkında, vize süresinin dolmasına rağmen Rusya’da kalmaya devam etmesi nedeniyle para cezası ve sınır dışı etme kararı verilmiş ve kişi, geri gönderme merkezine yerleştirilmiştir. S.K., sonraki bir tarihte, Suriye’de süregelen yoğun askeri faaliyetleri gerekçe göstererek geçici sığınma başvurusunda bulunmuş fakat bu başvuru, Rus makamları tarafından reddedilmiştir.AİHM, başvurucunun Suriye’ye geri gönderilmesinin, Avrupa İnsan Hakları Sözleşmesi’nin (“AİHS”) yaşam hakkına ilişkin 2. maddesini ve işkence yasağına ilişkin 3. maddesini ihlal edeceğine karar vermiştir. AİHM ayrıca; geçici sığınma başvurusunun veya sınır dışı kararına yahut geçici sığınma başvurusu hakkında verilen karara ilişkin yargısal denetimin, sınır dışı kararının yürütülmesini resen durdurmadığı gerekçesiyle AİHS’in etkili başvuru hakkına ilişkin 13. maddesinin AİHS m.2 ve m.3 bağlamında ihlal edildiği sonucuna varmıştır. Bunlara ilaveten Mahkeme, başvurucunun geri gönderme merkezinde alıkonulmasının hukuka uygunluğunu denetleyebilecek bir yargı yolunun ve alıkonulmaya ilişkin kararın yeniden değerlendirilmesi imkanının bulunmaması nedeniyle, AİHS’in özgürlük ve güvenlik hakkına ilişkin 5. maddesinin birinci ve dördüncü fıkralarının da ihlal edildiği sonucuna varmıştır.
Avrupa İnsan Hakları Mahkemesi, Avrupa İnsan Hakları Sözleşmesi, Yaşam Hakkı, İşkence Yasağı, Özgürlük ve Güvenlik Hakkı, Etkili Başvuru Hakkı, Sınır Dışı Etme, Geçici Sığınma, Yürütmeyi Resen Durdurucu Etki.
I. Introduction
This case originated in an application (no. 52722/15) lodged by a Syrian national, S.K., against the Russian Federation on 26 October 2015. The judgment of the Third Section of the European Court of Human Rights (“the Court”) became final on 14 May 2017.
The applicant arrived in Russia in October 2011. He was in possession of a business visa which was due to expire in October 2012. However, the applicant overstayed his visa and started to live with Ms. B., a Russian national. They had a child together in 2013 and married in 2014.
By judgment of 26 February 2015, the Sovetskiy District Court of Makhachkala found the applicant guilty of remaining in Russia after the expiry of his visa. He was sentenced to a fine and a penalty of forcible administrative removal in accordance with the Article 18.8 § 1.1 of the Code of Administrative Offences (“CAO”). In the same judgment, the District Court also ordered that, while awaiting enforcement of the administrative removal, the applicant be placed in a special detention facility for foreigners in the town of Makhachkala. These two judgments of the District Court, i.e. the forcible administrative removal and the placement in a detention facility form the basis of the application before the Court.
Thereafter, the applicant’s lawyer lodged a statement of appeal against the District Court’s judgment and the judgment was upheld by the Supreme Court of the Dagestan Republic. However, the penalty of administrative removal was not enforced and the applicant continued to stay in Russia. According to the Russian Government, enforcement proceedings were not pursued on account of an application lodged by the applicant for temporary asylum.
Indeed, the applicant applied for temporary asylum on 5 May 2015. He referred to the ongoing intensive military actions in Syria, particularly in his home town of Aleppo. He further argued that given his age, he would be drafted by the governmental forces for active military service, thereby putting his life and physical integrity in danger. His application for temporary asylum was dismissed by the local migration authority and the refusal was upheld by the Federal Migration Service stating that inter alia “In February 2012 there were no large-scale military operations in Syria...”. The applicant sought judicial review of the refusal of temporary asylum but the Basmannyy District Court of Moscow upheld the refusals of temporary asylum stating that inter alia “...Despite the difficult social and political situation in Syria, there are no grounds to consider that his life will be at a higher risk than that of other people living in this country...”. The applicant lodged an appeal but it was dismissed by the Moscow City Court.
II. Alleged Violations of Articles 2 and 3 of the Convention
The applicant complained that his administrative removal from Russia to Syria would have entailed and still entails a violation of Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
The Government argued that the applicant was responsible for the situation in which he found himself. He had overstayed his visa and had started to work illegally. In response to this, the applicant acknowledged that he had violated the migration legislation. However, such violation did not, per se, mean that his grievances falling within the scope of Articles 2 and 3 of the Convention were inadmissible.
According to the Court’s assessment, the applicant’s complaint before the Court has been made in the context of the continuing hostilities in Syria, and in particular in his home town of Aleppo, as well as on account of the possibility that he would be drafted into active military service, thus intensifying the risks to his life and limb. According to the jurisprudence of the Court, if an applicant has not already been removed, the material point in time for an assessment must be that of the Court’s consideration of the case. In the Court’s view, it was in the first place incumbent on the respondent Government to provide evidence that the general situation in Syria was not of the kind warranting protection under Article 3 of the Convention. The Court observed that the security and humanitarian situation and the type and extent of hostilities in Syria deteriorated dramatically between the applicant’s arrival in Russia in October 2011 and the removal order issued in February 2015 and afterwards. As a result, the Court concluded that the applicant’s removal from Russia to Syria, on the basis of the judgment of 26 February 2015 as upheld on appeal, would be in breach of Articles 2 and 3 of the Convention.
III. Alleged Violation of Article 13 of the Convention in Conjunction With its Articles 2 and 3
The applicant also argued that there was no statutory provision specifically requiring that a pending application for temporary asylum should have automatic suspensive effect vis-à-vis a removal order and therefore he had no effective remedies for his complaint with regard to Articles 2 and 3 of the Convention, in breach of Article 13 of the Convention.
The Government submitted that in the applicant’s case the District Court had imposed the penalty of administrative removal with due regard to all the relevant considerations and argued that the temporary asylum procedure was an effective remedy against forced return to Syria and the non-judicial procedure for temporary asylum (i.e. examination of an application first by the local and then by the federal migration authority) and the judicial review of an eventual decision by the courts at two levels of jurisdiction both have suspensive effect.
According to the Court’s assessment, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they are secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with an arguable complaint under the Convention and to grant appropriate relief. The remedy required by Article 13 must be “effective” in practice as well as in law. The powers and procedural guarantees which the national authority affords are relevant in determining whether the remedy is effective. The Court emphasized that in cases where a complaint concerns allegations that the person’s expulsion would expose him or her to a real risk of suffering treatment contrary to Article 3 or a violation of his right to life safeguarded by Article 2 of the Convention, at least one domestic remedy must provide for independent and rigorous scrutiny for a complaint relating to Articles 2 and 3 of the Convention and has automatic suspensive effect in respect of the impugned measure.
The Court evaluated the applicant’s complaint regarding Article 13 in two parts:
