CHKHIKVISHVILI v. RUSSIA - 43348/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 935 (25 October 2016)

offences in Russia and given a custodial sentence. The most recent sentence was set to expire on 11 October 2012.

7. On 8 October 2012 the Ministry of Justice issued a decision declaring that the applicant’s presence in Russia would be undesirable upon his release (the “exclusion order”).

8. On 11 October 2012 the Federal Migration Service (FMS) issued a deportation order against the applicant and asked the Abakan Town Court of the Khakassiya Republic to authorise the applicant’s placement into the detention centre for aliens pending his deportation. On the same day the Town Court granted the request, holding that the applicant should remain in the centre “until his deportation”.

9. On 1 November 2012 the Abakan Town Court, and on 16 January 2013 the Supreme Court of the Khakassiya Republic, confirmed the validity of the exclusion and deportation orders. On 8 April 2013 the applicant’s request for leave to appeal was rejected.

B. The applicant’s stay in custody

10. On 7 November 2012 the Supreme Court of the Khakassiya Republic heard the applicant’s appeal against the decision on his placement in custody. The Supreme Court upheld the detention order but limited it in time until 31 December 2012.

11. On 14 December 2012 the Abakan Town Court examined an application for an extension of the time-limit. Noting that the FMS had not yet received a response from the Georgian Interests Section as to the applicant’s nationality, it extended the time-limit until 1 July 2013.

12. The applicant filed an appeal. He submitted that, upon serving the sentence, he should have been given an opportunity to leave Russia of his own will but that had been refused to him.

13. On 24 January 2013 the Supreme Court of the Khakassiya Republic rejected the appeal. It further held that the Town Court had erred in fixing a specific time-limit for the applicant’s detention and that the applicant should remain in detention “until his deportation”. On 8 April 2013 the applicant’s request for leave to appeal was rejected.

C. Proceedings for determining the country of destination

14. On 1 March, 16 October and 23 November 2012 the FMS inquired the Georgian Interests Section at the Embassy of Switzerland in Moscow whether or not the applicant was a Georgian national. On 5 February 2013 the Georgian Interests Section replied that the applicant’s Georgian nationality had been revoked by the President’s decree on 23 November 2007.

15. On 30 January and 19 February 2013 the applicant asked the FMS to consider his deportation to Turkey where he owned real estate and where he had lived between 2001 and 2005. On 27 February 2013 the FMS applied for assistance to the Consular Department of the Ministry of Foreign Affairs (MFA). However, on 16 May 2013 the MFA explained that it was unable to issue laissez-passer documents to foreign nationals and referred the FMS to the Turkish Embassy in Moscow.

16. In June 2013 the FMS established a working group on the applicant’s deportation. On 1 July 2013 the group sent a request to the Turkish Embassy and also asked the Georgian Interests Section whether the President’s decree revoking the applicant’s Georgian nationality could be quashed in connection with the Georgian amnesty act of 13 January 2013.

17. The applicant complained to a court about an excessive length of his detention. He submitted that he had been spent more than eight months in custody owing to the FMS’s failure to act diligently in the deportation proceedings. On 26 July 2013 the Abakan Town Court agreed with the applicant’s claim, noting that more than six months had lapsed between a first inquiry to the Georgian Interests Section about the applicant’s nationality dated 1 March 2012 and the second inquiry dated 16 October 2012, that no information about any action by the FMS in the period between 27 February and 1 July 2013 had been submitted, and that a request to the Turkish Embassy had been sent more than forty-five days after receiving the MFA’s explanation. The Town Court pronounced unlawful the FMS’s failure to act but refused to fix a time-limit for the applicant’s detention, referring to the Supreme Court’s judgment of 24 January 2013 (see paragraph 13 above).

18. In the meantime, Georgian counsel for the applicant’s family challenged the President’s decree revoking the applicant’s Georgian nationality in the Tbilisi City Court. Hearings were held on 26 September and 11 and 22 October 2013. On 11 November 2013 the City Court granted the claim and set aside the decree. That decision was upheld on appeal on 10 January 2014.

19. On 24 February 2014 the applicant obtained Georgian passport. On 3 March 2014 he was deported from Russia.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

20. The applicant complained that that his detention with a view to deportation was irregular and unlimited in time. The Court will consider firstly whether there was effective judicial supervision over the lawfulness of the applicant’s detention, as required by Article 5 § 4 of the Convention, and secondly whether it was compatible with the requirements of Article 5 § 1 (f) of the Convention (see Kim v. Russia, no. 44260/13, § 38, 17 July 2014, with further references). The relevant parts of Article 5 of the Convention provide 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 to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

...

4. 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. ...”

A. Admissibility

21. The Government claimed that the applicant had not exhausted the domestic remedies because he had not complained about alleged inaction of the Federal Migration Service. In reply, the applicant referred to the Town Court’s decision of 26 July 2013 (see paragraph 17 above).

22. The Court finds the Government’s objection to be without merit, since the applicant had in fact used the remedy which they claimed to be an effective one. Noting that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds, the Court declares it admissible.

B. Merits

23. The Government submitted that there had been no delays in the deportation proceedings which the Federal Migration Service had prosecuted with “special diligence”. The actions of migration authorities must be presumed to be lawful. Any deviation from the requirements of good faith or special diligence is amenable to an appeal to a court of general jurisdiction which would be called upon to verify the lawfulness of detention (the Government referred to the Constitutional Court’s decision dated 25 September 2014).

24. The applicant maintained his complaints.

1. Compliance with Article 5 § 4 of the Convention

25. The Court reiterates that the purpose of Article 5 § 4 of the Convention is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person’s detention and should be capable of leading, where appropriate, to release (see Kim, cited above, § 41, with further references).

26. The Court has found a violation of Article 5 § 4 of the Convention in many cases against Russia on account of the absence of any domestic legal provision which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion and to secure, if necessary, his release (see Kim, cited above, §§ 39-43; L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, §§ 140-42, 15 October 2015; Rakhimov v. Russia, no. 50552/13, §§ 148-50, 10 July 2014; Akram Karimov v. Russia, no. 62892/12, §§ 199-204, 28 May 2014; Egamberdiyev v. Russia, no. 34742/13, § 64, 26 June 2014; and Azimov v. Russia, no. 67474/11, § 153, 18 April 2013). In Kim, the Government acknowledged a violation of Article 5 § 4 of the Convention and, having regard to the recurrent nature of the violation, the Court directed that the Russian authorities should “secure in [their] domestic legal order a mechanism which allows 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” (see Kim, cited above, § 71).

27. No such mechanism was available to the applicant in the instant case. The Russian courts consistently refused to fix a specific time-limit for his detention, irrespective of subsequent developments in the deportation proceedings (see paragraphs 13 and 17 above). The Government did not indicate any remedy which could have secured, if necessary, the applicant’s release, while the Constitutional Court’s decision which they prayed in aid (see paragraph 23 above), was adopted after the applicant’s detention had come to an end.

28. As the applicant did not have at his disposal a procedure for a judicial review of the lawfulness of his detention, the Court finds that there has been a violation of Article 5 § 4 of the Convention.

2. Compliance with Article 5 § 1 (f) of the Convention

29. Article 5 § 1 (f) of the Convention does not demand that detention be reasonably considered necessary, for example to prevent an individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) of the Convention will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996-V). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) of the Convention must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009).

30. Unlike in the Kim case where the Russian authorities sent out a first inquiry about the applicant’s nationality four months after his placement in custody (cited above, § 51), the authorities in the instant case had begun their inquiries several months before the deportation proceedings were formally instituted and reiterated their request just six days after their beginning, which was followed by another request one month later (see paragraph 14 above). Once it transpired that the applicant’s deportation to Georgia was not feasible because his Georgian nationality had been revoked, the authorities started exploring other options, such as his departure to Turkey (contrast with Kim, cited above, § 52, where the Government provided no evidence of any efforts to secure the applicant’s admission to a third country). In the meantime, a legal possibility arose to have the applicant’s Georgian citizenship restored and the applicant’s removal to Georgia was once again a realistic prospect (contrast with Mikolenko v. Estonia, no. 10664/05, §§ 64-65, 8 October 2009). In total, the applicant spent one year and four months awaiting his deportation and no considerable periods of inactivity can be noted (compare Kim, § 54 in fine, and Mikolenko, § 64, both cited above). It is also relevant that the applicant did not claim that the conditions of his detention in that period had been inappropriate (contrast with Kim, cited above, §§ 28-35).

31. The foregoing considerations are sufficient to enable the Court to conclude that the deportation proceedings were continuously in progress and that the domestic authorities did not fail to conduct those proceedings with due diligence.

32. There has therefore been no violation of Article 5 § (f) of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. 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.”

34. The applicant claimed 300,000 euros (EUR) in respect of non-pecuniary damage.

35. The Government considered the claim excessive.

36. The Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

37. 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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 4 of the Convention;

3. Holds that there has been no violation of Article 5 § 1 (f) of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helen Keller
Deputy Registrar President

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