European Court of Human Rights

 

 

THIRD SECTION

CASE OF A.J. AND OTHERS v. RUSSIA

(Applications nos. 12120/20 and 2 others - see appended list)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

29 March 2022

 

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

In the case of A.J. and Others v. Russia,

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

          María Elósegui, President,
          Andreas Zünd,
          Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table (“the applicants”), on the date indicated therein;

the decision not to have the applicants’ names disclosed as specified in the appended table;

the decision to give notice of the complaints concerning Articles 2 and 3 of the Convention to the Russian Government (“the Government”) represented by their Agent, Mr M. Galperin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office, and to declare inadmissible the remainder of the application;

the decision to give priority (Rule 41 of the Rules of Court) to the applications and the decision to indicate interim measure to the respondent Government under Rule 39 of the Rules of Court as set out in the appended table;

the parties’ observations;

Having deliberated in private on 8 March 2022,

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

SUBJECT MATTER OF THE CASES

1.  The applicants are Syrian nationals and complain that they would face a real risk of being subjected to death or ill‑treatment in the event of their removal to Syria. Their personal details and the information concerning their applications, the particulars of the domestic proceedings and other relevant information are set out in the Appendix.

2.  On various dates between 2012 and 2014 the applicants legally arrived to Russia, but overstayed the period of their legal residence. At the beginning of 2020 they were apprehended by the immigration authorities and were found to be in breach of immigration regulations by the domestic courts which ordered their administrative expulsion from Russia to Syria.

3.  During the expulsion proceedings at the District Court and on appeal, relying on documents from domestic sources, on international reports (UNHCR, Red Cross) and on the Convention, the applicants stated that their expulsion to Syria would directly endanger their life and health, in the light of the ongoing conflict. They further claimed that they would be required by law to be drafted into the Syrian army because of their age and that in the event of their refusal to serve they would be executed or tortured. They had family members living in Aleppo, where the terrorist threat was still present, one of them claiming that his parents had been wounded few months before.

4.  The District Courts briefly rejected the applicants’ complaints concerning the risks in case of their return and focussed its examination on the infringement of the immigration regulations. The Appeal Courts dismissed the applicants’ appeal, that pointed also to the lack of examination of the merits of the risks raised, on the following grounds: there were no objective, specific evidence and convincing arguments supporting the alleged risk of ill-treatment or the failure of the Syrian Government to ensure the safety of its citizens in case of their removal there, including in Aleppo which was under the Government control; the applicants had not shown that they were “at a higher risk than the general population in Syria” of being subjected to inhuman and degrading treatment; the fact that the applicants haven’t been granted refugee status or temporary asylum was conclusive as regards the risk related to the drafting in the army and associated ill-treatment; following the ceasefire agreement of 30 December 2016 there were only local clashes between terrorist and governmental forces. The trend was towards continuing return of Syrian refugees and implementation of the State program for restoration of settlements, schools, medical institutions, roads and power lines in the territories liberated from terrorists.

5.  On 5 March 2020, upon the applicants’ request under Rule 39 of the Rules of Court, the Court indicated an interim measure to the Russian Government staying the applicants’ removal to Syria. It has been decided that the applicants’ identities should not be disclosed to the public (Rule 47 § 4).

6.  The applicants complain under Articles 2 and 3 of the Convention that they would face a real risk of being subjected to death or ill-treatment in the event of their removal to Syria.

THE COURT’S ASSESSMENT

I.        JOINDER OF THE APPLICATIONS

7.  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 ARTICLEs 2 and 3 OF THE CONVENTION

8.  The applicants complain that they would face a real risk of being subjected to death or ill-treatment in the event of their removal to Syria. The Court finds that it is more appropriate to deal with the complaint under Article 2 in the context of its examination of the applicants’ related complaint under Article 3 and will proceed on this basis (see N.A. v. the United Kingdom, no. 25904/07, § 95, 17 July 2008, and R.K. v. Russia, no. 30261/17, § 36, 8 October 2019).

A.    Admissibility

9.  The Government argued that by omitting to apply by September 2014 and August 2016 for the renewal of their temporary asylum status granted to them, I.A. and W.K. respectively had failed to exhaust domestic remedies. The Court observes that this argument refers to proceedings and temporary status that ended several years before the adoption of the administrative removal orders which the applicants complain about. Moreover, the Court reminds that it has focused, in respect of Russian cases, primarily on extradition or administrative expulsion proceedings as constituting the basis for complaints brought under Article 3 of the Convention. It has found that while ruling on the question of the possibility of removal, the scope of review by the domestic authorities, including the courts, should include relevant arguments regarding ill-treatment raised by the applicants, in view of the absolute nature of Article 3 of the Convention (see L.M. and Others v. Russia, nos. 40081/14 and 2 others, §§ 100-02, 15 October 2015). The Government haven’t contested that applicants I.A. and W.K. had raised during the judicial review of the removal orders their grievances under Article 3 of the Convention, which were dismissed by the domestic courts. The Court considers that these proceedings have afforded the applicants a sufficient opportunity to prevent the alleged violation of their Convention right (see, mutatis mutandis, M.D. and Others v. Russia, nos. 71321/17 and 8 others, §§ 65-66, 14 September 2021). The Court accordingly dismisses the Government’s objection regarding the non‑exhaustion of domestic remedies by I.A. and W.K.

10.  In respect of all applicants, the Court notes that the complaint raised under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

11.  The general principles concerning Article 3 in the context of expulsion or extradition have been summarised in Mamazhonov v. Russia (no. 17239/13, §§ 127-37, 23 October 2014) and the three critical elements that are to be subjected to a searching scrutiny by the Court have been reiterated in M.D. and Others v. Russia (cited above, § 91).

12.  In the judicial proceedings against their administrative removal, the applicants referred to the security conditions in Syria, including in their region of origin, Aleppo, to the recurring violence, breaches of ceasefire agreements and dire humanitarian conditions. They also submitted a description of their respective personal situations, pointing in particular to their age rendering them liable for conscription into the army and the related risk in the light of international reports (notably issued by UN bodies). The national authorities were thus presented by the applicants with substantial grounds believing that they would face a real risk to their lives and personal integrity if they were expelled to Syria.

13.  The District Courts’ approach to essentially limit the scope of their review to the applicants’ compliance with the immigration regulations cannot be considered compatible with the need for rigorous scrutiny required in cases concerning expulsion. As for the Courts of Appeal, while they did give some individual consideration to the applicants’ claims, their assessment couldn’t qualify as an effective consideration of the merits of the risks raised by the applicants and of the sources on which the latter relied. Concerning the security conditions in Syria, in particular in the Aleppo region, these courts didn’t refer, yet less rigorously compare, the different national and international reports, submitted by the applicants, which recommend against the forcible return of Syrian migrants. In this context, the mere reference by the Courts of Appeal to a similar risk faced by the general population in Syria of being subjected to inhuman and degrading treatment doesn’t indicate an in-depth analysis. Moreover, the Court of Appeal didn’t address on the merits the specific individual risk concerning the consequences of refusal to be conscripted into the army (see M.D. and Others v. Russia, cited above, §§ 98‑100).

14.  Finding itself compelled, in the absence of a due examination by the domestic courts, to examine independently whether the applicants would be exposed to a risk of ill-treatment in case of removal to Syria, the Court reiterates that the material point in time for such assessment must be that of the Court’s consideration of the case, on the basis of the latest country material available. It has recently examined in detail the relevant situation, including with respect to the Aleppo region where the applicants originate from, and held that despite the efforts made by the Russian Federation and other actors to find sustainable solutions for the return of Syrian refugees, the latter’s forcible return does not appear feasible owing to the volatile security situation there (M.D. and Others v. Russia, cited above, §§ 107-09).

15.  Therefore, having regard to the parties’ submissions, to the international reports and to its own recent findings in respect of the general security situation in Syria in the case of M.D. and Others v. Russia (cited above), the Court finds that substantial grounds have been shown that there exists a real risk that the applicants would face ill-treatment if the orders for their expulsion to Syria were to be implemented. Accordingly, it holds that the expulsion of the applicants to Syria would constitute a violation of Articles 3 of the Convention.

III.   RULE 39 OF THE RULES OF COURT

16.  The Court reiterates that, in accordance with Article 28 § 2 of the Convention, the present judgment is final. Accordingly, the measure indicated to the Government under Rule 39, as set out in the appended table, ceases to have any basis.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicants requested the Court, if there is a violation of the Convention, to make an award of non-pecuniary damages in accordance with the Court’s case-law in similar cases, finding difficult to assess the suffering caused by the two-month deprivation of liberty pending expulsion. They didn’t request any amount for costs and expenses.

18.  The Government claimed that any award should be made in compliance with the Court’s well-established case-law on the subject.

19.  Assuming that the applicants’ claims cover the violation found under Article 3, the Court notes that no breach of the Convention under this head has yet occurred, so its finding regarding this complaint in itself amounts to adequate just satisfaction for the purposes of Article 41 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that there would be a violation of Article 3 of the Convention in the event of the applicants’ removal to Syria;

4.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.

Done in English, and notified in writing on 29 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Olga Chernishova                                                 María Elósegui
          Deputy Registrar                                                      President

 

APPENDIX

List of cases: