European Network on Statelessness: European Court of Human Rights again finds extended detention of stateless individuals illegal: two successful cases by ADC Memorial

On January 29 2019, the European Court of Human Rights (ECtHR) issued a judgment in case no. 23019/15 Alimuradov v. Russia holding that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), Article 5 § 1 (right to liberty and security of person) and Article 5 § 4 (speedy review by a court of the lawfulness of detention) and a judgment in case no. 8279/16 Mardonshoyev v. Russia holding that there had been a violation of Article 5 § 1.

The case of Alimuradov v. Russia

The applicant in the first case, Emil Alimuradov, is stateless and has no identity documents. Born in Azerbaijan, he moved to Russia in 2003 when he was 10 years old, together with his mother and grandmother. Subsequently he graduated from a secondary school and a technical college. Even though he had the legal right to citizenship of the Russian Federation, he wasn’t able to obtain it due to Russia’s lack of an effective legalization procedure for stateless people.

In 2014, the District Court found Mr Alimuradov guilty of illegally residing in Russia and pending his removal he was detained in a special facility for the detention of aliens run by the Saint Petersburg Office of the Russian Federal Migration Service, where he spent six months in atrocious conditions: the rooms were overcrowded, detainees were allowed to leave the cell only once a week (in winter – once a month) for 15 minutes; there were no beds and detainees had to sleep on the floor; hygiene was poor and detainees often suffered from lice; detainees weren’t provided with any medical aid and there were no separate facilities for confidential meetings with lawyers and relatives.

The court’s failure to properly establish his identity and (lack of) nationality and to take into account that Azerbaijan’s consulate didn’t consider Mr Alimuradov as a national, led to his extended detention. The attorney and even court bailiffs tried to appeal the decision but the courts on two separate occasions refused to release Mr Alimuradov.

Through the efforts of attorney Olga Tseytlina in cooperation with ADC Memorial, the court’s ruling was successfully appealed and in November 2014 Mr Alimuradov was released. However, on release his expulsion order was replaced with voluntary departure. Since Mr Alimuradov did not have any documents that would allow him to leave the Russian Federation, he was rearrested two months later for failing to execute the removal decision. On this occasion the judge declined to prosecute, thereby ending proceedings in the case. The case was submitted to the ECtHR in April 2015.

The case of Mardonshoyev v. Russia

The applicant in the second case was Khurshed Mardonshoyev, a stateless man and native of Tajikistan. In 2014, his residence in Russia was found undesirable by the Arkhangelsk Oblast office of the Federal Migration Service. Under the office’s decision, Mr Mardonshoyev was to leave Russia within one month, but was not able to, due to lack of documents. A court found him guilty of violating residence rules and detained him in a special facility for the detention of aliens in Arkhangelsk Oblast. He was then moved to a similar facility run by the Saint Petersburg Office of the Russian Federal Migration Service, where he spent a total of nine months in terrifying conditions. In the meantime the court decided to issue a deportation order, even though Tajik authorities reported that Mr Mardonshoyev was not a Tajik national. Bailiffs and the Federal Migration Service office attempted to have his expulsion annulled, but the court determined that even though he was stateless, he could still be removed from Russia. As a result the applicant’s extended detention was deemed not without grounds. Mr Mardonshoyev was only released after his attorney Yuri Serov spent months appealing this decision.

The applications regarding illegal extended detention of stateless persons which amounted to inhuman and degrading treatment filed by attorneys Olga Tseytlina on behalf of Mr Alimuradov and Yuri Servov on behalf of Mr Mardonshoyev concern not only the violation of the rights of two applicants, but of thousands and thousands of stateless people living in the Russian Federation who are either being held in expulsion centers or are living under the constant threat of detention.

Despite numerous ECtHR judgments that followed the ruling on Kim v. Russia (2015), Russia has yet to introduce judicial oversight of the terms and grounds for holding stateless individuals in special detention facilities. At the same time, the practice of Russian courts on similar cases differs from region to region (and even from judge to judge), and there are several cases where Russian courts took into account the ECtHR rulings and – perhaps even more importantly – the positive ruling of the Russian Constitutional Court in the case of Noe Mskhiladze to release the stateless individual, which was won after the Russian government ignored the implementation of Kim v. Russia.

Meanwhile, stateless people in Russia continue to be held in detention even though their removal is impossible and legalization procedures have not yet been determined at the legislative level.

For instance, ADC Memorial is working on the case of Denis Li, a stateless person born in Uzbekistan who later moved to Russia. He is detained in a special facility for migrants awaiting deportation in the city of Abakan (Republic of Khakasia, West-South Siberia). He doesn’t have any criminal convictions and has a wife and two young children who are all Russian citizens. As in the case of Mr Alimuradov, Mr Li was found guilty of violating illegally residing in Russia and was detained in June 2018. The expulsion of Mr Li cannot be executed, as the Consulate General of Uzbekistan confirmed that Mr Li does not have the citizenship of Uzbekistan.

While Mr Lee is trying to appeal his removal, the Supreme court of the Republic of Khakassia has twice refused to dismiss the decision to expel, because it doesn’t recognize him as stateless and believes that he had the opportunity to leave Russia before the decision to expel. In view of that they hold that the duration of his detention is not unreasonable, despite the absence of documents needed for crossing the border.

Recent judgements bring promise of real change and improvement, yet lack of positive changes in legislation and practice still dramatically affect the situation of stateless people in Russia. For example, individuals involved in the first case submitted by ADC Memorial to the ECtHR on the issue of statelessness “Lakatosh and others v. Russia” – Anna Lakatosh and Aladar Farkosh, Roma of Ukrainian origin, who seven years ago received millions of roubles in compensation from the Russian government – still can’t return to Ukraine where they were born, due to their statelessness and lack of an effective procedure to obtain documents.

ADC Memorial will continue to work with stateless people currently in detention in Russia and we hope that this work coupled with advocacy wiil finally bring about real legislative change which would mandate strict judicial control and oversight over the length of the detention of stateless people.

Olga Abramenko, Expert at ADC Memorial

Published in the blog of European Network on Statelessness