The decisions of the ECtHR and the Russian Constitutional Court have become law: a victory in the 10-year struggle for the rights of prisoners of immigration detention facilities

The publication of the Federal Law No. 649–FZ dated 12/25/2023 “On Amendments to the Code of Administrative Offences of the Russian Federation” became a New Year gift for those who have been protecting the rights of migrant detainees for 10 years.

The Law finally introduced a norm on limiting detention in the immigration detention facilities for a period of no more than 90 days and judicial control over the extension of this period if the need for such an extension is stated in a timely (at least 15 days before the expiration date) petition of the Ministry of Internal Affairs. As for the migrant detainees, they can apply for expulsion at their own expense – and the court is obliged to consider such a request within 5 days. Even more importantly, the law directly indicates the right of people placed in the immigration detention facilities to apply to the court in order to verify the legality of their deprivation of liberty “in the presence of circumstances indicating the absence of an actual possibility of expulsion from the Russian Federation” (a person receives this right only after a month of imprisonment, see paragraph 17).

These changes to the Federal Law became the long-awaited result of many years of efforts by human rights defenders and lawyers, including ADC Memorial, aimed at protecting the rights of migrant prisoners. The most important milestone in this struggle was the decision of the Constitutional Court of the Russian Federation, which became possible thanks to the strategic legal work that began with Roman Kim’s complaint to the ECtHR.

In its decision, the Constitutional Court of the Russian Federation declared illegal the unlimited and unjustified detention of stateless persons in the immigration detention facilities (CVSIG, or formerly SUVSIG) and demanded that legislators amend the Administrative Code, ensuring the timing and judicial procedure for their release, and also recommended providing stateless persons with migration status in order to eliminate the risks of re-detention.

The Court’s Ruling said: “The Constitution of the Russian Federation guarantees everyone the right to freedom and personal inviolability; any restrictions imposed in legislation entailing deprivation of liberty must meet the criteria of legality”.

The Constitutional Court directly referred to the ECHR decision in the Kim v. Russia case, which became an important stage in proving the need to change the law and practice of deprivation of liberty of stateless persons in order to prevent (impossible) expulsion from the country.

The Constitutional Court ruled: “The Federal legislator should make changes to the Administrative Code that will ensure reasonable judicial control over the terms of detention in a special institution of stateless persons subject to forced expulsion.

The legislator has the right to provide in the Administrative Code for the obligation of judges to set specific deadlines for the application of this security measure (by analogy with current migration legislation), as well as to fix the special migration status of a stateless person released from a special institution, which will allow monitoring before the expiration of the time applied for  execution of an administrative expulsion order.

Before making changes to the legislation provided for by this Resolution of the Constitutional Court of the Russian Federation, it is necessary to provide persons placed in a special institution, in the absence of a real possibility of their expulsion, in any case, after three months from the date of the court’s decision on expulsion, the right to apply to the court to verify the legality of their further deprivation (restriction) of freedom. The enforcement decisions in the applicant’s case are subject to review.”

Now the Federal Law has made it mandatory to comply with the decision of the Constitutional Court, introduced judicial control over the terms of detention in the immigration facilities, and the deadlines for reviewing complaints against the decision on expulsion. Thousands of people will not wait for release for years, as happened in the past year with such victims of judicial arbitrariness as Oksana Kukharchuk, a native of Ukraine.