ECtHR communicated ADC Memorial’s legal appeal concerning illegal detention of stateless persons

09.08.2017
Эта запись так же доступна на: Russian

In July 2017 the European Court of Human Rights (ECtHR) has communicated legal appeals concerning the unlawful long-term detention of stateless persons in inhuman conditions, which had been filed by lawyers Olga Tseitlina in defense of O.M. Mayinov and by Yury Serov in defense of Kh. N. Mardonshoyev. Both applicants are natives of Tajikistan, who had previously lived in Russia for more than 20 years and who had been placed in the temporary detention center for foreign nationals back in 2014. They were de facto deprived of liberty for long period of time for violation of the Russian immigration legislation. O. Mainov has spent more than two years in the detention center.

In October 2014, Plesetsky district court of Arkhangelsk region has ruled Mardonshoyev guilty of violating immigration legislation and has ordered him to be fined and expelled from Russia in administrative order with a preliminary placement in the detention center for foreign nationals. After the authorities of Tajikistan have reported in November 2014 that Mardonshoyev was not a citizen of this country, he has not been released despite the fact that the bailiffs and the Federal Migration Service (FMS) have made attempts to cancel his expulsion. However, the courts found no grounds for the applicant’s release from detention, since such a mechanism was absent in the Russian legislation. The court has considered that the deportation order could be executed. Only months later the applicant was released from detention center, following numerous legal appeals concernbing earlier court decisions made by his defense.

The judges who had examined the case of Mayinov did not recognize the illegal nature of prolonged detention of a stateless person despite the absence of the possibility for his expulsion from the country. Representatives of law enforcement agencies did not make sufficient efforts to release a stateless person from detention: after the last request to the authorities of Tajikistan, the applicant spent another 16 months in the temporary detention center for foreign nationals. Two years later, the case was dismissed on a formal basis due to the expiration of the period for execution of the court’s ruling.

The absence of legal mechanisms for release of stateless persons form detention following the receiving of information about the impossibility of their expulsion from the country led to flagrant violations of their rights. The actual imprisonment of Mardonshoyev for more than 7 months and Mayinov for more than 16 months was not only unlawful, but the detainees had also been held in inhuman conditions (lack of proper light in the cells, poor diet, limited walks, lack of a separate toilets and access to water in the cells, significant restrictions on opportunities for employment and development, poor medical care, etc.).

Questions concerning the violation of the right to liberty (Subsections 1(f) and 4, Section 5 of the European Convention of Human Rights) have been put forward before the Russian Federation given the earlier decision by the Russian Constitutional Court in the case of Noe Mskhiladze, a stateless person. The Constitutional Court recognized as unconstitutional the prolonged deprivation of liberty in the absence of judicial control and substantial legal grounds. The complaint of Mr. Mskhiladze concerning indefinite detention had also communicated to the European Court of Human Rights ECtHR in December 2016. Earlier in 2015 ECtHR has adopted its decision in the case of “Kim v. Russia”, according to which Russia had to improve legislation and law enforcement practices in regard to stateless persons in order to stop their persecution, conviction and detention in inhuman conditions. Russia was also to establish a proper legal procedure on documenting stateless persons. Despite the extraordinary relevance of the problem of stateless persons in Russia, over the past two years the Russian authorities have not attempted to amend the laws regulating the status of stateless persons, and the conditions in the detention centers are largely terrible. However, it is necessary to note the positive trend that emerged in the Russian law enforcement practice following the adoption of the abovementioned decision of the Russian Constitutional Court in May 2017. Currently the Russian judges are increasingly making rulings on the release of stateless persons from detention with a reference to the earlier decision of the Constitutional Court.