ECtHR ruled against violation of the right to liberty and security of a stateless person

05.03.2018
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On February 13, 2018, the European Court of Human Rights (ECtHR) made its ruling in the case of “Mskhiladze v. Russia” (No. 47741/16 ), in which it found violations of Article 5 § 1 (right to liberty and security of a person) and Article 5 § 4 (speedily consideration by the court of the legality of the arrest or detention) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The applicant, a stateless person, a native of Georgia, Noe Mskhiladze, who had lived in Russia for more than twenty years, was declared by the Justice Ministry in 2014 “undesirable” on the territory of the Russian Federation and, by the court order, was to be expelled. Following that he was placed in the temporary detention centre for foreign nationals. Mskhiladze could not be deported due to the fact that no state, including Georgia, recognized him as its citizen, and there was no country in the world to which the applicant would have the legal right to enter. Due to the efforts of his lawyer, Mr. Mskhiladze was released from the temporary detention centre for foreign nationals, but soon afterwards found himself there again, as he did not receive documents that would allow him to stay in Russia legally. In total, Mskhiladze was imprisoned for more than two years, being, like other stateless persons, a victim of legal loopholes in the Russian legislation. Having exhausted all means of legal defense, the lawyer of Mr. Mskhiladze with the support of Anti-Discrimination Centre “Memorial” filed a complaint with the European Court of Human Rights.

Four years ago, the same problems had been raised in the case of “Kim vs. Russia”, on which the ECtHR made a ruling instructing the Russian authorities to take general measures to correct the situation of all stateless persons and to abandon their persecution. However, the decision of the ECtHR in the case of “Kim v. Russia” was not carried out, therefore Noe Mskhiladze, with the help of lawyers and with the support of ADC “Memorial”, applied to the Constitutional Court of the Russian Federation in 2017 with a request to check for compliance of the provisions of Articles 31.7 and 31.9 of the Code of Administrative Offenses of the Russian Federation, including the two-year period of prescription on the execution of the decisions on administrative expulsion in order to resolve in essence the issue of the lawfulness of holding a person in a specialized institution without any purpose. In its decision, the Constitutional Court of the Russian Federation found illegal the unreasonable and unjustified detention of stateless persons in the temporary detention centres for foreign nationals and demanded the lawmakers to immediately amend the Code of Administrative Offenses, ensuring the time periods and legal procedure for their release, and recommended that they provide them with migration status in order to exclude the risks of repeated detention.

Following the ruling of the Constitutional Court of the Russian Federation, the decision in favor of Mskhiladze was also made by the European Court of Human Rights. The ECtHR held that there had been a violation of Article 5 § 1 of the Convention in the case of Mskhiladze, since the applicant had been detained for no purpose since the end of March 2016 until his release on June 22, 2017, as well as a violation of Article 5 § 4 of the Convention, because during the whole period of his stay in the temporary detention centre for foreign nationals he had no opportunity to appeal to court and to take part in consideration of the issue of release from custody.

The decision of the Russian Constitutional Court in the case of Mskhiladze has not yet been fulfilled: amendments to the Administrative Code have been prepared, but have not yet been adopted by the parliament. The decision of the ECtHR in this applicant’s case must remind the Russian authorities that the situation of stateless persons and other prisoners of temporary detention centers should be immediately improved by changing Russian legislation.