Kim vs. Russian Federation: Russian government admitted violations of European Convention on Human Rights

08.02.2014
Эта запись так же доступна на: Russian

ADC “Memorial” in cooperation with attorneys Y.Serov and O.Tseytlina is constantly working to protect the rights of prisoners detained at the Saint Petersburg Aliens Detention Centre. This detention center is not different from any prison and people held there (sometimes for years) are often guilty of only some minor violations of the rules concerning foreigners’ stay in the Russian Federation – an overdue visa or maybe just a lack of medical insurance policy.

Among the hundreds of foreign detainees in the Aliens Detention Centre stateless persons are also quite frequent. ADC “Memorial” has repeatedly pointed out to the Russian authorities that detention of stateless persons in such centers was not appropriate because the sole ground for keeping detainees in this prison “for foreigner nationals” could be the need for further expulsion to their native countries and it was impossible to expel stateless persons out of the country as they would be considered stateless persons in other countries too. ADC “Memorial” not only advocates immediate release of stateless prisoners from detention center, but also helps them obtain documents in Russia, because simply letting these people go is both inhumane and inefficient as they will be immediately detained again and brought back.

A considerable step forward in defense of the rights of stateless persons in Russia was a recent admission by the government of the Russian Federation that Article 3 and Article 5, Section 4 of the European Convention on Human Rights (dealing with inhuman and degrading conditions of detention and unlawful detention respectively) were violated in the case of “Roman Kim vs. Russian Federation” which was considered by the European Court for Human Rights (ECtHR). The case (appeal № 44260/13) was brought before the court by attorneys Serov and Tseitlina with the assistance of ADC “Memorial”.

By admitting violation of Article 3 of ECHR Russia has confirmed that the conditions of detention in the newly-built Saint Petersburg Aliens Detention Centre were not up to the requirements of the Convention (and the conditions in other, older detention centers are much worse). Roman Kim reported that walks in the open air were almost absent (not more than 1-2 times per month in the prison yard), that food was scarce and of poor quality (low quality meat, lack of fruit and vegetables), that radio and TV sets were lacking in cells, there was no access to newspapers and magazines and the detainees were banned from using telephones and thus were placed in absolute informational vacuum, that meetings were allowed only with close relatives and were held in a room designed for strip-search of the detainees. As  a result of that both relatives and lawyers were limited in contacts with the detainees, while the room also lacked proper light and ventilation.

An even more important precedent was the admission by the authorities of the Russian Federation that Article 5, Section 4 of the ECHR was violated and that Russia has a systematic problem of the lack of regular court control over the detention of people and the absence of procedural possibility to appeal against detention in the Aliens Detention Center after a certain period of time, which results in impossibility of putting an end to detention even if expulsion from the country is legally impossible because the detainee is a stateless person. Earlier similar violations were admitted by the Russian Federation in the case of “Lakatosz vs. Russian Federation”, but the only consequence was that the claimant received compensation for the detention, but no measures aimed at changing the laws and legal practice were adopted.

Thus, admission of violation of the Article 5, Section 4 of ECHR concerns all the inmates of the Aliens Detention Center because the rights of each of them for immediate court consideration of the legal grounds for detention or arrest and possible liberation based on court ruling was violated.

Mr. Roman Kim (a stateless person of Korean ethnic origin born in Uzbekistan) was stopped on July 9, 2011, by the police for an identity check, later Federal Migration Service officers compiled a protocol of detention and charged him with violation of Article 18.8, Section 1 of the Code on administrative violations of the Russian Federation (violation of the rules regarding the stay in Russia).  Later on July 19, 2011, Sestroretsk district court of Saint Petersburg ruled him guilty of an administrative offence (breach of residence regulations in Russia), fined him 2,000 Russian roubles (RUR) and ordered his expulsion from Russia. Pending expulsion, the applicant was placed in the Aliens Detention Centre of the Saint Petersburg city and regional police directorate, but the period for the expulsion procedure was not specified. None of the bodies of state authorities which were presented with requests by the lawyer of Mr.Kim, including Directorate of the Federal Migration Service, Directorate of the Federal Bailiff’s Service, Aliens Detention Center, replied. Meanwhile no real measures were adopted for Mr. Kim’s expulsion from the country and it was only in January 2013 that a request was sent to the Embassy of Uzbekistan, where Kim originated from. On February 5, 2013, a reply was received from the Embassy of Uzbekistan, which  stated impossibility of issuing a document for Kim’s return to this country. In spite of the lack of legal grounds for that, Mr. Kim nevertheless was held in Aliens  Detention Center until July 23, 2013.

In its reply to ECtHR the Russian government stated that the conditions in Saint Petersburg Aliens Detention Center did not fully conform to the provisions of Article 3 of ECHR, which bans torture, inhuman and degrading conditions of detention or punishment.

It is also important that the government of the Russian Federation admitted violations of Article 5, Section 4 of ECHR and the impossibility of putting an end to detention in the Aliens Detention Center even in case the expulsion of a detained person from the Russian Federation was obviously impossible.