The decision of the Constitutional Court of the Russian Federation in the case of Noe Mskhiladze which was adopted 5 years ago had a strong influence on the practice of court decisions on the release of prisoners from Centres for the Temporary Detention of Foreign Nationals (CTDFN’s). It states that the deprivation of liberty of those who cannot be expelled has no meaning and no legitimate purpose. Only in St. Petersburg, lawyers and human rights activists managed to release dozens of stateless people from CTDFN’s using the “Mskhiladze mechanism”, and there were hundreds more throughout Russia. However, until now, some courts have ignored the decision of the Constitutional Court and refused to release the prisoners of CTDFN’s, even if it is clearly impossible to expel them and the detention is pointless.
So, on January 13, 2023, the Moskovsky District Court of St. Petersburg refused to release Oksana Kukharchuk, a native of Ukraine, who has been imprisoned in a Centre for the Temporary Detention of Foreign Nationals with the aim of expulsion for more than a year – since December 22, 2021. Her only fault was that while working in Russia, she lost her documents just before the start of the Covid-19 pandemic. Kukharchuk was unable to receive a temporary identity card in time and leave for her homeland: the borders were closed, and transport connection was interrupted. After two months of her imprisonment, a full-scale war began in Ukraine, due to which the restoration of documents and the return home became impossible.
When applying to the court to check the legality and justification of Kukharchuk’s detention in the Centre for the Temporary Detention of Foreign Nationals, the lawyer appealed to the decision of the Constitutional Court in the Mskhiladze case and proved the absence of a legitimate and achievable goal of keeping the applicant in the CTDFN. She cannot be expelled, because due to the termination of diplomatic relations with Ukraine and the closure of Ukrainian consular offices in Russia, it is impossible to restore her documents, there is no air traffic, the border is closed, and there is a war going on. Thus, the further content in the Centre is meaningless and does not pursue a legitimate aim. In addition, in January 2023, Kukharchuk wrote an application for temporary asylum.
However, on January 13, 2023, the Moskovsky District Court of St. Petersburg refused to satisfy the application, considering that Kukharchuk’s expulsion was possible. The court’s arguments are more than strange: Kukharchuk’s presence in the CTDFN cannot be considered arbitrary, since the bailiffs turned to the Department of Internal Affairs of the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for assistance in documenting it; the lack of air communication with Ukraine is temporary, which means that the closure of the borders cannot be considered as a basis for terminating the implementation of the resolution. Finally, the current legislation of Russia does not establish the obligation to expel a foreign citizen from the Russian Federation directly to the country of which he is a citizen – that is, the court seriously believes that Kukharchuk can be expelled not to Ukraine, but to some third country.
During the consideration of the complaint, the court refused all motions of the defence and even refused to interrogate an employee of the Office of the Commissioner for Human Rights who appeared in court as a witness.
Oksana Kukharchuk, who has not committed any crime, runs the risk of spending many more months in the CTDFN: the term for the execution of an administrative decision is 2 years. Her application for temporary asylum and temporary identity card has not yet been processed.