Human Rights Report of ADC Memorial Violations of the Rights of Stateless Persons and Foreign Citizens in Light of the ECHR Judgment in “Kim v. Russia”

This report concerns the violations of the rights of stateless persons and foreign citizens placed in the specialized institutions for the temporary detention of foreign citizens (SITDFNs) by Russian courts in order to “guarantee their expulsion from the RF”. In practice, these people are held in custody for many months, even for years, and subjected to the same restrictions as prisoners in jail, even though “placement in a SITDFN” is not considered arrest.

People held in these facilities are not offered free legal aid, there is no possibility for judicial oversight of the term and soundness of deprivation of freedom, and detention conditions in SITDFNs are in many ways worse than in prisons, that makes the life in SITDFN a cruel punishment for people who did not commit any crimes.

The stated purpose for placement in a SITDFN is expulsion, which is practically impossible for stateless persons, who are not recognized as citizens by their countries of origin. Upon release, which occurs under a court decision or simply upon the expiry of the maximum term set by law, stateless persons are not issued documents that would enable them to stay legally in the RF, even though they also cannot leave the country without documents, thus increasing the already high likelihood that they will end up in a SITDFN again.

These problems were raised in a complaint of Roman Kim—a former detainee of St.Petersburg SITDFN, to the European Court. According to the ECHR decision in the case of Kim v. Russia, the Russian Federation was guilty of violating Article 3 (inhuman detention conditions), part 1 of Article 5 (extended detention without the prospect of expulsion), and part 4 of Article 5 (violation of the right of SITDFN prisoners to appeal and to judicial oversight over the legitimacy and length of detention. The ECHR obliged Russia to adopt measures of a general nature to correct this situation in order to prevent similar violations in the future: If implemented that would mean the real improvement of the situation of all people placed in SITDFN detention. To implement the ECHR’s judgement, not only the conditions of detention must be improved and not only free legal aid must be provided for inmates, it means the end of all attempts to expel stateless persons, as well as release all of them from SITDFNs and providing them with the personal documents.

However, the Russian government has unfortunately not yet adopted any of these measures to implement the ECHR judgment in relation to stateless persons and other prisoners in SITDFNs. It has not made any systemic changes to laws or enforcement practices, while certain positive changes have turned out to be temporary and inconsequential.

Due to the fact that the legislation has not been changed, judges do not oblige Russia’s migration service to issue stateless persons documents that would make it possible for them to live legally in the RF in order to prevent the likely possibility of their ending up in a SITDFN again. Courts leave stateless persons with this ambiguous status, and they also frequently replace “expulsion” with “independent controlled departure,” which is patently impossible (a person cannot leave the RF without documents), thus pushing stateless persons to commit a crime (illegal crossing of state borders, Article 322.1 of the RF Criminal Code, which is punishable by steep fines or forced labor / deprivation of freedom for a period of up to two years)

The system for placing people, even mothers of small children and pregnant women, in the inhuman conditions of SITDFNs for an extended, indefinite, and unregulated period, frequently without any reasonable necessity, and, in the case of stateless persons, without any possibility of achieving the stated goal (expulsion), flagrantly violates Human Rights and must be changed without delay within the framework of the implementation of the ECHR judgment in the case of “Kim v. Russia.” Urgent actions are needed in order to improve the situation, to provide both the  state and the  public control over the Human Rights violations in SITDFN, to make these institutions more open to human rights defenders, civil activists and volunteers, journalists, and other interested parties.