Constitutional Court to Consider Case of Noé Mskhiladze

17.04.2017
This post is also available in: Russian

Stateless person complains of extended imprisonment for the purpose of “expulsion” from the RF, even though it is obviously impossible to deport a stateless person.

The RF Constitutional Court will consider the case of Noé Mskhiladze at 10:00 a.m. on April 18, 2017. The session will be broadcast on the Court’s website.

Like many other stateless people, Mskhiladze is the victim of loopholes in Russian laws. In Russia, people who have lost their citizenship of a country can be detained for “violating the migration regime,” and courts can issue a directive on their expulsion. They are then imprisoned in temporary foreign national detention centers for what essentially amounts to an indefinite period, since it is impossible to deport stateless persons to any country. At the end of the two-year detention period (the maximum for “ensuring expulsion”), stateless persons are released from these centers without being issued any documents that would allow them to remain in the RF legally. This means that they are frequently re-imprisoned as violators of the migration regime. The situation of stateless persons with previous convictions is exacerbated by the fact that the Ministry of Justice issues decisions on the undesirability of their stay in the RF, resulting in their placement in temporary detention centers for the purpose of deportation, which is obviously impossible.

These problems were raised in the case of Kim v. Russia, in which the European Court of Human Rights issued a judgment instructing Russia to solve the applicant’s problem (grant him legal status and issue the corresponding documents) and to take general measures to improve the situation for all stateless persons in the RF (of which there are over 178,000 according to census data). Here general measures refer both to stopping the persecution of these people (administrative arrest, fines, placement in the prison-like conditions of a temporary detention center) and to creating an effective procedure for documenting stateless persons in the country. The ECHR judgment in the Kim case could have dramatically improved the legal situation of stateless persons, but Russia has failed to implement even one single point in it, a fact that ADC Memorial reported to the Committee of Ministers of the Council of Europe, which supervises the enforcement of ECHR judgments.

In fact, Mskhiladze cites the ECHR judgment in the Kim case in his complaint to the Constitutional Court (which was submitted with support from ADC Memorial) because he himself suffers from Russia’s failure to implement this judgment that is so fundamental for him as a stateless person: indeed, he remains confined in a temporary detention center even though it has long been established that he cannot be expelled. The expert opinion sent in response to a query from the Constitutional Court by Voronezh University repeatedly cites ADC Memorial’s report on the case Kim v. Russia (2016), in which human rights defenders analyzed judicial practice in cases on expelled stateless persons and the consequences of the failure to implement the European Court’s judgment.

In response to the Court’s question of how the problem of stateless persons should be resolved, the expert noted that stateless persons must be released and issued the corresponding documentation to prevent re-arrest. Jurists from the Federation Council also concluded that stateless persons must be documented to legalize their status. The need to set a clear detention period for the purpose of expulsion is noted in opinions of the RF Supreme Court and the RF Prosecutor General’s Office in Mskhiladze’s case. And even though the Ministry of Justice takes a tougher stance by objecting to the applicant regarding the constitutionality of the disputed articles of the Code of Administrative Offenses, it is already known that this Ministry has asked the Committee of Ministers of the Council of Europe not to consider a complaint on the failure to implement the case of Kim v. Russia, since general measures to change the Code of Administrative Offenses are already being prepared. Specifically, these measures include replacing confinement in a temporary detention center with a more lenient restrictive measure that does not involve deprivation of freedom.

Tomorrow, however, the Constitutional Court will answer the main question: does the RF Constitution allow for the imprisonment of people simply because they are stateless and their presence in the RF is “undesirable”?