“Everyone has the right to a nationality”

Russia’s Constitutional Court decision helps to protect stateless detainees as legal change approaches

16 October 2020 | Stephania Kulaeva - Executive Director, ADC Memorial
Russia’s Constitutional Court decision helps to protect stateless detainees as legal change approaches

In Russia, tens of thousands of stateless people are at risk of spending years in detention if the courts order their deportation or expulsion from Russia; a decision that is legally impossible to implement as they have no country of citizenship to which they can be returned. This practice, however, was successfully appealed in the High Courts and legal change is on the way. 

Mskhiladze v. Russia

In May 2017, the Constitutional Court of the Russian Federation declared in its decision in the case of Noé Mskhiladze v Russia, that the Administrative Code of Russia has to be changed in order to give stateless detainees the right to appeal in court against the deprivation of their freedom. This decision was based on the earlier European Court of Human Rights (ECHR) decision on Kim v Russia, a case in which the ECHR recognised the violation of Articles 3 and 5 of the European Convention on Human Rights by placing the stateless Mr. Kim in detention for years. Most important in the ECHR ruling on the Kim v Russia case was the Court’s conclusion that Russian authorities should adopt general measures, including a periodic court revision of the purpose of detention (that is, always ensuring deportation or expulsion, which is not possible for stateless people) and length of detention. Whilst the recommendation of the ECHR was not sufficient for the Russian authorities to change the law, the next step of strategic litigation brought success. The Constitutional Court agreed with Mr. Mskhiladze, whose lawyers argued that non-implementation of the Kim ECHR ruling in fact violated the rights of other stateless detainees, who still had no court control over their deprivation of freedom – lasting for years in the case of Noé Mskhiladze. Real change became possible only when the Constitutional Court agreed with this position and declared the lack of legal possibilities for stateless people to appeal expulsion as the grounds for their detention, to be unconstitutional.

A new procedural code

In the summer of 2020, a draft version of the new procedural code of administrative offenses was published with an important change, regulating the way and terms of possible detention of third country nationals and stateless persons accused of violating Russia’s migration rules. It states that a third country national or stateless person can be placed in a special detention facility only on the basis of the court decision indicating a particular time period for the detention (point 5 of Article 4.7). Previously, the courts simply ruled that expulsion from Russia could take place by placing individuals in immigration detention, meaning that without an indicated time period, detention could last for many months and even years in cases of statelessness. Article 4.7 also now states that the time spent in detention cannot exceed 90 days and may be prolonged by a court for another 90 days only. That means that every detainee will have a chance once within three months to appeal their detention in court. In the case of a stateless detainee and de facto impossible deportation, there should be no prolongation of the detention period. These changes will significantly help stateless people, when implemented. This is a clear and positive result of many years of strategic litigation efforts and the Constitutional Court decision.

Protecting stateless people from arbitrary detention

As the COVID-19 pandemic made the expulsion of immigration detainees impossible due to closed borders, ADC Memorial and other human rights organisations tried to call upon Russian authorities to release them, again reminding that in the judgment of May 23, 2017, Russia’s Constitutional Court found that custody of foreign nationals in a detention centre whose deportation is not feasible, contravenes the Russian Constitution. In these cases, detention has no attainable legal purpose and translates into arbitrary and illegal deprivation of liberty. Unfortunately, the general decision proposed by this statement was not taken immediately.

Nevertheless, we have continued to use the same argument in courts for the protection of both stateless people and third country nationals from arbitrary detention, sometimes with direct effect. In May 2020, ADC Memorial in cooperation with lawyer Yuri Serov, achieved the cancellation of an earlier court ruling by Kingisepp town court on the expulsion of stateless person Boris Zimonin, found guilty of committing an administrative offense for evading his previously assigned expulsion from the Russian Federation. Mr. Zimonin had lived in Estonia for a long time and had held a stateless person’s document there. He moved to Russia and did not acquire another passport; meanwhile his Estonian ID expired. Thus, at the time of the expulsion order, Mr. Zimonin did not have any documents that would prove his right to legally stay either in Russia or in Estonia. Still, Mr. Zimonin was sentenced to deportation and placed in detention. His lawyer asked the court to terminate the execution of its earlier expulsion order and stated that there was no legitimate or achievable goal in keeping Mr. Zimonin in detention, as there was no information about his citizenship of any State. The immigration detention was therefore without purpose, as the Constitutional Court of Russia had stated in the Noé Mskhiladze case. The court concluded that the absence of a de facto possibility for expulsion caused the prolonged detention of Mr.Zimonin, violating his rights and freedoms. After three and a half months of detention, Mr. Zimonin was finally released.

Georgian citizen Igor Goginava was also released from detention, after being prosecuted for exceeding the legal period of stay of a foreign citizen on the territory of the Russian Federation. The consular service of the Republic of Georgia in Russia issued a certificate to Goginava for his return instead of a passport, which had expired. The applicant had been diagnosed with a serious illness that required treatment. His lawyer asked the Court to release Mr. Goginava, as the borders in 2020 have been closed and there have been no passenger transport connections between Russia and Georgia. Only on the 31st of August 2020 after seven months in detention, the decision on Goginava’s expulsion and detention was finally canceled, and he was released.

Finally, in September, 2020, as a result of successful cooperation between lawyer Yuri Serov and ADC Memorial, Azizjon Alisherov, a native of the Republic of Tajikistan who had been detained for ten months was released from immigration detention. In October 2019, Alisherov was detained for violation of the migration rules. However, he had presented himself under a different name, recorded in the protocol without additional checks, as is required by law. Under this name, the Court made a decision to expel him. His lawyer appealed the decision since expulsion from Russia was impossible due to the Covid-19 pandemic. The court came to the conclusion that, in view of the closure of the borders and the lack of transport connections between Russia and the Republic of Tajikistan, Mr. Alisherov’s detention had no legal or achievable goal, and he was released.

These examples show that strategic decisions of the Hight Courts against the arbitrary detention of stateless people – the ECHR in the case of Mr. Kim and the Constitutional Court of Russia in the case of Mr. Mskhiladze – help both to improve legislation and achieve direct results in on-going court proceedings in Russia concerning stateless people and even third country nationals who’s status, problems with documentation, name or other circumstances make expulsion impossible and detention arbitrary. In the time of the COVID pandemic and subsequent border closures, these decisions are especially important.

Photo: succo (Pixabay

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