The recent training on statelessness provided on 24 October 2014 by the European Network on Statelessness and UNHCR in conjunction with Memorial in Moscow, provides a timely moment to assess the contribution made to the protection of stateless persons from arbitrary detention in recent case law emanating from the situation in Russia.
The judgment of the First Section of the European Court of Human Rights (‘the ECtHR’) on 17 July 2014 in the case of Kim v Russia (Application no. 44260/13) increases the visibility of the plight of stateless persons who are detained for immigration control purposes. A stateless person holds the nationality of no country. Such a person may be detained in the country in which he or she resides, using immigration powers, for the purposes of expulsion for want of status there. Yet to which country may he or she be expelled? Who would be obliged to admit him or her as he or she belongs to no country? How does his or her want of nationality affect the lawfulness of his or her detention for immigration purposes? These issues, among others, may be distilled from Mr Kim’s case. Ordinarily where a non-national is expelled from a host country to the country of his or her nationality, the latter country is obliged to admit him or her. But where there is no such country and where there is no third country to which there is reason to believe he or she would be admitted, what is to be done? Expulsion is not possible, so detention for such purpose may be said to be arbitrary.
Mr Kim was born in the Uzbek SSR during the Soviet era. By 1990 he was living in St Petersburg. On the dissolution of the USSR the state in which he lived was therefore the Russian Federation. As a result of want of provision in the laws of the states established on the dissolution of the USSR, he acquired the nationality of no new state and was therefore a stateless person. This juridical fact was to condition his subsequent detention and the assessment of the compatibility of his detention with the fundamental rights protected in the European Convention on Human Rights (‘the Convention’).
Mr Kim had been detained in Russia for want of identity papers and convicted and fined for an administrative offence in respect of the same. Having been registered last as resident in Uzbekistan, he was detained by the Russian authorities with a view to his expulsion there as a national of Uzbekistan. For the first four months of his detention no steps were taken to contact the competent authorities in Uzbekistan to seek confirmation of his nationality. Thereafter a number of letters were sent to the Uzbek Embassy without the courtesy of a reply being received. During this time no active steps were taken to chase the Uzbek authorities. Further, Mr Kim, in common with others detained in Russia in similar circumstances remained in detention without ready access to a meaningful process of judicial review to secure his release from detention. Eventually after over a year and a half since his initial detention, the Uzbek authorities, having been chased by Mr Kim’s own lawyers, confirmed that he was not recognised by them as one of their nationals. Despite this Mr Kim continued to languish in detention, only securing his release when the statutory two-year time limit for detaining persons for expulsion was reached. Throughout the whole period of his detention he was kept in squalid, overcrowded, conditions in a place only ever designed as a short-term holding facility.
Mr Kim petitioned the ECtHR alleging violations of rights protected under the Convention. He contended that the conditions of his detention constituted a violation of article 3 of the Convention as they amounted to inhuman and degrading treatment. The Court agreed. Russia is used to losing article 3 cases at the Court in respect of the conditions in its detention estate. In this case it accepted that there had been such a violation.
The real interest in the judgment as regards Mr Kim’s treatment as a stateless person comes in respect of article 5 of the Convention and the right to liberty and security. Mr Kim alleged a breach of article 5(4) of the Convention as he lacked speedy access to an effective judicial review procedure to enable him to attempt secure his release. He argued, among other things, that such a procedure would have been of particular benefit in his case as once the Uzbek authorities had confirmed that he was not a national of their country, there would have been a change of circumstances and no reasonable prospect of removal. In respect of the whole period of his detention he argued that he lacked meaningful access to a judicial remedy to secure his release. The Court agreed. As with article 3 cases in respect of conditions of detention, Russia is used to losing article 5(4) cases at the Court in respect of access to judicial review for a person seeking to challenge his or her detention. In this case it accepted that there had been such a violation.
Mr Kim also argued that his detention was unlawful by reference to article 5(1)(f), as although he has been detained for the purposes of deportation/expulsion, his detention had been arbitrary as inadequate efforts had been made to secure his admission to Uzbekistan, leading to an extended period in detention. Russia conceded that there had been a breach on article 5(1)(f) for the period from the point when the Uzbek authorities had notified their Russian counterparts that he was not recognised as an Uzbek national, however, it did not concede that he had been unlawfully detained throughout the period of his detention.
The Court found a violation of article 5(1)(f). It was critical of the lack of vigour with which the Russian authorities had pursued the Uzbek authorities and the want of any attempt to negotiate Mr Kim’s return. The Court rehearsed its position that article 5(1)(f) may no longer be relied upon where it is no longer feasible to expel a person and reiterated its view that the authorities had an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified. In this context the absence of an effective remedy to secure release from detention was of significance. There was no mechanism capable of preventing the risk of arbitrary detention.
Of particular interest is that the Court was seized of Mr Kim’s vulnerability to violations of his human rights on account of his statelessness. Unlike nationals of other countries he could not benefit from consular assistance. He lacked material resources and family connections in Russia and had difficulty in securing legal representation. As a person who, in the result, could not be expelled to another country, there was a concern that the Russian authorities had not accelerated proceedings to ensure protection of his right to liberty. The Court was also concerned that the period of detention for expulsion far exceeded the period that he could be detained for as a punishment for his related administrative offence.
In considering matters as a whole what is of especial value for advancing the cause of stateless persons is the recognition by the Court that statelessness affects the point at which detention for the purposes of expulsion becomes arbitrary and therefore unlawful. It may clear at an early point that detention of a stateless person for expulsion is arbitrary as there is no realistic prospect of removal because the person is stateless. An early appreciation that a person so stateless may prevent further unlawful detention (where a foreign national might continue to be detained as part of efforts to secure his or her re-admission to the country of nationality). The juridical fact of statelessness conditions the application of article 5 of the Convention and helps to secure the release of the person concerned from detention.
Having found violations of the Convention, the ECtHR went on to award €30,000 for non-pecuniary damages and to make finding as to the general measures called for in the execution of the judgment in order to prevent future violations. The Court considered that Russia had to introduce a mechanism to permit persons detained for expulsion to challenge their detention in order to avoid violations of article 5(4) of the Convention. Such measures needed to have a judicial character and to provide guarantees appropriate to the type of deprivation of liberty in question. As regards article 5(1)(f) the Court also considered that Russia needed to envisage taking necessary general measures to limit the period of detention periods so that it remained connected to the ground of detention applicable in the immigration control context.
As regards Mr Kim personally, the Court was careful to note that not only was he stateless, he also had no fixed residence or identity documents (not an uncommon situation for stateless persons). As a result of his irregular immigration position, he was at risk of further prosecution for future want of documentation. To guard against this the Court considered that it was incumbent on the Russian government to take steps to prevent Mr Kim from being re-arrested and detained for offences occasioned by virtue of his status as a stateless person. The Court’s concern to bring to an end the difficulties caused by Mr Kim’s status as a stateless person shows an awareness and sensitivity to the situation of stateless persons in host countries. A need for identity documents to secure residence, work, social assistance and avoidance of criminal penalty, places the stateless person who cannot secure such documents for want of the nationality of the host state or any other state, at a peculiar disadvantage. What is heartening is that the Court appreciated this and took the initiative to mitigate that disadvantage.
The Judgment in Kim is a step-forward for securing the human rights of stateless persons. It demonstrates the utility of human rights protection, not least in a state that is not bound by the 1954 Stateless Persons Convention and its standards of protection. The judgment has obvious utility for all detained stateless persons, where the decision to detain or to maintain detention is conditioned by the status of the person concerned as stateless. The judgment allows the detention of stateless persons for expulsion purposes to be characterised as arbitrary at an early stage of detention and proves the value of assessing whether a person is stateless a the earliest possible moment and irrespective of whether or not there is a statelessness determination procedure. It is to be welcomed.