Kim v Russia

Parties (including notable third parties)

Kim (Applicant); Russian Federation (Respondent)

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Summary of Facts

In July 2011, the Applicant was stopped by the police for an identity check, but he did not have any documents. As a result, a judge found the Applicant guilty of an administrative offence, fined him and ordered his expulsion from Russia. He was subsequently detained until his expulsion.

In an interview, the Applicant told the officers of the Federal Migration Service that he had been born in Tashkent. In November 2011 (over four months after his detention began), the director of the detention centre asked the Embassy of Uzbekistan for travel documents to be issued, but the embassy did not reply. Further requests were made in February, March, July, and November 2012 without reply. Counsel for the Applicant also sent an inquiry to the embassy seeking to confirm if the Applicant had Uzbek nationality to which no reply was received.

In November 2012, the Applicant applied for an order discontinuing the enforcement of the expulsion order since removal was impossible because the Uzbek authorities did not accept the Applicant as a national of that State, which was rejected by the Court. According to the judge, a failure to take measures to expel the Applicant was not a ground for discontinuing the enforcement of the order. This order was appealed based on the absence of a periodic judicial review of the Applicant’s detention in breach of Article 5(4) of the European Convention on Human Rights (ECHR) and a lack of diligence contrary to Article 5(1)(f). Counsel also attempted to challenge the Applicant’s detention as unlawful which was disallowed by the District Court of St. Petersburg. In letters from February and March 2013, the Embassy and then the Ministry of Internal Affairs of Uzbekistan informed the Federal Migration Service that the Applicant was not a national of Uzbekistan. The Applicant was released in July 2013 on the basis of expiry of the two-year time – limit for enforcement.

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Legal Arguments

Legal arguments by the Applicant

The Applicant submitted that Russian law does not provide for any possibility to obtain a meaningful judicial review of the detention of an individual who is detained pending administrative expulsion.

The Applicant submitted that the Russian authorities had not conducted the expulsion proceedings with due diligence, including because no effort had been made to contact the Uzbek authorities for the first four months of his detention, there had been no response from the Uzbek authorities after four letters, and that there was no justification for continuing his detention after the confirmation that he was not an Uzbek national in February 2013. The Applicant pointed out that he had been kept in detention pending expulsion: thus, there had been no complex extradition proceedings and the only issue to be determined had been whether at least one State was willing and able to receive him.

Legal Arguments by the Respondent

The Government acknowledged a violation Article 5(1)(f) for the period following 5 February 2013, the date on which the Embassy of Uzbekistan made it clear that the Applicant’s expulsion to Uzbekistan was impossible.

The Government acknowledged a violation of Article 5(4) regarding the lack of review of the lawfulness of the Applicant’s detention.

The Government also acknowledged a violation of Article 3 regarding the inadequate conditions of the Applicant's detention.

Outcome

On Article 3

The Court found that the conditions of detention caused considerable suffering and diminished the Applicant's human dignity. It therefore held there had been a violation of Article 3 of the Convention.

On Article 5(4)

The Court first noted thatthere was no judicial review in the initial detention order of July 2011. Then the Applicant spent over two years in custody, during which new issues concerning the lawfulness of his detention might have arisen. By virtue of Article 5(4) ECHR, the Applicant was entitled to apply to a ‘court’ having jurisdiction to decide ‘speedily’ whether or not his deprivation of liberty had become ‘unlawful’ in the light of new factors which emerged (paragraph 420).

The Court observed that no automatic periodic extension of the Applicant’s detention took place during the entire two-year period that he remained in custody, nor did he have any procedure available for a judicial review of its lawfulness. It therefore found a violation of Article 5(4).

On Article 5(1)

Article 5(1)(f) does not demand that detention be reasonably considered necessary, but any deprivation of liberty will only be justified for as long as deportation or extradition proceedings are in progress. To avoid being arbitrary, ‘detention must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued’ (paragraph 49).

While the Russian authorities wrote five times to the Embassy of Uzbekistan, the Court considered there was no indication that they pursued the matter vigorously or endeavoured to enter into negotiations with the Uzbek authorities with a view to expediting the delivery of travel documents, and it was concerning that the first letter was only sent four months after detention began. After the Uzbek authorities confirmed the Applicant was not a national, the continued detention cannot have been with a view to deporting the Applicant as that was no longer feasible. ‘The Government have not provided evidence of any efforts having been made to secure the Applicant’s admission to a third country. There is no indication that they asked him to specify such a country or that they took any steps to explore that option on their own initiative’ (paragraph 52).

The Court reiterated that domestic authorities have an obligation to consider whether there is a realistic prospect of removal and whether detention continues to be justified. In the absence of safeguards to review the lawfulness of detention, the Applicant spent the maximum period allowed in Russian law in detention. The Court also noted the ‘abnormal’ situation where his ‘preventive’ detention of two years was far more severe than the maximum ‘punitive’ detention for the offence itself (paragraph 55).

It was further noted that ‘[T]he Court is concerned about the Applicant’s particularly vulnerable situation. As a stateless person, he was unable to benefit from consular assistance and advice, which would normally be extended by diplomatic staff of an incarcerated individual’s country of nationality. Furthermore, he appears to have no financial resources or family connections in Russia and he must have experienced considerable difficulties in contacting and retaining a legal representative […]. As a consequence, the Applicant was simply left to languish for months and years, locked up in his cell, without any authority taking an active interest in his fate and well-being’ (paragraph 540).

The Court concluded that the grounds for the Applicant’s detention did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities’ failure to conduct the proceedings with due diligence, in violation of Article 5(1)(f) ECHR.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	3, 5(4), 5(1)(f)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.