Постановление ЕСПЧ от 29.10.2015 <Дело A.L (X.W) против России> (жалоба N 44095/14) [англ.] Часть 2

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THE LAW

  1. Alleged violations of Articles 2, 3 and 13 of the Convention on account of imminent forcible return to China

 

  1. The applicant complained that if he were to be forcibly returned to China, he would be at risk of being convicted and given the death penalty. He further complained that he did not have an effective remedy for the above complaint. He relied on Articles 2, 3 and 13 of the Convention, the relevant parts of which provide:

Article 2

«1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

…»

Article 3

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

Article 13

«Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.»

 

  1. Admissibility

 

  1. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

 

  1. Merits
  1. Articles 2 and 3

 

(a) Submissions by the parties

  1. The Government submitted that the domestic courts had examined the applicant’s argument that his deportation to China would expose him to the risk of being subjected to the death penalty and receiving inhuman treatment. Those arguments had been rejected because the aim of the domestic proceedings against him had been to declare his presence in Russia undesirable rather than to extradite or deport him to China. The exclusion order would not automatically entail his deportation to China; the applicant could still leave Russia for another country using his Chinese passport.
  2. The Government further submitted that the domestic courts had found that the exclusion order against the applicant had been issued by a competent authority in accordance with the procedure prescribed by law and had been based on sufficient reasons. Given that the applicant was sought by the Chinese authorities on suspicion of murder, had been fined several times in Russia for driving offences and had lived in Russia unlawfully with an unlawfully issued passport, there had been sufficient reasons to find that he represented a real threat to public order and security.
  3. The applicant submitted that he was being sought on the capital charge of murder by the Chinese authorities. The Russian authorities had initially envisaged extraditing him to China but the extradition proceedings had eventually been abandoned. An attempt to remove him to China through administrative removal proceedings had proved unsuccessful because the domestic courts had refused to order his administrative removal. The Russian authorities had then initiated exclusion proceedings, which were purely administrative in nature and did not require approval by a court. Although an exclusion order could be challenged in court, the judicial review proceedings did not have suspensive effect. The domestic authorities relied explicitly on the charges brought against him in China as grounds for finding that he presented a security risk justifying an exclusion order.
  4. The applicant further argued that neither the Interior Ministry which had issued the exclusion order nor the domestic courts which had carried out the judicial review thereof had assessed the risks of being subjected to the death penalty and receiving inhuman treatment which his forcible return to China would entail. He disputed the Government’s assertion that the exclusion order would not entail automatic deportation to China. He pointed out that the exclusion order mentioned explicitly that if he did not leave Russia before the stated deadline he would be deported. Indeed, the Entry and Exit Procedures Act provided for an automatic deportation of any foreign national who failed to leave Russia as required (see paragraph 49 above). Given that his passport had been seized by the authorities and he did not have any other identity documents, he could not leave Russia for another country. The only option open to him was therefore forcible removal to China by the Russian authorities.

(b) The Court’s assessment

(i) General principles

  1. The Court reiterates its general principles as set out in the case of Al-Saadoon and Mufdhi v. the United Kingdom (no. 61498/08, ECHR 2010):

«115. The Court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as «convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings».

  1. Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that Article 2 § 1 provides that «[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law». However, as recorded in the explanatory report to Protocol No. 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe (see paragraph 95 above; see also paragraph 96 above). Protocol No. 6 to the Convention, which abolishes the death penalty except in respect of «acts committed in time of war or of imminent threat of war», was opened for signature on 28 April 1983 and came into force on 1 March 1985. Following the opening for signature of Protocol No. 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required States wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No. 6. All the member States of the Council of Europe have now signed Protocol No. 6 and all save Russia have ratified it.
  2. …Protocol No. 13, which abolishes the death penalty in all circumstances, was opened for signature on 3 May 2002 and came into force on 1 July 2003. At the date of adoption of the present judgment, Protocol No. 13 has been ratified by forty-two member States and signed but not ratified by a further three (Armenia, Latvia and Poland). Azerbaijan and Russia are alone in not having signed the Protocol…
  3. In (cited above), the Court examined whether the practice of the Contracting States could be taken as establishing an agreement to abrogate the exception in Article 2 § 1 permitting capital punishment in certain conditions [:]

«…Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment.

…Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable… form of punishment that is no longer permissible under Article 2.»

Having thus concluded that the use of the death penalty except in time of war had become an unacceptable form of punishment, the Grand Chamber in  went on to examine the position as regards capital punishment in all circumstances:

«164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty — that is to say both in times of peace and in times of war — can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace.

  1. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.»
  2. It can be seen, therefore, that the Grand Chamber in did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the member States have now signed Protocol No. 13 and all but three of the States which have signed it have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words «inhuman or degrading treatment or punishment» in Article 3 as including the death penalty (compare Soering, cited above, §§ 102 — 04)…
  3. The Court further reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi, cited above, § 125). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (see Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and, mutatis mutandis, Soering, cited above, § 111; S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; Bader and Kanbor, cited above, § 42; and Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009).»

(ii) Application of these principles to the present case

  1. The Court notes that, upon becoming a member of the Council of Europe, Russia undertook to abolish the death penalty as a condition of its admission into the organisation. Immediately after that a de facto moratorium on the death penalty was applied in Russia: no one has been given the death penalty or executed since 1996. In 2009 the Russian Constitutional Court confirmed the moratorium and held that a constitutional regime providing for firm guarantees of the right not to be subjected to the death penalty had been formed in Russia. It also found that an irreversible process of abolishing the death penalty was underway in Russia on the basis of its Constitution and its international obligations, including Protocol No. 6, which was signed but not ratified by it (see paragraph 51 above). It is notable that the moratorium in force in Russia, as confirmed by the Constitutional Court, does not make an exception allowing imposition of the death penalty in time of war.
  2. In view of Russia’s unequivocal undertaking to abolish the death penalty, partly fulfilled through an initially de facto moratorium that was subsequently confirmed de jure by the Constitutional Court, the Court considers that the finding made in the case of Al-Saadoon and Mufdhi — namely that capital punishment has become an unacceptable form of punishment that is no longer permissible under Article 2 as amended by Protocols Nos. 6 and 13 and that it amounts to «inhuman or degrading treatment or punishment» under Article 3 (see paragraph 62 above) — applies fully to Russia, even though it has not ratified Protocol No. 6 or signed Protocol No. 13. Russia is therefore bound by an obligation that stems from Articles 2 and 3 not to extradite or deport an individual to another State where there exist substantial grounds for believing that he or she would face a real risk of being subjected to the death penalty there.
  3. Turning to the circumstances of the present case, the Court notes that the domestic courts did not make an assessment of the risks of being subjected to the death penalty and receiving inhuman treatment if the applicant were deported to China. Their reasoning on that issue was limited to stating, without reliance on any domestic provision, that the exclusion order issued against the applicant did not automatically entail his deportation to China and that the applicant could still leave Russia for another country. The Court is not convinced by that argument. The Entry and Exit Procedures Act provides that any foreign national who is the subject of an exclusion order and fails to leave Russia as required is to be deported (see paragraph 49 above). The exclusion order against the applicant mentioned explicitly that if he did not leave Russia before the stated deadline he would be deported (see paragraph 19 above). The Court also notes that the applicant’s Russian passport was seized and there is no evidence that he possesses any other valid identity document or the requisite visas allowing him to cross the Russian border and enter a third country. In such circumstances, the Court accepts the applicant’s submission that it was impossible for him to leave Russia for another country within the three-day time-limit imposed by the exclusion order and that he is now at imminent risk of deportation to China as a direct and inevitable consequence of that exclusion order.
  4. It has not been disputed by the parties that there is a substantial and foreseeable risk that, if deported to China, the applicant might be given the death penalty following trial on the capital charge of murder. The Court therefore concludes that the applicant’s forcible return to China would expose him to a real risk of treatment contrary to Articles 2 and 3 of the Convention and would therefore give rise to a violation of these Articles.

 

  1. Article 13

 

  1. While considering this complaint admissible, in view of the reasoning and findings made under Article 3, the Court does not consider it necessary to deal separately with the applicant’s complaint under Article 13 of the Convention.

 

  1. Alleged violation of Article 3 of the Convention on account of the conditions of detention in the detention centre for aliens

 

  1. The applicant complained that the conditions of his detention in the Krasnoe Selo detention centre for aliens had been inhuman and degrading and that he had been placed in solitary confinement and thus in social isolation. He relied on Article 3 of the Convention.

 

  1. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits
  1. Submissions by the parties

 

  1. The Government submitted that the conditions of the applicant’s detention in the detention centre for aliens had been satisfactory and had complied with both the domestic regulations and Article 3 of the Convention. He had had sufficient personal space, an individual sleeping place and unrestricted access to lavatory facilities. All sanitary and hygiene standards had been met. The applicant had been provided with hot meals three times per day, had been able to walk in the yard and to use the library. He had not been handcuffed or placed in a punishment cell as the centre for aliens did not have such cells.
  2. The applicant submitted that the conditions of his detention in the detention centre for aliens had been inhuman and degrading. During the first few days he had been held in a windowless punishment cell with no access to food, water or toilet facilities. He disputed the Government’s assertion that there were no punishment cells in the detention centre for aliens. He argued that the Government had not submitted the floor plan of the detention centre or any other documents in support of their assertion. The applicant produced a letter from the head of the local department of the Federal Migration Service in an unrelated case from which it was apparent that unruly detainees were held on the fourth floor of the centre in locked cells. It was clear from that letter that the detention centre for aliens used the cells on the fourth floor as punishment cells.
  3. The applicant further submitted that he had been held in solitary confinement and total isolation for more than four months. No reasons had been given to justify this solitary confinement. The applicant did not have a record of unruly or disorderly behaviour and had not required protection from other inmates. Despite that, he had been held alone in a locked cell without any interaction with other inmates. He had had no radio or TV set and had not been given any books, newspapers or magazines. He had not left his cell for more than a month and a half. He had been then allowed to take short walks in the yard, but only occasionally. The lengthy total isolation had caused him intense mental suffering.
  4. Lastly, the applicant submitted that the cells in question had been smelly, damp, cold and dark. The food had been of poor quality and drinking water had not been provided. The applicant produced affidavits by two inmates of the centre who, like the applicant, had also been held on the fourth floor. They provided a similar description of the detention centre, its cells and the detention regime in force.

 

  1. The Court’s assessment

 

  1. The Court will first examine the applicant’s complaint that he had been placed in solitary confinement, and thus in total social isolation, without any justification.
  2. The Court reiterates in this connection that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, v. Turkey [GC], no. 46221/99, § 191, ECHR 2005-IV). Whilst prolonged removal from association with others is undesirable, the question of whether or not such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005).
  3. Solitary confinement is one of the most serious measures which can be imposed within a prison. In view of the gravity of the measure, the domestic authorities are under an obligation to assess all the relevant factors in an inmate’s case before placing him in solitary confinement (see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, § 83, 27 January 2009, and Onoufriou v. Cyprus, no. 24407/04, § 71, 7 January 2010). In order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure. Firstly, solitary confinement measures should be ordered only in exceptional cases and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules (see paragraph 54 above). Secondly, the decision imposing such solitary confinement must be based on genuine grounds both at the outset and also when its duration is extended. Thirdly, the decisions issued by the authorities should allow it to be established that those authorities have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour, and they must provide substantive reasons in support thereof. The statement of reasons should be increasingly detailed and compelling as time goes by. Finally, a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances (see Ramirez Sanchez v. France [GC], no. 59450/00, § 139, ECHR 2006-IX, and Onoufriou, cited above, § 70).
  4. It has not been disputed by the Government in the present case that the applicant was detained in solitary confinement for the entirety of his stay in the detention centre for aliens, from 18 April to 29 August 2014, that is to say a period of more than four months. According to the applicant, he did not have any contact with other inmates. His contact with the warders was limited to the delivery of food through a small window in the door and occasional escorting to the exercise yard, where he was again left alone. The number of family visits was also restricted, meaning that the applicant was allowed only four half-hour visits from his wife during the entire period of his detention. Being locked in his cell, the applicant did not have access to the detention centre’s library or to a radio or TV set. He was not given any books or newspapers. He was not allowed to use his mobile telephone. Cut off from any outside information or meaningful communication, the applicant was reduced to counting days by drawing sticks on paper. The Court notes that, while the applicant’s allegations were supported by a letter from the local Federal Migration Service and affidavits from inmates (see paragraphs 71 and 73 above), the Government have provided no information to counter the applicant’s allegations that he was kept in nearly absolute social isolation (see, for similar reasoning, Gorbulya v. Russia, no. 31535/09, § 79, 6 March 2014). The Court considers that the type of solitary confinement to which the applicant was subjected, without appropriate mental or physical stimulation, was likely to have had a damaging effects on him, resulting in the deterioration of both his mental faculties and his social skills (see v. Hungary, no. 30042/08, § 30, 7 June 2011).
  5. No justification for the applicant’s solitary confinement has ever been offered either at domestic level or before the Court. It has never been claimed that the applicant had any record of disorderly or unruly conduct, was in any manner dangerous, had ever mounted threats against — or attacked — other inmates or warders, or had himself been the victim of threats of violence.
  6. The Court observes that there is no evidence in the case-file that an assessment has ever been made by the domestic authorities of the necessity of cutting the applicant off from the rest of the inmate population, taking into account his individual circumstances, situation and behaviour. It appears that no formal decision to place the applicant in solitary confinement, stating the legal basis and the reasons for that measure or its duration, was ever issued. No such decision was given to the applicant or submitted to the Court by the Government. The applicant was therefore in complete ignorance as to why he had been placed in solitary confinement or for how long a period. Such a state of uncertainty undoubtedly increased his distress. The Court takes note in this connection of the conclusions of the Committee for the Prevention of Torture, which in its 2011 general report stated that the damaging effects of solitary confinement can be immediate and that they intensify the longer the measure lasts and the more indeterminate it is (see paragraph 55 above). It is deeply concerned by the fact that a person may be placed in solitary confinement without being offered at the very least some explanation for such isolation (see A.B. v. Russia, no. 1439/06, § 106, 14 October 2010).
  7. Furthermore, the parties have not disputed the fact that the applicant’s physical and psychological aptitude for long-term isolation was never assessed. Nor does it appear from the Government’s submissions that domestic law enabled the applicant to institute proceedings by means of which he could have challenged the grounds for his solitary confinement and the necessity for its continuation. In view of the above, the Court considers that none of the guarantees described in paragraph 76 above was respected in the present case.
  8. To sum up, the Court finds that the applicant was placed in solitary confinement without any objective assessment as to whether or not the measure in question was necessary and appropriate and with no procedural safeguards guaranteeing his welfare and the proportionality of the measure. The applicant’s solitary confinement therefore amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. In these circumstances, the Court does not need to consider separately the applicant’s arguments concerning the physical conditions of his detention (see A.B, cited above, § 112).
  9. There has therefore been a violation of Article 3 of the Convention on account of the applicant’s detention in the detention centre for aliens from 18 April to 29 August 2014.

 

III. Alleged violation of Article 3 of the Convention on account of the conditions of detention in the police station

 

  1. The applicant further complained under Article 3 of the Convention about the conditions of his detention in the Krasnoselskiy District police station no. 9.

 

  1. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

  1. The Government submitted that the conditions of the applicant’s detention in the police station had been satisfactory and had complied with the domestic regulations. Taking into account the short duration of the applicant’s stay in the police station, the conditions of his detention were also compatible with Article 3 of the Convention.
  2. The applicant maintained his claims.
  3. The Court reiterates that it has already examined the conditions of detention obtaining in police stations in various Russian regions and found them to be in breach of Article 3 (see Fedotov v. Russia, no. 5140/02, § 66 — 70, 25 October 2005; Shchebet v. Russia, no. 16074/07, §§ 86 — 96, 12 June 2008; Kuptsov and Kuptsova v. Russia, no. 6110/03, §§ 69 et seq., 3 March 2011; and Ergashev v. Russia, no. 12106/09, §§ 128 — 34, 20 December 2011). It noted that cells in police stations were designed for short-term administrative detention not exceeding three hours. There was no provision for supplying detainees with food or drinking water, and toilet access was problematic. Being dark, poorly ventilated, dirty, and devoid of any of the amenities required for prolonged periods of detention, such as a toilet, a sink, and any furniture other than a bench, administrative-detention cells in police stations were therefore unacceptable for periods of detention longer than just a few hours. The Court, for instance, found a violation of Article 3 in a case where an applicant had been kept in an administrative-detention police cell for twenty-two hours (see Fedotov, cited above, § 68).
  4. In the present case the Court finds the same deficiencies. The applicant was held in an administrative-detention police cell for two days despite the fact that it had been designed for detention not exceeding three hours. By its design, the cell lacked the amenities required for prolonged periods of detention. It did not have a toilet or a sink. It was equipped only with a bench, there being no bed, chair or table or any other furniture. Toilet access was restricted. The window was covered with a metal sheet blocking access to fresh air and daylight.
  5. It was disputed by the parties whether or not the applicant had been given food and drink. The Court notes that the Government did not submit copies of the police officers’ statements on which they relied to support their allegation that the applicant had been given food. Nor did they refer to any domestic provision requiring the police station to make arrangements for providing inmates of administrative-detention cells with food or drinking water. Indeed, the Court has found on several earlier occasions that such inmates were not provided with food or water and that the possibility for their relatives to bring them food could not make up for the lack of the most basic necessities during his detention (see Fedotov, cited above, §§ 67 and 68; Shchebet, cited above, § 93; and Ergashev, cited above, § 132).
  6. In view of the above the Court considers that the conditions of detention in the Krasnoselskiy District police station no. 9 diminished the applicant’s dignity and caused him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.
  7. There has accordingly been a violation of Article 3 of the Convention on account of the inhuman and degrading conditions of the applicant’s detention at the police station from 29 to 31 August 2014.

 

  1. Application of Article 41 of the Convention

 

  1. Article 41 of the Convention provides:

«If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.»

 

  1. Damage

 

  1. The applicant claimed compensation in respect of non-pecuniary damage. He left the determination of the amount to the Court’s discretion. He also asked that the sums payable to him be transferred to the bank account of his representative Ms O. Tseytlina in view of his inability to open a bank account in his own name because of the lack of identity documents.
  2. The Government submitted that the finding of a violation would constitute sufficient just satisfaction.
  3. The Court awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable. It also grants the applicant’s request to have the sum paid to the account of Ms O. Tseytlina.

 

  1. Costs and expenses

 

  1. Relying on legal fee agreements and invoices confirming the payment of the legal fees, the applicant claimed EUR 2,247 for the legal fees and postal expenses incurred before the domestic courts and the Court. He asked that the amount be paid to the bank account of Ms O. Tseytlina.
  2. The Government submitted that the amounts claimed were excessive.
  3. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not submit any proof of the postal expenses. The Court therefore rejects this part of the claim. As regards the legal fees, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,100 for costs and expenses under this head, plus any tax that may be chargeable to the applicant, to be paid into Ms O. Tseytlina’s bank account.

 

  1. Default interest

 

  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

 

  1. Rule 39 of the Rules of Court

 

  1. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request for referral under Article 43 of the Convention.
  2. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or the Court takes a further decision in this connection.

 

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

 

  1. Declares, the application admissible;
  2. Holds, that the forcible return of the applicant to China would give rise to a violation of Articles 2 and 3 of the Convention;
  3. Holds that there is no need to examine the complaint under Article 13 of the Convention;
  4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Krasnoe Selo detention centre for aliens;
  5. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the Krasnoselskiy District police station no. 9;
  6. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State and to be paid into the bank account of the applicant’s representative Ms O. Tseytlina:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction;
  2. Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel or otherwise forcibly remove the applicant to China or any other country until such time as the present judgment becomes final or until further order.

 

Done in English, and notified in writing on 29 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

President

Registrar

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