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Victory in the Constitutional Court: #LockedInLimbo and the Pointless Detention of Stateless Persons in Russia

STEPHANIA KULAEVA, DIRECTOR OF ADC MEMORIAL

 

On 23 May 2017, the Constitutional Court of the Russian Federation issued a decision in the case of Noé Mskhiladze, which mandates strict judicial control and oversight over the length of the detention of stateless people, a defining moment for thousands of stateless people living in Russia who are held in detention without the prospect of their cases being resolved.

In the case of Noé Mskhiladze human rights defenders disputed the constitutionality of norms allowing for extended detention of stateless people for the purpose of expulsion from the Russia Federation. The Constitutional Court ruled that the Administrative code of Russia has to be changed in order to ensure the possibility for stateless individuals to appeal the state’s decision to detain. In addition courts will be obligated to define specific timeframes within which expulsion must occur, while those already in detention may have the legality of their detention reviewed after three months.

Noé was born in Georgia in 1972. He moved to Leningrad before the breakup of the Soviet Union, where he was educated and got married. He has not left Russia since 1990. He was never able to exchange his Soviet passport for a Russian one, even though he tried to resolve his status multiple times. At the same time Georgia refused to confirm his citizenship. As a result, he was left stateless. Noé was placed in a detention facility (also known as a SITDFN – Specialized Institution for the Temporary Detention of Foreign Nationals) in December 2015 with an expulsion removal order. A year and a half later Noé (and hundreds of other stateless persons born in the USSR and living in Russia) remains in detention.

Like many other stateless people, Noé is the victim of loopholes in Russian laws. Individuals who have lost their citizenship (or never had one) 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. 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 Russia legally. This means that they are frequently re-imprisoned as violators of the migration regime, leading to what essentially amounts to indefinite detention, since it is impossible to deport stateless persons to any country and they may be re-detained at any point in the future. 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 resulting in their placement in temporary detention centers for the purpose of deportation, which is obviously impossible.

Noé’s lawyers (he himself was not able to attend Court and could not even follow the proceedings online, being locked in a cell of the prison-like immigration Centre with no TV or Internet access) claimed violation of the Constitution of provisions of articles 31.7 and 31.9 of the RF Code of Administrative Offences which allow for the extended deprivation of a stateless person’s freedom for the purpose of expulsion. One of the main arguments was the non-implementation of the European Court of Human Rights (ECHR) decision on the Kim vs Russia: case where the court recognized violation of articles 3 and 5 of the European Convention on Human Rights in placing Roman Kim (a stateless man living in Russia) in detention for years, and ruled that

“Russian authorities should adopt general measures, including periodic court control of the legality of placing people into custody for administrative violations and checking the possibilities for administrative extradition in each case.

It is very important that Constitutional Court of the Russian Federation has directly quoted the ECHR and based its judgment on the Kim-case decision, namely:

The European Court of Human Rights also stresses that any deprivation of freedom must meet the Convention’s criteria for protecting people from the arbitrary will of the authorities and that the grounds for the legality of this deprivation of freedom cannot be interpreted broadly”.

The Court also noted that “the RF Constitution guarantees that each person has the right to freedom and personal inviolability; any restrictions introduced by law that involve the deprivation of freedom must meet the criteria of lawfulness”. The conclusion of the Constitutional Court was that norms of laws prohibit stateless persons from appealing the grounds for their detention for the purpose of  expulsion are under any circumstance unconstitutional.

Anti-Discrimination Centre Memorial (ADC Memorial) has been heavily involved in work on both cases – Kim vs Russia and the Noé Mskhiladze case in the Constitutional Court of Russia. It was not only by providing legal support, but also through advocacy efforts and research work that ADC Memorial worked to support detained individuals and to bring about systemic change. A year ago, ADC Memorial issued the Human Rights Report  “Violations of the Rights of Stateless Persons and Foreign Citizens in Light of the ECHR Judgment in “Kim v. Russia”. The report gathered evidence of inhumane and degrading treatment within the deportation centers in Russia. An update of this report was published a year later. “Imprisoned Stateless Persons in Russia: The Search for a Way Out of a Legal Dead End” included photographs taken by the stateless detainees in deportation centers illustrating the inhumane conditions, most notably photos and commentary by Viktor Nigmatulin, detained in Kemerovo (Siberia)  and by Noé Mskhiladze in SITDFN of St. Petersburg.

The judgement in the Noé Mskhiladze case, brings promise of real change and improvement in the situation for all stateless persons in detention in Russia. It is in fact a crucial stage in a cycle of advocacy and litigation efforts that have lasted for several years. Courts will now be obligated to define specific timeframes within which expulsion must occur, while those already in detention may have the legality of their detentions reviewed after three months.

Roman Kim and Noé Mskhiladze, like thousands other stateless people spent years in immigration centers, where their basic rights were violated. As a result of the judgement such violations should no longer occur—this is a tremendous victory for the claimants themselves, their attorneys (Olga Tseytlina and Sergey Golubok who submitted Mskhiladze’s complaint to the Constitutional Court), human rights defenders and in fact all stateless people in Russia.