The European Court of Human Rights (ECtHR) issued a unanimous decision on Tuesday, February 14 preventing Russian authorities from removing a Syrian national to his home country because the security and humanitarian situation in Syria poses a threat to the rights to life and prohibition of torture and inhuman or degrading treatment. [ECtHR: Press Release] In addition to finding violations of the rights to life and prohibition of torture and inhuman or degrading treatment, the ECtHR held that the applicant’s detention and order for removal were also in violation of the rights to an effective remedy and to liberty under the European Convention on Human Rights. [ECtHR: Press Release] In its analysis, the ECtHR emphasized the obligation to consider available reports on the situation in Syria during removal proceedings of Syrian nationals. The Court considered documentation of indiscriminate attacks on schools and other civilian areas that have resulted in civilian harm and civilian deaths, and it reiterated its position that a general situation of violence in a country of destination may be so intense that removal to that country would entail a violation of Article 3 of the European Convention (prohibition of torture and inhuman or degrading treatment). See ECtHR, S.K. v. Russia, no. 52722/15, ECHR 2017, Judgment of 14 February 2017, paras. 45-47. The European Court’s decision that civilians in Syria face a real risk of violations to the right to life and prohibition of inhuman treatment affects all States parties in Europe assessing asylum applications; almost 900,000 Syrians applied for asylum in Europe between April 2011 and October 2016. See UNHCR, Syria Regional Refugee Response.
The applicant in this case is S.K., a Syrian national who was detained in Russia after being found guilty of remaining in the country beyond the expiration of his temporary business visa, an administrative offence. See S.K. v. Russia, Judgment of 14 February 2017, paras. 6-14. In February 2015 he was ordered to pay a fine and placed in a detention facility for foreigners, awaiting his administrative removal. See id. at paras. 9-10. Subsequently, S.K. applied for temporary asylum in Russia claiming that the situation in Syria, specifically in his town of Aleppo, would put his life and physical integrity at risk, but his request was denied. See id. at paras. 15-21.
The domestic court determined that he had failed to show that he fell within the definition of “refugee” under the Refugees Act – that is that he faced risk of persecution based on a protected ground – and failed to show that the risks he faced were more intense than those faced by others living in Syria. See id. at paras. 21-22. He appealed the decision claiming that the lower court had not considered the risk to his life and physical integrity, but his appeal was denied in June 2016 as the appellate court agreed that he was not persecuted in his home country and noted that although he entered Russia in 2011, he did not seek asylum until 2015. See id. at para. 22. On October 26, 2015 he submitted an application to the ECtHR, which proceeded to issue interim measures preventing Russia from removing S.K. to Syria for the duration of the proceedings before the ECtHR. See id. at para. 1. Before the ECtHR, S.K. claimed that he would be drafted into the military if returned to Syria. See id. at para. 57.
The European Court’s Analysis
The ECtHR addressed S.K.’s right to life, the prohibition of torture and inhuman or degrading treatment, right to an effective remedy, and the right to liberty. The ECtHR considered S.K.’s arguments in the context of the continuing hostilities in Syria noting that the security and humanitarian situation had deteriorated significantly since S.K’s arrival in Russia in 2011. See id. at paras. 56-57.
Right to Life and Prohibition of Torture and Inhuman or Degrading Treatment
The ECtHR has established that a State seeking removal of an individual must assess the risk of an Article 3 (prohibition of inhuman or degrading treatment) violation to the individual in the destination country through the consideration of the facts that were known or should have been known by the State with regards to the general situation in the country to which the individual would be removed and to the individual’s personal circumstances. See id. at para. 58.
The ECtHR noted that Russia had not provided any evidence regarding the situation in Syria. The Court highlighted that available reports indicated that the tactics of warfare being employed in Syria, combined with indiscriminate use of force and indiscriminate attacks against civilians, had increased the risk of civilian casualties since S.K. first arrived in Russia in 2011. See id. at paras. 59-62. The ECtHR concluded that absent any information from Russia indicating that S.K.’s removal to Damascus or travel and resettlement from Damascus to another location in Syria would be sufficiently safe, his removal to Syria would expose him to risks in violation of Article 2 (the right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention. See id. at paras. 61-63.
Right to an Effective Remedy
Under the European Court’s jurisprudence, Article 13 (right to an effective remedy) requires that States parties provide a domestic remedy capable of hearing complaints related to the rights enumerated in the European Convention and capable of affording relief. See id. at para. 70. While the remedy must be effective in both law and in practice, the remedy does not necessarily have to be of a judicial nature. See id. at paras. 70-71. Where an order of removal is under consideration, a judicial review is effective if it has the authority to review discretionary executive action and to reverse previous decisions. See id. at para. 72. Where there is a claim that removal will result in a violation of Article 3 of the European Convention, an effective remedy requires “close scrutiny by a national authority” and must automatically stay removal. See id. at paras. 74-75.
In S.K.’s case, the ECtHR first found that the administrative-offence proceedings did not provide the necessary independent scrutiny required to constitute an effective remedy since they did not consider the risk to the applicant’s life and physical integrity upon removal to Syria. See id. at paras. 82-84. Further, it concluded that a request for suspension of removal was not automatic and only available if the prosecutor requested it, and, therefore, the ECtHR determined that the review procedure is not an effective remedy in the context of Article 2 and 3 claims (right to life and prohibition of torture and inhuman or degrading treatment, respectively). See id. at para. 81.
The ECtHR next examined the temporary asylum procedure. The Court held that although temporary asylum would have prevented removal as it automatically suspended the penalty of removal, the domestic migration authorities did not conduct a rigorous scrutiny of S.K.’s case as required with Article 3 claims. See id. at paras. 87-97. The ECtHR noted that the Russian court concluded that S.K. did not qualify for asylum based on hostilities in Syria without detailing why and made reference to facts in his case that were unrelated to his Article 3 claim, including staying past the expiration of his visa and working without authorization. See id. at para. 98. Accordingly, the Court concluded that both remedies – the administrative-offence proceeding and the temporary asylum procedure – were ineffective and Russia violated Article 13 of the European Convention in conjunction with Articles 2 and 3. See id. at para. 99.
Right to Liberty
The ECtHR held that Russia violated its obligations under Article 5 (right to liberty) of the European Convention because Russia’s domestic law did not provide procedures for judicial review of the lawfulness of S.K’s detention and because the proceedings were not conducted with due diligence. See id. at paras. 109, 116-17. The ECtHR has held that although detention may be justified while removal proceedings are in progress, if those proceedings are not conducted with due diligence, the detention will be deemed impermissible. See id. at para. 111. In this case, the Court found that there was no procedure in place to allow for reassessment of removal and detention in light of the ongoing conflict in Syria, even though it should have been evident to national authorities, the ECtHR stated, that removal was not practical due to the situation in Syria. See id. at paras. 114-116.
Syrian Conflict & International Legal Obligations
Civilians in Syria face displacement, death, and abuse due to the ongoing fighting. The Syrian conflict has displaced millions of people internally and forced millions more across borders. As of February 2016, 470,000 people had died as a result of the conflict. See HRW, World Report 2017: Syria. Additionally, both the Syrian government and anti-government groups have tortured, denied adequate medical treatment to, and extrajudicially killed detainees within Syria. [IJRC] Human Rights Watch and the Office of the High Commissioner on Human Rights have reported reprisals against civilians, deliberate targeting of civilian facilities, and indiscriminate attacks that result in civilian injuries and deaths. See HRW, World Report 2017: Syria. [OHCHR Press Release] Furthermore, government and opposition groups have limited access to humanitarian aid. See HRW, World Report 2017: Syria. The Syrian conflict has produced nearly five million refugees. See UNHCR, Syria Regional Refugee Response.
According to the Office of United Nations High Commissioner on Refugees, people forced to leave their country of origin due to war or conflict are not necessarily refugees as defined under the Refugee Convention of 1951 and its 1967 Protocol, but depending on the particular circumstances, those displaced individuals may qualify as a refugee under the convention and are otherwise protected under the Geneva Conventions, which protect victims of international armed conflicts and war. See UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (2011), at para. 164. If those displaced are persecuted on a protected ground, they likely are a refugee as defined in the convention. See id. at para. 165. On the African continent, where some Syrian refugees have resettled, and in the Americas, the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa and the Cartagena Declaration on Refugees both extend the definition of refugee to those forced to leave their country due to “external aggression, occupation, foreign domination or events seriously disturbing public order” within the country of origin. See IJRC, Asylum & the Rights of Refugees. Furthermore, migrants are protected by international human rights law, such as the prohibition of torture and inhuman or degrading treatment and the right to life, enshrined in various universal and regional instruments. See IJRC, Immigration & Migrants’ Rights.
In addition to the European Convention, Russia is also a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the International Covenant on Civil and Political Rights (ICCPR); and the Refugee Convention of 1951 and its 1967 Protocol, among other international treaties. The CAT and the ICCPR protect the rights to life and prohibition of torture and inhuman or degrading treatment or punishment.