Constitutionality of Admin. Offences Code

JurisdictionRusia
CourtRussian Federation Constitutional Court
JudgeRudkin,Kokotov,Krasavchikova,Zharkova,Aranovsky,Danilov,Knyazev,Kazantsev,Melnikov,Zorkin,Khokhryakova,Boitsov,Gadzhiev,Mavrin,Yaroslavtsev
Docket Number(Judgment No 14-P/2017)

Russian Federation, Constitutional Court.

(Zorkin, President; Aranovsky, Boitsov, Gadzhiev, Danilov, Zharkova, Kazantsev, Knyazev, Kokotov, Krasavchikova, Mavrin, Melnikov, Rudkin, Khokhryakova and Yaroslavtsev, Judges)

(Judgment No 14-P/2017)

Re Review of Constitutionality of the Provisions of Article 31.7 and Article 31.9 of the Code of Administrative Offences of the Russian Federation

Human rights — Liberty and security of person — European Convention on Human Rights, 1950 — Article 5 — Stateless persons — Deprivation of liberty of a person against whom action being taken with a view to deportation or extradition — Judicial protection — Article 31.7 and Article 31.9 of Code of Administrative Offences of the Russian Federation — Whether in compliance with Article 5 of Convention — Whether in compliance with Article 22 of Constitution of the Russian Federation

Nationality — Stateless persons — Conviction of offence — Liability to deportation — Absence of State willing to accept deportee — Continued detention — Human rights — The law of the Russian Federation

Summary:1The facts:—On 15 December 2015, the complainant, Mr Mskhiladze, who was stateless, was found liable by the Kirov District Court of St Petersburg for committing an administrative offence, and punished by a fine and administrative expulsion from the territory of Russia. The court ordered that the complainant be detained in the Detention Centre for Foreign Nationals in St Petersburg as an interim measure awaiting administrative expulsion on the basis of Article 27.19 of the Code of Administrative Offences of the Russian Federation (“the Code of Administrative Offences”) and Article 39 of the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation”.2

It proved impossible to deport the complainant due to the fact that he was stateless and no State was willing to accept him. Despite this, Article 31.73 and Article 31.94 of the Code of Administrative Offences prevented the complainant from having the lawfulness of his detention reviewed by a court before the expiration of the two-year limitation period prescribed for the execution of the decision imposing an administrative punishment. On this basis, the complainant requested that the Constitutional Court of the Russian Federation (“the Constitutional Court”) review the constitutionality of Article 31.7 and Article 31.9 of the Code of Administrative Offences.

Held:—Article 31.7 and Article 31.9 of the Code of Administrative Offences were not in compliance with the Constitution of the Russian Federation.

(1) The right of everyone to liberty and security of person was envisaged in Article 22 of the Constitution of the Russian Federation5 and Article 5 of the European Convention on Human Rights, 19506 (“the European Convention”). The European Court of Human Rights had stated that detaining a person in a special institution for the purpose of administrative expulsion from the Russian Federation fell within the scope of Article 5(1)(f) of the European Convention and therefore had to comply with national legislation, as well as the requirements of the European Convention. Detention of a person in such an institution would not constitute an arbitrary deprivation of liberty provided that inter alia the duration of the detention did not exceed the period reasonably necessary to achieve the aim pursued. To that end, the legislation had to provide effective means of protection, including judicial protection, from unlawful, unjustified, and disproportionate restrictions of the right to freedom and security of person (para. 2).

(2) Articles 31.7 and 31.9 of the Code of Administrative Offences did not allow judicial review of the lawfulness of further detention of a detained stateless person awaiting his administrative expulsion until the expiration of the two-year limitation period for the execution of administrative expulsion, even when circumstances came to light that indicated that the execution of the administrative expulsion had become impossible. In that respect, Articles 31.7 and 31.9

of the Code of Administrative Offences contradicted the requirements of the European Convention and the Constitution of the Russian Federation for a restriction of the right to liberty and security of person (paras. 3–5).

The following is the text of the relevant part of the judgment of the Constitutional Court:

1. The complainant in the present case, the stateless person N. G. Mskhiladze, is challenging the constitutionality of the following provisions of the Code of Administrative Offences of the Russian Federation:

Article 31.7 that provides that a judge, body or official who rendered a decision to impose an administrative punishment shall terminate execution of the decision in the event of: issuance of an amnesty act, if such act eliminates imposition of the administrative punishment (subparagraph 1); abrogation or invalidation of the law or the provision which establishes administrative liability for what has been committed (subparagraph 2); death of the person, who has been held administratively liable, or declaring him deceased in the procedure established by the law (subparagraph 3); expiry of the limitation period for execution of the decision to impose an administrative punishment, established by Article 31.9 of the Code (paragraph 4); reversal of the decision (subparagraph 5); passing of the decision on terminating the execution of the decision on the imposition of an administrative punishment in cases provided in the Code (subparagraph 6).

Article 31.9 that provides that a decision to impose an administrative punishment shall not be executed, if the decision has not been executed within two years calculated from the date of its entry into legal force (paragraph 1); the limitation period, provided for by Part 1 of the Article, shall be interrupted, if the person held administratively liable, is avoiding the execution of the decision to impose an administrative penalty; in the event of an adjournment or a suspension of execution, calculation of the limitation period shall be renewed on the date of detection of the person, items, or profits against which execution may be carried out (paragraph 2); in the event of an adjournment or a suspension of the execution in compliance with Articles 31.5, 31.6 and 31.8 of the Code, the limitation period shall be suspended pending the expiry of the adjournment or suspension (paragraph 3); in the event of deferral of the execution, the limitation period shall be extended for the term of such deferral (paragraph 4).

1.1 As follows from the file, N. G. Mskhiladze, born on 17 April 1972 in Adjarian ASSR (which formed part of Georgian SSR), from 1990 was a resident of the Russian Federation where he was repeatedly held criminally liable. On 2 December 2014, the Ministry of Justice of the Russian Federation made a decision that it was undesirable that N. G. Mskhiladze continued to reside in the Russian Federation (Decision No 7483-RN). In reaching this decision, the Ministry of Justice departed from the assumption that N. G. Mskhiladze who, at the time, was imprisoned in accordance with a court sentence, was a citizen of Georgia. Accordingly, on 4 March 2015, the Department of the Federal Migration Service in Saint Petersburg and Leningrad Oblast issued an order of deportation in respect of N. G. Mskhiladze on the basis of Article 31(1) of the Federal Law of 25 July 2002 No 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation”.

By a decision of 10 March 2015, the Krasnoselsk District Court of Saint Petersburg satisfied the request of the head of the Department of the Federal Migration Service in Saint Petersburg and Leningrad Oblast to place N. G. Mskhiladze into a special institution, the Detention Centre for Foreign Nationals of the Department of the Federal Migration Service in Saint Petersburg and Leningrad Oblast, awaiting his deportation, until 30 August 2015. On 7 May 2015, the Consul of the Georgian Interest Section at the Embassy of Switzerland in the Russian Federation notified the Department of the Federal Migration Service in Saint Petersburg and Leningrad Oblast that N. G. Mskhiladze was not a Georgian citizen and there were no grounds for issuing him with a Certificate of Return to Georgia under national law. Upon expiry of the term of detention determined by the court, N. G. Mskhiladze was released from the Centre. The Department of the Federal Migration Service in Saint Petersburg and Leningrad Oblast never applied to court for an extension of the term of detention.

By a decision of the Kirov District Court of Saint Petersburg of 15 December 2015, N. G. Mskhiladze was found guilty of committing an administrative offence envisaged in Article 18.8(3) of the Code of Administrative Offences of the Russian Federation (“Breach by a Foreign Citizen or a Stateless Person of the Regime for Entry and Residence in the Russian Federation”). He was punished by a fine and administrative expulsion from the territory of the Russian Federation. The court also ruled to place him in the Detention Centre for Foreign Nationals of the Department of the Federal Migration Service in Saint Petersburg on the basis of Article 27.19 of the Code of Administrative Offences of the Russian Federation and Article 39 of the Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation”.

A representative of N. G. Mskhiladze appealed the decisions on the basis of impossibility of execution of the order of administrative expulsion from the Russian Federation caused by the fact that N. G. Mskhiladze was a stateless person and on the basis that the court had not determined the length of detention. The appeal was dismissed by a decision of the Saint Petersburg City Court of 26 January 2016 and a decision of the Deputy Head of the Saint Petersburg City Court of 25 June 2016. When reaching the mentioned decisions, the court relied on the...

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