Verletzung der Menschenrechte während der Abschiebung von Russland nach Georgien  

Shioshvili  and  Others  v.  Russia  (application no. 19356/07)

20.12.16

Quelle: 

ECHR 423 (2016)

Principal facts

The applicants are Ms Lia Shioshvili (who was born in 1977 and lives in Gurjaani, Georgia), and her four children, born respectively in 1995, 1997, 2000, and 2004. They are all Georgian nationals.

Ms Shioshvili and her children settled in Russia in 2003. On 7 November 2006 the Ruzskiy District Court of the Moscow Region issued an expulsion decision against Ms Shioshvili. The applicants all left Moscow on 20 November 2006. Due to suspended transport links between Russia and Georgia, they boarded a train headed to Baku (Azerbaijan). Ms Shioshvili was eight months pregnant at the time. The four other applicants were aged eleven, nine, six and two.

On 22 November 2006,  the train was on its way to the Russia/Azerbaijan border. According to the applicants, the following then took place. The train was stopped by Russian migration officers. They confiscated 400 US dollars from Ms Shioshvili (on the alleged grounds that they had not been declared), before informing all of the Georgian passengers that there were irregularities in their documents, and that they could not continue. The Georgians were then made to leave the train, and walk to a bus that would eventually take them to Derbent. The journey was particularly difficult for Ms Shioshvili. She had to travel whilst carrying a suitcase and her youngest child, outside in cold weather, whilst in a state of advanced pregnancy and worrying about the health of her children and unborn child. She made repeated oral complaints to  the  migration officers, but to no avail. Upon arrival in Derbent, the group was asked to visit the migration service office. The applicants waited for two hours outside, before the group was taken to Derbent train station at 3 a.m. to spend the night. No food or water was provided, and the Georgians had to pay 500 rubles to the police guards if they wished to use the toilet. The following morning they returned to the migration office, where they spent the whole day waiting outside in temperatures of 5°C.

By the evening of 23 November, Ms Shioshvili’s health had deteriorated, her children were crying and coughing, and no food, water or shelter was offered by the authorities. The group of Georgians managed to rent an overcrowded flat in Derbent, where the applicants stayed whilst making repeated visits to the migration office. On 29 November, Ms Shioshvili and her three eldest children attempted to cross the border to Azerbaijan. However, they were turned back on the grounds that the decision ordering the expulsion had only concerned Ms Shioshvili, and not her children. Ms Shioshvili’s health worsened, as she suffered from a cold, fever, depression and repeated asthma attacks.

Finally, by 4 December 2006, Ms Shioshvili was provided with all of the necessary documents for her and her children to leave Russia. After a further difficult journey through Azerbaijan, they arrived in Georgia the next day. However, Ms Shioshvili’s health continued to weaken, as she suffered from severe cough and fever, an asthma attack and severe abdominal pain. On 15 December, she gave birth to a stillborn baby.

In July 2008, Ms Shioshvili lodged a complaint about the events with the General Prosecutor’s office of the Russian Federation. She was notified that the complaint had been passed to the Prosecutor of Derbent, but received no further contact about her case. The Russian Government maintains that the border control services did not bring any Georgian nationals to the migration services on 22 or 23 November 2016.

Complaints, procedure and composition of the Court

Relying on Article 2 of Protocol No. 4 (freedom of movement), the applicants complained that their freedom to leave Russia had been restricted without any justification. Relying on Article  4  of Protocol No. 4 (prohibition of collective expulsion of aliens), they further complained that they, as Georgian nationals, had been collectively expelled from Russia without an examination of their individual cases. Relying on Article 3 (prohibition of inhuman or degrading treatment), they complained that the conditions they had been exposed to after being prevented from crossing the border had led to physical suffering, feelings of humiliation and negative effects on their health. They also relied on Article 13 (right to an effective remedy) taken in conjunction with Article 3, to complain that they had had no access to an effective remedy to address the alleged violations of Article 3. Finally, the applicants relied on Article 14 (prohibition of discrimination) taken in conjunction with various articles, to complain that they had been subjected to discrimination on the ground of their ethnic origin. The application was lodged with the European Court of Human Rights on 4 May 2007.

Decision of the Court

Establishment of Facts

Though the Government denied that any Georgian nationals had been taken to the  migration services in Derbent on 22 or 23 November 2016, it confirmed that Ms Shioshvili’s youngest child had been taken off the train and registered by the Line Division of the Interior at Derbent station. Given that the child was only two years old at the time, the Court inferred from this that the other applicants had also been taken off the train, though they had not been registered. This was corroborated by television reports of the events concerned, and the detailed submissions of the applicants. The Court also held that the applicants had stayed in Derbent until they had all been given transit visas on 4 December 2006.

Article 2 of Protocol No. 4 (freedom of movement)

The Court found a violation of the right to freedom of movement in relation to all of the applicants. This was because they had been prevented from leaving Russia between 22 November and 4 December 2006, and this measure had not been taken in accordance with the law. In particular, the Government had not explained what legal provision required the applicants to possess a transit visa in order to leave the country, exactly what documents the applicants had been missing, or what legal basis the Government had had for taking the applicants off the train.

Article 4 of Protocol No. 4 (prohibition of collective expulsion)

The Court found a violation in the case of Ms Shioshvili, because she had been subjected to the administrative practice of expelling Georgian nationals, without a proper examination of their individual cases. The Court found no violations in regard to the other applicants,  in  particular because no expulsion order had been made against them.

Article 3 (prohibition of inhuman or degrading treatment)

The applicants had been in a very vulnerable situation: Ms Shioshvili had been pregnant, the children had been very young, and they had had little money. The family’s stay in Derbent arose due to the conduct of the Russian authorities, and the applicants could not have foreseen it. Furthermore, the contradictory conduct of expelling Ms Shioshvili, but then preventing the family from leaving Russia, would have created a feeling of extreme despair, anxiety and debasement. These circumstances were sufficient for there to be a positive obligation on the Government under Article 3. However, the authorities had showed indifference to the applicants’ vulnerable situation, accommodating neither the needs of the heavily pregnant Ms Shioshvili nor the young children, whilst delaying their onward journey for almost two weeks. The Court therefore found a violation of Article 3 in relation to all of the applicants.

Article 13 (right to an effective remedy) taken in conjunction with Article 3

The Court noted that it had previously identified4 the serious difficulties that Georgian nationals had had in accessing domestic remedies against the arrest, detention and expulsion orders made at the relevant time. The Court found that these difficulties applied in the case of the applicants, and also that their oral and written complaints to the Russian authorities had never produced any results. Accordingly, the Court found a violation of Article 13 taken in conjunction with Article 3.

Article 14 (prohibition of discrimination) taken in conjunction with various articles

The Court found that there was no need to examine the applicants’ complaints under Article 14 of the Convention taken in conjunction with Articles 2 and 4 of the Protocol No.4, as these were substantially identical to the complaints submitted under Articles 2 and 4 of the Protocol No.4 taken in isolation. The Court found no violation of Article 14 taken in conjunction with Article 3 and 13 of the Convention, because the applicants had failed to show that non-Georgian nationals had been treated differently in a comparable situation.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicants 30,000 euros (EUR) in respect of non-pecuniary damage.