CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 mars 2017

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vertical-align:top } .sC3AB69A { border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s2342A031 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s546C9D04 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s40B7A780 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }       THIRD SECTION               CASE OF Z.A. AND OTHERS v. RUSSIA   (Applications nos. 61411/15 and 3 others – see appended list)                 JUDGMENT     STRASBOURG   28 March 2017   THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 21/11/2019     This judgment may be subject to editorial revision.     In the case of Z.A. and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Branko Lubarda,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 28 February and 28 March 2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in four applications (nos.   61411/15 , 61420/15, 61427/15, and 3028/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four individuals (“the applicants”). The applicants’ nationalities and other details, as well as the dates on which they lodged their applications, are set out in the “Facts” section below. The President of the Section decided that the names of the first three applicants should not be disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicants were represented by Ms E. Davidyan and Ms   D.   Trenina, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3.     The applicants alleged that they had been unlawfully detained while they had been staying in the transit zone of Sheremetyevo Airport and that the conditions of that detention had been inadequate. 4.     Between 16 December 2015 and 15 January 2016 the applications were communicated to the Government. Application no. 3028/16 was granted priority under Rule 41 of the Rules of Court. The Government and the applicants submitted their observations on admissibility and merits. In addition, third-party submissions in application no. 3028/16 were received from the Office of the United Nations High Commissioner for Refugees (UNHCR), which had been granted leave by the President to intervene in the proceedings (Article   36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASES 5.     The applicants found themselves staying in the transit zone of Sheremetyevo Airport of Moscow. The details of each application are set out below. A.     Application no. 61411/15 by Mr Z.A., introduced on 12 December 2015 6.     The applicant is an Iraqi national who was born in 1987. 7.     The applicant moved from Iraq to Turkey in 2013 seeking employment. He later moved to China to look for a job. 8.     On 24 July 2015 the applicant travelled by air from China to Turkey. The journey consisted of two legs: Shanghai to Moscow and Moscow to Ankara. The Turkish authorities denied him entry for reasons that the applicant did not specify in his application. The applicant was sent to Moscow on 27   July 2015. On arrival at Sheremetyevo Airport, he was not allowed to pass through passport control. 9 .     From 27 July 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 10.     On 29 July 2015 the applicant applied for refugee status in Russia, arguing that in Iraq he would run the risk of persecution by militants belonging to the Islamic State of Iraq and al-Sham (ISIS – also known as Islamic State of Iraq and the Levant) because he had refused to join them, as well as by Iraqi government forces for the reason that he practiced the Sunni form of Islam. 11.     On 19 September 2015 the applicant received a visit from the Moscow regional department of the Federal Migration Service (“the Moscow Region FMS”) and was interviewed in the transit zone. The Moscow Region FMS did not issue the applicant with a certificate to confirm that his refugee status application deserved to be examined on the merits (“examination certificate”). 12.     On 10 November 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. The applicant appealed to the higher migration authority (the Federal Migration Service of Russia – “the Russian FMS”), asking it to overrule the decision of 10 November 2015, to issue him with an examination certificate, and to allocate him to a centre for the temporary detention of aliens. 13.     On 29 December 2015 the Russian FMS dismissed the applicant’s appeal on the grounds that he had not received any direct threats targeted against him personally and that “the applicant [had not submitted] convincing evidence that he might become a victim of persecution by ISIS militants or Iraqi authorities on the grounds contained in the definition of the term ‘refugee’, including his religion”. The issue of the applicant’s stay in Sheremetyevo Airport was not addressed in the decision. 14.     The applicant’s lawyer was served with the decision of 29 December 2015 on 23 January 2016. 15.     On 1 February 2016 the applicant lodged an appeal against the decisions of 10   November and 29 December 2015 with the Basmannyy District Court of Moscow. He specifically argued that the migration authorities had not complied with the procedural rules by failing to interview him speedily or to issue him with an examination certificate, and that he had spent more than six months in the transit zone of Sheremetyevo Airport in conditions contrary to the guarantees of Article 3 of the Convention, without access to shower and other amenities. 16 .     On 17 March 2016, having been resettled by UNHCR, the applicant left for Denmark. 17.     On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. On the same date the applicant’s lawyer lodged a brief statement of appeal («краткая апелляционная жалоба»), pending receipt of a reasoned judgment in written form. By 5 July 2016 (the date on which the applicants submitted their written observations to the Court), no such reasoned judgment had been issued. B.     Application no. 61420/15 by Mr M.B., introduced on 12 December 2015 18.     The applicant was born in 1988. He holds a passport issued by the Palestinian Authority. 19.     Between April 2013 and August 2015 the applicant was in Irkutsk, Russia. It appears that initially he had held a valid entry visa but that he did not take steps to obtain permission to reside in Russia after its expiry. 20.     In August 2015 the applicant travelled from Russia to the Palestinian territories via Egypt. For unknown reasons he took a flight from Cairo back to Moscow on 23 August 2015. Because the applicant did not have a valid visa for Russia, he was denied entry to the country by the border guard service. 21 .     From 23 August 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. The applicant sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 22.     Three weeks after his arrival at Sheremetyevo Airport, the applicant lodged an application for refugee status. In the course of the ensuing proceedings he mentioned that he had left Palestine because of the ongoing hostilities in the Gaza Strip and the West Bank, as well as a lack of employment and the poor economic situation. 23.     On 1 December 2015 the Moscow Region FMS dismissed the applicant’s refugee status application as ill-founded. The applicant’s lawyer appealed to the Russian FMS, arguing that the applicant did not have any possibility to return to his home in the Gaza Strip, that the Moscow Region FMS had failed to assess his personal situation and the risk he would face if returned to Palestine, and that the Moscow Region FMS, in breach of the Refugees Act (FZ-4528-1 of 19   February 1993), had not issued him with an examination certificate. 24.     On 31 December 2015 the Russian FMS dismissed the appeal for the reason that the applicant had “failed to provide evidence confirming that he runs a higher risk of becoming a victim of the Palestine-Israel conflict than the rest of the population of the Palestinian National Autonomy”. The applicant’s lawyer was informed of that decision on 15 January 2016. 25.     On 1 February 2016 the applicant lodged an appeal against the migration authorities’ decision with the Basmannyy District Court of Moscow. 26 .     On 13 February 2016 the Egyptian authorities opened the Rafah crossing point to Gaza. The applicant agreed to take a flight to Egypt and left the transit zone of Sheremetyevo Airport. 27.     On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. The applicant’s lawyer lodged a brief statement of appeal on the same date, pending receipt of a reasoned judgment in written form. By 5 July 2016, no such reasoned judgment had been issued. C.     Application no. 61427/15 by Mr A.M., introduced on 12   December 2015 28.     The applicant is a Somalian national who was born in 1981. 29.     In 2005 the applicant moved from Somalia to Yemen, where he was granted refugee status. In 2015 he decided to leave Yemen. 30.     The applicant travelled by air to Havana, Cuba, a journey that consisted of three legs: Sana’a to Istanbul, Istanbul to Moscow, and Moscow to Havana. On 13   March 2015 the applicant landed in Moscow for the first time; he then continued his journey to Havana. 31.     On 9 April 2015 the applicant was deported from Cuba to Russia. The Russian border guard service did not allow him to pass through passport control. 32 .     From 9 April 2015 onwards, the applicant has been staying in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. 33.     On 10 April 2015 the applicant lodged an application for refugee status, arguing that he had fled Somalia in 2005 because he had received threats from members of a terrorist group. 34.     On 1 July 2015 the Moscow Region FMS interviewed the applicant. However, they did not issue him with an examination certificate. 35.     On 1 October 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. 36.     On 17 October 2015 the applicant’s brother was killed in Mogadishu, Somalia. 37.     On 7 December 2015 the Russian FMS dismissed an appeal by the applicant against the decision of 1 October 2015. 38.     On 22 December 2015 the Moscow Region FMS refused to grant the applicant temporary asylum. On 10 February 2016 the Russian FMS upheld that decision. 39.     On 19 May 2016 the Basmannyy District Court of Moscow dismissed an appeal lodged by the applicant against the decisions by the Moscow Region FMS and the Russian FMS to dismiss his application for temporary asylum. It reasoned, in particular, that the applicant had not proved that the terrorists who had threatened him in 2005 represented any danger more than ten years later and that, should such threats persist, he “has not been deprived of an opportunity to avail himself of the protection of his State of nationality [– that is to say] to apply to the law-enforcement agencies of the Republic of Somalia [for protection].” On the same date the applicant’s lawyer appealed. On 20 September 2016 the Moscow City Court dismissed the appeal. On 6 February 2017 it dismissed in the final instance the applicant’s complaint about the refusals to grant him refugee status. 40 .     Having received the final rejections of his applications from the Russian authorities, the applicant decided that he did not have any chance of obtaining asylum in Russia. On 9 March 2017 he left for Mogadishu, Somalia. D.     Application no. 3028/16 by Mr Yasien, introduced on 14 January 2016 41.     The applicant, Hasan Yasien is a Syrian national who was born in 1975 in Aleppo. 42.     On 4 July 2014 the applicant arrived in Moscow from Beirut, Lebanon, holding a business visa valid until 25 August 2014. 43.     On 10 September 2014 he applied for temporary asylum to the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”), claiming to have fled Syria because of the ongoing civil war there. That application was refused on 8 December 2014. 44.     It appears that the applicant remained in Russia despite that refusal. 45.     On 18 August 2015 the applicant took a flight from Moscow to Antalya, Turkey. The Russian border guard service seized his passport and handed it over to the aircraft crew. The Turkish authorities denied the applicant entry to the country and sent him back to Moscow on 20   August 2015. Upon the applicant’s arrival, the Russian authorities sent him back to Antalya. The Turkish authorities then returned the applicant to Moscow. 46.     On 8 September 2015 the applicant took a flight to Beirut, but the Lebanese authorities denied him entry to the country and sent him back to Moscow. The Russian border guard service did not allow him to pass through passport control. 47 .     From 9 September 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. He described the conditions of his stay in the transit zone as follows. The applicant slept on a mattress on the floor in the waiting area of the airport, which was constantly lit, crowded and noisy. He received basic food, clothing and sanitary wipes once a week from the Russian office of UNHCR. Given the absence of any refrigerator or kitchen, his rations were extremely limited. Throughout the whole period of his stay in the transit zone the applicant did not have access to a shower. 48.     The applicant applied to the Moscow Region FMS for temporary asylum. On 21 December 2015 the Moscow Region FMS dismissed the request. 49.     On 4 February 2016 the Russian FMS dismissed an appeal by the applicant against its refusal of 21 December 2015 to grant him temporary asylum. It noted, in particular, that there were regular flights from Moscow to Damascus, from where Syrian nationals could travel to other parts of the country, and that “many Syrians wish to leave the country not only because of a fear for their lives but, in large part, because of the worsening economic and humanitarian situation”. 50.     On 7 April 2016 the applicant once again tried to lodge an application for refugee status through the border guard service. He received no response. 51.     On 11 April 2016 the applicant complained to the Zamoskvoretskiy District Court of Moscow about the refusal of the Moscow Region FMS and Russian FMS to grant him temporary asylum and about his allegedly unlawful detention in appalling conditions in the transit zone of Sheremetyevo Airport. 52 .     On 11 May 2016 the applicant was resettled by UNHCR and left for Sweden. 53.     On 21 July 2016 the applicant’s lawyer submitted additional documents to the Zamoskvoretskiy District Court of Moscow in support of the applicant’s claims regarding the risks that he would face if returned to Syria. The outcome of the proceedings is unknown. II.     RELEVANT DOMESTIC LAW 54.     Section 6 of the Federal Law “On Exit from and Entry into the Territory of the Russian Federation” (FZ-114 of 15 August 1996, with amendments), in so far as relevant, reads as follows: “Upon arrival at and departure from the Russian Federation, foreign nationals or stateless persons are obliged to present valid documents confirming their identity and [which are] accepted as such by the Russian Federation, and a visa, unless this Federal Law, or a treaty concluded by the Russian Federation, or decrees by the President of the Russian Federation, provide otherwise.” 55.     Section 14 of the State Border of the Russian Federation Act (FZ ‑ 4730-1 of 1 April 1993, with amendments), in so far as relevant, reads as follows: “Foreign nationals and stateless persons who do not possess the status of a person living or residing in the Russian Federation and who have crossed the State border [upon arrival] from the territory of a foreign State shall be [held responsible], in accordance with the Russian law, if there are indications that their actions [constitute] a criminal or administrative offence. Where there are no grounds for instituting criminal or administrative proceedings against ... the violators of the State border, and if they do not enjoy the right to political asylum, ... the border authorities shall officially transfer them upon arrival to the authorities of the State from ... which they have crossed the [Russian] State border. If the transfer of the violators to the authorities of the foreign State is not envisioned by a treaty between the Russian Federation and that State, the border authorities shall deport them [to places] outside the territory of the Russian Federation ... designated by the border authorities.” 56.     Section 4 of Federal Law “On Refugees” (FZ-4528-1 of 19   February 1993, with amendments, “the Refugees Act”) provides, in so far as relevant, as follows: “1. An adult who has expressed a wish to be recognised as refugee should lodge a written application, either in person or through a representative: ... 1 (2)     with the border guard service [the BGS] of the Federal Security Service ... at the border crossing point of the Russian Federation at the time when that person crosses the border ... ... 3.     An application lodged with the border guard service at the border crossing point ... shall be transmitted by [the BGS] to the ... migration authority ... within three days of the date of its being lodged. ... 5 (2).     An application made by a person who is at a border crossing point ... shall be preliminarily examined by ... the migration authority ... within five days of the date of its receipt. ... 6.     A decision to issue a certificate [to confirm the examination of an application for refugee status on the merits (“certificate”)] shall be taken ... by the migration authority. A decision to issue a certificate shall serve as grounds for recognising the person’s ... rights and for imposing obligations on him or her ... 7. Within twenty-four hours of that decision ... the migration authority ... shall send the certificate to the person or serve it on him or her ... The certificate is a document [that serves to identify] a person who has applied for refugee status. ... The certificate also serves as grounds for a person ... to receive a document authorising his placement in a temporary accommodation centre.” 57.     Section 6 of the Refugees Act reads, in so far as relevant, as follows: “1.     The person in receipt of the certificate ... has a right: 1 (1)     to the services of a translator and an interpreter and to information on the procedure for the granting of refugee status; ... 1 (3)   to   receive a one-time monetary allocation ... 1 (4)     to receive from ... the migration authority a document authorising his placement in a temporary accommodation centre; ... 1 (6)     to receive food and communal services at the temporary accommodation centre ... 1 (7)     to receive medical and pharmacological aid ...” III.     RELEVANT INTERNATIONAL MATERIALS A.     The 1951 United Nations Convention Relating to the Status of Refugees 58.     Article 31 of the 1951 Convention reads as follows: “1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.” 59.     Article 33 of the 1951 Convention provides: “1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” B.     Annex 9 to the Convention on International Civil Aviation (“the Chicago Convention”), Fourteenth Edition, October 2015 60 .     Chapter 5 of Annex 9 to the Chicago Convention entitled “Inadmissible Persons and Deportees” reads in its entirety as follows: “A. General 5.1 In order to minimize disruptions to the orderly operations of international civil aviation, Contracting States shall cooperate with one another to promptly resolve any differences arising in the course of implementing the provisions of this Chapter. 5.2 Contracting States shall facilitate the transit of persons being removed from another State pursuant to the provisions of this Chapter, and extend necessary cooperation to the aircraft operator(s) and escort(s) carrying out such removal. 5.2.1 During the period when an inadmissible passenger or a person to be deported is under their custody, the state Officers concerned shall preserve the dignity of such persons and take no action likely to infringe such dignity. Note.— These persons should be treated in accordance with the relevant international provisions, including the UN International Covenant on Civil and Political Rights. B. Inadmissible persons 5.3 Contracting States shall without delay notify the aircraft operator, confirming this as soon as possible in writing, when a person is found inadmissible, pursuant to 3.46. Note.— Written notification can be either in paper form or in electronic form, such as email. 5.4 Contracting States, through their public authorities, shall consult the aircraft operator on the time frame for removal of the person found inadmissible, in order to allow the aircraft operator a reasonable amount of time during which to effect the person’s removal via its own services or to make alternative removal arrangements. Note.— Nothing in this provision is to be construed so as to allow the return of a person seeking asylum in the territory of a Contracting State, to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion. 5.5 Contracting States shall ensure that a removal order is issued to the aircraft operator in respect of a person found inadmissible. The removal order shall include information regarding the inbound (arriving) flight carrying such person and, if known, the name, age, gender and citizenship of the person in question. 5.6 Contracting States ordering the removal of an inadmissible person who has lost or destroyed his travel documents shall deliver a covering letter in the format set forth in Appendix 9 (1) in order to give information to the authorities of the State(s) of transit and/or the commencement of journey. The covering letter, the removal order and any relevant information shall be handed over to the aircraft operator or, in the case of escorted persons, the escort, who shall be responsible for delivering them to the public authorities at the State of destination. 5.7 Contracting States ordering the removal of an inadmissible person whose travel documents have been seized pursuant to 3.35.1 shall deliver a covering letter in the format set forth in Appendix 9 (2) in order to give information to the authorities of the State(s) of transit and/or the commencement of journey. The covering letter together with a photocopy of the seized travel documents and the removal order shall be handed over to the aircraft operator or, in the case of escorted persons, the escort, who shall be responsible for delivering them to the public authorities at the State of destination. 5.8 Contracting States that have reason to believe that an inadmissible person might offer resistance to his removal shall inform the aircraft operator concerned as far in advance as possible of scheduled departure so that the aircraft operator can take precautions to ensure the security of the flight. 5.9 The aircraft operator shall be responsible for the cost of custody and care of an improperly documented person from the moment that person is found inadmissible and returned to the aircraft operator for removal from the State. 5.9.1 The State shall be responsible for the cost of custody and care of all other categories of inadmissible persons, including persons not admitted due to document problems beyond the expertise of the aircraft operator or for reasons other than improper documents, from the moment these persons are found inadmissible until they are returned to the aircraft operator for removal from the State. 5.10 When a person is found inadmissible and is returned to the aircraft operator for transport away from the territory of the State, the aircraft operator shall not be precluded from recovering from such person any transportation costs involved in his removal. 5.11 The aircraft operator shall remove the inadmissible person to: a) the point where he commenced his journey; or b) to any place where he is admissible. 5.11.1 Recommended Practice.— Where appropriate, Contracting States should consult with the aircraft operator regarding the most practicable place to which the inadmissible person is to be removed. 5.12 A Contracting State shall accept for examination a person removed from a State where he was found inadmissible, if this person commenced his journey from its territory. A Contracting State shall not return such a person to the country where he was earlier found inadmissible. 5.13 Contracting States shall accept the covering letter and other papers delivered pursuant to 5.6 or 5.7 as sufficient documentation to carry out the examination of the person referred to in the letter. 5.14 Contracting States shall not fine aircraft operators in the event that arriving and in-transit persons are found to be improperly documented where aircraft operators can demonstrate that they have taken necessary precautions to ensure that these persons had complied with the documentary requirements for entry into the receiving State. Note.―Attention is drawn to the relevant text in Doc 9303 and related guidance material and in Doc 9957, The Facilitation Manual, wherein explanations may be found on irregularities in, and the examination and authentication of, travel documents. 5.15 Recommended Practice.— When aircraft operators have cooperated with the public authorities to the satisfaction of those authorities, for example pursuant to memoranda of understanding reached between the parties concerned, in measures designed to prevent the transportation of inadmissible persons, Contracting States should mitigate the fines and penalties that might otherwise be applicable should such persons be carried to their territory. 5.16 Contracting States shall not prevent the departure of an operator’s aircraft pending a determination of admissibility of any of its arriving passengers. Note.— An exception to this provision could be made in the case of infrequent flights or if the Contracting State had reason to believe that there might be an irregularly high number of inadmissible persons on a specific flight. C.     Deportees 5.17 A Contracting State deporting a person from its territory shall serve him a deportation order. Contracting States shall indicate to the deportee the name of the destination State. 5.18 Contracting States removing deportees from their territories shall assume all obligations, responsibilities and costs associated with the removal. 5.18.1 Recommended Practice.— Contracting States and aircraft operators should, where practicable, exchange information as to the appropriate 24-hour point(s) of contact(s) to whom deportee inquiries should be directed. 5.19 Contracting States, when making arrangements with an aircraft operator for the removal of a deportee, shall make available the following information as soon as possible, but in any case not later than 24 hours before the scheduled time of departure of the flight: a) a copy of the deportation order, if legislation of the Contracting State allows for it; b) a risk assessment by the State and/or any other pertinent information that would help the aircraft operator assess the risk to the security of the flight; and c) the names and nationalities of any escorts. Note.— In order to ensure coordination of facilitation and security standards, attention is drawn to the applicable provisions of Annex 17, Chapter 4. 5.19.1 The aircraft operator and/or the pilot-in-command shall have the option to refuse to transport a deportee on a specific flight when reasonable concerns relating to the safety and security of the flight in question exist. Note.─ Reference is made to the ICAO Aviation Security Manual (Doc 8973 — Restricted), paragraphs 12.2.1.3 and 12.2.1.6. 5.19.2 Contracting States, when making arrangements for the removal of a deportee, shall take into consideration the aircraft operator’s policy concerning the number of such persons that may be transported on a given flight. Note.─ Contracting States are to consult with the aircraft operator regarding the most practicable flight or alternate method of transportation. 5.20 Contracting States, in making arrangements for the removal of a deportee to a destination State, shall use direct non-stop flights whenever practicable. 5.21 A Contracting State, when presenting a deportee for removal, shall ensure that all official travel documentation required by any transit and/or destination State is provided to the aircraft operator. 5.22 A Contracting State shall admit into its territory its nationals who have been deported from another State. 5.23 A Contracting State shall give special consideration to the admission of a person, deported from another State, who holds evidence of valid and authorized residence within its territory. 5.24 Contracting States, when determining that a deportee must be escorted and the itinerary involves a transit stop in an intermediate State, shall ensure that the escort(s) remain(s) with the deportee to his final destination, unless suitable alternative arrangements are agreed, in advance of arrival, by the authorities and the aircraft operator involved at the transit location. D. Procurement of a replacement travel document 5.25 When a replacement travel document must be obtained in order to facilitate removal and acceptance of an inadmissible person at his destination, the State ordering the removal shall provide as much assistance as practicable in obtaining that document. Note.— In order to clarify application of this Standard, attention is drawn to Standard 5.13. 5.26 A Contracting State shall, when requested to provide travel documents to facilitate the return of one of its nationals, respond within a reasonable period of time and not more than 30 days after such a request was made either by issuing a travel document or by satisfying the requesting State that the person concerned is not one of its nationals. 5.27 A Contracting State shall not make the signing by the person concerned of an application for a travel document a prerequisite for the issuance of that document. 5.28 When a Contracting State has determined that a person for whom a travel document has been requested is one of its nationals but cannot issue a passport within 30 days of the request, the State shall issue an emergency travel document that attests to the nationality of the person concerned and that is valid for readmission to that State. 5.29 A Contracting State shall not refuse to issue a travel document to or otherwise thwart the return of one of its nationals by rendering that person stateless.” THE LAW I.     JOINDER OF THE APPLICATIONS 61.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their factual and legal similarities. II.     ALLEGED VIOLATIONS OF ARTICLES 3 AND 5 OF THE CONVENTION 62 .     The applicants complained that the poor material conditions of their stay in the transit zone of Sheremetyevo Airport had been incompatible with the guarantees of Article 3 of the Convention. They further complained that their confinement to the transit zone of Sheremetyevo Airport amounted to an unlawful deprivation of liberty in breach of Article 5 § 1 of the Convention. These Convention provisions read, in so far as relevant, as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 5 “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A.     The parties’ submissions 1.     The Government 63.     The Government contested the applicants’ allegations. They presented identical observations in respect of each of the four applications under consideration, without making separate submissions in respect of the alleged violations of Articles   3 and 5 § 1 of the Convention. These observations may be summarised as follows. 64.     The Government submitted that the transit zone of Sheremetyevo Airport was not the territory of the Russian Federation. The applicants had not crossed the Russian border and had thus been outside the jurisdiction of the respondent State. The fact that the applicants had applied for refugee status in Russia did not suffice, in the Government’s submission, for them to be considered as persons falling within Russian jurisdiction. Furthermore, the Government stated that the applicants had remained in the transit zone of Sheremetyevo Airport on their own initiative and that they could have left it at any moment. However, the Government added that it was the sovereign right of the State to control the entry of aliens, and in order to prevent a violation of the visa regime the applicants had been prevented from passing through passport control. Moreover, third States had denied the applicants entry to their respective territories for unknown reasons. 65 .     The Government further claimed that the Chicago Convention on International Civil Aviation (“the Chicago Convention”) and its Annexes were applicable to the applicants’ respective situations. Under Chapter   5 of Annex 9 to the Chicago Convention, an aircraft operator is obliged to return a person denied entry in the country of destination to the place where he or she started the journey or to any other place which that person is allowed to enter. 66.     The Government concluded that, taking into account the Chicago Convention and the applicants’ “manifest will to stay in the transit zone and not to leave it for another State”, there had been no violation of Articles 3 and 5 §   1 of the Convention. 67 .     In reply to the third-party interveners’ observations (see paragraphs   73 ‑ 82 below) the Government stated that, given that it was primarily for the national authorities to interpret domestic legislation, “the interpretation of the Russian legislation given in UNHCR’s submissions should be assessed critically”. 2.     The applicants 68.     The applicants contested the Government’s argument that the transit zone of Sheremetyevo Airport was not Russian territory. They argued that Russian law extended to the transit zone, given that border guard officers exercised control over persons intending to enter the Russian territory and those in transit passing through transit zones. 69.     The applicants argued that even though the Russian authorities had failed to issue the applicants with examination certificates, in breach of their obligation to do so, that failure had not excluded the applicants from being under the jurisdiction of Russia. 70.     As for the Chicago Convention, the applicants emphasised that it contained a non-refoulement clause and specified that State officials should preserve the human dignity of persons in their custody who were to be deported. 71.     In sum, the applicants concluded that not only had they been detained in the transit zone of Sheremetyevo Airport under Russian jurisdiction, but that there had been no grounds for that detention under Russian law. 72.     The applicants also reiterated their grievances concerning the material conditions of their respective stays in the transit zone, which had constituted an affront to human dignity. The applicants had been detained in appalling conditions with no place to sleep and no access to hygienic facilities. They had been left to their own devices, without any legal or social assistance, and without any possibility of having the conditions of their detention reviewed by an independent authority. 3.     Third-party interveners in application no. 3028/16 73 .     UNHCR in its submissions addressed the Russian domestic legal framework and practice applicable to the treatment of asylum-seekers in transit zones of airports in the Russian Federation and provided its interpretation of the relevant principles of international law, which could be summarised as follows. 74.     UNHCR noted that under Russian law, only persons seeking political asylum were exempted from criminal prosecution. The exemption did not apply to those seeking refugee status and temporary asylum. 75 .     UNHCR further noted that Russian law did not contain any provisions addressing the grounds for or duration of stays in border areas and in transit zones or stipulating procedural safeguards for asylum-seekers at the borders. 76.     The Russian migration authorities did not have offices or staff in transit zones, which were under the full control of the Federal Security Service’s border guard service (“the BGS”). UNHCR argued that the BGS had not made any decision to keep a person in the transit zone; rather, it had simply not allowed the person to pass through passport control. 77.     UNHCR noted that the asylum procedure consisted of seven stages. An asylum-seeker certificate (that is to say an examination certificate) should be issued after a preliminary assessment, which should be completed within five days. The Refugees Act stipulated the right to have an interpreter and to be informed about the asylum procedure and the rights and obligations of asylum-seekers, the right to medical care and employment, and the right to be housed in one of the temporary accommodation centres run by the Russian FMS. However, asylum-seekers in transit zones were deprived of those rights as they remained in legal limbo even after being issued with an examination certificate. 78.     In practice, UNHCR and its partner organisations had dealt with a number of cases of asylum applications not being accepted by BGS officers, without any reason being given. Numerous enquiries by UNHCR had failed to elicit any constructive explanations. The fact that the migration authorities did not maintain offices within transit zones and the fact that no relevant information was available therein limited individuals’ capacity to apply for refugee status on their own. Where UNHCR became involved, the migration authorities refused to accept applications, arguing that these should be lodged through the BGS. Lately, only international staff of UNHCR had been able to gain admission to transit zones without prior authorisation. UNHCR’s attempts to formalise cooperation with the migration authorities had so far been unsuccessful. 79.     People in airport transit zones could not effectively exercise their right to appeal against a first-instance rejection of their refugee status applications. 80 .     The conditions of stay in airport transit zones were not regulated by Russian law. Nor had they been improved over the previous several years. Asylum-seekers stranded in transit zones were deprived of access to fresh air, privacy, food, and access to medical and social care. They had no choice but to stay in the open area of the transit zone in question without access to any hygienic facilities and to sleep on the floor. UNHCR distributed basic food items and bed linen, clothing, and hygienic products on a weekly basis. Russian law did not place responsibility on any State authority for ensuring minimum basic care for asylum-seekers in transit zones. The period during which an asylum-seeker had to undergo such a dire lack of basic facilities could be prolonged as on average the complete asylum procedure, including appeals, could last between one and two years. 81.     Given that people without both a valid visa and a valid passport could not cross the Russian border, in the absence of any exception for asylum-seekers without those documents there was no other legal option for the State authorities but to keep a person holding no documents in a transit zone. Russian law did not provide for the possibility of judicial review in respect of the situation of those stranded in a transit zone. 82 .     Referring to the UNHCR Detention Guidelines, UNHCR considered that effecting or attempting to effect irregular entry for the purpose of seeking asylum should not be penalised and that the detention of the persons concerned, including at the border and in airport transit zones, should only be a measure of last resort. Furthermore, UNHCR stated, where applied, the detention of asylum-seekers should be justified under the principles of necessity, reasonableness and proportionality, and should be subject to a series of important procedural safeguards – all of which were absent in the context of persons held in airport transit zones in the Russian Federation. B.     The Court’s assessment 1.     Article 5 § 1 of the Convention 83.     The Court will first examine the applicants’ grievances under Article   5 § 1 of the Convention. (a)     Admissibility 84.     The Court considers, taking into account all the elements of