CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 21 novembre 2019

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margin-left:56.7pt; margin-bottom:0pt; text-align:justify } .s12B939F1 { width:9.38pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC8AEBC53 { width:10.34pt; display:inline-block } .s634C0A4B { width:124.27pt; display:inline-block } .s7BFC5D9D { width:148.96pt; display:inline-block }         GRAND CHAMBER                   CASE OF Z.A. AND OTHERS v. RUSSIA   (Applications nos. 61411/15, 61420/15, 61427/15 and 3028/16)                       JUDGMENT     STRASBOURG   21 November 2019       This judgment is final but it may be subject to editorial revision. In the case of Z.A. and Others v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Linos-Alexandre Sicilianos, President ,   Angelika Nußberger,   Robert Spano,   Jon Fridrik Kjølbro,   Ksenija Turković,   Paul Lemmens,   Ledi Bianku,   Işıl Karakaş,   Nebojša Vučinić,   André Potocki,   Aleš Pejchal,   Dmitry Dedov,   Yonko Grozev,   Mārtiņš Mits,   Georges Ravarani,   Jolien Schukking,   Péter Paczolay , judges , and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 18 and 19 April 2018 and on 13 March and 3 October 2019, 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 Mr   Z.A., an Iraqi national, Mr   M.B., who holds a passport issued by the Palestinian Authority, Mr A.M., a Somalian national and Mr Hasan Yasien, a Syrian national (“the applicants”) on 12 December 2015 (the first three applications) and 14 January 2016 (the latter application). The President of the Grand Chamber acceded to the first three applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicants were represented by Ms E. Davidyan, Ms D. Trenina, and Mr K. Zharinov, 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, and then by his successor in that office, Mr M. Galperin. 3.     The applicants complained under Article 5 § 1 of the Convention that they had been unlawfully detained in the transit zone of Sheremetyevo Airport pending examination of their asylum applications. Relying on Article 3 of the Convention, they further complained that the conditions of their detention had been inadequate. 4.     The applications were allocated to the Third Section of the Court (Rule   52 §   1 of the Rules of Court). A Chamber of that Section composed of Helena Jäderblom, Branko Lubarda, Helen Keller, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, judges, and also of Stephen Phillips, Section Registrar, delivered a judgment on 28 March 2017. The Court unanimously joined the applications and declared them admissible and held, by a majority, that there had been violations of Article   5 § 1 and Article 3 of the Convention. The dissenting opinion of Judge Dedov was annexed to the judgment. 5.     On 27 June 2017 the Government requested the referral of the cases to the Grand Chamber in accordance with Article 43 of the Convention. On 18   September 2017 the panel of the Grand Chamber granted that request. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. The President of the Court decided that, in the interests of the proper administration of justice, the present case and the case of Ilias and Ahmed v. Hungary (application no. 47287/15) should be assigned to the same composition of the Grand Chamber (Rules 24, 42 § 2 and 71). 7.     The applicants and the Government each filed further written observations (Rule 59 § 1) on the merits. 8.     In addition, third-party comments were received from the Hungarian Government, which had been given leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). Third-party comments received in the course of the proceedings before the Chamber from the Office of the United Nations High Commissioner for Refugees (UNHCR), which had been granted leave by the President of the Third Section to intervene in the written procedure in application no. 3028/16, were included in the file before the Grand Chamber. 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 18 April 2018 (Rule 59 § 3). There appeared before the Court: (a)     for the respondent Government Mr   M. Galperin , Representative of the Russian Federation   to the European Court of Human Rights,   Agent , Ms   Ya. Borisova , Ms   O. Ocheretyanaya ,   Advisers ; (b)     for the applicants Ms   E. Davidyan ,   Ms   D. Trenina , Mr   K. Zharinov ,   Counsel.   The Court heard addresses by Ms Trenina, Mr Zharinov, Ms Davidyan, and Mr Galperin, and replies to the questions from judges by Ms Davidyan and Mr Galperin. THE FACTS The background to the applicants’ respective cases and arrival at Sheremetyevo Airport 10.     The applicants found themselves staying in the transit zone of Sheremetyevo Airport in Moscow. Certain details of the factual circumstances of the case are in dispute between the parties, as indicated below. Mr Z.A. 11 .     Mr Z.A. is an Iraqi national who was born in 1987. 12.     Following threats from an Islamic State militant group, the applicant left Iraq for Turkey on a single-entry transit tourist visa received in Mosul on 11 May 2014. According to the applicant, he fled Iraq on 12 June 2014; according to the Government, he moved to Turkey by car on 27 June 2014. 13.     According to the Government, Mr Z.A. spent a year in Turkey seeking employment, but did not apply for refugee status there. According to the applicant, he unsuccessfully applied for asylum in Turkey in June 2014 and moved to China in June 2015, where he had no opportunity to seek asylum. 14 .     On 24 July 2015 Mr Z.A. travelled by air from Shanghai to Ankara via Moscow. The Turkish authorities denied him entry because he had no visa. The applicant was sent to Moscow on 27   July 2015. On arrival at Sheremetyevo Airport on the same day, he was not allowed to pass through passport control. The Russian Border Guard Service of the Federal Security Service (“the BGS”) seized his passport. Mr M.B. 15 .     Mr M.B., who was born in 1988, holds a passport issued by the Palestinian Authority. 16.     On 19   April 2013 the applicant left Gaza by car and arrived in Cairo, Egypt, on 20 April 2013. According to the Government, he did not apply for refugee status in Egypt. 17.     On 22 April 2013 Mr M.B. left Egypt and arrived in Moscow holding a business visa valid from 16 April 2013 to 25 February 2014. On 23   April 2013 he arrived in Irkutsk where he resided with his uncle and found casual jobs. After his visa expired, Mr M.B. stayed in Irkutsk. 18.     On 18 August 2015 a Russian court found Mr M.B. guilty of a breach of the migration rules and ordered his expulsion. The parties have not submitted a copy of the judgment of 18 August 2015, nor have they specified the name of the court that delivered it. 19.     On 21 August 2015 the applicant took a flight from Russia to the Gaza Strip via Cairo. However, given that the crossing point in Rafah was closed, he was held for two days in the transit zone of Cairo Airport and then sent back to Moscow. 20 .     Mr M.B. arrived at Sheremetyevo Airport on 23   August 2015. As he did not have a visa, he was denied entry into Russia. The BGS seized his passport. Mr A.M. 21 .     Mr A.M. is a Somalian national who was born in 1981. 22.     In 2005 the applicant moved from Somalia, where he had worked as a journalist, to Yemen, and was granted refugee status there. In 2010 he went back to Somalia and worked as a journalist for a national TV channel in Mogadishu. 23.     In the applicant’s submission, on 20 September 2012 members of the militant group Al-Shabaab carried out a terrorist attack next to the TV channel’s office to coerce its journalists into broadcasting extrajudicial killings that the group performed. As the applicant refused to obey them, his family was taken hostage. On 23 September 2012 one of the applicant’s sons, aged seven, was killed, and another received a blow as a result of which he was paralysed. The applicant himself was beaten and tortured. Eventually Mr   A.M. and his remaining family managed to escape. In September 2012 the applicant again fled to Yemen. On 16 September 2012 he obtained a temporary residence permit valid until 15 September 2014. A copy of the Yemeni residence permit shows that it was issued on 16   September 2012 in Sana’a, Yemen. The applicant has provided no explanation for the discrepancy in dates regarding the terrorist attack of 20   September 2012 and the attack on his family of 23 September 2012. 24.     In August 2014 Mr A.M. obtained Yemeni nationality and a Yemeni passport. In March 2015 the applicant decided to go to Cuba and apply for asylum there because of a personal conflict and the escalation of hostilities in Yemen. 25.     In the Government’s submission, at the end of 2012 the applicant went to Yemen and set up a business there. Later the applicant had to move to Cuba because his former business partner had allegedly threatened him and kidnapped his wife. 26.     On 12 March 2015 Mr A.M. travelled by air to Havana, Cuba. The journey consisted of three legs: Sana’a to Istanbul, Istanbul to Moscow and Moscow to Havana. On 13   March 2015 the applicant, who was in possession of a Russian transit visa, landed in Moscow for the first time. He then continued his journey to Havana. 27.     The applicant had a valid one-month Cuban visa. According to the applicant, he requested asylum immediately upon arrival in Cuba but was not allowed to enter the country. His asylum request was not processed. Mr   A.M. took a flight to Quito, Ecuador, where he unsuccessfully requested asylum and was denied entry into the country and access to the asylum procedure. The applicant was sent back to Cuba, where he was detained in a special detention facility for aliens. 28.     On 9 April 2015 the applicant was deported from Cuba to Russia. 29 .     On 10 April 2015 the applicant arrived at Sheremetyevo Airport. He was not allowed to pass through passport control. The BGS seized his passport. Mr Yasien 30 .     Mr Hasan Yasien is a Syrian national who was born in 1975. 31.     In 2004 and 2008 the applicant stayed in Russia for several months on business visas. 32.     According to the applicant, in 2011 he left Syria for Lebanon because of the hostilities and unsuccessfully applied for temporary asylum there. Nine months later he returned to Syria to renew his passport. In June 2014 he left for Lebanon. On 11 June 2014 he obtained a Russian business visa valid until 25   August 2014 from the Russian embassy in Beirut. 33.     On 4 July 2014 Mr Yasien arrived in Moscow from Beirut. After his business visa expired he remained in Russia. 34.     On 8 September 2014 the Noginsk City Court of the Moscow Region (“the Noginsk Court”) found the applicant guilty of a breach of the migration rules and ordered his expulsion. 35.     On 10 September 2014 Mr Yasien applied to the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”) for temporary asylum. That application was refused on 8 December 2014. The applicant did not appeal against the refusal and remained in Russia. 36.     On 17 August 2015 the Noginsk Court again found the applicant guilty of a breach of the migration rules and ordered his expulsion. 37.     On 18 August 2015 the applicant took a flight from Moscow to Antalya, Turkey. The BGS seized his passport and handed it over to the aircraft crew. The Turkish authorities denied the applicant entry into the country and sent him back to Moscow, on 20 August 2015 according to the applicant and on 21 August 2015 according to the Government. Upon the applicant’s arrival in Moscow, the Russian authorities sent him back to Antalya. The Turkish authorities then returned the applicant to Moscow. 38.     On 8 September 2015 the applicant took a flight to Beirut, but the Lebanese authorities denied him entry into the country and sent him back to Moscow. 39 .     On 9 September 2015 Mr Yasien arrived at Sheremetyevo Airport. The BSG did not allow him to pass through passport control and seized his passport. Conditions of the applicants’ stay in the Sheremetyevo Airport transit zone Submissions by the applicants 40 .     The applicants described the conditions of their stay in the airport transit zone as follows. 41 .     They had slept on a mattress on the floor in the boarding area of the airport, which had been constantly lit, crowded and noisy. There had been no showers readily available to them in the transit area. The only shower that was free of charge was located in the room for detainees and had been locked. Access to it had been conditional upon permission of the BGS officers, who had allowed the applicants to use it and provided them with the key several times during the first week of their stay. 42 .     The applicants had not had access to fresh air and had not been able to take any outdoor exercise. They had not had access to a notary, which had precluded them from issuing notarised powers of attorney required under Russian law to appoint a representative who could communicate with the public authorities on their behalf, or to medical, legal, social or postal services. All their requests for medical assistance had been dismissed; medical personnel had not been allowed to visit the applicants in the transit zone. 43.     The applicants had not been in possession of their passports throughout the duration of their stay. The BGS officers had seized each applicant’s passport upon their arrival and had handed them to the aircraft crews only when the applicants were about to take a flight out of Sheremetyevo Airport. 44 .     The applicants’ access to a lawyer had remained within the discretion of the BGS officers on duty in the transit zone and “[had] never [been] guaranteed”. All meetings of the applicants with the lawyers who had been introduced to them by the Russian office of the UNHCR had taken place in the presence of two or three BGS officers. Submissions by the Government 45.     In their written observations and oral submissions before the Grand Chamber, the Government did not provide any description of the material conditions of the applicants’ stay in the transit zone of Sheremetyevo Airport. The applicants’ asylum applications in Russia and the ensuing proceedings Mr Z.A. 46 .     On 29 July 2015 Mr Z.A. applied for refugee status in Russia through the BGS. 47.     According to the applicant, about one month after that date the BGS officers had “forced [him] to rewrite his application changing the date of the initial request to the current one”, threatening him with expulsion to Iraq in order “to conceal their failure” to transmit the request to the Federal Migration Authority within three days. 48.     On 17 September 2015 Mr Z.A. was interviewed in the airport transit zone by officers of the Moscow Regional Department of the Federal Migration Service (“the Moscow Region FMS”). 49 .     On 23 September 2015 the application for refugee status was accepted for examination on the merits. According to the applicant, the Moscow Region FMS did not issue him with an examination certificate (see paragraphs 99-100 below). According to the Government, an examination certificate was issued on 23 September 2015. The Government have enclosed a copy of the decision to issue a certificate but no copy of the document itself. 50 .     On 10 November 2015 the Moscow Region FMS dismissed Mr   Z.A.’s request for asylum on the grounds that “the reason why the applicant left [Iraq] and why he is reluctant to return there is not in order to seek asylum but economic considerations and a difficult social and economic situation on the territory of [Iraq] . ” They concluded that the applicant had not put forward convincing reasons why he personally feared persecution. The applicant was notified accordingly on 14   November 2015. On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr Z.A. with an examination certificate and to assign him to a temporary accommodation centre. 51 .     On 3 December 2015 the applicant appealed to the Federal Migration Service of Russia (“the Russian FMS”), which, at the material time, prior to its dissolution by the Presidential Decree of 5 April 2016, served as the higher migration authority. He requested that the Russian FMS overrule the decision of 10 November 2015, issue him with an examination certificate, and assign him to a centre for the temporary detention of aliens. 52.     On 29 December 2015 the Russian FMS dismissed the applicant’s appeal. 53.     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 (“the Basmannyy Court”). 54 .     On 5 February 2016 the UNHCR recognised the applicant as a person in need of international protection and started a resettlement procedure. 55 .     On 17 March 2016, having been resettled by UNHCR, the applicant left for Denmark. 56 .     On 12 May 2016 the Basmannyy Court 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. Subsequently the Basmannyy Court discontinued the proceedings on the grounds that the applicant’s lawyer could not obtain a notarised authority form following the resettlement. Mr M.B. 57 .     Three weeks after his arrival at Sheremetyevo Airport the applicant applied for refugee status in Russia through the BGS. Neither party has submitted the exact date; if calculated from 23 August 2015, the date of Mr   M.B.’s arrival at Sheremetyevo Airport, the date would fall on 13   September 2015. 58.     On 14 November 2015 the Moscow Region FMS officers interviewed Mr M.B. in the airport transit zone. 59 .     On 20 November 2015 Mr M.B.’s application for refugee status was accepted for examination on the merits. According to the Government, an examination certificate was issued on the same date. The Government have enclosed a copy of the decision to issue a certificate but no copy of the document itself. According to the applicant, the Moscow Region FMS did not provide Mr M.B. with such a certificate. 60 .     On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr M.B. with an examination certificate and to assign him to a temporary accommodation centre. 61.     On the same date the Moscow Region FMS dismissed Mr M.B.’s application for refugee status on the grounds that “the reason why the applicant left Palestine and why he is reluctant to return there is not in order to seek asylum but the poor social and economic situation in the territory of Palestine.” They concluded that the applicant had not put forward convincing reasons why he personally feared persecution. 62.     On 21 December 2015 the applicant’s lawyer appealed to the Russian FMS. On 31 December 2015 the Russian FMS dismissed the appeal. 63.     On 1 February 2016 the applicant lodged an appeal against the Russian FMS’s decision with the Basmannyy Court. 64 .     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. 65 .     On 12 May 2016 the Basmannyy Court 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. Later, the Basmannyy Court discontinued the proceedings on the grounds that the applicant’s lawyer could not obtain a notarised authority form following the departure and thus could not lodge a detailed statement of appeal. Mr A.M. 66 .     The applicant applied for refugee status in Russia through the BGS (according to the applicant, on 10 April 2015; according to the Government, on 11 April 2015). 67 .     On 1 July 2015 the Moscow Region FMS interviewed the applicant in the airport transit zone. 68 .     In the applicant’s submission, on 1 July 2015 his application was accepted for examination on the merits. However, he was not issued with an examination certificate. In the Government’s submission, an examination certificate was issued on 7 July 2015. The Government have enclosed a copy of the decision to issue a certificate but no copy of the document itself. 69 .     On 1 October 2015 the Moscow Region FMS dismissed the application for refugee status on the grounds that the applicant’s family had continued living in Somalia without being persecuted and that he had worked in Yemen. They concluded that the applicant had not left Somalia for any of the reasons listed in Federal Law FZ-4528-1 of 19   February 1993 (with amendments, hereinafter “the Refugees Act”), and thus could be deported there. The applicant was informed accordingly on 3 November 2015, but claimed that he had not been served with a copy of the decision rejecting his application. 70.     On 24 November 2015 Mr A.M. appealed against the decision of 1   October 2015 to the Russian FMS. 71 .     On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr A.M. with an examination certificate and to assign him to a temporary accommodation centre. 72.     On 7 December 2015 the Russian FMS dismissed the applicant’s appeal against the decision of 1 October 2015 on the grounds that he had been unwilling to return to Yemen because of threats from a third person but nothing prevented him from returning to Somalia in the absence of convincing claims of persecution there. It also noted that the applicant had expressed his readiness to go to Somalia. 73.     On 15 December 2015 Mr A.M. applied for temporary asylum through the BGS. 74.     On 29 December 2015 the applicant lodged an appeal with the Basmannyy Court against the Russian FMS’s decision of 7 December 2015 rejecting his application for refugee status. 75 .     On 22 December 2015 the Moscow Region FMS refused the application for temporary asylum as unsubstantiated on the grounds that the applicant had applied for it merely in order to legitimise his situation in Russia. The applicant was notified accordingly, on 25   December 2015 according to the Government and on 28 December 2015 according to the applicant. 76.     On 10 February 2016 the Russian FMS rejected an appeal against the Moscow Region FMS’s decision of 22 December 2015 regarding temporary asylum on the grounds that the applicant had been unwilling to return to Yemen because of the threats from a third person but nothing prevented him from returning to Somalia in the absence of convincing claims of persecution there. They also noted that the applicant had expressed his readiness to go to Somalia. 77 .     On 24 February 2016 the UNHCR recognised the applicant as a person in need of international protection. 78.     On 19 May 2016 the Basmannyy Court dismissed an appeal lodged by the applicant on 11 March 2016 against the decisions of the Moscow Region FMS and the Russian FMS dismissing 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 “ha[d] 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].” The applicant’s lawyer appealed against the judgment on 31 May 2016. 79.     On 12 September 2016 the Basmannyy Court upheld the Russian FMS’s decision of 7 December 2015 concerning the application for refugee status. 80.     On 20 September 2016 the Moscow City Court dismissed his appeal against the Basmannyy Court’s judgment of 19 May 2016 concerning the application for temporary asylum on the grounds that the situation in Somalia had not changed since the applicant’s application for refugee status had been rejected, and that there were no humanitarian grounds that would warrant granting him temporary asylum. It was also noted that the applicant had abused his right to apply to court by trying to circumvent the legal procedure for legitimising his situation in Russia. 81 .     On 6 February 2017 the Moscow City Court dismissed his appeal against the Basmannyy Court’s judgment of 12 September 2016 concerning the application for refugee status on the grounds that the applicant had not needed asylum at the moment of “crossing the State border of the Russian Federation” because he had not provided proof of the existence of a real threat in the event of his return to Somalia. 82 .     According to the applicant, having received the final rejections of his applications for refugee status and temporary asylum from the Russian authorities, he decided that he did not have any chance of obtaining asylum in Russia and informed the BGS that he agreed to leave for Mogadishu, Somalia. On 9   March 2017 the UNHCR obtained the agreement of Turkish Airlines to provide Mr A.M. with a ticket to Mogadishu via Istanbul. The officers of the Federal Security Service escorted the applicant to Vnukovo Airport of Moscow, ensured that he boarded the aircraft and handed his passport over to the crew. Since then the applicant has resided in Mogadishu, where he has abandoned journalism “to escape the attention of the terrorists”. Mr Yasien 83 .     According to the Government, Mr Yasien applied for temporary asylum on 19 September 2015. 84.     According to the applicant, on that date he applied for refugee status through the BGS. His application was allegedly lost. The applicant lodged a new application for refugee status on 5 October 2015. 85 .     On 3 November 2015 the Moscow Region FMS interviewed the applicant in the airport transit zone. 86 .     According to the applicant, the Moscow Region FMS accepted his application for examination on the merits on 3 November 2015 but did not provide him with an examination certificate. In his submission, it was a well ‑ established practice of the migration authorities to issue, but not deliver, examination certificates to detained asylum-seekers. The certificates of asylum-seekers in detention were kept at the migration service office together with the case files. 87.     On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr Yasien with an examination certificate and to assign him to a temporary accommodation centre. 88 .     On 21 December 2015 the Moscow Region FMS dismissed Mr   Yasien’s application for temporary asylum although the applicant had applied for refugee status, not temporary asylum. The grounds for rejection were as follows: the applicant’s economic situation in Syria had been unsatisfactory so he had left the country for economic reasons, and he had applied for temporary asylum to legitimise his situation in Russia in order to have an opportunity to work there. The applicant was notified accordingly, on 23   December 2015 according to the applicant and on 25 December 2015 according to the Government. According to the applicant, he was not served with a copy of the decision. 89.     On 29 December 2015 Mr Yasien again submitted his application for refugee status through the BGS. 90.     On 12 January 2016 the applicant appealed, through his lawyer, against the decision of 21 December 2015 to the Russian FMS. He emphasised that on 19 September and 5 October 2015 he had applied for refugee status, while the decision in question concerned temporary asylum, and that for unknown reasons the Moscow Region FMS had substituted the temporary asylum procedure for the refugee status procedure. The applicant referred to the grave humanitarian crisis in Syria and submitted that, in breach of the Refugees Act, the Moscow Region FMS had not issued him with an examination certificate. 91.     On 4 February 2016 the Russian FMS dismissed the appeal and upheld the decision of 21 December 2015. 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 under the control of the Government of Syria, and that “many Syrians wish[ed] 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”. The Russian FMS did not address the applicant’s argument regarding the replacement of the refugee status procedure with the one for temporary asylum. 92.     On 7 April 2016 the applicant once again lodged an application for refugee status through the BGS. He received no response. 93.     On 11 April 2016 the applicant complained to the Zamoskvoretskiy District Court of Moscow (“the Zamoskvoretskiy Court”) about the decisions of 21 December 2015 and 4 February 2016 and the inaction of the Russian FMS. 94 .     On 21 April 2016 the UNHCR recognised the applicant as a person in need of international protection and started a resettlement procedure. 95 .     On 11 May 2016 the applicant was resettled by the UNHCR and left for Sweden. 96 .     On 31 August 2016 the Zamoskvoretskiy Court upheld the Russian FMS’s decision of 4 February 2016. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW 97 .     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 in 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.” 98.     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 ... 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 their transfer 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.” 99 .     Section 4 of the Refugees Act provides, in so far as relevant, as follows: “1.     An adult who has expressed a wish to be recognised as refugee shall 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.” 100 .     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 lump-sum allowance ... 1     (4)     to receive from ... the migration authority a document authorising his or her 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 ...” INTERNATIONAL LAW The 1951 United Nations Convention Relating to the Status of Refugees 101.     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.” 102.     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.” COMPARATIVE-LAW MATERIALS 103.     According to the survey of the situation of asylum-seekers confined to a transit zone on the territory of a State pending the outcome of asylum proceedings in thirty-four Contracting Parties to the Convention made available to the Court, in seven of the thirty-four member States surveyed, namely the Czech Republic, France, Lithuania, Montenegro, the Netherlands, Portugal and Ukraine, the stay in a transit zone of persons who have applied for international protection is regarded under national law as a deprivation of liberty, whereas under the national law of eighteen of the thirty-four Contracting Parties, namely Albania, Austria, Azerbaijan, Bulgaria, Croatia, Estonia, Finland, Georgia, Germany, Greece, North Macedonia, Republic of Moldova, Poland, Romania, Serbia, Slovenia, Spain and the United Kingdom (England and Wales), such stay is not regarded as a deprivation of liberty. 104.     In nine of the thirty-four Contracting Parties, namely Armenia, Belgium, Iceland, Liechtenstein, Luxembourg, Norway, San Marino, Slovakia and Sweden, there are no transit zones in either legal or practical terms in which asylum-seekers are confined pending the outcome of their asylum proceedings. 105.     Twelve of the thirty-four Contracting Parties, namely Austria, Croatia, Czech Republic, France, Georgia, Greece, Lithuania, Montenegro, Netherlands, Portugal, Romania and Spain, have in place legal provisions and procedures specifically applicable to persons who have applied for international protection while in a transit zone at an airport or at a land or sea border point. THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 106.     The applicants complained that their confinement in the transit zone of Sheremetyevo Airport had amounted to an unlawful deprivation of liberty, in breach of Article 5 § 1 of the Convention, the relevant parts of which read as follows: “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.” The Chamber judgment 107.     The Chamber declared the complaint under Article 5 § 1 admissible and found that the applicants’ confinement in the transit zone of Sheremetyevo Airport had amounted to a de facto deprivation of liberty. 108.     The Chamber further examined the issue of lawfulness of the applicants’ de facto deprivation of liberty. In the absence of any reference by the Government to any domestic legal provision capable of serving as a legal basis, the Chamber considered that the applicants’ lengthy confinement in the transit zone of Sheremetyevo Airport had not had any legal basis in the domestic law, in breach of the requirement of Article 5 § 1 of the Convention, and found a violation of that provision. The parties’ submissions The applicants 109.     The applicants submitted that while in the airport transit zone they had been in the situation of asylum-seekers whose applications had not yet been considered. They had not had the option of entering a State other than the one they had fled and had been under the jurisdiction of Russia. During their lengthy stay in the airport transit zone they had been unable to enter Russian territory or receive visits from doctors and notaries; access to them by their lawyers had been conditional and occasionally denied; and the BGS had seized their passports. Accordingly, the applicants had not chosen to stay in the transit zone and thus could not be said to have validly consented to being deprived of their liberty. They concluded that their confinement in the transit zone had amounted to a de facto deprivation of liberty. 110 .     Regarding the compatibility of their de facto deprivation of liberty with Article 5 § 1, the applicants submitted that there had been no court or other official decision authorising their respective detention. In the absence of any legal procedure to assess the lawfulness or duration of their detention, the applicants had been “in a legal vacuum.” They concluded that their lengthy confinement in the airport transit zone for an indefinite and unforeseeable period in the absence of a specific legal provision justifying it and of judicial authorisation or review had not had any basis in domestic law, in breach of Article 5 § 1. 111.     The applicants submitted that the subject of their complaint before the Court was not the Russian authorities’ refusal to grant them asylum. The thrust of their respective applications was “that their rights [had been] violated by the absence of legal regulations and by the authorities’ violation of the regulations that should have applied and their complete lack of consideration or intention to preserve human dignity.” 112.     The applicants stated that they had lodged applications for refugee status and temporary asylum in compliance with Russian domestic law despite the lack of information about the procedure available in the airport transit zone and the fact that the BGS officers had only spoken Russian. The Russian authorities’ failure to treat the applicants as asylum-seekers and to provide them with examination certificates had deprived them of the opportunity to enjoy the rights guaranteed by the Refugees Act. The Government 113 .     The Government insisted that it was “vital to draw a distinction between genuine refugees and migrants”, the latter being persons moving to a third country for mainly economic reasons. In the Government’s view, the applicants had not met the refugee criteria laid down by the Geneva Convention as they had not arrived in Russia directly from the countries of the alleged risk, had not chosen it as a first safe country for the purposes of claiming asylum, had not applied for asylum in Russia immediately upon arrival there, and had not sought asylum in other countries beforehand. In the course of interviews by the Russian migration authorities, the applicants had not substantiated their allegations that their lives were endangered in the countries of origin but had referred to a poor economic situation. Allegations of possible risks had been raised only after the applicants had been put in contact with lawyers specialising in asylum cases. Accordingly, the applicants were not “genuine asylum-seekers” but “ordinary migrants” whose asylum applications had been “artificially created and had little prospects of success.” 114 .     The Government submitted that they should not be deemed responsible for difficulties that had been the result of the applicants’ own choices. The Court’s position in asylum-seekers’ cases encouraged migrants “to abuse the right to asylum”. 115 .     The Government insisted that a person under a State’s jurisdiction was not necessarily “at the hands of the authorities” and further stated that the applicants should have been well aware of the fact that they had not had the requisite documents and had not had valid grounds to enter Russia. By deliberately attempting to enter Russia w