I correctly predicted that there was a violation of human rights in TEWELDE AND OTHERS v. RUSSIA and 3 other applications.

Judgment

THIRD SECTION
CASE OF TEWELDE AND OTHERS v. RUSSIA
(Applications nos. 48352/19 and 3 others – see appended list)

JUDGMENT
STRASBOURG
7 December 2021

This judgment is final but it may be subject to editorial revision. In the case of Tewelde and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
four applications (nos. 48352/19, 48496/19, 48720/19 and 48773/19) 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 eleven Eritrean nationals;
the decision to give notice to the Russian Government (“the Government”) of the complaints under Articles 3 and 5 §§ 1 (f) and 4 of the Convention and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 9 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the administrative removal of the applicants, all Eritrean nationals, to their country of origin despite their claims about a real risk of ill-treatment, as well as the alleged unlawfulness of their detention pending removal and the alleged lack of an effective procedure for review of their detention. THE FACTS
2. The details of the applicants’ individual cases are set out in the Appendix. The applicants were represented by Ms D. Trenina, Mr K. Zharinov and Ms E. Davidyan, lawyers practising in Moscow. 3. The Government were represented by their Agent, Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On various dates in 2015-2018 the applicants, who either faced mandatory national service or were performing it, left Eritrea for Sudan. In 2018 they travelled to Russia using either single-entry tourist visas or Fan IDs, which provided visa-free entry to Russia during the 2018 FIFA World Cup. 6. All of them stayed in Russia after the expiry of their visas or visa-free period. Subsequently, on various dates the applicants were apprehended by the Russian authorities, either in the Russian-Estonian border control zone or on their way to the border. The national courts ordered their administrative removal, having dismissed as unsubstantiated the allegations of a risk of ill‐treatment in Eritrea. The applicants were placed in detention pending removal. 7. The Russian authorities dismissed the applicants’ temporary asylum requests and refused to examine on the merits their requests for refugee status. 8. On 17, 18 and 19 September 2019 the Court refused the applicants’ requests for interim measures under Rule 39 of the Rules of Court. 9. On different dates in January and February 2020, the removal orders in respect of the applicants were enforced. However, all of the applicants exited the airport of Addis-Ababa, Ethiopia during their flight connection on their way to Eritrea and thus avoided returning to their country of origin. 10. On 12 June 2020 the representatives submitted to the Court written statements by the applicants confirming continuing contact between them after the removal and the applicants’ wish to pursue the applications. 11. The applicants currently reside in Ethiopia. RELEVANT LEGAL FRAMEWORK
12. The relevant domestic law and practice relating to the removal and detention of foreign nationals in Russia, refugee status and temporary asylum is summarised in S.K. v. Russia, no. 52722/15, §§ 23-41, 14 February 2017, and K.G. v. Russia (dec.), no. 31084/18, §§ 18-22, 2 October 2018. Ruling no. 14-P of 23 May 2017 by the Russian Constitutional Court concerning the constitutional requirement to have available an effective remedy against an unlawful or disproportionate deprivation of liberty is summarised in Mskhiladze v. Russia ([Committee], no. 47741/16, § 29, 13 February 2018). 13. The relevant country information on Eritrea has been previously summarised in the case M.O. v. Switzerland (no. 41282/16, §§ 36-53, 20 June 2017). 14. More recent international reports demonstrate that, notwithstanding some promising changes, the situation with respect to human rights in Eritrea remains mostly unchanged. 15. In a report of 16 May 2019 (A/HRC/41/53) the UN Special Rapporteur on the situation in Eritrea indicated as follows:
Regional developments
“... since the Joint Declaration of Peace and Friendship between Eritrea and Ethiopia was signed in July 2018, the two countries have continued to work towards improving their diplomatic ties and strengthened their efforts to achieve sustainable peace ... The Government of Eritrea has shown an increased willingness to normalize its bilateral relations with a number of other countries. Cooperation with the Special Rapporteur and engagement with international human rights bodies
12. Since the beginning of 2019, Eritrea has actively engaged with international human rights bodies. On 28 January, Eritrea participated in the third cycle of the universal periodic review and presented a country report (A/HRC/WG.6/32/ERI/1). Also in January, Eritrea joined the Human Rights Council, and in March it participated in the fortieth session of the Council. On 11 March, the head of the delegation of Eritrea intervened during the enhanced interactive dialogue on the situation of human rights in Eritrea held by the Council. On 12 and 13 March, that delegation participated in the 125th session of the Human Rights Committee, during which the situation of civil and political rights in Eritrea was examined (CCPR/C/ERI/CO/1). 13. The Special Rapporteur welcomes those developments because they suggest that Eritrea recognizes the central role and core mission of the above-mentioned human rights bodies and acknowledges the importance of participating in those forums. ... Conclusions and benchmarks for progress in improving the situation of human rights
75. The positive momentum for peace and security in the region created expectations in the international community, and within Eritrea, that the Government of Eritrea would implement wider political and institutional reforms. However, ... significant human rights concerns remain unaddressed.”
16. In September 2019 Report “Eritrea: National Service, Exit, and Return” published by the European Asylum Support Office, it was stated as follows:
“In July 2018, Eritrea and Ethiopia signed a peace declaration, after 18 years of a ‘no war, no peace’ situation that had followed the border war of 1998-2000. The two neighbours re-established diplomatic relations, communication and transport channels. ... In November 2018, the UN lifted the sanctions, which had been in place since 2009. On a domestic level, as of August 2019, peace has not yet led to any significant policy changes. ... The open-ended national service has not yet been reformed... there are no indications of changes in terms of conditions, recruitment or policies in national service. Most notably, the unlimited duration of national service remains in place. ...
Exit visa requirements remain in place, making it difficult for many Eritreans to leave the country legally. ... The punishment for desertion from national service, draft evasion, and illegal exit continues to be applied arbitrarily and inconsistently, mostly by military commanders and other representatives of the security forces. Transgressors can be arrested during giffas (round-ups), through searches, when trying to cross the border, or after returning from abroad ... Deserters and draft evaders are reported to be sent to prison, mostly for terms between one and twelve months, during which interrogations and torture may occur. Prison terms for repeated offenders, document forgers and persons who have left the country illegally or have tried to do so are reportedly higher, up to three years. Draft evaders are afterwards sent to military trainings, while military deserters are sent back to their unit. Their commander decides arbitrarily whether to further punish them or reintegrate them into the unit. Deserters from the civilian national service are often transferred to a military unit as a punishment, in addition to time in prison. Persons who have returned from abroad or been deported are reported to be treated similarly to those arrested within Eritrea. Returnees who have paid the 2 % tax and signed the ‘Letter of Regret’ are usually not arrested upon arrival. After the expiry of their privileged status, however, (re)conscription into national service and punishment occur at the discretion of the authorities. No official information is available on the de facto treatment of deserters, draft evaders and persons who leave Eritrea illegally. The information on the respective punishments presented in this report is largely based on anecdotal accounts. Therefore, and because of the arbitrary and inconsistent application of the punishment, the treatment may deviate from it in individual cases. As of August 2019, there are no indications that the end of the ‘no war, no peace’ situation with Ethiopia has led to more leniency when it comes to punishments for the above-mentioned offenses.”
17. Human Rights Watch’s “World Report 2019: Rights Trends in Eritrea” indicated the following findings:
“After decades of near total diplomatic isolation, 2018 was a year of significant change in Eritrea’s relationship with its neighbours. ... Despite these changes, there was no sign of Eritrea ending its severe repression of basic rights. ...
Conscripts [into national service] have long been subject to inhuman and degrading punishment, including torture, without recourse.”
THE LAW
18. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 19. The applicants complained that by ordering their administrative removal to Eritrea and enforcing it the Russian authorities exposed them to a real risk of ill-treatment in violation of Article 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
20. The Government maintained that the applicants had not exhausted available domestic remedies in respect of their complaints under Article 3 of the Convention, since they had not appealed against the decisions not to grant them temporary asylum and the refusals to examine on the merits their refugee status requests. 21. The applicants contested this allegation and reaffirmed that they had exhausted all domestic remedies available to them. They also noted that the Government did not allege that the applicants had failed to exhaust domestic remedies by raising relevant complaints in administrative removal proceedings, and merely considered these complaints to be unsubstantiated. 22. The Court notes that in the case of K.G. v. Russia, cited above, § 28) it had previously established that, while an application for refugee status or temporary asylum does not prevent the authorities from pursuing extradition or expulsion proceedings and adopting final decisions, it de facto bars removal of a person for the period of consideration of an asylum application and judicial review. Given the above finding, temporary asylum proceedings cannot serve as an effective remedy in respect of Article 3 complaints in extradition or expulsion cases, since they have no suspensive effect on the progress of extradition or expulsion proceedings. Conversely, claims concerning a real risk of treatment contrary to Article 3 of the Convention should be raised throughout the extradition or expulsion proceedings in order for the domestic remedies to be exhausted. 23. Therefore, the Court finds that the Government’s objection in respect of non-exhaustion of domestic remedies in temporary asylum proceedings should be dismissed. 24. The Court finally notes that the applicants’ complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. (a) The applicants
25. All the applicants submitted that they were at risk of ill-treatment in their country of origin due to desertion from national service, either military or civilian, or draft evasion, as well as due to their illegal exit from Eritrea. They also claimed that in the event of removal they would be obliged to return to their abandoned national service or would inevitably be drafted, while such service remains de facto indefinite in duration and is normally accompanied by torture. 26. The applicants, except for Ms Tsgewyin, also referred to prior experience of ill-treatment in Eritrea. Ms Lwam, Ms Miryam, Ms Beilul and Ms Tsgewyin submitted that they, as females, faced the risk of being subjected to sexual exploitation upon their return. Mr Haben, Mr Habteab, Mr Tewelde and Mr Idris referred to the risk of ill-treatment in reprisal for expressing criticism in respect of the Eritrean authorities. (b) The Government
27. The Government asserted that the applicants had not adduced convincing arguments or evidence indicating a risk of treatment contrary to Article 3 of the Convention in the event of their removal to Eritrea. They noted the absence of military operations in Eritrea or reports of significant deterioration of the security situation, or consistent practice of gross, flagrant and large-scale violations of human rights in that country. 28. The Government maintained that the circumstances of the cases indicate that the applicants had never intended to regularise their presence in Russia and only planned to access the European Union through its territory; they had not applied for refugee status or temporary asylum until after their apprehension and placement in a detention centre pending removal. (a) General principles
29. The relevant general principles concerning the application of Article 3 have been summarised by the Court in the judgments F.G. v. Sweden ([GC], no. 43611/11, §§ 111-27, ECHR 2016), and J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 77-105, ECHR 2016). 30. The Court reiterates at the outset that Contracting States have the right, as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94). However, it is the Court’s settled case‐law that expulsion or extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if removed, faces a real risk of being subjected to treatment contrary to Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008, and Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161). 31. The existence of a risk of ill-treatment must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion (see F.G. v. Sweden, cited above, § 115). 32. It is for the applicant to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see Paposhvili v. Belgium [GC], no. 41738/10, § 186, ECHR 2016, and Trabelsi v. Belgium, no. 140/10, § 130, ECHR 2014 (extracts)). 33. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, §§ 129-32, and F.G. v. Sweden, cited above, § 120). (b) Application of these principles to the present case
34. The Court noted that all the applicants were removed to Eritrea on different dates in January and February 2020, so the existence of a risk of ill‐treatment must be assessed with reference to those facts which were known or ought to have been known to the Contracting State at that time. 35. In the case of M.O. v. Switzerland (cited above, §§ 70-71) the Court concluded that the human rights situation in Eritrea was of grave concern, however, the general human rights situation in Eritrea was not such that it prevented, per se, all removals to Eritrea and that the Court, hence, had to assess whether the applicant’s personal circumstances were such that he or she would face a real risk of treatment contrary to Article 3 of the Convention if removed to Eritrea. 36. Taking into account the recent reports on the situation in Eritrea, the Court notes that, since the last assessment, the human rights situation has remained substantially unchanged (see paragraphs 15-17 above). 37. Having assessed the applicants’ claims in removal proceedings as well as in temporary asylum proceedings, the domestic authorities found that the applicants did not adduce sufficient evidence capable of demonstrating that there were substantial grounds for believing that, upon return to Eritrea, they would be exposed to a real risk of ill-treatment. 38. In this regard the Court notes that the applicants’ submissions before the domestic authorities, as well as before the Court, were not consistent and lacked evidentiary basis. In the first-instance removal proceedings all the applicants chose to give no indication of their alleged fears of ill-treatment in the country of origin and some of them even claimed that they had intended to return voluntarily to Eritrea. On appeal Mr Semere, Mr Garbay, Ms Lwam and Mr Idris only referred to the fact that they belonged to oppressed religious groups, while they raised no such allegations before the Court. Mr Robiel failed to submit his statement of appeal altogether. The remainder of the applicants managed to raise explicitly on appeal, with at least some references to international reports, only one of their claims before the Court, namely the alleged ill-treatment of national service deserters and draft evaders. 39. Four of the applicants, Mr Tewelde, Ms Miryam, Ms Beilul and Ms Tsgewyin, alleged that they had been performing the military part of national service or had been eligible for conscription. However, none of them presented any documentary evidence to support their allegations. Those who claimed to be military service deserters did not provide any consistent and plausible narrative of their conscription, the service itself and their subsequent escape. Ms Tsgewyin stated that she had not been conscripted into national service due to having an infant, that she had been a housewife prior to her departure from Eritrea and thus she merely feared, with no proven grounds, being conscripted into military service and ill-treated upon her return. The submissions of Mr Tewelde were inconsistent overall, since before the Court he claimed to be a military service deserter, while in removal proceedings he alleged that he had never been conscripted and only feared future conscription. 40. The remaining applicants, Mr Haben and Mr Habteab, submitted that they had been performing their duties within the civilian part of national service, as a state-owned transportation company official and a judge, respectively. They allegedly feared ill-treatment for desertion upon their return, however, on the domestic level they referred only to reports relating to the military part of national service and did not provide the authorities with any sources explicitly indicating that the deserters or draft evaders from the civilian part are under any comparable risk. 41. The claims concerning prior experience of ill-treatment and possible sexual exploitation of the female applicants were never brought to the attention of the domestic authorities, for unknown reasons. The Court also notes that all the applicants alleged that they had been obliged to flee from Eritrea, avoiding national service, and in some cases even breaking out of jail. However, as established by the national courts in temporary asylum proceedings, they had all arrived in Sudan with valid visas. 42. In these circumstances, the Court sees no reason to depart from the national authorities’ conclusions in the applicants’ cases. The applicants failed to present a sufficiently proven and consistent narrative of their individual circumstances justifying the existence of a risk of ill-treatment and submitted no persuasive arguments to rebut concerns about the lack of credibility of their claims. 43. The Court finally notes that all the applicants avoided transfer to Eritrea and currently reside in Ethiopia. There is nothing to indicate that they remain under any risk of removal to Eritrea at the moment. 44. The foregoing considerations are sufficient for the Court to conclude that the removal of the applicants to Eritrea was not in violation of Article 3 of the Convention. 45. The applicants also complained that their detention pending removal was incompatible with the Convention requirement in terms of the foreseeability of the length of such detention and that they had not had access to effective judicial review of detention. They relied on Article 5 § 1 (f) and Article 5 § 4 of the Convention. The relevant parts of Article 5 of the Convention 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. ...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful ...”
46. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 47. The applicants submitted that the domestic law does not contain any legal provisions governing the length of detention pending removal, but merely states that the removal order should be executed within two years. No specific time-limits were set in the domestic judgements ordering the applicants’ detention pending removal. The applicants, therefore, did not have at their disposal any effective procedure for judicial review of the lawfulness of their detention. 48. The Government contested the applicants’ claims, holding that their placement in detention had been in accordance with the judgments of the national courts, which had taken into account all the available evidence. Moreover, the Government pointed to the fact that the applicants had not used the opportunity to challenge the detention orders when they had appealed against the domestic judgments ordering their administrative removal. 49. The Court reiterates that any deprivation of liberty under the second limb of Article 5 § 1 (f) of the Convention will only be justified for as long as deportation or extradition proceedings are in progress. If such proceedings are not carried out promptly, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (see L.M. and Others v. Russia, nos. 40081/14 and 2 others, § 146, 15 October 2015). The domestic authorities have an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified (see Al Husin v. Bosnia and Herzegovina (no. 2), no. 10112/16, § 98, 25 June 2019). 50. Having regard to the information submitted by the parties, the Court finds that at first all the applicants were detained with a view to being removed, and their detention was presumably carried out initially in good faith and in compliance with Article 5 § 1 (f) of the Convention. However, the length of the applicants’ detention, as summarised in the relevant part of the Appendix, was from fourteen to sixteen months and the Government submitted no information about any actions taken in pursuit of the applicants’ administrative removal during these periods. Accordingly, in the Court’s view, the length of the applicants’ detention was not demonstrably related to the purpose pursued. 51. Furthermore, as regards the applicants’ complaint under Article 5 § 4 of the Convention concerning the lack of an effective procedure for review of detention, the Court notes that nothing in the available materials indicates that the applicants’ continued detention had been periodically reviewed or that they had indeed access to any procedure for such review. 52. Accordingly, the Court concludes that there has been a violation of Article 5 § 1 (f) and Article 5 § 4 of the Convention. 53. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
54. The applicants claimed 15,000 euros each in respect of non‐pecuniary damage sustained as a result of their removal to Eritrea, as well as their unlawful and excessively lengthy detention pending administrative removal and lack of effective judicial review of detention. 55. Given the above findings of no violation of Article 3 of the Convention and a violation of Article 5 § 1 (f) and Article 5 § 4 of the Convention the Court, making its assessment on an equitable basis, awards the applicants the sums indicated in the Appendix, plus any tax that may be chargeable on these amounts. The payments should be made to the applicants’ representatives, to be held in trust for the applicants. 56. The applicants also claimed costs and expenses incurred before the national courts and before the Court by their representatives, Ms Trenina, Mr Zharinov and Ms Davidyan. 57. The Government drew the Court’s attention to the fact that the applicants did not submit copies of any legal services agreements concluded between them and their representatives. 58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present cases the applicants did not submit documents showing that they had paid or were under a legal obligation to pay the fees charged by their representatives. The Court therefore finds no basis on which to accept that the costs and expenses claimed by the applicants have actually been incurred by them (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-73, 28 November 2017). 59. Therefore, the Court rejects the applicants’ claims for costs and expenses in full. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the State is to pay, within three months, the sums indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, awarded in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
Done in English, and notified in writing on 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Peeter RoosmaDeputy Registrar President

APPENDIX
List of cases
No. Application no. Case name

Lodged on
ApplicantYear of BirthNationality
Alleged occupation in the country of origin

Date of arrival in Russia
Removal Proceedings
Detention Pending Removal
Refugee Status/Temporary Asylum Proceedings
Departure
Just satisfaction award (in euros)
1. 48352/19

Tewelde and Others v. Russia

15/10/2019
Ykalo Solomon TEWELDE1995Eritrean
Military service
31 August 2018

Tesfamiryam Tekle MIRYAM1992Eritrean
Military service
22 June 2018

Brhane Habtemichael BEILUL1997Eritrean
Military service
4 July 2018

Mohammednur Siyed IDRIS1990Eritrean
Immigration office official

25 June 2018

Mr TEWELDE, Ms MIRYAM, Ms BEILUL

21 November 2018 –ordered by the Pechorskiy District Court of Pskov Region
28 December 2018 – upheld by the Pskov Regional Court

Mr IDRIS
24 October 2018 – ordered by the Pskov Town Court of Pskov Region
19 November 2018 – upheld by the Pskov Regional Court

Mr TEWELDE21 November 2018 – 30 January 2020
(14 months, 9 days)

Ms MIRYAM
21 November 2018 – 18 January 2020
(13 months, 28 days)

Ms BEILUL
21 November 2018 – 21 January 2020
(14 months)

Mr IDRIS
24 October 2018 – 25 January 2020
(15 months, 1 day)

22 March 2019, 22 March 2019, 25 March 2019, 18 March 2019 respectively – refusals to grant temporary asylum
6 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

15 April 2019, 17 April 2019, 17 April 2019 and 15 April 2019 respectively – refusal to accept the applicants’ requests for refugee status for examination on merits
22 July 2019 - upheld by Pskov Town Court of Pskov Region

Mr TEWELDE, Ms BEILUL, Mr IDRIS
28 November 2019 – upheld by upheld by Pskov Regional Court

Ms MIRYAM
31 October 2019 - upheld by Pskov Regional Court

On 30 January 2020, 18 January 2020, 21 January 2020, 25 January 2020 respectively removal orders in respect of the applicants were executed. The applicants managed to escape during their flight connection in Addis-Ababa and now reside in Ethiopia

Mr TEWELDE
EUR 4,700 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Ms MIRYAM, Ms BEILUL
EUR 4,400 each in respect of the non-pecuniary damage incurred in connection with a violation of their rights under Article 5 §§ 1 and 4 of the Convention

Mr IDRIS
EUR 4,900 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

2. 48496/19

Haben and Habteab v. Russia

15/10/2019
Goitom Belay HABEN1985Eritrean
State-owned transportation company official
13 July 2018Welday Teklehaymanot HABTEAB1985Eritrean
Judge
13 July 2018
21 November 2018 – ordered by the Pechorskiy District Court of Pskov Region

28 December 2018 – upheld by the Pskov Regional Court

Mr HABEN
21 November 2018 – 23 January 2020
(14 months, 2 days)

Mr HABTEAB
21 November 2018 – 4 February 2020
(14 months, 14 days)

18 March 2019 and 25 March 2019 respectively – refusals to grant temporary asylum
6 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

3 April 2019 and 15 April 2019 respectively – refusals to accept the applicants’ requests for refugee status for examination on merits
22 July 2019 – upheld by Pskov Town Court of Pskov Region
28 November 2019 and 14 November 2019 respectively – upheld by Pskov Regional Court
23 January 2020 and 4 February 2020 respectively removal orders in respect of the applicants were executed
EUR 4,700 each in respect of non-pecuniary damage incurred in connection with a violation of their rights under Article 5 §§ 1 and 4 of the Convention
3. 48720/19

Tsgewyin v. Russia

15/10/2019
Zereit Okibamichael TSGEWYIN1994Eritrean
Housewife
11 July 2018
21 November 2018 – ordered by the Pechorskiy District Court of Pskov Region
28 December 2018 – upheld by the Pskov Regional Court

21 November 2018 – 11 January 2020
(13 months, 21 days)
22 March 2019 – refusal to grant temporary asylum
10 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

17 April 2019 – refusal to accept the applicant’s request for refugee status for examination on merits
22 July 2019 – upheld by Pskov Town Court of Pskov Region
28 November 2019 – upheld by Pskov Regional Court
On 11 January 2020 removal order in respect of the applicant was executed. The applicant managed to escape during her flight connection in Addis-Ababa and now resides in Ethiopia

EUR 4,400 in respect of the non-pecuniary damage incurred in connection with a violation of her rights under Article 5 §§ 1 and 4 of the Convention

4. 48773/19

Robiel and Others v. Russia

15/10/2019
Teklit Abraham ROBIEL1987MoscowEritrean
Teacher
26 June 2018
Temnewo Mehari SEMERE1986Eritrean
Accountant
25 June 2018

Kidane Teklehaymanot GARBAY1994Eritrean
Military service
2 June 2018
Habtetsion Veldeyhannes LWAM1991Eritrean
Military service

25 June 2018
24 October 2018 – ordered by the Pskov Town Court of Pskov Region
19 November 2018 – upheld by the Pskov Regional Court

Mr ROBIEL
24 October 2018 – 1 February 2020
(15 months, 8 days)

Mr SEMERE
24 October 2018 – 14 January 2020
(14 months, 21 days)

Mr GARBAY
24 October 2018 – 28 January 2020
(15 months, 4 days)
Ms LWAM
24 October 2018 – 16 January 2020
(14 months, 23 days)

15 March 2019, 11 March 2019, 15 March 2019, 12 March 2019 respectively – refusal to grant temporary asylum
10 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

2 April 2019, 2 April 2019, 15 April 2019, 3 April 2019 respectively – refusal to accept the applicants’ requests for refugee status for examination on merits
22 July 2019 - upheld by Pskov Town Court of Pskov Region

Mr GARBAY, Ms LWAM
28 November 2019 –upheld by Pskov Regional Court

Mr ROBIEL, Mr SEMERE
31 October 2019 - upheld by Pskov Regional Court

On 1 February 2020, 14 January 2020, 28 January 2020 and 16 January 2020 respectively
removal orders in respect of the applicants were executed. The applicants managed to escape during their flight connection in Addis-Ababa and now reside in Ethiopia
Mr ROBIEL
EUR 4,900 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Mr SEMERE
EUR 4,700 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Mr GARBAY
EUR 4,900 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Ms LWAM
EUR 4,700 in respect of the non-pecuniary damage incurred in connection with a violation of her rights under Article 5 §§ 1 and 4 of the Convention

THIRD SECTION
CASE OF TEWELDE AND OTHERS v. RUSSIA
(Applications nos. 48352/19 and 3 others – see appended list)

JUDGMENT
STRASBOURG
7 December 2021

This judgment is final but it may be subject to editorial revision. In the case of Tewelde and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
four applications (nos. 48352/19, 48496/19, 48720/19 and 48773/19) 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 eleven Eritrean nationals;
the decision to give notice to the Russian Government (“the Government”) of the complaints under Articles 3 and 5 §§ 1 (f) and 4 of the Convention and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 9 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the administrative removal of the applicants, all Eritrean nationals, to their country of origin despite their claims about a real risk of ill-treatment, as well as the alleged unlawfulness of their detention pending removal and the alleged lack of an effective procedure for review of their detention. THE FACTS
2. The details of the applicants’ individual cases are set out in the Appendix. The applicants were represented by Ms D. Trenina, Mr K. Zharinov and Ms E. Davidyan, lawyers practising in Moscow. 3. The Government were represented by their Agent, Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On various dates in 2015-2018 the applicants, who either faced mandatory national service or were performing it, left Eritrea for Sudan. In 2018 they travelled to Russia using either single-entry tourist visas or Fan IDs, which provided visa-free entry to Russia during the 2018 FIFA World Cup. 6. All of them stayed in Russia after the expiry of their visas or visa-free period. Subsequently, on various dates the applicants were apprehended by the Russian authorities, either in the Russian-Estonian border control zone or on their way to the border. The national courts ordered their administrative removal, having dismissed as unsubstantiated the allegations of a risk of ill‐treatment in Eritrea. The applicants were placed in detention pending removal. 7. The Russian authorities dismissed the applicants’ temporary asylum requests and refused to examine on the merits their requests for refugee status. 8. On 17, 18 and 19 September 2019 the Court refused the applicants’ requests for interim measures under Rule 39 of the Rules of Court. 9. On different dates in January and February 2020, the removal orders in respect of the applicants were enforced. However, all of the applicants exited the airport of Addis-Ababa, Ethiopia during their flight connection on their way to Eritrea and thus avoided returning to their country of origin. 10. On 12 June 2020 the representatives submitted to the Court written statements by the applicants confirming continuing contact between them after the removal and the applicants’ wish to pursue the applications. 11. The applicants currently reside in Ethiopia. RELEVANT LEGAL FRAMEWORK
12. The relevant domestic law and practice relating to the removal and detention of foreign nationals in Russia, refugee status and temporary asylum is summarised in S.K. v. Russia, no. 52722/15, §§ 23-41, 14 February 2017, and K.G. v. Russia (dec.), no. 31084/18, §§ 18-22, 2 October 2018. Ruling no. 14-P of 23 May 2017 by the Russian Constitutional Court concerning the constitutional requirement to have available an effective remedy against an unlawful or disproportionate deprivation of liberty is summarised in Mskhiladze v. Russia ([Committee], no. 47741/16, § 29, 13 February 2018). 13. The relevant country information on Eritrea has been previously summarised in the case M.O. v. Switzerland (no. 41282/16, §§ 36-53, 20 June 2017). 14. More recent international reports demonstrate that, notwithstanding some promising changes, the situation with respect to human rights in Eritrea remains mostly unchanged. 15. In a report of 16 May 2019 (A/HRC/41/53) the UN Special Rapporteur on the situation in Eritrea indicated as follows:
Regional developments
“... since the Joint Declaration of Peace and Friendship between Eritrea and Ethiopia was signed in July 2018, the two countries have continued to work towards improving their diplomatic ties and strengthened their efforts to achieve sustainable peace ... The Government of Eritrea has shown an increased willingness to normalize its bilateral relations with a number of other countries. Cooperation with the Special Rapporteur and engagement with international human rights bodies
12. Since the beginning of 2019, Eritrea has actively engaged with international human rights bodies. On 28 January, Eritrea participated in the third cycle of the universal periodic review and presented a country report (A/HRC/WG.6/32/ERI/1). Also in January, Eritrea joined the Human Rights Council, and in March it participated in the fortieth session of the Council. On 11 March, the head of the delegation of Eritrea intervened during the enhanced interactive dialogue on the situation of human rights in Eritrea held by the Council. On 12 and 13 March, that delegation participated in the 125th session of the Human Rights Committee, during which the situation of civil and political rights in Eritrea was examined (CCPR/C/ERI/CO/1). 13. The Special Rapporteur welcomes those developments because they suggest that Eritrea recognizes the central role and core mission of the above-mentioned human rights bodies and acknowledges the importance of participating in those forums. ... Conclusions and benchmarks for progress in improving the situation of human rights
75. The positive momentum for peace and security in the region created expectations in the international community, and within Eritrea, that the Government of Eritrea would implement wider political and institutional reforms. However, ... significant human rights concerns remain unaddressed.”
16. In September 2019 Report “Eritrea: National Service, Exit, and Return” published by the European Asylum Support Office, it was stated as follows:
“In July 2018, Eritrea and Ethiopia signed a peace declaration, after 18 years of a ‘no war, no peace’ situation that had followed the border war of 1998-2000. The two neighbours re-established diplomatic relations, communication and transport channels. ... In November 2018, the UN lifted the sanctions, which had been in place since 2009. On a domestic level, as of August 2019, peace has not yet led to any significant policy changes. ... The open-ended national service has not yet been reformed... there are no indications of changes in terms of conditions, recruitment or policies in national service. Most notably, the unlimited duration of national service remains in place. ...
Exit visa requirements remain in place, making it difficult for many Eritreans to leave the country legally. ... The punishment for desertion from national service, draft evasion, and illegal exit continues to be applied arbitrarily and inconsistently, mostly by military commanders and other representatives of the security forces. Transgressors can be arrested during giffas (round-ups), through searches, when trying to cross the border, or after returning from abroad ... Deserters and draft evaders are reported to be sent to prison, mostly for terms between one and twelve months, during which interrogations and torture may occur. Prison terms for repeated offenders, document forgers and persons who have left the country illegally or have tried to do so are reportedly higher, up to three years. Draft evaders are afterwards sent to military trainings, while military deserters are sent back to their unit. Their commander decides arbitrarily whether to further punish them or reintegrate them into the unit. Deserters from the civilian national service are often transferred to a military unit as a punishment, in addition to time in prison. Persons who have returned from abroad or been deported are reported to be treated similarly to those arrested within Eritrea. Returnees who have paid the 2 % tax and signed the ‘Letter of Regret’ are usually not arrested upon arrival. After the expiry of their privileged status, however, (re)conscription into national service and punishment occur at the discretion of the authorities. No official information is available on the de facto treatment of deserters, draft evaders and persons who leave Eritrea illegally. The information on the respective punishments presented in this report is largely based on anecdotal accounts. Therefore, and because of the arbitrary and inconsistent application of the punishment, the treatment may deviate from it in individual cases. As of August 2019, there are no indications that the end of the ‘no war, no peace’ situation with Ethiopia has led to more leniency when it comes to punishments for the above-mentioned offenses.”
17. Human Rights Watch’s “World Report 2019: Rights Trends in Eritrea” indicated the following findings:
“After decades of near total diplomatic isolation, 2018 was a year of significant change in Eritrea’s relationship with its neighbours. ... Despite these changes, there was no sign of Eritrea ending its severe repression of basic rights. ...
Conscripts [into national service] have long been subject to inhuman and degrading punishment, including torture, without recourse.”
THE LAW
18. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 19. The applicants complained that by ordering their administrative removal to Eritrea and enforcing it the Russian authorities exposed them to a real risk of ill-treatment in violation of Article 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
20. The Government maintained that the applicants had not exhausted available domestic remedies in respect of their complaints under Article 3 of the Convention, since they had not appealed against the decisions not to grant them temporary asylum and the refusals to examine on the merits their refugee status requests. 21. The applicants contested this allegation and reaffirmed that they had exhausted all domestic remedies available to them. They also noted that the Government did not allege that the applicants had failed to exhaust domestic remedies by raising relevant complaints in administrative removal proceedings, and merely considered these complaints to be unsubstantiated. 22. The Court notes that in the case of K.G. v. Russia, cited above, § 28) it had previously established that, while an application for refugee status or temporary asylum does not prevent the authorities from pursuing extradition or expulsion proceedings and adopting final decisions, it de facto bars removal of a person for the period of consideration of an asylum application and judicial review. Given the above finding, temporary asylum proceedings cannot serve as an effective remedy in respect of Article 3 complaints in extradition or expulsion cases, since they have no suspensive effect on the progress of extradition or expulsion proceedings. Conversely, claims concerning a real risk of treatment contrary to Article 3 of the Convention should be raised throughout the extradition or expulsion proceedings in order for the domestic remedies to be exhausted. 23. Therefore, the Court finds that the Government’s objection in respect of non-exhaustion of domestic remedies in temporary asylum proceedings should be dismissed. 24. The Court finally notes that the applicants’ complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. (a) The applicants
25. All the applicants submitted that they were at risk of ill-treatment in their country of origin due to desertion from national service, either military or civilian, or draft evasion, as well as due to their illegal exit from Eritrea. They also claimed that in the event of removal they would be obliged to return to their abandoned national service or would inevitably be drafted, while such service remains de facto indefinite in duration and is normally accompanied by torture. 26. The applicants, except for Ms Tsgewyin, also referred to prior experience of ill-treatment in Eritrea. Ms Lwam, Ms Miryam, Ms Beilul and Ms Tsgewyin submitted that they, as females, faced the risk of being subjected to sexual exploitation upon their return. Mr Haben, Mr Habteab, Mr Tewelde and Mr Idris referred to the risk of ill-treatment in reprisal for expressing criticism in respect of the Eritrean authorities. (b) The Government
27. The Government asserted that the applicants had not adduced convincing arguments or evidence indicating a risk of treatment contrary to Article 3 of the Convention in the event of their removal to Eritrea. They noted the absence of military operations in Eritrea or reports of significant deterioration of the security situation, or consistent practice of gross, flagrant and large-scale violations of human rights in that country. 28. The Government maintained that the circumstances of the cases indicate that the applicants had never intended to regularise their presence in Russia and only planned to access the European Union through its territory; they had not applied for refugee status or temporary asylum until after their apprehension and placement in a detention centre pending removal. (a) General principles
29. The relevant general principles concerning the application of Article 3 have been summarised by the Court in the judgments F.G. v. Sweden ([GC], no. 43611/11, §§ 111-27, ECHR 2016), and J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 77-105, ECHR 2016). 30. The Court reiterates at the outset that Contracting States have the right, as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94). However, it is the Court’s settled case‐law that expulsion or extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if removed, faces a real risk of being subjected to treatment contrary to Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008, and Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161). 31. The existence of a risk of ill-treatment must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion (see F.G. v. Sweden, cited above, § 115). 32. It is for the applicant to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment (see Paposhvili v. Belgium [GC], no. 41738/10, § 186, ECHR 2016, and Trabelsi v. Belgium, no. 140/10, § 130, ECHR 2014 (extracts)). 33. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, §§ 129-32, and F.G. v. Sweden, cited above, § 120). (b) Application of these principles to the present case
34. The Court noted that all the applicants were removed to Eritrea on different dates in January and February 2020, so the existence of a risk of ill‐treatment must be assessed with reference to those facts which were known or ought to have been known to the Contracting State at that time. 35. In the case of M.O. v. Switzerland (cited above, §§ 70-71) the Court concluded that the human rights situation in Eritrea was of grave concern, however, the general human rights situation in Eritrea was not such that it prevented, per se, all removals to Eritrea and that the Court, hence, had to assess whether the applicant’s personal circumstances were such that he or she would face a real risk of treatment contrary to Article 3 of the Convention if removed to Eritrea. 36. Taking into account the recent reports on the situation in Eritrea, the Court notes that, since the last assessment, the human rights situation has remained substantially unchanged (see paragraphs 15-17 above). 37. Having assessed the applicants’ claims in removal proceedings as well as in temporary asylum proceedings, the domestic authorities found that the applicants did not adduce sufficient evidence capable of demonstrating that there were substantial grounds for believing that, upon return to Eritrea, they would be exposed to a real risk of ill-treatment. 38. In this regard the Court notes that the applicants’ submissions before the domestic authorities, as well as before the Court, were not consistent and lacked evidentiary basis. In the first-instance removal proceedings all the applicants chose to give no indication of their alleged fears of ill-treatment in the country of origin and some of them even claimed that they had intended to return voluntarily to Eritrea. On appeal Mr Semere, Mr Garbay, Ms Lwam and Mr Idris only referred to the fact that they belonged to oppressed religious groups, while they raised no such allegations before the Court. Mr Robiel failed to submit his statement of appeal altogether. The remainder of the applicants managed to raise explicitly on appeal, with at least some references to international reports, only one of their claims before the Court, namely the alleged ill-treatment of national service deserters and draft evaders. 39. Four of the applicants, Mr Tewelde, Ms Miryam, Ms Beilul and Ms Tsgewyin, alleged that they had been performing the military part of national service or had been eligible for conscription. However, none of them presented any documentary evidence to support their allegations. Those who claimed to be military service deserters did not provide any consistent and plausible narrative of their conscription, the service itself and their subsequent escape. Ms Tsgewyin stated that she had not been conscripted into national service due to having an infant, that she had been a housewife prior to her departure from Eritrea and thus she merely feared, with no proven grounds, being conscripted into military service and ill-treated upon her return. The submissions of Mr Tewelde were inconsistent overall, since before the Court he claimed to be a military service deserter, while in removal proceedings he alleged that he had never been conscripted and only feared future conscription. 40. The remaining applicants, Mr Haben and Mr Habteab, submitted that they had been performing their duties within the civilian part of national service, as a state-owned transportation company official and a judge, respectively. They allegedly feared ill-treatment for desertion upon their return, however, on the domestic level they referred only to reports relating to the military part of national service and did not provide the authorities with any sources explicitly indicating that the deserters or draft evaders from the civilian part are under any comparable risk. 41. The claims concerning prior experience of ill-treatment and possible sexual exploitation of the female applicants were never brought to the attention of the domestic authorities, for unknown reasons. The Court also notes that all the applicants alleged that they had been obliged to flee from Eritrea, avoiding national service, and in some cases even breaking out of jail. However, as established by the national courts in temporary asylum proceedings, they had all arrived in Sudan with valid visas. 42. In these circumstances, the Court sees no reason to depart from the national authorities’ conclusions in the applicants’ cases. The applicants failed to present a sufficiently proven and consistent narrative of their individual circumstances justifying the existence of a risk of ill-treatment and submitted no persuasive arguments to rebut concerns about the lack of credibility of their claims. 43. The Court finally notes that all the applicants avoided transfer to Eritrea and currently reside in Ethiopia. There is nothing to indicate that they remain under any risk of removal to Eritrea at the moment. 44. The foregoing considerations are sufficient for the Court to conclude that the removal of the applicants to Eritrea was not in violation of Article 3 of the Convention. 45. The applicants also complained that their detention pending removal was incompatible with the Convention requirement in terms of the foreseeability of the length of such detention and that they had not had access to effective judicial review of detention. They relied on Article 5 § 1 (f) and Article 5 § 4 of the Convention. The relevant parts of Article 5 of the Convention 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. ...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful ...”
46. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 47. The applicants submitted that the domestic law does not contain any legal provisions governing the length of detention pending removal, but merely states that the removal order should be executed within two years. No specific time-limits were set in the domestic judgements ordering the applicants’ detention pending removal. The applicants, therefore, did not have at their disposal any effective procedure for judicial review of the lawfulness of their detention. 48. The Government contested the applicants’ claims, holding that their placement in detention had been in accordance with the judgments of the national courts, which had taken into account all the available evidence. Moreover, the Government pointed to the fact that the applicants had not used the opportunity to challenge the detention orders when they had appealed against the domestic judgments ordering their administrative removal. 49. The Court reiterates that any deprivation of liberty under the second limb of Article 5 § 1 (f) of the Convention will only be justified for as long as deportation or extradition proceedings are in progress. If such proceedings are not carried out promptly, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (see L.M. and Others v. Russia, nos. 40081/14 and 2 others, § 146, 15 October 2015). The domestic authorities have an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified (see Al Husin v. Bosnia and Herzegovina (no. 2), no. 10112/16, § 98, 25 June 2019). 50. Having regard to the information submitted by the parties, the Court finds that at first all the applicants were detained with a view to being removed, and their detention was presumably carried out initially in good faith and in compliance with Article 5 § 1 (f) of the Convention. However, the length of the applicants’ detention, as summarised in the relevant part of the Appendix, was from fourteen to sixteen months and the Government submitted no information about any actions taken in pursuit of the applicants’ administrative removal during these periods. Accordingly, in the Court’s view, the length of the applicants’ detention was not demonstrably related to the purpose pursued. 51. Furthermore, as regards the applicants’ complaint under Article 5 § 4 of the Convention concerning the lack of an effective procedure for review of detention, the Court notes that nothing in the available materials indicates that the applicants’ continued detention had been periodically reviewed or that they had indeed access to any procedure for such review. 52. Accordingly, the Court concludes that there has been a violation of Article 5 § 1 (f) and Article 5 § 4 of the Convention. 53. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
54. The applicants claimed 15,000 euros each in respect of non‐pecuniary damage sustained as a result of their removal to Eritrea, as well as their unlawful and excessively lengthy detention pending administrative removal and lack of effective judicial review of detention. 55. Given the above findings of no violation of Article 3 of the Convention and a violation of Article 5 § 1 (f) and Article 5 § 4 of the Convention the Court, making its assessment on an equitable basis, awards the applicants the sums indicated in the Appendix, plus any tax that may be chargeable on these amounts. The payments should be made to the applicants’ representatives, to be held in trust for the applicants. 56. The applicants also claimed costs and expenses incurred before the national courts and before the Court by their representatives, Ms Trenina, Mr Zharinov and Ms Davidyan. 57. The Government drew the Court’s attention to the fact that the applicants did not submit copies of any legal services agreements concluded between them and their representatives. 58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present cases the applicants did not submit documents showing that they had paid or were under a legal obligation to pay the fees charged by their representatives. The Court therefore finds no basis on which to accept that the costs and expenses claimed by the applicants have actually been incurred by them (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-73, 28 November 2017). 59. Therefore, the Court rejects the applicants’ claims for costs and expenses in full. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the State is to pay, within three months, the sums indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, awarded in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
Done in English, and notified in writing on 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Peeter RoosmaDeputy Registrar President

APPENDIX
List of cases
No. Application no. Case name

Lodged on
ApplicantYear of BirthNationality
Alleged occupation in the country of origin

Date of arrival in Russia
Removal Proceedings
Detention Pending Removal
Refugee Status/Temporary Asylum Proceedings
Departure
Just satisfaction award (in euros)
1. 48352/19

Tewelde and Others v. Russia

15/10/2019
Ykalo Solomon TEWELDE1995Eritrean
Military service
31 August 2018

Tesfamiryam Tekle MIRYAM1992Eritrean
Military service
22 June 2018

Brhane Habtemichael BEILUL1997Eritrean
Military service
4 July 2018

Mohammednur Siyed IDRIS1990Eritrean
Immigration office official

25 June 2018

Mr TEWELDE, Ms MIRYAM, Ms BEILUL

21 November 2018 –ordered by the Pechorskiy District Court of Pskov Region
28 December 2018 – upheld by the Pskov Regional Court

Mr IDRIS
24 October 2018 – ordered by the Pskov Town Court of Pskov Region
19 November 2018 – upheld by the Pskov Regional Court

Mr TEWELDE21 November 2018 – 30 January 2020
(14 months, 9 days)

Ms MIRYAM
21 November 2018 – 18 January 2020
(13 months, 28 days)

Ms BEILUL
21 November 2018 – 21 January 2020
(14 months)

Mr IDRIS
24 October 2018 – 25 January 2020
(15 months, 1 day)

22 March 2019, 22 March 2019, 25 March 2019, 18 March 2019 respectively – refusals to grant temporary asylum
6 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

15 April 2019, 17 April 2019, 17 April 2019 and 15 April 2019 respectively – refusal to accept the applicants’ requests for refugee status for examination on merits
22 July 2019 - upheld by Pskov Town Court of Pskov Region

Mr TEWELDE, Ms BEILUL, Mr IDRIS
28 November 2019 – upheld by upheld by Pskov Regional Court

Ms MIRYAM
31 October 2019 - upheld by Pskov Regional Court

On 30 January 2020, 18 January 2020, 21 January 2020, 25 January 2020 respectively removal orders in respect of the applicants were executed. The applicants managed to escape during their flight connection in Addis-Ababa and now reside in Ethiopia

Mr TEWELDE
EUR 4,700 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Ms MIRYAM, Ms BEILUL
EUR 4,400 each in respect of the non-pecuniary damage incurred in connection with a violation of their rights under Article 5 §§ 1 and 4 of the Convention

Mr IDRIS
EUR 4,900 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

2. 48496/19

Haben and Habteab v. Russia

15/10/2019
Goitom Belay HABEN1985Eritrean
State-owned transportation company official
13 July 2018Welday Teklehaymanot HABTEAB1985Eritrean
Judge
13 July 2018
21 November 2018 – ordered by the Pechorskiy District Court of Pskov Region

28 December 2018 – upheld by the Pskov Regional Court

Mr HABEN
21 November 2018 – 23 January 2020
(14 months, 2 days)

Mr HABTEAB
21 November 2018 – 4 February 2020
(14 months, 14 days)

18 March 2019 and 25 March 2019 respectively – refusals to grant temporary asylum
6 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

3 April 2019 and 15 April 2019 respectively – refusals to accept the applicants’ requests for refugee status for examination on merits
22 July 2019 – upheld by Pskov Town Court of Pskov Region
28 November 2019 and 14 November 2019 respectively – upheld by Pskov Regional Court
23 January 2020 and 4 February 2020 respectively removal orders in respect of the applicants were executed
EUR 4,700 each in respect of non-pecuniary damage incurred in connection with a violation of their rights under Article 5 §§ 1 and 4 of the Convention
3. 48720/19

Tsgewyin v. Russia

15/10/2019
Zereit Okibamichael TSGEWYIN1994Eritrean
Housewife
11 July 2018
21 November 2018 – ordered by the Pechorskiy District Court of Pskov Region
28 December 2018 – upheld by the Pskov Regional Court

21 November 2018 – 11 January 2020
(13 months, 21 days)
22 March 2019 – refusal to grant temporary asylum
10 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

17 April 2019 – refusal to accept the applicant’s request for refugee status for examination on merits
22 July 2019 – upheld by Pskov Town Court of Pskov Region
28 November 2019 – upheld by Pskov Regional Court
On 11 January 2020 removal order in respect of the applicant was executed. The applicant managed to escape during her flight connection in Addis-Ababa and now resides in Ethiopia

EUR 4,400 in respect of the non-pecuniary damage incurred in connection with a violation of her rights under Article 5 §§ 1 and 4 of the Convention

4. 48773/19

Robiel and Others v. Russia

15/10/2019
Teklit Abraham ROBIEL1987MoscowEritrean
Teacher
26 June 2018
Temnewo Mehari SEMERE1986Eritrean
Accountant
25 June 2018

Kidane Teklehaymanot GARBAY1994Eritrean
Military service
2 June 2018
Habtetsion Veldeyhannes LWAM1991Eritrean
Military service

25 June 2018
24 October 2018 – ordered by the Pskov Town Court of Pskov Region
19 November 2018 – upheld by the Pskov Regional Court

Mr ROBIEL
24 October 2018 – 1 February 2020
(15 months, 8 days)

Mr SEMERE
24 October 2018 – 14 January 2020
(14 months, 21 days)

Mr GARBAY
24 October 2018 – 28 January 2020
(15 months, 4 days)
Ms LWAM
24 October 2018 – 16 January 2020
(14 months, 23 days)

15 March 2019, 11 March 2019, 15 March 2019, 12 March 2019 respectively – refusal to grant temporary asylum
10 June 2019 – upheld by Pskov Town Court of Pskov Region
19 September 2019 – upheld by Pskov Regional Court

2 April 2019, 2 April 2019, 15 April 2019, 3 April 2019 respectively – refusal to accept the applicants’ requests for refugee status for examination on merits
22 July 2019 - upheld by Pskov Town Court of Pskov Region

Mr GARBAY, Ms LWAM
28 November 2019 –upheld by Pskov Regional Court

Mr ROBIEL, Mr SEMERE
31 October 2019 - upheld by Pskov Regional Court

On 1 February 2020, 14 January 2020, 28 January 2020 and 16 January 2020 respectively
removal orders in respect of the applicants were executed. The applicants managed to escape during their flight connection in Addis-Ababa and now reside in Ethiopia
Mr ROBIEL
EUR 4,900 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Mr SEMERE
EUR 4,700 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Mr GARBAY
EUR 4,900 in respect of the non-pecuniary damage incurred in connection with a violation of his rights under Article 5 §§ 1 and 4 of the Convention

Ms LWAM
EUR 4,700 in respect of the non-pecuniary damage incurred in connection with a violation of her rights under Article 5 §§ 1 and 4 of the Convention