14
KIM v. RUSSIA JUDGMENT
71. Thus, the Court considers that the respondent State must above all,
through appropriate legal and/or other measures, secure in its domestic legal
order a mechanism which allows individuals to institute proceedings for the
examination of the lawfulness of their detention pending removal in the
light of the developments in the removal proceedings. The Court reiterates
that although it is not always necessary that an Article 5 § 4 procedure be
attended by the same guarantees as those required under Article 6 for
criminal or civil litigation, it must have a judicial character and provide
guarantees appropriate to the type of deprivation of liberty in question (see
A. and Others v. the United Kingdom, cited above, § 203, and Idalov
v. Russia [GC], no. 5826/03, § 161, 22 May 2012).
72. The Court has also found a violation of Article 5 § 1 of the
Convention on account of the unreasonable duration of the applicant’s
detention. Accordingly, it recommends that the respondent State envisage
taking the necessary general measures to limit detention periods so that they
remain connected to the ground of detention applicable in an immigration
context (see paragraph 55 above, Suso Musa v. Malta, no. 42337/12, § 123,
23 July 2013, and the Constitutional Court’s decision no. 6-P cited in
paragraph 25 above).
B. Remedial measures in respect of the applicant
73. The Court further notes that, in addition to being stateless, the
applicant appears to have no fixed residence and no identity documents. The
Court is therefore concerned that following his release, the applicant’s
situation has remained irregular from the standpoint of Russian immigration
law. He thus risks exposure to a new round of prosecution under Article
18.8 of the Code of Administrative Offences, cited in paragraph 23 above.
74. The Court is therefore convinced that it is incumbent upon the
Russian Government to avail itself of the necessary tools and procedures in
order to prevent the applicant from being re-arrested and put in detention for
the offences resulting from his status of a stateless person. Given the variety
of means available to achieve this aim and the nature of the issues involved,
the Committee of Ministers is better placed than the Court to assess the
specific individual measures to be taken. It should thus be left to the
Committee of Ministers to supervise, on the basis of the information
provided by the respondent State and with due regard to the applicant’s
evolving situation, the adoption of such measures that are feasible, timely,
adequate and sufficient to ensure the maximum possible reparation for the
violations found by the Court (see Savriddin Dzhurayev v. Russia,
no. 71386/10, § 255, ECHR 2013 (extracts)).