L.M. AND OTHERS v. RUSSIA JUDGMENT
33
141. The Court reiterates that, since its Azimov judgment, which
concerned a similar complaint (cited above, § 153), it has found a violation
of Article 5 § 4 in a number of cases against Russia on account of the
absence of any domestic legal provision which could have allowed an
applicant to bring proceedings for a judicial review of his detention pending
expulsion (see Kim, §§ 39-43, and Rakhimov, §§ 148-50, both cited above;
Akram Karimov v. Russia, no. 62892/12, §§ 199-204, 28 May 2014; and
also Egamberdiyev, cited above, § 64). In the Kim case, the Government
acknowledged a violation of Article 5 § 4 and, having regard to the
recurrent nature of the violation, the Court directed that the Russian
authorities should “secure in [their] 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” (cited above, § 71).
142. As in the above cases, the applicants in the present case did not
have at their disposal a procedure for a judicial review of the lawfulness of
their detention. Accordingly, the Court finds that there has been a violation
of Article 5 § 4 of the Convention in respect of all three of them.
2. Compliance with Article 5 § 1 (f) of the Convention
(a) The parties’ submissions
143. The Government disputed the allegations. They were of the opinion
that since the expulsion order remained valid, but was only temporarily
stopped through the application of interim measures by the Court, the
authorities still had lawful grounds to detain the applicants pending
expulsion. They pointed out that the applicants’ illegal residence in Russia
was weighted towards maintaining detention as a measure to ensure
compliance with the domestic court order. They also pointed out that the
relevant provisions of the Code of Administrative Offences did not allow
for another measure of restraint, and that there were therefore no grounds
for the applicants’ release while the expulsion order remained in force (see
paragraph 62 above). The Government were of the opinion that while no
time-limit for the applicants’ detention had been stipulated, the maximum
term of enforcement of an administrative penalty was two years. The
applicants were able to seek a supervisory review of the expulsion and
ensuing detention orders if there was a significant change in their
circumstances.
144. The applicants stressed that the court decisions did not stipulate the
maximum length of this detention. Other than the requirement that the
expulsion order be executed within the two-year time-limit, the Code of
Administrative Offences did not contain any provisions governing the
length of detention pending expulsion, and therefore lacked legal certainty.
Moreover, there was a conflict between the position of the Federal Bailiff
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