TrustHLT/LaCour huggingface dataset:
GR1 (Government): but that his application was not persist.
GR1 (Government): There is no suggestion that he faced any oppression in Cuba also.
GR1 (Government): Then apparently, he decided to travel to Ecuador now.
GR1 (Government): Again, he claims that he applied for asylum, but that his application wasn't persist.
GR1 (Government): Eventually, he was sent back to Cuba, and Cuba sent him to Russia.
GR1 (Government): Facing immigration obstacles in Russia, Mr. Am also alighted on the idea of claiming asylum in Russia.
GR1 (Government): Again, the government respectfully submit that the Russian authorities were quite plainly entitled to determine that Mr. Am was not a genuine refugee.
GR1 (Government): He was not coming from any situation of oppression.
GR1 (Government): He failed to make out any case of political oppression at any stage after his arrival and naturalization in Yemen.
GR1 (Government): I turn now to the case of Mr. Yessen finally.
GR1 (Government): He is national of Syria.
GR1 (Government): He has traveled occasionally to Russia to do business since 2004.
GR1 (Government): In 2011, he left for Lebanon, where he allegedly applied for asylum.
GR1 (Government): Having received no reply, he returned to Syria.
GR1 (Government): After that, he traveled several times to Lebanon from 2010 to 2011, and from 2013 to 2014.
GR1 (Government): He doesn't say that he tried to apply for shelter in Lebanon, which houses the biggest camp of refugees from Syria.
GR1 (Government): He frequently journeys back to Syria suggests that there would have been little basis for him to do so.
GR1 (Government): Finally, Mr. Yessen traveled to Russia.
GR1 (Government): He didn't have a proper visa and was found guilty of breach of immigration rules, and his expulsion was also ordered.
GR1 (Government): Only at this point did he light on the idea of claiming assignment in Russia.
GR1 (Government): Mr. Yessen's application was refused,
GR1 (Government): and Mr. Yessen didn't lodge any appeal on that.
GR1 (Government): Instead, he simply stayed in Russia illegally.
GR1 (Government): Eventually, a further order was made for Mr. Yessen
GR1 (Government): to control unassisted departure.
GR1 (Government): Again, he didn't challenge the decision, and he traveled to Turkey and then to Lebanon, but both countries refused him entry.
GR1 (Government): Even so, it appears that he didn't apply for asylum in either places.
GR1 (Government): And instead, he was returned to Russia, and he claimed asylum there.
GR1 (Government): Once more, therefore, the Russian authorities were entitled to take the view that Mr. Yessen was not
GR1 (Government): a genuine refugee.
GR1 (Government): His frequent visits to Syria contradicts any suggestion that he faced any particular persecution there.
GR1 (Government): His failure to seek or to press for refugee status elsewhere is also inconsistent with any suggestion that he was fleeing persecution.
GR1 (Government): Quite simply, he made his claims to refugee status as a last resort when he ran out of options in Russia.
GR1 (Government): All of these cases under consideration, therefore, have some common factors.
GR1 (Government): In all cases except for Mr. Z.A., the applicants,
GR1 (Government): when crossing the territory of Russia for the first time, had valid visas, business or transit, and didn't immediately claim asylum.
GR1 (Government): In each case, they had come through states where they could have applied for asylum and where, in any event, they faced no persecution.
GR1 (Government): In each case, the applicant failed to make out any convincing case of anticipated persecution in their country of nationality.
GR1 (Government): In each case, they were refused entry to Russia at Moscow Sheremetyevo Airport, but they were in no way detained.
GR1 (Government): They could return home or fly to any country that would accept them.
GR1 (Government): It is said on the applicant's behalf that they had run out of money and couldn't afford to fly elsewhere.
GR1 (Government): That may well have been the result of their own desperation in flying around the world without proper visa and financial arrangements.
GR1 (Government): However, their thoughtlessness doesn't cast upon Russian government the burden of looking after them.
GR1 (Government): They were free to apply to the diplomatic representatives of their home countries in Moscow for whatever support these countries may provide in such circumstances, but there is no evidence that they did so.
GR1 (Government): Please let me note that also according to Annex 9 to the Convention of International Civil Aviation, custody and care of the applicants is the responsibility of an aircraft operator, and it was the aircraft operator who took them to the airplane abroad without proper travel documents to enter Russia, and to whom also the applicants could have applied for support.
GR1 (Government): Moreover, confinement to the transit zone where a person has brought themselves by their own actions doesn't amount to detention by a state in breach of Article 5.
GR1 (Government): Any other conclusion would totally undermine the sovereign prerogative of the states to control their own borders and ensure security.
GR1 (Government): That would be a very grave step indeed when it would be likely to prompt measures that would prevent even genuine refugees from boarding a plane in another state for fear of an obligation to admit anyone arriving in a transit zone.
GR1 (Government): And moreover, as it was correctly pointed by the applicant side in the morning hearings, neither the Refugee Convention nor the Convention on the Human Rights provide for a right to enter the state itself.
GR1 (Government): According to the court's case law, the deprivation of liberty under Article 5 contains both objective and subjective elements.
GR1 (Government): An objective element means that a person is held in a particular restricted space for a considerably long time.
GR1 (Government): Relevant objective factors include the possibility to leave the restricted area, the degree of supervision and control over the person's movements, the extent of isolation, and the availability of social contacts there.
GR1 (Government): A subjective element presumes that the person has not validly consented to the confinement in question.
GR1 (Government): It is therefore unreasonable to come to any conclusions about the deprivation of liberty solely on the ground of subjective criterion.
GR1 (Government): Otherwise, it would lead to such an absurd situations when a person whose flight or train was delayed or canceled could claim to be deprived of his or her liberty on this account that he or she voluntarily consented to keep on waiting at the airport or a railway station.
GR1 (Government): In fact, it is quite clear that these applicants never lost their liberty by any objective criterion according to the court's case law.
GR1 (Government): They were free to depart at any time as necessary with the assistance of their home states.
GR1 (Government): They were not held in any restricted space.
GR1 (Government): They were never deprived of human interaction.
GR1 (Government): They were not treated in any cruel way at all.
GR1 (Government): Objectively, therefore, the applicants were free.
GR1 (Government): They had access to shops, cafes, hotel with facilities there.
GR1 (Government): They were visited by representatives of the UN High Commission for Refugees and communicated with the lawyers.
GR1 (Government): To the extent that subjectively they felt themselves confined, that was only because of their own misconduct.
GR1 (Government): They must be taken to have consented on the court's subjective test to the situation in which they found themselves.
GR1 (Government): In any event, the Russian authorities didn't confine the applicants at all.
GR1 (Government): As was confirmed by the Office of the UN High Commissioner for Refugees in its written submissions on the present case, Russian border control doesn't make a decision to keep a person in the transit zone.
GR1 (Government): It simply does not allow the person to cross the border and let the person inland.
GR1 (Government): Further, the restriction of the applicant's freedom of movement doesn't fall under Article 2 of Protocol 4 since it is applicable only to persons lawfully within the territory of a state.
GR1 (Government): However, the applicant's status was yet to be verified.
GR1 (Government): It follows that a request for asylum doesn't create a right to enter the state because the request only begins a process of verification.
GR1 (Government): The perpetrated seizure of the applicant's documents is a part of this process of such verification and doesn't constitute detention.
GR1 (Government): As soon as the applicants decided to leave Russia, they received their documents and nothing precluded them from doing so.
GR1 (Government): The fact that two of the applicants eventually safely returned to their home countries also testifies that not only could they leave for third countries, but also to go back to their homes.
GR1 (Government): Again, any other result will be absurd.
GR1 (Government): Please imagine that an alien need not follow ordinary immigration procedures.
GR1 (Government): He needs only file an application for refugee status, even a completely fake one, and gain admission to the territory of Russian Federation or in any other member state and require housing, protection, and financial support.
GR1 (Government): When a person voluntarily applies for admission to the jurisdiction of the state, then person consents to the process of verification of his or her status under the law of this host state.
GR1 (Government): It can be said that on this ground, the person is detained.
GR1 (Government): The confinement in a transit zone is therefore not a limitation of freedom of movement.
GR1 (Government): It is clear choice of the applicants, and it could only be a limitation if it were involuntary.
GR1 (Government): Moreover, before finding a restriction of liberty, it is necessary to consider the nature of limitation of restriction.
GR1 (Government): Logic indicates that there can only be a limitation of restriction where there was a pre-existing liberty.
GR1 (Government): The refugee conversion, once again, provides no liberty to enter the territory of a state before the process of verification is complete.
GR1 (Government): It provides no such right where an applicant doesn't arrive directly from the state where they were persecuted.
GR1 (Government): It provides no such right to people who were not under immediate threat and who simply wanted to choose a better life in Europe.
GR1 (Government): As to the length of time that the applicants spent in the transit zone, it is appropriate to consider two things.
GR1 (Government): First is the clear lack of legal grounds for granting of asylum for applicants in Russia, the fact which they should have known from the very beginning from the qualified lawyers who advised them.
GR1 (Government): The second is, therefore, the series of hopeless domestic appeals on which they, by their own choice, embarked.
GR1 (Government): That extended their time in the transit zone until they eventually left.
GR1 (Government): All of this raises a fundamental point of principle.
GR1 (Government): It wasn't being argued on behalf of any of the applicants that they were in any way unable to make choices as experienced adults, human beings, and also assisted by the lawyers.
GR1 (Government): The Refugee Convention, as well as Convention of the Protection of Human Rights and Fundamental Freedoms, do not protect them from the consequences of their own wrong choices.
GR1 (Government): They are not entitled to tear down international and domestic immigration law because they do not like the consequences of the choices they have made.
GR1 (Government): In conclusion, the government respectfully asks the Grand Chamber to reconsider the Chamber's judgment and to decide that there are no violations of the Convention in the present case.
GR1 (Government): Otherwise, any person who doesn't wish to return to his home country for any reason has a golden opportunity now.
GR1 (Government): They need only turn up unannounced in the transit zone, get stuck there, protest their hardships, and appeal to allege Convention rights in this court.
GR1 (Government): The Convention would be a dead letter, and the sovereign right of the state to control their borders would be gone.
GR1 (Government): That is not a sustainable position in law or in terms of the political consent of signatory states.
Guido Raimondi (JudgeP): Thank you very much, Mr. Galperin, and I thank both parties for their submissions.
Guido Raimondi (JudgeP): And now I invite my colleagues, the judges of the Grand Chamber who wish to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): Are there any questions?
Guido Raimondi (JudgeP): Mr. Lemmens, please.
Paul Lemmens (Judge): I have a question, I think, primarily for the government, but the applicants can also, of course, reply to it.
Paul Lemmens (Judge): The government said that deprivation of liberty is characterized by a number of objective and subjective elements.
Paul Lemmens (Judge): And I would like to link that to an element that has been invoked by the applicants, namely the fact that their passports were retained.
Paul Lemmens (Judge): You did not speak about that when you were discussing the elements, but then I would like to ask you, is this an element that is relevant?
Paul Lemmens (Judge): And if so, would it be possible to explain to us a bit more about the rules that govern the taking and the returning of passports?
Paul Lemmens (Judge): Which are the categories of persons of which the passports can be taken, and what are the circumstances in which passports are returned to them?
Guido Raimondi (JudgeP): Judge Dedov, please.
Dmitry Dedov (Judge): My question follows Judge Lehman's question, whether the passport was claimed back by the applicants and whether the authorities refused to do that.
Dmitry Dedov (Judge): I also would like to clarify that.
Dmitry Dedov (Judge): I would thank both parties for their very valuable information was given to us regarding the domestic law, especially.
Dmitry Dedov (Judge): My question is about the domestic law.
Dmitry Dedov (Judge): The applicants' representative mentioned about the 24 hours rule when the person, when he illegally entered the territory of the Russian Federation.
Dmitry Dedov (Judge): He should apply for this.
Dmitry Dedov (Judge): But isn't you apply this rule or refuse to apply this rule for the present case in a mechanical way, I would say, or formalistically.
Dmitry Dedov (Judge): I would ask you what would be the consequences that if the applicants would not comply with this rule, would not apply within 24 hours.
Dmitry Dedov (Judge): Whether we can use this provision of the domestic law in this situation, because they were in the urgent situation, for example, as a criterion which could be used.
Dmitry Dedov (Judge): The second question is about the difference.
Dmitry Dedov (Judge): Would you provide the example that the Syrian family was granted asylum and provided the opportunity to have access to social services and so on, which was provided by the Russian authorities in 2015.
Dmitry Dedov (Judge): But can you accept that there is a difference between the situations of the applicants in this case and those Syrian family?
Dmitry Dedov (Judge): And my question is about whether the applicants arrived in the Russian border with their families or not.
Dmitry Dedov (Judge): And the last question is about the application in the third countries.
Dmitry Dedov (Judge): Both parties mentioned that.
Dmitry Dedov (Judge): And my question is whether there is a requirement under the domestic asylum procedure, for example, when the person apply for asylum, should the authorities question about his previous experience and application in third countries, whether the applicant should provide any documents.
Dmitry Dedov (Judge): And if not, if the documents are not provided, whether this failure to inform the country authorities about the third country's application, it leads to the delay in examination of the application of the asylum seeker in that case, in this case, in the Russian Federation.
Dmitry Dedov (Judge): So I mean, the question is whether there is, there are any circumstances that could prove that the delay was also provoked by the applicants themselves.
Guido Raimondi (JudgeP): Yes, Judge Kjølbro, please.
Jon Fridrik Kjølbro (Judge): I also have some questions to the government, but the applicants' representative is most welcome to also address them if they so wish.
Jon Fridrik Kjølbro (Judge): The first question is also a follow-up to the question by Judge Lemmens and Dedov concerning the passports.
Jon Fridrik Kjølbro (Judge): According to the applicants, the Russian authorities seized their passports.
Jon Fridrik Kjølbro (Judge): In their observations, the government have argued to the contrary.
Jon Fridrik Kjølbro (Judge): Therefore, my question is, were the applicants' passports seized at any time by the authorities?
Jon Fridrik Kjølbro (Judge): And if so, what was the legal basis for doing so?
Jon Fridrik Kjølbro (Judge): And what was the purpose of the measure?
Jon Fridrik Kjølbro (Judge): More specifically, was it a precautious measure to ensure the necessary traveling documents at the moment the applicants would have to leave Russian territory?
Jon Fridrik Kjølbro (Judge): Furthermore, did the seizure in practice prevent the applicants from leaving the country in case they should so have wished to do?
Jon Fridrik Kjølbro (Judge): My second question to the government concerns the distinction between genuine asylum seekers and ordinary migrants, which is one of the core arguments of the government.
Jon Fridrik Kjølbro (Judge): And the government argues that the applicants were accepted for assessment under marriage and were dismissed after rather lengthy proceedings.
Jon Fridrik Kjølbro (Judge): Therefore, in view of the government, can the state's obligation under Article 3 and under Article 5 be depending upon the outcome of the asylum proceedings, more specifically as regards material conditions for the stay in the airport zone?
Jon Fridrik Kjølbro (Judge): The government is arguing that it had no positive obligations under Article 3 to meet the applicants' basic needs during this period as they were not genuine asylum seekers.
Jon Fridrik Kjølbro (Judge): However, whether they were entitled to international protection or not was exactly what Russian authorities had undertaken to assess.
Jon Fridrik Kjølbro (Judge): So once again, my question is, can the state's obligations towards asylum seekers depend upon the outcome of the asylum procedure?
Jon Fridrik Kjølbro (Judge): My last question also to the government concerns the open door argument.
Jon Fridrik Kjølbro (Judge): Under Article 5, the government is emphasizing the fact that the applicants were free to leave Russia at any time and that nothing prevented them from leaving Russian territory earlier.
Jon Fridrik Kjølbro (Judge): In other words, the government is invoking an open door argument.
Jon Fridrik Kjølbro (Judge): However, my question is, how realistic is this suggestion in view of the fact that the applicants claimed that they risked ill treatment in a country of origin, a claim which the Russian authorities accepted to examine under marriage, and apparently no other country was willing to accept them?
Jon Fridrik Kjølbro (Judge): Furthermore, no steps to facilitate such an acceptance would appear to have been undertaken by Russian authorities.
Guido Raimondi (JudgeP): If there are no more questions, the court will now withdraw for 20 minutes, following which the parties will be able to submit brief observations in reply to each other's submissions and reply to questions from the judges.
Guido Raimondi (JudgeP): Please be seated. The hearing is resumed. And now I call Mrs. Davidyan. Please, you have the floor.
AP2 (Applicant): I would like to thank all the judges for the questions that help us elaborate the case.
AP2 (Applicant): And I will start with responding to the government's claim that the arguments about the risk of persecutions of Mr.
AP2 (Applicant): Zia based on his religion were allegedly not claimed before.
AP2 (Applicant): But that is not true.
AP2 (Applicant): These arguments can be found in our application.
AP2 (Applicant): And it can be found in the decision of the Federal Migration Office refusing the applicant's appeal against refusal to grant him asylum.
AP2 (Applicant): Turning to the questions of the court, I will start with the question which all the judges asked about the passports.
AP2 (Applicant): I will start by saying that there is no legal basis for retention of passports by the border guard service.
AP2 (Applicant): And there were no formal decisions made on that.
AP2 (Applicant): However, according to the Refugees Act, the migration authorities are supposed to retain the passports in return to the examination certificates when the applicants are applying for the asylum.
AP2 (Applicant): Therefore, the applicants in this case were not trying to request their passports back.
AP2 (Applicant): And as their status was established as asylum seekers, they were asking to provide them with the examination certificates rather than return their passports.
AP2 (Applicant): And also, I would like to stress once again that the applicants were having a hard time finding a country to live for.
AP2 (Applicant): As we already mentioned this, it took an intensive effort with the help of the UNHCR to find countries that would agree to accept the applicants.
AP2 (Applicant): Therefore, having the passport on hand was a secondary question for them.
AP2 (Applicant): They were trying to first find a destination.
AP2 (Applicant): And they then would have asked for their passports to return, which the passports were returned when the applicants were ready to leave for another country, when they already found the country that was ready to accept them.
AP2 (Applicant): But as we already mentioned, it was done with the help of the UNHCR.
AP2 (Applicant): And the passport was only handed to the aircraft crew member, not to the applicants themselves.
AP2 (Applicant): Turning to the question of Judge Dyadov as regards the 24 hours time limit.
AP2 (Applicant): So this limit by law is provided for lodging and asylum application only for those applicants which were forced to illegally cross the border.
AP2 (Applicant): And therefore, this rule is not applicable to the present case because the applicants did not cross the border at all, not legally, not illegally.
AP2 (Applicant): They were in the transit zone, and they were not able to cross the border.
AP2 (Applicant): If hypothetically, one does violate this rule, crosses the border illegally, and does violate the rule of applying for asylum within 24 hours, there is a criminal prosecution provided for this violation.
AP2 (Applicant): But it is criminal prosecution for the fact of illegally crossing the border.
AP2 (Applicant): And in terms of not applying for asylum within 24 hours, it would be a basis for the migration authorities to refuse to consider the application for asylum on the merits.
AP2 (Applicant): So such application would have been declared inadmissible, which, as we know, has not happened in this case.
AP2 (Applicant): And all the applicants' applications were considered on the merits.
AP2 (Applicant): As regards the question on the Syrian family by Judge Dyadov, what was the difference between the case with the Syrian family that was allowed to enter the country and the present case, it is obvious for us that the difference was in the public perception of the case.
AP2 (Applicant): The Syrian family did have minor kids with them, and there was a public response to the coverage of the story in the media.
AP2 (Applicant): And therefore, this family was allowed not to stay in the appalling conditions of the transit zone.
AP2 (Applicant): However, the law does not provide any difference for cases which involve or don't involve minor kids.