Human Rights Defenders

27 July 2020

Svetlana Gannushkina, head of Memorial Human Rights Centre’s Migration and Law Network, head of the Civic Assistance Committee, and a laureate of the Moscow Helsinki Group Prize, writes about the situation of people held in special detention centres during the Coronavirus pandemic.

Source: Moscow Helsinki Group [original source: Адвокатская газета]

Russia’s borders have been closed since March 2020 due to the COVID-19 pandemic, like those of many other countries. In various regions across Russia, hundreds of thousands of migrant workers have been left in a state of uncertainty. Most of them have lost their work, and along with it their ability to help their families back in their home countries – and even their ability to provide for themselves.

Those in the worst situation are migrants (foreigners and stateless persons) in Centres for the Temporary Detention of Foreign Citizens (CTDFC). In Moscow and St. Petersburg, these centres were overcrowded when the pandemic broke out. In Krasnoye Selo, in Leningrad region, a CTDFC designed to hold 365 people was holding 445 when the borders closed. In St. Petersburg, due to self-isolation regulations, applications for release from the CTDFC that were filed in the second half of March were not considered until the beginning of June.

The situation was aggravated by how difficult it is to comply with sanitary standards in these centres. On top of this, there’s a risk that the migrants could get infected and spread the disease outside the facility through their interactions with staff.

Another risk arises when foreigners are placed in a CTDFC after serving a sentence in a Russian penal colony where other convicts have been diagnosed with COVID-19. The issue is that foreigners who have served their sentences are generally not released; instead, local migration authorities decide to deport them to their home country and send them directly to a CTDFC prior to deportation.

On March 31, 2020, the Office of the United Nations High Commissioner for Human Rights, the International Organization for Migration, the United Nations High Commissioner for Refugees, and the World Health Organization called for the release of migrants and refugees from custody. Similar appeals were signed by many NGOs, including the Migration and Law Network. As a result, this issue was highly publicized, and a public discussion was initiated.

It was against this backdrop that Memorial Human Rights Centre’s Migration and Law Network held their 49th semi-annual seminar in April as a Zoom conference. Participants discussed the issues related to detaining and releasing those placed in the CTDFC, specifically as the issues relate to the initiation of self-isolation regulations.

The practice in regions has turned out to be very different. In a number of the Russian Federation’s regions, the heads of the CTDFC have themselves turned to the Network’s lawyers and requested help to appeal a court decision on the expulsion of a foreign citizen.  Participants in the meetings concluded that the placement of an individual in a CTDFC as an interim measure loses its meaning and should end if expulsion is not possible. 

After the meeting in April, the Network’s lawyers stepped up their work on releasing individuals from the CTDFCs and held two more meetings. The latter turned out to be impressive – something that couldn’t have been achieved pre-coronavirus.  

Lawyers – often in conjunction with regional human rights ombudsmen – have consulted with the leaders of the CTDFC. Regional courts dealt with cases expeditiously and promptly, and in April and May they accepted documents by e-mail. As a result, many individuals were able to leave the special centres and continue to comply with the self-isolation regime at home. Cooperation with the authorized representatives and support of the migration authorities enabled the mass release of people in many regions – in particular, in the Republic of Tatarstan, Stavropol Territory, Rostov, Sverdlovsk, Tambov, Smolensk, Samara and Volgograd regions. 

On 18 April 2020, Russian President Vladimir Putin signed Decree No. 274 “On interim measures to resolve the legal status of foreign citizens and stateless persons in the Russian Federation in connection with the threat of the further spread of the new coronavirus infection (Covid-19).” According to this document, from 15 March to 15 September, there is a moratorium on decisions concerning expulsion, deportation and readmission. The decree has a retroactive effect, thanks to which the lawyers have the opportunity to appeal against the expulsion orders adopted in the period from 15 March 2020, a month before the publication of the Decree. 

The document prompted the leadership of a number of regional migration departments of the Ministry of Internal Affairs of Russia to take more active measures to return foreign citizens detained in the CTDFC to their countries of origin. In turn, the regional courts have become more active in making decisions releasing individuals from temporary detention, based on Decree No. 274 and using the mechanism of the Constitutional Court of the Russian Federation, set out in Resolution No. 14-P of 23 May 2017, on the complaint of Noe Mskhiladze. However, the release of citizens from the CTDFC does not occur automatically, a detainee or his representative (lawyer) must submit an appeal. 

Release from the CTDFC was also based on other grounds. Three Syrians were released in Ivanovo because the European Court of Human Rights forbade their deportation, citing Rule 39 of the ECtHR Rules of Court.

Not all judges, however, based their decisions on Decree № 274. In particular, right after the decree was published, there were many cases where the judges refused to dismiss motions for release, justifying their decisions by saying that a decree ranks lower than the law, which provides no basis for releasing foreign citizens from custody who have violated the rules for staying in Russia.

This legal position can seem completely reasonable.  A judge, however, always has the right to alleviate the situation of а defendant, especially one brought up on administrative charges, by taking into account special circumstances.  The presidential decree was obviously designed to address such circumstances and can serve at least as a “high level expert opinion” for a judge.

In spite of this positive dynamic, some problems still remained unsolved.  Lawyers from many offices of the Migration and Law Network noted that if, during quarantine, they stopped placing people awaiting  expulsion in the CTDFC, they were constantly bringing in people who were being deported. Furthermore, one lawyer from Volgograd told how they continued to bring people for deportation into the city from a penal colony where coronavirus had been detected. In the Tver region, they continue to place foreigners and stateless persons into CTDFCs, bringing the number of inmates up to a hundred people.

If, in a number of regions (Penza, for example), they completely stopped placing people being expelled into special institutions (the courts fined them without expulsion), in other regions such as St. Petersburg and Orenburg, the migration authorities continue to issue orders for deportation and ask the court to place people in CTDFCs. The court approves these requests, but the lawyers of the Network appeal them. At present some of these cases are being heard, positive decisions have been issued in many, but in St Petersburg such an appeal has already been rejected.  Yet at the same time, also in St Petersburg where, as noted, no requests for release had been heard until the beginning of June, nine people have been released from the temporary custody center through the efforts of Network lawyers. During the pandemic, 125 people in total were able to be freed, which is 50% of all the cases worked on.  

To conclude, I note that the government has gone to great lengths to organize the return of people held in CTDFCs to their home countries.  Arguably, the number of migrants held in detention has been reduced by at least half. Faced with the common enemy of Covid-19, society and the government have demonstrated solidarity.  Nonetheless, our work continues.

Translated by Nina dePalma, Matthew Quigley and John Tokolish