- Additional Resources
- Program in Refugee and Asylum Law
Researcher, PluriCourts, University of Oslo
In a recent decision L.M. and Others v. Russia, the European Court of Human Rights (ECtHR) has unanimously held that the forced return of asylum seekers to Syria would give rise to a violation of the European Convention of Human Rights (ECHR) Article 2, right to life and Article 3, the prohibition of torture and of inhuman or degrading treatment.
The case concerned the detention and pending expulsion of three asylum seekers from Russia: one stateless Palestinian who had resided in Syria and two Syrian nationals. The applicants entered Russia in 2013 and filed their petitions for refugee status. All three applicants stated in court that “they feared for their lives if returned to Syria and referred to information about the ongoing and widespread conflict there” (para.11). The Russian Courts rejected their claims on the basis, inter alia, that they were too general in nature and focused on economic motives.
The ECtHR had not yet evaluated the allegations of a risk of danger to life or ill-treatment in the context of the ongoing conflict in Syria, as most European countries do not currently carry out involuntary returns to Syria (para.123). In finding a breach of Articles 2 and 3, the Court referred to UN reports, which describe the situation in Syria as a “humanitarian crisis” causing “immeasurable suffering.” The Court also took into consideration the fact that the applicants were young men who were “in particular danger of detention and ill-treatment,” as reported by Human Rights Watch (para.124). The Court did not consider it necessary to examine the applicants’ complaints regarding the right to an effective remedy (Article 13).
The Court did not find the conditions of the applicants’ detention in breach of Article 3. Yet, it did find the applicants’ detention in breach of the right of liberty and security and the right to have lawfulness of detention decided speedily by a court [Article 5(1) and (4) ECHR] (para.148). The applicants were kept in detention without being informed of the time-limits nor the conditions on the possibility of judicial review. In light of these findings, the Court held that Russia should immediately release the two applicants remaining in detention per Article 46 which requires States to execute the judgements of the Court.
The Court held that Russia’s actions limiting the applicants’ contact with their representatives were in violation of the right of individual petition (Article 34). For several months, the applicants were unable to contact their representatives, rendering them unable to effectively participate in the domestic and ECtHR proceedings (para.162).
In July 2015, the Russian Constitutional Court ruled that its national laws take precedence over ECtHR decisions, giving Russia the right to ignore decisions of the Strasbourg Court. The Russian Court held that its Constitution surpasses ECtHR rulings upholding the ECHR. Confirming the ruling of the Russian Constitutional Court, a law has recently been passed enabling the Russian Court to overturn decisions of international courts. However, if Russia were to refuse to comply with the ECtHR’s decision in L.M. and Others v. Russia, it could also find itself in breach of its international obligations to protect refugees.
Respect for the principle of non-refoulement, protection against return to a country where a person fears persecution, is at the very heart of refugee protection. Although, the ECHR does not explicitly provide a provision prohibiting refoulement, it has consistently found such a prohibition ‘inherent in the general terms of Article 3. In addition to breaching the ECHR, Russia’s conduct is a violation of non-refoulement under Article 33(1) of the 1951 Convention relating to the Status of Refugee (and Article 1 (1) of its 1967 Protocol) and Article 7 of the International Covenant on Civil and Political rights. The principle of non-refoulement is part of refugee law, international human rights law, and has also widely been considered to be customary international law. It implies that all States, party or not to refugee and/or human rights conventions incorporating the prohibition against refoulement, are compelled to comply with its prohibition.
In the current context of mass displacements, it is important to highlight that nothing inherent to these international obligations would preclude the application of the principle of non-refoulement to situations of mass refugee influx. Non-refoulement is a basic minimum standard for the treatment of refugees that “must be scrupulously observed”.
 For more details, see: UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (2007); Aoife Duffy, ‘Expulsion to Face Torture? Non-refoulement in International Law’, International Journal of Refugee Law, vol.20, Issue 3 (2008)
 UNHCR, Executive Committee Conclusion No. 22 (XXXII) (1981) para.2,3; UNHCR, Executive Committee Conclusion No.74 (XLV) (1994) para (r); UNHCR, Global Consultations on International Protection/Third Track: Protection of Refugees in Mass Influx Situations: Overall Protection Framework, EC/GC/0/4 (19 February 2001)