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FIRST SECTION
CASE OF BOLAT v. RUSSIA
(Application no. 14139/03)
JUDGMENT
STRASBOURG
5 October 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bolat v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 14139/03)
against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Turkish
national, Mr Hacı Bayram Bolat, on
14 April 2003.
- The applicant was represented before the Court by
Mr I. Kuchukov, a lawyer practising in
Nalchik. The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- The applicant complained, in particular, about a
violation of his right to liberty of movement and the domestic
authorities' failure to respect the procedural safeguards during his
deportation from Russia.
- The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
- By a decision of 8 July 2004, the Court declared the
application partly admissible.
- By letter of 1 September 2004, the Turkish Government
informed the Court that they did not wish to exercise their right
under Article 36 § 1 of the Convention to intervene in the
proceedings.
- On 1 November 2004 the Court changed the composition of
its Sections (Rule 25 § 1). This case was assigned to the newly
composed First Section (Rule 52 § 1).
- The applicant and the Government each filed
observations on the merits (Rule 59 § 1). The parties replied in
writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1974 and lives
in Kapaklı, Turkey.
- From 1998 to 2003 the applicant, an ethnic
Kabardinian, lived in the Kabardino-Balkarian Republic of the Russian
Federation on the basis of a long-term residence permit (vid na
zhitelstvo).
A. Extension of the residence permit
- In early 2000 the applicant's residence permit was
lost or stolen. On 22 February 2000 he asked the Passports and
Visas Department of the Ministry of the Interior of the
Kabardino-Balkarian Republic (passportno-vizovaya sluzhba MVD KBR)
to replace the permit and to extend it until 5 August 2003.
- After a few months' delay the applicant was issued
with a new residence permit valid until 9 July 2000. The shortened
term of validity was explained by reference to a recommendation of
the Federal Security Service of the Russian Federation, which
considered a longer extension “inappropriate” because the
circumstances surrounding the loss of the first permit had not been
clear enough.
- The applicant complained to a court. On 1 June 2000
the Nalchik Town Court allowed the applicant's complaint and ordered
the Passports and Visas Department to extend his residence permit
until 4 August 2003.
B. The applicant found guilty of a violation of the
residence regulations
- On 7 June 2002 the applicant was fined for having
breached the residence regulations. He did not contest the fine
before a court.
- After 5 December 2002 the applicant's registered place
of residence was a flat on Kulieva avenue in Nalchik. His residence
registration at that address was valid until 4 August 2003.
Department of the Interior No. 1 of Nalchik (Pervyi otdel
vnutrennikh del g. Nalchika) placed a stamp to that effect in the
applicant's residence permit.
- On 11 December 2002 the applicant was at a friend's
flat in Furmanova street in Nalchik where he had stayed overnight. At
9 a.m. a man and a woman entered the flat. The woman introduced
herself as a police inspector of Department of the Interior No. 2 of
Nalchik; the man did not identify himself. The man and woman claimed
that they were conducting a “check-up of identity documents”.
The applicant's friend, Mr Kh., refused them entry to the flat,
but they entered nevertheless. They proceeded to the room where the
applicant was and asked him to produce identity documents. On seeing
a different address in his residence permit, the woman asked the
applicant why he did not live at home. The woman invited the
applicant to come with them to the police station, which the
applicant did. The applicant stayed at the station while a report was
being drawn up.
- On the same day Inspector A. drew up a report of an
administrative offence and issued a decision to fine the applicant
RUR 500 (approximately EUR 20) for “residing in Furmanova
street without registering his place of stay” which was an
offence under Article 18.8 of the Administrative Offences Code.
Inspector A. asked the applicant to pay the fine on the spot. The
applicant refused and complained to a court.
- On 24 December 2002 the Nalchik Town Court heard the
applicant's complaint. The court reiterated that the Russian
Constitution guaranteed to anyone who lawfully resided in its
territory the freedom to move freely and choose his or her place of
residence and stay and that that provision also applied to foreign
nationals. The court took statements from the applicant, his friend
Mr Kh. and another person who had been in the flat in Furmanova
street on 11 December 2002; they all maintained that the
applicant had paid a visit to his friend and had not been living in
Mr Kh.'s flat. Furthermore, Ms Sh., the owner of the flat on Kulieva
avenue, confirmed that she had made her flat available to the
applicant for residential purposes and that he had been duly
registered at her address. The Town Court came to the conclusion that
no administrative offence had been committed and annulled the
decision of 11 December 2002. The police lodged an appeal.
- On 20 January 2003 the Supreme Court of the
Kabardino-Balkarian Republic quashed the judgment of 24 December 2002
on procedural grounds and remitted the case for examination by a
different formation.
- On 26 February 2003 the Nalchik Town Court dismissed
the applicant's complaint, finding as follows:
“The administrative proceedings against [the
applicant] were initiated, and a fine in the amount of 500 roubles
was imposed on him, not only on the basis of the obvious fact,
established by Inspector A., that [the applicant] had been outside
his place of residence but also on the basis of the report drawn up
by O. and Sh., district police officers of Department of the Interior
No. 3 of Nalchik, on [the applicant's] residence in the Furmanova
street flat from 20 November to 11 December 2002... [These police
officers] gave statements as witnesses and stated that they had
learnt from operational sources that a foreigner, named Bolat
Haci-Bayram, was secretly living in Kh.'s flat...
At the same time the complainant and the witnesses Mr
Kh. and Ms Sh. failed to satisfy the court that [the applicant] had
only stayed overnight at Kh.'s on the night of 10-11 December 2002
because of heavy frost outside and the need to avoid returning to a
remote district of the town. In particular, Ms Sh. did not inform the
court on what date she had visited [the applicant] on Kulieva avenue
and how many days before the administrative offence report was drawn
up he might have been staying at Mr Kh.'s... Besides, the court takes
into account that the witnesses examined on behalf of the complainant
are his relatives or friends and might have an interest in the
outcome of the case. Additionally, the court has examined a report by
[the police officer Kha.] which stated that during checks he could
not verify the applicant's residence either at the old or at the new
address.”
- The applicant appealed against the judgment. In the
grounds of appeal the applicant's lawyer alleged, in particular, that
the fine had been imposed in the applicant's absence by a police
officer who had not been competent to do so, that the report of an
administrative offence had not been corroborated by any evidence and
that the sanction had not been imposed in accordance with law. The
lawyer also submitted that the first-instance court had erred in its
assessment of statements by the police officers O. and Sh. who had
denied that they had known the applicant, and that the court had
admitted in evidence a report by the officer Kha. who had not been
examined before or at the hearing.
- On 19 March 2003 the Supreme Court of the
Kabardino-Balkarian Republic upheld the judgment of 26 February 2003.
It rejected the applicant's arguments that he had been unlawfully
fined, on the ground that he had allegedly failed to raise these
issues before the Town Court. The Supreme Court did not address the
applicant's inability to question the officer Kha. Instead, it found
that “on 30 November 2002 Mr Af., district inspector of the
first department of the interior of Nalchik, reported to his superior
that the flat on Kulieva avenue was empty”. The remainder of
the Supreme Court's reasoning was similar to that of the Town Court.
- On 31 March 2003 the applicant and his lawyer asked
the Presidium of the Supreme Court of Kabardino-Balkaria to lodge an
application for supervisory review. On 6 June 2003 the request was
refused.
C. Annulment of the applicant's residence permit
- On 4 February 2003 the applicant applied by mail for
an extension of his residence permit to 30 July 2007. On 6 March 2003
the Passports and Visas Department informed him that he had to apply
for an extension in person. The applicant responded in writing that
there was no such requirement in the domestic law.
- On 29 May 2003 the town prosecutor of Nalchik sent a
request to remedy a violation of Russian laws (predstavlenie ob
ustranenii narushenii zakonov RF) to the head of the Passports
and Visas Department. The prosecutor requested that the applicant's
residence permit be annulled and that he be expelled because he had
been found guilty of two administrative offences in the previous
year.
- On 30 May 2003 Inspector Sh. of the Passports and
Visas Department annulled the applicant's residence permit on the
ground of repeated violations of residence regulations in the Russian
Federation. The order was approved by the Minister of the Interior of
Kabardino-Balkaria. The applicant was ordered to leave Russia within
fifteen days.
- On 9 June 2003 the Nalchik Town Court stayed the
execution of the order of 30 May 2003 pending the Supreme Court's
decision on a request by the applicant for supervisory review.
D. The applicant's deportation
- On 7 August 2003 at about 10 a.m. several officers of
the Ministry of the Interior and the Federal Security Service entered
the applicant's flat on the Kulieva prospect. Some of them wore face
masks. They did not identify themselves and they did not present any
search or deportation warrant. The applicant was handcuffed and taken
by car to Nalchik Airport where he was placed on a flight to
Istanbul, Turkey.
E. Quashing of certain judgments and decisions
- On 8 October 2003 the Supreme Court of
Kabardino-Balkaria, giving a ruling in the supervisory-review
procedure, quashed the decision on an administrative offence of 11
December 2002 and the judgment of the Nalchik Town Court of 26
February 2003, finding that there had been no admissible evidence
showing that the applicant had lived outside the place of his
residence registration. It noted that the reports by police officers
O. and Sh. had been based on hearsay and that officer Kha.'s report
had not confirmed the applicant's residence in Furmanova street
either. Furthermore, it pointed out that the Town Court's requirement
of proof that the applicant had only been a guest in Furmanova street
ran contrary to the presumption of innocence enunciated in Article
1.5 of the Administrative Offences Code. Finally, it noted that the
administrative charge against the applicant had been examined by an
officer of the police station having no territorial jurisdiction over
Furmanova street and that this fact alone had rendered the sanction
unlawful. The Supreme Court discontinued the administrative
proceedings against the applicant.
- On 28 October 2003 the Nalchik Town Court heard the
applicant's complaint against the order of 30 May 2003 annulling his
residence permit. The court noted that a residence permit could only
be annulled in case of repeated violations of residence regulations,
but that this provision was no longer applicable as the
administrative proceedings against the applicant had been terminated
by the decision of 8 October 2003. The court declared the order of 30
May 2003 void and ordered that the Passports and Visas Department
extend the applicant's residence permit for five years, starting from
4 August 2003. The judgment was not appealed against and became
enforceable on 10 November 2003.
- In a separate set of proceedings, the applicant's
representative attempted to bring criminal charges against the
officials who had deported the applicant by force. On 25 August 2003
he complained to the Nalchik town prosecutor's office about the
allegedly unlawful search at the applicant's home and his deportation
to Turkey. On 30 August 2003 his complaint was rejected because no
evidence of a criminal offence had been adduced. On 20 November 2003
the head of the investigations department of the Kabardino-Balkaria
prosecutor's office annulled the decision of 30 August and
remitted the complaint for additional investigation. On
3 December 2003 the Nalchik town prosecutor's office again
refused to prefer criminal charges on the ground that no evidence of
a criminal offence had been adduced. This decision was subsequently
quashed, but on 11 December 2003 and 1 February 2004 further
orders discontinuing criminal proceedings were issued.
F. The applicant's attempt to return to Russia
- On 9 April 2004 the Passports and Visas Department
informed the applicant that it would extend his residence permit in
implementation of the Town Court's judgment of 28 October 2003. The
Department invited the applicant to appear in person in order to
collect the permit.
- On 6 July 2004 the applicant's representative, Mr
Kuchukov, received the documents for extension of the applicant's
residence permit and forwarded them to the applicant in Turkey.
- At 6.30 p.m. on 23 August 2004 the applicant arrived
in Nalchik on board a flight from Istanbul. On arrival he was
detained by officers of the Border Control and the Federal Security
Service and locked in an isolated room in the Nalchik airport
building. The applicant was not allowed to consult his lawyer, Mr
Kuchukov.
- On 23 and 24 August 2004 Mr Kuchukov sent complaints
about the applicant's unlawful detention to prosecutor's offices of
various levels, to the Border Control, to the Federal Security
Service and to the Representative of the Russian Federation at the
European Court of Human Rights.
- At 10 a.m. on 25 August 2004 Mr Kuchukov asked Major
D., the head of the Border Control, to see the applicant. His request
was refused by reference to an order of the Federal Security Service.
Major D. then called Captain G. from the Kabardino-Balkaria
Department of the Federal Security Service who confirmed that the
applicant's contacts with lawyers had indeed been banned.
- At 1.10 p.m. on 25 August 2004 the applicant was put
on a scheduled flight to Turkey. It can be seen from the “deportation
record” of the same date, drawn up on the letterhead of the
Nalchik airport border control point of the Federal Security Service,
that the applicant was deported for having been in breach of section
27 § 1 of the Law on the Procedure for Entering and Leaving the
Russian Federation.
- According to the Government, the ban on the
applicant's re-entry into Russia was imposed by the Federal Security
Service some time in December 2002 on the basis of Section 25.10 of
the Law on the Procedure for Entering and Leaving the Russian
Federation. The Government claimed that they could not produce a copy
of that decision because it contained “State secrets”.
They submitted, however, that the Prosecutor-General's Office had
found no reason to challenge that decision before a court as it had
been issued in accordance with the requirements of the above law.
- In response to the applicant's lawyer's complaints, on
26 August 2004 a senior investigator with the military prosecutor's
office of the Border Control of the Federal Security Service refused
to initiate a criminal investigation into the applicant's deprivation
of liberty at Nalchik Airport. He found that the ban had been imposed
by Directorate “I” of the Federal Security Service and
that the applicant had awaited the next flight to Turkey in the
international zone of Nalchik Airport under the surveillance of the
Border Control officers. The room had been equipped with a toilet,
ventilation, lighting, a TV set, a bench and a chair. As the Border
Control officials had acted in accordance with the applicable
regulations, the applicant's stay in the transit area could not be
interpreted as a “deprivation of liberty”.
- The Government indicated that the Federal Security
Service was examining the issue of annulment of the applicant's
residence permit in accordance with section 9
(1) of the Foreign Nationals Law.
II. RELEVANT DOMESTIC LAW
A. Constitutional guarantees
- Everyone lawfully within the
territory of the Russian Federation shall have the right to move
freely and choose his or her place of stay or residence (Article 27
of the Russian Constitution). Foreign nationals in the Russian
Federation shall have the same rights and obligations as Russian
nationals subject to exceptions set out in a federal law or an
international treaty to which Russia is a party (Article 62 §
3).
B. Residence regulations applicable to foreign
nationals
- A foreign national must register his or her residence
within three days of his or her arrival in Russia (section 20 §
1 of the Law on Legal Status of Foreign Nationals in the Russian
Federation, no. 115-FZ of 25 July 2002 – “the
Foreign Nationals Law”). Foreign nationals must obtain
residence registration at the address where they stay in the Russian
Federation. Should their address change, such change is to be
re-registered with the police within three days (section 21 §
3).
C. Penalties for violations of the residence
regulations and the procedure for determination of an administrative
charge
- A foreign national who violates
the residence regulations of the Russian Federation, including by
non-compliance with the established procedure for residence
registration or choice of a place of residence, shall be liable to an
administrative fine of RUR 500 to 1000 and possible expulsion from
Russia (Article 18.8 of the Administrative Offences Code). A report
of the offence described in Article 18.8 may be drawn up by officials
of the State migration authorities (Article 28.3 § 2 (15)). This
report must be forwarded within one day to a judge or an officer
competent to adjudicate administrative matters (Article 28.8).
The determination of an administrative charge that may result in
expulsion from Russia shall be made by a judge of a court of general
jurisdiction (Article 23.1 § 3). A right of appeal against
a decision on an administrative offence lies to a court or to a
higher court (Article 30.1 § 1).
- A residence permit may be
annulled if a foreign national has been charged two or more times
within the last year with violations of residence regulations
(section 9 (7) of the Foreign Nationals Law).
D. Residence permits for foreign nationals
- A foreign national's residence permit shall be issued
for five years. Upon expiry it may be extended for a further five
years at the holder's request. The number of extensions is not
limited (section 8 (3) of the Foreign Nationals Law).
- A residence permit may be
annulled, particularly if the foreign national advocates a violent
change of the constitutional foundations of the Russian Federation or
otherwise creates a threat to security of the Russian Federation or
its citizens (section 9 (1) of the Foreign Nationals Law).
E. Expulsion from, or refusal of entry into, the
Russian Federation
- Administrative expulsion of a
foreign national from the Russian Federation must be ordered by a
judge (Articles 3.10 § 2 and 23.1 § 3 of the Administrative
Offences Code).
- A foreign national may be refused entry into the
Russian Federation if such refusal is necessary for the purpose of
ensuring the defensive capacity or security of the State, or for the
protection of public order or public health (section 27 § 1(1)
of the Law on the Procedure for Entering and Leaving the Russian
Federation, no. 114-FZ of 15 August 1996).
- On 10 January 2003 the Law on the Procedure for
Entering and Leaving the Russian Federation was amended. In
particular, a new section 25.10 was added. It provided that a
competent authority, such as the Ministry of Foreign Affairs or the
Federal Security Service, could issue a decision that a foreign
national's presence on Russian territory was undesirable, even if his
or her presence was lawful, if it created a real threat to the
defensive capacity or security of the State, to public order or
health, etc. If such a decision was made, the foreign national had to
leave Russia or else be deported. That decision also formed the legal
basis for subsequent refusal of re-entry into Russia.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. System of residence registration in Russia
- Resolution 1277 (2002) on honouring of obligations and
commitments by the Russian Federation, adopted by the Parliamentary
Assembly of the Council of Europe on 23 April 2002, noted in the
relevant part as follows:
“8. However, the Assembly is concerned about a
number of obligations and major commitments with which progress
remains insufficient, and the honouring of which requires further
action by the Russian authorities:
...
xii. whilst noting that the Russian federal authorities
have achieved notable progress in abolishing the remains of the old
propiska (internal registration) system, the Assembly regrets
that restrictive registration requirements continue to be enforced,
often in a discriminatory manner, against ethnic minorities.
Therefore, the Assembly reiterates its call made in Recommendation
1544 (2001), in which it urged member states concerned 'to undertake
a thorough review of national laws and policies with a view to
eliminating any provisions which might impede the right to freedom of
movement and choice of place of residence within internal
borders'...”
B. Explanatory Report to Protocol No. 7 (ETS No. 117)
- The Explanatory Report defines the scope of
application of Article 1 of Protocol No. 7 in the following manner:
“9. The word 'resident' is intended to exclude
from the application of the article any alien who has arrived at a
port or other point of entry but has not yet passed through the
immigration control or who has been admitted to the territory for the
purpose only of transit or for a limited period for a non-residential
purpose...
The word lawfully refers to the domestic law of the
State concerned. It is therefore for domestic law to determine the
conditions which must be fulfilled for a person's presence in the
territory to be considered 'lawful'.
[A]n alien whose admission and stay were subject to
certain conditions, for example a fixed period, and who no longer
complies with these conditions cannot be regarded as being still
'lawfully' present.”
- The Report further cites definitions of the notion of
“lawful residence” contained in other international
instruments:
Article 11 of the European Convention on Social and
Medical Assistance (1953)
“a. Residence by an alien in the
territory of any of the Contracting Parties shall be considered
lawful within the meaning of this Convention so long as there is in
force in his case a permit or such other permission as is required by
the laws and regulations of the country concerned to reside
therein...
b. Lawful residence shall become unlawful
from the date of any deportation order made out against the person
concerned, unless a stay of execution is granted.”
Section II of the Protocol to the European Convention
on Establishment (1955)
“a. Regulations governing the
admission, residence and movement of aliens and also their right to
engage in gainful occupations shall be unaffected by this Convention
insofar as they are not inconsistent with it;
b. Nationals of a Contracting Party shall be
considered as lawfully residing in the territory of another Party if
they have conformed to the said regulations.”
- The Report clarifies the notion of “expulsion”
as follows:
“10. The concept of expulsion is used in a generic
sense as meaning any measure compelling the departure of an alien
from the territory but does not include extradition. Expulsion in
this sense is an autonomous concept which is independent of any
definition contained in domestic legislation. Nevertheless, for the
reasons explained in paragraph 9 above, it does not apply to the
refoulement of aliens who have entered the territory
unlawfully, unless their position has been subsequently regularised.
11 . Paragraph 1 of this article provides first that the
person concerned may be expelled only 'in pursuance of a decision
reached in accordance with law'. No exceptions may be made to this
rule. However, again, 'law' refers to the domestic law of the State
concerned. The decision must therefore be taken by the competent
authority in accordance with the provisions of substantive law and
with the relevant procedural rules.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4
- The applicant alleged a violation of his right to
liberty of movement under Article 2 of Protocol No. 4, which provides
as follows:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
...
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
A. The Government's objection to the applicant's status
as a “victim” of the alleged violation
- The Government claimed that the applicant was no
longer a “victim” of the alleged violation because the
Passports and Visas Department had apologised to him and issued him
with a new residence permit. On 6 July 2004 the permit had been
handed over to the applicant's representative. The Government
maintained that on 23 August 2004 the applicant had been refused
entry into Russia on grounds that fell outside the scope of the Town
Court's judgment of 28 October 2003. His admission had been refused
on the basis of Article 55 of the Russian Constitution with a view to
protecting constitutional principles, public morals and health, the
rights and lawful interests of others, and ensuring the defence and
security of the State.
- The applicant pointed out that on 23 August 2004 he
had not been allowed to enter Russia despite having been in
possession of a valid residence permit issued by the Russian
authorities. When the Federal Security Service issued a decision in
December 2002 banning his re-entry into Russia, the ground for that
decision must have been the breach of residence regulations he had
allegedly committed on 11 December 2002. However, after the Town and
Supreme Courts determined that that breach had never occurred and
ordered that the Passports and Visas Department issue him with a
residence permit, there had been no lawful basis for his detention at
Nalchik Airport and deportation from Russia in August 2004. The
applicant considered that the developments in the case should be
considered in their entirety, for his deportation in August 2004 had
been a consequence of previous violations of his rights.
- The Court reiterates that an applicant will only cease
to have standing as a victim within the meaning of Article 34 if the
national authorities have acknowledged the alleged violations either
expressly or in substance and then afforded redress (see Guisset
v. France, no. 33933/96, §§ 66-67, ECHR 2000-IX). A
decision or measure favourable to the applicant is in principle not
sufficient to deprive him of his status as a “victim” in
the absence of such acknowledgement and redress (see Constantinescu
v. Romania, no. 28871/95, § 40, ECHR 2000-VIII).
- In its decision as to the admissibility of the present
application of 8 July 2004, the Court noted the Supreme Court's
acknowledgement of the fact that the decision of 11 November 2002, by
which the applicant had been fined for a breach of residence
regulations, had lacked a sufficient evidentiary basis and had also
been procedurally defective (see paragraph 29 above). The Court was
not satisfied, however, that the applicant had been afforded adequate
redress for the acknowledged violation of his right to liberty of
movement. In particular, no compensation had been awarded and his
residence permit had not been extended and made available to him. In
those circumstances, the Court dismissed the Government's challenge
to the applicant's status as a “victim” of the alleged
violations.
- Since the admissibility decision was given, the
situation has evolved. The Town Court acknowledged that the decision
annulling the applicant's residence permit had been unlawful and the
domestic authorities issued the applicant with a new permit valid for
five years (see paragraphs 30 and 32-33 above). That permit would
normally have been sufficient for the applicant to return to Russia
and to continue his lawful residence on its territory. That did not
happen, however, because in August 2004 the Border Control prevented
the applicant from crossing the Russian border and put him on the
next outbound flight.
- The Government invited the Court to consider that
there existed two distinct grounds for the applicant's exclusion from
Russia. The first ground was his alleged violation(s) of the
regulations on residence registration, which ultimately led to the
annulment of his residence permit. As regards that ground, the
domestic authorities had done their utmost to have the consequences
of an unlawful interference effaced: they had quashed the unlawful
decisions and supplied the applicant with a new residence permit. The
second ground was the decision by the Federal Security Service to ban
the applicant from re-entering Russia because he posed a threat to
the defensive capacity and security of the State. On the basis of
that decision the applicant had been forbidden from crossing the
Russian border in August 2004.
- The Court is not convinced by the distinction drawn by
the Government. Firstly, it is impossible to establish the factual
grounds on which the Federal Security Service's decision was founded
because the Government have refused to provide a copy of it, citing
security considerations (see paragraph 38 above). They have not
furnished any information concerning the factual grounds for the
decision. Secondly, as regards the legal grounds, the Court considers
it anomalous that the decision of December 2002 should have been
founded on a legal provision (section 25.10) that only became
effective in January 2003 (see paragraphs 38 and 49 above). Thirdly,
the exact date of the decision has not been indicated and no
explanation has been given as to why its existence was mentioned for
the first time on 25 October 2004, in the Government's observations
on the merits, almost two years after it had allegedly been issued.
No reference to that decision was made in the domestic proceedings
concerning the applicant's deportation on 7 August 2003 or in the
“deportation record” of 25 August 2004. It has never been
notified to the applicant or his representative. In these
circumstances, the Court considers that the accuracy of the
Government's submissions, in so far as they sought to rely on that
decision by the Federal Security Service, is open to doubt. Even
assuming that the decision of December 2002 did exist, the
Government's refusal to furnish a copy of it prevents the Court from
formulating its own conclusions regarding its contents. The
applicant's contention that the grounds for that decision were the
same as those on which his residence permit had been revoked might
appear plausible. The Court will therefore assume that the refusal of
entry to the applicant in August 2004 was connected with the
preceding events and was relevant for the determination of his status
as a “victim” of the alleged violation.
- The Court points out that the applicant's residence
permit was withdrawn as a penalty for a second violation of the
residence regulations (see paragraph 26 above). There is no
indication that the applicant was ever suspected or convicted of any
other offence, whether criminal or administrative. As noted above, it
appears probable that the decision of the Federal Security Service
barring the applicant's re-entry into Russia might have been issued
in connection with his repeated failure to abide by the residence
regulations. Although the domestic courts subsequently established
that the applicant had not committed the administrative offence
imputed to him and the residence permit was re-issued, the decision
by the Federal Security Service was never revoked. On the contrary,
the Government stated, in their submissions, that the possibility of
revoking the residence permit on the basis of that decision was being
examined (see paragraph 40 above). As a consequence, the legal
obstacles to the applicant's lawful residence have not been removed,
which has rendered the implementation of his right to liberty of
movement merely theoretical rather than practical and effective as
required by the Convention (see Artico v. Italy, judgment
of 13 May 1980, Series A no. 37, § 33).
- Accordingly, the Court finds that the negative
consequences stemming from the original violation of the applicant's
right to liberty of movement have not been redressed. In these
circumstances, even though the Russian authorities have acknowledged
the violation, having regard to the absence of adequate redress the
Court is unable to conclude that the applicant has lost his status a
“victim” within the meaning of Article 34 of the
Convention. The Government's objection is dismissed.
B. Existence of an interference
- The applicant claimed that, by imposing a fine on him
for having stayed overnight at his friend's flat, the domestic
authorities had interfered with his right to liberty of movement and
freedom to choose his residence.
- The Court reiterates that in a recent case the
requirement to report to the police every time the applicants wished
to change their place of residence or visit family friends was found
to disclose an interference with their right to liberty of movement
(see Denizci and Others v. Cyprus, nos. 25316-25321/94
and 27207/95, §§ 346-47 and 403-04, ECHR 2001 V).
- In the present case the applicant was required by law
to have a change of his place of residence registered by the police
within three days of the move (see paragraph 42 above). A failure to
do so exposed him to administrative sanctions, such as the one
imposed on him on 11 December 2002 after a police inspector had
discovered him staying outside his registered place of residence.
Accordingly, the Court considers that there has been an interference
with the applicant's right to liberty of movement under Article 2 of
Protocol No. 4.
C. Justification for the interference
- The Court has next to determine whether the
interference complained about was justified. In this connection it
observes that the Parliamentary Assembly of the Council of Europe
expressed concern over the existing restrictive system of residence
registration in Russia (see paragraph 50 above). It reiterates,
however, that it is not the Court's task to review the relevant law
and practice in abstracto, but to determine whether the manner
in which they were applied in a particular case gave rise to a
violation (see Hauschildt v. Denmark, judgment of 24 May 1989,
Series A no. 154, § 45). Accordingly, in the present case
the Court has to ascertain whether the interference with the
applicant's right to liberty of movement was “in accordance
with the law”, pursued one or more of the legitimate aims set
out in paragraph 3 of Article 2 of Protocol No. 4 and was “necessary
in a democratic society” or, where it applies to particular
areas only, was “justified by the public interest in a
democratic society” as established in paragraph 4 (see Timishev
v. Russia, nos. 55762/00 and 55974/00, § 45, ECHR
2005 ...).
- In their observations on the admissibility and
merits, the Government, referring to the findings of an inquiry
carried out by the Prosecutor-General's Office, accepted that there
had been a violation of the applicant's rights under Article 2 §
1 of Protocol No. 4.
- The Court observes that the Supreme Court, using an
extraordinary remedy, quashed the contested administrative decision
of 11 December 2002 and the subsequent judgments on the grounds
that the matter had been examined by a police officer acting in
excess of his powers and that the courts had shifted the burden of
proof onto the applicant in breach of the principle of the
presumption of innocence. It has thus been acknowledged that the
impugned measure was not “in accordance with the law”.
This finding makes it unnecessary to determine whether it pursued a
legitimate aim and was necessary in a democratic society (see
Gartukayev v. Russia, no. 71933/01, § 21, 13
December 2005).
- There has therefore been a violation of Article 2 of
Protocol No. 4.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 7
- The applicant complained that he had been deported by
force from Russia and that his deportation had not been accompanied
by the procedural safeguards required under Article 1 of Protocol No.
7:
“1. An alien lawfully resident in the
territory of a State shall not be expelled therefrom except in
pursuance of a decision reached in accordance with law and shall be
allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes
before the competent authority or a person or persons designated by
that authority.
2. An alien may be expelled before the
exercise of his rights under paragraph 1 (a), (b) and (c)
of this Article, when such expulsion is necessary in the interests of
public order or is grounded on reasons of national security.”
- In their observations on the admissibility and
merits, the Government accepted that there had been a violation of
Article 1 of Protocol No. 7 in that the applicant's expulsion had not
complied with the procedural requirements and that it had not been
necessary.
- In their observations following the Court's
admissibility decision of 8 July 2004, the Government submitted that
the applicant had not exhausted domestic remedies. Firstly, he had
not challenged before a court the investigator's decision of 1
February 2004 refusing to open a criminal investigation into the
actions of the police officers during the applicant's deportation.
Secondly, he had not lodged a civil claim for damages on the basis of
the Town Court's judgment of 28 October 2003 ruling that the actions
of the Passports and Visas Department had been unlawful.
A. The Government's preliminary objection as to the
exhaustion of domestic remedies
- The Court reiterates that, pursuant to Rule 55
of the Rules of Court, any plea of inadmissibility must, in so far as
its character and the circumstances permit, be raised by the
respondent Contracting Party in its written or oral observations on
the admissibility of the application (see Prokopovich
v. Russia, no. 58255/00, § 29, ECHR 2004 ...,
with further references). In the present case both the judgment of 28
October 2003 and the decision of 1 February 2004 had been
delivered before the Court's decision as to the admissibility of the
application was made on 8 July 2004. At the admissibility stage the
Government did not raise any objection concerning the exhaustion of
the domestic remedies. Nor did the Government point to any
exceptional circumstances which would have absolved them from the
obligation to raise their objection or prevented them from raising it
in good time.
- Consequently, the Government are estopped from
raising a preliminary objection of non-exhaustion of domestic
remedies at the present stage of the proceedings (see Prokopovich,
cited above, § 30). The Government's objection must therefore be
dismissed.
B. Applicability of Article 1 of Protocol No. 7
- The scope of application of Article 1 of Protocol No.
7 extends to aliens “lawfully resident” in the territory
of the State in question. In a case of two persons who had arrived in
Sweden on one-day tourist visas and unsuccessfully sought political
asylum there, the Commission expressed the view that “an alien
whose visa or residence permit has expired cannot, at least normally,
be regarded as being 'lawfully resident' in the country” (see
Voulfovitch and Oulianova v. Sweden, no. 19373/92,
Commission decision of 13 January 1993). It is therefore necessary to
ascertain that the applicant was lawfully resident in Russia at the
time of his deportation.
- The Court notes the definitions of the notion of
“lawful residence” contained in the Explanatory Report to
Protocol No. 7 and other international instruments (see paragraphs 51
and 52 above). It observes that, by contrast with Mr Voulfovitch and
Ms Oulianova in the above-mentioned case, who had had no legitimate
expectation that they would be permitted to stay once their asylum
application had been turned down, the applicant in the present case
had been lawfully admitted onto Russian territory for residence
purposes. He was issued with a residence permit, which was
subsequently extended, pursuant to a judicial decision in his favour
(see paragraphs 10 et seq. above). He was eligible for further
extensions of the residence permit for five years (see paragraph 45
above). The applicant had applied for an extension before the expiry
of his valid residence permit but his application was not processed
under various formal pretexts (see paragraph 24 above).
- Although the Ministry of the Interior had annulled
the applicant's residence permit on 30 May 2003, implementation of
the order was suspended by the Town Court pending a review of the
lawfulness of that measure. Having regard to the fact that on 7
August 2003 the suspensive effect of the measure was still in force,
the Court is unable to find that the applicant was not lawfully
resident in Russia on that date. Nor did the Government claim that
the applicant's residence was unlawful. It follows that the applicant
was “lawfully resident” in the Russian Federation at the
material time.
- The Court further emphasises that the notion of
“expulsion” is an autonomous concept which is independent
of any definition contained in domestic legislation. With the
exception of extradition, any measure compelling the alien's
departure from the territory where he was lawfully resident,
constitutes “expulsion” for the purposes of Article 1 of
Protocol No. 7 (see point 10 of the Explanatory Report, cited in
paragraph 53 above). There is no doubt that by removing the applicant
from his home and placing him on board an aircraft bound for Turkey,
the domestic authorities expelled him from Russia.
- In the light of the above considerations, the Court
finds that Article 1 of Protocol No. 7 was applicable in the present
case.
C. Compliance with Article 1 of Protocol No. 7
- The Court reiterates that the High Contracting
Parties have a discretionary power to decide whether to expel an
alien present in their territory but this power must be exercised in
such a way as not to infringe the rights under the Convention of the
person concerned (see Agee v. the United Kingdom, no. 7729/76,
Commission decision of 17 December 1976, Decisions and Reports 7, p.
164). Paragraph 1 of this Article establishes as the basic guarantee
that the person concerned may be expelled only “in pursuance of
a decision reached in accordance with law”. No exceptions to
this rule may be made. According to the Explanatory Report to
Protocol No. 7, the term “law” here again refers to
the domestic law of the State concerned. The decision must therefore
be taken by the competent authority in accordance with the provisions
of substantive law and with the relevant procedural rules (point 11).
- The Court notes that Russian law requires a judicial
decision for expulsion of a foreign national (see paragraph 47
above). However, in the present case no judicial order for the
applicant's expulsion was issued. The Government did not point to any
legal provisions that would permit a person's explusion in the
absence of a judicial decision. It follows that there has been no
“decision reached in accordance with law” which is the
sine qua non condition for compliance with Article 1 of
Protocol No. 7. Indeed, the applicant was expelled at the time when
his complaint about the annulment of his residence permit was being
reviewed and the interim measure indicated by the Town Court for the
period necessary for the review was effective.
- There has been therefore a violation of Article 1 of
Protocol No. 7.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 50,000 euros (EUR) in respect
of compensation for non-pecuniary damage.
- The Government considered that amount excessive.
- The Court considers that the applicant has suffered
non-pecuniary damage, resulting from the actions and decisions of the
domestic authorities that have been found to be incompatible with the
Convention and its Protocols, which is not sufficiently compensated
by the finding of a violation. However, it considers that the amount
claimed by the applicant is excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 8,000 under this
head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant did not claim any costs and expenses
and, accordingly, there is no call to award him anything under this
head.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
2 of Protocol No. 4;
- Holds that there has been a violation of Article
1 of Protocol No. 7;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 8,000 (eight thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
