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CASE OF
KAFTAILOVA v. LATVIA
(Application
no. 59643/00)
JUDGMENT
(Striking
out)
STRASBOURG
7 December
2007
This
judgment is final but may be subject to editorial revision.
In the case of Kaftailova v. Latvia,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Mr J.-P. Costa,
President,
Sir Nicolas Bratza,
Mr B.M.
Zupančič,
Mr P. Lorenzen,
Mr K.
Jungwiert,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego
Borrego,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mr David Thór Björgvinsson,
Mr J.
Šikuta,
Mr M. Villiger,
Mrs I.
Berro-Lefèvre,
Mr G. Malinverni, judges,
Mrs J.
Briede, ad hoc judge,
and Mr M. O'Boyle, Deputy
Registrar,
Having
deliberated in private on 27 June 2007 and on 28 November 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 59643/00) against the Republic
of Latvia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a stateless person of Georgian origin, Mrs
Natella Kaftailova (“the applicant”), on 10 April 2000.
- The
applicant was represented before the Court by Mr William Bowring, a
barrister and university professor, of the European Human Rights
Advocacy Centre (London). The Latvian Government (“the
Government”) were represented by their Agent, Mrs Inga Reine.
- The
applicant alleged, in particular, that in refusing to regularise her
stay in Latvia the Latvian authorities had infringed her rights under
Article 8 of the Convention.
- The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court). On 1 November 2001 the Court
changed the composition of its Sections (Rule 25 § 1). This case
was assigned to the newly composed First Section (Rule 52 § 1).
Within that Section, the Chamber that would consider the case
(Article 27 § 1 of the Convention) was constituted as provided
in Rule 26 § 1.
- As
the seat of the judge elected in respect of Latvia was vacant, the
President of the Chamber invited the Government on 27 July 2004 to
indicate whether they wished to appoint to sit as judge either
another elected judge or an ad hoc judge who possessed the
qualifications required by Article 21 § 1 of the Convention. By
letter of 15 September 2004 the Government appointed Mrs J. Briede as
ad hoc judge (Article 27 § 2 of the Convention and Rule
29 § 1).
- By
a decision of 21 October 2004 the Chamber declared the application
admissible.
- Neither
party filed additional written observations on the merits (Rule 59 §
1 of the Rules of Court). However, by letter of 3 February 2005, the
Government informed the Court of further developments in the case and
requested that the application be struck out of the Court's list of
cases in accordance with Article 37 § 1 (b) of the Convention.
On 20 April 2005 the applicant submitted her observations on that
letter.
- On
22 June 2006 a Chamber of the First Section, composed of Mr C.L.
Rozakis, President, Mrs F. Tulkens, Mrs N. Vajić, Mr A.
Kovler, Mr D. Spielmann and Mr S.E. Jebens, judges, Mrs J.
Briede, ad hoc judge, and of Mr S. Nielsen, Section
Registrar, delivered a judgment in which it held as follows: by
five votes to two, that the applicant could claim to be a “victim”
for the purposes of Article 34 of the Convention and that the
Government's objection of inadmissibility should therefore be
dismissed; and by five votes to two, that there had been a violation
of Article 8 of the Convention. As the applicant had not submitted a
claim for just satisfaction within the time allowed, the Chamber did
not make any award under that head. The partly concurring opinion of
Mr Spielmann joined by Mr Kovler, and the dissenting opinions of Mrs
Vajić and Mrs Briede, were annexed to the Chamber judgment.
- On
22 September 2006 the Government requested that the case be referred
to the Grand Chamber under Article 43 of the Convention. On
23 October 2006 a panel of the Grand Chamber granted the
request.
- The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
- The
President of the Court having decided that no hearing on the merits
was required (Rule 59 § 3 in fine), both parties
submitted further written observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1958 in Georgia and has
lived in Riga (Latvia) since 1984. She was a Soviet national until
1991 and now has no nationality.
A. Background to the case and initial regularisation of
the applicant's situation
- In
1982 the applicant, who was living in Russia at the time, married a
Soviet civil servant employed by the USSR Ministry of the Interior.
In 1984 the couple had a daughter, born in Russia. In the same year
the applicant and her family settled in Latvian territory.
- In
1987 the applicant's husband was granted the right, in a professional
capacity, to rent a room in a “duty residence” in Riga.
In July 1988 he exchanged the accommodation he had previously been
renting in Kazan (Russia) for the right to rent a State-owned flat in
Riga. He and his family moved in straight away.
- On
16 March 1990 the applicant cancelled her formal registration of
residence (known at the time as пропucкa
in Russian and pieraksts or dzīvesvietas reģistrācija
in Latvian) in Volzhsk (Russia). On 16 April 1990 the applicant's
husband registered her, without her knowledge or consent, as resident
at the family's new address in Riga. In August 1990 he registered his
own residence at that address.
- In
the meantime, in May 1990, the applicant lodged a complaint with the
relevant local authority concerning her residence registration,
arguing that her husband had registered her residence unlawfully
without informing her. Consequently, on 15 June 1990, her name was
removed from the register in question. Her minor daughter, however,
continued to be registered at her father's address until October
1994.
- In
October 1990 the applicant and her husband divorced.
- In
August 1991 Latvia regained full independence. In December 1991 the
Soviet Union, the State of which the applicant had hitherto been a
national, ceased to exist. The applicant therefore became stateless.
- By
a final judgment of 3 February 1993 the Riga City Vidzeme District
Court granted the applicant the right to rent the room obtained by
her former husband in a “duty residence” in 1987. Shortly
afterwards, still in February 1993, the applicant requested the
Interior Ministry's Nationality and Immigration Department (Iekšlietu
ministrijas Pilsonības un imigrācijas departaments –
“the Department”) to enter her name in the register of
residents (Iedzīvotāju reģistrs) as a permanent
resident of Latvia. In her request, however, she gave the address at
which her ex-husband had unlawfully registered her rather than the
address in Riga at which she then lived. The Government explained
that this had been a case of mistaken interpretation of the law on
the register of residents, one which had had far reaching
consequences, having led to the loss of the applicant's legal status
in Latvia.
- The
Department granted the applicant's request. In March 1993 her
daughter obtained the same registration as her mother. However, by a
decision of 21 July 1993, the Department cancelled the applicant's
registration on the ground that the stamp in her passport was false.
The file was immediately forwarded to the Kurzeme district prosecutor
who, in a decision of 17 January 1994, decided not to institute
criminal proceedings against the applicant. The prosecutor found that
the registration stamp was authentic, but had been placed in the
passport by the authorities in breach of the relevant regulations.
The prosecutor concluded that, although the applicant's registration
of residence was not valid, she could not be charged with forgery or
use of forged documents.
- On
15 February 1994 the Department removed the applicant's name from the
register of residents and cancelled her personal identification code
(personas kods). On 21 September 1994 the same action was
taken in respect of the applicant's minor daughter.
- On
30 November 1994 the Civil Division of the Supreme Court allowed a
third-party appeal by the Prosecutor General's Office and quashed the
final judgment of 3 February 1993 concerning the applicant's right to
rent the room she was living in. The case was therefore referred back
to the Riga City Vidzeme District Court, which, in an order of 29
December 1999, decided “not to examine the case”.
B. Proceedings concerning the applicant's situation in
Latvia
- On
9 January 1995 the Department served a deportation order
(izbraukšanas rīkojums) on the applicant, ordering
her to leave Latvia with her daughter by 15 January 1995. The
Department had discovered that, on 1 July 1992, the decisive
date laid down by the applicable Act, the applicant had not had an
officially registered permanent residence in Latvia. Accordingly, she
ought to have applied for a residence permit within one month of the
date of entry into force of the Act, failing which an order would be
issued for her deportation; the applicant, however, had omitted to do
this.
- Having
lodged an administrative appeal with the head of the Department,
without success, the applicant applied to the Riga City Vidzeme
District Court seeking to have the order for her deportation set
aside and to have her name re-entered in the register of residents.
- By
a judgment of 26 April 1995 the court of first instance rejected the
application. The court found that, since the registration of the
applicant's residence in Riga had never been valid, she was illegally
resident in Latvia. The applicant lodged an appeal on points of law
against this judgment with the Supreme Court. The latter, in a final
judgment of 19 May 1995, dismissed the appeal on the same grounds as
the lower court.
- In
March 1997 the applicant made a fresh application for a residence
permit to the Department; the application was rejected.
- Following
the entry into force on 25 September 1998 of amendments to the Act on
the Status of Former USSR Citizens without Latvian or other
Citizenship (“the Non-Citizens Act”), the applicant
requested the head of the Interior Ministry's Nationality and
Migration Directorate (Iekšlietu ministrijas Pilsonības
un migrācijas lietu pārvalde – “the
Directorate”), which had succeeded the Department, to
regularise her stay in accordance with the Non-Citizens Act and to
grant her the specific status provided for by the Act. When her
request was refused, she lodged a fresh application with the Riga
City Central District Court. In her memorial she stressed in
particular that she had been living in Latvia for sixteen years and
that she and her daughter had no other country to move to.
-
In a judgment of 8 September 1999 the district court rejected the
application. It held that the applicant did not satisfy the
conditions laid down in section 1(1) of the Non-Citizens Act since,
on 1 July 1992, she had not had a valid registration of
residence in Latvia. Furthermore, on that date, she had been resident
in Latvian territory for only eight years rather than the required
ten years. With specific regard to whether the registration of the
applicant's residence in Latvia was null and void, the court referred
to the arguments and findings set out in the Supreme Court judgment
of 19 May 1995, which had become final.
- The
applicant appealed against the judgment before the Riga Regional
Court. In a judgment of 15 May 2000 the regional court also found
against the applicant, endorsing in substance the reasoning of the
court of first instance. The applicant then lodged an appeal on
points of law with the Senate of the Supreme Court. In a final order
of 10 July 2000 the Senate, sitting in camera, declared the appeal
inadmissible for lack of arguable legal grounds.
- Meanwhile,
on 6 July 2000, the applicant made a third application for
regularisation to the Directorate, requesting it to grant her “the
right to reside legally in Latvia”. Her application was
rejected.
- In
August 2001 the head of the Directorate decided to reopen the file
concerning the applicant's daughter, who was then seventeen. He noted
in particular that, on 1 July 1992, she had been registered at her
father's address as a “permanently resident non-citizen”
of Latvia, and that she therefore fulfilled the requirements of
section 1 of the Non-Citizens Act. Accordingly, in October 2001, the
Directorate issued the applicant's daughter with a passport based on
the status of “permanently resident non citizen”,
re-entered her name in the register of residents and gave her a new
personal identification code.
- By
Decree no. 820 of the Cabinet of Ministers of 24 December 2003, the
applicant's daughter became a naturalised Latvian citizen
(paragraph 1.105 of the decree).
C. Developments after the application was declared
admissible
- On
7 January 2005 the Directorate sent a letter to the applicant which
read as follows (underlining in the original):
“ ... The Directorate ... has taken note of the
final decision of the European Court of Human Rights (First Section)
... on the admissibility of the application in the case of Natella
Kaftailova v. Latvia.
The Directorate has explored the options currently
available under Latvian legislation which might make it possible to
regularise your legal situation in Latvia; it therefore invites you
to take this opportunity to have your legal status in Latvia
determined and to obtain a residence permit.
On 9 January 1995 a deportation order was served on you
..., requesting you to leave Latvian territory by 15 January 1995.
The deportation order has not been executed, nor have any measures
been taken with a view to its enforcement. Section 360(4) of the
Administrative Procedure Act ... currently in force stipulates that
'an administrative act may not be executed if more than three
years have elapsed since it became enforceable'... In view of the
fact that, under the previously existing rules, execution of the
deportation order was not stayed, and that you did not comply
with it, execution is no longer possible.
The Status of Stateless Persons Act, in force prior to 2
March [2004], made no provision for granting stateless person status
to persons illegally resident in Latvia. Accordingly, the Directorate
did not invite you to submit the papers required to obtain that
status.
The Stateless Persons Act which entered into
force on 2 March 2004 replaced the Status of Stateless Persons Act...
The conditions for the granting of stateless person status laid down
by the [new] Act differ from those contained in the [old] Act.
Under Section 2(1) of the Stateless Persons Act,
a person may be granted stateless person status ... if no other
State has recognised him or her as a national in accordance with its
own laws. Under section 3(1) of the Act, persons not covered by
the Convention of 28 September 1954 relating to the Status of
Stateless Persons cannot be recognised as stateless persons...
In accordance with section 4(1) of the Stateless
Persons Act, in order to be recognised as a stateless person,
the individual concerned must submit to the Directorate:
(1) a [written] application;
(2) an identity document;
(3) a document issued by a competent body in the foreign
State, to be determined by the Directorate, certifying that the
person concerned is not a national of that State and is not
guaranteed nationality of that State, or a document certifying the
impossibility of obtaining such a document.
In view of the fact that you were born in Georgia and
are of Georgian ethnic origin and the fact that, prior to your
arrival in Latvia, you had been living in Russia..., it is essential
... to ascertain that you are not recognised as a national of the
Republic of Georgia or of the Russian Federation or guaranteed the
right to nationality of those countries in accordance with their
laws. Accordingly, to enable us to take a decision granting you
stateless person status, you must provide [us] with documents
issued by the competent bodies in the Republic of Georgia and the
Russian Federation to the effect that you are not a national of those
countries and that you are not guaranteed the right to such
nationality, or with a document certifying the impossibility of
obtaining such a document.
Under section 6(1) of the Stateless Persons Act,
stateless persons must reside in Latvia in accordance with the rules
laid down by the Immigration Act, that is to say, on the basis of a
residence permit or, at least, a visa.
Having considered the circumstances of your case, we
are prepared, once we have determined your legal status and obtained
the necessary documentation ..., to address an opinion to the
Minister of the Interior proposing that you be issued with a
permanent residence permit, in accordance with section 24(2) of the
Immigration Act...”
- The
Directorate then listed the documents to be submitted by the
applicant to her local department and indicated the usual period of
validity of each document. The letter went on as follows:
“Once you have been recognised as a stateless
person and been issued with a residence permit ..., your personal
data will be entered in the register of residents and you will
receive a personal identification code.
In the Directorate's view, this is the only basis on
which you can obtain a permanent residence permit, given the
circumstances of your case... That being so, the Directorate, in
addressing its opinion to the Minister of the Interior, will draw the
Minister's attention to the fact that issuing you with a permanent
residence permit would be compatible with the [principles] of a
democratic society, while maintaining the fair balance to be struck
between the restriction of individual rights and the benefits to
society of that restriction. The aim is to ensure that you have the
right to conduct your private and family life without hindrance.
The Directorate would draw your attention to the fact
that no one can be recognised as a stateless person or obtain a
residence permit on a unilateral basis. You must therefore express a
personal interest by making an application to that effect. In the
view of the Directorate, ... the solution outlined above corresponds
to your interests, would remove the threat of deportation in the
future and would enable you to exercise your right to private and
family life without any great restrictions; moreover, in accordance
with the Nationality Act, you could aspire to Latvian
citizenship by naturalisation.
In view of the above, we invite you to contact the
Directorate and submit the necessary documents to it, so that ...
your legal status can be determined and ... the Minister of the
Interior can take a decision on the issuing of a permanent residence
permit. ...”
At
the end of the letter the Directorate gave the telephone numbers of
the officials to whom the applicant should address any further
queries concerning the regularisation of her status.
- By
Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed
the Minister of the Interior to issue the applicant with a permanent
residence permit “once the documents required to make such an
application [had] been received” (Article 1 of the decree). At
the same time the Minister of Foreign Affairs was instructed to have
the Court's decision of 21 October 2004 on the admissibility of the
present application translated into Latvian, and to have the
translation published in the Official Gazette (Article 3).
- It
is clear from the applicant's explanations that she did not take the
steps indicated by the Directorate and that she continues to reside
illegally in Latvia.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of domestic law applicable at the material time
are summarised in the Sisojeva and Others v. Latvia judgment
([GC], no. 60654/00, §§ 46-62, ECHR
2007 ...).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant claimed to be the victim of a violation of Article 8 of the
Convention, the relevant parts of which provide:
“1. Everyone has the right to respect
for his private and family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- During
the proceedings before the Chamber the Government had raised an
objection, which they maintained before the Grand Chamber. They
submitted that, in view of the measures taken by the Latvian
authorities to help the applicant regularise her stay in Latvia, the
matter had been effectively resolved and the application should be
struck out of the Court's list of cases in accordance with Article 37
§ 1 (b) of the Convention. Article 37 § 1 reads:
“The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
A. The Chamber judgment
- In
its judgment, the Chamber considered first of all that the objection
raised by the Government was closely linked to the question whether
the applicant had effectively lost her “victim” status
within the meaning of Article 34 of the Convention. Accordingly, the
Chamber decided to examine the Government's submissions under
Articles 34 and 37 § 1 (b) taken together. In doing so, it based
its arguments on the general principle, established by the Court's
settled case-law, that a decision or measure favourable to the
applicant is not sufficient to deprive him of his status as a
“victim” unless the national authorities have
acknowledged, either expressly or in substance, and then provided
redress for, the alleged breach of the Convention. With regard to the
first of these conditions, the acknowledgement of a violation,
the Chamber accepted that the Directorate's letter of 7 January 2005
and the Governmental decree of 2 February 2005, both of which
made express reference to the Court's decision on the admissibility
of the present application, could be regarded as implicit
acknowledgement of the existence of an issue under Article 8 of the
Convention. As to redress, on the other hand, it considered
that the steps taken by the Latvian authorities had been
insufficient. While the regularisation arrangements proposed by the
Government would allow the applicant to live permanently and without
hindrance in Latvia, that solution did not erase the long period of
insecurity and legal uncertainty which she had undergone in Latvia.
The exceptional length of that period – approximately eleven
years at the time the Chamber judgment was delivered –
distinguished it clearly from the periods in issue in many similar
cases. In sum, the Chamber came to the conclusion that the
authorities had not afforded full redress for the violation alleged
by the applicant, that the applicant could still claim to be a
“victim” and that the matter had not been resolved. It
therefore dismissed the Government's objection.
- On
the merits, the Chamber took the view that the prolonged refusal by
the Latvian authorities to grant the applicant the right to reside in
Latvia on a legal and permanent basis had amounted to interference
with her “private life” within the meaning of Article 8
of the Convention. The Chamber went on to find that the interference
had not been proportionate to the legitimate aim pursued and that
there had therefore been a violation of Article 8 in the instant
case.
B. The parties' observations
1. The Government
- The
Government referred in essence to the grounds of the judgment in
Sisojeva and Others (cited above, §§ 89-102), to
which they fully subscribed. In particular, they did not deny that
the applicant had undergone a period of insecurity and legal
uncertainty in Latvian territory. However, they considered that the
measures taken against the applicant had been, to a large extent, the
consequence of her own conduct. In any event, the applicant currently
faced no real or imminent risk of deportation from Latvia. The most
recent act liable to adversely affect her had been the deportation
order served on her on 9 January 1995; however, under the terms of
section 360(4) of the Administrative Procedure Act, “[a]n
administrative act [could] not be executed if more than three years
[had] elapsed since it became enforceable” (ibid., § 54).
That decision had therefore ceased to be enforceable once and for all
a long time before. Moreover, if the Directorate were to issue a new
deportation order, it would be amenable to appeal before the
administrative courts.
- In
any event, the Government were satisfied that the measure adopted by
the Cabinet of Ministers on 2 February 2005 was sufficient to remedy
the applicant's complaint. In that connection they stressed that,
when the deportation order was served on Mrs Kaftailova in 1995, the
latter had been living in Latvia for only eleven years, whereas the
applicants in other similar cases against Latvia had been resident in
the country for decades. Furthermore, on humanitarian grounds, it had
been decided at the outset to issue the applicant with a permanent
rather than just a temporary residence permit. The Government laid
particular emphasis on the fact that the above mentioned measure
was still valid and the applicant could apply for the residence
permit at any time. However, the process could not be conducted
unilaterally; the applicant must actually report to the authorities
and demonstrate in person her wish to obtain the permit. In sum, the
Government considered that the matter giving rise to the present case
had been resolved and the application should be struck out of the
Court's list of cases in accordance with Article 37 § 1 (b) of
the Convention.
2. The applicant
- The
applicant disagreed with the Government's submissions. In her view,
the differences between her case and that of Sisojeva and Others,
cited above, were too great to allow the approach adopted by the
Grand Chamber in the latter to be transposed directly to the present
case. With regard first of all to the facts of the case, the
applicant pointed out at the outset that the members of the Sisojev
family had obtained two passports each and had registered addresses
in both Russia and Latvia without informing the relevant authorities
in Latvia, in breach of Latvian law (she referred to Sisojeva and
Others, cited above, § 94). No such accusation could be
levelled at the applicant, who had not committed any fraud and had
simply been the victim of an error by the relevant authorities.
- As
to the regularisation arrangements proposed by the Latvian
authorities, the applicant raised three objections. Firstly, she
pointed out that the proposal in her case had been made belatedly, in
February 2005, whereas the Sisojev family had received the first
proposal aimed at regularising their stay in November 2003 (ibid., §§
38 and 95). Secondly, the Government had made regularisation of the
applicant's situation subject to a condition she could not possibly
fulfil. Section 4(1), point 3 of the new Stateless Persons Act
required any individual applying for that status to produce “a
document issued by a competent body in the foreign State, to be
determined by the Directorate, certifying that the person concerned
[was] not a national of that State and [was] not guaranteed
nationality of that State, or a document certifying the impossibility
of obtaining such a document” (ibid., § 49). The
instructions in question were, according to her, incomprehensible and
no such document could be obtained in her case.
- Lastly,
the applicant said that the status of “stateless person”,
even if it were to be accompanied by a permanent residence permit,
was not what she sought; her aim was restoration of the status she
had had prior to 1994. In short, the applicant opposed the
striking-out of the application.
C. The Court's assessment
- Before
the Chamber the Government submitted, among other arguments, that the
applicant had lost her “victim” status. For its part, the
Court does not consider it necessary to rule on whether at the time
she lodged the application the applicant could claim to be a “victim”
of a violation of Article 8 of the Convention, or even to
determine whether she can claim that status now. In the light of
events occurring since 7 January 2005, and more especially since 2
February 2005 (see paragraphs 33 36 above), the Court considers
that there is no longer any justification for examining the merits of
the case, for the reasons set out below.
- The
Court reiterates that, under Article 37 § 1 (b) of the
Convention, it may “at any stage of the proceedings decide to
strike an application out of its list of cases where the
circumstances lead to the conclusion that ...the matter has been
resolved...”. To be able to conclude that this provision
applies to the instant case, the Court must answer two questions in
turn: firstly, it must ask whether the circumstances complained of
directly by the applicant still obtain and, secondly, whether the
effects of a possible violation of the Convention on account of those
circumstances have also been redressed (see Pisano v. Italy
[GC] (striking out), no. 36732/97, § 42, 24
October 2002). In the present case, that entails first of all
establishing whether the risk of the applicant's being deported
persists; after that, the Court must consider whether the measures
taken by the authorities constitute adequate redress in respect of
the applicant's complaint (see Sisojeva and Others, cited
above, § 97).
- With
reference to the first question, the Court observes that execution of
the order for Mrs Kaftailova's deportation has long ceased to be
possible and that, as matters stand, she therefore faces no real and
imminent risk of being deported (see, mutatis mutandis,
Vijayanathan and Pusparajah v. France, judgment of 27
August 1992, Series A no. 241 B, p. 87, §§ 46-47,
and the Commission's opinion, p. 95, § 119). Next, the Court
takes note of the Directorate's letter of 7 January 2005 explaining
to the applicant that she could regularise her stay and outlining the
procedure to be followed and, especially, of Decree no. 75 of 2
February 2005, in which the Cabinet of Ministers instructed the
Minister of the Interior to issue the applicant with a permanent
residence permit. If the applicant were to take the corresponding
action she could remain in Latvia legally and permanently and,
accordingly, lead a normal social life and maintain her relationship
with her daughter.
- The
Court observes that the applicant has not yet taken the action
indicated by the Directorate, despite the latter's express invitation
to that effect. In her submissions to the Court, she stated that she
did not have all the documents required in order to apply for a
residence permit. In that connection the Court notes that, in its
letter of 7 January 2005, the Directorate told the applicant that she
could not obtain a permanent residence permit until she had been
granted stateless person status under the relevant legislation (see
paragraphs 33-34 above). The decree of 2 February 2005, however,
simply instructed the Minister of the Interior to issue the applicant
with a permanent residence permit “once the documents required
... [had] been received”, without saying how this was to be
achieved in practice (see paragraph 35 above). Nevertheless, the
Court observes that to date the applicant has made no attempt,
however small, to get in touch with the authorities and try to find a
solution to whatever difficulties may arise. Having regard to the
case file as a whole as it currently stands, and in the light of the
explanations provided by the Government, the Court sees no indication
that the latter have acted in bad faith (see Sisojeva and Others,
cited above, § 101).
- The
applicant submitted that granting her stateless person status would
not be adequate as it was not what she sought. Assuming that the
applicant is still required to apply for and obtain that status, the
Court points out that neither Article 8 nor any other provision of
the Convention can be construed as guaranteeing, as such, the right
to a particular type of residence permit; the choice of permit is in
principle a matter for the domestic authorities alone (see Sisojeva
and Others, cited above, § 91, and the case law
referred to therein). In any event, the Court notes that the measures
indicated by the Latvian Government would allow the applicant to
remain in Latvia and to exercise freely in that country her right to
respect for her private life, as guaranteed by Article 8 of the
Convention and interpreted in the Court's case law (see, mutatis
mutandis, Sisojeva and Others, cited above, §§
98 and 102).
- In
short, the material facts complained of by the applicant have ceased
to exist. It therefore remains to be determined whether
regularisation of her stay would be sufficient to redress the
possible effects of the situation of which she complained to the
Court.
- In
the instant case the Court acknowledges that, if not from the time
the applicant's name was removed from the register of residents in
February 1994, then at the latest from the time her appeal against
the order for her deportation was finally dismissed in May 1995, the
applicant experienced a lengthy period of insecurity and legal
uncertainty in Latvia. That period lasted approximately ten or twelve
years, depending on the date taken as the starting-point. Moreover,
the Court observes that the expulsion of a stateless person may give
rise to serious issues under Article 8 of the Convention. However,
while regretting the fact that the Latvian authorities did not find
an earlier solution to the matter, the Court does not consider that
this fact on its own makes the measure suggested inadequate in view
of the applicant's personal situation, as it appears that no attempt
was made to execute the deportation order and the applicant was
therefore effectively able to remain in Latvia throughout the period
concerned. This reduces considerably the extent of the redress which
needs to be afforded in the present case.
- Consequently,
and in the light of all the relevant circumstances of the case, the
Court considers that the regularisation arrangements proposed to the
applicant by the Latvian authorities constitute an adequate and
sufficient remedy for her complaint under Article 8 of the
Convention.
- Having
regard to all the above considerations, the Court concludes that both
conditions for the application of Article 37 § 1 (b) of the
Convention are met in the instant case. The matter giving rise to
this complaint can therefore now be considered to be “resolved”
within the meaning of Article 37 § 1 (b). Finally, no particular
reason relating to respect for human rights as defined in the
Convention requires the Court to continue its examination of the
application under Article 37 § 1 in fine.
Accordingly,
the application should be struck out of the Court's list of cases.
II. APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT
- Rule
43 § 4 of the Rules of Court provides:
“When an application has been struck out, the
costs shall be at the discretion of the Court. ...”
- The
Court points out that, unlike Article 41 of the Convention, which
comes into play only if the Court has previously found “that
there has been a violation of the Convention or the Protocols
thereto”, Rule 43 § 4 allows the Court to make an award
solely for costs and expenses (see Sisojeva and Others, cited
above, § 132).
- The
applicant did not submit any claim for just satisfaction before the
Chamber. However, she submitted a claim totalling 600 pounds sterling
(GBP), or approximately 886 euros (EUR), for costs and expenses
relating to the Grand Chamber proceedings. The amount claimed
corresponds to six hours' work by her representative, Mr W. Bowring,
at an hourly rate of GBP 100, but does not include value-added tax.
- The
Government challenged the accuracy of the amount claimed, arguing
that the applicant's claim for costs and expenses did not meet the
requirements laid down by the Court's case-law. The bill of costs
submitted by Mr Bowring merely stated an overall amount without
giving a detailed breakdown of the services provided. In any event,
the Government were of the opinion that Mr Bowring's fees were
excessive, as they were several times higher than the amounts laid
down in the scale of fees approved by the panel of the Latvian Bar
Association.
- The
Court reiterates that the general principles governing reimbursement
of costs under Rule 43 § 4 are essentially the same as under
Article 41 of the Convention. In other words, in order to be
reimbursed, the costs must relate to the alleged violation or
violations and be reasonable as to quantum. Furthermore, under Rule
60 § 2 of the Rules of Court, itemised particulars of any claim
made under Article 41 of the Convention must be submitted, together
with the relevant supporting documents or vouchers, failing which the
Court may reject the claim in whole or in part. In addition, it is
clear from the structure of Rule 43 § 4 that, when the Grand
Chamber makes a decision on the award of expenses, it must do so with
reference to the entire proceedings before the Court, including the
stages prior to referral to the Grand Chamber (ibid., § 133).
- In
the instant case the Court acknowledges that the bill of costs
submitted by Mr Bowring was very general and did not specify the
exact nature of the legal services provided. However, in the light of
the information furnished by the applicant, it considers that the
amount claimed is in no way disproportionate to the complexity of the
case and the other relevant factors. In the circumstances, the Court
deems it reasonable to allow the claim and to award the applicant EUR
886 for costs and expenses. To this amount is to be added any tax
that may be chargeable (see, mutatis mutandis, Lavents v.
Latvia, no. 58442/00, § 154, 28 November
2002). As to default interest, the Court considers it appropriate
that it 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 the matter giving rise to the present
case has been resolved and decides to strike the application
out of its list of cases;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 886 (eight hundred and eighty six euros) in respect of costs
and expenses, 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;
Done in English and in French, and notified in writing on 7 December
2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
