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FIRST
SECTION
CASE OF ALIM v. RUSSIA
(Application
no. 39417/07)
JUDGMENT
STRASBOURG
27
September 2011
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 Alim v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39417/07) 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 national of Cameroon, Mr Mustafa Alim (“the
applicant”), on 10 July 2007.
- The
applicant was represented by Mr V. Yeremenko, a lawyer practising in
Krasnodar. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, the then Representative of the
Russian Federation at the European Court of Human Rights.
- On
11 October 2007 the President of the First Section decided to give
priority treatment to the application and to give notice of it to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1981 and lives in the
Krasnodar region.
A. The applicant’s residence in Russia and first
arrest
- According
to the applicant, in 1995 he signed a contract with a Russian
football club as a football player, obtained a Russian visa and
settled in Russia. Later on, he gave up football because of an injury
and entered (some time between 1998 and 2002) a higher educational
institution in Krasnodar.
- It
appears that since 2003 or 2004 the applicant has been living in the
Krasnodar region with a Russian national, Ms A., as common-law
husband and wife. The applicant has been lawfully resident in
Russia at least since 20 October 2004. In April 2005 Ms A. gave birth
to a son. The applicant formally acknowledged paternity. The boy was
given the applicant’s last name and patronymic.
- On
20 June 2006 the applicant was expelled from the University because
of his failure to attend classes. It appears that on 9 September 2006
the document authorising his stay in Russia (apparently a student
visa) was revoked.
- According
to the applicant, he applied to a private firm for assistance in
obtaining or renewing his visa. It is alleged that an employee of
this firm handed over the applicant’s passport to the local
Federal Security Office.
- On
25 October 2006 Ms A. gave birth to a daughter. Although for
unspecified reasons the applicant did not formally register
paternity, he never contested it and the girl has his first name as a
patronymic.
- On
3 November 2006 the applicant was arrested by officers of the Russian
Federal Migration Service (“FMS”). On the same day the
Oktyabrskiy District Court of Krasnodar found the applicant guilty of
the administrative offence of violating the residence regulations for
foreign nationals (see paragraph 26 below) and imposed on him a fine
of 1,500 Russian roubles (RUB). The applicant was then released.
He did not appeal against this court decision and paid the fine.
- As
the applicant had no valid authorisation to remain in the country he
was provided with a transit visa valid from 7 to 16 November
2006, to enable him to leave Russia. However, he did not leave the
country, because, as he explained, his wife had recently given birth
to their second child and he had to take care of their first child.
- The
applicant stated that between 1 and 10 January 2007 he could not make
any arrangements to regularise his residence status due to the
closure of public offices during the public holidays in Russia.
B. The applicant’s second arrest and removal
proceedings
- On
11 January 2007 the applicant was subjected to an identity check by
FMS officers. As he had no valid document, the officers arrested him
and took him to the FMS premises, where they drew up an
administrative offence report concerning a violation of residence
regulations for foreigners (see paragraphs 26 and 33 below). The
report reads as follows:
“[The applicant] was subjected to an identity
check and could not provide evidence of his compliance with the
requirement of temporary registration for a period longer than three
days of residence...
I have been informed of my procedural rights, including
the right to have access to the record and other materials, the right
to legal assistance...Court proceedings, which may result in an
administrative arrest or administrative removal from Russia, should
be carried out in the presence of the person concerned...[the
applicant’s signature]
The person’s explanations: {in handwriting in the
Russian language} I did not have enough time to renew my registration
status.”
- According
to the applicant, after his arrest he asked in vain to see a lawyer
and an interpreter. Having drawn up the report, the FMS officers told
the applicant where he should sign it, which he did. One of them
wrote down the applicant’s oral explanations (see above). In
the applicant’s submission, his language skills were at the
time limited: although he could speak and understand some Russian, he
had no writing skills.
- Later
the same day the applicant was taken to the Leninskiy District Court
of Krasnodar. The court held a hearing, at which, however, no lawyer
or interpreter was designated to assist the applicant. According to
the applicant, he was unable to make oral submissions to the court
concerning his family status. The District Court judgment reads as
follows:
“[The applicant] had arrived in Krasnodar in
November 2004, for educational purposes. During an identity check on
11 January 2007 at his place of his residence it emerged that he had
had no registration since 9 September 2006. Having examined the
materials, the circumstances of the case, the administrative offence
report, the court considers that [the applicant] violated the
residence regulations for foreign nationals and thus committed an
offence under Article 18.8 of the Code of Administrative Offences.”
The
court sentenced the applicant to a fine in the amount of twenty times
the minimum wage (RUB 2,000). The court also ordered the
administrative removal of the applicant from Russia, and that he be
detained until removal in a special detention facility situated in
the village of Kopanskoy.
- On 22 January 2007 a lawyer appealed on behalf of the
applicant against the first-instance judgment, requesting that the
administrative removal be annulled. He argued that the administrative
offence report was unlawful, as the applicant had not been provided
with an interpreter at the FMS. He also mentioned that the removal
would affect his client’s family life, arguing as follows:
“The court failed to examine the entirety of the
relevant circumstances...Since 2003 [the applicant] has
been living with a Russian national, A., and has two children, born
in 2005 and 2006...These circumstances show that he has a family
life...The court did not provide reasons for applying a subsidiary
penalty of administrative removal in respect of [the applicant] and
did not take account of the matters relating to his family life in
Russia. Nor did the court assess the fact that administrative removal
would prevent [the applicant] for five years from obtaining
permission for temporary residence in Russia. The court should have
provided reasons for considering that removal was the only way of
striking a fair balance between the private and public interests at
stake.”
- On 24 January 2007 the Krasnodar Regional Court
dismissed the appeal and upheld the first-instance judgment.
Apparently, no oral hearing had been held. The appeal court stated as
follows:
“The argument relating to the existence of a
relationship with A. cannot be considered as a ground for residence
in Russia without valid permission issued by the competent authority.
In addition, [the applicant] had already been fined for a similar
offence, whilst no administrative removal had been ordered. Taking
account of all circumstances, including [the applicant’s]
personality and both mitigating and aggravating circumstances, it
should be concluded that the first-instance court issued a lawful
decision.”
The
appeal court further stated that, according to the administrative
report, the applicant had been informed of his rights but had not
asked for an interpreter and had made a handwritten note in Russian
on the report.
- The applicant’s lawyer continued to complain
about the measure of administrative removal against his client. On 2
March 2007 the Regional Prosecutor’s Office informed the lawyer
that the removal was lawful. On or around 14 March 2007 the applicant
lodged an application for supervisory review in respect of the court
decisions of 11 and 24 January 2007. On 2 April 2007 the
Regional Court informed the lawyer that his complaint had been
examined by way of supervisory review and that no violations had been
found.
- On an unspecified date, the applicant lodged an
application for supervisory review before the Supreme Court of
Russia. On 4 May 2007 a judge of the Supreme Court rejected it. He
stated that the absence of an interpreter could not serve as a reason
for quashing the decision, that the applicant had not registered a
marriage with Ms A. and that the defence had not provided the
district court or the supervisory-review court with evidence
confirming that the applicant was the father of the two children.
- According
to the applicant, the FMS officers repeatedly told him that the State
authorities had no funds to pay for his expulsion and told him to
return to Cameroon at his own expense. According to the
Government, since the applicant’s national passport had expired
on 6 June 2007 it was necessary to make arrangements to renew it.
- By
a letter of 6 July 2007 the Regional Prosecutor’s Office
informed Ms A. that the removal order could not be enforced because
no funds had been allocated for this purpose in the federal budget
and the applicant’s passport had expired. It was noted that
arrangements were being made by the Embassy of Cameroon to issue a
departure certificate and travel documents to the applicant. On 9
July 2007 the Embassy issued a travel document. Apparently, Ms A.
purchased for the applicant a train ticket to Moscow.
- The applicant was released on 16 July 2007. In March
2011 the applicant’s lawyer submitted to the Court a letter
from the applicant. In that letter the applicant stated that after
his release he had been living with his family in the Krasnodar
Region; he had to be discreet because he did not want to be arrested
and because the order of administrative removal against him remained
enforceable; he could no longer regularise his stay in Russia; he
could not work or initiate any administrative procedures concerning
marriage or paternity. By April 2011 the removal measure had not
been enforced in respect of the applicant.
C. Conditions of detention
- From
11 January to 16 July 2007 the applicant was detained in Kopanskoy
detention facility.
- According to the applicant, during his detention he
was kept in a metal trailer. In winter the temperature in the trailer
was at times as low as 5 degrees Celsius, while in summer it was
very hot inside. The applicant was provided with food once a day. He
was obliged to do unpaid physical work. His state of health
deteriorated significantly, to the extent that an ambulance was
called for him on several occasions.
- According to the Government, in the living quarters of
the detention centre each detainee was provided with an individual
bed, bedding and bedside table. The living quarters provided access
to water and electricity. A shower room was made available to
detainees. Each detainee was afforded three square metres of floor
space. Each unit had its own heating system. The applicant was
provided with the requisite medical assistance. For instance, on 24
April 2007 he was admitted to hospital because of an abdominal
contusion. The applicant received visits from his lawyer, Ms A. and
other persons, who supplied him with food and clothes. No detainee
was required to work in the detention facility.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Administrative Offences (CAO)
- Article 18.8 (1) of the Code, in its version in force
in January 2007, concerned the following violations of residence
regulations by foreign nationals: absence of documents confirming the
right to reside in Russia and non-observance of the registration
procedure or residence procedure. The above violations were
punishable by a fine with or without administrative removal from
Russia.
- A
deportation order is enforced by transferring the person concerned to
the authorities of a foreign State or by the voluntary departure of
this person under the supervision of the deporting authority (Article
32.10 § 1). A court is empowered to detain the person concerned
until his actual deportation (Article 32.10 § 5). The detainee
should be kept at the place assigned for this purpose or in
specialised detention facilities, which should have appropriate
sanitary conditions and prevent voluntary departure (Articles 27.3
and 27.6 of the Code). The detainee should be fed and given medical
assistance in compliance with the rules adopted by the Government.
- In ruling no. 6-П
of 17 February 1998 the Constitutional Court held, with reference to
Article 22 of the Russian Constitution, that detention of a person to
be removed from Russia for more than forty-eight hours required a
court decision, which should establish that detention is
indispensable for enforcing the removal; the court should assess the
lawfulness and reasons for detention; detention for an indefinite
period of time would be unacceptable since it would be capable of
amounting to a separate form of punishment, which is not prescribed
by the Constitution.
- Article 31.9 of the CAO provided, at the time, that a
decision imposing an administrative penalty could not be enforced
after the expiry of a one-year period since the date on which this
decision had become final. This period could be suspended if the
defendant had impeded or was impeding enforcement proceedings.
B. Foreigners Act (Federal Law no. 115-FZ of 25
July 2002)
- Section 5 of the Act provides that a foreigner should
leave Russia after the expiry of the authorised period, except when
on the date of expiry he has already obtained an authorisation for
extension or renewal, or when his application for extension and the
relevant documents have been accepted for processing. A deportee
should bear the cost of his or her deportation unless he has no means
(section 31 § 5 of the Act). The deportee should be detained
under a court order in a specialised detention facility until
deportation (section 31 § 9).
- Section 7 § 1 (3) of the Act provides that a
temporary residence permit could not be issued to a foreigner who had
been deported from Russia within the previous five years.
- In decision no. 86-АД05-2
of 7 December 2005, the Supreme Court of Russia considered that
it was incumbent on a national court to examine whether enforcement
of a deportation order was compatible with Article 8 of the
Convention. Given that section 7 of the Foreigners Act prevented a
deportee from claiming a temporary residence permit for five years,
“a serious issue [could] arise as to an interference with [the
persons’] right for respect of their family life”. In
another decision, the Supreme Court varied its reasoning, stating
that enforcement of a deportation order “results in the
violation of fundamental family ties and impedes the family’s
reunification” (decision no. 18-АД05-13
of 24 January 2006). The Supreme Court subsequently considered that a
deportation order should be based on considerations which confirm the
necessity of such a measure “as the only possible way of
ensuring a fair balance between public and private interests”
(decision no. 86-АД06-1 of
29 March 2006).
- Until 15 January 2007 the Foreigners Act contained
provisions concerning registration of foreigners. Foreigners had to
apply for “registration” within three days of arrival in
Russia (sections 20 and 21).
C. Entry and Leave Procedures Act (Federal Law
no. 114-FZ of 15 August 1996)
- Under section 27 of the Act re-entry should be refused
to a foreign national for five years of the date on which he or she
has been previously subject to administrative removal from Russia.
D. Family Code
- Article 47 of the Family Code provides that the rights
and obligations of parents and their children are based on their
descent/parentage, which has been lawfully established. Paternity of
a person who is not married to the child’s mother should be
established by a joint declaration to a competent authority or in
court proceedings (Articles 48 and 49).
- As confirmed by the Constitutional Court (decision
no. 26-O of 17 May 1995), Russian law does not recognise
“unregistered marriage”, which does not entail any legal
consequences.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions of his detention in
Kopanskoy detention facility from 11 January to 16 July 2007. The
Court will examine this complaint under Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government argued that the applicant had not provided prima facie
evidence in support of his allegations and failed to bring any
proceedings at the national level. For instance, he could have
brought a civil court action, if he had considered that the
conditions of detention had been in breach of Russian legislation.
During the period of his detention, he could have complained to a
prosecutor. The Government considered that he had been detained in
appropriate conditions.
- The
applicant maintained his complaint.
- As
the Court has held on many occasions, legitimate measures depriving a
person of his liberty may often involve an element of suffering and
humiliation. Yet it cannot be said that lawful detention in itself
raises an issue under Article 3 of the Convention. However, the Court
reiterates that Article 3 of the Convention requires the State to
ensure that detention conditions are compatible with respect for
human dignity, that the manner and method of the execution of the
measure do not subject the detainees to distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in
detention and that, given the practical demands of imprisonment,
their health and well-being are adequately secured (see, among
others, Kudła v. Poland [GC], no. 30210/96, § 94,
ECHR 2000 XI).
- The Court reiterates that to be regarded as degrading
or inhuman for the purposes of Article 3 of the Convention treatment
must attain a minimum level of severity (see Price v. the United
Kingdom, no. 33394/96, § 24, ECHR 2001-VII). When
assessing conditions of detention, account has to be taken of the
specific allegations made by the applicant and the cumulative effects
of those conditions (see Dougoz v. Greece, no. 40907/98,
§ 46, ECHR 2001-II). Allegations of ill-treatment must be
supported by appropriate evidence.
- The
Court has held that confining an asylum seeker to a prefabricated
cabin for two months without allowing him outdoors or to make a
telephone call, and with no clean sheets and insufficient hygiene
products, amounted to degrading treatment within the meaning of
Article 3 of the Convention (see S.D. v. Greece, no. 53541/07,
§§ 49-54, 11 June 2009). Similarly, a period
of detention of six days, in a confined space, with no possibility of
taking a walk, no leisure area, sleeping on dirty mattresses and with
no free access to a toilet is unacceptable with respect to Article 3
(ibid.). The detention of an asylum seeker for three months on
police premises pending the application of an administrative measure,
with no access to any recreational activities and without proper
meals has also been considered as degrading treatment (see Tabesh
v. Greece, no. 8256/07, §§ 38-44, 26 November
2009). Lastly, the Court has found that the detention of an
applicant, who was also an asylum seeker, for three months in an
overcrowded place in appalling conditions of hygiene and cleanliness,
with no leisure or catering facilities, where the dilapidated state
of repair of the sanitary facilities rendered them virtually unusable
and where the detainees slept in extremely filthy and crowded
conditions amounted to degrading treatment prohibited by Article 3
(see A.A. v. Greece, no. 12186/08, §§ 57-65, 22
July 2010).
- In
the present case the Court observes at the outset that the applicant
did not raise his grievances before any national authority, at least
for the purpose of establishing the relevant facts. However, the
Court does not need to examine the Government’s argument
concerning exhaustion of domestic remedies for the following reasons.
- The
Court considers that in practice it may be difficult for a detainee
to collect evidence about the material conditions of his detention,
and the Court has already observed the difficulties experienced by
applicants in substantiating their grievances in respect of the
conditions of detention in Russian remand centres pending criminal
proceedings (see Shcherbakov v. Russia, no. 23939/02,
§ 81, 17 June 2010). It may be that a detainee
cannot question witnesses, take photos of his cell or measure the
levels of humidity or temperature. Such inspections are usually made
either by the prison authorities themselves or by special bodies
supervising the prisons. Ideally, the material conditions
of detention should be assessed by independent observers.
- The
Court reiterates that it is permissible, under certain circumstances,
to shift the burden of proof from the applicant to the Government
(see, among others, Zakharkin v. Russia, no. 1555/04,
§ 123, 10 June 2010; Kokoshkina v. Russia,
no. 2052/08, § 59, 28 May 2009, and Ahmet
Özkan and Others v. Turkey, no. 21689/93, § 426,
6 April 2004). A failure on the part of a Government to submit
convincing evidence on conditions of detention may give rise to the
drawing of inferences as to the well-foundedness of the applicant’s
allegations (see Gubin v. Russia, no. 8217/04, § 56,
17 June 2010, and Timurtaş v. Turkey,
no. 23531/94, § 66, ECHR 2000-VI).
- In
the Court’s view, no such circumstances obtained in the present
case. It is noted that the applicant, who was assisted by a lawyer at
the domestic level and before the Court, did not adduce any evidence
in support of his allegations, for instance testimonies from his
common-law wife or his lawyer who visited him in the detention
facility. Nor did he produce any similar testimonies from
co-detainees or any publicly accessible documents or reports in
support of his allegations (see, for comparison, Tabesh, §§ 39
and 40; S.D., §§ 49 and 50; A.A., §§
57-60, all cited above, and Payet v. France, no.
19606/08, §§ 82 and 83, 20 January 2011).
- Furthermore,
there is no indication that there were any problems arising out of
any overcrowding problem in the facility or shortage of individual
beds, as it could be observed by the Court in cases concerning
Russian remand centres. Lastly, it appears that the applicant was
provided with medical care when needed.
- Thus,
in the circumstances of the present case, the applicant has not
substantiated that he was detained in conditions which were
incompatible with respect for his human dignity, that he was
subjected to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention or that, given
the practical demands of imprisonment, his health and well-being were
not adequately secured.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
II. ARTICLE 5 § 1 OF THE CONVENTION
- The
Court has also raised proprio motu the question as to whether
the applicant’s detention from 11 January to 16 July 2007 in
Kopanskoy detention facility had been unlawful, in breach of Article
5 § 1 of the Convention. This provision reads in the relevant
parts as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition...”
A. The parties’ submissions
- The
Government submitted that the applicant had been detained with a view
to enforcement of the court order for his administrative removal from
the country, under Article 32.10 of the Code of Administrative
Offences. The applicant’s detention was ordered by a court and
was upheld on appeal within two days. The subsequent period of
detention between late January and June 2007 had been justified with
reference to the need to make arrangements for the applicant’s
return to Cameroon. These proceedings had been carried out with the
requisite diligence; some time had been required to make arrangements
with Cameroon to receive the applicant, in particular because his
passport had expired.
- The
applicant argued that no measures had been taken between January and
July 2007 “with a view to” his removal from the country.
The delay had been due to the authorities’ inability to pay for
the execution of the removal order and because he had not been able
to pay for his travel to Cameroon.
B. The Court’s assessment
1. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No
other ground for declaring it inadmissible has been established.
2. Merits
- The
Court notes that the applicant was detained with a view to
administrative removal from Russia to Cameroon. This administrative
removal amounted to a form of “deportation” in terms of
Article 5 § 1 (f) of the Convention.
- The
Court will first examine whether the applicant’s detention was
“lawful” for the purposes of Article 5 § 1,
including whether it complied with “a procedure prescribed by
law”. A period of detention will in principle be lawful if
carried out under a court order. The applicant’s detention with
a view to administrative removal was ordered on 11 January 2007
by a court under Article 32.10 § 5 of the Russian Code of
Administrative Offences.
- The
Court also reiterates that according to the Russian Constitutional
Court a court decision concerning detention of a person to be removed
from Russia should establish that detention is indispensable for
enforcing the removal; the court should assess the lawfulness and
reasons for detention; detention for an indefinite period of time
being unacceptable (see paragraph 28 above).
- While
the Court cannot but observe that the decision of 11 January 2007
contained no reasoning concerning the detention matter, this flaw did
not amount to a gross and obvious irregularity (see Mooren
v. Germany [GC], no. 11364/03, § 84, ECHR
2009 ..., and Liu v. Russia, no. 42086/05, §
81, 6 December 2007). As compared to the applicable national
legislation, Article 5 § 1 (f) of the Convention does not
require that the detention of a person against whom action is being
taken with a view to deportation or extradition be reasonably
considered necessary, for example to prevent his committing an
offence or absconding. In this connection, Article 5 § 1 (f)
provides a different level of protection from Article 5 § 1 (c):
all that is required under sub-paragraph (f) is that “action is
being taken with a view to deportation or extradition”. It is
therefore immaterial, for the purposes of Article 5 § 1 (f),
whether the underlying decision to expel can be justified under
national or Convention law (see, among others, Liu, cited
above, § 78).
- With
due regard to the considerations below pertaining to the length of
detention, the Court does not find that the national court acted in
bad faith or that it neglected to attempt to apply the relevant
legislation correctly. Therefore, it has not been established that
the detention order or the ensuing detention was not “lawful”
within the meaning of Article 5 § 1.
- Having
made the above observations, the Court also reiterates that any
deprivation of liberty under Article 5 § 1 (f) will be
acceptable only for as long as deportation proceedings are in
progress. If such proceedings are not conducted with due diligence,
the detention will cease to be permissible under Article 5 § 1
(f) (see Chahal v. the United Kingdom, 15 November 1996,
§ 113, Reports of Judgments and Decisions 1996 V).
In other words, the length of the detention for this purpose should
not exceed what is reasonably required (see Saadi v. the United
Kingdom [GC], no. 13229/03, § 74, ECHR 2008-...).
- The
Court observes that the applicant spent some six months in detention
awaiting administrative removal. It should be noted that from 12 to
24 January 2007 review proceedings were pending. As to the subsequent
period of time, it is noted that between mid-March and early May 2007
the applicant lodged applications for supervisory review of the
earlier court decisions, in which his administrative removal had been
ordered. It has not been alleged that these proceedings were not a
part of a genuine deportation process. Thus, they should be taken
into account when assessing whether deportation proceedings were “in
progress” (see Chahal, cited above, §§ 113-117).
Lastly, it is undisputed that certain arrangements had to be made
because of the expiry of the applicant’s national passport. It
has not been alleged or shown that there was any unjustified delay in
releasing the applicant after it had become clear that the
authorities were unable to enforce the removal order despite the fact
that the relevant travel document had been made available. The Court
accepts that the requirement of due diligence was complied with in
the present case (see, for comparison, Dolinskiy v. Estonia
(dec.), no. 14160/08, 2 February 2010, and Agnissan
v. Denmark (dec.), no. 39964/98, 4 October 2001).
- There
has therefore been no violation of Article 5 § 1 (f) of the
Convention as regards the applicant’s detention from 11 January
to 16 July 2007.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that
administrative removal from Russia would adversely affect his family
life. He also complained that the expulsion would have a negative
impact on his two minor children. Article 8 reads as follows:
“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.”
A. The parties’ submissions
1. The Government
- The
Government argued that Article 8 of the Convention was inapplicable
in the absence of a registered marriage between the applicant and Ms
A. An unregistered partnership (“common-law marriage”) is
not recognised and does not confer any specific rights under Russian
law, in particular as regards mutual pecuniary obligations of
spouses, succession or benefits. The applicant failed to display the
requisite diligence in seeking to obtain permission to stay in
Russia, to formalise his relationship with Ms A. and to establish his
paternity in respect of her daughter. He was found liable for
violations of residence regulations for foreign nationals. Thus, it
does not appear that the applicant was particularly concerned with
the normal exercise of his “family life” in Russia.
Despite this, the national courts had given a thorough examination to
the related grievances.
- Even
assuming the existence of the “family life” protected by
Article 8 of the Convention, the applicant’s removal from
Russia was imposed in compliance with the Code of Administrative
Offences for repeated violation of residence regulations. This
decision was aimed at protecting public safety and prevention of
disorder and was not disproportionate, given that the applicant had
made no effort to take any of several avenues to obtain permission to
reside in Russia.
- Lastly,
the Government submitted that in the administrative proceedings the
applicant had been informed of his rights under the Code of
Administrative Offences, including the right to legal representation
and to the services of an interpreter. The applicant had not made any
specific request in that connection. Given that the applicant had
lived in Russia for some twelve years, there were not sufficient
grounds to believe that the applicant’s skills in Russian were
so limited that he would be incapable of presenting his case to the
court. The applicant was assisted by a lawyer in the domestic
proceedings, including appeal proceedings against the deportation
order.
2. The applicant
- The
applicant argued that the administrative removal order and its
possible enforcement constituted an interference with his “family
life”. The applicant was living with his common-law wife Ms A.
and had fathered two of her children; both had his patronymic; the
son also had his family name on his birth certificate. The national
courts did not examine the matter relating to Article 8 of the
Convention.
B. The Court’s assessment
1. Admissibility
- The
Court will first examine the Government’s argument concerning
applicability of Article 8 of the Convention in the absence of a
registered marriage between the applicant and Ms A.
- The
Court reiterates at the outset that Article 8 protects the right to
establish and develop relationships with other human beings and the
outside world and can sometimes embrace aspects of an individual’s
social identity. The totality of social ties between settled migrants
and the community in which they are living constitutes part of the
concept of “private life” within the meaning of Article
8. Regardless of the existence or otherwise of a “family life”,
the expulsion of a settled migrant therefore constitutes an
interference with his or her right to respect for “private
life”. It will depend on the circumstances of the particular
case whether it is appropriate for the Court to focus on the “family
life” rather than the “private life” aspect (see
Üner v. the Netherlands [GC], no. 46410/99, § 59,
ECHR 2006-XII).
- As
to the notion of “family life”, the Court first
reiterates its well-established case-law, according to which the
notion of family under Article 8 of the Convention is not confined to
marriage-based relationships and may encompass other de facto
“family” ties where the parties are living together out
of wedlock (see, among others, Schalk and Kopf v. Austria,
no. 30141/04, § 94, ECHR 2010 ..., and Keegan v.
Ireland, 26 May 1994, § 44, Series A no. 290).
- Second,
as regards minor children, the Court also reiterates that a child
born of a marital relationship is ipso jure part of that
“family” unit from the moment and by the very fact of his
or her birth (see Berrehab v. the Netherlands, 21 June
1988, § 21, Series A no. 138). Thus, there exists between the
child and its parents a bond amounting to family life. The existence
or non-existence of “family life” within the meaning of
Article 8 is also a question of fact depending upon the real
existence in practice of close personal ties, for instance the
demonstrable interest and commitment by the father to the child both
before and after birth (see Lebbink v. the Netherlands,
no. 45582/99, § 36, ECHR 2004-IV).
- Turning
to the present case, the Court observes that the question concerning
the existence of a private and/or family life was not examined at the
national level in the light of the above principles (see paragraphs 17
and 19 above). Thus, the Court will have to make its own assessment,
in the light of the parties’ submissions.
- The
Court notes the applicant’s submission, which was not contested
by the respondent Government, that he had arrived in Russia in 1995,
that is at or around the age of fourteen. It is common ground that by
2004 the applicant was living in a common-law marriage with a Russian
national, Ms A. It is uncontested that at least between October
2004 and September 2006 the applicant was residing lawfully in
Russia.
- It
is also noted that Ms A. gave birth to two children, in 2005 and
2006. The boy was given the applicant’s last name and was
formally recognised by him as his son. While the girl was not
formally recognised as his daughter, for unspecified reasons, she has
the applicant’s name as her patronymic. Importantly, it is
common ground that the applicant and Ms A. lived together in a
relationship, including when the two children were born. Equally, it
appears that the applicant assumed from the beginning the role of the
children’s father.
- Making the above findings, the Court reiterates that
the question whether the applicant had a private and/or family life
within the meaning of Article 8 § 1 should be determined in the
light of the position at the time when the impugned measure became
final (see Maslov v. Austria [GC], no. 1638/03, §
61, 23 June 2008, and Boujlifa v. France, 21 October
1997, § 36, Reports of Judgments and Decisions
1997 VI). In any event, the Court observes that the relevant
factual and legal circumstances had not changed significantly since
January 2007. At the same time, the Court cannot be oblivious to the
fact that at least by April 2011 the removal measure had not been
enforced in respect of the applicant. It follows that the applicant’s
family life with Ms A. continued in Russia between 2007 and 2011, and
that inter alia the children have approached or reached the
age of five.
- In
the light of the foregoing, the Court considers that the applicant’s
relationship with Ms A. and two children constituted “family
life”. The Court therefore finds that the facts of the instant
case fall within the ambit of Article 8 § 1 of the Convention.
- Furthermore,
the Court considers that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. No other ground for declaring it inadmissible has
been established. Thus it should be declared admissible.
2. Merits
(a) General principles
- The Court reiterates that a State is entitled, as a
matter of international law and subject to its treaty obligations, to
control the entry of aliens into its territory and their residence
there (see, among other authorities, Maslov, cited above, §
68). The Convention does not guarantee the right of an alien to enter
or to reside in a particular country and, in pursuance of their task
of maintaining public order, Contracting States have the power to
expel an alien convicted of criminal offences. However, their
decisions in this field must, in so far as they may interfere with a
right protected under paragraph 1 of Article 8, be in accordance with
the law and necessary in a democratic society, that is to say
justified by a pressing social need and, in particular, proportionate
to the legitimate aim pursued (see Slivenko v. Latvia [GC],
no. 48321/99, ECHR 2003-X, § 113).
- The
relevant criteria that the Court uses to assess whether an expulsion
or equivalent measure is necessary in a democratic society have been
summarised as follows in the Üner case (cited above,
§§ 57-58):
“57. Even if Article 8 of the
Convention does not ... contain an absolute right for any category of
alien not to be expelled, the Court’s case-law amply
demonstrates that there are circumstances where the expulsion of an
alien will give rise to a violation of that provision...In the case
of Boultif the Court elaborated the relevant criteria which it
would use in order to assess whether an expulsion measure was
necessary in a democratic society and proportionate to the legitimate
aim pursued. These criteria...are the following:
- the nature and seriousness of the offence
committed by the applicant;
- the length of the applicant’s stay in
the country from which he or she is to be expelled;
- the time elapsed since the offence was
committed and the applicant’s conduct during that period;
- the nationalities of the various persons
concerned;
- the applicant’s family situation,
such as the length of the marriage, and other factors expressing the
effectiveness of a couple’s family life;
- whether the spouse knew about the offence
at the time when he or she entered into a family relationship;
- whether there are children of the marriage,
and if so, their age; and
- the seriousness of the difficulties which
the spouse is likely to encounter in the country to which the
applicant is to be expelled.”
- The
Court takes into account the best interests and well-being of the
children, in particular the seriousness of the difficulties which any
children of the applicant are likely to encounter in the country to
which the applicant is to be expelled; and the solidity of
social, cultural and family ties with the host country and with the
country of destination.
- While
the above criteria are meant to facilitate the application of Article
8 in expulsion cases by domestic courts, the weight to be attached to
the respective criteria will inevitably vary according to the
specific circumstances of each case.
- The
State must strike a fair balance between the competing interests of
the individual and of the community as a whole; and in both contexts
the State enjoys a certain margin of appreciation. Moreover,
Article 8 does not entail a general obligation for a State to
respect immigrants’ choice of the country of their residence
and to authorise family reunion in its territory. Nevertheless, in a
case which concerns family life as well as immigration, the extent of
a State’s obligations to admit to its territory relatives of
persons residing there will vary according to the particular
circumstances of the persons involved and the general interest (see
Rodrigues da Silva and Hoogkamer v. the Netherlands, no.
50435/99, § 39, ECHR 2006 I).
- Factors
to be taken into account in this context are the extent to which
family life is effectively ruptured, the extent of the ties in the
Contracting State, whether there are insurmountable obstacles in the
way of the family living in the country of origin of one or more of
them and whether there are factors of immigration control (for
example, a history of breaches of immigration law) or considerations
of public order weighing in favour of exclusion (ibid.). Another
important consideration is whether family life was created at a time
when the persons involved were aware that the immigration status of
one of them was such that the persistence of that family life within
the host State would from the outset be precarious (see, among
others, Darren Omoregie and Others v. Norway, no. 265/07, §
57, 31 July 2008).
(b) Application of the principles in the
present case
- The Court considers that the administrative removal
from the country constituted an “interference” with the
applicant’s right to respect for his family life. The
interference at issue will be in violation of Article 8 unless it is
justified under the second paragraph of that provision.
- The Court finds that the interference in the present
case was in accordance with the law, namely Article 18.8 of the Code
of Administrative Offences. Administrative removal from the country
was a subsidiary penalty for a violation of residence regulations for
foreigners. The applicant was found liable due to the absence of
“registration” (see paragraphs 26 and 33 above).
- It
was argued by the respondent Government that this interference
pursued a legitimate aim of protecting public safety or order.
However, the key question for the Court is whether the measure was
necessary in a democratic society and proportionate to the legitimate
aim pursued.
- The
Court reiterates that it was not contested that the applicant arrived
in Russia in 1995 at the age of fourteen as a football player and
then was admitted to a higher educational institution. As from 2003
or 2004 the applicant was lawfully living in the Krasnodar region
with a Russian national, Ms A., as common-law husband and wife. In
September 2006 the document authorising his stay in Russia was
revoked.
- Furthermore,
the Court observes that the offence for which on 11 January 2007
the applicant was ordered to leave Russia consisted of non-observance
of the “registration” procedure for foreigners, which
could be classified as a minor administrative offence (see paragraph
26 above). It is noted that until 15 January 2007 the Foreigners
Act contained provisions concerning registration of foreigners.
Foreigners had to apply for “registration” within three
days of arrival in Russia (see paragraph 33 above). The Court does
not overlook the Government’s argument that in November 2006
the applicant had already been fined on the same grounds.
- However,
the Court is not convinced that after his visa had been revoked in
September 2006 the applicant, who was no longer “lawfully”
resident in the country, had any reasonable opportunity to regularise
his presence in Russia, having regard to the applicable provisions
and procedures of Russian law. Under the Foreigners Act a foreigner
should leave Russia after the expiry of the authorised period, except
when on the date of expiry he has already obtained an authorisation
for extension or renewal, or when his application for extension and
the relevant documents have been accepted for processing (see
paragraph 30 above).
- Thus,
it appears that in the circumstances of the case the applicant had to
leave Russia in order to have a legal possibility to seek a new
authorisation to re-enter the territory of Russia. Indeed, as the
applicant had no valid authorisation to remain in the country he was
provided with a transit visa valid from 7 to 16 November 2006,
to enable him to leave Russia. However, he did not leave the country,
as he explained, because his wife had recently given birth to their
second child and he had to take care of their first child. In so far
as the applicant’s behaviour and eventual efforts to regularise
his presence in Russia may be relevant for its assessment, the Court
considers that the applicant acted in the way lacking diligence and
thus contributing to reaching a “deadlock” situation
concerning his immigration status in Russia. At the same time, it
should be noted that the applicant was found liable because of
non-observance of the registration procedure rather than because of
staying in the country without a valid document such as a visa or a
residence permit.
- As
can be seen from the administrative offence record, the applicant
limited his arguments before the arresting officer to stating that he
had not had enough time to renew his residence status. While
unassisted by a lawyer the applicant did not raise matters pertaining
to his family life at the hearing before the first-instance court
dealing with the administrative offence. The Court agrees with the
Government that it could be reasonably assumed that having resided in
Russia for a considerable period of time the applicant could have
acquired some knowledge of the Russian language, which would suffice
for the purpose of raising his grievances before national authorities
or understanding the procedural rights notified to him (see, mutatis
mutandis, Lagerblom v. Sweden, no. 26891/95, §§ 61
and 62, 14 January 2003).
- However,
given the nature of the proceedings which concerned a possible breach
of registration or residence regulations for foreigners, the Court
accepts that the pertinence of the matters relating to or affecting
family life might not be immediately clear for the applicant at that
point in the proceedings. It should be noted that the relevant
argument was aired before the appeal court, as well as in the
applications for supervisory review, when the applicant challenged
the order of administrative removal against him.
- Thus,
while the applicant’s behaviour is not entirely beyond
reproach, the attitude of the national authorities in the present
case also raises serious questions in terms of Article 8 of the
Convention.
- In the Court’s view, the possibility for the
authorities to react with expulsion may constitute an important means
of general deterrence against gross or repeated violations of
immigration regulations. A scheme of implementation of national
immigration law which, as here, is based on administrative sanctions
in the form of expulsion does not as such raise an issue of failure
to comply with Article 8 of the Convention. In any event, it is not
for the Court to rule in abstracto on the compatibility of the
immigration procedures with the Convention, but to ascertain in
concreto what effect the application in this case of the relevant
procedures had on the applicant’s right under Article 8 of the
Convention.
- The
Court reiterates in that connection that whenever discretion capable
of interfering with the enjoyment of a Convention right such as the
one in issue in the present case is conferred on national
authorities, the procedural safeguards available to the individual
will be especially material in determining whether the respondent
State has remained within its margin of appreciation. Indeed it
is settled case-law that, whilst Article 8 contains no explicit
procedural requirements, the decision-making process leading to
measures of interference must be fair and such as to afford due
respect to the interests safeguarded to the individual by Article 8
(see Chapman v. the United Kingdom [GC], no. 27238/95, §
92, ECHR 2001 I, and Buckley v. the United Kingdom,
25 September 1996, § 76, Reports 1996 IV).
- It
has not been alleged that the national courts in the administrative
offence procedure, as in the present case, were unable to assess the
penalty to be imposed, taking into account the relevant principles
under Article 8 of the Convention (see, for comparison, McCann v.
the United Kingdom, no. 19009/04, §§ 49-55, 13 May
2008). To the contrary, the domestic judicial practice required that
matters relating to family life be taken into consideration when
deciding on an administrative removal (see paragraph 32 above).
- Having
said that, the Court is not satisfied with the appeal court’s
reasoning concerning factual and legal matters pertaining to the
applicant’s family life when a decision concerning the penalty
of administrative removal from Russia was upheld. As already noted,
the court did not rely on the applicable principles under the
Convention concerning the existence of a private and/or family life
(see also paragraphs 19 and 36 above). Moreover, it has to be borne
in mind that where, as in the present case, the interference with the
applicant’s rights under Article 8 was meant to pursue, as a
legitimate aim, the protection of public safety or order, the
national authorities should have evaluated the extent to which the
applicant endangered public safety or order.
- The Court also notes that, despite the pertinence of
the personal testimony, the appeal court did not hold a hearing. Nor
did it find necessary to hear Ms A. It has been emphasised by the
applicant that under the applicable legislation deportation precluded
his subsequent re-entry into Russia for five years and the issue of a
temporary residence permit for the same period of time (see
paragraphs 31 and 34 above). In such circumstances, as required under
Russian law (see paragraph 32 above), the national authorities should
have given consideration to this question, as well as to the matters
pertaining to the best interests and well-being of the children, as
well as the solidity of social, cultural and family ties with
Cameroon and Russia (see also Üner, cited above, §
58).
- To
sum up, the absence of the authorities’ assessment of the
impact of their decisions on the applicant’s family life must
be seen as falling outside any acceptable margin of appreciation of
the State.
- In
these circumstances, the Court considers that it has not been
convincingly established that the applicant’s non-compliance
with the registration requirement of the residence regulations
effectively outweighed the fact that the applicant has been living in
Russia for a considerable period of time in a household with a
Russian national, with whom he has two children.
- Accordingly,
the Court finds that the applicant’s removal from Russia would
constitute a violation of Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 7
TO THE CONVENTION
- The
applicant further complained that he had not been properly
represented in the proceedings before Russian authorities. This
matter falls to be examined under Article 1 of Protocol No. 7,
which reads in the relevant part as follows:
“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....”
- The
Government submitted that the applicant had no longer been “lawfully”
resident in Russian after 9 September 2006. This was established as
fact by a court decision of 3 November 2006. He had been given a
transit visa valid from 7 to 16 November 2006 to allow him to leave
Russia. Instead, he continued his unlawful residence in the country.
Thus, he had not been lawfully resident in Russia during the
proceedings against him in 2007.
- The
applicant maintained his complaint.
- The
Court observes that at the time of the administrative offence
proceedings in 2007 the applicant was no longer “lawfully”
resident in Russia. It follows that this complaint is incompatible
ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
V. 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the applicant EUR 9,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 1,050 for costs and expenses incurred
before the domestic courts and this Court.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, having regard to the
above criteria, the Court awards EUR 800 under all heads, plus any
tax that may be chargeable to the applicant.
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
- Declares the complaint concerning the
applicant’s detention with a view to his administrative removal
from Russia and the complaint concerning his family life admissible
and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 5 § 1 (f) of the Convention;
- Holds that the applicant’s removal from
Russia would constitute a violation of Article 8 of the Convention;
- 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, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
800 (eight hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 27 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
