USTINOVA v. RUSSIA - 7994/14 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 957 (08 November 2016)

In the case of Ustinova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

     Luis López Guerra, President,
     Helena Jäderblom,
     Dmitry Dedov,
     Branko Lubarda,
     Pere Pastor Vilanova,
     Alena Poláčková,
     Georgios A. Serghides, judges,

and Stephen Phillips, Section Registrar,

Having deliberated in private on 11 October 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 7994/14) 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 Ukrainian national, Ms Anna Yuryevna Ustinova (“the applicant”), on 27 December 2013.

2. The applicant was represented by Ms I. Khrunova, a lawyer practising in Kazan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant alleged that she had been separated from her family in Russia because of her state of health.

4. On 10 September 2014 the application was communicated to the Government. On 12 May 2016 the Court requested additional information from the parties regarding the applicant’s current situation.

5. The Ukrainian Government were informed of their right to intervene in the proceedings in accordance with Article 36 § 1. They chose not to avail themselves of that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The facts of the case, as submitted by the parties, may be summarised as follows.

A. The applicant’s exclusion from Russia

7. The applicant was born in 1984 and moved to live in Russia in the early 2000s.

8. In 2008 she met A.U., a Russian national, and they started living together in the Krasnodar Region. In 2009 the applicant’s daughter from a previous marriage moved in with them to attend a primary school. On 16 March 2012 the applicant and A.U. married and on 23 August 2012 their son was born. He acquired Russian nationality.

9. On 30 March 2013 the applicant was returning home by train after a visit to Ukraine, together with the two children. Shortly after midnight on 31 March 2013 the Russian Border Control Service handed her a notice, informing her that she would not be allowed to re-enter Russia, in accordance with the Entry and Exit Procedures Act. The notice did not specify the grounds for that decision.

10. In April 2013 the applicant’s husband obtained a copy of a decision pronouncing her presence in Russia to be undesirable (“the exclusion order”), which the Consumer Protection Authority (CPA) had issued on 9 June 2012. The text of the order indicated that the applicant’s presence in Russia had been declared undesirable by the Krasnodar regional division of the CPA on 9 June 2012, in accordance with section 25.10 of the Entry and Exit Procedures Act. It did not state any facts or reasons for the applicant’s exclusion. It directed the applicant to leave Russia by 22 June 2012 or face deportation and informed her that she would be denied re-entry to Russia, in accordance with section 27 of the Entry and Exit Procedures Act. It subsequently transpired that the basis for the exclusion order was that during her pregnancy in 2012 the applicant had tested positive for HIV and that the hospital had reported her HIV-positive status to the CPA.

11. According to the Government, the Krasnodar division of the CPA sent the exclusion order to the applicant by registered mail on 19 June 2012. They produced a log of registered correspondence which was to be submitted to the post office for dispatch on that date.

12. The applicant’s husband, acting as the claimant and also as the applicant’s representative, challenged the exclusion order before the Russian courts, claiming in particular that the CPA had disregarded the applicant’s family connections in Russia and her state of health.

13. On 24 May 2013 the Tsentralnyy District Court in Sochi rejected the claim in summary fashion, repeating verbatim the text of the exclusion order and holding that it was lawful. On 23 July 2013 the Krasnodar Regional Court upheld the District Court’s judgment, finding that the applicant’s infection with HIV “created a real threat to the Russian population”.

14. In the statement of appeal to the cassation instance, the applicant’s husband prayed in aid the position of the Russian Constitutional Court which emphasised the necessity to take humanitarian considerations into account when deciding on the removal of a family member, and on the Court’s case-law under Article 8 of the Convention. He pointed out that the applicant’s husband and newborn son were Russian nationals, that her daughter was enrolled in a Russian school and that the HIV infection was in a latent stage. On 30 September and 19 December 2013 the Krasnodar Regional Court and the Supreme Court of Russia respectively issued summary decisions, dismissing the application for an examination of the case by the cassation instance.

15. The applicant and her daughter eventually took up residence in Novogrodovka in the Donetsk Region of Ukraine. Her husband and their son have been living in St Petersburg, Russia. The husband was unable to visit her in the Donetsk Region.

B. Developments subsequent to the communication of the case

16. On 12 March 2015 the Constitutional Court ruled on a constitutional challenge brought by the applicant and two other aliens and their Russian spouses against section 11(2) of the HIV Prevention Act, section 7(1)(13) of the Foreign Nationals Act, and section 25.10 of the Entry and Exit Procedures Act. The Constitutional Court held that migration laws can lawfully restrict access to Russia by non-Russian nationals whose medical condition might jeopardise public health and pose a threat to national security. It acknowledged the contemporary medical consensus that HIV did not pose a threat to public health because it could not be transmitted merely because of the presence of an infected individual in the country or through casual contact, airborne particles, food or water. The Constitutional Court held as follows:

“1. To declare that the closely related provisions of section 25.10 of the Entry and Exit Procedures Act, section 11(2) of the HIV Prevention Act, and section 7(1)(13) of the Foreign Nationals Act are incompatible with the Russian Constitution ... in so far as they allow [the executive authorities] to declare undesirable the presence of a foreign national or a stateless person whose family permanently resides in Russia, to issue a deportation order or an entry ban, to refuse him a residence permit or to cancel a previously issued residence permit solely because that person is HIV-positive, provided that the person has complied with the legal requirements on HIV-positive individuals relating to the prevention of spreading the infection, and provided that no other circumstances would call for such restrictions.

2. The federal legislator should - in the light of the requirements of the Russian Constitution and the position of the Constitutional Court, as expressed in the present judgment - introduce the necessary amendments into the existing corpus of laws which would clarify the grounds and the procedure for making decisions relating to the right of HIV-positive foreign nationals or stateless persons to stay and live in the Russian Federation.”

Pending such amendments, the Constitutional Court directed that the executive and judicial authorities be guided by the position it had formulated in the judgment.

17. On 20 April 2015 the applicant’s husband applied to the Tsentralnyy District Court in Sochi for a reconsideration of the District Court’s judgment of 24 May 2013 on account of the new case-law of the Constitutional Court. On 3 July 2015 the District Court dismissed his application. It found that, lacking the information that the applicant had been receiving antiretroviral therapy, she must be presumed to be a threat to others, including those with whom she had social and casual contact. The District Court also stated that she was not a law-abiding individual because she had given birth to a child in Russia after her presence there had been declared undesirable.

18. The applicant’s husband appealed and on 22 October 2015 the Krasnodar Regional Court quashed the above judgment, finding that the District Court had not heeded the position of the Constitutional Court and had incorrectly shifted the burden of proof onto the applicant:

“The Krasnodar office of the Consumer Protection Authority did not produce any evidence of Ms Ustinova’s conviction under Article 122 of the Criminal Code (Infection by HIV) and/or under Article 6.1 of the Code of Administrative Offences (Concealing the source of HIV infection). Nor did it show that she had breached any obligation which the law imposes on HIV-positive individuals, for instance, by refusing to take antiretroviral therapy. No such information is available in the case file, whereas the court establishes that [the applicant and her husband] are both receiving medical treatment. It follows that the first-instance court’s finding that Ms Ustinova’s presence constitutes a threat to other Russian residents, including those with whom she has had social and casual contact, is erroneous and contradicts the Constitutional Court’s judgment since the mere fact of HIV infection is not a ground for applying such important restrictions on her private life.”

19. The Regional Court pronounced the exclusion order unlawful and directed the Krasnodar office of the Consumer Protection Authority to redress the effects of the violation.

20. In response to the Court’s request for additional information of 12 May 2016 (see paragraph 4 above), on 29 June 2016 the Government submitted that the applicant had crossed the Russian border on 17 August 2015. On 18 May 2016 the Federal Migration Service issued her a three-year temporary residence permit. On 31 May 2016 the Consumer Protection Authority informed the Border Control Service about the annulment of the exclusion order. Lastly, the Government indicated that measures for removing her name from the list of persons who should be refused entry to Russia, “[were] being taken”.

21. The applicant replied that she had only been able to re-enter Russia by crossing the border between Ukraine and Belarus and by continuing from Belarus to Russia, as there are no controls on the Belarus-Russia border. As of 16 August 2016, she has not been notified that the exclusion order of 9 June 2012 was formally rescinded and that the Border Control database was updated accordingly.

II. RELEVANT DOMESTIC LAW

A. The HIV Prevention Act (no. 38-FZ of 30 March 1995)

22. Section 11(2) provides that foreign nationals and stateless persons who are on Russian territory are to be deported once it is discovered that they are HIV-positive.

B. Entry and Exit Procedures Act (no. 114-FZ of 15 August 1996)

23. A competent authority may issue a decision that a foreign national’s presence on Russian territory is undesirable (“the exclusion order”). Such a decision may be issued if a foreign national is unlawfully residing on Russian territory or if his or her residence is lawful but creates a real threat, in particular to public order or health. If such a decision has been taken, the foreign national has to leave Russia or will otherwise be deported. That decision also forms the legal basis to a subsequent refusal of re-entry into Russia (section 25.10).

24. The list of authorities competent to take such a decision was approved by Government Resolution no. 199 of 7 April 2003. It included, among others, the Ministry of the Interior, the Federal Migration Service and the Consumer Protection Authority.

25. If a competent authority has issued a decision that a foreigner’s presence on Russian territory is undesirable, that foreigner will be refused entry into Russia (sections 25.10 and 27(7)(7)).

C. Regulations issued by the Consumer Protection Authority

26. On 14 September 2010 the Federal Authority for Consumer Protection and the Supervision of Human Well-being, by Order no. 336 approved Guidance on the procedure for the preparation, submission and examination of materials leading to a decision on the undesirability of the presence of a foreign national or stateless person in Russia.

27. The Guidance establishes that such a decision must be taken by the head of the Consumer Protection Authority (CPA) or a deputy, on the proposal of a regional division of the CPA (section 2). The regional division prepares the documentary evidence, such as medical certificates, showing that the foreign national is infected with a communicable disease, including HIV (section 3). The medical evidence and a draft decision pronouncing the foreign national’s presence undesirable must be submitted to the central CPA no later than ten days after receipt of the materials providing the grounds for making such a decision (section 6).

28. The central CPA issues the decision within one month of receipt of the materials (section 8). Within that period, the Epidemiological Control Department must check the materials with a view to ascertaining the grounds for taking the decision or identifying “any circumstances preventing the decision from being taken” (section 10). The Legal Department, in its turn, can return the materials to the regional division of the CPA if it establishes that the decision would be incompatible with the Constitution, the international commitments of the Russian Federation in the sphere of human rights and fundamental freedoms, or Russian legislation (section 11).

29. Within five days of approval of the decision by the head of the CPA or a deputy, the central CPA forwards a copy of it to the Border Control Service and to the regional division of the CPA (section 12). The regional division of the CPA must give written notice of the decision to the individual concerned no later than three days of receiving a copy of it. The notification must be delivered to the individual concerned in person or sent by registered mail to the last known address, with acknowledgement of receipt. The Federal Migration Service is informed of the decision within three days of its notification. It will have to control the foreign national’s departure or organise his or her deportation if necessary (section 13).

30. Annex 3 to the Guidance contains a sample notification text. It informs the individual concerned that a decision pronouncing his or her presence undesirable has been made by the CPA in accordance with section 25.10 of the Entry and Exit Procedures Act. It sets a time-limit for leaving Russia and indicates that the person will be deported if or he or she does not leave. Finally, it reminds the person that pursuant to section 27 of the Entry and Exit Procedures Act he or she will not be allowed to re-enter Russia.

III. RELEVANT COUNCIL OF EUROPE MATERIAL

31. The Committee of Ministers’ Recommendation Rec(2000)15 concerning security of residence of long-term migrants, adopted on 13 September 2000, reads in particular as follows:

“1. As regards the acquisition of a secure residence status for long-term immigrants

a. Each member state should recognise as a ‘long-term immigrant’ an alien who:

i. has resided lawfully and habitually for a period of at least five years and for a maximum of ten years on its territory otherwise than exclusively as a student throughout that period ...”

32. The Parliamentary Assembly Recommendation 1504 (2001) on non-expulsion of long-term immigrants provides:

“1. Legal immigrants who, while retaining their original nationality, have settled in a host country which is a member of the Council of Europe, in order to live there for a long period of time, may, in accordance with the law in force, be expelled from that country for reasons of public order, and in particular after they have been convicted, or even simply accused, in criminal proceedings.

...

8. Those persons who were lawful residents in a country prior to establishment or restoration of the independence of that country should enjoy at least the same level of protection as long-term immigrants and, in particular, under no circumstances be expelled.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

33. The applicant complained that the exclusion order resulting in her separation from her family in Russia had breached Article 8 of the Convention, which 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. Admissibility

34. The Government submitted that following the Regional Court’s judgment of 22 October 2015 the applicant’s rights had been reinstated at national level.

35. The Government’s argument may be interpreted as a claim that the applicant is no longer a “victim” of the alleged violation within the meaning of Article 34 of the Convention, or that the matter has been resolved, within the meaning of Article 37 § 1 (b). In both cases, the Court must ascertain that, in addition to an acknowledgement of the alleged violation of the Convention which is a required element for the determination of the applicant’s victim status, the circumstances complained of by the applicant have ceased to exist and that the effects of the alleged violation have been redressed (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007-I).

36. The Court notes that on 22 October 2015 the Regional Court - in the re-opened proceedings (see paragraph 18 above) - declared the exclusion order barring the applicant’s entry to Russia owing to her state of health to have been unlawful. However, the Government did not demonstrate that her name has been definitively deleted from the list of undesirable individuals maintained by the Border Control Service, they merely submitted that, as of the date of their letter in June 2016 (see paragraph 20 above) measures were being taken to that effect. In any event, even though the period of insecurity and legal uncertainty which the applicant had to endure in connection with the decision to declare her presence in Russia undesirable was relatively short, she was denied entry to Russia in March 2013 and was unable to continue living in Russia together with her husband and son for more than two years, until August 2015. This element distinguishes the present case from those in which the applicants were effectively able to remain in the country for the entire duration of the proceedings and where no attempts were made to remove them or otherwise restrict them in the enjoyment of their family life (see Shvalia and Kostycheva v. Russia (dec.), nos. 46280/14 and 75781/14, 8 March 2016; Borisov v. Lithuania, no. 9958/04, § 112, 14 June 2011; and Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 53, 7 December 2007). In these circumstances, the Court cannot find that the effects of the alleged violation have been sufficiently redressed.

37. The Government also submitted that it was not the applicant, but her husband who had applied to the domestic courts to set aside the exclusion order. The applicant replied that because she had been prevented from entering Russia her husband had had to conduct the proceedings in her stead. The Russian courts had examined the merits of the challenge to the exclusion order and had upheld it as lawful.

38. The Court cannot accept the Government’s objection because what is relevant is that the domestic authorities found the appeal against the exclusion decision admissible and examined it, delivering judicial decisions on the substance of the issues now brought before the Court. It cannot therefore be claimed that domestic remedies have not been exhausted (see Vachkovi v. Bulgaria, no. 2747/02, § 58, 8 July 2010; Raichinov v. Bulgaria (dec.), no. 47579/99, 1 February 2005; and, mutatis mutandis, Öztürk v. Turkey [GC], no. 22479/93, §§ 45-46, ECHR 1999-VI, see also Gablishvili v. Russia, no. 39428/12, §§ 43 and 61, 26 June 2014, in which the Court found that the enforcement of an exclusion order would constitute a violation of Article 8 in respect of both the foreign applicant and his Russian wife).

39. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

40. The applicant submitted that she had first learnt of the decision barring her entry to Russia at the Russian-Ukrainian border control point on 31 March 2013. The issuing authority had not advised her in any way that the matter of her being able or unable to stay in Russia was to be decided. She had not been invited to take part in any discussions about a decision which had major implications for her and her family’s life, nor had she been allowed to present her position to the authorities or submit medical and other documents relevant to the case, such as her marriage certificate. The text of the exclusion order showed that it had been adopted on purely formal grounds, without any analysis of her way of life, matrimonial status or family situation. The authorities had asserted that she posed a threat to public health but had not explained what the basis for that assertion was. The applicant pointed out that the Consumer Protection Authority had received the documents relating to her diagnosis on 24 February 2012 and issued the exclusion order on 9 June 2012, without taking into consideration that she had contracted a marriage in the meantime, on 16 March 2012. She had never been convicted of any offence, she was married to a Russian national, her son had acquired Russian nationality by birth and her daughter went to a Russian school. The interference with her right to respect for her family life had not pursued any legitimate aim, had not been justified by any public need and had been disproportionate to the objective pursued by the law. Finally, the applicant emphasised that she had been born in the Soviet Union prior to the declaration of Ukraine’s independence and should enjoy at least the same level of protection as long-term immigrants (she referred to point 8 of the Parliamentary Assembly Recommendation 1504 (2001) and to Balogun v. the United Kingdom, no. 60286/09, § 45, 10 April 2012).

41. The Government submitted that the applicant was neither a long-term immigrant nor a settled migrant within the meaning of the Committee of Ministers’ Recommendation Rec(2000)15: she had arrived in Russia as an adult, having lived most of her life in Ukraine. It had not been shown that she and her husband would not be able to continue their family life in Ukraine or that she would not receive appropriate treatment there (here the Government referred to N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008). The Government maintained that the exclusion order had been issued in full compliance with domestic legal requirements and had been sent to the applicant by registered mail. The decision had been based on medical evidence which the hospital had provided to the CPA and which had been issued in connection with the applicant’s infectious disease. The CPA had not examined the applicant’s family situation because at the time it had received the medical documents her marriage to a Russian national had not been yet celebrated, and also because Russian law, in accordance with established social and cultural traditions, only extended its protection to civil marriages. The applicant had not produced documents to show she had been registered with the local Aids prevention centre. Lastly, the Government invited the Court to distinguish the present case from De Souza Ribeiro v. France ([GC], no. 22689/07, ECHR 2012), in which the applicant had not had an opportunity to have the lawfulness of a removal order examined before being deported. In contrast, in the present case the applicant’s husband had been able to exercise all the procedural rights he had under Russian law in the judicial proceedings he had instituted before the domestic courts. The Government cited, by way of example, a number of judgments in which Russian courts had found for claimants in similar circumstances.

2. The Court’s assessment

42. The Court reaffirms at the outset 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 many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94). Where immigration is concerned, Article 8 cannot be considered as imposing a general obligation on a State to respect the choice of married couples of the country of their matrimonial residence and to authorise family reunion on its territory (see Gül v. Switzerland, 19 February 1996, § 38, Reports of Judgments and Decisions 1996-I). However, the removal of a person from a country where close family members are living may amount to an infringement of the right to respect for family life, as guaranteed by Article 8 § 1 of the Convention (see Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001-IX). Where children are involved, their best interests must be taken into account and national decision-making bodies have a duty to assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014; X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013; and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010).

43. The applicant had been living in Russia since 2008 with her Russian partner, whom she married in 2012. In the same year they gave birth to a child who acquired Russian nationality from his father. The Court reiterates that the concept of “family life” includes relationships that arise from a lawful and genuine marriage (see Abdulaziz, Cabales and Balkandali, cited above, § 62) and that children born out of a relationship are ipso iure part of the “family” unit from the moment of their birth and by the very fact of it (see Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290). The Russian authorities pronounced the applicant’s presence in Russia undesirable and she was denied re-entry into Russia in early 2013. As a consequence, she has not been able to continue living with him and their child in Russia which disrupted her family life there. The Court considers that those measures by the Russian authorities constituted an interference with her right to respect for her family life.

44. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that provision as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned. The first of these requirements, namely that any interference be “in accordance with the law”, does not merely require that the impugned measure should have a basis in domestic law but also refers to the quality of the law in question. The law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to the impugned measures. In addition, domestic law must afford a measure of legal protection against arbitrary interference by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law for legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, in order to give the individual adequate protection against arbitrary interference (see Roman Zakharov v. Russia [GC], no. 47143/06, § 247, ECHR 2015, and Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI). The issue of procedural safeguards against abuse under the Convention’s “quality of law” requirement overlaps with similar issues analysed in the examination of the decision-making process by means of the proportionality test under Article 8 § 2 (see Gablishvili, cited above, § 48, and Liu v. Russia (no. 2), no. 29157/09, § 86, 26 July 2011).

45. The Court observes that in previous cases against Russia it has found that the legal framework and practice for issuing exclusion orders under domestic law did not give an adequate degree of protection against arbitrary interference because the executive agency could take such decisions without hearing the foreign national concerned and without giving specific reasons or mentioning concrete facts which may have rendered the individual’s presence in Russia undesirable (see Gablishvili, cited above, §§ 24, 45 and 54, in which the applicant’s presence was pronounced undesirable by the Federal Service of Drug Control in connection with his drug addiction, and Liu v. Russia, no. 42086/05, § 60-65, 6 December 2007, in which the Federal Migration Service declared the applicant’s presence undesirable because of his illegal residence in Russia).

46. Although the applicant’s presence was pronounced undesirable by a different executive agency - the Consumer Protection Authority - in connection with her medical condition, the same deficiencies of the legal framework are apparent in the present case. The Court notes that the applicant was not informed about the institution or conduct of proceedings leading to her exclusion from Russia (see paragraph 49 below), that she was not allowed to express her point of view in any form - whether by way of an interview or in writing - prior to the adoption of the exclusion order, and that the information upon which her contemplated exclusion was to be based was not communicated to her. It is important to note that those failings were not accounted for by the case being of any particular urgency or by any other objective of public importance. Rather, they resulted from strict adherence to the regulatory framework set out in the Guidance issued by the CPA (see paragraphs 26-30 above). The Guidance establishes that a decision pronouncing a foreign national’s presence undesirable is issued ex parte, on the basis of a purely internal assessment by the central office of the CPA on a proposal from the regional CPA. It makes no provision for any form of involvement of the individual concerned or any communication with him or her during the decision-making process.

47. The Government claimed that the reason why the CPA had not taken the applicant’s family ties in Russia into account was that at the relevant time she had not yet been married. The Court does not find this explanation persuasive. On the facts, it observes that the applicant was married on 16 March 2012 and that the exclusion order was issued on 9 June 2012, that is, almost three months later. The domestic authorities thus had ample time to obtain information about the applicant’s marriage, had they considered it relevant. That they did not obtain it is attributable not so much to a lack of diligence on their part as to the shortcomings of the existing legal framework for issuing decisions pronouncing the presence of HIV-positive non-nationals undesirable. As the Court has previously found, the relevant provisions of Russian law, including section 11(2) of the HIV Prevention Act, are of an imperative nature, leaving no room for an individualised assessment of the facts of a particular case (see Kiyutin v. Russia, no. 2700/10, § 72, ECHR 2011). The CPA’s Guidance does not contain any obligation to hear the individual concerned or take account of the specific circumstances of his or her case. The only element that the regional CPA needs to verify is the medical evidence of the person’s being infected with a communicable disease (see paragraph 27 above). Admittedly, the Guidance mentions that the Epidemiological and Legal Departments of the central CPA must identify any grounds capable of justifying the authority’s refraining from issuing an exclusion order and ensure that the order is compatible with Russian constitutional law and human rights obligations (see paragraph 28 above). However, it is unclear how any such grounds or incompatibility issues could be identified in practice, given that the material submitted for analysis by the central CPA is confined to a person’s medical diagnosis and the previously prepared text of a decision.

48. Although the Constitutional Court indicated that the imperative provisions of the HIV Prevention Act did not prevent the authorities from having regard to humanitarian considerations (see the decision of 12 May 2006 quoted in Kiyutin, cited above, § 24), it does not appear that any such considerations played a role in the decision-making process in the applicant’s case. The CPA did not refer to any elements relevant to her case, which included an established family life with a Russian national; the best interests of her first child, who was enrolled in a Russian school; the advanced stage of her pregnancy and her current state of health; and the absence of any indication of blameworthy behaviour. The Court emphasises that a decision based on a predetermined classification of an entire group of vulnerable individuals - people living with HIV in the instant case - as a threat to public health solely because of their condition, without assessment of their individual situations, cannot be considered compatible with Convention requirements (see Kiyutin, cited above, § 73, and Alajos Kiss v. Hungary, no. 38832/06, § 44, 20 May 2010).

49. The Government claimed that the order in the present case had been notified to the applicant by registered mail. They referred to a list of correspondence which had supposedly been taken to the post office for dispatch on 19 June 2012 (see paragraph 11 above). However, their assertion is not borne out by the evidence in the case file. The distinguishing feature of registered correspondence, as opposed to ordinary mail, is traceability of receipt: it has a tracking number and the recipient must sign for it. The CPA’s Guidance also provided that a notification should be made in a traceable manner, whether by hand delivery or with acknowledgement of receipt (see paragraph 29 above). Had the notification indeed been sent by registered mail as the Government’s document seemed to suggest, the domestic authorities should have been in possession of an acknowledgement-of-receipt card bearing the applicant’s signature. That document was not submitted to the Court. It lends therefore credence to the applicant’s assertion that she had not been notified about the exclusion order. It also appears irregular that the dispatch of the decision of 9 June 2012, which required the applicant to leave Russia by 22 June, was delayed by more than ten days, until 19 June, meaning that it was allegedly sent to her just three days before the expiry of the time-limit. Because of the failure to serve the order, the applicant only discovered the existence of the exclusion order barring her return to Russia after one year, as she was returning home from Ukraine with the children. As a result, she was forced to stay in Ukraine with her daughter, while her eight-month-old son remained in the care of her husband in Russia.

50. A copy of the notification that the applicant’s husband subsequently obtained did not mention any reasons in fact or in law for pronouncing her presence undesirable, or give any information about possible legal remedies (compare Gablishvili, cited above, § 54). Its text was identical to the text of the sample notification annexed to the CPA’s Guidance (see paragraph 30 above). It went no further than informing the recipient of the applicable procedural provisions of the Entry and Exit Procedures Act and directing her to leave Russia or face deportation. A copy of the CPA’s decision was not enclosed with the notification and the Guidance made no provision for it to be communicated to the individual concerned. The Court considers that the non-communication of the factual and legal reasons for adopting the exclusion order denied the applicant adequate protection against arbitrary interference with her right to respect for family life. The lack of reasoning must also have undermined the applicant’s ability to exercise her right to bring legal proceedings in an effective manner because she could not mount a defence against unknown charges.

51. Finally, the Court will turn to the scope and quality of the judicial review provided by the Russian courts in the proceedings initiated by the applicant’s husband (see paragraph 13 above). It reiterates that in order to protect a person against arbitrariness and to comply with the lawfulness requirement a formal possibility of bringing adversarial proceedings is not sufficient in itself. Domestic courts must undertake a meaningful and impartial scrutiny of all the relevant questions of fact and law to censure possible abuses by the authorities which affect rights under the Convention (see Gablishvili, cited above, § 57; Liu (no. 2), cited above, § 88; C.G. and Others v. Bulgaria, no. 1365/07, §§ 42-49, 24 April 2008; and Lupsa v. Romania, no. 10337/04, §§ 38-42, ECHR 2006-VII).

52. The applicant’s case was considered by no fewer than five different Russian courts, including the Supreme Court and the Constitutional Court. In the first round of proceedings, the courts in the Krasnodar region applied a formalistic and uninquisitive approach, considering themselves bound by the assessment made by the Consumer Protection Authority and leaving it full and unchecked discretion to determine that her presence in Russia constituted a threat to public health (compare M. and Others v. Bulgaria, no. 41416/08, § 102, 26 July 2011). The Krasnodar Regional Court described that threat as a “real” one, without elaborating why it was so. Both of the applicant’s applications for a cassation review, addressed first to the Regional Court and later to the Supreme Court, were dismissed without addressing the detailed legal arguments relating to the established case-law of the Constitutional Court and the Convention or factual elements militating against the disruption of her family life. The Russian courts did not attempt to perform any balancing exercise conforming with the criteria laid down in the Court’s case-law under Article 8 of the Convention (compare Gablishvili, cited above, § 56, and Liu (no. 2), cited above, § 89). The Court finds that, despite having the formal option to seek judicial review of the CPA’s actions, the applicant was not afforded a sufficiently thorough review by a national authority offering the requisite procedural safeguards against arbitrariness on the part of the authorities (compare Gablishvili, cited above, § 57).

53. In sum, the Court considers that neither the procedure employed by the executive agency for issuing the exclusion order nor the subsequent judicial review gave the applicant the requisite degree of protection against arbitrariness which is inherent in the concept of lawfulness within the meaning of the Convention. In view of that conclusion, the Court may dispense with examining the remaining issues which concern the existence of a legitimate aim and proportionality. It reiterates, however, that its findings in Kiyutin relating to a lack of a reasonable and objective justification for the differential treatment of people living with HIV remain applicable in the circumstances of the instant case (ibid., §§ 62-74).

54. There has accordingly been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8

55. The applicant complained that she had been a victim of discrimination on account of her health status, in breach of Article 14 of the Convention, taken in conjunction with Article 8.

56. The Government denied that the applicant had been a victim of any discriminatory treatment. The applicant maintained her discrimination complaint, relying on the Court’s findings in the above-cited Kiyutin judgment.

57. In view of its analysis under Article 8 of the Convention and the conclusions made under that heading, the Court considers that this complaint must be declared admissible but that, in the circumstances of the present case, it is not necessary to examine the facts from the standpoint of Article 14 of the Convention (see Gablishvili, cited above, § 64).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. 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

59. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.

60. The Government considered her claim to be excessive.

61. The Court awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

62. The applicant also claimed EUR 500 for legal fees incurred before the Court.

63. The Government submitted that the copy of the legal services agreement submitted in the case was illegible and that it consisted of a contingency fee which was unenforceable under Russian law.

64. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 for the proceedings before the Court, plus any tax that may be chargeable on the applicant.

C. Default interest

65. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there is no need to examine the complaint under Article 14 of the Convention, taken in conjunction with Article 8;

4. 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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> USTINOVA v. RUSSIA - 7994/14 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 957 (08 November 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/957.html Cite as: [2016] ECHR 957, CE:ECHR:2016:1108JUD000799414, ECLI:CE:ECHR:2016:1108JUD000799414