(Application no. 14139/03)
5 October 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bolat v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 September 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Extension of the residence permit
B. The applicant found guilty of a violation of the residence regulations
“The administrative proceedings against [the applicant] were initiated, and a fine in the amount of 500 roubles was imposed on him, not only on the basis of the obvious fact, established by Inspector A., that [the applicant] had been outside his place of residence but also on the basis of the report drawn up by O. and Sh., district police officers of Department of the Interior No. 3 of Nalchik, on [the applicant's] residence in the Furmanova street flat from 20 November to 11 December 2002... [These police officers] gave statements as witnesses and stated that they had learnt from operational sources that a foreigner, named Bolat Haci-Bayram, was secretly living in Kh.'s flat...
At the same time the complainant and the witnesses Mr Kh. and Ms Sh. failed to satisfy the court that [the applicant] had only stayed overnight at Kh.'s on the night of 10-11 December 2002 because of heavy frost outside and the need to avoid returning to a remote district of the town. In particular, Ms Sh. did not inform the court on what date she had visited [the applicant] on Kulieva avenue and how many days before the administrative offence report was drawn up he might have been staying at Mr Kh.'s... Besides, the court takes into account that the witnesses examined on behalf of the complainant are his relatives or friends and might have an interest in the outcome of the case. Additionally, the court has examined a report by [the police officer Kha.] which stated that during checks he could not verify the applicant's residence either at the old or at the new address.”
C. Annulment of the applicant's residence permit
D. The applicant's deportation
E. Quashing of certain judgments and decisions
F. The applicant's attempt to return to Russia
II. RELEVANT DOMESTIC LAW
A. Constitutional guarantees
B. Residence regulations applicable to foreign nationals
C. Penalties for violations of the residence regulations and the procedure for determination of an administrative charge
D. Residence permits for foreign nationals
E. Expulsion from, or refusal of entry into, the Russian Federation
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. System of residence registration in Russia
“8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities:
xii. whilst noting that the Russian federal authorities have achieved notable progress in abolishing the remains of the old propiska (internal registration) system, the Assembly regrets that restrictive registration requirements continue to be enforced, often in a discriminatory manner, against ethnic minorities. Therefore, the Assembly reiterates its call made in Recommendation 1544 (2001), in which it urged member states concerned 'to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders'...”
B. Explanatory Report to Protocol No. 7 (ETS No. 117)
“9. The word 'resident' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose...
The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person's presence in the territory to be considered 'lawful'.
[A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still 'lawfully' present.”
Article 11 of the European Convention on Social and Medical Assistance (1953)
“a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein...
b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.”
Section II of the Protocol to the European Convention on Establishment (1955)
“a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it;
b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.”
“10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised.
11 . Paragraph 1 of this article provides first that the person concerned may be expelled only 'in pursuance of a decision reached in accordance with law'. No exceptions may be made to this rule. However, again, 'law' refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.”
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
A. The Government's objection to the applicant's status as a “victim” of the alleged violation
B. Existence of an interference
C. Justification for the interference
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 7
“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.
2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”
A. The Government's preliminary objection as to the exhaustion of domestic remedies
B. Applicability of Article 1 of Protocol No. 7
C. Compliance with Article 1 of Protocol No. 7
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 5 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis