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LIU AND LIU v. RUSSIA - 42086/05 [2007] ECHR 1056 (6 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1056.html
Cite as:
(2008) 47 EHRR 33,
[2007] ECHR 1056
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FIRST
SECTION
CASE OF LIU AND LIU v. RUSSIA
(Application
no. 42086/05)
JUDGMENT
STRASBOURG
6 December
2007
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 Liu and Liu v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 42086/05) 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 Chinese national, Mr Liu Jingcai (“the
first applicant”), and a Russian national, Mrs Yulia
Aleksandrovna Liu (“the second applicant”), on 25
November 2005.
The
applicants were represented before the Court by Mr M. Rachkovskiy,
a lawyer with the International Protection Centre in Moscow. The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their new Representative, Mrs V. Milinchuk.
The
applicants alleged, in particular, that the first applicant's
detention pending expulsion proceedings had been unlawful and that
his deportation to China would hamper their family life.
On
3 October 2006 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility. The President made a decision on
priority treatment of the application (Rule 41 of the Rules of
Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant was born in 1968. The second applicant was born in
1973. They are husband and wife and live in the town of Sovetskaya
Gavan in the Khabarovsk Region.
1. Background information
In
1994 the first applicant arrived in Russia on the basis of a valid
visa and married the second applicant. In 1996 the second applicant
gave birth to a daughter. In November 1996, after his visa had
expired, the first applicant was deported to China.
In
1999 the second applicant gave birth to a son.
In
2001 the first applicant obtained a work visa valid until 1 August
2002 and resumed his residence in Russia. The visa was later extended
until 1 August 2003.
2. Requests for a residence permit
In
November 2002 the first applicant went to the Khabarovsk department
of internal affairs (hereinafter “the Khabarovsk police
department”) to lodge an application for a residence permit.
The Khabarovsk police department did not have the necessary forms;
therefore, the first applicant could not lodge his application. It
was only on 11 July 2003 that the forms became available.
On
24 July 2003 the first applicant applied for a residence permit for a
second time. The Khabarovsk police department refused to examine the
application and returned the documents to the first applicant.
The
first applicant challenged the refusal before a court. On 22 October
2003 the Sovetskaya Gavan Town Court found that the refusal to
examine the application had been unlawful. It ordered that the
Khabarovsk police department examine the first applicant's
application for a residence permit.
On
22 July 2004 the Khabarovsk police department rejected his
application by reference to section 7 (1) of
the Foreign Nationals Act (see paragraph 33 below). No further
reasons were provided.
The
applicants challenged the refusal before a court. They complained, in
particular, that the Khabarovsk police department had not
given any reasons for the refusal. The first applicant had never been
charged with any criminal offence or engaged in any subversive
activities. The applicants also claimed that
the refusal had interfered with their right to respect for their
family life and had caused them non-pecuniary damage.
On 4 November 2004 the
Tsentralniy District Court of Khabarovsk found that the decision of
22 July 2004 had been lawful and rejected the applicants'
claim in respect of non-pecuniary damage. It found that the
Khabarovsk police department had received information from the
Federal Security Service that the first applicant posed a national
security risk. That information was a State secret and could not be
made public. There is no indication in the judgment that the
information had been made available for judicial scrutiny.
The applicants appealed. On 18 January 2005 the
Khabarovsk Regional Court upheld the judgment of 4
November 2004. It reiterated that, according to the information from
the Federal Security Service, the first applicant posed a national
security risk. That information was a State secret and was not
subject to judicial scrutiny.
On
4 March 2005 the Khabarovsk police department rejected a new
application for a residence permit. It found that the first applicant
was unlawfully residing on Russian territory, that he had taken no
steps to make his stay legal, and that he would therefore have to
leave Russia. The refusal of a residence permit did not hinder his
family life.
It
appears that the applicants did not challenge the refusal of 4 March
2005 before a court. Instead they asked the Khabarovsk Regional Court
to direct that the Khabarovsk police department issue the first
applicant with a residence permit. They claimed that by refusing to
provide the first applicant with a residence permit the authorities
had showed disrespect for their family life. They asked for
compensation in respect of non-pecuniary damage. On 9 September
2005 the Khabarovsk Regional Court rejected their claims in the last
instance as having no basis in domestic law. It referred to the
judgment of 4 November 2004 and held that
there were no reasons to depart from its findings.
On
several occasions in 2003, 2004 and 2005 the first applicant was
administratively fined for living in Russia without a valid residence
permit. However, the domestic courts reversed most of those
decisions, finding them procedurally defective or time-barred.
It
is apparent from a certificate issued by a deputy head of the
Sovetskaya Gavan Town prosecutor's office on 15 December 2005 that no
criminal proceedings had been brought against the first applicant
between 1996 and 2005.
3. Administrative removal proceedings
On 18 November 2005 the first applicant was
stopped by the police. The police officer drew up a report on the
commission of an offence under Article 18.8 of
the Administrative Offences Code (see paragraph 34 below). The report
was transmitted to a judge.
On 21 November 2005 the Sovetskaya Gavan Town Court
held that the first applicant had infringed the residence regulations
and ordered his administrative removal and detention pending removal.
On the same day he was placed in a detention centre.
On 13 December 2005 the Khabarovsk Regional Court
quashed the decision of 21 November 2005 on appeal, remitted the case
for a new examination by the Town Court, and ordered the first
applicant's release. It held that, in accordance with Article 27.3
§ 1 of the Administrative Offences
Code, detention with a view to administrative removal could
only be ordered if there were sufficient reasons to believe that the
person would try to avoid execution of the removal order. The Town
Court had not given reasons for the detention order and the case file
did not contain any information justifying the first applicant's
detention. On the same day the first applicant was released.
On
28 December 2005 the Sovetskaya Gavan Town Court held that the report
of 18 November 2005 did not indicate which residence regulations had
been infringed by the first applicant. It returned the report to the
local police department for correction.
On
3 February 2006 the administrative proceedings against the first
applicant were discontinued as time-barred.
4. Deportation proceedings
In
the meantime, on 3 February 2005, the Khabarovsk police department
prepared a decision that the first applicant's presence on the
Russian territory was undesirable and submitted it to the head of the
Federal Migration Service for approval. The draft decision indicated
that the first applicant had been unlawfully resident on Russian
territory and had been repeatedly fined under Article
18.8 of the Administrative Offences Code for his failure to
leave Russia after the expiry of the authorised residence period. On
22 March 2005 the head of the Federal Migration Service
confirmed the decision and it became enforceable. The applicants were
informed about the decision on 21 April 2005.
On
22 August 2005 the Khabarovsk police department asked the Federal
Migration Service to order the first applicant's deportation. On
12 November 2005 the head of the Federal Migration Service
ordered the first applicant's deportation by reference to section
25.10 of the Law on the Procedure for Entering and Leaving the
Russian Federation (see paragraph 35 below). No
further reasons were provided. The applicants were informed of
the decision on 12 December 2005.
On 15 May 2006 the Sovetskaya Gavan Town Court ordered
the first applicant's placement in a detention centre with a view to
deporting him. It held that the first applicant was unlawfully
residing on Russian territory, and that on 12 November 2005 the
Federal Migration Service had ordered his deportation. Therefore, he
had to be held in custody until deportation. The first applicant was
not present at the hearing. He was informed of the decision on 5
September 2006.
On
24 November 2006 the Khabarovsk Regional Court quashed the decision
of 15 May 2006 on appeal and remitted the case. It found that the
decision had been taken in the first applicant's absence, in breach
of Articles 5 and 6 of the Convention.
On
25 December 2006 the Sovetskaya Gavan Town Court for a second time
ordered the first applicant's placement in a detention centre with a
view to deporting him. It referred to the same reasons as in the
decision of 15 May 2006.
It
appears that the deportation order was not enforced. The applicant is
at present living with his family in Russia.
II. RELEVANT DOMESTIC LAW
1. Residence permits for foreign nationals
Until 2002 temporary resident foreign nationals were
not required to apply for a residence permit. Their presence in the
Russian territory was lawful as long as their visa remained valid. On
25 July 2002 the Law on Legal Status of Foreign Nationals in the
Russian Federation, no. 115-FZ of 25 July 2002 (“the Foreign
Nationals Act”) was adopted. It introduced the requirement of
residence permits for foreign nationals.
A foreign national married to a Russian national
living on Russian territory is entitled to a residence permit
(section 6 § 3 (4)).
A residence permit may be
refused only in exhaustively defined cases, particularly if the
foreign national advocates a violent change to the constitutional
foundations of the Russian Federation or otherwise creates a threat
to the security of the Russian Federation or its citizens (section 7
(1)).
2. The procedure for determination of an administrative
charge and administrative removal
Article 18.8 of the
Administrative Offences Code of the Russian Federation provides that
a foreign national who infringes the residence regulations of the
Russian Federation, including by living on the territory of the
Russian Federation without a valid residence permit or by
non-compliance with the established procedure for residence
registration, will be liable to punishment by an administrative fine
of 500 to 1,000 Russian roubles and possible administrative removal
from the Russian Federation. Under Article 28.3 § 2 (1) a
report on the offence described in Article 18.8 is drawn up by a
police officer. Article 28.8 requires such a report to be transmitted
within one day to a judge or to an officer competent to examine
administrative matters. Article 23.1 § 3 provides that the
determination of any administrative charge that may result in removal
from the Russian Federation shall be made by a judge of a court of
general jurisdiction. Article 30.1 § 1 guarantees the right to
appeal against a decision on an administrative offence to a court or
to a higher court.
3. Deportation from, or refusal of entry into, the
Russian Federation
A competent authority, such as the Ministry of Foreign
Affairs or the Federal Security Service, may issue a decision that a
foreign national's presence on Russian territory is undesirable. Such
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 to the defensive capacity or security of the
State, to public order or health, etc. 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 for subsequent
refusal of re-entry into Russia (section 25.10 of the Law on the
Procedure for Entering and Leaving the Russian Federation, no. 114-FZ
of 15 August 1996, as amended on 10 January 2003, “the
Entry Procedure Act”).
If a police department uncovers circumstances
indicated in section 25.10 of the Entry Procedure Act, it must
prepare supporting materials, draft a decision that a foreign
national's presence on Russian territory is undesirable and send the
decision and supporting materials to the Federal Migration Service
for approval. The officials of the Federal Migration Service must
submit the materials to the head of the Federal Migration Service and
must inform the police department of the decision taken. The police
department must immediately send the decision to the foreign national
whose presence on Russian territory has been declared undesirable
(sections 2 to 6 of the Instruction on the organisation of the
process of making decisions that a foreign national's presence on
Russian territory is undesirable, approved by the Order of the
Ministry of Internal Affairs, No. 510 of 17 August 2004).
4. Detention with a view to expulsion
Article
32.10 § 5 of the Administrative Offences Code allows domestic
courts to order a foreign national's detention with a view to
administrative removal. Article 27.3 § 1 provides that
administrative detention can be authorised in exceptional cases if it
is necessary for fair and speedy determination of the administrative
charge or for execution of the penalty.
Sections
31 (9) and 34 (5) of the Foreign Nationals Act provide that a
foreign national against whom an administrative removal order or
deportation order has been made can be held in custody until
execution of such order. Detention has to be authorised by a court.
5. Compensation for unlawful deprivation of liberty
The State or regional treasury is liable –
irrespective of any fault by State officials – for the damage
sustained by an individual on account of unlawful criminal
prosecution, unlawful application of a preventive measure in the form
of placement in custody or an undertaking not to leave the place of
residence, or an unlawful administrative penalty in the form of
detention or community work (Article 1070 § 1 of the Civil
Code). Damage sustained by an individual through unlawful acts of the
investigation or prosecution authorities in a form other than listed
above is compensated for in accordance with the general grounds
giving rise to liability for damage, that is on the condition that
the fault of the person who inflicted the damage has been proven
(Article 1069 read in conjunction with Article 1064).
A court may hold the tortfeasor liable for
non-pecuniary damage incurred by an individual through actions
impairing his or her personal non-property rights, such as the right
to personal integrity and the right to liberty of movement (Articles
150 and 151). Non-pecuniary damage must be compensated for
irrespective of the tortfeasor's fault in the event of unlawful
conviction or prosecution, unlawful application of a preventive
measure in the form of placement in custody or an undertaking not to
leave the place of residence, or an unlawful administrative penalty
in the form of detention or community service (Article 1100 §
2).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained under Article 8 of the Convention that the
refusal to grant a residence permit to the first applicant and the
subsequent decision to deport him to China had entailed a violation
of the right to respect for their family life. Article 8 reads as
follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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
The Government submitted that the final decision for
the purposes of Article 35 § 1 of the Convention had been the
judgment of 4 November 2004, by which the refusal to grant the
first applicant a residence permit had been declared lawful. The
subsequent deportation decision had simply been a consequence of the
residence permit refusal. Therefore, the six-month period had started
to run from 4 November 2004. The applicants had not lodged their
application until 25 November 2005, thereby failing to comply with
the six-month rule. Moreover, the applicants had not appealed against
the judgment of 4 November 2004. They had not therefore
exhausted domestic remedies.
The applicants maintained that they had appealed
against the judgment of 4 November 2004. They further argued that the
final decision for the purposes of Article 35 § 1 of the
Convention had been the judgment of 9 September 2005 by which their
request for a residence permit and their compensation claim had been
rejected.
The Court notes that the applicants appealed against
the judgment of 4 November 2004 to the Khabarovsk Regional Court,
which examined and dismissed their appeal on 18 January 2005 (see
paragraph 15 above). It is therefore satisfied that the applicants
have exhausted domestic remedies.
The Court further observes that the applicants
complain about the cumulative effect produced on their family life by
several decisions taken by the domestic authorities against the first
applicant, namely the refusals to grant a residence permit upheld by
the domestic courts on 18 January and 9 September 2005 and
the deportation order of 12 November 2005. By lodging their
application on 25 November 2005 within six months of the deportation
order the applicants complied with the requirements of
Article 35 § 1.
The Court concludes that the Government's objections
must be rejected. It considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Existence of interference
The
Government contested the allegation that there had been interference
with the applicants' family life.
The
applicants submitted that the first applicant had been residing in
Russia since 1994. By marrying the second applicant, a Russian
citizen, and by fathering two children with her, he had established
family life in Russia. The refusal to grant him a residence permit
and the decision to deport him had interfered with the applicants'
family life.
The
Court observes that no right of an alien to enter or to reside in a
particular country is as such guaranteed by the Convention. As a
matter of well-established international law and subject to its
treaty obligations, a State has the right to control the entry of
non-nationals into its territory (see, among other authorities,
Boultif v. Switzerland, no. 54273/00, ECHR 2001-IX, §
39). Where immigration is concerned, Article 8 cannot be considered
to impose on a State a general obligation to respect the choice by
married couples of the country of their matrimonial residence and to
authorise family reunion in its territory (see Gül v.
Switzerland, judgment of 19 February 1996, Reports of
Judgments and Decisions 1996 I, § 38). However,
the removal of a person from a country where close members of his
family are living may amount to an infringement of the right to
respect for family life as guaranteed in Article 8 § 1 of the
Convention (see Boultif, cited above, § 39).
As
the Court has reaffirmed on several occasions, Article 8 cannot be
construed as guaranteeing, as such, the right to a particular type of
residence permit. Where the domestic legislation provides for several
different types, the Court must analyse the legal and practical
implications of issuing a particular permit. If it allows the holder
to reside within the territory of the host country and to exercise
freely there the right to respect for his or her private and family
life, the granting of such a permit represents in principle a
sufficient measure to meet the requirements of that provision. In
such cases, the Court is not empowered to rule on whether the
individual concerned should be granted one particular legal status
rather than another, that choice being a matter for the domestic
authorities alone (see Sisojeva and Others v. Latvia [GC],
no. 60654/00, § 91, ECHR
2007 ..., with further references).
The
applicants have been married since 1994 and have had two children.
The Court is satisfied that the applicants' relationship amounted to
family life. The second applicant and the children are Russian
nationals who were born in Russia and have been living there all
their lives. From 1994 to 1996 and from 2001 to August 2003 the first
applicant lawfully resided in Russia with his wife and children on
the basis of a renewable work visa. In 2003 he applied for a
residence permit to which he had become entitled under the new law
passed in 2002 (see paragraph 32 above). However, his application was
refused by reference to national security considerations and he was
required to leave Russia. As he did not leave, his deportation was
ordered. The deportation order is still valid and enforceable and the
deportation is impending. The Court therefore concludes that the
measures taken by the domestic authorities against the first
applicant constituted interference with the applicants' right to
respect for their family life (compare Bashir and Others v.
Bulgaria, no. 65028/01, § 37, 14 June 2007,
and Musa and Others v. Bulgaria, no. 61259/00, § 58,
11 January 2007).
2. Justification for the interference
The
Court reiterates that any interference with an individual's right to
respect for his private and family life will constitute a breach of
Article 8, unless it was “in accordance with the law”,
pursued a legitimate aim or aims under paragraph 2, and was
“necessary in a democratic society” in the sense that it
was proportionate to the aims sought to be achieved (see, among other
authorities, Slivenko v. Latvia [GC], no. 48321/99,
§ 99, ECHR 2003 X).
(a) Submissions by the parties
The
Government argued that the first applicant had applied for a
residence permit after his visa had expired and his residence in
Russia had become unlawful. The refusal to grant him a residence
permit and the subsequent deportation order had been justified by his
unlawful residence, which was punishable under the Administrative
Offences Code. The domestic courts confirmed that those decisions had
been lawful and justified.
The
applicants submitted that the application for a residence permit had
been refused by reference to national security considerations. The
first applicant's presence in Russia had become unlawful as a result
of that refusal. The refusal of a residence permit and the
deportation order had not pursued any legitimate aim. No criminal
proceedings had ever been brought against him and there had been no
evidence that he had presented a national security risk. Moreover,
the deportation had been ordered by the Federal Migration Service in
breach of domestic law because the deportation order had not been
confirmed by a court in accordance with the procedure established in
the Administrative Offences Code.
(b) The Court's assessment
The
Court will first examine whether the interference was “in
accordance with the law”. The domestic authorities based their
decisions on two legal provisions, namely section
7 (1) of the Foreign Nationals Act providing that a residence permit
could be refused if the foreign national posed a threat to the
security of the Russian Federation or its citizens, and section 25.10
of the Entry Procedure Act empowering the authorities to issue a
decision that a foreign national's presence on Russian territory was
undesirable and to order his deportation. The Court is therefore
satisfied that the refusal to grant the first applicant a residence
permit and the deportation order had a basis in domestic law.
The
Court has consistently held that the expression “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, requiring that it be accessible to the persons
concerned and formulated with sufficient precision to enable them –
if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail. 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, one of the basic principles
of a democratic society enshrined in the Convention, for a 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, to give the individual
adequate protection against arbitrary interference (see Lupsa v.
Romania, no. 10337/04, §§ 32 and 34, ECHR
2006 ....; Al-Nashif v. Bulgaria, no. 50963/99,
§ 119, 20 June 2002; and Malone v. the United
Kingdom, judgment of 2 August 1984, Series A no. 82, §§
67 and 68).
The Foreign Nationals Act and the Entry Procedure Act
had been officially published and were accessible to the applicants.
They define the circumstances in which an application for a residence
permit can be rejected and deportation can be ordered. In particular,
the Acts provide that such measures can be taken against a foreign
national if he presents a national security risk or unlawfully
resides in Russia. The Acts leave the authorities a wide degree of
discretion in determining which acts constitute a threat to national
security. However, a law which confers discretion is not in itself
inconsistent with the requirement of “foreseeability”
(see Olsson v. Sweden (no. 1), judgment of 24
March 1988, Series A no. 130, § 61). This
requirement does not go so far as to compel States to enact legal
provisions listing in detail all conduct that may prompt a decision
to deport an individual on national security grounds. By the nature
of things, threats to national security may vary in character and may
be unanticipated or difficult to define in advance (see Al-Nashif,
cited above, § 121).
It
remains to be ascertained whether domestic law provides for
sufficient safeguards to ensure that the discretion left to the
executive is exercised without abuse (ibid., § 122).
The Court reiterates that even where national security is at stake,
the concepts of lawfulness and the rule of law in a democratic
society require that measures affecting fundamental human rights must
be subject to some form of adversarial proceedings before an
independent body competent to review the reasons for the decision and
relevant evidence, if need be with appropriate procedural limitations
on the use of classified information. The individual must be able to
challenge the executive's assertion that national security is at
stake. While the executive's assessment of what poses a threat to
national security will naturally be of significant weight, the
independent authority must be able to react in cases where invoking
that concept has no reasonable basis in the facts or reveals an
interpretation of “national security” that is unlawful or
contrary to common sense and arbitrary. Failing such safeguards, the
police or other State authorities would be able to encroach
arbitrarily on rights protected by the Convention (see Al-Nashif,
cited above, §§ 123 and 124, and Lupsa,
cited above, §§ 33 and 34).
In
the present case the first applicant's application for a residence
permit was rejected by reference to national security considerations
and he was required to leave Russia. The decision was taken by
the local police department pursuant to the Foreign Nationals Act.
The local police department did not give any reasons for the decision
except the unelaborated reference to section 7 (1) of the
Act.
It
is true that domestic law provided for the possibility of challenging
the decision before a court. However, the domestic courts were not in
a position to assess effectively whether the decision had been
justified, because the full material on which it had been based was
not made available to them. The submissions by the local police
department were confined to the assertion that it was in possession
of information that the first applicant posed a national security
risk. The content of the information was not disclosed to the
applicants or to the courts on the ground that it was a State secret
(see paragraphs 14 and 15 above).
The
Court recognises that the use of confidential material may be
unavoidable where national security is at stake. This does not mean,
however, that the national authorities can be free from effective
control by the domestic courts whenever they choose to assert that
national security and terrorism are involved. There are techniques
that can be employed which both accommodate legitimate security
concerns about the nature and sources of intelligence information and
yet accord the individual a substantial measure of procedural justice
(see Chahal v. the United Kingdom, judgment of
15 November 1996, Reports of Judgments and Decisions
1996 V, § 131).
The
failure to disclose the relevant information to the courts deprived
the latter of the power to assess whether the conclusion that the
first applicant constituted a danger to national security had a
reasonable basis in the facts. It follows that the judicial scrutiny
was limited in scope and did not provide sufficient safeguards
against arbitrary exercise of the wide discretion conferred by
domestic law on the Ministry of Internal Affairs in cases involving
national security.
The Court concludes that the relevant provisions of the Foreign
Nationals Act allow the Ministry of Internal Affairs to refuse
residence permits and to require a foreign national to leave the
country on national security grounds without giving any reasons and
without effective scrutiny by an independent authority.
As
the first applicant did not leave, his residence in Russia was found
to be unlawful, his presence on Russian territory was declared
undesirable on that ground and his deportation was ordered. Pursuant
to the Entry Procedure Act and the Instruction of the Ministry of
Internal Affairs, these decisions were taken by the Federal Migration
Service on the initiative of a local police department. Both of these
agencies belong to the executive and take such decisions without
hearing the foreign national concerned (see paragraphs 35 and 36
above). It is not clear whether there is a possibility of appealing
against these decisions to a court or other independent authority
offering guarantees of an adversarial procedure and competent to
review the reasons for the decisions and relevant evidence. The Entry
Procedure Act and the Instruction do not mention such a possibility.
Nor did the Government in their observations refer to any legal
provision for judicial or other independent review of the deportation
order or the decision that a foreign national's presence on Russian
territory was undesirable.
The
Court further observes that the Administrative Offences Code provides
for a different procedure for removal of foreign nationals unlawfully
residing in Russia. This procedure is circumscribed by substantial
procedural safeguards. In particular, the power to order
administrative removal belongs exclusively to a judge and this order
is subject to appeal to a higher court (see paragraph 34 above). It
follows that Russian law establishes two parallel procedures for
expulsion of foreign nationals whose residence in Russia has become
unlawful. In one of these procedures deportation of a foreign
national can be ordered by the executive without any form of
independent review or adversarial proceedings, while the other
procedure (administrative removal) provides for judicial scrutiny.
Domestic law permits the executive to choose between those procedures
at their discretion. The enjoyment of procedural safeguards by a
foreign national is thus dependent on the executive's choice.
In the first applicant's case, the local police department initiated
both deportation and administrative removal proceedings. In both
proceedings it argued that the first applicant had to be removed from
Russian territory because he was residing there unlawfully and
referred to Article 18.8 of the Administrative Offences Code.
After hearing the first applicant, the domestic courts found flaws in
the local police department's case and refused to order the first
applicant's removal. The administrative removal proceedings were
later discontinued (see paragraphs 20 et seq.). At the same time, the
deportation proceedings, which were triggered by the same facts and
which were conducted without judicial scrutiny, ultimately resulted
in an enforceable deportation order against the first applicant. The
Court considers that the first applicant's deportation on the basis
of section 25.10 of the Entry Procedure Act was not attended by
sufficient safeguards against arbitrariness.
In
the light of the above considerations, the Court finds that the legal
provisions on the basis of which the first applicant's deportation
was ordered did not provide for the adequate degree of protection
against arbitrary interference.
The Court concludes that the interference with the
applicants' family life was based on legal provisions which did not
meet the Convention's “quality of law” requirements.
Accordingly, in the event of the deportation order against the first
applicant being enforced, there would be a violation of Article 8. In
the light of this conclusion, the Court is not required to determine
whether the interference pursued a legitimate aim or aims under
paragraph 2 of Article 8 and was “necessary in a democratic
society”.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicants complained under Article 5 § 1 of the Convention that
the first applicant's detention from 21 November to 13 December
2005 had been unlawful. The relevant parts of Article 5 § 1 read
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. Admissibility
The
Government claimed that the applicants had failed to exhaust domestic
remedies. Following the domestic court's finding that the first
applicant's detention had been unlawful, he could have filed a civil
claim for pecuniary and non-pecuniary damage.
The
applicants maintained their complaint.
The
Court notes that the Russian law of tort limits strict liability for
unlawful detention to specific procedural forms of deprivation of
liberty which include, in particular, deprivation of liberty in
criminal proceedings and administrative punishment, but exclude
administrative arrest (see paragraphs 39 and 40 above). Since the
first applicant was subject to administrative arrest, a mere finding
of its unlawfulness would not be sufficient for an award of
compensation; he would also have to prove that the State officials
were at fault (ibid.). It follows that, in the absence of fault on
the part of the arresting officer, the first applicant's claim for
compensation would have no prospect of success (see, mutatis
mutandis, Makhmudov v. Russia, no. 35082/04,
§ 104, 26 July 2007). The Court concludes that the
Government's objection must be rejected.
The
Court further observes that the second applicant was never detained
and she cannot claim to be a victim of her husband's allegedly
unlawful detention. Her complaint is therefore incompatible ratione
personae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
The first applicant's complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Government conceded that the first applicant's detention from 21
November to 13 December 2005 had been unlawful.
The
first applicant maintained his claims.
The
Court notes that the first applicant was detained with a view to his
administrative removal from Russia to China. Article 5 §
1 (f) of the Convention is thus applicable in the instant case. This
provision 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 Čonka v. Belgium,
no. 51564/99, § 38, ECHR 2002 I, and Chahal v.
the United Kingdom, judgment of 15 November 1996, Reports of
Judgments and Decisions 1996-V, § 112).
The
Court reiterates, however, that it falls to it to 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 pursuant to a court order. A
subsequent finding that the court erred under domestic law in making
the order will not necessarily retrospectively affect the validity of
the intervening period of detention. For the assessment of compliance
with Article 5 § 1 of the Convention the basic distinction has
to be made between ex facie invalid detention orders – for
example, given by a court in excess of jurisdiction or where the
interested party did not have proper notice of the hearing –
and detention orders which are prima facie valid and effective unless
and until they have been overturned by a higher court (see
Khudoyorov, cited above, §§ 128 and 129,
with further references).
The
first applicant's detention with a view to administrative removal was
ordered on 21 November 2005 by the Sovetskaya Gavan Town Court. On 13
December 2005 the Khabarovsk Regional Court quashed the detention
order (see paragraphs 21 and 22 above). The Court will consider
whether the detention order of 21 November 2005 had constituted a
lawful basis for the first applicant's detention until it was quashed
on 13 December 2005.
It
has not been alleged that on 21 November 2005 the Town Court acted in
excess of its jurisdiction. Indeed, as a matter of domestic law, it
had the authority to order the applicant's detention with
a view to administrative removal. The detention order of 21
November 2005 was quashed because the Town Court had not given
reasons to justify the necessity of holding the first applicant in
custody. The Court considers that that flaw did not amount to a
“gross or obvious irregularity” in the exceptional sense
indicated by the case-law (compare Lloyd and Others v. the
United Kingdom, nos. 29798/96 et seq., § 114, 1
March 2005).
The
Court does not find that the Town Court acted in bad faith or that it
neglected to attempt to apply the relevant legislation correctly. The
fact that certain flaws in the procedure were found on appeal does
not in itself mean that the detention was unlawful (see Gaidjurgis
v. Lithuania (dec.), no. 49098/99, 16 January 2001;
Benham v. the United Kingdom, judgment of 10 June 1996,
Reports of Judgments and Decisions 1996 III, § 47).
Therefore, it has not been established that the detention order of
21 November 2005 was ex facie invalid, or that the ensuing
detention was unlawful within the meaning of Article 5 § 1.
There
has thus been no breach of Article 5 § 1 of the Convention in
respect of the first applicant's detention from 21 November to 13
December 2005.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicants
under Articles 3, 6, 12 and 13 of the Convention, Article 1 of
Protocol No. 4, and Articles 2, 3, 4 and 5 of Protocol No. 7.
However, having regard to all the material in its possession, it
finds that those complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
IV. 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
applicants claimed 89,175 Russian roubles (RUB) in respect of
pecuniary damage. They submitted that on 27 December 2004 the
Sovetskaya Gavan Town Court had awarded them that amount,
representing the administrative fines paid by the first applicant for
his unlawful residence in Russia and the legal fee paid by the
applicants in the court proceedings in which they had challenged
those fines. That judgment had subsequently been quashed on appeal
and the amount had never been paid. The applicants submitted that RUB
89,175 was equivalent to 3,313 euros (EUR) at the moment they lodged
their claims. They also claimed EUR 300,000 in respect of
non-pecuniary damage.
The
Government failed to submit their comments within the established
time-limit.
The Court does not discern a causal link between the violation found
and the claim for pecuniary damage.
The
Court further considers that the applicants must have suffered
distress and frustration resulting from the deportation order issued
in breach of Article 8 of the Convention. In these circumstances, the
Court considers that the applicants' suffering and frustration cannot
be compensated for by a mere finding of a violation. Making its
assessment on an equitable basis, the Court awards both applicants
EUR 6,000 for non-pecuniary damage, plus any tax that may be
chargeable on the above amount.
B. Costs and expenses
The
applicants did not claim any costs and expenses and, accordingly,
there is no need to make any award to them under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning the refusal
to grant the first applicant a residence permit, the issuance of a
deportation order against him and his detention from 21 November to
13 December 2005 admissible and the remainder of the application
inadmissible;
Holds that in the event of the deportation order
against the first applicant being enforced, there would be a
violation of Article 8 of the Convention in respect of both
applicants;
Holds that there has been no violation of
Article 5 § 1 of the Convention in respect of the first
applicant;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 6,000 (six thousand euros) to the applicants
jointly in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement,
plus any tax that may be chargeable on that amount;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
