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SHEVANOVA v. LATVIA - 58822/00 [2007] ECHR 1205 (07 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1205.html
Cite as:
[2007] ECHR 1205
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FIRST
SECTION
CASE OF
SHEVANOVA v. LATVIA
(Application
no. 58822/00)
JUDGMENT
STRASBOURG
15
June 2006
THIS
CASE WAS REFERRED TO THE GRAND CHAMBER,
WHICH
DELIVERED JUDGMENT IN THE CASE ON
7
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 Shevanova v. Latvia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs F.
Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges
Mrs J.
Briede, ad hoc judge,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 19 May 2005 and on 23 May 2006,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 58822/00) against the Republic
of Latvia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mrs Nina Shevanova (“the
applicant”), on 28 June 2000.
The
applicant was represented before the Court by Mr G. Kotovs, a lawyer
and member of Riga Municipal Council. The Latvian Government (“the
Government”) were represented by their Agent, Mrs I. Reine.
The applicant alleged, in particular, that the decision of the
Latvian authorities to deport her from Latvia violated her right to
respect for her private and family life guaranteed by Article 8 of
the Convention.
The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
By
a partial decision of 15 February 2001 the Court declared the
application inadmissible with regard to the complaints of the
applicant’s son, Mr Jevgeņijs Ševanovs.
By
a decision of 28 February 2002 the Chamber declared the application
partly admissible.
The
applicant and the Government each filed written observations on the
merits (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied in writing to
each other’s observations. On 12 May 2002 the applicant filed a
claim for just satisfaction (Article 41 of the Convention). On 19
June 2002 the Government submitted their observations on that claim.
On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
First Section (Rule 52 § 1).
As
the seat of the judge in respect of Latvia was vacant, the Latvian
Government, in a letter of 20 December 2004, appointed Mrs J. Briede
as ad hoc judge in the present case (Article 27 § 2
of the Convention and Rule 29 § 1).
By letter of 3 February 2005 the Government informed
the Court of further developments in the case and requested that the
application be struck out of the Court’s list of cases in
accordance with Article 37 § 1 (b) of the Convention. On 25
April 2005 the applicant submitted her observations on that letter.
On 13 May 2005 the Government submitted their observations in reply.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant is a Russian national who was born in
Russia in 1948 and lives in Riga (Latvia).
A. Background to the case and proceedings concerning
the applicant’s deportation
In
1970, at the age of twenty-two, the applicant settled in Latvian
territory for work-related reasons. Between 1973 and 1980, the year
of her divorce, she was married to a man resident in Latvia. In 1973
she gave birth to a son, Jevgeņijs Ševanovs, who has
lived with her until the present day.
In
1981, having lost the Soviet passport issued to her in 1978, the
applicant obtained a new passport. In 1989 she found the lost
passport, but did not return it to the relevant authorities.
In
August 1991 Latvia regained full independence. In December 1991 the
Soviet Union, the State of which the applicant had hitherto been a
national, broke up. The applicant therefore became stateless. In
August 1992 her name was entered in the register of residents
(Iedzīvotāju reģistrs) as a permanent resident.
Her son was subsequently granted the status of “permanently
resident non-citizen” of Latvia.
In
1994 a Latvian bridge building firm offered the applicant a job
as a crane operator in Dagestan and Ingushetia, regions of the
Caucasus bordering on Chechnya and belonging to the Russian
Federation. In view of the difficulties caused by tighter supervision
in these regions by the Russian authorities on account of the
troubles in Chechnya, the firm advised her to obtain Russian
nationality and a formal registration of residence in Russia before
signing the employment contract. In May 1994 the applicant consulted
a broker who put a false stamp in her first Soviet passport, the one
which had been found but not disclosed to the authorities, stating
that the registration of her residence in Latvia had been cancelled
(pieraksts, or dzīvesvietas reģistrācija
in Latvian).
In
June 1994 the applicant was registered as being resident in Shumanovo
in the Kursk region of Russia, at her brother’s address. In
August 1994 she obtained Russian nationality. In 1995 and 1996 she
travelled to Russia, working there for two periods of 100 and 120
days respectively.
In
March 1998 the applicant applied to the Interior Ministry’s
Nationality and Migration Directorate (Iekšlietu
ministrijas Pilsonības un migrācijas lietu pārvalde
– “the Directorate”) for a passport based on the
status of “permanently resident non-citizen”. In
accordance with the regulations in force, she submitted alongside the
application the second Soviet passport issued to her in 1981. On
examining the file, the Directorate discovered that she had
registered a second residence in Russia and had completed certain
formalities on the basis of the old passport which had been mislaid
and found again. Accordingly, by decision of 9 April 1998, the
Directorate removed the applicant’s name from the register of
residents. On the same day the head of the Directorate issued an
order for the applicant’s deportation (izbraukšanas
rīkojums), requesting her to leave Latvia for Russia by 19
June 1998. The deportation order was accompanied by a prohibition on
re-entering Latvia for five years. It was served on the applicant on
11 June 1998.
After
appealing unsuccessfully against the deportation order to the head of
the Directorate, the applicant lodged an application with the Riga
City Central District Court seeking to have the order set aside. In
her memorial she submitted that, as the false stamp in her passport
had been put there without her knowledge and she had therefore been
unaware of it, she should not have to bear the consequences. In
addition, since the registration of her residence in Russia had been
merely temporary, it could not affect her existing registration in
Latvia. She further argued that there were no legislative or
regulatory provisions in force prohibiting her from having addresses
in two different countries. Accordingly, the applicant requested the
court to set aside the order for her deportation and to instruct the
Directorate to issue her with a permanent residence permit.
In
a judgment delivered on 3 December 1998 following adversarial
proceedings, the court rejected the request, finding that the
deportation order had been lawful and well founded. As to the
applicant’s request that she be issued with a residence permit,
the court declared that part of the application inadmissible on the
ground that she had not applied for a permit to the relevant
authorities, nor had she lodged an administrative appeal before
applying to the courts, as required by section 34 of the Aliens and
Stateless Persons (Entry and Residence) Act (“the Aliens Act”).
On
13 July 1999 the Russian authorities cancelled the applicant’s
residence registration in Russia, at her request.
The
applicant lodged an appeal with the Riga Regional Court against the
judgment of 3 December 1998. In a judgment delivered on 29 September
1999 following adversarial proceedings, the Regional Court dismissed
the appeal on the ground that, as the applicant had been illegally
resident in Latvia since her return from Russia, her deportation was
in accordance with section 38 of the Aliens Act. The Regional Court
also upheld the District Court’s findings as to the
inadmissibility of the request for a residence permit.
In
a judgment of 28 December 1999 the Senate of the Supreme Court
dismissed an appeal by the applicant on points of law, finding that
the interference complained of had been lawful and proportionate. In
particular, the Senate observed that, in the instant case, the
applicant’s right to have two addresses or places of residence
in two different countries had not been in dispute; the order for her
deportation had been based solely on the fact that she had been
resident in Latvia without a residence permit.
With
the delivery of the Senate’s judgment the order for the
applicant’s deportation became enforceable.
In
two letters sent on 21 January and 3 February 2000, the applicant and
her son requested the head of the Directorate to rescind the
deportation order and to issue the applicant with a permanent
residence permit. In support of their request, they argued that they
did not have family ties in any country other than Latvia and that
the expulsion of the applicant from Latvian territory, where they had
lived together for twenty-six years, would constitute a serious
infringement of their right to respect for their family life. They
made explicit reference in that regard to Article 8 § 1 of the
Convention and to similar provisions of the Latvian Constitution.
By
letters dated 28 January and 15 February 2000 respectively, the head
of the Directorate refused this request and reminded the applicant
that she was required to leave Latvia immediately or be forcibly
expelled.
After
attempting without success to challenge this refusal by means of an
administrative appeal to the Interior Minister, Mrs Shevanova and her
son lodged a fresh application with the Riga City Central District
Court to have the deportation order set aside. By order of 3 March
2000 the court declared the application inadmissible. On 24 May 2000
the Riga Regional Court upheld the order. An appeal on points of law
by the applicant and her son was dismissed by an order of the Senate
of the Supreme Court dated 29 November 2000.
On
12 February 2001 the applicant was arrested by the immigration police
(Imigrācijas policija) and placed in a detention centre
for illegal immigrants. On 21 February 2001 officials of the
Directorate served a forcible expulsion decision on her (lēmums
par piespiedu izraidīšanu no valsts).
On
26 February 2001 the applicant was admitted to hospital with acute
hypertension. Consequently, on 28 February 2001, the head of the
Directorate stayed execution of the forcible expulsion decision and
requested the immigration police to formally order the applicant’s
release from the detention centre. The deportation order of 9 April
1998 was also suspended at the same time.
As
execution of the forcible expulsion decision had been stayed
indefinitely, the applicant continued to reside illegally in Latvia.
B. Developments subsequent to the admissibility
decision
On
7 January 2005 the head of the Directorate wrote a letter to the
Government’s Agent in the following terms:
“... [T]he ... Directorate ... has received your
letter concerning the application lodged by Nina Shevanova with the
European Court of Human Rights ... and requesting [us] to consider
the possibility of issuing her with a permanent residence permit ...
under section 24(2) of the Immigration Act. The reason you cite for
your request is the existence of a real risk that a violation of
Article 8 of the Convention might be found in this case. However, if
Nina Shevanova were to be granted a sufficiently secure legal status
in Latvia, the Latvian Government would be justified in requesting
the European Court to dismiss the application.
...
I would like first of all to draw your attention to the
fact that section 24(3) of the Immigration Act does not apply to the
circumstances of the Shevanova case. The Directorate has
therefore explored other possible solutions.
...
Regard being had ... to the relevant circumstances of
the Shevanova case, and in particular the fact that Mrs
Shevanova has lived and worked within Latvian territory for a long
time – a fact which undoubtedly testifies to the existence of
sufficiently strong private and social ties ... – the
Directorate is prepared, once it has obtained the necessary
documentation from Mrs Shevanova ..., to address an opinion to the
Minister of the Interior proposing that she be issued with a
temporary residence permit valid for five years, in accordance
with section 23(3) of the Immigration Act...
...
Under the terms of Council [of the European Union]
Directive 2003/109/EC concerning the status of third-country
nationals who are long-term residents, Member States are required to
grant long-term resident status to third-country nationals who have
resided legally and continuously within their territory for five
years immediately prior to submission of the relevant application.
Accordingly, on expiry of the period of validity of her temporary
residence permit, Nina Shevanova would be entitled to apply for and
obtain the status of permanent resident and to be issued with an EC
residence permit. Remedying Mrs Shevanova’s situation in this
way would be sufficient to put an end to any possible violation of
her rights under Article 8 of the Convention.
With this aim in mind, the Directorate has already drawn
up a letter inviting Mrs Shevanova to submit to it the documents
required in order to apply for a residence permit. This letter will
be sent to her in the next few days. It should be pointed out that,
in accordance with section 61 of Regulation no. 213 ... on residence
permits, [the person concerned] in such cases must submit a letter
from a legal entity attesting to the necessity ... of his or her
remaining in the Republic of Latvia. The Directorate notes in
that connection that Mrs Shevanova will in all likelihood be unable
to produce such a document. In any event, a positive ... outcome to
the case can be achieved only if Mrs Shevanova herself displays
an interest in such a solution.
Should Mrs Shevanova herself fail to take steps towards
implementing the solution proposed by the Latvian Government, [it
should be borne in mind that] the European Court of Human Rights has
already acknowledged that, where applicants knowingly decline to take
the appropriate measures suggested by the authorities ..., they
cannot claim to be victims of a violation of their right to respect
for their private and family life... The reference to Article 8 of
the Convention ..., made in Mrs Shevanova’s request, would
therefore be without foundation.”
By
Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed
the Minister of the Interior to issue the applicant with a permanent
residence permit “once the documents required to make such an
application have been received” (Article 1 of the decree).
By
letter of 24 February 2005 the Directorate explained to the applicant
how she could regularise her stay by obtaining a permanent residence
permit, and invited her to submit the documents required for that
purpose under the relevant regulations. It is clear from the case
file, however, that the applicant has to date not taken the steps
indicated by the Directorate.
II. RELEVANT DOMESTIC LAW
A. General provisions
Latvian
legislation on nationality and immigration distinguishes several
categories of persons, each with a specific status.
(a)
Latvian citizens (Latvijas Republikas pilsoņi), whose
legal status is governed by the Citizenship Act (Pilsonības
likums);
(b)
“permanently resident non-citizens” (nepilsoņi)
– that is, citizens of the former USSR who lost their Soviet
citizenship following the break-up of the USSR in 1991, but have not
subsequently obtained any other nationality – who are governed
by the Non Citizens Act (see paragraph 33 below);
(c)
asylum-seekers and refugees, whose status is governed by the Asylum
Act of 7 March 2002 (Patvēruma likums);
(d)
“stateless persons” (bezvalstnieki) in the narrow
and specific sense of the term. Prior to 2 March 2004 their status
was governed by the Status of Stateless Persons Act, read in
conjunction with the Aliens Act (see paragraph 34 below) and, after 1
May 2003, with the Immigration Act (see paragraph 36 below). Since 2
March 2004 their status has been governed by the new Stateless
Persons Act, also read in conjunction with the Immigration Act;
(e)
“aliens” in the broad sense of the term (ārzemnieki),
a category which includes foreign nationals (ārvalstnieki)
and stateless persons (bezvalstnieki) falling solely within
the ambit of the Aliens Act (before 1 May 2003), and the
Immigration Act (since that date).
B. “Permanently resident non-citizens”
Section
1(1) of the Act on the Status of Former USSR Citizens without Latvian
or other Citizenship ((Likums “Par to bijušo PSRS
pilsoņu statusu, kuriem nav Latvijas vai citas valsts
pilsonības) reads as follows:
[Version in force before 25 September 1998]:
“This Act governs citizens of the former USSR resident in
Latvia ..., who were resident within Latvian territory prior to
1 July 1992 and whose place of residence is registered
there, regardless of the status of their housing, and who are not
citizens of Latvia or any other State; it also governs the minor
children of such persons who are not citizens of Latvia or any other
State.”
[Version in force since 25 September 1998]: “The
persons governed by this Act – ‘non-citizens’ –
shall be those citizens of the former USSR, and their children, who
are resident in Latvia ... and who satisfy all the following
criteria:
(1) on 1 July 1992 they were registered as being
resident within the territory of Latvia, regardless of the status of
their housing; or their last registered place of residence by 1 July
1992 was in the Republic of Latvia; or a court has established that
before the above-mentioned date they had been resident within Latvian
territory for not less than ten years;
(2) they do not have Latvian citizenship;
(3) they are not and have not been citizens of any
other State. ...”
...
C. Status of aliens generally
The
relevant provisions of the Aliens and Stateless Persons (Entry and
Residence) Act (Likums “Par ārvalstnieku un
bezvalstnieku ieceļošanu un uzturēšanos
Latvijas Republikā), in force prior to 1 May 2003, read as
follows:
Section 11
“Any foreigner or stateless person shall be
entitled to stay in the Republic of Latvia for more than three months
[version in force since 25 May 1999: ‘more than ninety
days in the course of one half of a calendar year’], provided
that he or she has obtained a residence permit in accordance with the
provisions of this Act. ...”
Section 12
(amended
by the Act of 15 October 1998)
“Aliens or stateless persons may be issued with...
(1) a temporary residence permit;
(2) a
permanent residence permit. ...”
Section 23(1)
(added
by the Act of 18 December 1996, in force since 21 January 1997)
“Permanent residence permits may be obtained by
aliens who, on 1 July 1992, were officially registered as being
resident for an indefinite period within the Republic of Latvia if,
at the time of applying for a permanent residence permit, they are
officially registered as being resident within the Republic of Latvia
and are entered in the register of residents.
Citizens of the former USSR who acquired the citizenship
of another State before 1 September 1996 must apply for a
permanent residence permit by 31 March 1997. Citizens of the former
USSR who acquired the citizenship of another State after 1 September
1996 must apply within six months of the date on which they acquired
the citizenship of that State. ...”
Section 34
“The person concerned may, within one month of
notification of the decision to refuse a residence permit, appeal
against the decision to the head of the Directorate, who shall
examine the appeal within one month.
The Minister of the Interior may, by decree, set aside
an unlawful decision by the Directorate or the head of the
Directorate ordering a residence permit to be issued or refused.
An appeal may be lodged with the courts against the
above-mentioned decision or decree by
(1) the person concerned if he or she is
legally resident within the territory of the Republic of Latvia;
(2) the person resident in Latvia who
invited the alien ... whose application for a residence permit has
been refused, where the invitation was in connection with family
reunification. ...”
Section 35
“No residence permit shall be issued to a person
who
...
(5) was deported from Latvia during the five
years preceding the application;
(6) has knowingly supplied false information in order to
obtain such a permit;
(7) is in possession of false or invalid identity or
immigration documents;
...”
Section 38
“The head of the Directorate or of the regional
office of the Directorate shall issue a deportation order...
...
(2) if the alien ... is in the country without a valid
visa or residence permit; ...”
Section 40
“The individual concerned shall leave the
territory of Latvia within seven days after the deportation order has
been served on him or her, provided that no appeal is lodged against
the order in accordance with this section.
Persons in respect of whom a deportation order is issued
may appeal against it within seven days to the head of the
Directorate, who shall extend the residence permit pending
consideration of the appeal.
An appeal against the decision of the head of the
Directorate shall lie to the court within whose territorial
jurisdiction the Directorate’s headquarters are situated,
within seven days after the decision has been served.”
At
the material time the practical arrangements concerning registration
of residence were governed by Regulation no. 76 of 12 February 1993
on registration of residence for residents of the Republic of Latvia
and cancellation thereof (Iedzīvotāju pierakstīšanas
un izrakstīšanas noteikumi Latvijas Republikā).
Section 4 required any existing registration of residence to be
cancelled in order to obtain a new registration in Latvia.
Since
1 May 2003 the Aliens Act cited above is no longer in force; it was
repealed and replaced by the Immigration Act (Imigrācijas
likums) of 31 October 2002. The relevant provisions of the new
Act read as follows:
Section 1
“The present Act uses the following definitions:
1. an alien [ārzemnieks] –
a person who is neither a Latvian citizen nor a “[permanently
resident] non-citizen” of Latvia; ...”
Section 23(3)
“In cases not covered by the present Act, the
temporary residence permit shall be granted by the Minister of the
Interior, where the relevant decision accords with the provisions of
international law or the interests of the Latvian State, or on
humanitarian grounds.”
Section 24(2)
“In cases not covered by the present Act, the
permanent residence permit shall be granted by the Minister of the
Interior, where it accords with the interests of the State.”
Section 33 (2)
“... When the time-limit set down [for submitting
an application for a residence permit] has passed, the head of the
Directorate may authorise [the person concerned] to submit the
[relevant] documents, where such authorisation accords with the
interests of the Latvian State, or on grounds of force majeure
or humanitarian grounds.”
Section 47
“1. Within ten days of establishment of the facts
detailed in the first and second subparagraphs of the present
paragraph, the [relevant] official of the Directorate shall take a
forcible expulsion decision ..., where:
(1) the alien has not left the Republic of Latvia within
seven days of receiving the deportation order ..., and has not
appealed against the order to the head of the Directorate..., or the
head of the Directorate has dismissed the appeal;
...
2. In the cases referred to in the first
subparagraph of paragraph 1 of this section, no appeal shall lie
against the forcible expulsion decision...
...
4. In the event of a change of circumstances,
the head of the Directorate may set aside a forcible expulsion
decision.”
D. General administrative law
Section
360(4) of the Administrative Procedure Act (Administratīvā
procesa likums), in force since 1 February 2004, provides:
“An administrative act may not be enforced if more
than three years have elapsed since it became enforceable. In
calculating the limitation period, any period during which
implementation of the administrative act was suspended shall be
deducted.”
38.
At the time of the facts reported by the applicant, the relevant
provisions of the Regulatory Offences Code (Administratīvo
pārkāpumu kodekss)
read as follows:
Article 187, fourth paragraph
“... Use of a passport which has been replaced by
a new passport shall be punishable by a fine of up to 100 lati
[approximately 150 euros].”
Article 190(3)
“Failure to provide the offices of the Latvian
Nationality and Immigration Department ... with the information to be
entered in the register of residents within the time allowed shall be
punishable by a fine of between 10 and 25 lati [approximately 38
euros].”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
A. The parties’ submissions
By
letter of 3 February 2005 the Government informed the Court of the
practical measures taken by the authorities with a view to
regularising the applicant’s stay in Latvia (see paragraphs
29-31 above). They explained that a decision had been taken at the
Cabinet of Ministers’ meeting of 2 February 2005 to remedy
the applicant’s complaint directly by offering her a permanent
residence permit. In view of these measures, the Government
considered that the matter giving rise to the case had been resolved
and the application should be struck out of the Court’s list of
cases in accordance with Article 37 § 1 (b) of the Convention.
In that connection, the Government referred in particular to the
cases of Pančenko v. Latvia (dec.), no. 40772/98, 28
October 1999, and Mikheyeva v. Latvia (dec.), no. 50029/99,
12 September 2002, in which the Court had held that the
regularisation of the applicants’ stay sufficed for them no
longer to be able to claim to be victims of a violation of Article 8
of the Convention.
The
applicant observed that she did not have all the documents required
in order to obtain a permanent residence permit; for instance, she
had no document attesting to the lawfulness of her income. She was
prepared in principle to “agree to the Government’s
proposal”, but solely on condition that the Government provided
redress for the damage she had sustained as a result of the alleged
violation, and reimbursed the costs and expenses she had incurred in
the proceedings before the Court. The applicant claimed an overall
sum of 14, 626.86 lati (LVL) in that regard.
In
their observations in reply, the Government submitted that the
applicant’s stay could not be regularised unilaterally; Mrs
Shevanova must actually come forward and demonstrate her wish to
obtain the residence permit granted to her. To date, however, the
applicant had not taken the steps indicated by the Directorate. As
for providing proof of lawful income, the Government furnished a copy
of a letter from the head of the Directorate dated 12 May 2005,
according to which a written guarantee from the applicant’s
son, who was legally resident in Latvia, would suffice for that
purpose. As to the sum claimed by the applicant, the Government
considered it to be unjustified.
B. The Court’s assessment
The
Court considers that in the instant case the objection raised by the
Government is closely linked to the question whether the applicant
has effectively lost her status of “victim” within the
meaning of Article 34 of the Convention as a result of developments
since the admissibility decision in the present case. It is true
that, in its judgment in Pisano v. Italy ([GC] (striking
out), no. 36732/97, 24 October 2002), the Court examined this
question separately from the question of the application of Article
37 § 1 (b), ruling that the applicant could continue to claim
the status of “victim”, while going on to decide that the
matter had been resolved (loc. cit., §§ 38 39).
However, the present application concerns the removal of a foreign
national and her illegal residence within the national territory; in
cases of this type, where the applicant’s stay was regularised
during the course of the Court’s examination of the
application, the Court has generally considered whether it should
continue its examination under Article 34 of the Convention by
reference precisely to the notion of “victim” (see, for
example, the Pančenko and Mikheyeva decisions,
cited above; see also Maaouia v. France (dec.), no.
39652/98, ECHR 1999 II; Aristimuño Mendizabal
v. France, (dec.), no. 51431/99, 21 June 2005; and Yildiz
v. Germany (dec.), no. 40932/02, 13 October 2005). The Court
considers that in the instant case the Government’s objection
should be examined under Articles 34 and 37 taken together, as a
finding that the applicant has lost her “victim” status
within the meaning of Article 34 of the Convention would prompt the
Court to conclude that the matter has been resolved within the
meaning of Article 37 § 1 (b).
The
Court points out first of all that, in order to conclude in the
instant case that the matter has been resolved within the meaning of
Article 37 § 1 (b) and that there is therefore no longer
any objective justification for the applicant to pursue her
application, it is necessary to examine, firstly, whether the
circumstances complained of directly by the applicant still obtain
and, secondly, whether the effects of a possible violation of the
Convention on account of those circumstances have also been redressed
(see Pisano, cited above, § 42). Furthermore, in relation
to Article 34, the Court has always held that, as a general rule, a
decision or measure favourable to the applicant is not sufficient to
deprive him of his status as a “victim” unless the
national authorities have acknowledged, either expressly or in
substance, and then afforded redress for, the alleged breach of the
Convention (see, among many other authorities, Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions
1996 III, p. 846, § 36; Dalban v. Romania
[GC], no. 28114/95, § 44, ECHR 1999 VI; Labita v.
Italy [GC], no. 26772/95, § 142, ECHR 2000 IV; and
Guisset v. France, no. 33933/96, § 66, ECHR
2000 IX).
Where
the person concerned complains in particular of his or her
deportation or illegal status within the country, the minimum steps
required are firstly, the setting-aside of the deportation order and,
secondly, the issuing or recognition of a residence permit (see the
Mikheyeva decision, cited above). However, it is also
necessary to ascertain in each case whether these measures are
sufficient to fully remedy the complaint in question.
In
the instant case the Court observes that, until 1998, the applicant
was legally resident in Latvia. In April 1998 her name was removed
from the register of residents and she was served with a deportation
order. Although the order was never enforced, its existence
indisputably placed the applicant in a very uncertain and insecure
position in Latvia. Only in January and February 2005, that is, after
the present application had been declared admissible by the Court,
did the Latvian authorities take practical steps aimed at
regularising the applicant’s stay. It is worth noting that
almost seven years elapsed between the removal of the applicant’s
name from the register and the adoption of the above-mentioned
measures.
The
Court notes that none of the relevant Latvian authorities explicitly
acknowledged the existence of a violation of Article 8 of the
Convention. It observes, however, that the Directorate’s letter
of 7 January 2005 referred to the Court’s decision on the
admissibility of the present application. It therefore accepts that
the fact that the applicant’s complaint to the Court was thus
taken into consideration could be regarded as implicit
acknowledgement of the existence of an issue under Article 8.
That
said, and regard being had to all the relevant circumstances of the
case, the Court considers that the measures taken by the authorities
do not constitute adequate redress for the complaint in question.
Admittedly, the Government’s explanations – which have
not been disputed by the applicant – make clear that the
regularisation arrangements proposed would allow her to live
permanently and without hindrance in Latvia. However, that solution
does not erase the long period of insecurity and legal uncertainty
which she has undergone in Latvia. In sum, while it is true that some
redress has been afforded, it is no more than partial (see the
Aristimuño Mendizabal decision, cited above, and,
mutatis mutandis, Chevrol v. France,
no. 49636/99, § 42,
ECHR 2003 III).
48. The
Court further considers that this case differs from the cases of
Maaouia, Pančenko, Mikheyeva
and Yildiz,
cited above, and from the case of Mehemi v. France (no. 2)
(no. 53470/99, ECHR 2003 IV), in which the granting of a
residence permit was found to constitute redress. In Maaouia,
Mehemi (no. 2) and Yildiz, the alleged violation of
Article 8 stemmed from the removal or deportation of the applicants.
In Pančenko and Mikheyeva, the complaints were
similar to that of Mrs Shevanova, but the length of the applicants’
illegal residence in the country was appreciably shorter (almost
three years in the case of Mrs Pančenko and approximately six
years in the case of Mrs Mikheyeva). In the instant case, the alleged
violation stems from the insecure and uncertain situation in which
the applicant lived for around seven years. In the circumstances, the
Court finds that the adverse consequences for the applicant resulting
from the circumstances complained of have not been wholly erased.
It
follows that, since the authorities have not afforded full redress
for the violation alleged by the applicant, the latter can still
claim to be a “victim” within the meaning of Article 34
of the Convention. The matter has therefore not yet been resolved and
the Court sees no grounds for applying Article 37 § 1 (b) of the
Convention.
Accordingly,
the Court dismisses the Government’s objection.
II. ALLEGED
VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant submitted that the decision to deport her from Latvia
constituted unjustified and disproportionate interference with the
exercise of her right to respect for her private and family life, as
guaranteed by Article 8 of the Convention. The relevant passages of
Article 8 provide:
“1. Everyone has the right to respect
for his private and family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties’ submissions
1. The Government
The
Government denied that there had been interference with the
applicant’s rights under Article 8. They made the point first
of all that, in guaranteeing the right to respect for family life,
Article 8 presupposed the existence of a “family”. That
concept encompassed on the one hand the relationship established by
marriage and on the other the relationship between parents and their
children. In particular, the latter relationship did not necessarily
attract the protection of Article 8 without evidence of further
elements of dependency. In the Government’s view, the applicant
had not provided evidence of a specific bond of dependency between
herself and her adult son. The Government further submitted that, in
immigration matters, Article 8 did not entail any general
obligation on the part of the State to allow family reunification
within its territory.
In
the instant case the Government emphasised that, when applying for
the status of “permanently resident non-citizen”, the
applicant had deliberately concealed the fact that she had obtained
Russian citizenship four years previously. The relevant provision of
the Non-Citizens Act (see paragraph 33 above), however, was couched
in clear terms such that the applicant could not have been unaware
that the Act did not apply to persons who had citizenship of another
State. The Government further endorsed the findings of the Senate of
the Supreme Court to the effect that the right of individuals to have
two addresses in two different countries had not been at issue in the
case, as the only offence of which the applicant had been accused was
of having resided in Latvia without a valid visa or residence permit.
The
Government stated in that connection that the main function of the
register of residents introduced in 1991 was to identify those
persons who were legally and permanently resident in Latvia. Being
formally registered in Latvia was a prerequisite for non-nationals
wishing to be entered in the register. (The system was a legacy from
the Soviet era, when it had been known as propiska). Under
this system, only a single residence could be registered, whether in
Latvia or elsewhere. Hence, a registration of residence in another
country rendered the person’s registration in Latvia invalid
and vice versa.
The
Government also observed that, as a Russian citizen, the applicant
could have applied to the Latvian authorities for a permanent
residence permit under section 23(1) of the Aliens Act, but had not
done so. The provision in question had been designed specifically to
enable citizens of the former USSR who had acquired citizenship of
another State to reside without hindrance in Latvia. Instead of
entering an application and having her stay regularised in accordance
with the law, the applicant had chosen to flout the law, mislead the
Latvian authorities and remain in Latvia illegally.
Even
assuming that the measure complained of could be said to amount to
interference with the applicant’s rights under Article 8 of the
Convention, the Government were satisfied that the said interference
fulfilled the requirements of the second paragraph of that Article.
Firstly, it had been “in accordance with the law”, having
been based on section 38 of the Aliens Act, which was drafted in a
sufficiently clear and foreseeable manner and authorised the
Directorate or its head to issue a deportation order in respect of a
non national illegally resident within Latvian territory.
Secondly,
the interference had pursued at least two “legitimate aims”
within the meaning of Article 8 § 2 of the Convention, namely
the prevention of crime and the prevention of disorder. The
Government observed that the primary function of the register of
residents was to identify those persons who were resident in Latvia
on a legal and permanent basis and towards whom the State might have
certain obligations, for instance in the social-security sphere. In
such circumstances, the State and society had an interest in ensuring
that illegal residents did not benefit from rights and guarantees to
which they had no entitlement. Moreover, the objectives of the
impugned measure had been linked to the overall objectives of
immigration legislation, which included the protection of national
security, individual citizens and the democratic system.
Lastly,
the Government replied in the affirmative to the question whether the
impugned measure had been “necessary in a democratic society”
in order to achieve the aim pursued. In their view, the expulsion of
an alien for contravening the immigration legislation was a measure
generally accepted in the domestic law of the Contracting States.
Equally, in the present case, the interference at issue had been
examined at every level of the courts, which had subjected the
deportation order to careful scrutiny and found it to be lawful. The
Government stressed that the applicant was a Russian national, had
been born in Russia, was of Russian ethnic origin, spoke Russian as
her mother tongue and had a brother living in Russia. She therefore
had sufficiently strong ties with that country. The Government
expressed doubts, on the other hand, as to the degree to which the
applicant was integrated in Latvian society.
Finally,
the Government submitted that the deportation order had not been
followed by the applicant’s immediate removal from Latvian
territory as soon as it became enforceable; a period of time had
elapsed before the head of the Directorate had ordered her forcible
expulsion. Moreover, the measure complained of had never been
enforced, and the applicant continued to live in Latvia to the
present day.
2. The applicant
The
applicant submitted that the decision to deport her from Latvia
undoubtedly amounted to interference with her private and family life
since, should the deportation order be executed, she would be
separated from the son with whom she lived in Latvia. She stressed
that Latvia had been her sole country of residence for over
thirty-five years and that, until 2000, she had been legally
registered as resident in the country. With regard to her work in
Russia in 1995 and 1996, she said that the two periods she had spent
working there had lasted only 100 and 120 days respectively. As to
her Russian citizenship and her official registration of a place of
residence in Russia, she argued that these had been essential in
order to avoid potential problems in an unstable region close to
Chechnya. In other words, it had never been her intention either to
leave Latvia or to settle in Russia.
The
applicant further expressed doubts as to the “lawfulness”
of the interference. Firstly, in her view, section 38 of the Aliens
Act was to be read in conjunction with section 49, which stated that
international treaties took precedence over domestic legislation. The
Latvian authorities should therefore take account of Article 8 of the
Convention, which guaranteed the applicant’s right to respect
for her private and family life and constituted a reason for not
deporting her. Secondly, the applicant challenged the Government’s
argument that her registration of a residence in Russia had
automatically cancelled out – or “rendered invalid”
– her residence registration in Latvia. On the contrary, her
residence permit had been valid until 9 April 1998, when the
Directorate had removed her name from the register of residents and
issued an order for her deportation; hence, her residence in Latvia
had been perfectly legal until then. Lastly, the applicant contested
the view that the effects of the provisions in question were
foreseeable. In her opinion, it was not obvious who was or was not
covered by the Non Citizens Act, a fact demonstrated by the
numerous sets of judicial proceedings which had been brought on that
very subject.
Finally,
as to the alleged breaches of Latvian immigration law, the applicant
conceded that she had omitted to apply for a permanent residence
permit in accordance with the law. However, she considered that this
fact could not serve as a basis for withdrawing her
permanent-resident status in Latvia and deporting her. Neither did
that omission on her part prevent her from applying for a residence
permit after the deadline set by the above mentioned provision.
In support of that argument the applicant provided copies of two
judgments by the Senate of the Supreme Court in two separate cases
concerning citizens of the former USSR who had left Latvia
temporarily and returned subsequently. In both cases the Senate had
found that the persons concerned did not automatically and
unconditionally lose the right to remain in Latvia.
The
applicant also acknowledged that she had concealed her Russian
citizenship when applying for the status of “permanently
resident non citizen”. She submitted in that connection
that, since she was not a lawyer, she had not realised that only
persons who had no nationality could obtain that status. Even
assuming that she had concealed the information deliberately, the
decision to expel her constituted in any event a measure manifestly
disproportionate to any legitimate aim pursued. The applicant argued
in particular that, under Latvian law, the action in question was
merely a regulatory offence not punishable under criminal law and
attracting a fine of LVL 100 (approximately 150 euros (EUR)). There
was therefore no foundation for the Government’s assertion that
her actions had been sufficiently dangerous to justify her removal
from Latvia. In the circumstances, the applicant took the view that
the interference in question could not be said to be necessary and
justified in a democratic society.
B. The Court’s assessment
1. Whether there was interference
The
Court reiterates at the outset that the Convention does not guarantee
the right of an alien to enter or to reside in a particular country
and that Contracting States have the right, as a matter of
well-established international law, to control the entry, residence
and expulsion of aliens (see, among many other authorities, El
Boujaïdi v. France, judgment of 26 September 1997,
Reports 1997-VI, p. 1992, § 39; Baghli v. France,
no. 34374/97, § 45, ECHR 1999-VIII; and Boultif v.
Switzerland, no. 54273/00, § 39, ECHR 2001-IX).
Nevertheless,
the decisions taken by States in the immigration sphere can in some
cases amount to interference with the right to respect for private
and family life secured by Article 8 § 1 of the Convention, in
particular where the persons concerned possess strong personal or
family ties in the host country which are liable to be seriously
affected by an expulsion order. Such interference is in breach of
Article 8 unless it is “in accordance with the law”,
pursues one or more legitimate aims under the second paragraph of
that Article, and is “necessary in a democratic society”
in order to achieve them (see, for example, Moustaquim v. Belgium,
judgment of 18 February 1991, Series A no. 193, p. 18, §
36; Dalia v. France, judgment of 19 February 1998, Reports
1998-I, p. 91, § 52; and Amrollahi v. Denmark, no.
56811/00, § 33, 11 July 2002).
In
the instant case the Court notes that the applicant arrived in Latvia
in 1970, that is, at the age of twenty-two. The evidence in the case
file shows that, since 1970, she has always lived within Latvian
territory, and that her work-related absences in 1995 and 1996 are
the longest periods she has spent outside the country. Moreover, for
seven years of her time in Latvia she was married, and she gave birth
to her son there. In fact, it is not in dispute that, during her stay
within Latvian territory, she has forged the personal, social and
economic ties that make up the private life of every human being. The
Court cannot but find, therefore, that the decision to deport the
applicant from Latvia constituted an interference with her “private
life” within the meaning of Article 8 of the Convention (see,
mutatis mutandis, Slivenko v. Latvia [GC], no.
48321/99, § 96, ECHR 2003 X).
On
the other hand, the Court is of the opinion that the applicant cannot
rely on the existence of “family life” in relation to her
adult son. The Court has consistently held that the relationship
between adult children and their parents, which does not form part of
the core family, does not necessarily attract the protection of
Article 8 without evidence of further elements of dependency
involving more than the normal affective ties (see, in particular,
Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96,
7 November 2000). In the present case, the Court has already
found that there was no specific bond of this type between the
applicant and her son (see Shevanova and Ševanovs v. Latvia
(dec.), no. 58822/00, 15 February 2001). Nevertheless, it will
take into consideration the ties between the applicant and her adult
son under the head of the applicant’s “private”
life (see, mutatis mutandis, the Slivenko judgment,
cited above, § 97; see also Kolosovskiy v. Latvia (dec.),
no. 50183/99, 29 January 2004, and Ivanov v. Latvia
(dec.), no. 55933/00, 25 March 2004).
Lastly,
the Court observes that the deportation order served on the applicant
on 11 June 1998 has never been enforced. It further notes that
section 360(4) of the Administrative Procedure Act stipulates that an
administrative act may not be enforced if more than three years have
elapsed since it became enforceable (see paragraph 37 above).
Accordingly, the applicant is no longer under any real threat of
removal from Latvia. Moreover, in its Decree no. 75 of 2 February
2005, the Cabinet of Ministers instructed the Minister of the
Interior to issue the applicant with a permanent residence permit
“once the documents required to make such an application have
been received”. The Court observes that this solution would
allow the applicant to remain in Latvia on a legal and permanent
basis; that in turn would enable her to lead a normal social life and
maintain normal ties with her son and any other persons close to her.
The applicant could therefore exercise freely her right to respect
for her private and family life as interpreted in the Court’s
case-law.
However,
the Court reiterates that Article 8, like any other provision of the
Convention or the Protocols thereto, must be interpreted in such a
way as to guarantee not rights that are theoretical or illusory but
rights that are practical and effective (see, mutatis mutandis,
Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp.
15-16, § 33, and Soering v. the United Kingdom,
judgment of 7 July 1989, Series A no. 161, p. 34, § 87).
Furthermore, while the chief object of Article 8, which deals with
the right to respect for one’s private and family life, is to
protect the individual against arbitrary interference by the public
authorities, it does not merely compel the State to abstain from such
interference: in addition to this negative undertaking, there may be
positive obligations inherent in effective respect for private or
family life (see, for example, Gül v. Switzerland,
judgment of 19 February 1996, Reports 1996-I, pp. 174 175,
§ 38; Ignaccolo-Zenide v. Romania, no. 31679/96, §
94, ECHR 2000 I; and Mehemi v. France (no. 2), no.
53470/99, § 45, ECHR 2003 IV). In other words, it is not
enough for the host State to refrain from deporting the person
concerned; it must also, by means of positive measures if necessary,
afford him or her the opportunity to exercise the rights in question
without interference. As the Court has observed above, all the
measures taken by the Government do not wipe out the long period of
uncertainty and insecurity undergone by the applicant in Latvia.
In
sum, the fact that the applicant has not been deported from Latvia
and that she can now regularise her stay there does not alter the
Court’s reasoning as to the existence of interference with the
applicant’s private life.
2. Whether the interference was justified
It
remains to be determined whether the interference which the Court has
found to have occurred was compatible with the second paragraph of
Article 8 of the Convention, that is, whether it was “in
accordance with the law”, pursued one or more of the legitimate
aims listed in that paragraph and was “necessary in a
democratic society” in order to achieve them.
With
regard first of all to the lawfulness of the interference, the Court
reiterates that the words “in accordance with the law”
within the meaning of Article 8 § 2 of the Convention mean first
and foremost that the impugned measure must have a basis in domestic
law. However, the existence of a legal basis is not sufficient: the
law in question must also be accessible to the person concerned and
be formulated with sufficient precision to enable him or her –
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. A law which confers a measure of discretion
is not in itself incompatible with this requirement, provided that
the scope of any such discretion and the manner of its exercise are
defined with sufficient precision, having regard to the legitimate
aim in question, to give the individual adequate protection against
arbitrariness. The level of precision required depends, however, on
the sphere concerned: in relation to rights guaranteed by Article 8
of the Convention, the law must be couched in clear terms in order to
indicate to all concerned in what circumstances and under what
conditions the public authorities are entitled to interfere with
these rights (see, among many other authorities, Lavents
v. Latvia, no. 58442/00, § 135, 28 November 2002).
In
the instant case the Court notes that the relevant domestic authority
applied section 38 of the Aliens Act, in force at the material time,
which allowed the head of the Directorate to issue a deportation
order in respect of an alien residing within Latvian territory
without a valid visa or residence permit. Section 35 of the same Act,
meanwhile, stated that no residence permit would be issued to persons
who had been deported from Latvia in the previous five years or who
had knowingly provided false information with a view to obtaining a
residence permit. In the light of the principles outlined above, the
Court considers that these provisions were couched in sufficiently
clear terms for anyone concerned to foresee, with a reasonable degree
of certainty, the likely legal consequences of the conduct
contemplated therein (see, for example, Eriksson v. Sweden,
judgment of 22 June 1989, Series A no. 156, p. 24, § 59,
and Vogt v. Germany, judgment of 26 September 1995, Series A
no. 323, p. 25, § 48). The same is true of section 1(1) of
the Non-Citizens Act, which makes very clear that the Act applies
only to persons “who are not citizens of Latvia or any other
State”. The interference was therefore “in accordance
with the law”.
The
Court further considers that the right of the State to control the
entry and residence of non-nationals within its territory presupposes
that it may take dissuasive measures against persons who have broken
the law on immigration. Consequently, the decision to deport the
applicant pursued at least one of the aims cited by the Government,
namely that of preventing disorder.
It
remains to be established whether the impugned measure was “necessary
in a democratic society”, that is to say, whether it was
proportionate to the legitimate aim pursued. In that connection the
Court notes that the removal of the applicant’s name from the
register of residents and the order for her deportation were prompted
by her own dishonest conduct: having found the Soviet passport which
she had mislaid eight years previously and which had been replaced by
a new identity document, the applicant omitted to return it to the
relevant authorities. Being in possession of two passports, she
performed a number of fraudulent actions, having a false stamp placed
in the first passport, which had been officially reported as no
longer valid, and using that passport to obtain a residence
registration in Russia and Russian citizenship. She also concealed
the fact of her Russian citizenship in her dealings with the
immigration authorities, leading them to believe that her legal
status remained unchanged. The Court observes in particular that, as
a Russian citizen, the applicant could have regularised her stay in
Latvia by applying for a residence permit under section 23(1) of the
Aliens Act, but did not do so. On the contrary, instead of taking
this lawful approach she chose to act in a fraudulent manner which
she herself concedes to have been illegal.
As
the Court stated above, the sovereign right of a State to control the
entry and residence of non-nationals within its territory implies of
necessity that it may take dissuasive measures against persons who
act in breach of the applicable provisions in the matter; without
that possibility, the right would be merely illusory. Expulsion of
the person concerned from the country would seem to be the most
logical penalty, in view of the specific nature of the rights in
question. In many cases, sentencing the offender to a prison term or
payment of a fine and not deporting him or her would be tantamount to
saying that the sentence imposed dispensed the person concerned from
the obligation to comply with the law. Nevertheless, even in a
situation of this kind, the person’s expulsion may be
disproportionate for the purposes of Article 8 § 2 of the
Convention, in particular where the individual concerned has strong
personal or family ties within the country.
The
Court reiterates that most of the similar applications it has
examined to date under Article 8 of the Convention concerned cases in
which the alien deported or about to be deported had committed crimes
or serious offences (see, among other authorities, the Moustaquim,
El Boujaïdi, Dalia and Baghli judgments, cited
above; see also Beldjoudi v. France, judgment of 26 March
1992, Series A no. 234 A; Nasri v. France, judgment of 13
July 1995, Series A no. 320 B; Boughanemi v. France,
judgment of 24 April 1996, Reports 1996 II; Bouchelkia
v. France, judgment of 29 January 1997, Reports 1997 I;
Mehemi v. France, judgment of 26 September 1997, Reports
1997 VI; Boujlifa v. France, judgment of 21 October
1997, Reports 1997 VI; and Ezzouhdi v. France, no.
47160/99, 13 February 2001). In some of these cases, the Court found
that there had been a violation of Article 8 of the Convention
notwithstanding the seriousness of the applicants’ criminal
convictions. In the present case, on the other hand, the actions of
which the applicant was accused did not constitute a criminal offence
in the strict sense, but merely a regulatory offence attracting a
relatively small fine – which, moreover, was never enforced.
In
sum, and having weighed up on the one hand the seriousness of the
actions of which the applicant was accused and, on the other, the
severity of the measure taken against her, the Court concludes that
the Latvian authorities exceeded the margin of appreciation left to
the Contracting States in this sphere and did not strike a fair
balance between the legitimate aim of preventing disorder and the
applicant’s interest in having her right to respect for her
private life protected. The Court is therefore unable to find that
the interference complained of was “necessary in a democratic
society”.
Accordingly,
there has been a violation of Article 8 of the Convention.
III. 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. Pecuniary damage
The
applicant submitted that, owing to her detention “in February
and March 2001”, she had not been paid her full salary; during
the two months in question, she had received only LVL 32 whereas, in
2002, her average monthly salary had been LVL 129.28. Consequently,
the Government should repay her the difference between the first
amount and a sum double the second amount, giving a total of LVL
226.56. In addition, between 27 February and 5 March 2001, she
had been in hospital; her hospital stay had cost LVL 10.30. Finally,
she had had to buy medicines for fifteen months at a cost of
approximately LVL 20 per month, making a total of LVL 300 (however,
the applicant did not produce any documents to substantiate this
amount). Hence, the overall sum claimed by the applicant in respect
of pecuniary damage totalled LVL 536.86 (approximately EUR 812).
The
Government disputed the existence of a causal link between the
alleged violation and the amounts claimed by the applicant. Firstly,
they challenged the applicant’s assertion of a partial loss of
earnings: the applicant had left the detention centre for illegal
immigrants on 28 February 2001 and had been in hospital until 5 March
2001. However, after the latter date she had been able to work, and
the supposed loss of earnings for the month of March could not
possibly be connected to the deportation proceedings against her. The
same applied to the other two amounts claimed. Referring to the
applicant’s medical file, the Government argued that, while her
heart condition had certainly become worse during that period, it had
existed previously. Lastly, with regard to the medicines the
applicant claimed to have purchased, the Government stressed that no
evidence had been produced demonstrating, for instance, that they had
in fact been purchased or for what length of time the applicant had
had to take them.
The
Court considers that the applicant has not demonstrated with
sufficient certainty the existence of a direct causal link between
the alleged pecuniary damage and the violation (see Van Geyseghem
v. Belgium [GC], no. 26103/95, § 40, ECHR 1999 I,
and Nikolova v. Bulgaria [GC], no. 31195/96, § 73,
ECHR 1999 II). Accordingly, it dismisses the applicant’s
claims under this head.
B. Non-pecuniary damage
The
applicant claimed LVL 10,000 (approximately EUR 15,000) in
compensation for the anxiety she had suffered for almost four years,
particularly on account of the threat of deportation she had faced
throughout that time. Her arrest and detention in February 2001 had
further aggravated her psychological state: moreover, her detention
had constituted a serious infringement of Article 5 of the
Convention. Producing a medical certificate in support of her
argument, the applicant asserted that her state of health had
deteriorated as a result of the psychological trauma she had
undergone in detention.
The
Government considered the sum claimed by the applicant to be
excessive. Firstly, they pointed out that the application related
only to the alleged violation of Article 8 of the Convention; the
applicant had relied on Article 5 only in her claim for just
satisfaction. Secondly, the Government maintained that the anxiety
suffered by the applicant had resulted from her own conduct rather
than from the measures taken in the case by the Latvian authorities.
Thirdly, they pointed out that the order for Mrs Shevanova’s
deportation had never been enforced, that she continued to reside in
Latvia and that she could regularise her stay at any time, as had
been made clear to her. In the circumstances, the Government
considered that the finding of a violation would constitute in itself
sufficient redress for any non-pecuniary damage the applicant might
have sustained; in support of that argument, they cited several
judgments of the Court and several decisions by the Latvian courts.
The
Court considers that the applicant sustained a certain degree of
non-pecuniary damage on account of her illegal status within Latvian
territory, giving rise to the finding of a violation of Article 8 of
the Convention. Ruling on an equitable basis as required by Article
41, the Court awards the applicant EUR 5,000 under this head.
C. Costs and expenses
The
applicant claimed a sum of LVL 1,525.45 (approximately EUR 2,300)
for costs and expenses, including:
(a) LVL
1,420 for the work carried out by the non-governmental organisation
Latvijas Cilvēktiesību komiteja (the Latvian Human
Rights Committee): that amount, set out in an overall invoice issued
on 26 April 2002, was broken down as follows:
(i) LVL
350 for the drafting of complaints and applications to the Latvian
administrative authorities (70 hours’ work at an hourly rate of
LVL 5);
(ii) LVL
250 for representing the applicant before the Latvian courts and
other authorities in Latvia (10 hours’ work at an hourly rate
of LVL 25);
(iii) LVL
300 for preparation of the application (60 hours’ work at an
hourly rate of LVL 5) and LVL 60 for the translation of the documents
in the case file to accompany the application;
(iv) LVL
250 for the correspondence with the Registry of the Court after the
application had been lodged (50 hours’ work at an hourly rate
of LVL 5);
(v) LVL
210 for office expenses (telephone, fax, Internet and so forth);
(b) LVL
150.45 for other expenses (including the legal costs incurred by the
applicant during the second set of proceedings seeking to have the
deportation order set aside (see paragraph 25 above) and for the
translation into Russian of the Court’s partial decision on the
admissibility of the application).
The
Government challenged the sums claimed by the applicant. In
particular, they considered that there were no grounds for her
request for reimbursement of the costs incurred during the second set
of proceedings before the Latvian courts, as the effective aim of
those proceedings had been to challenge a final decision. Hence, the
proceedings in question had been extraordinary and were not to be
taken into consideration for the purposes of exhaustion of domestic
remedies. Similarly, in its partial decision of 15 February 2001, the
Court had declared only one of the applicant’s complaints
admissible – the complaint under Article 8 of the Convention –
and had rejected the remainder. In the Government’s view, that
fact should be taken into account in calculating the amount to be
reimbursed under Article 41 of the Convention.
The
Court reiterates that, in order to be reimbursed, costs must relate
to the violation or violations found and must be reasonable as to
quantum. In addition, Rule 60 § 2 of the Rules of Court provides
that itemised particulars must be submitted of all claims made under
Article 41 of the Convention, together with the relevant supporting
documents or vouchers, failing which the Court may reject the claim
in whole or in part (see, for example, Lavents, cited above, §
154). Equally, the Court may award the injured party payment not only
of the costs and expenses incurred in the proceedings before it, but
also those incurred before the domestic courts to prevent or rectify
a violation found by the Court (see Rotaru v. Romania
[GC], no. 28341/95, § 86, ECHR 2000-V).
The
Court notes that some confusion surrounds the documents
substantiating the legal assistance provided to the applicant. It
observes at the outset that none of the documents in the file
provides evidence of the Latvian Human Rights Committee having
participated in the proceedings before it. However, the content of
some of the documents, and in particular a legal representation
contract dated 6 June 2000, shows that the applicant was represented
by Mr G. Kotovs, working for the said association. As to the
expenses set out in the invoice of 26 April 2002, the Court notes
that they are described in very general terms, without the cost of
the individual legal services being specified. In any event, the sum
claimed by the applicant – EUR 2,300 – appears somewhat
excessive given the nature and legal complexity of the case. In these
circumstances, and making its assessment on an equitable basis, the
Court considers it reasonable to award the applicant the sum of EUR
1,000 to cover all heads of costs taken together. To this amount is
to be added any value-added tax that may be chargeable (see Lavents,
cited above, loc. cit.).
D. 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
Dismisses by six votes to one the Government’s
preliminary objection;
Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
Holds 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, the following amounts, to be
converted into Latvian lati at the rate applicable at the date of
settlement:
(i) EUR
5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in French, and notified in writing on 15 June 2006, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Christos rozakis
President
Søren Nielsen
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) partly
concurring opinion of Mr Spielmann;
(b) dissenting
opinion of Mrs Briede.
C.L.R.
S.N.
PARTLY CONCURRING OPINION OF JUDGE SPIELMANN
(Translation)
I
share the opinion of the majority in finding a violation of Article 8
of the Convention under the heading of “private life”.
However, I do not share the majority’s view that the applicant
cannot rely on the existence of “family life” between
herself and her adult son on the ground that the relationship between
adult children and their parents, which does not form part of the
core family, does not necessarily attract the protection of Article 8
without evidence of further elements of dependency involving more
than the normal affective ties (see paragraph 67 of the judgment).
It
is true that this very restrictive interpretation of the notion of
family life is in line – in the specific sphere of the entry,
residence and expulsion of non-nationals – with the case-law
established in Slivenko (see Slivenko v. Latvia [GC],
no. 48321/99, § 97, ECHR 2003-X). In addition –
and I am keenly aware of this – the Court found, in its partial
decision of 15 February 2001 on the admissibility of the present
case, that the ties between the applicant and her son did not go
beyond the normal affective ties. The Court found as follows
(translation):
“In the instant case the Court notes that the
second applicant was twenty-five years old when the deportation order
was served on his mother, and that he has not claimed the existence
of any specific ties of dependency, whether financial or otherwise,
between himself and his mother. It may well be that, since they have
lived together continuously, the second applicant would prefer to
maintain his links with his mother in Latvia. However, as the
principles articulated in the Court’s case-law make clear,
Article 8 does not guarantee a right to choose the most suitable
place to develop family life (see, mutatis mutandis, Ahmut
v. the Netherlands, judgment of 28 November 1996, Reports
of Judgments and Decisions 1996 VI, § 71). In the
instant case the second applicant has not claimed the existence of
any obstacle to his visiting his mother in Russia or having her visit
him in Latvia on the basis of a visa, and the Court does not believe
that he could develop family life with her only if she were to remain
resident in Latvia.
In the circumstances, and in so far as this complaint
was raised by the second applicant, it should be rejected as
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of
the Convention.”
Allowing
for this, and still bearing in mind the Slivenko judgment of
9 October 2003, which I am obliged to follow, I cannot in all
conscience fail to register my disagreement with this unduly
restrictive approach to the notion of family life.
The
Court has traditionally – in a wide variety of spheres,
moreover – adopted a broad construction of the notion of
“family life”. As far back as the Marckx case, it
emphasised that “‘family life’, within the meaning
of Article 8, includes at least the ties between near relatives, for
instance those between grandparents and grandchildren, since such
relatives may play a considerable part in family life”. The
Court went on to conclude that “‘respect’ for a
family life so understood implies an obligation for the State to act
in a manner calculated to allow these ties to develop normally”
(see Marckx v. Belgium, judgment of 13 June 1979, Series A
no. 31, p. 21, § 45; see also Scozzari and Giunta
v. Italy [GC], nos. 39221/98 and 41963/98, § 221,
ECHR 2000 VIII).
By
way of example I would cite the L. judgment of 1 June 2004, in
which the Court accepted that family life could also exist between a
child and a parent who had never lived together, if other factors
demonstrated that the relationship had sufficient constancy to create
de facto family ties (see L. v. the Netherlands, no.
45582/99, § 36, ECHR 2004 IV).
The Court has even gone so far as to say that “family life”
can encompass de facto relationships between persons with no
ties of kinship (see X, Y and Z v. the United
Kingdom, judgment of 22 April 1997, Reports 1997 II,
pp. 629-630, §§ 36-37).
What counts is whether there are “legal or factual elements
indicating the existence of a close personal relationship” (see
L., cited above, § 37).
In
the instant case the respondent Government, in the context of
possible regularisation of the applicant’s stay, stated that a
written guarantee from the applicant’s son would suffice as
proof of the applicant’s lawful income (see paragraph 41 of the
judgment). They thereby acknowledged, at least implicitly, the
possibility of the mother being dependent on her son. The Court, in
its partial decision on admissibility of 15 February 2001, noted that
the applicant’s son had not claimed the existence of any ties
of dependency with his mother. It added that, in its view, the
applicant’s remaining in Latvia was not the only means by which
her son could develop family life with her. While acknowledging that
“it may well be that ... the second applicant would prefer to
maintain his ties with his mother in Latvia”, the Court, on the
basis of all these factual elements, decided not to recognise the
existence of “family life”.
I
do not subscribe to this point of view.
Giving
precedence to the criterion of dependency to the detriment of that of
normal affective ties strikes me as a very artificial approach to
determining the existence of “family life”. It seems
inconceivable to me that so little importance can be attached to the
affective ties between a mother and her son that they can fall
outside the scope of “family life”.
This
line of case-law which, admittedly, appears to be confined to the
sphere of expulsions, greatly impoverishes the notion of “family
life”.
DISSENTING OPINION OF JUDGE BRIEDE
(Translation)
I
regret that I am unable to subscribe to the findings and the
reasoning of the majority in this case. It is my firm conviction
that, given the steps taken by the Latvian authorities in 2005 to
regularise the applicant’s stay, the latter can no longer claim
to be a “victim” of the alleged violation of Article 8 of
the Convention. I shall set out below the reasons why I have reached
this conclusion.
Let
me first make two preliminary remarks. Firstly, to my mind, the case
as it stood at the time of adoption of the judgment bears a close
resemblance to the case of Sisojeva and Others v. Latvia (no.
60654/00, judgment of 16 June 2005), in which Judge Vajić and I
expressed a joint dissenting opinion. I will therefore refer to that
opinion, while adding some further comments.
Secondly,
although in the instant case – unlike Sisojeva –
this issue does not appear to be central, I should like nonetheless
to reiterate that Article 8 of the Convention 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 rights secured by Article 8 § 1 of the
Convention, the granting of such a permit represents in principle a
sufficient measure to meet the requirements of that provision (see,
mutatis mutandis, Mehemi v. France (no. 2),
no. 53470/99, § 55, ECHR 2003-IV). In such cases, the Court
is not competent 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.
Accordingly,
I should like to move on directly to the main issue at stake in this
case, namely the definition of the status of “victim”
within the meaning of Article 34 of the Convention. Admittedly,
in dismissing the Government’s preliminary objection, the
majority was simply following well-established case-law; however, in
my view, that case-law is erroneous.
In
paragraphs 43-44 of the judgment, for instance, the majority states:
“43. ... Furthermore, in relation to
Article 34, the Court has always held that, as a general rule, a
decision or measure favourable to the applicant is not sufficient to
deprive him of his status as a ‘victim’ unless the
national authorities have acknowledged, either expressly or in
substance, and then afforded redress for, the alleged breach of the
Convention...
44. Where the person concerned complains in
particular of his or her deportation or illegal status within the
country, the minimum steps required are, firstly, the setting aside
of the deportation order and, secondly, the issuing or recognition of
a residence permit... However, it is also necessary to ascertain in
each case whether these measures are sufficient to fully remedy the
complaint in question.”
Furthermore,
in its recent decision in the case of Fjodorova and Others v.
Latvia (no. 69405/01, 6 April 2006), the Court held:
“The Court reiterates that an applicant who has
obtained adequate redress at domestic level for the alleged
violations of the Convention may no longer claim the status of
‘victim’... That rule applies even if the applicant
obtains satisfaction after the proceedings before the Court have
commenced, in accordance with the subsidiary nature of the Convention
system of safeguards. As a general rule, where the applicant
complains of his deportation and, consequently, of his irregular
status within the country, the quashing of the deportation order
against him and the granting of a residence permit are sufficient for
him no longer to be able to claim to be a ‘victim’...”
The
Court’s usual approach can thus be summarised as follows:
(1)
as a general rule, in order for the applicant to lose his or
her status as “victim”, the Government must meet both of
the following conditions: (a) it must acknowledge the
existence of a violation of the Convention and (b) it must afford
redress for it;
(2)
in some specific cases, providing effective redress for
the complaint is sufficient to deprive the applicant of his or her
“victim” status. Cases concerning deportation and
extradition therefore constitute a special category, one in which
regularisation of the applicant’s stay is in principle
sufficient, without the respondent Government needing also to
“acknowledge” the existence of a violation.
Leaving
aside the somewhat inconsistent nature of this approach (as is clear
in the Fjodorova decision, the first of these conditions is
not always mentioned, with the result that it is not easy to discern
where and when acknowledgement is actually a requirement), I
should like to recall the background to it. The rule referred to
above appears for the first time in Eckle v. Germany
(judgment of 15 July 1982, Series A no. 51, pp. 30 31,
§§ 66-67):
“66. ... [M]itigation of sentence and
discontinuance of prosecution granted on account of the excessive
length of proceedings do not in principle deprive the individual
concerned of his status as a victim ...; they are to be taken into
consideration solely for the purpose of assessing the extent of the
damage he has allegedly suffered...
The Court does not exclude that this general rule might
be subject to an exception when the national authorities have
acknowledged either expressly or in substance, and then afforded
redress for, the breach of the Convention... In such circumstances,
to duplicate the domestic process with proceedings before the
Commission and the Court would appear hardly compatible with the
subsidiary character of the machinery of protection established by
the Convention...
67. ...
Accordingly, it has to be ascertained whether, as the Government
submitted, the German courts held that Article 6 par. 1 had been
breached and, if so, whether they granted redress.”
Allow
me to remind you that, in the Eckle case, the applicant was
complaining of the length of criminal proceedings against him.
However, the above-mentioned formula – “first
acknowledge, then afford redress” –
appeared so effective that the Court began to use it in all kinds of
cases examined by it. For example: detention of a person pending his
deportation (Amuur v. France, judgment of 25 June 1996,
Reports 1996 III, § 36); freedom of expression
(Dalban v. Romania [GC], no. 28114/95, § 44, ECHR
1999 VI); right to a fair hearing before the Conseil d’Etat
(Chevrol v. France,
no. 49636/99, § 36, ECHR
2003 III); right to peaceful enjoyment of one’s
possessions (Brumărescu v. Romania [GC], no.
28342/95, § 50, ECHR 1999 VII); electoral rights
(Zdanoka v. Latvia [GC], no. 58278/00, § 69, ECHR
2006- ...), and so forth.
I
do not dispute the fact that, in some cases, application of this
formula was justified. What concerns me is that, by dint of excessive
recourse to this principle, the Court has ultimately lost sight of
its exceptional nature. In other words, it has, little by little,
made into a general rule something which ought not to be, while at
the same time turning the general principle into an exception.
It
should be borne in mind that, in the Eckle case, the Court was
faced with an exceptional situation, in which the applicant was
complaining of the length of two sets of criminal proceedings which
had lasted approximately seventeen and ten years respectively (see
Eckle, cited above, § 79). As the Court observed at the
very beginning of its reasoning, “such a delay is undoubtedly
inordinate and is, as a general rule, to be regarded as exceeding the
‘reasonable time’ referred to in Article 6 § 1”
(ibid., § 80); this, then, was a case in which it was clear from
the outset that a violation would be found. There are certainly many
other cases of this type – relating, for instance, to
allegations of torture or ill-treatment – in which the finding
of a serious violation of the Convention is more or less a foregone
conclusion (see, among many other authorities, Selmouni v. France
[GC], no. 25803/94, ECHR 1999 V). In such cases it is not
unreasonable to assert that, in view of the nature and seriousness of
the alleged violations, the Government should first acknowledge
that the person’s fundamental rights were violated. However, I
would stress that this category of cases is still the exception and
represents a minority; the present case certainly does not fall into
this category.
Of
course, some might counter this argument by saying that the Court
arrived at the reasoning in question as a result of its dynamic and
changing interpretation of the Convention. Nevertheless, as I see it,
the interpretation of legal rules, no matter how dynamic it is, must
not produce an absurd or illogical outcome; the formula in question,
however, leads us to precisely such a logical dead-end. It is clear
that the status of “victim” within the meaning of Article
34 of the Convention (locus standi) is quite separate from the
issue of whether or not the rights conferred by the Convention have
been violated. That being the case, how can the Court require the
State to acknowledge the existence of a
violation of the Convention if it is not yet sure of it itself?
In
my opinion, the present case offered an excellent opportunity to
remedy this situation; unfortunately, the majority has not taken that
opportunity. Be that as it may, I remain convinced that, as a general
rule, the domestic authorities deprive the applicant of his or
her victim status when they effectively bring to an end the situation
complained of and afford adequate redress. Only in exceptional
cases (a category to which this case does not belong) do the
seriousness and flagrant nature of the alleged violation require that
the State first acknowledge that there has been a violation.
One
last point: I should like to register my disagreement with paragraph
47 (and also paragraph 48) of the judgment. In dismissing the
Government’s preliminary objection, the majority referred to
the decision in Aristimuño Mendizabal v. France (no.
51431/99, 21 June 2005; see also the judgment of 17 January 2006). In
my view, the Aristimuño Mendizabal case is
fundamentally different from the present case. Mrs Aristimuño
Mendizabal complained of a situation of uncertainty created by the
fact that, despite the existence of Community legislation entitling
her to reside in France permanently, she had been obliged to seek
temporary regularisation of her stay every three months over a
fourteen-year period. Hence, I see no resemblance, however remote, to
the situation of Mrs Shevanova, and I do not believe that the case
cited above can serve as a precedent in the instant case.
In
the light of the above I would have taken the view, unlike the
majority, that, given the measures proposed to the applicant in order
to regularise her stay, she could no longer claim to be a “victim”
of a violation of Article 8 of the Convention. For that reason I
would have concluded that the matter giving rise to the present case
had been resolved and that the application should be struck out
of the Court’s list of cases in accordance with Article 37
§ 1 (b) of the Convention. Such a solution would also have been
fair from the applicant’s point of view since, had the Court
struck out the application, it would have been able to reimburse her
costs and expenses under Rule 44 § 3 of the Rules of
Court (see Pisano v. Italy [GC] (striking out), no. 36732/97,
§§ 51 56, 24 October 2002). That is why I
voted with the majority on the question of just satisfaction, while
specifying that my agreement related only to the amount of one
thousand euros awarded by the Court for costs and expenses.
