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SISOJEVA AND OTHERS v. LATVIA - 60654/00 [2007] ECHR 16 (15 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/16.html
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[2007] ECHR 16
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GRAND
CHAMBER
CASE OF
SISOJEVA AND OTHERS v. LATVIA
(Application
no. 60654/00)
JUDGMENT
STRASBOURG
15 January
2007
This
judgment is final but may be subject to editorial revision.
In the case of Sisojeva and Others v. Latvia,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Mr L.
Wildhaber, President,
Mr J.-P.
Costa,
Sir
Nicolas Bratza,
Mr
B. Zupančič,
Mr
I. Cabral Barreto,
Mr R.
Türmen,
Mr C.
Bîrsan,
Mr K.
Jungwiert,
Mr V.
Butkevych,
Mr M.
Pellonpää,
Mr M.
Ugrekhelidze,
Mrs A.
Mularoni,
Mrs E.
Fura-Sandström,
Mrs R.
Jaeger,
Mr David
Thór Björgvinsson,
Mr D.
Popović, judges,
Mrs J.
Briede, ad hoc judge,
and Mr M. O'Boyle, Deputy Registrar,
Having
deliberated in private on 23 May 2006 and on 11 October 2006,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 60654/00) 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 four persons of Russian origin,
Mrs Svetlana Sisojeva, Mr Arkady Sisojev, Mrs Tatjana
Vizule and Miss Aksana Sisojeva (“the applicants”),
on 29 August 2000.
The
applicants, who had been granted legal aid, were represented by Mr V.
Portnov, a lawyer practising in Moscow. On 28 November 2006 the
latter informed the Court that he would no longer be representing the
applicants. The Latvian Government (“the Government”)
were represented by their Agent, Mrs I. Reine. The Russian
Government, who had exercised their right to intervene under Article
36 § 1 of the Convention, were represented by Mr P.
Laptev, representative of the Russian Federation at the Court.
The
applicants alleged, in particular, that the refusal of the Latvian
authorities to regularise their stay in Latvia despite their long
period of residence in the country amounted to a violation of their
right to respect for their private and family life under Article 8 of
the Convention.
The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court).
On 1
November 2001 the Court changed the composition of its Sections (Rule
25 § 1). This case was assigned to the newly composed First
Section (Rule 52 § 1). 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 decision of 28 February 2002 the Chamber declared the application
admissible with regard to Mrs Svetlana Sisojeva, Mr Arkady Sisojev
and Miss Aksana Sisojeva. It rejected Mrs Tatjana Vizule's
complaints as manifestly ill-founded.
In
a letter of 11 April 2002 the applicants informed the Court that the
first applicant had been questioned by the police on the subject of
their application to the Court. The applicants therefore requested
the Court to indicate interim measures to the Government under Rule
39. On 30 May 2002 the Chamber decided not to apply Rule 39, but to
request the Government to submit their observations as to whether
there had been a breach of the last sentence of Article 34 of the
Convention.
The
applicants and the Government each filed written observations on the
merits (Rule 59 § 1). The parties replied in writing to each
other's observations. In addition, observations were received from
the Russian Government, who had exercised their right to intervene
(Article 36 § 1 of the Convention and Rule 44).
A
hearing on the merits took place in public in the Human Rights
Building, Strasbourg, on 19 September 2002 (Rule 59 § 3). On the
same day, the Chamber declared admissible the applicants' additional
complaint based in substance on the last sentence of Article 34 of
the Convention.
As
the seat of the judge elected in respect of Latvia was vacant, the
President of the Chamber invited the Government on 7 October 2004 to
indicate whether they wished to appoint to sit as judge either
another elected judge or an ad hoc judge who possessed the
qualifications required by Article 21 § 1 of the Convention. In
a letter of 8 November 2004 the Government appointed Mrs J. Briede as
ad hoc judge (Article 27 § 2 of the Convention and Rule
29 § 1).
On
29 March 2005 the President of the Chamber informed the Government of
the Court's decision not to include in the case file the additional
observations submitted by fax on 22 March 2005, on the ground that
the Government had submitted them to the Court outside the time limit
for submission of written pleadings (Rule 38 § 1).
On
16 June 2005 a Chamber of the First Section, composed of Mr C.L.
Rozakis, President, Mrs F. Tulkens, Mrs N. Vajić, Mr A.
Kovler, Mr V. Zagrebelsky and Mrs E. Steiner, judges, Mrs J.
Briede, ad hoc judge, and of Mr S. Nielsen, Section
Registrar, delivered a judgment in which it held as follows: by
five votes to two, that the applicants could claim to be “victims”
for the purposes of Article 34 of the Convention; by five votes to
two, that there had been a violation of Article 8 of the Convention;
and by six votes to one, that the respondent Government had not
failed to comply with their obligations under Article 34 of the
Convention. The Chamber also decided, by five votes to two, to award
each of the three applicants 5,000 euros (EUR) in respect of
non-pecuniary damage. The partly dissenting opinion of Mr Kovler and
the joint dissenting opinion of Mrs Vajić and Mrs Briede
were annexed to the judgment.
On
16 September 2005 the Government requested that the case be referred
to the Grand Chamber under Article 43 of the Convention. On
30 November 2005 a panel of the Grand Chamber granted the
request.
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court. On 3 May 2006 Mr I. Cabral Barreto,
substitute judge, replaced Mr C.L. Rozakis, who was unable to take
part in the further consideration of the case (Rule 24 § 3). In
the same manner, on 4 October 2006, Mr M. Pellonpää,
substitute judge, replaced Mr L. Caflisch.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 24 May 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs I. Reine, Agent,
Mrs
S. KauliŅa, Counsel,
Mrs M.
Zvaune,
Mr K. ĀboliŅŠ,
Advisers;
(b) for the applicants
Mr V. Portnov,
Mrs G.
Nilus, Counsel,
Mrs Y. Borisova,
Mrs M. Samsonova,
Advisers;
(c) for the Russian Government
Mr P. Laptev,
representative of the Russian Federation at the Court,
Mr Y.
Berestnev,
Mr D. Spirin, Counsel,
Mr M.
Vinogradov, Adviser.
The
Court heard addresses by Mr Portnov, Mrs Nilus, Mrs Reine and
Mr Laptev.
On
15 June and 4 July 2006 respectively the Latvian Government and the
applicants provided written replies to the additional questions asked
by some of the judges at the hearing.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants are a married couple, Svetlana Sisojeva (“the first
applicant”) and Arkady Sisojev (“the second applicant”)
and their daughter, Aksana Sisojeva (“the third applicant”).
They were born in 1949, 1946 and 1978 respectively. The second and
third applicants have Russian nationality, while the first applicant
has no nationality. All three live in Alūksne (Latvia).
The
first two applicants entered Latvian territory in 1969 and 1968
respectively, when the territory formed part of the Soviet Union. The
second applicant, who was a member of the Soviet armed forces at the
time, was stationed in Latvia and remained there until he finished
serving his time in November 1989. The third applicant and her elder
sister, Mrs Tatjana Vizule, were born in Latvian territory.
Following
the break-up of the Soviet Union and the restoration of Latvian
independence in 1991 the applicants, who had previously been Soviet
nationals, became stateless.
In
August 1993 Tatjana married a Latvian national. She is mother to two
minor children who have Latvian nationality.
A. The first set of proceedings, relating to
regularisation of the applicants' stay in Latvia
In
1993 the first and second applicants applied to the Latvian Interior
Ministry's Nationality and Immigration Department (Iekšlietu
ministrijas Pilsonības un imigrācijas departaments –
“the Department”) to obtain permanent resident status and
to be entered in the register of residents of the Republic of Latvia
(Latvijas Republikas Iedzīvotāju reģistrs).
However, on 19 June 1993 the Department issued them only with
temporary residence permits.
The
first and second applicants then lodged an application with the
Alūksne District Court of First Instance, requesting it to
direct the Department to enter them in the register of residents as
permanent residents. In a judgment delivered on 28 October 2003,
which was upheld on 8 December 1993 following an appeal on
points of law, the court allowed their application. It considered
that, under the legislation in force, the situation of the second
applicant, who had left the army before 4 May 1990 – the date
on which Latvia had declared its independence – could not be
equated with that of a non-Latvian serviceman temporarily present on
Latvian soil, who would be entitled only to a temporary residence
permit. The Department subsequently entered all the applicants in the
register of residents.
B. The second set of proceedings, relating to
withdrawal of the applicants' residence permits
In
the meantime, in January 1992, the first two applicants had each
obtained two former Soviet passports and had therefore been able to
have their place of residence registered in Izhevsk (Russia) despite
already having a registered place of residence in Latvia (pieraksts
or dzīvesvietas reģistrācija). The Department
discovered this fact only in 1995.
In
two decisions dated 3 November and 1 December 1995 the Alūksne
police decided not to institute criminal proceedings against the
applicants for using false identity papers. However, the Department
imposed an administrative penalty of 25 lati (LVL) (approximately 40
euros (EUR)) on them for breach of the passport regulations. The
Department also applied to the Alūksne District Court of First
Instance to have the proceedings reopened to consider new facts,
alleging fraudulent behaviour on the part of the first two
applicants. The Department also noted that the third applicant had
followed the example of her parents and sister in 1995, obtaining two
passports and having her place of residence registered in both Russia
and Latvia.
In
an order of 28 May 1996 the Alūksne District Court of First
Instance, ruling on the application for the proceedings to be
reopened, allowed the Department's application, quashed its own
judgment of 28 October 1993 and ordered the removal of the
applicants' names from the register of residents. The first two
applicants appealed to the Vidzeme Regional Court which, in an order
dated 3 June 1997, quashed the decision in question and referred the
case back to the Alūksne Court of First Instance.
In
1996 the second and third applicants applied for and obtained Russian
nationality. On 8 August 1996 the Russian Embassy in Latvia issued
them with passports of the Russian Federation.
In
March 1998 the third applicant, by now an adult, was joined as a
party to the proceedings before the Alūksne Court of First
Instance.
In
a letter of 15 May 1998 the Joint Committee for the implementation of
the agreement between the Government of Latvia and the Government of
the Russian Federation on social welfare arrangements for
retired members of the Russian armed forces and their family members
resident in Latvia (“the Russian-Latvian agreement” –
see paragraph 53 below) requested the Interior Ministry's Nationality
and Migration Directorate (Iekšlietu ministrijas Pilsonības
un migrācijas lietu pārvalde – “the
Directorate”), which had replaced the Department, to issue the
applicants with permanent residence permits, on the ground that they
had the right to remain in Latvia under the above agreement. In a
second letter sent the same day the Joint Committee informed the
Alūksne Court of First Instance that the first applicant had
neither Russian nor any other nationality.
In
July 1998 the applicants submitted a further request to the Court of
First Instance. In a joint memorial they argued that, as the second
and third applicants had Russian nationality, they had the right to
obtain permanent residence permits under the Russian-Latvian
agreement. The first applicant, who had no nationality, contended
that she was entitled to the status of a “permanently resident
non citizen (nepilsonis)” under the Act on the
Status of Former USSR Citizens without Latvian or other Citizenship
(“the Non-Citizens Act” – see paragraph 47 below).
In
court, the applicants made no attempt to deny the actions of which
they had been accused by the Department and the Directorate, but
maintained that those actions had been in breach only of Russian law
and therefore had no effect on their rights in Latvia.
In
a judgment of 28 July 1998 the Alūksne District Court of First
Instance allowed the applicants' request. It noted that the
applicants' place of residence had been legally registered in Alūksne
since 1970 and that they had lived there from then onwards. In the
court's view, since the procuring of second passports by the
applicants and their registration in Russia were illegal and void
acts, they had no impact on the applicants' legal status in Latvia.
The court also noted that the second applicant was on the list of
former members of the Russian armed forces in receipt of a Russian
military pension and entitled to remain in Latvia. That list had been
drawn up jointly by the two governments in accordance with the
Russian-Latvian agreement. Consequently, the court held that the
first applicant was entitled to apply for a passport as a
“permanently resident non-citizen” and that the second
and third applicants were entitled to obtain permanent residence
permits.
The
Directorate appealed against that judgment to the Vidzeme Regional
Court. In a judgment of 15 June 1999 the Regional Court dismissed the
appeal, endorsing the findings and reasoning of the first instance
court.
The
Directorate then lodged an appeal on points of law with the Senate of
the Supreme Court. In a judgment of 15 September 1999 the Senate
quashed the Regional Court's judgment and declared it null and void.
The Senate found that secretly obtaining two passports and
registering places of residence in two different countries, failing
to disclose the second passports and supplying false information to
the authorities when applying for regularisation constituted serious
breaches of Latvian immigration law. The Senate also referred to
section 1(3), subparagraph 5, of the Non Citizens Act, which
stated that the status of “permanently resident non citizen”
could not be granted to persons who, on 1 July 1992, had their
permanent place of residence registered in a member State of the
Commonwealth of Independent States (of which Russia is a member). The
Senate considered that the provision in question was fully applicable
to the applicants' case.
The
Senate also noted that the judgment of the Alūksne Court of
First Instance of 28 October 1993 had been subsequently set aside
when the proceedings were reopened, thereby depriving the entry of
the applicants in the register of residents of any legal basis. It
concluded that the second and third applicants, since they did not
satisfy the requirements of the Aliens and Stateless Persons (Entry
and Residence) Act (“the Aliens Act” – see
paragraph 50 below), were also not entitled to obtain permanent
residence permits. Consequently, the Senate set aside the judgment of
15 June 1999 and referred the case back to the appellate court.
For
procedural reasons, the case was transferred to the Latgale Regional
Court which, in a judgment of 10 January 2000, rejected the
applicants' application, reaffirming the reasons given by the Senate.
Unlike the Russian-Latvian Joint Committee, the Regional Court
considered that the first applicant had Russian nationality under the
Russian Federation's Nationality Act. With regard to the second
applicant, it considered that the fact that an individual was on the
list of retired army personnel merely attested to the fact that the
person concerned actually resided in Latvia and was in receipt of a
Russian military pension; it did not in any sense confer entitlement
to a residence permit.
In
a judgment of 12 April 2000 the Senate of the Supreme Court dismissed
an appeal by the applicants on points of law, endorsing in substance
the arguments of the Regional Court.
In
two letters dated 17 May and 26 June 2000 the Directorate reminded
the applicants that they were required to leave Latvia.
C. The questioning of the first applicant by the
security police
On
the morning of 6 March 2002 the first applicant, Svetlana Sisojeva,
was summoned to the regional headquarters of the security police
(Drošības policija). An officer of the security
police asked her a number of questions, some of them relating to her
application to the Court and to an interview she had given to
journalists from a Russian television channel on the subject. In
particular, the police asked the first applicant how the Russian
journalists had made contact with her, how she had heard about the
possibility of lodging an individual application with the Court, how
she had found lawyers to represent her before the Court and how she
had known that certain persons had bribed Directorate officials in
order to obtain Latvian residence permits. In addition, the police
officer asked her several questions about her professional career and
about the members of her family.
The
dialogue between the first applicant and the police officer, as
reconstructed by the applicant and sent to her lawyers on 4 April
2002, ran as follows:
“Police officer: How did the television
channel ORT find you?
Applicant: We had had telephone calls in November
[and] December. At the time, we had refused to meet them, but
journalists are bloodhounds, they always get what they want.
Police officer: And then?
Applicant: They telephoned from Riga and said
they wanted to meet us and talk to us. I agreed. They wanted to talk
to several [people] who had brought cases before the courts.
Police officer: When did they phone?
Applicant: It was a Saturday night, about 10 p.m.
They came round on the Sunday, at about 3.30 p.m. If you want to come
round [too], you're welcome. Our door is always open.
Police officer: You said that you'd taken the
case all the way to the European Court, didn't you?
Applicant: Yes, I did. There were fourteen sets
of proceedings; we fought and fought [again], and eventually we
turned to the European Court, because of the people in charge in the
[Directorate]. They saw it as a game to get us deported from the
country, while we wanted to prove that we were in the right. [Their]
attitude towards us was based on prejudice: we hadn't broken any laws
in Latvia.
Police officer: How and where did you find out
that you could apply to the European Court?
Applicant: The issue of our regularisation was
discussed several times by the tripartite Joint Committee. We had
approached the Human Rights Committee. We had lawyers. The
representatives of the Interior Ministry and the [Directorate] had
told us at the last meeting that they had no objections to raise or
accusations to make as far as we were concerned, and that everything
would be fine. Unfortunately, they haven't kept their promises so
far. The Committee advised us to lodge an application with the
European Court about the length of the proceedings if the case wasn't
resolved.
Police officer: And how did you find those
lawyers?
Applicant: With the help of the lawyers in the
social welfare office we were registered with.
Police officer: Perhaps your lawyers threatened
you, saying that if you didn't give information to ORT they
would stop working with you?
Applicant: That's nonsense. They told us not to
give information to anyone without their consent, not even to ORT...
Police officer: You said that over forty people
had lodged applications?
Applicant: Yes, I did. Actually, there are even
more people involved: I meant that there were forty families. We've
all been through the courts: some of us once, some twice, and some
even three times. A lot of people solved the problem by paying
backhanders.
Police officer: How do you know that?
Applicant: We were all in the same boat and we
helped one another. We used to say to one another that if someone had
money, it was better for him to pay, to avoid a trial. [The first
applicant then gave the example of two families whose status had been
regularised after they had bribed Directorate officials; she named
one of the officials concerned.]
Police officer: And why did you not come to us?
Applicant: We didn't know you could help us.
Police officer: How did you come by the
information that forty people had lodged applications?
Applicant: Actually, the figure is higher. We've
all had a lot of problems. [The applicant dwelt in detail on five
specific cases concerning the regularisation of persons in a similar
situation to her own.]
Police officer: What does your husband think
about the case?
Applicant: He supports [me]: what would you do?
[The police officer then asked the applicant a series
of questions about her education, her work, her husband's work and
the family's financial situation.]
Police officer: Once more, how did you find out
that you could take your case to the European Court?
Applicant: We read the papers, we watch
television; the cases of Podkolzina, Kulakova, Slivenko
and several other families were reported in the media. We approached
the Human Rights Committee, who gave us advice and even offered to
[help us] find a lawyer. Strange, isn't it? It was very hard for us,
having to bring a case against Latvia before the European Court, but
all the avenues open to us to try and resolve the problem in Latvia
had been exhausted. It's the fault of the [Directorate and its
officials], who flout the law and force people to leave Latvia.
They're the ones who bring shame on Latvia. We haven't broken any
law.
Police officer: When is the case going to be
examined?
Applicant: We don't know.
Police officer: What documents have you sent
them?
Applicant: The courts' decisions.”
The
Government contested the accuracy of this record, particularly in
view of the length of time that had elapsed between the interview
itself and the drafting of the document. The first applicant conceded
that the document was probably less than perfect, given that it had
been drafted from memory almost a month after the fact; she
acknowledged that several other questions (which she could not
recall) might have been asked during the interview. However, she
contended that her record reflected with sufficient accuracy the
content and tone of the interview.
D. The proposals for regularising the applicants' stay
On
11 November 2003 the head of the Directorate sent a letter to each of
the applicants explaining the procedure to be followed in order to
regularise their stay in Latvia. The relevant passages of the letter
sent to the first applicant (Svetlana Sisojeva) read as follows:
“... The [Directorate] ... would remind you that,
in accordance with the principle of proportionality, no order has
hitherto been made for your deportation, and that it is open to you
to regularise your stay in the Republic of Latvia in accordance with
the [country's] legislation.
Under sections 1 and 2 of the Status of Stateless
Persons Act, persons who are not considered to be nationals of any
State under the laws of that State ... and who are legally resident
in Latvia, may obtain stateless person status.
You satisfy the above requirements...
In view of the above, the Directorate is prepared to
regularise your stay in Latvia by entering your name in the register
of residents as a stateless person [resident] in Latvia and by
issuing you with an identity document on that basis.
In order to complete the necessary formalities, you will
need to go in person to the Alūksne district office of the
Directorate, bringing with you your identity papers, your birth
certificate and two photographs...”
The
letters sent to the other two applicants were similar in content. The
letter to the second applicant (Arkady Sisojev) stated in particular:
“... If your wife, Mrs Svetlana Sisojeva, avails
herself of the opportunity to regularise her stay in the Republic of
Latvia in accordance with the provisions in force, you will be
entitled, under the Immigration Act, to obtain a residence permit.
The Directorate is not aware of any reason which would prevent you
from applying for and obtaining a residence permit in Latvia.
Under the terms of section 32 of the Immigration Act,
only aliens residing in Latvia on the basis of a residence permit may
apply to the Directorate for a residence permit... In other cases,
and where such a move accords with international human rights
provisions and the interests of the Latvian State, or on humanitarian
grounds, the head of the Directorate may authorise the person
concerned to submit the relevant papers to the Directorate in order
to apply for a residence permit. As no order has hitherto been made
for your deportation, you may submit the relevant papers ... to the
Alūksne district office of the Directorate...
...
In view of the above, the Directorate is prepared to
issue you with a residence permit at your wife's place of residence,
in accordance with section 26 of the Immigration Act, on condition
that S. Sisojeva completes the necessary formalities in order to
regularise her stay in Latvia as a stateless person, and that she
responds to the invitation from the Alūksne office of the
Directorate...”
Lastly,
the letter to the third applicant (Aksana Sisojeva) contained the
following passages:
“ ... If your mother, Mrs Svetlana Sisojeva,
avails herself of the opportunity offered to her and, after
completing the necessary formalities, regularises her stay in the
Republic of Latvia in accordance with the provisions in force, you
will be entitled, under the Immigration Act, to obtain a residence
permit. The Directorate is not aware of any reason which would
prevent you from applying for and obtaining a residence permit in
Latvia.
...
The Directorate would further inform you that, in
accordance with section 23(3) of the Immigration Act, in cases not
provided for by the Act, a temporary residence permit may be issued
by the Minister of the Interior, where such a move is in accordance
with the provisions of international law. Consequently, you are also
entitled to apply to the Minister of the Interior for a residence
permit valid for a period longer than that specified in section 23(1)
subparagraph 1 of the Immigration Act. Furthermore, after a period of
residence of ten years on the basis of a temporary residence permit,
you may apply for a permanent residence permit in accordance with
section 24(1) subparagraph 7 of the Immigration Act...”
In
addition, a letter containing the above information concerning the
three applicants was sent to the Government's Agent. On the same
date, 11 November 2003, the head of the Directorate signed three
decisions formally regularising the applicants' status in Latvia.
More specifically, he ordered that the first applicant be entered in
the register of residents as a “stateless person”, that
she be issued with an identity document valid for two years, and that
the second and third applicants be issued with temporary residence
permits valid for one year and six months respectively. However,
regularisation of the status of the second and third applicants was
contingent upon that of the first applicant. In other words, in order
for Arkady Sisojev and Aksana Sisojeva to obtain residence permits,
Svetlana Sisojeva first had to submit the relevant documents to the
Directorate.
None
of the applicants complied with the instructions outlined above in
order to obtain residence permits.
By
Decree no. 15 of 22 March 2005, the Cabinet of Ministers (Ministru
kabinets) instructed the Minister of the Interior to issue
Arkady Sisojev and Aksana Sisojeva with five-year temporary
residence permits, “in accordance with section 23(3) of the
Immigration Act”. In a letter sent on the same day, the
Government informed the Court of the measure, pointing out that,
after the five years had elapsed, the two applicants in question
could obtain permanent residence permits
On
15 November 2005 the applicants applied to the Directorate to have
their stay regularised on the basis they had requested initially,
that is, for the first applicant to be granted the status of
“permanently resident non citizen” and for the other
two applicants to be issued with permanent residence permits. The
Directorate replied on the following day, 16 November 2005.
After recalling the background to the case before the domestic courts
and in Strasbourg, the Directorate went on:
“ ... On 11 December 2003 you stated that you
would not consider the Directorate's proposals until after the
European Court of Human Rights had delivered its judgment.
In accordance with ... the Status of Stateless Persons
Act ... in force at the time, an order was given for Svetlana
Sisojeva to be issued with an identity document for stateless
persons, and she was told that the authorities were willing to grant
her stateless person status. It was [therefore] open to Mrs Sisojeva
to take advantage of that option, but she failed to do so. However,
in accordance with the principle of respect for personal rights and
the principle of legitimate expectation, the Directorate has not set
aside its decision of 11 November 2003 in respect of Svetlana
Sisojeva. Consequently, it remains open to her to regularise her
stay in Latvia under section 6(1) of the Stateless Persons Act
and paragraph 2 of its transitional provisions. Since
Svetlana Sisojeva's entitlement to stateless person status ...
was recognised before the entry into force of that Act, were she
to obtain an identity document for stateless persons she would also
be issued with a permanent residence permit... As for Arkady
Sisojev and Aksana Sisojeva, they would be entitled, on the same
basis, to obtain temporary residence permits.
...
The Directorate would further point out that, on 22
March 2005, the Cabinet of Ministers ... instructed the Minister of
the Interior to issue Arkady Sisojev and Aksana Sisojeva with
five-year temporary residence permits, under section 23(3) of
the Immigration Act.
In view of the above, the Directorate would remind you
of the possibility of regularising your stay in the Republic of
Latvia, on the following basis. Svetlana Sisojeva may obtain
stateless person status and be issued with a permanent residence
permit; Arkady Sisojev and Aksana Sisojeva, meanwhile, may apply for
and obtain temporary residence permits, in accordance with section
23(3) of the Immigration Act. ...”
The
remainder of the letter explained in detail to each of the applicants
the procedure to be followed and the documents to be submitted in
order to have their stay regularised, and the tax rates which applied
for that purpose. The applicants did not take the steps indicated by
the Directorate.
On
2 and 3 November 2005 the relevant official of the Border Police
questioned the applicants, asking them why they had not regularised
their stay. Following that conversation, the Commander of the Border
Police requested details from the head of the Directorate concerning
the applicants' precise status in Latvia. By letter of 22 November
2005 the latter explained that, since 2000, there had been sufficient
legal basis for issuing orders for the applicants' deportation, but
that no such orders had been issued on the grounds of proportionality
and in view of the proceedings pending before the European Court of
Human Rights.
In a
letter dated 16 December 2005 the Directorate reminded the applicants
once more that they had the possibility of regularising their stay.
No reply was forthcoming.
As
matters stand, the applicants are resident in Latvia without valid
residence permits. According to the information supplied by the
applicants, which has not been disputed by the Government, Svetlana
Sisojeva has been unemployed since 1992. Arkady Sisojev works as a
technician in a municipal communal heating plant in Alūksne;
despite being cautioned repeatedly by the authorities, his employer
has consistently refused to dismiss him on the sole ground that he is
illegally resident in Latvia. Aksana Sisojeva, meanwhile,
obtained a law degree from the Baltic Russian Institute (Baltijas
Krievu institūts) in July 2004. The applicants contend that,
owing to her irregular status, she has to date been unable to find
work.
II. RELEVANT DOMESTIC LAW
A. Immigration law and the Russian-Latvian agreement of
30 April 1994
1. General information
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 but have not subsequently obtained
any other nationality – who are governed by the Act of 12 April
1995 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”
– “the Non Citizens Act”);
(c) asylum-seekers
and refugees, whose status is governed by the Asylum Act of 7 March
2002 (Patvēruma likums);
(d) “stateless
persons” (bezvalstnieki) within the meaning of the
Status of Stateless Persons Act of 18 February 1999 (Likums “Par
bezvalstnieka statusu Latvijas Republikā”), read in
conjunction with the Aliens and Stateless Persons (Entry and
Residence) Act of 9 June 1992 (“the Aliens Act”) and,
since 1 May 2003, with the Immigration Act of 31 October 2002
(Imigrācijas likums). On 2 March 2004 the Status of
Stateless Persons Act was replaced by a new Stateless Persons Act;
(e) “aliens”
in the broad sense of the term (ārzemnieki), including
foreign nationals (ārvalstnieki) and stateless persons
(bezvalstnieki) falling solely within the ambit of the Aliens
Act (before 1 May 2003), and the Immigration Act (after that date).
2. “Permanently resident non-citizens”
Section
1 of the Non-Citizens Act formerly set forth detailed criteria for
obtaining this specific status. In the version in force since 25
September 1998, the first paragraph of section 1 reads as follows:
“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;
and
(3) they are not and have not been citizens
of any other State.
...
3. Stateless persons
The
relevant provisions of the former Status of Stateless Persons Act
read as follows:
Section 2
“1. The status of stateless person may
be granted to persons whose status is not defined either by the Act
on the Status of Former USSR Citizens without Latvian or other
Citizenship or by the Asylum Act , provided they
...
(2) are legally resident in Latvia.
2. Stateless persons who have obtained
outside Latvia documents attesting to the fact that they are
stateless may obtain the status of stateless person in Latvia only if
they have obtained a permanent residence permit in Latvia.
...”
Section 3(1)
“Stateless persons shall be issued with an
identity document for stateless persons, which shall also serve as
[a] travel document.”
Section 4
“1. Stateless persons in Latvia shall
enjoy all the human rights enshrined in the Latvian Constitution
[Satversme].
2. In addition to the rights referred to in
the first paragraph of this section, stateless persons shall be
entitled
(1) to leave and return to Latvia freely;
(2) to be joined by their spouse from outside
the country, and by their own minor children or those dependent on
their spouse, in accordance with the rules laid down by the Aliens
and Stateless Persons (Entry and Residence) Act;
(3) to preserve their native language,
culture and traditions, provided these are not in breach of the law;
...
3. During their stay in Latvia, stateless
persons shall be bound by [the provisions of] Latvian law.”
On
29 January 2004 Parliament enacted a new Stateless Persons Act
(Bezvalstnieku likums), which entered into force on 2 March
2004 and replaced the former Status of Stateless Persons Act. The
relevant provisions of the new Act read as follows:
Section 2(1)
“In the Republic of Latvia, an individual may be
recognised as a stateless person if no other State has recognised him
or her as a national in accordance with its own laws.”
Section 4
“1. In order to be recognised as a
stateless person, the individual concerned must submit to the
[Directorate]:
(1) a [written] application;
(2) an identity document;
(3) a document issued by a competent body in
the foreign State, to be determined by the Directorate, certifying
that the person concerned is not a national of that State and is not
guaranteed nationality of that State, or a document certifying the
impossibility of obtaining such a document.
2. Where, for reasons beyond his or her
control, the individual concerned is unable to produce one of the
documents referred to in points 2 or 3 of the first paragraph, an
official instructed by the head of the Directorate shall decide
whether or not to grant him or her the status of stateless person.
The decision shall be taken on the basis of information available to
the Directorate supported by documentary evidence.”
Section 6(1) and (2)
“1. The stateless person shall reside
in the Republic of Latvia in accordance with the provisions of the
Immigration Act.
2. A stateless person legally resident in the
Republic of Latvia may obtain a travel document in accordance with
the statutory arrangements... .”
Section 7(2)
“A stateless person legally resident in the
Republic of Latvia shall enjoy the rights guaranteed by ... the
Convention of 28 September 1954 on the Status of Stateless Persons.”
4. Aliens
The
relevant provisions of the former Aliens Act, in force prior to 1 May
2003, read as follows:
Section 38
“The head of the Directorate or of the regional
office of the Directorate shall issue a deportation order...
...
(2) if the alien or stateless person 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 the manner prescribed in 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.”
Since
1 May 2003 the Aliens Act cited above is no longer in force; it has
been repealed and replaced by the Immigration Act. 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
“1. In accordance with the arrangements
laid down in the present Act, the following persons may apply for a
permanent residence permit:
...
(7) an alien who has been resident without
interruption in Latvia for at least five years immediately prior to
submission of the application...;
...
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.
...
5. The aliens referred to in paragraph 1,
subparagraph ... 7 of this section may obtain a permanent residence
permit if they have a command of the official language. The level of
knowledge of the official language [and] the means of verifying that
knowledge shall be determined by the Cabinet of Ministers.
...
6. Aliens who do not satisfy the
requirements set forth in paragraph 5 of this section shall
nevertheless be entitled to continue to reside in Latvia on the basis
of a temporary residence permit.”
Section 32(3)
“[By way of exception,] [t]he head of the
Directorate may authorise [the person concerned] to submit an
application for a residence permit to the Directorate, where such
authorisation accords with the provisions of international law or the
interests of the Latvian State, or on humanitarian grounds.”
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 40(1) and (2)
“1. Where a decision is taken to refuse
an application by an alien for a residence permit or to withdraw his
or her residence permit, an appeal may be lodged against that
decision ... with the head of the Directorate, within thirty days of
the entry into force of the decision.
2. Where the head of the Directorate refuses
an application for a residence permit an appeal may be lodged ...
with the courts against that decision, in the manner prescribed by
law...”
Section 41
“1. The [relevant] official of the
Directorate shall issue a deportation order and determine the length
of the ban on re-entering Latvian territory, requesting the alien
concerned to leave the Republic of Latvia within seven days, where he
or she has ... acted in breach of the rules on the entry and
residence of aliens in the Republic of Latvia. ...
2. The head of the Directorate may set aside
a deportation order ... or suspend execution thereof on humanitarian
grounds.”
Section 42
“1. The alien concerned may appeal
against the deportation order and the length of the ban on
re-entering Latvian territory laid down therein to the head of the
Directorate, within seven days of the order's entry into force. He or
she shall have the right to remain in the Republic of Latvia while
the appeal is being considered.
2. The alien concerned may appeal before the
courts against the decision of the head of the Directorate concerning
the deportation order and the length of the ban on re entering
Latvian territory laid down therein, within seven days of the
decision's entry into force. The lodging of an appeal with the court
shall not suspend execution of the decision.”
Section 47
1. Within ten days of establishment of the
facts detailed in the present paragraph, the [relevant] official of
the Directorate shall take a forcible expulsion decision in respect
of the alien and determine the length of the ban on re-entering
Latvian territory ..., where:
(1) the alien has not left the Republic of
Latvia within seven days of receiving the deportation order, as
required by section 41(1) of the present Act, and has not appealed
against the order under section 42;
...
(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) The head of the Directorate may set aside
a forcible expulsion decision or stay its execution on humanitarian
grounds.”
5. Penalties
52. At
the time of the facts reported by the applicants, the relevant
provisions of the Regulatory Offences Code (Administratīvo
pārkāpumu kodekss) read as follows:
Article 187
“... Use of a passport which has been replaced by
a new passport shall be punishable by a fine of up to 100 lati.”
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.”
6. The Russian-Latvian agreement of 30 April 1994
An
agreement between Russia and Latvia on social welfare
arrangements for retired members of the armed forces of the Russian
Federation and their family members resident in Latvia was signed in
Moscow on 30 April 1994. It was ratified by Latvia on 24 November
1994 and entered into force on 27 February 1995. Under the terms of
the second paragraph of Article 2 of the agreement, persons to whom
the agreement applied and who were permanently resident in Latvian
territory before 28 January 1992 retained the right to reside
without hindrance in Latvia if they so wished.
B. 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 executed 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.”
C. The legislation on operational investigative
measures
The
main provisions governing interviews similar to that complained of by
the first applicant are contained in the Act of 16 December 1993 on
operational measures (Operatīvās darbības likums).
The “operational measures” referred to in the Act cover
all operations, covert or otherwise, aimed at protecting individuals,
the independence and sovereignty of the State, the constitutional
system, the country's economic and scientific potential and
classified information against external or internal threats (section
1). Operational measures are aimed in particular at preventing and
detecting criminal offences, tracing the perpetrators of criminal
offences and gathering evidence (section 2).
The
most straightforward measure is the “intelligence-related
operational procedure” (operatīvā izzināšana),
designed to “obtain information on events, persons or objects”
(section 9(1)). The procedure takes one of the following forms:
(i) an
“operational request for intelligence” (operatīvā
aptauja), during which “the persons concerned are asked
questions about the facts of interest to the [relevant] authorities”
(section 9(2));
(ii) “operational
intelligence gathering” (operatīvā uzziņa),
which involves “gathering information relating to specific
persons” (section 9(3));
(iii) “operational
clarification of intelligence” (operatīvā
noskaidrošana), consisting in obtaining information by
covert or indirect means where there is reason to suspect that the
informer will be unwilling to supply the information directly
(section 9(4)).
All
operational measures must be implemented in strict compliance with
the law and human rights. In particular, no harm – physical or
otherwise – may be caused to the persons concerned, nor may
they be subjected to violence or threats (section 4(1) to (3)). Any
person who considers that he or she has suffered harm as a result of
the actions of a member of the security forces may lodge a complaint
with the prosecuting authorities or the relevant court (section 5).
Under
section 15 of the National Security Establishments Act of 5 May
1994 (Valsts drošības iestāZu likums), the
security police come under the supervision of the Ministry of the
Interior. They have powers to deploy operational measures in order to
combat corruption.
THE LAW
I. PRELIMINARY QUESTION CONCERNING THE SCOPE OF THE GRAND
CHAMBER'S JURISDICTION
At
the hearing the applicants and the Russian Government, referring
implicitly to Article 43 of the Convention, requested the Grand
Chamber to reverse the decision of the former First Section of 28
February 2002 in so far as the latter had declared the application
inadmissible with regard to the Sisojev family's elder daughter, Mrs
Tatjana Vizule.
The
Latvian Government, for their part, said that Mrs Vizule had, in
2005, obtained the permanent residence permit which had long been on
offer to her. In any event, they pointed out, Mrs Vizule's complaints
had been declared inadmissible by the Court once and for all.
It
is therefore for the Court to determine what should be the scope of
its examination of the case following the applicants' request for
referral to the Grand Chamber under Article 43 of the Convention.
Article 43 provides:
“1. Within a period of three months
from the date of the judgment of the Chamber, any party to the case
may, in exceptional cases, request that the case be referred to the
Grand Chamber.
2. A panel of five judges of the Grand
Chamber shall accept the request if the case raises a serious
question affecting the interpretation or application of the
Convention or the Protocols thereto, or a serious issue of general
importance.
3. If the panel accepts the request, the
Grand Chamber shall decide the case by means of a judgment.”
61. According
to the Court's settled case-law, the “case” referred to
the Grand Chamber necessarily embraces all aspects of the application
previously examined by the Chamber in its judgment. The content and
scope of the “case” referred to the Grand Chamber are
therefore delimited by the Chamber's decision on admissibility (see
K. and T. v. Finland [GC], no. 25702/94, §§ 140-141,
ECHR 2001 VII; Göç v. Turkey [GC],
no. 36590/97, §§ 35-37, ECHR 2002 V; Perna
v. Italy [GC], no. 48898/99, §§ 23-24,
ECHR 2003 V; and Azinas v. Cyprus [GC], no.
56679/00, § 32, ECHR 2004 III). This means that the
Grand Chamber may examine the case in its entirety in so far as it
has been declared admissible; it cannot, however, examine those parts
of the application which have been declared inadmissible by the
Chamber. The Court sees no reason to depart from this principle in
the present case.
62. In
sum, the Court holds that, in the context of the present case, it no
longer has jurisdiction to examine any complaint or complaints raised
by Mrs Vizule.
II. COMPLAINT UNDER ARTICLE 8 OF THE CONVENTION
The
applicants claimed to be victims of a violation of their rights under
Article 8 of the Convention, the relevant parts of which 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.”
During
the proceedings before the Chamber the Government had raised an
objection, which they maintained before the Grand Chamber. They
submitted that, in view of the measures taken by the Latvian
authorities to help the applicants regularise their stay in Latvia,
the matter had been effectively 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. Article 37 § 1 reads:
“The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
The
applicants and the Russian Government opposed the striking out
of the application.
A. The Chamber judgment
Following
the decision by its President not to include in the case file the
Government's submissions of 22 March 2005 informing the Court of new
developments in the case (see paragraphs 10 and 42 above), the
Chamber ruled on the basis of the facts as they had stood before the
above mentioned date. The relevant part of the Chamber judgment
of 16 June 2005 reads:
“53. In the Court's view, the issue at
stake here is whether the applicants effectively ceased to have
'victim' status within the meaning of Article 34 of the Convention as
a result of the decisions taken by the Directorate on 11 November
2003. The Court reiterates its settled case-law to the effect that a
decision or measure favourable to the applicant is not in principle
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 breach of the
Convention (see, for example, 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 Ilaşcu and Others v. Moldova and Russia [GC]
(dec.), no. 48787/99, 4 July 2001).
54. In the present case, the Court notes that
the Latvian authorities have not acknowledged, still less afforded
redress for, the damage sustained by the applicants. The decision to
allow them to regularise their stay is merely a proposal which is
subject to strict conditions and does not correspond to the original
application they made as far back as 1993 to be granted permanent
resident status and have their names entered on the register of
residents of Latvia, an application which the Alūksne District
Court of First Instance, moreover, allowed on two occasions. Nor has
the decision in question erased the long period of insecurity and
legal uncertainty which they have undergone in Latvia.
55. In these circumstances, the Court
considers that the applicants can still claim to be victims of a
violation of the Convention within the meaning of Article 34 of the
Convention.”
As
to the merits, the Chamber noted in particular:
“109. The Court further notes that
regularisation of the second and third applicants' status depends on
that of the first applicant... In other words, if the first applicant
does not take advantage of the opportunity offered to her to
regularise her stay, the situation of the other two applicants will
remain unchanged. The Court considers that, in making the ability of
these two applicants to lead a normal private life contingent on
circumstances beyond their control, the domestic authorities who,
admittedly, enjoy a margin of appreciation, have not taken the
measures that could have been reasonably required of them.
110. Accordingly, taking all the
circumstances into account, and in particular the long period of
insecurity and legal uncertainty which the applicants have undergone
in Latvia, the Court considers that the Latvian authorities exceeded
the margin of appreciation enjoyed by the Contracting States in this
sphere, and did not strike a fair balance between the legitimate aim
of preventing disorder and the applicants' interest in having their
rights under Article 8 protected. It is therefore unable to find that
the interference complained of was 'necessary in a democratic
society'.
111. Having regard to all of the above, the
Court finds that there has been a violation of Article 8 of the
Convention in the instant case.”
B. The parties' submissions
1. The applicants
The
applicants submitted that they could still claim to be “victims”
of the alleged violation and that the matter giving rise to the case
was far from being resolved. In their view, all the measures taken by
the Latvian authorities, whether before or after 22 March 2005, were
manifestly inadequate to remedy their complaint under Article 8.
The
applicants maintained at the outset that they still ran the risk of
being deported from Latvia. The Directorate's letters of 17 May and
26 June 2000, reminding the applicants that they were required to
leave the country (see paragraph 34 above), had never been explicitly
revoked. The Government Decree of 22 March 2005 – which the
applicants said they had never seen – did not put an end to the
risk of deportation, particularly in the case of the second and third
applicants. Firstly, the applicants did not have all the documents
required by the Directorate in its letter of 16 November 2005.
Secondly, even assuming that the Government showed themselves
particularly willing to cooperate and no longer required them to
produce the documents, Arkady Sisojev and Aksana Sisojeva would
receive only temporary residence permits valid for five years. They
had no guarantee that, at the end of the five years, their stay in
Latvia would be regularised again.
The
applicants then referred to the Eckle v. Germany judgment of
15 July 1982 (Series A no. 51), in which the Court had held that
a decision or measure favourable to the applicant was not sufficient
to deprive him of his status as a “victim” unless the
national authorities acknowledged, either expressly or in substance,
and then afforded redress for, the breach of the Convention (pp.
30-31, § 66). Those two conditions – first acknowledgement
of, and then redress for, the violation – had since been
reiterated on numerous occasions and were firmly anchored in the
Court's case-law. Neither condition had been met in the instant case.
First
of all, the applicants observed that the Latvian authorities had done
nothing to acknowledge the existence of a violation of Article 8 of
the Convention in their regard. If anything, the attitude of the
authorities suggested the opposite: on 2 and 3 November 2005, for
instance, Arkady Sisojev and Svetlana Sisojeva had been called
in for questioning by the police, who had questioned them about the
reasons for their illegal residence in Latvia.
Next,
the applicants submitted that none of the regularisation measures
proposed by the Latvian authorities constituted an adequate remedy
for their complaint. In that connection, they reiterated their
original request that the first applicant should be granted the
status of “permanently resident non-citizen” and the
other two applicants be issued with permanent residence permits.
Those requests were perfectly legitimate and justified. The first
applicant was entitled to permanent resident status in accordance
with the relevant statute (see paragraph 47 above): her registration
of an address in Russia had clearly been notional and could not give
rise to automatic invalidation of her registration in Latvia.
Accordingly, she had fulfilled the first condition laid down by
section 1(1) of the Non-Citizens Act by having her registered place
of residence in Latvia on 1 July 1992. As for the other two
applicants, the Russian-Latvian agreement of 30 April 1994 (see
paragraph 53 above) entitled them to permanent residence in Latvia.
In short, the applicants were requesting only what was theirs by
right under the law and the agreement. In their view, the saying “He
who can do more cannot necessarily do less”, applied on
occasions by the Court in its case-law, meant that they could not be
forced to accept less when they were entitled to more.
The
applicants also referred to the arguments they had raised before the
Chamber. The proposals made by the authorities, they argued, were
unacceptable and humiliating, both in relation to the first and
second applicants, who had lived on Latvian territory for over
thirty-five years, and in relation to the third applicant, who had
been born on Latvian soil and had always lived there. They further
submitted that, even after 22 March 2005, the regularisation of the
second and third applicants' stay remained contingent on that of the
first applicant. In other words, the fate of Arkady Sisojev and
Aksana Sisojeva continued to depend on circumstances beyond their
control.
According
to the applicants, the measures taken by the Latvian authorities were
also inadequate as they did not afford sufficient redress for the
applicants' suffering over a period of many years. In particular,
they had endured prolonged uncertainty, anguish and distress
throughout the whole period, especially when they had faced a real
risk of being deported from Latvia. The fact that they had no Latvian
identity papers had also caused the applicants a series of practical
problems in their day-to-day lives. They were unable, for instance,
to leave Latvia secure in the knowledge that they could return; since
October 2002, they no longer received a range of social security
benefits, in particular sickness insurance benefits; they could not
buy medicines at reduced rates; the third applicant was unable to
obtain a driving licence; and, in 2004 and 2005, they had been unable
to complete a number of civil-law transactions which required a
notarised deed. To sum up, the effects of all these ordeals could not
be wiped out by the simple expedient of issuing a residence permit.
2. The Government
The
Government referred first of all to the Court's settled case-law
relating to the deportation or extradition of non-nationals,
according to which the regularisation of an applicant's stay –
even if the case was still pending before the Court – was
sufficient in principle to remedy a complaint under Article 8 (the
Government cited Pančenko v. Latvia (dec.), no. 40772/98,
28 October 1999; Mikheyeva v. Latvia (dec.), no. 50029/99,
12 September 2002; Yang Chun Jin alias Yang Xiaolin v.
Hungary (striking out), no. 58073/00, §§ 20-23, 8
March 2001; and, most recently, Fjodorova and Others v. Latvia
(dec.), no. 69405/01, 6 April 2006). In the Government's view, the
Chamber had not only failed to follow that case law, but had
also adopted a judgment which contradicted its own decision of 28
February 2002 in the present case (see paragraph 5 above). In its
decision, the Chamber had rejected Mrs Vizule's complaints on the
ground that she had been given the opportunity in the meantime to
regularise her stay in Latvia.
In
any event, the applicants now faced no real risk of being deported
from Latvia. Admittedly, from a formal standpoint, there was nothing
to prevent the Directorate from issuing a deportation order in
respect of the applicants, as they were illegally resident in Latvia.
However, any such order would be subject to appeal before three
levels of the administrative courts. In that connection, the
Government referred to the Vijayanathan and Pusparajah v. France
judgment (27 August 1992, Series A no. 241 B, p. 87,
§§ 46-47), in which the Court had found that the
applicants could not claim to be “victims” of a violation
in the absence of a deportation order. The Directorate's letters of
17 May and 26 June 2000 did not constitute “administrative
acts” within the meaning of domestic law; even assuming that
they did, they would have long since ceased to be enforceable, in
accordance with section 360(4) of the Administrative Procedure Act
(see paragraph 54 above).
Moreover,
the authorities had, on several occasions, proposed clear, specific
and effective regularisation arrangements to the applicants which
would enable them to reside without hindrance in Latvia. Furthermore,
and contrary to the applicants' assertions, the Decree of 22 March
2005 meant that the issuing of residence permits to Arkady Sisojev
and Aksana Sisojeva was no longer contingent upon the legal status of
Svetlana Sisojeva; they could henceforth regularise their position
independently of one another. The applicants had been given notice of
the decree (see paragraphs 43-44 above); furthermore, it had been
published in the Official Gazette, with the result that the
applicants could not claim that they had been unaware of its content.
With
regard to the regularisation arrangements requested by the
applicants, the Government said that the rights which they sought
were not available to them under domestic law. In particular, it was
abundantly clear from the Non-Citizens Act that the first applicant
did not fall within its scope of application ratione personae.
Section 1(1) of the Act stipulated that the status of “permanently
resident non-citizen” could be granted only to persons who, on
1 July 1992, had had their officially registered residence in Latvia.
By registering their residence in Russia in January 1992, both
Svetlana Sisojeva and her husband had rendered the registration of
their residence in Latvia invalid. The Government were adamant that
it was as a result of their own fraudulent conduct that the
applicants had lost the possibility of obtaining the legal status
they had requested.
That
being so, the approach proposed by the authorities remained more than
adequate for the purposes of Article 8 of the Convention, which did
not guarantee, as such, the right to a particular type of residence
permit. It was true that the applicants still needed to meet some
formal and technical requirements, in particular by producing certain
documents. However, those requirements were legitimate and
reasonable; moreover, they had no effect on the decision in principle
adopted by the Cabinet of Ministers. If the applicants nevertheless
persisted in ignoring the Government's proposals and recommendations,
they did so of their own free will and had to take responsibility for
that; no one could be forced to accept a residence permit he did not
want. In particular, there was no justification for the applicants'
claim that the Directorate was asking them to produce documents they
could not obtain; in that regard, the Government cited the example of
Mrs Vizule, whose application had been granted despite the alleged
absence of certain documents (see the admissibility decision of 28
February 2002 in the present case).
The
Government further contended that the approach proposed by the
authorities afforded sufficient redress for the applicants' past
ordeals. They advanced a number of arguments in that regard. Firstly,
the Government pointed out that, prior to 1989, Arkady Sisojev had
been in active service with the Soviet armed forces stationed on
Latvian territory; his entire family would therefore have known that
he might be transferred to another posting at any time. When he left
the army, the applicants could still legitimately consider themselves
to be living in their own country, the USSR, of which they were
nationals. However, from August 1991 onwards, they could not overlook
the fact that they were henceforth resident in another sovereign
State, one whose laws they must observe.
Secondly,
and with regard to the uncertainty and distress the applicants
claimed to have undergone over a period of years, the Government
reiterated that this had been due in large measure to their own
conduct. As one-time nationals of the former Soviet Union, they could
not have been unaware of the basic rules on the registration of
residence which had been in existence since the 1930s, and in
particular of the fact that an individual could have only one
registered address at a time. Knowing that, they had deliberately
broken the law by supplying the authorities with false information;
they should therefore have weighed up the consequences of their
actions. In the Government's view the applicants' fraudulent conduct,
considered in the light of their very real personal and family ties
in Russia, demonstrated that they had seriously considered returning
to that country; in other words, a registered address in Russia had
been more important to them than permanent residence in Latvia.
Thirdly,
the Government argued that the decision to remove the applicants'
names from the register of residents had been lawful and legitimate
under both domestic and international law; they referred in that
regard to the recent activities of the International Law Commission
in particular.
Lastly,
the Government disputed the seriousness of the applicants' situation
as they themselves portrayed it. Referring to documents in the case
file, they pointed out that, despite the fact that the applicants had
been illegally resident in Latvia during the period in question, they
had managed to acquire two flats and a garage. In addition, the third
applicant had had no difficulty in completing her higher education.
In
view of the above, the Government concluded that there had been no
“interference” with the applicants' private or family
life. In the alternative, they argued that the applicants could not –
or could no longer – claim to be “victims” of a
violation of Article 8 of the Convention. In any event, the
Government requested the Court to hold that the matter had been
resolved and to strike the application out of its list of cases.
C. Submissions by the third-party intervener
The
Russian Government endorsed the applicants' arguments. They too
considered that, despite the steps taken by the Latvian authorities
with a view to regularising the applicants' status, the applicants
could still claim to be “victims” of a violation of
Article 8 of the Convention.
Firstly,
like the applicants, the Russian Government referred to the general
principle in the Court's case-law whereby applicants could be
deprived of their victim status only if the alleged violation was
acknowledged and redress was afforded. Neither of those conditions
had been met in the instant case. With regard to the first condition,
the Latvian authorities had at no point acknowledged the existence of
a violation; as to the second condition, only monetary compensation
could afford redress for the damage sustained by the Sisojev family
in the present case.
Secondly,
the Russian Government considered that even the most recent measures
taken by the respondent Government were inadequate to remedy the
applicants' complaint. In particular, the second and third applicants
had been offered only temporary residence permits whereas, under the
Russian-Latvian agreement of 30 April 1994 (see paragraph 53 above),
they were entitled to permanent permits. In addition, like the
applicants, the Russian Government submitted that regularisation of
the stay of the second and third applicants continued to depend on
that of the first applicant, Svetlana Sisojeva.
The
Russian Government further cited the Slivenko v. Latvia
judgment ([GC], no. 48321/99, ECHR 2003 X), which they
considered to be similar to the present case. In their view, the
applicants were the victims of political changes beyond their
control, and the ordeals they had endured had to be seen in the wider
context of an anti-Russian policy on the part of the Latvian
authorities since the country's return to independence.
D. The Court's assessment
The
Court notes at the outset that the applicants consider the
Non Citizens Act and the Russian-Latvian agreement of 30 April
1994 to have been incorrectly applied in their case. In that
connection it reiterates that, in accordance with Article 19 of the
Convention, its sole duty is to ensure the observance of the
engagements undertaken by the Contracting Parties to the Convention.
In particular, it is not its function to deal with errors of fact or
law allegedly committed by a national court or to substitute its own
assessment for that of the national courts or other national
authorities unless and in so far as they may have infringed rights
and freedoms protected by the Convention (see, for example, García
Ruiz v. Spain [GC], no. 30544/96, §§ 28-29,
ECHR 1999 I). In other words, the Court cannot question the
assessment of the domestic authorities unless there is clear evidence
of arbitrariness, which there is not in the instant case.
The Court further reiterates that the machinery for
the protection of fundamental rights established by the Convention is
subsidiary to the national systems safeguarding human rights. The
Convention does not lay down for the Contracting States any given
manner for ensuring within their internal law the effective
implementation of the Convention. The choice as to the most
appropriate means of achieving this is in principle a matter for the
domestic authorities, who are in continuous contact with the vital
forces of their countries and are better placed to assess the
possibilities and resources afforded by their respective domestic
legal systems (see Swedish Engine Drivers' Union v. Sweden,
judgment of 6 February 1976, Series A no. 20, p. 18, § 50,
and Chapman v. the United Kingdom [GC], no. 27238/95,
§ 91, ECHR 2001 I).
This
principle applies to immigration matters as well as in other spheres.
Hence, 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 Aristimuño Mendizabal v.
France, no. 51431/99, § 66, 17 January 2006; Dremlyuga
v. Latvia (dec.), no. 66729/01, 29 April 2003; and Gribenko
v. Latvia (dec.), no. 76878/01, 15 May 2003; see also the
admissibility decision of 28 February 2002 in the present case).
In
the instant case the Government argued that the applicants could not
claim the status of “victims”. In that connection, the
Court reiterates that the word “victim” in the context of
Article 34 of the Convention denotes the person directly affected by
the act or omission in issue (see, among many other authorities,
Nsona v. the Netherlands, judgment of 28 November 1996,
Reports of Judgments and Decisions 1996 V, pp. 2004-2005,
§ 106, and Brumărescu v. Romania [GC], no.
28342/95, § 50, ECHR 1999 VII). In other words, the
person concerned must be directly affected by it or run the risk of
being directly affected by it (see, for example, Norris v.
Ireland, judgment of 26 October 1988, Series A no. 142, pp.
15-16, §§ 30-31, and Otto Preminger Institut
v. Austria, judgment of 20 September 1994, Series A no. 295 A,
pp. 15-16, § 39). It is not therefore possible to claim to
be a “victim” of an act which is deprived, temporarily or
permanently, of any legal effect.
In
the aforementioned Eckle judgment, the Court indeed held that
a decision or measure favourable to the applicant was not sufficient
to deprive him of his status as a “victim” unless the
national authorities acknowledged, either expressly or in substance,
and then afforded redress for, the breach of the Convention (ibidem,
pp. 30-31, § 66; see also Amuur v. France, judgment
of 25 June 1996, Reports 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 Ilaşcu
and Others v. Moldova and Russia [GC] (dec.), no. 48787/99, 4
July 2001). However, with more particular reference to the specific
category of cases involving the deportation of non-nationals,
the Court has consistently held that an applicant cannot claim to be
the “victim” of a deportation measure if the measure is
not enforceable (see Vijayanathan and Pusparajah, cited above,
p. 87, § 46; see also Pellumbi v. France (dec.),
no. 65730/01, 18 January 2005, and Etanji v. France
(dec.), no. 60411/00, 1 March 2005). It has adopted the same
stance in cases where execution of the deportation order has been
stayed indefinitely or otherwise deprived of legal effect and where
any decision by the authorities to proceed with deportation can be
appealed against before the relevant courts (see Kalantari v.
Germany (striking out), no. 51342/99, §§ 55-56,
ECHR 2001 X, and Mehemi v. France (no. 2),
no. 53470/99, § 54, ECHR 2003 IV; see also
Andrić v. Sweden (dec.), no. 45917/99, 23 February
1999; Benamar and Others v. France (dec.), no. 42216/98,
14 November 2000; Djemailji v. Switzerland (dec.),
no. 13531/03, 18 January 2005; and Yildiz v. Germany
(dec.), no. 40932/02, 13 October 2005).
94. In
the instant case the Court acknowledges that, if not from the time of
their removal from the register of residents in May 1996, then at the
latest from the time of the final dismissal of their appeal on points
of law in April 2000, the members of the Sisojev family
experienced a period of insecurity and legal uncertainty in Latvia
which lasted until November 2003. However, it does not consider that
their situation was substantially more uncertain than that of the
applicants in most similar cases (see, in particular, the decisions
in Pančenko, Mikheyeva and Fjodorova and Others,
cited above). Firstly, the Court notes that, in 1992 and 1995, the
applicants in the present case obtained two passports each and
registered their residence in both Russia and Latvia without
informing the relevant Latvian authorities. In the Court's view, this
demonstrates that returning to Russia one day was an option they were
prepared to consider. What is more, the applicants were undoubtedly
aware that their conduct – for which, moreover, they were
subsequently ordered to pay a fine – was in breach of the
Latvian legislation of the time. Accordingly, it cannot but be said
that the problems they experienced following the withdrawal of their
initial residence permits stemmed to a large extent from their own
actions.
Secondly,
the Court observes that the first concrete proposal from the
Directorate aimed at regularising the applicants' stay was made on
11 November 2003. Accordingly, it very much doubts whether the
applicants can claim the existence of an “uncertain situation”
after that date. Lastly, it is clear from the case file that, despite
having long been an illegal resident in Latvia, the second applicant
has been and continues to be in paid employment; the third applicant,
meanwhile, has been able to complete a course of higher education and
obtain a degree (see paragraph 45 above).
However,
in the instant case, the Court does not consider it necessary either
to reach a conclusion on the question whether, at the time they
lodged their application, the applicants could claim to be “victims”
of a violation of Article 8 of the Convention, or even to determine
whether they can claim that status today. In the light of the new
facts brought to its attention since 22 March 2005 (see
paragraphs 10 and 42 above), the Court considers that there is no
objective justification for continuing to examine this complaint, for
the reasons set out below.
The
Court reiterates that, under Article 37 § 1 (b) of the
Convention, it may “... at any stage of the proceedings decide
to strike an application out of its list of cases where the
circumstances lead to the conclusion that ... the matter has been
resolved...” In order to ascertain whether that provision
applies to the present case, the Court must answer two questions in
turn: first, whether the circumstances complained of directly by the
applicant still obtain and, second, whether the effects of a possible
violation of the Convention on account of those circumstances have
also been redressed (see Pisano, cited above, § 42). In
the present case, that entails first of all establishing whether the
risk of the applicants' being deported persists; after that, the
Court must consider whether the measures taken by the authorities
constitute sufficient redress for the applicants' complaint.
The
Court must determine whether the regularisation of the applicants'
stay would be sufficient to remedy the possible effects of the
situation of which they complained to the Court. With reference first
of all to the first applicant, Svetlana Sisojeva, the Court takes
note of the Directorate's letter of 16 November 2005 (see paragraph
43 above), according to which it is still open to the first applicant
to regularise her stay in accordance with the Directorate's decision
of 11 November 2003, that is, by obtaining an identity document for
stateless persons and, accordingly, a permanent residence permit. She
would thus be able to remain in Latvia on a legal and permanent basis
and, as a result, live a normal social life and maintain her
relationships with her family, including Mrs Vizule and the
latter's two children.
With
regard to the other two applicants, Arkady Sisojev and
Aksana Sisojeva, the Court observes that, by a Decree of 22
March 2005, the Cabinet of Ministers instructed the Minister of the
Interior to issue them with five-year temporary residence permits;
according to the Government, the applicants may apply for permanent
permits when that period has elapsed. Contrary to what the two
applicants concerned and the third-party intervener apparently
maintained, the Court notes in particular that the regularisation of
their status no longer depends on that of Svetlana Sisojeva, with the
result that each applicant can regularise his or her stay in Latvia
independently of the other two.
In
short, as matters stand, the applicants do not face any real and
imminent risk of deportation (see, mutatis mutandis,
Vijayanathan and Pusparajah, cited above, p. 87, §§
46-47, and the Commission's opinion, p. 95, § 119).
The
Court notes that, despite repeated reminders on the part of the
Directorate, none of the applicants has so far acted on the latter's
recommendations. In their submissions to the Grand Chamber, the
applicants contended that they did not have all the documents
required in order to apply for a residence permit, so that any
response on their part would have been futile. However, the Court
observes that they have hitherto failed to make any attempt, however
small, to get in touch with the authorities and try to find a
solution to whatever difficulties may arise. Having regard to the
case file as a whole as it currently stands, and in the light of the
explanations provided by the Government, the Court sees no indication
that the latter have acted in bad faith.
In
short, the measures indicated by the Government would enable the
applicants to remain in Latvia and to exercise freely in that country
their right to respect for their private and family life as protected
by Article 8 of the Convention and interpreted in the Court's
established case-law (see, mutatis mutandis, Boughanemi v.
France, judgment of 24 April 1996, Reports 1996 II,
pp. 607-08, § 35; C. v. Belgium, judgment of 7
August 1996, Reports 1996 III, pp. 922-23, § 25;
Boujlifa v. France, judgment of 21 October 1997, Reports
1997 VI, p. 2263, § 36; and Buscemi v. Italy,
no. 29569/95, § 53, ECHR 1999 VI). Consequently,
and in the light of all the relevant circumstances of the case, the
Court considers that the options outlined by the Latvian authorities
for regularising the applicants' situation are adequate and
sufficient to remedy their complaint.
Having
regard to all of the above, the Court finds that both conditions for
the application of Article 37 § 1 (b) of the Convention are met.
The matter giving rise to this complaint can therefore now be
considered to be “resolved” within the meaning of Article
37 § 1 (b). Finally, no particular reason relating to respect
for human rights as defined in the Convention requires the Court to
continue its examination of the application under Article 37 § 1
in fine.
Accordingly,
the application should be struck out of the Court's list of cases in
so far as it relates to Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
The
applicants complained that the questioning of the first applicant by
the security police on 6 March 2002 constituted interference with the
exercise of their right of individual petition, in breach of the last
sentence of Article 34 of the Convention. Article 34 reads:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. The Chamber judgment
In
its judgment, the Chamber noted at the outset the discrepancy between
the applicants' version of the facts and that of the Government.
Being unable to verify the content of the questions put to Svetlana
Sisojeva, it based its analysis on the facts on which the two
versions concurred. The Chamber accepted the Government's explanation
that the main focus of the interview had been the allegation that
Directorate officials had acted in a corrupt manner, rather than the
proceedings brought by the applicants in Strasbourg. The Chamber also
noted that the police officer in question had asked the first
applicant several questions concerning her application, the relevance
of which the Chamber failed to discern. Nevertheless, having regard
to all the relevant circumstances of the case, and in particular the
wider context in which the interview had taken place, the Chamber
reached the conclusion that the measure in question had not attained
a sufficient level of severity to be considered as a form of
“pressure”, “intimidation” or “harassment”
which might have induced the applicants to withdraw or modify their
application or hindered them in any other way in the exercise of
their right of individual petition. It therefore held that there had
been no violation of Article 34 of the Convention.
B. The parties' submissions
1. The applicants
The
applicants submitted at the outset that, in view of their precarious
and vulnerable situation in Latvia, and given the “image of the
security [police]” in society, being summoned by that
institution was in itself liable, in their case, to prompt fears of
arrest and deportation. Similarly, given the nature of the questions
asked of the first applicant by the police officer, the interview in
question amounted to an attempt to subject her to pressure and
intimidate her psychologically so that she would withdraw her
application to the Court. In the applicants' view, once their
complaints had been declared admissible, they should have been
considered to be under the Court's protection. That implied in
particular that the domestic authorities must refrain from any
activity liable to undermine the principle of equality between the
parties before the Court. In asking the first applicant how she had
found lawyers and whether those lawyers had threatened her, the
security police had been in breach of that principle. Questions of
that nature were wholly unrelated to the need to investigate possible
cases of corruption, the reason given by the Government.
The
applicants argued that the Government's explanations on this point
were unconvincing. Firstly, investigations into corruption offences
were normally the task of a different branch of the police (the
criminal police rather than the security police). Secondly, the
applicants complained of the fact that the first applicant had been
questioned without her lawyer being present. Thirdly, they observed
that the content of the conversation had not been recorded in any
official report.
The
applicants had further maintained before the Chamber that they had
learned of other coercive measures planned against them by the
Latvian authorities, including “arresting them and sending them
to prison”. In addition, they had alleged that their telephone
calls were constantly being intercepted.
2. The Government
The
Government disputed the applicants' assertion that the interview in
question had been aimed at forcing the first applicant to withdraw
her application. In that connection they pointed out that, during her
interview with the Russian journalists, the first applicant had
stated publicly that several individuals who were without a residence
permit and were in a similar situation to her own had managed to
regularise their status by bribing certain members of staff of the
Directorate. As a result of that statement, the security police had
opened a preliminary investigation on the ground that the applicant's
allegations, should they prove to be true, disclosed a serious
offence punishable under the Criminal Code. The Government stressed
in particular that the interview at issue had been perfectly lawful,
as the security police had powers to take such measures.
Hence,
the questioning of the applicant had related not to her application
before the Court, but solely to the alleged acts of corruption on the
part of the officials concerned, which had been discussed during the
interview. Since the applicant had been summoned and questioned
simply as a witness, the presence of a lawyer was not required;
however, had she wished to be accompanied by a lawyer, she could have
made a request to that effect.
The
Government conceded that some of the questions asked by the police
officer had referred explicitly to the proceedings being pursued by
the applicants in Strasbourg. However, they considered those
questions to have been logical, since the first applicant had stated
that she had learned of the existence of corruption during the
preparation of her application to the Court. In any event, the
content of the questions could not be considered an attempt at
intimidation. In support of their arguments, the Government submitted
a copy of a letter sent by the head of the security police to their
Agent on 16 July 2002, the relevant passages of which read as
follows:
“ ... [W]e wish to inform you that, on 6 March
2002, pursuant to the obligations set forth in section 15 of the Act
relating to State security establishments, including those engaged in
combating corruption, a conversation was conducted with
Mrs Svetlana Sisojeva concerning the cases of corruption
known to her.
[That] conversation cannot be regarded as an interview
[as] no procedural record was kept on [that] occasion and Mrs
Sisojeva refused to provide information on the persons known to her
who had allegedly offered bribes to officials...
...
At the beginning of the conversation, Mrs Sisojeva was
asked whether she had any information about cases of active
corruption in State bodies. She replied that she knew several Russian
speakers who had given bribes in order to obtain Latvian residence
permits and “[permanently resident] non-citizen”
passports.
Mrs Sisojeva was asked to give the names of those
persons, but refused to do so, saying that she was afraid that the
persons in question would have their residence permits and
“non-citizen” passports confiscated in the course of the
corruption inquiry.
During the conversation, Mrs Sisojeva was asked what
problems had prompted her application to the European Court of Human
Rights. She replied that the problems had begun in 1996 with the head
of the regional office ... [of the Department], Mr [S.R.], who had
refused to issue her with a Latvian residence permit and a
“non-citizen” passport. There had been several sets of
proceedings, which had resulted in findings against her; for that
reason, she had decided to seek the assistance of the European Court
of Human Rights. ...”
In
the light of the above, the Government concluded that the interview
at issue had not, taken overall, been connected with the first
applicant's application as such, and therefore could not be
considered to have interfered with her right of individual petition.
Furthermore, the Government considered that the applicants' other
allegations, relating to the risk of their being arrested and the
supposed interception of their telephone calls, lacked any factual
basis.
C. Submissions by the third-party intervener
114. The
Russian Government considered that, in view of the content of the
questions put by the officer of the security police to the first
applicant, the impugned interview constituted clear psychological
pressure linked to the present application to the Court, made all the
more serious by the fact that the first and second applicants had
been called in for questioning in November 2005. They argued that, in
view of the particular role played by the State security services in
the former Soviet Union, most people who had lived under the Soviet
regime had been, and continued to be, particularly fearful of them.
Referring in that regard to the Fedotova v. Russia judgment
(no. 73225/01, §§ 48-52, 13 April 2006), the
Russian Government argued that the interview at issue had in itself
been improper. There was nothing in the case file to bear out the
Latvian Government's claim that the main focus of the conversation
had been corruption on the part of some officials; on the contrary,
the dialogue reproduced by the first applicant showed clearly that
the security police had been trying to intimidate her. As to the
content of the dialogue, the Russian Government saw no reason to cast
doubt on the accuracy of the applicant's reconstruction, pointing to
the fact that the respondent Government had not provided any official
report or record of the impugned conversation.
In
short, the Russian Government were satisfied that the interview had
been aimed first and foremost at intimidating the applicants in order
to force them to withdraw their application, then pending before the
Court, in breach of the last sentence of Article 34 of the
Convention.
D. The Court's assessment
115. The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 of the Convention that applicants or potential
applicants are able to communicate freely with the Court without
being subjected to any form of pressure from the authorities to
withdraw or modify their complaints (see Akdivar and Others v.
Turkey, judgment of 16 September 1996, Reports 1996 IV,
p. 1219, § 105; Kurt v. Turkey, judgment of 25 May
1998, Reports 1998 III, p. 1192, § 159; Ergi
v. Turkey, judgment of 28 July 1998, Reports 1998 IV,
p. 1784, § 105; and Salman v. Turkey [GC], no.
21986/93, § 130, ECHR 2000 VII).
The
word “pressure” must be taken to cover not only direct
coercion and flagrant acts of intimidation of applicants or their
families or legal representatives but also other improper indirect
acts or contacts designed to dissuade or discourage them from
pursuing a Convention remedy. Whether or not contacts between the
authorities and an applicant or potential applicant amount to
unacceptable practices from the standpoint of Article 34 must be
determined in the light of the particular circumstances in issue. In
this respect, regard must be had to the vulnerability of the
complainant and his or her susceptibility to influence exerted by the
authorities (see, for example, Petra v. Romania, judgment of
23 September 1998, Reports 1998 VII, pp. 2854-55, § 43;
Assenov and Others v. Bulgaria, judgment of 28 October 1998,
Reports 1998 VIII, p. 3304, § 170; and
Tanrıkulu v. Turkey [GC], no. 23763/94, § 130,
ECHR 1999 IV).
In
the instant case the parties agreed that on 6 March 2002 the first
applicant, Mrs Svetlana Sisojeva, was summoned to the headquarters of
the security police, where one of the officers asked her a number of
questions relating in particular to her application before the Court.
In that connection, the Court does not consider it necessary to
examine whether the questioning constituted a formal “interview”
for the purposes of domestic law.
As
to the exact content of the questions asked by the police officer,
the Court notes that no official report was drawn up following the
interview. The only document submitted in that connection by the
first applicant is a record which she herself drafted from memory
about a month after the event and the accuracy of which is disputed
by the Government. For their part, the Government supplied a copy of
a letter from the head of the security police outlining briefly the
aim of the interview and how it had been conducted. In the absence of
more convincing evidence, the Court is unable to verify the content
of the questions put to the first applicant; it will, however, take
as established those facts on which the two documents concur.
It
is clear from both documents that, a few days prior to the interview,
the first applicant had given an interview to a Russian television
station in which she had mentioned several cases of corruption among
Directorate officials. As corruption in the public sector is
punishable under criminal law and constitutes a serious offence, the
applicant should reasonably have expected the police or the
prosecuting authorities to take an interest in the allegations. It
appears also that the interview was in accordance with the national
legislation, which authorises the security police to investigate
corruption offences and to gather information from the individuals
concerned (see paragraph 58 above). Accordingly, the Court accepts
the Government's explanation that the main focus of the interview was
the allegation that Directorate officials had acted in a corrupt
manner, rather than the proceedings being pursued by the applicants
before the Court (see, conversely, Fedotova, cited above,
§§ 49-50).
However,
the fact remains that, in the course of his conversation with the
first applicant, the police officer asked her several questions about
her application to the Court. Unlike the Government, who argued that
the questions were justified by the requirements of the
investigation, the Court has serious doubts as to their necessity and
relevance, and has difficulty discerning a connection between acts of
corruption allegedly committed by unidentified third parties and the
present application. In that connection the Court reiterates that,
even if a Government has reason to believe that in a particular case
the right of individual petition is being abused, the appropriate
course of action is for that Government to alert the Court and inform
it of their misgivings (see Tanrıkulu, cited above,
§ 131, and Orhan v. Turkey, no. 25656/94, § 409,
18 June 2002). By questioning the first applicant on her reasons for
lodging an application with the Court, the officer of the security
police therefore exceeded the remit of the investigation by a
considerable margin.
As
the Court pointed out above, in determining whether a State has
failed in its obligations under Article 34, all the circumstances of
the case must be taken into account. In the instant case, the Court
notes that the questioning of the first applicant in general and the
questions put to her in particular were of an incidental nature.
There is nothing in the case file to indicate that the Latvian
authorities attempted to summon the applicant a second time (see,
conversely, Ergi, cited above, pp. 1761-62 and p. 1784,
§§ 26-28 and § 105). Neither does it appear that
the security police forced the first applicant to give evidence, in
relation either to her application to the Court or to the alleged
acts of corruption which were the main focus of the interview. On the
contrary, the applicant's refusal to disclose the names of the
allegedly corrupt officials was respected and did not entail any
legal consequences for her. Furthermore, assuming the record of the
conversation written by the first applicant to be accurate, the Court
observes that the language used by the police officer was polite and
did not contain any expressions, references or insinuations of a
threatening or even a dissuasive nature (see, conversely, Petra,
cited above, p. 2855, § 44).
Likewise,
taking an overall view, the Court observes that the questions put by
the police officer were not aimed at inducing the applicant to reveal
the content of the documents in the applicants' case file or of their
correspondence with the Court, or at casting doubt on the
authenticity of their application or their capacity to conduct legal
proceedings (see, conversely, Tanrikulu, cited above, §
131).
Finally,
the Court considers that it cannot disregard the wider context in
which the impugned interview took place. It is true that, in a number
of cases in which the authorities questioned applicants about their
applications, the Court has found them to be in breach of their
obligations under Article 34 (or the former Article 25 § 1) of
the Convention (see Akdivar and Others, cited above, p. 1219,
§ 105; Kurt, cited above, pp. 1192-93, § 160;
Tanrikulu, cited above, § 130; and Orhan, cited
above, § 407; see also Bilgin v. Turkey, no. 23819/94,
§ 133, 16 November 2000; Dulaş v. Turkey, no.
25801/94, § 79, 30 January 2001; and Akdeniz and Others
v. Turkey, no. 23954/94, § 118, 31 May 2001). However,
bearing in mind the very specific circumstances of the cases cited
above, the Court has found no indication that similar factors exist
in the applicants' case.
In
sum, while bearing in mind the reservations expressed in paragraph
120 above and taking into account all the relevant circumstances of
the case, the Court considers that there is insufficient evidence to
conclude that the questioning of the first applicant by an officer of
the security police on 6 March 2002 should be regarded as a form
of “pressure”, “intimidation” or “harassment”
which might have induced the applicants to withdraw or modify their
application or hindered them in any other way in the exercise of
their right of individual petition.
Lastly,
with regard to the alleged interception of the applicants' telephone
conversations, the Court observes that this is merely an
unsubstantiated and unproven assertion (see Michael Edward Cooke
v. Austria, no. 25878/94, § 48, 8 February 2000).
The same is true of the complaint that the Latvian authorities had
intended to send the applicants to prison.
Consequently,
the respondent State has not failed to comply with its obligations
under the last sentence of Article 34 of the Convention.
IV. APPLICATION OF ARTICLE 18 OF THE CONVENTION
At
the hearing the applicants and the Russian Government requested the
Court to raise of its own motion the issue of the application of
Article 18 of the Convention and to hold that there had been a
violation of that Article, as in Gusinskiy v. Russia (no.
70276/01, §§ 70-78, ECHR 2004 IV). Article
18 provides:
“The restrictions permitted under [the] Convention
to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
In the applicants' view, the Latvian authorities had
abused the powers of interference available to them under Article
8 § 2 of the Convention, as the interference in issue
had not been necessary in order to achieve any of the aims referred
to by that provision. The authorities' true aim – one they had
pursued since 1993 and done everything in their power to achieve –
had been to deprive the applicants of their right to reside
permanently in Latvia. The Russian Government endorsed that argument.
Leaving to one side the question whether the
applicants and the Russian Government are still entitled to make this
request to the Grand Chamber or whether they are estopped from so
doing, the Court sees no evidence that the Latvian authorities abused
their powers by applying a restriction authorised by the Convention
for a purpose other than that for which it was intended. On that
point, it sees no similarity between this case and Gusinskiy,
cited above, where the applicant's detention was found to have been
motivated in part by reasons other than those provided for in
the Convention. In these circumstances, and in view of all its
findings set out above, the Court sees no reason to raise of its own
motion the issue of the application of Article 18 of the Convention.
V. COSTS
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the
costs shall be at the discretion of the Court. ...”
The
Court reiterates that the striking-out of the application which it
has just ordered is only partial, since it is confined to the
complaint under Article 8 of the Convention (see paragraph 104
above). However, it considers it nevertheless necessary to rule on
the application of Rule 43 § 4.
As
they had done before the Chamber, the applicants claimed LVL 36,736
(approximately EUR 55,800) in respect of non-pecuniary damage and
LVL 2,422.21 (approximately EUR 3,680) for costs and expenses.
In that connection, the Court reiterates that Article 41 of the
Convention allows it to award just satisfaction to the “injured
party” only if it has previously “[found] that there has
been a violation of the Convention or the Protocols thereto”,
which it has not in this case. Accordingly, under Rule 43 §
4, the Court can award only costs and expenses to the applicants.
The
Court reiterates that the general principles governing reimbursement
of costs under Rule 43 § 4 are essentially the same as under
Article 41 of the Convention (see Pisano, cited above, §§
53-54). In other words, in order to be reimbursed, the costs must
relate to the alleged violation or violations and be reasonable as to
quantum. Furthermore, under Rule 60 § 2 of the Rules of Court,
itemised particulars of any claim made under Article 41 of the
Convention must be submitted, 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 v. Latvia,
no. 58442/00, § 154, 28 November 2002). In addition,
it is clear from the structure of Rule 43 § 4 that, when the
Grand Chamber makes a decision on the award of expenses, it must do
so with reference to the entire proceedings before the Court,
including the stages prior to referral to the Grand Chamber.
In
the instant case the Court observes that, during the proceedings
before the Chamber, the applicants were granted legal aid for
presenting their case at the hearing, preparing their submissions and
additional comments, conducting negotiations with a view to a
friendly settlement and for secretarial expenses. It notes that the
applicants have not submitted any specific claims for reimbursement
of expenses since then, in particular for expenses incurred before
the Grand Chamber. Accordingly, and in the absence of any further
costs that might be added, it makes no award under this head.
FOR THESE REASONS, THE COURT
Holds by sixteen votes to one that the matter
giving rise to the applicants' complaint under Article 8 of the
Convention has been resolved and decides to strike the
application out of its list of cases in so far as it relates to that
complaint;
Holds unanimously that the respondent Government
have not failed to comply with their obligations under Article 34 of
the Convention.
Done
in English and in French, and notified in writing on 15 January 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Luzius Wildhaber
President
Michael O'Boyle
Deputy
Registrar
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the dissenting opinion of Mr Zupančič
is annexed to this judgment.
L.W.*.
M.O'B.*.
DISSENTING OPINION OF JUDGE ZUPANČIČ
My
reasons for disagreeing as to the applicants' loss of victim status
are, mutatis mutandis, the same as those advanced by the First
Section in its judgments in Shevanova v. Latvia (no. 58822/00,
§§ 42 50) and Kaftailova v. Latvia (no.
59643/00, §§ 45-52), delivered on 15 June and 22 June
2006 respectively.
Due
to the obvious disagreement between the Court's conclusions in
Sisojeva v. Latvia and in these two cases, the latter have
been admitted for reconsideration by the Grand Chamber. Nevertheless,
the arguments in both the First Section's judgments are, to me,
wholly persuasive.
Henceforth,
we shall be bound by the outcome in Sisojeva v. Latvia. However,
that was not yet the case during the deliberations and the vote
in the present case.
Accordingly,
I dissent.
