European Court of Human Rights

 

 

THIRD SECTION

CASE OF AKMALOV v. RUSSIA

(Application no. 29255/18)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

9 March 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Akmalov v. Russia,

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

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 29255/18) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Uzbek national, Mr Alisher Akmalovich Akmalov (“the applicant”), on 13 June 2018;

the decision to give notice to the Russian Government (“the Government”) of the application;

the parties’ observations;

Having deliberated in private on 9 February 2021,

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

INTRODUCTION

1.  The present application concerns a violation of the applicant’s right to respect for his private life under Article 8 of the Convention, as a result of an exclusion order issued against him by the Russian immigration authorities.

THE FACTS

2.  The applicant, whose surname was also given as Khamrakulov in some of the documents submitted, was born in 1991 and lives in Tashkent, Uzbekistan. The applicant was represented by Mr N. Zboroshenko, a lawyer practising in Moscow.

3.  The Government were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

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

I.        Background information

5.  On 1 September 2013 the applicant entered a master’s programme in law at the National Research University - Higher School of Economics (“the HSE”) in Moscow, Russia. His stay in Russia was authorised for the duration of his studies.

6.  On 13 November 2013 and then on 19 August 2014 the HSE informed the Federal Migration Service (“the FMS”) about the applicant’s enrolment into the programme, in order to maintain his legal immigration status as a student. The Government disputed that statement, and stated that the HSE had failed to inform the FMS that the applicant was a student and that therefore, in the absence of information to the contrary, on 14 July 2015 the FMS had taken the decision to ban the applicant’s re-entry into Russia (see below).

7.  As of the autumn of 2013, having started his studies at the HSE, the applicant resided in Moscow, where he had a circle of friends. According to the Government’s submission before the Court, the applicant’s stay in Russia was authorised from 1 September 2013 to 30 June 2015 on the basis of his studies at the HSE.

8.  On 18 June 2015 the applicant successfully finished the master’s programme. He intended to continue his studies and enrol for a doctorate programme at the HSE in September 2015. The entry examinations into the programme were held once a year and began in September. On 3 July 2015 the applicant left Russia for a summer visit to his family in Uzbekistan.

9.  On 13 August 2015 the applicant purchased an airplane ticket for 223 euros (EUR) in Uzbekistan, to go back to Moscow on 30 August 2015 to prepare for the examinations for the doctorate programme, which were scheduled for 16 September 2015.

II.     exclusion order against the applicant and subsequent events

A.    Information submitted by the applicant

10.  On 30 August 2015 the applicant arrived at Domodedovo Airport in Moscow, from Tashkent. Upon arrival, at the Border Guard Service at the airport, the applicant was handed a written notice stating that his entry into the Russian Federation was banned until 3 July 2020. The document referred to section 27(1) of the Entry and Exit Procedures Act, in accordance with which the entry of a foreign national could be banned if his or her presence in Russia constituted a real threat to the defence capacity or security of the State, or to public order or health. No information was provided about either the reasons for the ban or the authority which had issued it. According to the applicant, he was not informed of the exclusion order until 6 November 2015 (see paragraph 17 below), and this was undisputed by the Government.

11.  On the same date, 30 August 2015, the applicant was deported back to Uzbekistan, having signed an undertaking that he would reimburse the airline the cost of the airplane ticket for his deportation. Subsequently, on an unspecified date prior to 1 November 2015, he reimbursed the National Aviation Company the price of that ticket in the sum of EUR 198.

12.  On 1 September 2015 the HSE officially requested that the FMS remove the applicant’s name from the list of persons whose entry into Russia was banned (“the list”). The documents confirming the applicant’s enrolment onto his studies at the HSE were enclosed with the request.

13.  On 25 September 2015 the FMS of the Russian Federation instructed the Moscow Department of the FMS to remove the applicant’s name from the list. On 2 October 2015 the FMS removed the applicant’s name from the list and informed the HSE accordingly. On 3 October 2015 the HSE informed the applicant that his name had been removed from the list of individuals whose entry into Russia was banned.

14.  On 5 October 2015 the FMS revoked the exclusion order against the applicant, but did not inform him (see also paragraph 17 below).

15.  On 8 October 2015 (in some of the documents submitted the date was also referred to as 7 October 2015) the applicant again arrived at Domodedovo Airport in Moscow. At the Border Guard Service he was again handed the exclusion order, which as before referred to section 27(1) of the Entry and Exit Procedures Act and threatened criminal prosecution for failure to comply. No other information was given.

16.  On the same date (8 October 2015), several hours later, after several telephone calls had been made between the HSE and the Border Guard Service, the applicant was allowed to enter Russia. The Government did not dispute this information.

17.  On 6 November 2015 the applicant was informed that the exclusion order had been issued against him on 14 July 2015 (see paragraphs 12 and 14 above). The Government did not dispute this information.

18.  On 27 November 2015 the FMS informed the HSE that it had examined the HSE’s letter concerning the removal of the names of several students from the list, and stated that on an unspecified date the applicant’s name had been removed from the list.

B.    Information submitted by the Government

19.  According to the Government’s submission, on 14 July 2015 the FMS issued an exclusion order against the applicant, banning his re-entry into Russia until 3 July 2020, as the immigration authority had no information that the applicant was a student at the HSE. Therefore, it was concluded that he had failed to comply with immigration regulations by exceeding the authorised period of 180 days for uninterrupted stays for visitors in Russia, by having arrived in the country on 15 August 2014 and having left on 3 July 2015.

20.  In the Government’s submission, the applicant had been allowed to take the examination for the doctoral programme scheduled for 5 October 2015. However, he did not arrive in Russia until 8 October 2015, and therefore failed to take that examination, and for this reason could not be enrolled onto the programme.

21.  The Government stated that on 5 April 2017 the applicant had moved to the Kaluga Region in Russia, where on an unspecified date in 2017 he had applied for Russian nationality. On 11 October 2017 he had been granted Russian nationality. According to the applicant, he learnt about his acquisition of Russian nationality from the Government’s submission before the Court.

C.    The applicant’s appeals against the exclusion order

22.  On 27 November 2015 the applicant complained to the Basmanniy District Court in Moscow, asking it to recognise the exclusion order as unlawful. In particular, he stated that because of the order, which had been issued against him without any grounds and for unknown reasons, he had not been able to participate in the examinations for the doctoral programme held in September 2015, which took place once a year. Referring to, among other things, Article 8 of the Convention, the applicant complained that the exclusion order violated his right to his private life as it had made it impossible for him to enter Russia and continue his studies there. The applicant asked the court to request from the immigration authorities the documents pertaining to the reasons for the issuance of the exclusion order against him, stressing that neither the grounds for its imposition nor the reasons for its subsequent revocation were known to him.

23.  On 2 December 2015 and then on 12 February 2016 the District Court decided not to examine the complaint because of the applicant’s failure to comply with procedural requirements. The applicant and his lawyer were informed of both decisions on 15 February 2016. On 26 February 2016 the applicant’s lawyer appealed against both decisions as being unlawful and requested that the complaint be examined on the merits. On an unspecified date in 2016 the appeal was granted and the complaint was accepted for examination.

24.  On 2 February 2017 the District Court examined and dismissed the applicant’s complaint. According to the court’s decision, the documents examined at the hearing showed the following:

“... the case file contains copies of requests from the Higher School of Economics to the Moscow Department of the Federal Migration Service dated 13 November 2013 and 19 August 2014, concerning the extension of Mr Akmalov’s temporary stay in the Russian Federation. However, there is no evidence proving that those letters had either in fact been sent by the HSE or received by the FMS in Moscow.

From the contents of the case file, it could be seen that ... the decision of 14 July 2015 [to exclude the applicant] was revoked by the defendant [the FMS] on 5 October 2015 ...

The [FMS’s] representative stated at the hearing that at the time of the issuance of the decision of 14 July 2015, [the situation had been that], according to the information from the Central Registration Database for Foreign Nationals, the applicant had arrived in Russia on 15 August 2014 and had left the country on 3 July 2015, which comprised 202 days of unlawful stay in Russia. The defendant [the FMS] had had no information concerning the applicant’s studies at the HSE; therefore the period of the applicant’s authorised stay had not been extended. Therefore, the Moscow FMS could not have taken that into account when taking the decision [to exclude the applicant] ...

At present, given that there are no obstacles to Mr Akmalov’s entry and stay in the Russian Federation and that the decision of 14 July 2015 was revoked by the defendant [the FMS] voluntarily on 5 October 2015, the court concludes that the defendant’s actions did not violate any of Mr Akmalov’s rights ...”

25.  The applicant appealed against the above decision to the Moscow City Court. He argued that the District Court had failed to grant his request to obtain the documents which had served as the basis for the exclusion order, and that it had failed to examine the alleged violation of his right to respect for his private life. He stressed that he had not been able to take the doctoral programme examinations and that the unlawfulness of the exclusion was demonstrated by the authorities’ subsequent decision to revoke it. Furthermore, as a result of the unlawful exclusion, he had had to pay EUR 198 for his deportation flight back to Uzbekistan on 30 August 2015.

26.  On 4 July 2017 the City Court upheld the District Court’s decision in a summary fashion. It stated that there had been no violation of the applicant’s rights and that the decision to exclude him had been taken lawfully, as the immigration authorities had not had any information confirming the lawfulness of his stay in Russia. The court did not examine the applicant’s complaint concerning a violation of his right to respect for his private life and his payment for his own deportation.

27.  The applicant appealed against the above-mentioned decision to the Presidium of the City Court. In his cassation appeal, he argued that there had been a violation of Article 8 of the Convention because of his unlawful exclusion from Russia, and the failure of the District Court to verify the grounds for the sanction in question, and its adverse effect on his private life. On 27 October 2017 the applicant’s appeal was examined and a decision was taken to refuse its examination by the Presidium of the City Court.

28.  The applicant’s further appeal to the Supreme Court of the Russian Federation was to no avail. On 2 February 2018 the court refused to transfer the appeal for examination on the merits to its Administrative Cases Chamber, stating that “the decision banning the applicant’s entry was revoked on 5 October 2015 and, therefore, this ended the violation of Mr Akmalov’s rights”.

RELEVANT LEGAL FRAMEWORK

29.  For a summary of the relevant domestic regulations see Guliyev and Sheina v. Russia, no. 29790/14, §§ 25-34, 17 April 2018.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

30.  The applicant complained that the exclusion order issued against him had been unlawful and that the domestic courts had failed to examine its adverse effect on his private life in violation of Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A.    Admissibility

31.  The parties did not comment on the admissibility of the application.

32.  The Court notes that the exclusion order in respect of the applicant has been annulled. It reiterates that favourable measures adopted by the domestic authorities will deprive the applicant of victim status only if the violation is acknowledged expressly, or at least in substance, and if it is subsequently redressed (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V (with further references)). The Court notes that in the present case, the domestic courts neither expressly acknowledged the violation of the applicant’s rights, nor awarded any redress. Therefore, the fact that the exclusion order against the applicant was subsequently annulled does not deprive him of victim status (compare to Bivolaru v. Romania (no. 2), no. 66580/12, §§ 168-175, 2 October 2018).

33.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions

34.  The applicant argued that the domestic courts had failed to examine the proportionality of the interference with his right to respect for his private life. In particular, the courts had failed to assess the authorities’ failure to inform him about the existence of the exclusion order, and then to assess the negative consequences of its making it impossible for him to take the doctorate programme examinations that academic year. The applicant further stated that the HSE was a State university and was supposed to inform the FMS regularly about his student status.

35.  The Government submitted that the domestic courts had duly examined the applicant’s appeals against the exclusion order and had concluded that the exclusion order was a proportionate measure, as it was temporary and had “no negative impact” on the applicant’s private life. The domestic courts had found that the HSE had failed to inform the immigration authorities about the applicant’s student status. Therefore, when taking the decision on the applicant’s exclusion, the FMS had not possessed the relevant information. Subsequently the immigration authorities had voluntarily revoked the exclusion order.

2.     The Court’s assessment

36.  For a summary of the applicable case-law see Guliyev and Sheina, cited above, §§ 57-58.

37.  The Court observes that the parties did not dispute that the exclusion order represented an interference with the applicant’s right to respect for his private life. They disagreed on whether, when examining the sanction in question, the domestic courts had carefully balanced the interests involved.

38.  The Court observes that the five-year exclusion order issued against the applicant lasted for less than three months, between 14 July and 5 October 2015. Within the entire period, the applicant was unaware of its existence (see paragraph 17 above).

39.  Meanwhile, on 30 August 2015 the applicant was banned from entering Russia for reasons unknown to him. He was not informed of the reasons for the ban (see paragraphs 10 and 11 above). On 5 October 2015 the FMS revoked the exclusion order, but the applicant was not informed about that decision either (see paragraph 14 above). The FMS had also failed to inform the Border Guard Service about the revocation of the exclusion order, as on the applicant’s arrival in Russia on 8 October 2015, he was yet again handed the same written notice. He managed to re-enter the country only after telephone calls had been made by the border officials to the HSE (see paragraph 16 above).

40.  The Court observes that the applicant was denied entry into Russia on unknown grounds and for unknown reasons, and that throughout the duration of the exclusion order he was not even informed of its existence. Moreover, he was deported to Uzbekistan at his own expense, and subsequently he was unable to enter Russia in time to pursue his studies there. The documents submitted show that the domestic courts did not examine those allegations and that they confined themselves to the conclusion that the HSE’s alleged failure to inform the immigration authorities had led to the latter issuing the exclusion order. The applicant was informed about the existence of the exclusion order on 6 November 2015, only after it had been revoked, following the HSE’s request to clarify the matter (see paragraphs 13 and 17 above).

41.  The domestic courts focused their attention on the fact that the FMS had revoked the sanction imposed on the applicant (see paragraphs 24, 26 and 28 above), without verifying the relevant facts, such as the reasons for the authorities’ failure to inform the applicant about the imposition of the exclusion order, and the applicant’s allegations of his inability to pursue his education in Moscow owing to the re-entry ban.

42.  The foregoing considerations are sufficient to enable the Court to conclude that the domestic courts neither carefully balanced the different interests involved, nor made a thorough analysis as to the proportionality of the measure applied against the applicant and its impact on his private life. Consequently, they failed to take into account the considerations and principles established by the Court and to apply standards which were in conformity with Article 8 of the Convention (see paragraph 36 above).

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

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

44.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

45.  The applicant claimed 421 euros (EUR) in respect of pecuniary damage. The amount claimed comprised EUR 223 paid by the applicant for his ticket to Moscow from Tashkent in October 2015 and EUR 198 paid for his deportation from Russia in August 2015. The applicant submitted copies of the relevant documents.

46.  The applicant also claimed EUR 15,000 in respect of non-pecuniary damage.

47.  The Government stated that the claim for pecuniary damage was unsubstantiated, as there was no proof that the payment for the tickets had actually been made.

48.  As for the non-pecuniary damage claim, the Government submitted that it was excessive and unreasonable and that in any event no compensation was due as there had been no violation of the applicant’s rights.

49.  Making an assessment on an equitable basis, the Court awards the applicant EUR 421 as claimed in respect of pecuniary damage and EUR 2,600 in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts.

B.    Costs and expenses

50.  The applicant claimed EUR 29,400 for the costs and expenses incurred before the domestic courts and before the Court. The amount claimed represented 98 hours of work by the applicant’s representative Mr N. Zboroshenko at the rate of EUR 300 per hour. The applicant requested that the payment of costs and expenses be made directly to the representative’s bank account.

51.  The Government submitted that the amount was excessive and the amount of legal work did not reflect the actual number of hours claimed by the applicant’s representative. Given that the applicant’s payment for his representation before the Court was conditional upon the Court giving a judgment in the applicant’s case, the actual fees had not been incurred.

52.  Regard being had to the documents in its possession and to its case‑law (see, for example, Akçay and Others v. Russia [Committee], no. 66729/15, § 65, 11 December 2018), the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads, plus any tax that may be chargeable to the applicant. This amount is to be paid into the bank account of the applicant’s representative.

C.    Default interest

53.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

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

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 421 (four hundred and twenty-one euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the applicant’s representative’s bank account, as specified by the applicant;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 9 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                                    Darian Pavli
Deputy Registrar                                                                       President