European Court of Human Rights

 

 

THIRD SECTION

 

CASE OF MEN v. RUSSIA

(Application no. 11338/15)

 

 

 

 

 

JUDGMENT

STRASBOURG

8 June 2021

 

 

 

 

 

 

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

 

In the case of Men v. Russia,

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

          Georgios A. Serghides, President,
          María Elósegui,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Chinese national, Ms Syanzhun Men (“the applicant”), on 27 February 2015;

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

the parties’ observations;

Having deliberated in private on 11 May 2021,

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

INTRODUCTION

1.  The present case concerns the two-year exclusion of the applicant, a long-term migrant in Russia, for three administrative offences of exceeding speed limit and the authorities’ failure to duly assess the proportionality and necessity of that measure and its adverse effect on the applicant’s family life.

THE FACTS

2.  The applicant was born in 1973. Prior to her deportation to China, she lived in Kalachinsk in the Omsk Region. The applicant was represented by Mr D. Karamanukyan, a lawyer practising in Rostovka.

3.  The Government were initially represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and subsequently by his successor in office, Mr M. Galperin.

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

I.         Background information and decision to revoke the applicant’s residence permit

A.    Background information

5.  In July 1991 (in the documents submitted, the date was also referred to as December 1992) the applicant moved to Russia. In 1998, while residing in Russia, she married a Chinese national, Mr V., with whom in 1999 she had a daughter, also a Chinese national. The couple divorced in 2004 and the applicant’s daughter continued to reside with the applicant in Russia.

6.  In 2005 the applicant married another Chinese national, with whom in March 2007 she had a son. The applicant and her family lived in Russia on the basis of regularly extended long-term (five-year) residence permits. The applicant’s parents, also Chinese nationals, resided in Russia as permanent residents as well. According to the Government, all of the applicant’s relatives were Chinese nationals and never applied for Russian nationality.

7.  From the documents submitted it is apparent that the applicant had real estate in Russia, owned several businesses and paid taxes. Both of her children went to school in Russia. According to the applicant, her children did not go to China, had no cultural or social connections with the country and spoke only the Russian language.

8.  According to the Government, the applicant’s children had gone on visits to China; the border-crossing records showed that the applicant’s daughter had returned from a trip to China in July 2011 and her son in August 2011.

B.    The applicant’s exclusion from Russia

9.  On three occasions (12 November and 26 December 2012 and 17 January 2013), the applicant was found guilty of traffic offences after exceeding the signposted speed limits by 15 kph to 23 kph and was ordered to pay administrative fines of between 100 and 300 Russian roubles (approximately 1.34 to 4.03 euros). The applicant paid the fines and did not appeal against the sanctions.

10.  On 25 February 2014 the Omsk Region department of the Federal Migration Service (Управление Федеральной миграционной службы России по Омской области (ФМС) - hereinafter “the FMS”) imposed a two-year ban on the applicant’s entry to Russia, applicable until 1 February 2016. The FMS referred to section 26(4) of the Federal Law on the procedure for entering and leaving the Russian Federation, which provides, inter alia, that an entry ban may be imposed on a foreign national if he or she has been convicted of two or more administrative offences committed in the territory of the Russian Federation. Such bans may be imposed within three years of the last administrative conviction.

11.  On 27 February 2014 the FMS issued a decision revoking the applicant’s residence permit and banning her re-entry until 1 February 2016 (“the exclusion order”), referring to section 9(2) of the Federal Law on the legal status of foreigners in the Russian Federation, which provides that a resident permit issued to a foreign national should be revoked if a ban has been imposed on his or her entry to the Russian Federation.

12.  On 27 February 2014 the FMS informed the applicant about the decision that she had to leave Russia within fifteen days and that she would be subjected to deportation should she fail to comply.

C.    The applicant’s appeals against the exclusion order

13.  On 18 March 2014 the applicant complained to the Kuybyshevskiy District Court in Omsk. She stated that when issuing the two-year exclusion order, the authorities had disregarded the fact that she and her family had been living in Russia for a long time and had established close cultural and personal ties with the country.

14.  On 27 March 2014 the Kuybyshevskiy District Court ruled in the applicant’s favour. Referring, among other things, to her long-term residence in Russia and the fact that her close family was living there on a permanent basis, it held that separating her from her husband and children would breach her family rights.

15.  The FMS appealed against that decision to the Omsk Regional Court, noting that the measure imposed on the applicant was justified by the fact that she had committed three administrative offences within the preceding three years. Furthermore, her children and husband were Chinese nationals. They had all regularly gone on long-term visits to China. The FMS also stressed that despite their lengthy period of residence in Russia, neither the applicant nor her husband and children had made any attempt to obtain Russian citizenship.

16.  On 10 June 2014 (in the documents submitted the date was also referred to as 28 May 2014) the Omsk Regional Court dismissed the Kuybyshevskiy District Court’s decision and adopted a new one upholding the exclusion order. The court stressed that none of the close members of her family had Russian citizenship and that both her children and husband were Chinese nationals. The court did not examine the effect of the applicant’s exclusion on her family members and their family life. It concluded that given that the applicant had committed several administrative offences over a three-year period, she represented a threat to public safety and the measure imposed on her was adequate and proportionate. The decision was final and enforceable immediately.

17.  The applicant lodged a cassation appeal against the above-mentioned decision, alleging, in particular, that the exclusion order was disproportionate given her family situation, the extent of her integration into Russian society and the minor nature of the administrative offences.

18.  On 1 September 2014 a judge of the Omsk Regional Court refused the leave to lodge a cassation appeal.

19.  On 14 November 2014 a judge of the Supreme Court of Russia refused the leave to lodge a further cassation appeal.

II.      Subsequent developments

20.  On 22 August 2014 the head of the Omsk Regional FMS decided that the applicant was to be deported from Russia as she had failed to leave the country of her own accord within fifteen days of the exclusion order of 25 February 2014, which had been finalised on 10 June 2014 (see paragraph 16 above).

21.  On 25 August 2014 the applicant appealed against the above‑mentioned decision and requested a stay of her deportation pending the outcome of her appeals against the exclusion order.

22.  On 14 November 2014 the Supreme Court, after examining the applicant’s request for leave to lodge a cassation appeal, informed her that her appeal against the decision on her deportation and her request for a stay of its execution should be examined in a separate set of proceedings concerning the deportation and not the exclusion order.

23.  On 15 January 2015 the applicant was detained by a decision of the Kirovskiy District Court in Omsk and placed, pending deportation, in a temporary detention centre for foreign nationals. According to the Government, the applicant hid her Chinese identity documents to impede the deportation.

24.  On 2 April 2015 the Omsk FMS concluded that it was impossible to deport the applicant for lack of a valid Chinese passport. Therefore, several requests were sent to the Chinese consulate asking it to confirm the applicant’s identity and to issue a certificate of return to China. No reply was given to those requests.

25.  On 4 May 2015 the applicant was deported to China. Given that her deportation was based on the decision of 22 August 2014, issued after her failure to comply with the initial two-year exclusion order of 27 February 2014, she was automatically banned from re-entering Russia for five years, that is, until 4 May 2020.

26.  According to the Government, at some point in 2016 the applicant’s husband and daughter moved to St Petersburg. It appears that after the applicant’s deportation, her son moved to live with her parents (his grandparents) in the Omsk Region. As of January 2017, the applicant’s husband and both of her children were still living in Russia.

RELEVANT LEGAL FRAMEWORK

27.  For a summary of the applicable domestic legislation, see Uzbyakov v. Russia, no. 71160/13, §§ 60-66, 5 May 2020 (on the entry into force of judgments and appeals), and Guliyev and Sheina v. Russia, no. 29790/14, §§ 25-34, 17 April 2018 (on the situation of foreign nationals and exclusion).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

28.  The applicant complained that the exclusion order against her was a disproportionate punishment for the minor administrative offences committed by her and that it violated her right to respect for her family life, guaranteed by 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

1.     The parties’ submissions

29.  The Government stated that the application was inadmissible for failure to comply with the six-month time limit due to the applicant’s recourse to cassation appeal before it had been recognised as effective remedy by the Court.

30.  The applicant submitted that she had complied with the admissibility criteria as the final decision in respect of her application was taken on 14 November 2014.

2.     The Court’s assessment

31.  The Court observes that the applicant lodged her cassation appeal in accordance with the system of appeals in civil proceedings introduced in January 2012. Although she was not required to use that remedy before the Court recognised its effectiveness, she cannot be reproached for her attempt to bring her grievances to the attention of the domestic authorities through the remedy, which existed and which she considered effective, and which was subsequently recognised by the Court (for a similar approach, see Uzbyakov, cited above, §§ 75-76).

32.  Given the above, the Court finds that the application was not lodged out of time and dismisses the Government’s objection.

33.  The Court notes that the complaint 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

(a)    The applicant

34.  The applicant submitted that the exclusion order had interfered with her right to respect for her family life. She pointed out that even though her family members were Chinese nationals, she and her husband had lived in Russia for more than twenty years. Considering that her children had spent all their lives in Russia and did not have any connections with China, moving there would represent a radical upheaval for them. The applicant further stated that she had paid taxes in Russia, had been in good standing and had a stable income.

35.  The applicant further stated that when issuing and upholding the exclusion order, neither the FMS nor the domestic courts, except for the Kuybyshevskiy District Court, had assessed the proportionality and the necessity of the sanction and its adverse effect on her family life. In the applicant’s opinion, the imposition of the exclusion order for two years for three minor administrative offences had been a disproportionate punishment. The nature of the administrative offences had not shown that she represented a danger to the public.

(b)    The Government

36.  The Government denied that the exclusion order had interfered with the applicant’s right to respect for her family life, as she and her family members were Chinese nationals who had been residing in Russia on the basis of residence permits. Therefore, given that they all spoke Chinese and had social and cultural ties with the country, there had been no obstacles to the applicant’s relatives moving to China to join her there.

37.  The Government stated that the relationship between the applicant and her parents, who also resided in Russia, did not constitute family life under Article 8 of the Convention as they were all adults and their relationship did not demonstrate any factors of dependency other than normal emotional ties. Furthermore, the applicant did not have a close relationship with either her husband or her children. According to the Government, the applicant’s husband and daughter had moved to St Petersburg, more than 2,600 km from the applicant’s previous residence in the Omsk Region. Evidence showed that they had financial means to move with the applicant to China. In addition, the applicant’s son resided not with the applicant, but with his grandmother in the Omsk Region.

38.  The Government challenged the fact that the applicant was a long‑term migrant as she had arrived in Russia when she was of a “mature age” (at the age of 19). In the Government’s opinion, the applicant had justified her stay in Russia on the basis of economic reasons, and not on the basis of any cultural or social ties with the country. The fact that neither the applicant nor her family members had ever applied for Russian nationality showed that she and her relatives maintained close ties with China.

39.  The applicant’s conduct had demonstrated her lack of respect for Russian law and her propensity to commit repeated administrative offences. Referring to Samsonnikov v. Estonia (no. 52178/10, 3 July 2012), where the Court had found that the applicant’s exclusion for three years for four criminal convictions was not “disproportionate”, the Government submitted that the two-year duration of the exclusion order issued against the applicant was not “too long”.

2.     The Court’s assessment

40.  For a summary of the relevant general principles, see Guliyev and Sheina v. Russia (no. 29790/14, §§ 46-52, 17 April 2018).

41.  The Court considers that the two-year exclusion order issued by the domestic authorities against the applicant constituted an interference with her right to respect for her family life.

42.  The Court is prepared to accept that the sanction taken against the applicant pursued the legitimate aim of protecting public safety and preventing disorder and crime. It remains to be ascertained whether it was proportionate to the legitimate aims pursued, in particular whether the domestic authorities struck a fair balance between the relevant interests, namely the prevention of disorder and crime and the protection of public safety, on the one hand, and the applicants’ right to respect for her family life, on the other (see Kamenov v. Russia, no. 17570/15, § 28, 7 March 2017).

43.  The Court notes the Government’s detailed arguments concerning the proportionality and the necessity of the applicant’s exclusion (see paragraphs 37-39 above). However, those details were not subject to examination by the domestic courts in the examination of the exclusion order (see paragraphs 16, 18 and 19 above) and cannot be relied upon in the Court’s analysis of the proportionality (compare Zakharchuk v. Russia, no. 2967/12, § 51, 17 December 2019).

44.  The Court observes that when upholding the applicant’s exclusion, the domestic courts referred to the repeated nature of the administrative violations committed by the applicant and the fact that she and her family members were Chinese nationals. The courts, except for the Kuybyshevskiy District Court, disregarded the applicant’s submissions concerning her long‑term lawful residence in Russia, her children’s integration, and the lack of social and cultural ties with China. Furthermore, it appears that the nature and the gravity of the applicant’s administrative offences which served as the basis for her exclusion were not examined. The courts concluded that the applicant represented a threat to public safety as a repeat offender. However, as shown by the modest penalties imposed (see paragraph 9 above), the domestic law considered her administrative offences to be of a minor nature. Thus, in the Court’s view the allegation that the applicant constituted a danger to public order does not appear to be duly justified (see, for a similar situation, Yildiz v. Austria, no. 37295/97, §§ 45-46, 31 October 2002).

45.  The foregoing considerations are sufficient to enable the Court to conclude that the proceedings in which the exclusion order against the applicant was issued and upheld fell short of the Convention requirements and did not touch upon all the elements that the domestic authorities should have taken into account for assessing whether the measure was “necessary in a democratic society” and proportionate to the legitimate aim pursued.

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

II.      APPLICATION OF ARTICLE 41 OF THE CONVENTION

47.  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

48.  The applicant claimed 15,000 euros (EUR) in respect of pecuniary damage caused to her by her deportation to China and the related expenses she had incurred there. The applicant also claimed EUR 7,000 in respect of non-pecuniary damage. She requested that the compensation be paid into her representative’s bank account, as indicated in her submissions.

49.  The Government submitted that the claim for pecuniary damage was unsubstantiated as the documents produced to corroborate it were in Chinese and therefore could not be relied upon. They further stated that the claim for non-pecuniary damage was excessive and that, in any case, no compensation should be awarded to the applicant as her rights had not been violated.

50.  The Court observes that the documents enclosed with the claim for pecuniary damage were in Chinese and were not accompanied by a certified translation. Therefore, it is not in a position to assess their veracity and evaluate the justification of the claim. Consequently, it rejects the claim for pecuniary damage.

51.  As for non-pecuniary damage, the Court awards the applicant EUR 7,000 as claimed by her, plus any tax that may be chargeable thereon; to be paid into the account of the applicant’s representative, as indicated by her.

B.    Costs and expenses

52.  The applicant also claimed EUR 15,000 for the costs and expenses incurred before the domestic courts and before the Court. She submitted a copy of a legal-services contract dated 2 August 2016 between her daughter and Mr M.Zh. for 150,000 roubles (approximately EUR 2,000) concerning the representation of the daughter in proceedings relating to her immigration status in Russia.

53.  The Government submitted that the legal contract submitted to justify the costs and expenses was not relevant to the case as it had been concluded in August 2016, that is, after the applicant’s deportation to China.

54.  Given that the documents submitted did not pertain to the present case, the Court rejects the applicant’s claim for costs and expenses.

C.    Default interest

55.  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, EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and paid into the account of the applicant’s representative, as indicated by the applicant;

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

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

Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 {signature_p_2}

Olga Chernishova                                                            Georgios A. Serghides
Deputy Registrar                                                                       President