European Court of Human Rights

 

 

THIRD SECTION

CASE OF SOTVOLDIYEV v. RUSSIA

(Application no. 47636/18)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

8 June 2021

 

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

In the case of Sotvoldiyev 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 (no. 47636/18) 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 a national of Kyrgyzstan, Mr Mashal Muratovich Sotvoldiyev (“the applicant”), on 27 September 2018;

the decision to give notice to the Russian Government (“the Government”) of the complaint concerning Article 8 of the Convention and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 11 May 2021,

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

INTRODUCTION

1.  The applicant’s presence in Russia was declared undesirable on the basis of undisclosed national security reasons, and his re-entry into the country was banned for thirty-five years. On account of the applicant’s failure to comply with the prescribed time limit for his departure from Russia, the local court ordered his administrative removal, without assessing the adverse effect of that measure on his family life.

THE FACTS

2.  The applicant was born in 1984 and lives in Bazar-Korgon, Kyrgyzstan. He was represented by Ms D. Trenina, Ms E. Davidyan and Mr K. Zharinov, lawyers practising in Moscow.

3.  The Russian Government (“the Government”) were represented by Mr M. Galperin, 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.         The applicant’s exclusion from Russia

A.    Background information

5.  On an unspecified date in 2007 the applicant arrived in Russia. On 20 March 2014 he married a Russian national, Ms A.K. The family resided in Novosibirsk. The last period of the applicant’s stay which was authorised by a temporary residence permit was until 2 March 2018. On an unspecified date in November or December 2017 the applicant applied for the extension of his authorised stay in Russia.

6.  On 7 December 2017 the department of the Federal Security Service in the Novosibirsk Region (“the FSB”) issued a decision concerning the undesirability of the applicant’s presence in Russia because of undisclosed national security reasons.

7.  On 2 March 2018 the Migration Department of the Ministry of the Interior in the Republic of Altay informed the applicant by letter that a decision had been taken concerning the undesirability of his presence in Russia, and that he was to leave Russia on the date of the expiry of his authorised stay in the country, that is 2 March 2018, and that his re-entry was prohibited. The applicant received the letter on 5 March 2018.

B.    Decision on the applicant’s exclusion and his appeals against it

8.  On 15 March 2018 the applicant was detained at home by the police on account of his failure to comply with the period of his authorised stay.

9.  On the same date (15 March 2018) the applicant was taken to the Kalininskiy District Court in Novosibirsk. The applicant stated before the court that he lived in Russia with his wife, to whom he had been married since 2014, and that he intended to regularise his stay in the country. The court found the applicant guilty of violating Article 18.8 of the Code of Administrative Offences (COA) and ordered his administrative removal with a subsequent re-entry ban, along with the payment of a fine of 2,500 Russian roubles (about 30 euros) (“the exclusion order”). The length of the re-entry ban was not specified. The court did not examine the applicant’s allegation that the removal would violate his right to respect for his family life.

10.  The applicant appealed against the exclusion order to the Novosibirsk Regional Court. He stated, in particular, that the order violated his right to respect for his family life under Article 8 of the Convention; he was married to Ms A.K., who spoke only Russian, had lived all her life in Russia, and had no connection to Kyrgyzstan and would be unable to join him there.

11.  On 27 March 2018 the Novosibirsk Regional Court upheld the exclusion order, stating that the sanction had been imposed on the basis of the FSB’s decision of 7 December 2017 (see paragraph 6 above). The court did not examine the applicant’s allegation that his exclusion would have a disruptive effect on his family life.

12.  On 13 April 2018 the applicant was deported to Kyrgyzstan.

C.    Relevant information

13.  On 5 June 2018 the applicant, though his lawyers, requested the Gorno-Altayskiy Town Court to declare unlawful the decision concerning the undesirability of his presence in Russia (see paragraph 6 above). He stated, amongst other things, that the decision had been taken by the authorities on undisclosed grounds and that it violated his right to respect for his family life.

14.  On 11 July 2018 the Gorno-Altayskiy Town Court transferred the complaint for examination by the Supreme Court of the Republic of Altay, which on 1 October 2018 upheld the initial decision.

15.  On 27 February 2019, after examining further appeals by the applicant, the Supreme Court of the Russian Federation upheld the initial decision. From the text of that ruling, the applicant learnt that he was banned from re-entry into Russia until November 2052.

RELEVANT LEGAL FRAMEWORK

16.  For the relevant domestic law and practice, see Liu v. Russia (no. 2) (no. 29157/09, §§ 45-52, 26 July 2011), and Guliyev and Sheina v. Russia (no. 29790/14, §§ 25-34, 17 April 2018).

THE LAW

I.         ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

17.  The applicant complained under Article 8 of the Convention that the exclusion order was a disproportionate measure which violated his right to his respect for family life, contrary to 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

18.  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

19.  The applicant submitted that his exclusion from Russia until 2052 was a disproportionate measure and that the domestic courts had failed to balance the interests involved. In particular, he stated that the sanction in question had been imposed without any consideration of its effect on his family life. The domestic courts had disregarded his complaints to that effect and had failed to assess the necessity and proportionality of the sanction. Moreover, the courts had failed to examine the decision of 7 December 2017, its aim and justification, giving it predominant weight in relation to other considerations, such as compliance with the procedural safeguards against arbitrary exercise of the wide discretion of the executive authorities.

20.  The Government contested that the applicant’s exclusion from Russia had violated his right to respect for his family life. They submitted that the interference which had taken place was in compliance with Article 8 of the Convention. The Government submitted in general terms that the decision to declare the applicant’s presence in Russia undesirable and the ensuing exclusion order had been dictated by the need to protect national security and to comply with the immigration regulations, and that the relevant procedure had been followed.

21.  The Government further noted previous breaches of the immigration regulations by the applicant and questioned his status as a long-term or a settled migrant in Russia. The Government argued that the applicant and his wife would not face insurmountable cultural and social difficulties if they moved to Kyrgyzstan. Finally, the term of the applicant’s exclusion was a relatively short one, until 2023.

2.     The Court’s assessment

22.  For a summary of the relevant applicable principles see Guliyev and Sheina (cited above, §§ 46-52), and Zezev v. Russia (no. 47781/10, §§ 37‑38, 12 June 2018).

23.  Turning to the case at hand, the Court observes that the Government’s submissions neither referred to any documents describing or substantiating the reasons for the decision on the undesirability of the applicant’s presence in Russia, nor specified whether any such documents had been examined by the domestic courts. It is not clear from the case file which documents provided them with information about the relevant acts ascribed to the applicant. Moreover, the case file indicates that no concrete evidence was examined by the courts when they upheld the decision of 7 December 2017 and then issued the exclusion order against the applicant (see paragraphs 9 and 11 above). In their submissions to the Court, the Government did not outline, however broadly, the basis for the security services’ allegations against the applicant (see, by contrast, Liu (no. 2), cited above, § 75, and Amie and Others v. Bulgaria, no. 58149/08, §§ 12‑13 and 98, 12 February 2013).

24.  The Court also notes that the information concerning the previous administrative sanctions, as well as the applicant’s status in Russia and the possibility of the family moving to Kyrgyzstan, were not the subject of examination by the domestic courts. Therefore, those arguments cannot be relied upon in the Court’s analysis of the proportionality of the measure ordered.

25.  The Court further notes that the Government stated in their submissions that the applicant’s exclusion from Russia was effective until 2023, whereas the domestic court’s decision stated that the ban on his re‑entry into the country was effective until November 2052 (see paragraph 15 above).

26.  The Court therefore finds that in the proceedings concerning the applicant’s appeals against the exclusion order, the courts focused their attention on the fact that his presence had been declared undesirable by the FSB’s decision of 7 December 2017 and made their decision to expel him on that basis. They gave the decision of 7 December 2017 predominant weight and failed to verify any of the relevant facts such as the basis on which it was made or to examine the effect of the applicant’s exclusion on his family life. Consequently, the courts failed to take into account the considerations and principles established by the Court and failed to apply standards which were in conformity with Article 8 of the Convention (see paragraph 22 above).

27.  On the basis of the above, the Court finds that the proceedings in which the decision on the applicant’s exclusion was taken 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 when assessing whether the measure was “necessary in a democratic society” and proportionate to the legitimate aim pursued.

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

II.      APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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.”

30.  The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed EUR 1,920 for costs and expenses incurred in the proceedings before the Court and the domestic authorities. The amount claimed comprised EUR 480 for the legal services of Ms D. Trenina, EUR 660 for the legal services of K. Zharinov and EUR 780 for the legal services of Ms E. Davidyan, to be paid directly to the representatives’ accounts as indicated by the applicant.

31.  The Government submitted that the claim for non-pecuniary damage was excessive and that the claim for costs and expenses was neither duly substantiated nor showed that the expenses incurred had been necessary.

32.  On the basis of the parties’ submissions and its case-law, the Court awards the applicant EUR 10,000 as claimed in respect of non-pecuniary damage and EUR 1,920 as claimed in respect of costs and expenses, plus any tax that may be chargeable to the applicant on those amounts.

33.  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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,920 (one thousand nine hundred and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the representatives’ accounts as indicated by them;

(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.

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

Olga Chernishova                                                            Georgios A. Serghides
Deputy Registrar                                                                       President