European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF SMIRNOV AND NOVOSELOVA v. RUSSIA

(Application no. 11005/19)

 

 

 

 

JUDGMENT

 

STRASBOURG

26 July 2022

 

 

 

 

 

 

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

 

In the case of Smirnov and Novoselova v. Russia,

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

          María Elósegui, President,
          Andreas Zünd,
          Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 11005/19) 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”) on 15 February 2019 by a Belarusian national Mr Sergey Leonidovich Smirnov and a Russian national Ms Svetlana Vladimirovna Novoselova, born in 1969 and 1980 respectively (“the applicants”) who were represented by Mr A.S. Bryazgunov, a lawyer practising in Perm. The second applicant lives in Perm, prior to his expulsion from Russia the first applicant also lived there;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 5 July 2022,

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

SUBJECT MATTER OF THE CASE

1.  In 2003 the first applicant arrived in Russia to join his parents and siblings, all Russian nationals, who lived in Perm. Prior to leaving Belarus, he had separated from his wife and a child who stayed there. In 2008 he started cohabiting in Perm with the second applicant and her child. In November 2011 the applicants had a daughter; the first applicant was not officially registered as her father until 2019 (see paragraph 8 below). The first applicant worked in car repair shop co-owned with the second applicant.

2.  In August 2014 the first applicant’s Belorussian passport expired. In August 2018 he drove to Belarus to have it renewed, but to no avail. On 30 August 2018 he drove back to Russia.

3.  On 1 September 2018, on his drive back to Perm, the first applicant was stopped by the police for a violation of traffic regulations. Upon the check of his documents, on 3 September 2018 he was charged with a violation of Article 18 § 1.1 of the Russian Code of Administrative Offences (“the CAO”) ‑ failure to comply with residence regulations for foreigners.

4.  On 3 September 2018 the first applicant was taken to the Sverdlovskiy District Court in Perm which found him guilty of breaching the above‑mentioned provision, fined him 2,000 Russian roubles (RUB) (about 30 euros (EUR)) and issued decision on his administrative removal from Russia with subsequent five-year re-entry ban (removal order). The court’s decision stated that the first applicant’s Belorussian passport had expired and that he had not taken any steps to regularise his immigration status in Russia. Although the decision mentioned that his parents and siblings lived in Russia, no mentioning of his family life with the second applicant and their children, nor of their car repair family business was made.

5.  The first applicant appealed against the above decision to the Perm Regional Court alleging that the removal order would disrupt his family life. He stressed that the first instance court had ignored his allegations of family life with the second applicant and children and that his relatives and neighbours could testify that he was cohabiting with his family for a number of years, and that he was the family’s breadwinner. He had neither personal contacts nor family left in Belarus, no place of residence, or financial means to live in that country if expelled there.

6.  On 19 September 2018 the Regional Court upheld the removal order referring in general terms to the first applicant’s failure to regularise his immigration status in Russia. As for the applicants’ family life, the court stated that there was no official proof of its existence.

7.  On 29 September 2018 the first applicant received a temporary identity document issued by the embassy of Belarus in Russia. On 5 December 2018 he was deported from Russia; his re-entry was banned for five years from that date.

8.  In 2019 the first applicant was registered as the father of the applicants’ daughter (see paragraph 1 above) and the applicants registered their marriage. According to them, they could not have done that earlier as the first applicant’s marriage in Belarus was officially dissolved only earlier that year.

9.  The applicants complained under Article 8 of the Convention that the removal order issued against the first applicant was a disproportionate sanction which disrupted their family life.

THE COURT’S ASSESSMENT

10.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11.  The relevant general principles have been summarized in Guliyev and Sheina v. Russia, no. 29790/14, §§ 46-52, 17 April 2018.

12.  In the Government’s submission, the complaint was manifestly ill‑founded as the removal order was a proportionate sanction and the domestic courts fairly balanced the interests involved. The first applicant failed to provide evidence of his family life with the second applicant and their children. His marriage to the second applicant and the paternity in respect of their daughter were officially registered only after his removal from Russia.

13.  The documents submitted show that from the beginning of the proceedings the first applicant was consistent in his statements concerning his family life with the second applicant and their children (see paragraphs 4 and 5 above). Therefore, according to the Court’s concept of “family life”, there can be no doubt that in the instant case it existed within the meaning of Article 8 of the Convention (see paragraph 11 above).

14.  The domestic courts neither took into account the position of the applicants’ minor child (see paragraph 8 above) as the first applicant’s paternity in respect of her was not officially registered at the material time, nor verified the length of the applicants’ cohabitation as a family and their joint work in the family business (compare to Guliyev and Sheina, cited above, § 57). Therefore, the courts neither carefully balanced the interests involved, nor analysed the proportionality of the removal order and the subsequent five year re-entry ban to the aim pursued and its impact on the applicants’ family life. Consequently, they failed to apply standards which were in conformity with the Convention.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  The applicants claimed 10,000 euros (EUR) jointly in respect of non‑pecuniary damage and 750 euros (EUR) in respect of costs and expenses.

17.  The Government submitted that the claims were respectively, excessive and unsubstantiated.

18.  The Court awards the applicants 7,500 EUR jointly in respect of non‑pecuniary damage and EUR 750 for costs and expenses, plus any tax that may be chargeable on those amounts to the applicants.

19.  The Court further 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 complaint concerning Article 8 of the Convention 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 applicants, 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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 July 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                                 María Elósegui
          Deputy Registrar                                                      President