European Court of Human Rights

 

 

THIRD SECTION

CASE OF MANDRYGIN v. RUSSIA

(Application no. 16623/19)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

20 September 2022

 

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

In the case of Mandrygin v. Russia,

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

          Darian Pavli, President,
          Andreas Zünd,
          Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 16623/19) 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 13 March 2019 by a Kazakhstani national, Mr Vitaliy Borisovich Mandrygin, born in 1979 and living in Kogalym (“the applicant”) who was represented by Ms Y. Chudnova, a lawyer practising in Kogalym;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Russian Government (“the Government”), initially represented by Mr A. Fedorov, 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 30 August 2022,

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

SUBJECT MATTER OF THE CASE

1.  Between 2009 and 2016 the applicant regularly visited Russia where four of his brothers, all Russian nationals, lived. His stay there was based on the bilateral visa agreement between the two countries authorising Kazakhstani nationals a visa-free stay in Russia for up to 90 days in 180 days.

2.  In 2016 the applicant started cohabiting in Kogalym with Ms I.L., a Russian national.

3.  On 2 October 2016 the applicant was fined 500 roubles (RUB) (8 euros (EUR)) and RUB 600 (EUR 10) for being drunk in public and failing to comply with police orders. He paid the fines on 3 October 2016. The information about the payment was processed by the bailiff’s office several months later (see paragraph 11 below).

4.  On 16 June 2017, when the applicant arrived at the Khanty Mansiysk town police department for the extension of his authorised stay which had expired on 10 June 2017, he was fined RUB 2,000 (EUR 40) for a breach of Article 18.8 of the Code of Administrative Offences (living without a valid residence permit or non-compliance with the procedure for residence registration). The applicant paid the fine.

5.  On the same date, 16 June 2017, the police authorised the applicant’s stay in Russia until 31 December 2017 as he had been hired by a local company. He was also granted a work permit and given a taxpayer’s number.

6.  On 15 September 2017 the police issued a decision on the prohibition of the applicant’s re-entry into Russia for five years (the exclusion order). The applicant was not informed thereof.

7.  On 21 November 2017 the applicant arrived at the police to apply for the extension of his stay in Russia. There he was informed of the exclusion order.

8.  On 24 November 2017 the applicant appealed against the exclusion order to the Kogalym Town Court (hereafter “the Town Court”) stating that until 17 November 2017 he had been unaware of its existence, that he was employed, paid taxes in Russia and had a family life with his Russian partner Ms I.L., with whom he owned joint property, that his four brothers lived in Russia and that the five-year exclusion would disrupt his family life.

9.  On 22 December 2017 the Town Court examined the case. The applicant’s partner, Ms I.L., and his neighbour, Ms A.V., testified before the court and confirmed the applicant’s submission.

10.  In its decision of 22 December 2007 the Town Court overruled the exclusion order. It stated that considering that the applicant lived in Russia since 2016, where his brothers, Russian nationals, also lived, that he was employed and paid taxes, that he had created a family with Ms I.L., who was also a Russian national, his exclusion for five years was neither proportionate nor necessary.

11.  The police appealed against the above decision to the Khanty‑Mansiysk Regional Court, which on 27 March 2018 overruled the Town Court’s decision and upheld the exclusion order. The Regional Court referred to the administrative infractions committed by the applicant on 2 October 2016 and 16 June 2017 respectively and the lack of official marriage to Ms I.L. Relying on the information from the bailiff’s office, the court stressed that the applicant had paid the fines for the two infractions of 2 October 2016 only in four months after they had been issued which showed his lack of respect to the laws of the Russian Federation; the court disregarded the fines’ payment confirmation enclosed by the applicant with the appeal (see paragraph 3 above).

12.  The applicant lodged cassation appeals against the exclusion order and stressed that he had paid the fines right away and enclosed the payment confirmation.

13.  On 10 October 2018 the Supreme Court of Russia endorsed the findings of the Regional Court and upheld the order.

14.  The applicant alleged that the exclusion order issued against him was an unnecessary and disproportionate sanction which violated his right to respect for family life under Article 8 of the Convention.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

15.  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.

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

17.  Given that it has found that the notion of the “family” is not confined solely to marriage-based relationships and may encompass other de facto “family” ties (see Al-Nashif v. Bulgaria, no. 50963/99, § 112, 20 June 2002), the Court finds that in the instant case there existed “family life” between the applicant and Ms I.L. within the meaning of Article 8 of the Convention (see paragraph 9 above).

18.  As to the Government’s submission that the exclusion order was a necessary and proportionate measure and the domestic courts duly examined the applicant’s appeals against it, the documents submitted do not substantiate that contention. They show, on the contrary, that the courts, albeit for the Town Court, neither carefully balanced the interests involved nor analysed the proportionality and necessity of the sanction to the aim pursued. They limited themselves to establishing the lack of official marriage between the applicant and Ms I.L. and the examination of the timing of the payment of the fines. No consideration was given to the impugned measure’s impact on the applicant’s family life. Therefore, the proceedings in which the decision on the applicant’s exclusion was taken and upheld fell short of the Convention requirements.

19.  Accordingly, there has been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant claimed 2,700 euros (EUR) in respect of costs and expenses.

21.  The Government submitted that the claim should be dismissed as unsubstantiated.

22.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 2,000 for costs and expenses, plus any tax that may be chargeable to him on this amount.

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 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses. The amount is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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 20 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Olga Chernishova                                                   Darian Pavli
          Deputy Registrar                                                      President