European Court of Human Rights

 

 

THIRD SECTION

CASE OF AL-TBAKHI v. RUSSIA

(Application no. 51973/18)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

4 October 2022

 

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

In the case of Al-Tbakhi 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. 51973/18) 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”) on 7 November 2018 by a Jordanian national, Mr Visam Mokhamed Farkhat Al-Tbakhi (“the applicant”), on 7 November 2018. He was represented by Ms O.A. Sadovskaya, a lawyer practising in Nizhniy Novgorod;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Russian Government (“the Government”), who were 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 13 September 2022,

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

SUBJECT MATTER OF THE CASE

1.  The applicant arrived in Russia in 1997. In 2000 he married a Russian national, Ms K.A. The couple lived in Nizhniy Novgorod; between 2001 and 2018 they had eight children, all Russian nationals.

2.  In May 2001 the Nizhniy Novgorod Regional Department of the Ministry of the Interior (the DMI) granted the applicant’s request for Russian nationality and in August 2001 he was issued the passport of a Russian citizen (national passport). In March 2010 he received new passport as his initial one had been lost. In August 2015 he successfully applied for travel passport (for the use abroad).

3.  On 3 November 2017 the Federal Security Service (the FSB) asked the DMI whether the applicant had Russian nationality. On 8 December 2017, upon a check carried out following the request, the DMI concluded that the issuance of the national and, consequently, the travel passports to the applicant was unjustified as he had not in fact acquired Russian nationality - the approval of his request for citizenship in 2001 had not been signed by the DMI’s head, which meant that the decision had not been taken.

4.  On 14 December 2017 the DMI seized the applicant’s national and travel passports and invalidated them.

5.  The applicant challenged the invalidation before the Sormovskiy District Court in Nizhniy Novgorod, stressing its negative consequences on his immigration status and his family life. On 12 February 2018 the court found that the impugned measure was lawful and that the applicant could lodge a new application for Russian nationality. That decision was upheld on 11 May 2018 by the Nizhniy Novgorod Regional Court and then finally on 13 March 2019 by the Supreme Court of Russia. The courts focused their analysis on the formal lawfulness of the invalidation and left the applicant’s arguments about its adverse effect on his personal and family life without due examination.

6.  Meanwhile, on an unspecified date in June 2018 the FSB issued an exclusion order declaring the applicant’s presence in Russia undesirable on undisclosed national security grounds and banned his re-entry into the country until 2048. Shortly thereafter, on 9 June 2018 the DMI refused to grant the applicant’s renewed request for nationality.

7.  The applicant challenged the above refusal before the Nizhegorodskiy District Court in Nizhniy Novgorod. On 24 October 2018 the court dismissed his action referring to the exclusion order. However, its contents were a State secret and therefore could neither be included into the case file nor divulged to the applicant. The applicant’s allegation of the refusal’s disruptive effect on his personal and family life were left unexamined. On 24 April 2019 the Nizhniy Novgorod Regional Court and then on 9 September 2019 the Supreme Court of Russia upheld that decision.

8.  While the applicant’s appeals against the DMI refusal of 9 June 2018 were pending, on 26 October 2018 he was detained for a violation of Article 18.8 of the Code of Administrative Offences, that is living in the country without authorisation. On the same date the Avtozavodskiy District Court in Nizhniy Novgorod found him guilty thereof, fined him 2,000 roubles (about EUR 30), ordered his administrative removal from Russia (the removal order) and detained him pending the removal. In its reasoning the court referred to the exclusion order, the contents of which were neither included in the court’s case file nor disclosed to the applicant. The applicant’s arguments of the removal’s negative impact on his personal and family life were left unexamined. On 8 November 2018 the Regional Court upheld the removal order on appeal.

9.  On 25 October 2019 the applicant was deported from Russia.

10.  In the proceedings before the Court the applicant alleged that the invalidation of his Russian passport, the issuance of the exclusion order against him and the ensuing administrative removal from Russia had breached Article 8 of the Convention.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

11.  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.

12.  The applicable principles could be found in Alpeyeva and Dzhalagoniya v. Russia, nos. 7549/09 and 33330/11, §§ 107-09, 12 June 2018; Gaspar v. Russia, no. 23038/15, §§ 38-45, 12 June 2018; and Usmanov v. Russia, no. 43936/18, §§ 52-56, 22 December 2020. In particular, the Court held that denial or revocation of citizenship might raise an issue under Article 8 if it is “arbitrary” and in view of its consequences for the applicant’s private life.

13.  In the absence of any arguments to the contrary and considering the consequences of the invalidation of his Russian passport for the applicant, the Court finds that this measure amounted to an interference with his rights guaranteed by Article 8 of the Convention.

14.  The domestic authorities burdened the applicant with severe consequences related to the irregularity that had occurred as a result of their own failure to duly comply with the relevant procedure more than sixteen years earlier. The situation was not remedied by the domestic courts, which failed to assess the applicant’s situation and the effects which the invalidation of the passport could entail on his private and family life. Their approach was excessively formalistic and fell short of the standards embodied in Article 8 of the Convention (compare with Usmanov, cited above, §§ 68-71).

15.  According to the Government, the opportunity to lodge another request for nationality provided by the domestic courts’ decision in 2018 duly remedied the authorities’ procedural mistake made in 2001. However, the examination of the renewed request resulted in the refusal to grant the nationality owing to the exclusion order issued shortly prior to that request and which subsequently served as the basis for the applicant’s removal from Russia. The applicant’s family situation which had developed after 2001 has not been properly examined at that point either (see paragraph 7 above).

16.  The documents submitted show that in the proceedings concerning the applicant’s appeals against both the exclusion and the removal orders the courts failed to comply with the relevant procedural guarantees: they neither provided the applicant with any information concerning the reasons why he was considered a danger to Russia’s national security nor allowed him to present any evidence to the contrary (compare with Gaspar, cited above, §§ 46-49). Furthermore, counter to Article 8 of the Convention, the courts failed to apply the general principles established by the Court and balance between the interests involved (see, for a similar situation, Eldesuki v. Russia, [Committee], no.12454/19, 7 June 2022].

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicant left the determination of the award in respect of non‑pecuniary damage to the Court’s discretion. He claimed 3,500 euros (EUR) in respect of costs and expenses incurred before the Court.

19.  The Government submitted that the claims were excessive and unsubstantiated.

20.  The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable on this amount.

21.  As for the costs and expenses, given that the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the fees billed by his representative or the expenses incurred by him (see Merabishvili v. Georgia [GC], no. 72508/13, § 327, 28 November 2017), the Court is not in a position to assess the claim.

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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage. This 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 4 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Olga Chernishova                                                 María Elósegui
          Deputy Registrar                                                      President