Communicated on 10 November 2016
THIRD SECTION
Application no. 32737/16
Aram Ashotovich AKOPDZHANYAN
against Russia
lodged on 1 June 2016
STATEMENT OF FACTS
The applicant, Mr Aram Ashotovich Akopdzhanyan, is an Armenian national who was born in 1973. He is currently in Armenia. He is represented before the Court by Mr Y. Gusakov, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, an Armenian national, arrived in Russia on an unspecified date. Apparently soon afterwards he started to live with Ms Ya. in the town of Surgut, Khanty-Mansiysk Region. In 2002 they had a daughter, Z. In January 2014 they married.
The applicant was accused of causing bodily injuries to another person during a quarrel and, apparently, pleaded guilty under the summary criminal procedure. On 7 April 2014 the Surgut Town Court convicted the applicant as charged and sentenced him to eighteen months’ imprisonment. The applicant did not appeal. The judgment became final.
On 14 July 2015 the Federal Ministry of Justice issued an exclusion order against the applicant, with a duration limited to eight years (until 2023). The reasoning of the order was confined to references to section 25.10 of the Entry Act and section 31(11) of the Foreigners Act (see below).
On the basis of the exclusion order, on 6 October 2015 the Federal Migration Authority (FMA) issued a deportation order against the applicant. The reasoning of the deportation order was limited to references to the applicable legislation. On the same day, the FMA ordered the applicant’s placement in a special detention facility.
The applicant sought judicial review of the exclusion order. The case was to be examined by a court in Moscow.
On 24 November 2015 the Zamoskvoretskiy District Court of Moscow held a hearing and upheld the exclusion order. The applicant retained counsel and appealed. He tried in vain to have admitted certain pieces of evidence that were, according to him, pertinent to his defence against the exclusion order.
It is unclear whether the applicant sought any preliminary protection measure under Article 85 of the Code of Administrative Procedure (CAP).
On 17 December 2015 the applicant was deported. It appears that the applicant has no property in Armenia. He allegedly also has no social or other ties to that country.
On 18 March 2016 the Moscow City Court upheld the judgment of 24 November 2015. Referring to Article 8 of the Convention, the appeal court concluded as follows:
“Having regard to the applicant’s arguments relating to his private and family life, the court does not see sufficient elements to justify the application of the Convention to the present case ...
In recognising everyone’s right to respect for his private and family life, Article 8 of the Convention does not allow interference by a public authority with the exercise of that 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.
The relevant statute precisely provides for such exceptional situations; the exclusion order in respect of the applicant is based on that statute.
The fact that the applicant has a wife and a child in Russia does not, as such, constitute sufficient proof of an allegedly disproportionate interference by the State with his private and family life. That fact does not bar an exclusion order or a deportation order ... The fact that a foreigner has kin who have Russian citizenship does not absolve that foreigner from the necessity to conform to Russian laws and to bear responsibility for breaching them. There is no evidence substantiating any exceptional and objective circumstances of a personal nature that would support the conclusion of an excessive and unjustified interference by Russia into the applicant’s private or family life.”
The applicant has not received a certified copy of the appeal decision and has therefore not applied for further review of the above court decisions.
B. Relevant domestic law
1. Exclusion and deportation of foreigners
Section 25.10 of the Entry Act provides that the competent authority may issue an exclusion order against a foreigner if the authority considers that he or she poses a real threat to national security, public order or public health, or on account of the protection of the constitutional regime, morality or the legitimate rights of others.
Section 31(11) of the Foreigners Act provides that an exclusion order should be transmitted, within three days, to the competent migration authority, which then issues a deportation order.
2. Judicial review under the Code of Administrative Procedure
Since September 2015 the Code of Administrative Procedure has replaced the Code of Civil Procedure as regards various disputes involving public authorities.
Chapter 7 of the CAP provides for “measures of preliminary protection”, which a claimant may seek following the lodging of a case against the State. A court is empowered to grant them if:
(1) before resolving the case there is a manifest threat of a violation of the claimant’s rights, freedoms and legitimate interests; or
(2) the protection of the claimant’s rights, freedoms and legitimate interests will be rendered impossible or difficult without such measures.
Article 85 of the CAP empowers a court to suspend an impugned administrative decision, prohibit specific actions or issue other measures of preliminary protection. Such measures must be related to the impugned claim pending before the court and must be proportionate to such a claim.
Suspension is available until a court decision taken on judicial review becomes final (Article 86 § 1 of the CAP).
COMPLAINTS
Referring to Articles 6, 8 and 13 of the Convention, the applicant complains that the exclusion and deportation orders and the eight-year re-entry ban were arbitrary and disproportionate “interferences” with his family life and that the domestic non-judicial and judicial procedures were not “effective remedies”, in particular on account of the courts’ failure to consider various aspects of his family life in Russia and the appeal court’s refusal to admit certain items of new evidence.
QUESTIONS TO THE PARTIES
1. In not pursuing the cassation procedure under the Code of Administrative Procedure as regards his complaint under Article 8 of the Convention, has the applicant failed to exhaust domestic remedies (see, by way of comparison, Abramyan and Others (dec.), nos. 38951/13 and 59611/13, 12 May 2015)?
2. Was there a violation of Article 8 of the Convention on account of the exclusion and deportation orders and the eight-year re-entry ban? Was the “interference” in the present case (i) based on a “law” that met the quality‑of-law requirement, (ii) properly tailored to achieve any specific legitimate aim and (iii) proportionate to that aim?
3. Did the applicant have an effective remedy before a “national authority”, as required by Article 13 of the Convention, for his complaint under Article 8 of the Convention? Did the applicable legislation and judicial practice require a proper assessment of the proportionality and necessity of the exclusion and deportation orders, in the light of the pertinent criteria (see Üner v. the Netherlands [GC], no. 46410/99, §§ 56 and 57, ECHR 2006‑XII, and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-09, 3 October 2014)? Did the domestic authorities, including the courts, carry out such an assessment in the applicant’s case? If not, was there a violation of Article 13 of the Convention?
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