CASE OF GULIYEV AND SHEINA v. RUSSIA

THIRD SECTION

CASE OF GULIYEV AND SHEINA v. RUSSIA

(Application no. 29790/14)

JUDGMENT

STRASBOURG

17 April 2018

FINAL

17/07/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Guliyev and Sheina v. Russia,

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

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 27 March 2018,

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

PROCEDURE

1. The case originated in an application (no. 29790/14) 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 an Azerbaijani national, Mr Natig Yakhya-Ogly Guliyev, and a Russian national, Ms Yulia Yuryevna Sheina (“the applicants”), on 26 March 2014.

2. The applicants were represented by Mr B. I. Ponosov, a lawyer practising in Ocher. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicants alleged that the first applicant’s expulsion from Russia had violated their right to respect for their family life under Article 8 of the Convention.

4. On 2 December 2015 the application was communicated to the Russian Government. The Government of Azerbaijan did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background information

5. The applicants, who are married, were born in 1975 and 1988 respectively. The second applicant lives in Perm; prior to his expulsion in March 2014, the first applicant also lived there.

6. On an unspecified date in 2002 or 2003 the first applicant arrived in Russia. It is unclear on what legal basis he resided there. He never applied for a residence permit or Russian nationality.

7. At some point in 2004 the first applicant started living with the second applicant. The Government did not dispute that fact.

8. The Government submitted that in April 2007 the first applicant was fined 2,000 Russian roubles (RUB) (about 60 euros (EUR)) for a breach of Article 18.8 of the Code of Administrative Offences (living on Russian territory without a valid residence permit or non-compliance with the established procedure for residence registration).

9. In 2007 and 2011 the applicants’ two children, T.S. and D.S., respectively, were born. The first applicant was not officially registered as their father, however, both children had his name indicated on the birth certificates as their patronym.

10. On 4 August 2012 the first applicant arrived in Russia from Azerbaijan. Under the bilateral visa-free agreement of 1997 between the countries, his stay was authorised until 2 November 2012.

11. On 10 August 2012 the applicants concluded a religious marriage in the Perm congregational mosque and continued to reside together in Perm. They furnished the Court with a copy of the marriage certificate.

12. It can be seen from the case documents that on 21 September 2012 the first applicant was shot in the left leg. As a result of the gunshot wound he was hospitalised and underwent several operations. He was released from hospital on 31 December 2012.

B. The first applicant’s expulsion and the relevant proceedings

13. On 13 December 2013 the first applicant was detained by the police for a breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for a renewal of his period of authorised stay, which had expired on 2 November 2012. In his statement to the police, which was submitted to the Sverdlovsk District Court in Perm on the same date, the first applicant stated that he had been living in Russia for twelve years, that he resided with the second applicant as a family and that they had two children. He further stated that they had not officially registered their marriage and his paternity in respect of the children had not yet been officially established. He explained that he had overstayed the term of the authorised stay as he had been shot in the leg on 21 September 2012, which had resulted in several operations and his admission to hospital, ending on 31 December 2012; doctors had recommended that he not stay seated for longer than two hours and that considering that the trip to the border with Azerbaijan took more than ten hours, he had decided to stay in Russia until the injury had completely healed.

14. On 13 December 2013 the Sverdlovsk District Court in Perm ordered that the first applicant be fined RUB 2,000 and that he be subjected to administrative removal (expulsion) from Russia to Azerbaijan, which also implied a subsequent five-year entry ban. The court stated, inter alia, as follows:

“[...] as can be seen from the documents that have been submitted, [the applicant] Mr Guliyev has stayed in the Perm Region without lawful grounds from 3 November 2012 to 12 December 2013 [...]

The court takes into account the factual circumstances of the case, the information concerning Mr Guliyev’s character: ... the applicant has never had administrative proceedings opened against him and has fully admitted his guilt in the commission of the administrative offence. The court finds it necessary to choose an administrative fine with subsequent administrative removal from the country as he has been residing in Russia without a legal basis and without having a work permit. When choosing the punishment the court is unable to take into account Mr Guliyev’s minor children as he has not legally registered his paternity in respect of them ...”

15. The first applicant appealed against the decision, alleging that his removal and five-year re-entry ban would constitute a disproportionate measure in view of his family life with the second applicant and their children. In particular, he stated that his wife, the second applicant, was pregnant with their third child, that they had two children, that he was the family’s breadwinner and that the leg injury had precluded him from regularising his stay in Russia in a timely manner.

16. On 17 December 2013 the first applicant was officially registered as the father of the minors T.S. and D.S.

17. On 26 December 2013 the Perm Regional Court examined the appeal and upheld the decision of 13 December 2013 stating, amongst other things, as follows:

“[...] in the appeal the applicant’s representative requested that the court change the decision by excluding administrative removal from the punishment. Mr Guliyev lives with Ms Sheina, he has two dependent children, and he is the sole breadwinner for the family. Mr Guliyev’s paternity has been officially registered and confirmed by evidence. Presently Ms Sheina is pregnant with Mr Guliyev’s third child in respect of whom he would also establish paternity ... [he] believes that administrative removal and its negative consequences would violate his right to respect for his family life ...

[...] as can be seen from the case file, the applicant has been unlawfully residing in Russia for more than a year. There are no reasons to believe that the applicant was prevented from leaving the country for a long time. The applicant’s statement and that of Ms Sheina that he was not able to move around owing to the injury have not been confirmed by relevant evidence ... the case file contains documents showing that the applicant was hospitalised from 23 to 31 December 2012 with a fracture of the left hip ... it was recommended that he minimise the burden on the leg for three months after the release from hospital. Other documents demonstrating that his mobility was limited have not been submitted to the court ...

The administrative punishment has been chosen in respect of Mr Guliyev in accordance with Article 41 of the Code of Administrative Offences and is the minimum prescribed by paragraph 1 of part 1 of Article 18.8 of the Code of Administrative Offences, according to which administrative removal represents a compulsory element of the punishment along with an administrative fine.

The kind of exceptional circumstances which could serve as a basis for excluding that type of punishment in accordance with international law are not present in this case ...

... There are no convincing arguments which would enable the court to conclude that Mr Guliyev intends to permanently reside in Russia, obtain the right to temporary residence and (or) acquire Russian citizenship.

The marriage with Ms Sheina has not been officially registered ... paternity in respect of the two minors [T.S. and D.S.] was established after the District Court’s decision to administratively remove Mr Guliyev ... in connection with that the certificates of paternity provided to this court cannot be taken into account. There are no reasons to believe that Mr Guliyev had not had the opportunity prior to that to register his marriage with Ms Sheina and the paternity ... it is impossible to conclude from the case file that Mr Guliyev’s income is the only source of income for Ms Sheina and the minor children ...”

18. The applicants officially registered their marriage on 21 February 2014.

19. On 6 March 2014 the first applicant was expelled from Russia.

20. On 8 July 2014 the Supreme Court upheld by supervisory review the first applicant’s removal.

C. Subsequent developments

21. On 23 July 2014 the applicants’ third child, R.Sh., was born. He remained in the intensive care unit owing to a congenital heart condition.

22. On 11 August 2014 the applicants lodged a request for the application of Rule 39 of the Rules of Court, asking the Court to take measures to lift the first applicant’s re-entry ban in order to enable him to visit his child in hospital.

23. On 12 August 2014 the Court refused to grant the interim measure and asked for factual information from the Government.

24. On 18 August 2014 the Government informed the Court that R.Sh. had a very serious heart condition, that he was being treated in intensive care and that his state of health prevented him from travelling. The Government further stated that domestic legal provisions did not provide for any exceptions to the five-year re-entry ban.

II. RELEVANT DOMESTIC LAW

A. Foreigners Act

25. Until 2002 foreign nationals with temporary residence status were not required to apply for a residence permit. Their stay in Russia was lawful as long as their visa remained valid. On 25 July 2002 Law no. 115-FZ on the Legal Status of Foreign Nationals in the Russian Federation (“the Foreigners Act”) was passed. It introduced the requirement of residence permits for foreign nationals.

26. Section 5(2) of the Act provides that a foreign national must leave Russia after the expiry of the authorised period, except when on the date of expiry he has already obtained an authorisation for an extension or renewal, or when his application for extension and the relevant documents have been accepted for processing.

27. A foreign national married to a Russian national living in Russia is entitled to a three-year residence permit (разрешение на временное проживание, section 6(1) and section 6(3)(4)).

28. The local department of the Federal Migration Service examines an application for a three-year residence permit within six months. It collects information from the security services, bailiffs’ offices, tax authorities, social security services, health authorities and other interested bodies which must, within two months, submit information about any circumstances within their knowledge which might justify refusal of a residence permit. On receipt of such information the local department of the Federal Migration Service or the local police decides whether to grant or reject the application (section 6(4) and (5)).

29. A three-year residence permit may be refused only in certain cases, which are exhaustively defined, such as where the person has been found guilty of an administrative offence relating to an infringement of residency regulations on two or more occasions within the same year (section 7(1)(7)). In addition, no three-year residence permit may be issued for five years following a person’s administrative removal or deportation from Russia (section 7(1)(3)).

30. While the three-year residence permit remains valid a foreign national may apply for a renewable five-year residence permit (вид на жительство). Such applications are only possible after the foreign national has lived in Russia for at least a year on the basis of a three-year permit (section 8(1)-(3)).

31. A foreign national who has the status of a permanent resident in Russia has to submit annual notifications to the migration authorities to confirm that he or she continues to live in Russia. The notifications can be submitted in person, by post or by electronic means of communication (section 8(6)).

32. In decision no. 86-AD05-2 of 7 December 2005, the Supreme Court of Russia considered that it was incumbent on a national court to examine whether enforcement of a deportation order was compatible with Article 8 of the Convention. Given that section 7 of the Foreigners Act prevented a deportee from applying for a temporary residence permit for five years, “a serious issue [could] arise as to an interference with [a person’s] right to respect for their family life”. In another decision, the Supreme Court varied its reasoning, stating that enforcement of a deportation order “results in the violation of fundamental family ties and impedes family reunification” (decision no. 18-AD05-13 of 24 January 2006). The Supreme Court subsequently considered that a deportation order should be based on considerations which confirm the necessity for such a measure, “as the only possible way of ensuring a fair balance between public and private interests” (decision no. 86-AD06-1 of 29 March 2006).

B. Code of Administrative Offences

33. As of July 2013 Article 18.8.1 of the Code of Administrative Offences provides that a foreign national who infringes the residence regulations of the Russian Federation, including by living on the territory of the country without a valid residence permit or by non-compliance with the established procedure for residence registration, will be liable to an administrative fine of RUB 2,000 to 5,000 and administrative removal. Under Article 28.3 § 2 (1) a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 § 2 requires the report to be transmitted immediately to a judge. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation must be made by a judge of a court of general jurisdiction. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to an ordinary court or to a higher court.

C. Entry and Departure Procedures Act

34. Section 27(2) of Federal Law no. 114-FZ on the Procedure for Entering and Leaving the Russian Federation (“the Entry and Departure Procedure Act”) provides that a foreign national who has been deported or subjected to administrative removal from Russia may not re-enter the country for five years.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

35. The applicants alleged under Article 8 of the Convention that the first applicant’s expulsion had violated their right to respect for their family life. In particular, they complained that the expulsion and subsequent re-entry ban had been a disproportionate measure and that the domestic courts had failed to balance the private and public interests at stake. Article 8 of the Convention 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. The parties’ submissions

1. The Government

36. The Government contested the applicants’ argument and stated that there has been no violation of the applicants’ rights to respect for their family life.

37. Referring to the case of Muradeli v. Russia (no. 72780/12, § 75, 9 April 2015), the Government argued that the first applicant’s family ties in Russia were not strong as the applicants had only registered their marriage and the first applicant’s paternity of their children after his expulsion had been ordered. The applicants’ reference to their unofficial religious marriage had not demonstrated the validity of their family ties. The applicants had not furnished any evidence that the first applicant was the family breadwinner. His explanations concerning the leg injury had not been sufficient to justify the delay in regularising his immigration status. Furthermore, the first applicant had arrived in Russia at a mature age, twenty-seven, which demonstrated that he could not be considered as either a long-term or a settled migrant. He had never applied for a residence permit or Russian nationality and he had relatives in Azerbaijan. The Government further stated that the first applicant had already been fined in 2007 for a failure to regularise his stay in Russia and that that fact had been taken into account by the domestic courts when deciding on his administrative removal.

38. The Government provided the Court, as examples of domestic case‑law in which competing interests were balanced, with extracts from two cases concerning foreign nationals, Mr Sh.G. and Mr M.U., where courts in the Perm Region had not ordered their administrative removal for an administrative offence as, in the courts’ view, their removal would have violated their right to respect for their family life. In particular, as regards Mr Sh.G., a national of Azerbaijan, on 16 September 2015 the Perm Regional Court overruled the decision on his administrative removal taken by the Sverdlovskiy District Court in Perm as disproportionate. The Regional Court took into account that Mr Sh.G. had lived in Russia for almost twenty years, that he had finished school and a training college in Russia and that he maintained relationship with his relatives in Russia and did not have family or place of residence in Azerbaijan. As for Mr M.U., a national of Uzbekistan, on 18 November 2013 the Ordzhenikidzevskiy District Court in Perm fined him for residing in Russia without a valid residence permit, but decided not to impose on him the administrative removal. It found that the removal was a disproportionate measure in view of Mr M.U.’s residence in Russia since 2006 and his marriage in 2010 to a Russian national with whom he had two children. It is the Government’s contention that the instant case was, however, different from these cases for the reasons set out above (see paragraph 38 above).

39. The Government further stated that the application in respect of the second applicant should be rejected as incompatible ratione personae as she had not applied to domestic courts.

2. The applicants

40. The applicants argued that they had had a genuine family life with their children in Russia, which had been disrupted by the first applicant’s expulsion. The domestic courts had failed to weigh the proportionality of the impugned measure by omitting to examine their arguments and deciding on the expulsion without verifying the relevant facts.

41. The applicants submitted that they had exhausted domestic remedies and that in any case the procedure of appeals against administrative removal had not provided for the second applicant’s participation as a party; nonetheless, she had been involved by providing witness statements.

42. The applicants provided the Court also with extracts from two cases about foreign nationals, Mr A.T. and Mr A.S., which had been examined by the courts in the Perm Region in 2013 as examples of domestic case-law in which the courts had not ordered administrative removal in addition to a fine to avoid a violation of the right to respect for family life. In particular, in respect of Mr A.T., a national of Uzbekistan, who had overstayed the authorised term of his residence in Russia, on 7 November 2013 the Perm Regional Court overruled the decision on his administrative removal taken by the Sverdlovskiy District Court in Perm having found that the removal was a disproportionate measure. Its conclusion was based on the finding that for three years Mr A.T. had cohabited with a Russian national Ms V.A. without officially registering their marriage and that they had a son together. As for the case of the Ukrainian national Mr A.S., on 8 October 2013 the Perm Regional Court overruled his administrative removal ordered by the Ordzhenikidzevskiy District Court in Perm as a disproportionate measure. The Regional Court took into account the fact of Mr A.S.’s cohabiting for three years with a Russian national Ms N.A., that they had a daughter as well as that Mr A.S. was the family’s breadwinner. In its ruling the Regional Court noted that the paternity over the child had been officially established only after the court of the first instance had decided to expel Mr A.S. from Russia.

B. The Court’s assessment

1. Admissibility

43. The Court notes that its settled case-law on the examination of complaints concerning the right to respect for family life under Article 8 of the Convention implies examination of the complaints lodged by the persons in respect of whom the impugned measure was imposed and/or by their family members (see, among many examples, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 62, Series A no. 94; Darren Omoregie and Others v. Norway, no. 265/07, §§ 53 and 55, 31 July 2008; and Antwi and Others v. Norway, no. 26940/10, §§ 59 and 87, 14 February 2012). The court does not see any reasons to depart from this approach in the present case. Therefore the Government’s objection ratione personae in respect of the second applicant must be dismissed.

44. As far as the Government’s objection in respect of the second applicant could also be understood as being a non-exhaustion argument, the Court notes the following. According to its well-established case-law on the matter, it is for the Government claiming non-exhaustion to satisfy the Court that the remedy they referred to was an effective one, available in theory and in practice at the relevant time, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, among many authorities, Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II, and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 225, ECHR 2014 (extracts)). The Court notes, firstly, that in the present case the Government have neither specified which domestic court proceedings would have been an effective remedy for the second applicant, nor provided any examples to that end. Secondly, the applicants were the victims of the same alleged violation of their rights, therefore the second applicant was not required to exhaust remedies which proved to be futile for the first applicant (see, mutatis mutandis, Finogenov and Others v. Russia (dec.), nos. 18299/03, 27311/03, § 196, 18 March 2010). For those reasons, the Government’s objection should be dismissed.

45. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General considerations and relevant principles

46. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94). Confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the applicant to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (see Darren Omoregie and Others v. Norway, no. 265/07, § 64, 31 July 2008, and B.V. v. Sweden (dec.), no. 57442/11, 13 November 2012).

47. Where immigration is concerned, Article 8 cannot be considered as imposing a general obligation on a State to respect the choice of married couples of the country of their matrimonial residence and to authorise family reunion on its territory (see Gül v. Switzerland, 19 February 1996, § 38, Reports of Judgments and Decisions 1996‑I). Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Butt v. Norway, no. 47017/09, § 78, 4 December 2012).

48. The removal of a person from a country where close family members are living may amount to an infringement of the right to respect for family life, as guaranteed by Article 8 § 1 of the Convention (see Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001‑IX).

49. An important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998, and Butt, cited above, § 78).

50. Where children are involved, their best interests must be taken into account and national decision-making bodies have a duty to assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non‑national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014; X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013; and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010).

51. The Court reiterates that the notion of the “family” is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside of marriage (see Al-Nashif v. Bulgaria, no. 50963/99, § 112, 20 June 2002). A child born out of such a relationship is ipso jure part of that “family” unit from the moment and by the very fact of his birth. Thus, there exists between the child and his parents a bond amounting to family life (see Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000‑VIII). In addition, when deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have children together (see Şerife Yiğit v. Turkey [GC], no. 3976/05, §§ 96-98, 2 November 2010).

52. The Court’s task in exercising its supervisory function is not to take the place of the national authorities, but rather to review, in the light of the case as a whole, the decisions they have taken within their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles established in its case-law and, moreover, that they based their decisions on an acceptable assessment of the relevant facts. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001‑I, and Buckley v. the United Kingdom, 25 September 1996, § 76, Reports of Judgments and Decisions 1996‑IV).

(b) Application of these considerations and principles to the present case

53. Turning to the facts of the present case, the Court notes that it is common ground between the parties that the applicants started cohabiting in 2004, that their first child was born in 2007 and the second one in 2011, that in December 2013 the first applicant was officially registered as their father and that, after the first applicant’s removal, the applicants’ third child was born in July 2014. It is also undisputed that in February 2014 the applicants registered their marriage with the State authorities. The Court furthermore notes that from the documents submitted it follows that the first applicant, unlike the applicant in Muradeli (cited above) referred to by the Government, from the very beginning of the proceedings has been consistent in his statement that he had a family life with the second applicant and their children.

54. The Court observes that the gist of the Government’s argument is that the applicant did not have solid family ties as he had neither registered his marriage officially nor registered his paternity of the children until after the decision to remove him. At the same time, the Government did not dispute the contention that the applicants had lived together for about ten years prior to the first applicant’s expulsion and that they had three children.

55. In the light of case-law of the Court on the concept of “family life” (see paragraph 51 above), there can be no doubt that in the instant case there existed “family life” within the meaning of Article 8 of the Convention.

56. The Court furthermore reiterates that since the first applicant has not applied either for a residence permit or for Russian nationality despite of having arrived in Russia already in 2002 or 2003, he should have been aware of the precariousness of his residence status well before he commenced his family life in Russia. Where confronted with a fait accompli the removal of the non-national family member by the authorities would be incompatible with Article 8 only in exceptional circumstances. The Court must thus examine whether in the applicants’ case there are any exceptional circumstances which warrant a finding that the Russian authorities failed to strike a fair balance in expelling the first applicant, applying a subsequent five-year re-entry ban (see paragraph 49 above).

57. The Court notes that the domestic courts focused their attention on the fact that the applicants officially registered their marriage only after the decision to remove the first applicant had been taken and that it was held by the domestic courts that they were unable to take into account the position of the applicants minor children as the first applicant had not registered his paternity in respect of them before the decision to remove him had been taken (see paragraphs 14 and 16 above). The courts did not further verify relevant facts such as the length of the applicants’ cohabitation as a family, the second applicant being pregnant with their third child and the length of the first applicant’s re-entry ban following the expulsion (compare to Kaplan and Others v. Norway, no. 32504/11, § 98, 24 July 2014).

58. In the present case, unlike in the four cases referred to by the parties (see paragraphs 38 and 43 above), the domestic courts neither carefully balanced the different interests involved – including the best interests of the children – nor made a thorough analysis as to the proportionality of the measure applied against the first applicant and its impact on the applicants’ family life. Consequently, they failed to take into account the considerations and principles elaborated by the Court and to apply standards which were in conformity with Article 8 of the Convention (see paragraphs 46-52 above).

59. The proceedings in which the decision on the first applicant’s administrative removal was taken and upheld fell short of Convention requirements and did not touch upon all the elements that the domestic authorities should have taken into account for assessing whether the measure was “necessary in a democratic society” and proportionate to the legitimate aim pursued.

60. Accordingly, there has been a violation of Article 8 of the Convention in respect of the applicants.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. 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.”

A. Damage

62. The applicants did not make a claim in respect of pecuniary damage and sought 5,000 euros (EUR) each in respect of non-pecuniary damage.

63. The Government submitted that the applicants’ joined claim of EUR 10,000 should be rejected as excessive and unreasonable as the applicants’ rights had not been violated.

64. Having regard to the parties’ submissions and acting on an equitable basis, the Court awards the applicants EUR 7,500 jointly in respect of non‑pecuniary damage, to be paid to the account of the second applicant on behalf of both applicants.

B. Costs and expenses

65. The applicants also claimed compensation for the costs and expenses incurred before the Court and left the determination of its amount to the Court.

66. The Government submitted that the applicants had failed to state the sum requested and invited the Court to reject the claim as formulated in abstracto and unsubstantiated.

67. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable. The applicants’ claim under this head is not supported by any documentary evidence and is, accordingly, dismissed.

C. Default interest

68. 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 applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be paid to the account of the second applicant on behalf of both applicants;

(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 claim for just satisfaction.

Done in English, and notified in writing on 17 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
RegistrarPresident

 

Full & Egal Universal Law Academy