FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 16387/03
by Andrey DAVYDOV
against Estonia
The European Court of Human Rights (Fourth Section), sitting on 31 May 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 12 May 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andrey Davydov, is a Russian national who was born in 1969 and lives in Narva.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1978 the applicant settled, together with his parents, in Estonia. In 1991 he married a Russian national (born in Ivangorod, Russia) who holds a permanent residence permit in Estonia. Their son, born in the same year, is a Russian national and holds a permanent residence permit. The family lived in the city of Narva, separated by the border river Narva from the Russian city of Ivangorod.
In the beginning of the 1990s, having failed the Estonian language exam required for acquiring Estonian nationality, the applicant opted for Russian citizenship. From 1994 to 1997 he was employed in Ivangorod where he also had his registered residence. From 1994 (according to the applicant) or 1996 (according to the Estonian authorities) to 1997 he visited his family in Estonia. The applicant's parents live in Ivangorod, Russia; they are Russian nationals.
On 12 December 1997 the applicant was taken into custody on a criminal charge. On 24 March 1998, he was convicted of the unlawful possession of a firearm and sentenced to one year's imprisonment by the Narva City Court (Narva Linnakohus). On 16 June 1998 the Viru Court of Appeal (Viru Ringkonnakohus) reduced the sentence to six months' imprisonment, upholding the rest of the judgment.
On 8 February 1999 the applicant was convicted of aggravated hooliganism involving the use of a weapon, causing serious bodily injury in excess of self-defence and intentionally causing light bodily injury by the Narva City Court. He was sentenced to two years' imprisonment.
On 24 May 1999 the Narva City Court convicted the applicant of extortion and of the repeated offence of unlawful possession of a firearm. He was sentenced to two years and seven months' imprisonment. The aggregate sentence of imprisonment, which included the unserved part of the previous sentence, was set at three years, one month and 14 days.
On 4 January 2000 the Viru Court of Appeal quashed the City Court's judgment of 24 May 1999 in part. On 28 March 2000 the Supreme Court (Riigikohus) partly quashed the appeal court's judgment and referred the case back to the Court of Appeal. On 16 June 2000 the Court of Appeal quashed the City Court's judgment of 24 May 1999 in part and determined that the period of two years, six months and five days, during which the applicant had been detained on remand should be considered as having been served. The sentence still to be served was seven months and nine days.
In sum, the applicant was held in preliminary detention and detained after conviction in three separate criminal cases from 12 December 1997 to 26 January 2001. His wife visited him in prison.
On 27 November 2001 the Minister of the Interior refused a request by the applicant for a temporary residence permit in Estonia because of his criminal convictions. The Minister relied on sections 12(4)(5) and 12(4)(8) of the Foreigners' Act (Välismaalaste seadus). The Minister also referred to the fact that the applicant had maintained ties with his country of nationality and that all members of his family were Russian nationals, having a possibility to move to that country.
In February 2002 the applicant's wife gave birth to their second child. The family lives in Narva together with the parents of the applicant's wife in the parents' apartment.
On 14 June 2002 the Tallinn Administrative Court (Tallinna Halduskohus) annulled the order of the Minister of the Interior. On 29 November 2002 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) upheld the Minister's appeal. It found that the refusal to grant a residence permit had been lawful. On 5 February 2003 the Supreme Court refused the applicant leave to appeal.
B. Relevant domestic law
Section 12(4) of the Foreigners' Act lists the instances in which a residence permit cannot be issued or extended. Section 12(4)(5) provides that a permit cannot be issued or extended, if the foreigner applying for it has been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record has neither expired nor been expunged, or the information concerning the punishment has not been expunged from the punishment register. According to section 12(4)(8), a residence permit is denied to persons who have been repeatedly punished for intentional criminal offences. Section 12(5) of the Foreigners' Act, however, provides that, as an exception, a temporary residence permit may be issued or extended for the foreigner concerned, if this is not excluded on any other ground listed in the same provision.
COMPLAINTS
The applicant complains under Article 8 of the Convention that, as a result of the refusal to grant him a residence permit, he will be deprived of the right to enjoy family life.
He complains, relying on Article 4 of Protocol No. 7, that the refusal to grant him a residence permit subjected him to a second punishment for the offences he had committed.
He alleges that he has been discriminated against, in comparison with Estonian nationals, in violation of Article 14.
Finally, the applicant complains that Article 4 of Protocol No. 4 has been violated, since the Estonian authorities have proposed that he move to Russia together with his family.
THE LAW
1. The applicant complains that, as a result of the refusal to grant him a residence permit, he will be deprived of a possibility to enjoy family life and raise his children in the country where he was married and where his children were born. He refers to Article 8 of the Convention, which reads:
“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.”
The Court recalls that the Convention does not guarantee the right of an alien to enter or to reside in a particular country. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001‑IX).
It is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under Article 8 § 1, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; and Boultif, cited above, § 46).
As regards the specific circumstance of the present case, the Court notes that the applicant has not contested that the authorities' refusal to grant him residence permit was based on norms of domestic law. The Court is satisfied that the interference with the applicant's rights, guaranteed under Article 8, was “in accordance with law”. Furthermore, it is clear from the pertinent provisions of the Foreigners' Act and from the reasoning of the Estonian authorities that the refusal to grant the applicant a residence permit served the purposes of “national security” and “public safety” within the meaning of Article 8 § 2. The question remains whether the measure was “necessary in a democratic society” within the meaning of this provision.
The Court notes from the outset that the applicant has never resided in the Republic of Estonia on the basis of a residence permit granted by the Estonian authorities. He had been living in Estonia from 1978, but had opted for Russian nationality, after he had failed the Estonian language exam (required for naturalisation) in the beginning of the 1990s.
Furthermore, the applicant left Estonia in 1994 and was convicted and imprisoned for offences committed during his subsequent visits to Estonia. His stay in Estonia from December 1997 to January 2001 involved the serving of a prison sentence. In 2001 the authorities refused his application for a residence permit. The Court finds that these facts do not demonstrate the applicant's close and confirmed links with Estonia. The applicant has, on the other hand, maintained close links with his country of origin. All the applicant's family members are ethnic Russians and Russian nationals; his son goes to a Russian school in Narva and his parents live in Ivangorod, on the other side of the river from Narva. As from 1994 the applicant resided and worked there.
The Court finds that there are no substantial difficulties for the applicant in continuing his family life in Russia. Even if the rest of the family would not wish to move to Russia, it would certainly not be difficult for them to pay frequent visits to the applicant in that country.
The Court subscribes to the Estonian authorities' position that the refusal to grant a residence permit to the applicant was motivated by weighty public order considerations stemming from the fact that he had been convicted on three occasions of relatively serious crimes, involving the use of or unlawful possession of firearms. This fact, combined with the relative ease with which he could continue his family life in Russia or be visited by his family in Russia, leads the Court to conclude that there is no indication of a disproportionate interference with the applicant's right to family life.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains that the authorities' denial to grant him a residence permit amounts to a second punishment for the criminal offences he had committed. He invokes Article 4 of Protocol No. 7 to the Convention, the relevant part of which reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
The Court notes that this provision applies, as is clear from its text, to criminal proceedings. A refusal to grant a residence permit is an administrative measure, which does not amount to a criminal punishment within the meaning of the Article invoked by the applicant.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant further complains that he has been discriminated against, since Estonian nationals who commit even more serious crimes are, unlike him, not deprived of their right to family life. He invokes Article 14 of the Convention, which reads:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court reiterates that Article 14 safeguards individuals placed in similar situations from any discriminatory differences of treatment in the enjoyment of the rights and freedoms recognised in the Convention and its Protocols. However, in the instant case the applicant cannot be compared to Estonian nationals who have committed criminal offences. The latter have a right of abode in their own country and cannot be expelled from it; this is confirmed by Article 3 of Protocol No. 4 (see, mutatis mutandis, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 20, § 49).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. Finally, the applicant complains that Article 4 of Protocol No. 4 to the Convention has been violated, since the Estonian authorities have proposed that he move to Russia together with his family. The invoked provision reads as follows:
“Collective expulsion of aliens is prohibited.”
The Court notes that the applicant's wife and children have permanent residence permits in Estonia. They have not been deprived of their residence permits and there is no indication of any risk of that happening. The fact that the Estonian authorities referred to the possibility that the applicant's family members might lead their family life in Russia does not, in the Court's view, amount to collective expulsion.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy