Communicated on 2 December 2015
THIRD SECTION
Application no. 29790/14
Natig Yakhya-Ogly GULIYEV and Yuliya Yuryevna SHEINA
against Russia
lodged on 26 March 2014
STATEMENT OF FACTS
The applicants, Mr Natig Yakhya-Ogly Guliyev, an Azerbaijani national and Ms Yuliya Yuryevna Sheina, a Russian national, who were born in 1975 and 1988 respectively and live in Perm. They are represented before the Court by Mr B.I. Ponosov, a lawyer practising in Ocher.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
On an unspecified date prior to 2006 the first applicant arrived in Russia.
The applicants started living together as a family in 2006 in Perm. They were not officially married. In March 2007 and then in August 2011 the applicants’ two children, T.S. and D.S., were born. The first applicant was not officially registered as their father.
On 10 August 2012 the applicants concluded a religious marriage in a local mosque.
On 12 December 2013 the first applicant was detained by the police for the breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for the renewal of his residence permit which had expired in November 2012.
On 13 December 2013 the Sverdlovsk District Court in Perm ordered that the first applicant be fined for 2,000 Russian roubles (RUB) (about euros 50 (EUR)) and expelled to Azerbaijan with five-year re-entry ban. In its decision the court dismissed, inter alia, the applicant’s argument, that in December 2012 he had broken his left leg which precluded him from the timely renewal of the residence permit and reasoned as follows:
“... as it follows from the documents submitted, between 3 November 2012 and 12 December 2013 [the applicant] Mr Guliyev has been staying in the Perm Region without lawful grounds ...
The court takes into account the factual circumstances of the case, the information concerning Mr Guliyev’s personality: ... 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 legal basis, 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 established his paternity in respect of them ...”
The first applicant appealed the decision alleging that his removal and the ban would constitute a disproportionate measure in view of his family situation.
On 17 December 2013 the first applicant was officially registered as the father of the two minor children, Mr T.S. and Ms D.S.
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 lodged with the Perm Regional Court the applicant’s representative Mr S.M. requested the court to change the decision of the district court by excluding the administrative removal from the punishment. Mr Guliyev lives with Ms Sheina, he has two dependent children, he is the sole breadwinner for the family. Mr Guliyev’s paternity has been established and confirmed by evidence. Presently Ms Sheina is pregnant with Mr Guliyev’s third child in respect of whom he would also establish paternity... [the applicant] believes that the administrative removal with its negative consequences would violate his right to respect for family life ...
... as it follows 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 did not for a long time have a chance to leave the country. The applicant’s statement and that of Ms Sheina that he was not able to move around due to the trauma have not been confirmed by relevant evidence... the case file contains documents showing that the applicant was hospitalised between 23 and 31 December 2012 with splintered fracture of the left hip...it was recommended to him to minimise the burden on the leg within three months after the release from the hospital. Other documents demonstrating that he was limited in his movements have not been furnished 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 its minimum as prescribed by paragraph 1 of part 1 of Article 18.8 of the Code of Administrative Offences according to which administrative removal represents compulsory element of the punishment along with administrative fine.
Exceptional circumstances, which would serve as the basis for the exclusion of this 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... the paternity in respect of two minor children [Mr T. S. and Ms D.S.] was established after the court’s decision to administratively remove Mr Guliyev... in connection with this the certificates of paternity presented before the court cannot be taken into account. There are no reasons to believe that prior to that Mr Guliyev did not have an opportunity to register his marriage with Ms Sheina and to establish paternity... from the case file it is impossible to conclude that the income of Mr Guliyev is the only source of income for Ms Sheina and the minor children ...”
On 21 February 2014 the applicants officially registered their marriage.
On 6 March 2014 the first applicant was expelled from Russia to Azerbaijan.
On 8 July 2014 the Supreme Court upheld by supervisory review the first applicant’s expulsion and the five-year re-entry ban to Russia.
On 23 July 2014 the applicants’ third child, Mr R.Sh., was born and remained hospitalised due to congenital heart condition.
On 11 August 2014 the applicants lodged their request for the application of Rule 39 of the Rules of Court asking to the Court to take measures to lift the re-entry ban for the first applicant in order to enable him to visit his child Mr R.Sh. in the hospital.
On 12 August 2014 the Court asked for factual information from the Government.
On 18 August 2014 the Government informed the Court that the applicants’ son R.Sh. had a very serious heart condition, that he was being treated in intensive care and that his state of health precluded him from travelling. The Government further stated that the domestic legal provisions (in particular, they referred to Article 27 § 2 of the Entry and Exit Procedures Act (no. 114-FZ of 15 August 1996)) did not provide for any exceptions to the five year re-entry ban.
B. Relevant domestic law
For a summary of the relevant domestic law see Muradeli v. Russia, no. 72780/12, § 45-54, 9 April 2015.
COMPLAINT
The applicants complained under Article 8 of the Convention that the decision on the first applicant’s administrative removal from Russia and the five-year re-entry ban had violated their right to respect for family life. They argued, in particular, that the severity of the punishment, which had disrupted their family life, had been disproportionate to the gravity of the administrative offence of which the first applicant had been found guilty.
QUESTION TO THE PARTIES
Has there been a violation of the respondent State’s positive obligation under Article 8 of the Convention (see, for example, Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-109, 3 October 2014)? In particular, did the domestic authorities strike a fair balance between the grounds underlying their decision to expel the first applicant and his right to respect for family life?
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