Communicated on 19 December 2013
FIRST SECTION
Application no. 72780/12
Robert Petrovich MURADELI
against Russia
lodged on 10 October 2012
STATEMENT OF FACTS
The applicant, Mr Robert Petrovich Muradeli, is a Georgian national who was born in 1969 and lives in Penza, the Russian Federation.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in Penza in 1993. In 1994 he married T. and in 1995 they had a son. At some stage they sold their flat and later bought another with a mortgage which they have to repay by 2027.
In 2002 the applicant received a residence permit valid until 10 August 2009, but failed to apply for its renewal in accordance with the applicable procedure. According to the applicant, the authorities refused to accept his application because his birth certificate was not enclosed. On 29 July 2009 the applicant was found guilty of infringing residency regulations, which amounted to an administrative offence under Article 18.8 of the Code of Administrative Offences. Between 10 August 2009 and 11 March 2011 the applicant lived in Russia without a residence permit. On 11 March 2011 he was granted a transit visa valid until 21 March 2011 so that he could leave Russia. According to the applicant, he went to Georgia to have his birth certificate reissued. At the same time he was refused the right to apply for a new residence permit until 14 September 2013 on the grounds that he had been found guilty of an administrative offence a number of times.
On 6 October 2011 the applicant returned to Russia through Belarus, where there is no visa regime for Georgian nationals. According to the applicant, passport control officials on the Belarus-Russian border explained to him that, having entered Russia from Belarus, he could stay in Russia without a visa for two or three weeks.
On 24 October 2011, in the course of an identity check conducted by the police, the applicant failed to present any documents that would authorise his stay in Russia. On the same date the Oktyabrskiy District Court of Penza found him guilty of infringing residency regulations under Article 18.8 of the Code of Administrative Offences, fined him 3,000 roubles (RUB) and ordered his administrative removal from Russia. The court noted the particular circumstances in which the offence had been committed, referred to the applicant’s financial and family situation and the fact that in 2011 he had been found guilty of an administrative offence, although the court did not indicate the exact date or other details of the offence. It further pointed out that it had been unaware of any circumstances that would prevent his removal from Russia, given the previous administrative offence and the authorities’ refusal to allow him to apply for a residence permit until 14 September 2013. The applicant appealed.
On 18 April 2012 the Penza Regional Court upheld the decision of 24 October 2011, noting that the Oktyabrskiy District Court had duly taken into account the information about the applicant, his financial and family situation, the previous administrative offence, the fact that between 10 August 2009 and 11 March 2011 he had lived in Russia without being duly registered, and that he had been refused the right to apply for a residence permit until 14 September 2013. The applicant appealed.
On 16 November 2012 the Supreme Court of Russia upheld the decisions of 24 October 2011 and 18 April 2012 under supervisory review. It noted, in particular, that the sanction imposed on the applicant was in accordance with the law and proportionate for the purposes of Article 8 of the Convention, since the courts had taken into consideration the nature of the offence, his financial and family situation and other circumstances.
B. Relevant domestic law
1. Foreigners Act
Until 2002 foreign nationals with temporary resident 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.
Section 5 § 2 of the Act provides that a foreign national should leave Russia after the expiry of the authorised period, except when on the date of expiry he has already obtained an authorisation for extension or renewal, or when his application for extension and the relevant documents have been accepted for processing.
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 3 (4)).
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 who 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 for a three-year residence permit (section 6 §§ 4 and 5).
A three-year residence permit may be refused only in exhaustively defined cases, 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)).
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 the three-year permit (section 8 §§ 1-3).
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 [the persons’] right for respect of 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 the family’s 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 of 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).
2. Code of Administrative Offences
Article 18.8 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 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 possible 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 a court or to a higher court.
Under Article 31.9 § 1 a decision imposing an administrative penalty ceased to be enforceable after the expiry of two years from the date on which the decision became final. Under Article 31.9 § 2 if the defendant impedes the enforcement proceedings, the limitation period specified in Article 31.9 § 1 is interrupted.
3. Entry and Leave Procedures Act
Section 27 § 2 of Federal Law no. 114-FZ on the Procedure for Entering and Leaving the Russian Federation (“the Entry and Leave Procedure Act”), provides that a foreign national who has been deported or subjected to administrative removal from Russia may not re-enter the territory for five years following his deportation or administrative removal.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the decision on his administrative removal from Russia violated his right to respect for his private and family life. He alleges, in particular, that although the domestic courts referred to his financial and family situation, they did not actually examine it.
The applicant also complains under Article 13 of the Convention that the severity of the punishment, which disrupted his private and family life, was disproportionate to the gravity of the administrative offence of which he was found guilty.
QUESTIONS TO THE PARTIES
1. Has the decision on the applicant’s administrative removal, upheld in the final instance by the Supreme Court of Russia on 16 November 2012 been executed?
2. Has there been a violation of the applicant’s right to respect for his private or family life, contrary to Article 8 of the Convention (see, for example, Alim v. Russia, no. 39417/07, §§ 77-100, 27 September 2011)?
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