THIRD SECTION
DECISION
Application no. 68921/13
Orkhan Bakhtiyar Ogly NAMAZOV
and Olga Nikolayevna ALEKSEYEVA
against Russia
The European Court of Human Rights (Third Section), sitting on 18 September 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 November 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Orkhan Bakhtiyar Ogly Namazov and Ms Olga Nikolayevna Alekseyeva, are Azerbaijani and Russian nationals, who were born in 1985 and 1979 respectively and live in Glazov. Their application was lodged on 1 November 2013. They were represented before the Court by Mr B.I. Ponosov, residing in Ocher.
2. The Russian Government (“the Government”) were represented 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.
A. The circumstances of the case
1. Background information
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On an unspecified date in 1996 or 1997 the first applicant moved from Azerbaijan to Russia with his parents. In 1999 he unsuccessfully applied for Russian passport.
5. In 2000 the first applicant graduated from a school in Russia. In 2006 his parents became Russian nationals.
6. According to the Government, on ten occasions between 2003 and 2012 the first applicant was fined for violations of immigration regulations under Article 18.8 § 1 of the Code of Administrative Offences (living on the Russian territory without a valid residence permit or non-compliance with the established procedure for residence registration) and on five occasions between 2007 and 2008 for petty theft.
7. According to the applicants, between 2003 and 2011, the first applicant worked in a garage in Glazov.
8. On an unspecified date in 2011 the first applicant travelled to Azerbaijan where in May or June 2011 he obtained Azeri passport and then, on an unspecified date in November 2011, returned to Russia.
9. On 21 November 2011 the Udmurtia Department of the Federal Migration Service (the FMS) issued decision (the exclusion order) banning the first applicant’s entry into the Russian Federation until 28 July 2013 (решение о неразрешении въезда в Российскую Федерацию) owing to his record of violations of immigration regulations.
10. On 28 November 2011 the first applicant entered Russia from Azerbaijan (see paragraph 8 above). His stay in Russia was authorised until 22 February 2012. The Government contested that part of the applicants’ submission and stated that the first applicant unlawfully entered Russia from Azerbaijan on an unspecified date in February 2012.
11. On 11 February 2012 the first applicant married the second applicant and continued to reside in Glazov. According to the first applicant, on an unspecified date after that he lost the document (migration card) authorising the stay and enabling him to apply for its extension.
12. On 19 February 2012 the first applicant was fined under Article 18.8 § 1 of the Code of Administrative Offences for residing in Russia without a valid residence permit.
2. Decision concerning the first applicant’s administrative removal from Russia
13. On 30 September 2013 the first applicant was detained for living in Russia without authorisation.
14. On the same day, 30 September 2013, the Glazov District Court in Udmurtia (the District Court) examined his case. At the hearing, the first applicant stated that he lived in Russia since 1997, that he had graduated from local school, that his wife and parents live in Russia and that he had no relatives in Azerbaijan. He admitted to residing in Russia without authorisation as of 22 February 2012, and stressed that his departure to Azerbaijan in 2011 had been necessary to obtain the Azeri passport and then to regularise his stay in order to reside with his family in Russia.
15. The District Court found the first applicant guilty of an administrative offence punishable under Article 18.8 § 1 of the Code of Administrative Offences, fined him for 2,500 rubles (about 60 euros) and ordered his administrative removal (expulsion) from Russia. It invited him to leave Russia under the controlled departure procedure at his own expense. The court’s decision stated that he had committed a repeated administrative violation of the immigration regulations within one year without specifying the date of the first violation. The court left the first applicant’s submission concerning his personal and family life in Russia without examination.
16. The first applicant appealed against the District Court’s decision to the Supreme Court of Udmurtia (the Supreme Court) requesting the expulsion to be overruled as it implied a five-year entry ban and would therefore adversely affect his family life. He referred, in particular, to the fact that he was married to the second applicant, who was a Russian national, and that his mother, a Russian national, had cancer, and was dependent on him.
17. On 14 October 2013 the Supreme Court rejected his appeal and upheld the removal stating that the first applicant had failed to regularise his stay in Russia after 22 February 2012. The court, however, excluded from the District Court’s decision the reference to a repeated nature of the violation. The court did not examine the first applicant’s submission concerning the alleged impediment of the expulsion and the entry ban for his personal and family life. The court’s decision contained no references to either his record of administrative and criminal offences or the exclusion order. As the order became final and enforceable, the first applicant was to leave Russia on his own within five days of that date.
18. The first applicant further appealed against the removal to the Supreme Court by supervisory review procedure. In his appeal, he stated that his removal with the five-year entry ban would disrupt his personal and family life. In particular, he stated that his parents were Russian citizens who owned property and permanently resided in Russia; that he had lived in Russia since childhood and that his wife, the second applicant, was pregnant and that he had no family left in Azerbaijan.
19. On 12 December 2013 the Supreme Court upheld the administrative removal without examining the first applicant’s arguments concerning its adverse effect on his personal and family life.
3. Subsequent developments
20. On 19 December 2013 the first applicant was detained for failure to comply with the removal order of 30 September 2013 which became enforceable on 14 October 2013.
21. On 25 December 2013 (in the documents submitted the date was also referred to as 19 December 2013), the District Court examined the first applicant’s case. At the hearing, the first applicant submitted that he was residing in Russia since the age of eleven, that his parents were Russian citizens, that his wife was pregnant and unemployed and that he was the family’s breadwinner. Having examined his submission in detail, the court found him guilty of an administrative offence punishable under Article 20.25 § 1 of the Code of Administrative Offences (evasion of compliance with administrative punishment) and fined him for 5,000 rubles (about 120 euros). The court further stated that in view of the first applicant’s personal and family ties in Russia, his administrative removal would violate his right to respect for family life under Article 8 of the Convention.
22. From the documents submitted it transpires that the decision of 25 December 2013 was not appealed against and became final.
23. The removal decision of 30 September 2013 was never enforced and it expired in October 2015. The first applicant continues to reside in Russia.
B. Relevant domestic law
24. For a summary of the relevant domestic law and international materials see Muradeli v. Russia, no. 72780/12, §§ 45-55, 9 April 2015.
25. Article 31.9 of the Russian Code of Administrative Offences provides that a decision on administrative removal is enforceable within two years of becoming final.
COMPLAINT
26. The applicants complained under Article 8 of the Convention that the decision of 30 September 2013 on the administrative removal of the first applicant from Russia violated his right to respect for personal life and their right to respect for family life.
THE LAW
27. The applicants complained that the decision on the first applicant’s removal from Russia violated his right to respect for personal life and their right to respect for family life. 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.”
28. The Government contested that argument. They argued that whereas the impugned decision had constituted an interference with the applicants’ rights, it was proportionate and “necessary in a democratic society” for the following reasons.
29. The Government noted, firstly, that on ten occasions between 2003 and 2012 the first applicant had been fined for living in Russia without a valid residence permit (see paragraph 6 above). With a reference to Palanci v. Switzerland, no. 2607/08, § 58, 25 March 2014, the Government pointed out that considering the repeated nature of those violations, the first applicant should have known that he would be expelled from Russia for failure to comply with those regulations. Furthermore, being aware of the exclusion order of 11 November 2011 prohibiting his entry until 28 July 2013, he had entered the country and married the second applicant in February 2012 being aware of the unlawfulness of his stay in Russia.
30. The Government argued, secondly, with reference to Balogun v. the United Kingdom, no. 60286/09, § 53, 10 April 2012, that the first applicant’s age at the material time (28 years) along with the record of his numerous administrative and criminal offences, demonstrated his negative attitude towards the obligation to comply with Russian laws. In addition, considering that the date of his first arrival in Russia was unknown, he could not be considered as a long-term migrant. Unlike in the case of Alim v. Russia, no. 39417/07, 27 September 2011, where for a significant length of time the applicant resided lawfully in Russia, the first applicant in the present case had not taken any steps to regularise his stay and apply for either a temporary residence permit or the Russian passport.
31. With reference to the case of Dalia v. France, 19 February 1998, § 53, Reports of Judgments and Decisions 1998‑I, the Government further argued that the second applicant should have been aware of the unlawfulness of the first applicant’s stay in Russia when she married him in February 2012. Therefore, she should have understood the “instability of her ties” and family life with him. Furthermore, prior to the decision on the first applicant’s removal the applicants’ family life was not long and they had no children. The second applicant had no obstacles to moving with the first applicant to Azerbaijan and making it the country of their matrimonial residence.
32. The Government provided the Court with extracts of nine cases where domestic courts had not ordered administrative removal of persons guilty of an administrative offence as, in the courts’ view, their removal would violate their right to respect for family life.
33. The applicants argued that the decision to remove the first applicant and the five-year entry ban was a disproportionate punishment for the administrative offence committed by him. The applicants alleged that the domestic courts failed to examine their submissions concerning the adverse effect of the expulsion on their family life. In particular, the applicants pointed out that the courts completely disregarded their arguments concerning the length of the first applicant’s stay in Russia, their family life there and the fact that the second applicant had no connections with Azerbaijan and, therefore, could not move there with the first applicant.
34. The applicants alleged that the information furnished by the Government to the Court concerning the first applicant’s administrative and criminal records was not relevant to the proceedings and was submitted “to create negative image of the applicant before the Court”.
35. The applicants further submitted that at the age of fourteen, the first applicant had applied for the Russian passport but the authorities had refused his request. In the absence of an identity document, he could not apply for a residence permit in Russia and had had to obtain the Azerbaijani passport in 2011. The applicants stressed, in particular, that the first applicant’s stay in Russia in February 2012 during his marriage to the second applicant was lawful as otherwise he would not be able to officially register it with the State authorities.
36. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014).
37. 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).
38. The Court observes that the factors to be examined in order to assess the proportionality of the expulsion are essentially the same regardless of whether family or private life is engaged and, therefore, it shall examine them together (see Samsonnikov v. Estonia, no. 52178/10, § 82, 3 July 2012).
39. Turning to the facts of the present case, the Court notes that the parties partially disagree on the circumstances of the case.
40. The Court observes that assuming that the first applicant arrived in Russia for the first time at some point prior to 2000, at the time of the decision on his administrative removal in September 2013, he was residing in the country, albeit, unlawfully, for at least thirteen years. Furthermore, throughout that period his unlawful presence in the country had been known to the authorities as he had been fined on a number of occasions for violation of immigration regulations. Nonetheless, when initially deciding on his administrative removal, the domestic courts examined neither any of these circumstances nor his family ties with the second applicant (see paragraphs 15, 17 and 19 above).
41. However, the Court further observes that in the subsequent proceedings the domestic courts had demonstrated thorough approach and examined the first applicant’s submission concerning the adverse effect of the removal and the five-year entry ban on his personal and family life. Upon the detailed assessment of the relevant facts they concluded that impugned measure would violate his rights under Article 8 of the Convention (see paragraph 21 above). Furthermore, the removal order of 30 September 2013 against the first applicant was not enforced (see paragraph 23 above) and expired in October 2015.
42. In view of the above, the Court concludes that the applicants’ complaint under Article 8 of the Convention is manifestly ill-founded. It must therefore be dismissed under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 October 2018.
Fatoş AracıAlena Poláčková
Deputy RegistrarPresident
Full & Egal Universal Law Academy