THIRD SECTION
DECISION
Application no. 32986/08
Albert Mkrtichovich SAPONDZHYAN and Dzovinar Arshalusovna SAPONDZHYAN
against Russia
The European Court of Human Rights (Third Section), sitting on 21 March 2017 as a Chamber composed of:
Helena Jäderblom, President,
Branko Lubarda,
Luis López Guerra,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 14 July 2008,
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, Ms Dzovinar Sapondzhyan (the first applicant) and Mr Albert Sapondzhyan (the second applicant), are respectively a stateless person and a Georgian national. They were born in 1955 and 1940 and live in Nadzornoye in the Kochubeyevskiy district of the Stavropol Region. They were represented before the Court by Ms O.V. Sadchikova, a lawyer practising in Stavropol.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3. The Georgian Government were invited to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 (a)).
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background information
5. The applicants are a married couple with four adult sons. Prior to moving to Russia they lived in Georgia with two of their sons, Mr Grigor Sapondzhyan, who was born in 1971, and Mr Sargis Sapondzhyan, who was born in 1975.
6. In 1995 Grigor and Sargis Sapondzhyan moved to Russia. In 1997, the first applicant moved to Russia to join them, using her USSR passport. According to the applicants, on an unspecified date shortly afterwards she underwent a complex kidney operation and had to stay with her sons, who provided her with the necessary care after her surgery. Sometime in 2001 she lost her passport and became stateless. At a later date the first applicant had another kidney operation, meaning she required constant care, which was provided by her family.
7. In 1997 the second applicant arrived in Russia on a visa with his Georgian passport and joined his sons and the first applicant. He later left again and re-entered Russia in May or June 2002 on another visa.
8. In July 2003 Sargis Sapondzhyan obtained Russian nationality. According to the applicants, between 2002 and 2010 he and his common‑law partner, a Russian national, Ms K.Yu., had four children.
9. On 18 February 2005 the second applicant was fined for a breach of Article 18.8 of the Code of Administrative Offences for failing to regularise his stay in Russia.
10. According to the applicants, they live with their son Sargis and his family in the same dwelling in Nadzornoye. They are fully dependent on him and they take care of his four children. The applicants’ fourth son, Mr Akon Sapondzhyan, has also become a resident of Russia.
11. It appears that the applicants’ third son, Mr Ovanes Sapondzhyan, has continued to reside in Georgia. In September 2016 Grigor Sapondzhyan also obtained Russian nationality.
12. Between the date of their arrival in Russia and 2016 neither of the applicants applied for a temporary residence permit or took any other steps to regularise their stay in the country.
2. Proceedings concerning the applicants’ expulsion
13. On 19 June 2008 the Kochubeyevskiy District Court in the Stavropol Region fined the applicants 2,000 Russian roubles (RUB) (about 50 euros (EUR)) each and ordered their administrative removal (expulsion) from Russia. The court stated that the applicants, residing in Russia since 1997 and 2002 respectively, had not taken any steps to regularise their presence in the country, in breach of Article 18.8 of the Code of Administrative Offences. The court further stated that both applicants had admitted they had failed to regularise their stay and noted in respect of the second applicant that he had already committed a similar violation in 2005.
14. The applicants appealed against the expulsion order to the Stavropol Regional Court. They pointed out that they were long-term migrants and that their sons and other members of their family lived in Russia. They stated that their expulsion would have an adverse effect on their family life as they had been residing with their sons, were fully dependent on them, taking care of their grandchildren, Mr Sargis Sapondzhyan’s children, and that they were not dependent on the Russian social welfare system.
15. On 1 July 2008 the Regional Court upheld the expulsion order on appeal. It did not examine the applicants’ complaint concerning the alleged violation of their right to family life. The order became final and enforceable.
16. According to the Government’s submission, the expulsion order has not been enforced to date and will not be so as under the domestic legislation it could only be carried out within two years of its entering into force.
17. According to the applicants, in September 2016, upon receipt of the Court’s correspondence concerning their application, they decided to take steps to regularise their stay in Russia. No relevant documents were enclosed. The applicants continue to reside in Russia.
B. Relevant domestic law
18. For a summary of the relevant domestic law see Muradeli v. Russia, no. 72780/12, §§ 45-54, 9 April 2015.
COMPLAINT
19. The applicants complained under Article 8 of the Convention that the decision to expel them had violated their right to respect for their family life. In particular, they submitted that in ordering their expulsion, the domestic courts had failed to take into account that they were long-term migrants, had family in Russia and were fully dependent on their sons, who resided in Russia.
THE LAW
20. The applicants complained under Article 8 of the Convention of a violation of their right to respect for their family life. The relevant provision 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
21. The Government contested the argument that the applicants and their adult children had a family life as there were no additional factors of dependence, other than normal emotional ties. In particular, the applicants had failed to substantiate their submission of having a family life in Russia with their grandchildren. In particular, their son, Mr Sargis Sapondzhyan, had neither been officially registered as the father of the applicants’ alleged grandchildren, nor officially married to their mother, Ms K.Yu.
22. They further argued that the applicants had resided illegally in Russia since 1997 and 2002 respectively, but had not taken any steps to regularise their stay and, therefore, they had demonstrated a slighting attitude towards the laws of the host country. This was exacerbated by the fact that the second applicant had already been found guilty of a similar violation in 2005.
23. Lastly, the Government stressed that the expulsion order against the applicants had not been enforced and was not valid anymore.
2. The applicants
24. The applicants maintained their complaint and submitted that they were fully dependent on their son Mr Sargis Sapondzhyan, took care of his four children and lived together as a family with them.
25. They pointed out that the Russian authorities had tolerated their presence in the country since 1997 and 2002 respectively. That had been the case even after the expulsion order in 2008 as it had not been enforced and had become invalid. They further submitted that they had not been a burden on the Russian welfare system as they had no right to either social benefits or other State allowances and lived off the plot of land attached to their house.
B. The Court’s assessment
26. The Court notes that Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties, including the Convention, to control the entry, residence and expulsion of aliens (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A no. 215, § 102). However, the expulsion of a person from a country where his or her close relatives reside or have the right to reside may amount to an infringement of the right to respect for family life guaranteed in Article 8 § 1 (see Moustaquim v. Belgium, 18 February 1991, Series A no. 193, § 36). On the other hand, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see Ahmut v. the Netherlands, 28 November 1996, Reports of Judgments and Decisions 1996-VI, §§ 67 and 71).
27. The Court further notes that, in the Convention case-law relating to expulsion and extradition measures, the main emphasis has consistently been placed on the “family life” aspect, which has been interpreted as encompassing the effective “family life” established in the territory of a Contracting State by aliens lawfully resident there, it being understood that “family life” in this sense is normally limited to the core family (see Slivenko v. Latvia [GC], no. 48321/99, § 94, ECHR 2003‑X).
28. On a number of occasions the Court has stated that relationships between parents and adult children do not fall within the protective scope of Article 8 unless “additional factors of dependence, other than normal emotional ties, are shown to exist” (see, among many other authorities, Z. and T. v. the United Kingdom (dec.), no. 27034/05, ECHR 2006-III; Konstatinov v. the Netherlands, no. 16351/03, § 52, 26 April 2007; Emonet and Others v. Switzerland, no. 39051/03, § 35, ECHR 2007‑XIV; El Morabit v. the Netherlands (dec.), no. 46897/07, 18 May 2010; and F.N v. the United Kingdom (dec.), no. 3202/09, 17 September 2013). Therefore, the existence of “family life” cannot be relied on by applicants in relation to elderly parents, adults who do not belong to the core family, unless the latter have been shown to be dependent on the members of their family (see Slivenko, cited above, § 97, and Senchishak v. Finland, no. 5049/12, § 58, 18 November 2014).
29. The Court notes that the applicants furnished no documents, financial, medical or otherwise, substantiating their alleged dependency on their adult children residing in Russia. Throughout their stay in Russia the applicants have not taken any steps to regularise their status and must have been aware of the insecurity of the situation created by the lack of lawful grounds for their stay (compare to Senchishak, cited above, § 56).
30. On the basis of the case file, the Court cannot find, apart from the normal emotional ties, that there are any further elements of dependency between the applicants and their adult children residing in Russia capable of bringing their relationship into the protective sphere of Article 8 of the Convention.
31. The Court further notes that the expulsion order issued against the two applicants was not enforced and expired in 2010 (see paragraph 23 above). Consequently, the applicants are currently not at risk of being removed from Russia.
32. 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, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 April 2017.
Stephen PhillipsHelena Jäderblom
RegistrarPresident
Full & Egal Universal Law Academy