Communicated on 13 November 2017
THIRD SECTION
Application no. 35880/11
Akmalzhan Adakhamovich SHERMATOV and Others
against Russia
lodged on 15 May 2011
STATEMENT OF FACTS
The applicants are:
1) Mr Akmalzhan Shermatov, who was born in 1985;
2) Ms Nina Afanasova, who was born in 1973;
3) Mr Rustam Afanasov, who was born in 2007, and
4) Mr Bogdan Afanasov, who was born in 2009.
The applicants live in the town of Syktyvkar, Russia. They are represented before the Court by Mr E. Mezak, a human-rights defender from Syktyvkar.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background information
On an unspecified date the first applicant (a Kyrgyz national) moved to Russia, where in 2006 he established a de facto family relationship with a Russian citizen (the second applicant), with whom he has had two sons (the third and fourth applicants, both Russian nationals). The first applicant’s paternity of the third and fourth applicants has not been officially established. He is not recorded as their father on their birth certificates.
When the application was lodged, the first and second applicants were expecting their third child.
On 12 May 2009 the term of the first applicant’s authorised residence in Russia expired. He did not regularise his stay and continued living in Russia unlawfully.
2. Expulsion order against the first applicant and its appeal
On 20 May 2010 the Syktyvkar Town Court (“the Town Court”) found the first applicant liable for the administrative offence of failing to have his residency in Russia properly authorised. The Town Court relied on Article 18.8 of the Administrative Offences Code of the Russian Federation, which provides that foreign nationals who infringe residence regulations − including by living in the Russian Federation without a valid residence permit or by non-compliance with the established procedure for registering their residence − are liable to a fine of between 2,000 and 5,000 Russian roubles (RUB) and possible administrative expulsion from the country.
On 12 April 2011 the Town Court again found the first applicant liable for the same administrative offence and ordered his expulsion from Russia. Following the expulsion, the first applicant would be unable to re-enter Russia for a period of five years.
In its decision to expel the first applicant, the Town Court stated that he had been living in Russia illegally since 12 May 2009 and that on 20 May 2010 he had been found liable for the same administrative offence, but had not made any attempts to regularise his stay in the country since that date. As for the first applicant’s argument about the adverse effect of removal on his relationship with his minor children (the third and second applicants), the Town Court noted that his paternity had not been officially established, and that no reliable evidence proving the existence of family ties between them had been presented at the hearing.
The first applicant appealed against that decision to the Supreme Court of the Komi Republic (“the Regional Court”) stating, in particular, that his expulsion would separate him from his wife and minor children. He asked the Regional Court to summon his wife and some of his relatives and question them about their family situation. He also requested that a DNA test be ordered in order to establish his paternity of the children.
On 29 April 2011 the Regional Court dismissed the appeal, finding that the Town Court had duly examined the legal basis for the expulsion and that its decision had been lawful and reasonable. As for the first applicant’s family situation, it noted that the applicant had failed to submit adequate proof of the existence of family ties between him and the other applicants.
It is unclear from the documents provided to the Court whether the first applicant was expelled to Kyrgyzstan following the Regional Court’s decision or what the status of the expulsion proceedings is.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the order to expel the first applicant constituted a disproportionate interference with their right to respect for their family life as it made the first applicant liable to administrative removal, resulting in the separation of their family. They further complain under Article 13 of the Convention that the judicial review of the expulsion order by the Supreme Court of the Komi Republic was ineffective because the court had failed to summon witnesses to the hearing and to question them, as the first applicant had requested. It had also refused to order a DNA test to establish the first applicant’s paternity of his children, depriving him of the opportunity to present evidence of an established family life.
QUESTIONS TO THE PARTIES
1. The parties are requested to inform the Court whether the first applicant has been expelled to Kyrgyzstan and, if not, what the status of the expulsion proceedings is.
2. Did the order for the administrative expulsion of the first applicant constitute an interference with the applicants’ right to respect for their family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII; C.G. and Others v. Bulgaria, no. 1365/07, §§ 37-50, 24 April 2008; and Slivenko v. Latvia (dec.) [GC], no. 48321/99, §§ 93-129, ECHR 2002‑II (extracts))? Did the domestic authorities strike a fair balance between the grounds underlying their decision to expel the first applicant and the applicants’ right to respect for their family life?
3. Did the applicants have an effective domestic remedy within the meaning of Article 13 of the Convention, in respect of the alleged violation of Article 8 of the Convention (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012)?
Full & Egal Universal Law Academy