Communicated on 25 April 2019
THIRD SECTION
Application no. 47636/18
Mashal Muratovich SOTVOLDIYEV
against Russia
lodged on 27 September 2018
STATEMENT OF FACTS
The applicant, Mr Mashal Muratovich Sotvoldiyev, is a national of Kirghizstan, who was born in 1984 and lives in Bazar-Korgon. He is represented before the Court by Ms DV Trenina and Mr K. Zharinov, lawyers practising in Moscow.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. The proceedings concerning the applicant’s administrative removal from Russia
On an unspecified date in 2014 the applicant arrived in Russia. On 20 March 2014 he married a Russian national, Ms A.K. The family resided in Novosibirsk. The term of the applicant’s stay based on a temporary residence permit was authorised until 2 March 2018.
From the documents submitted it transpires that on 7 December 2017 an authority issued decision concerning the undesirability of the applicant’s presence in Russia due to undisclosed national security reasons.
On 2 March 2018 the Migrations Department of the Ministry of the Interior in Altay sent the applicant letter no. 15/727 informing him that on an unspecified date a decision concerning undesirability of his presence in Russia had been taken and that he was to leave Russia on the date of the expiration of his authorised stay in the country, that is 2 March 2018 and that his re-entry was prohibited. The applicant received the letter on 5 March 2018.
On 15 March 2018 the applicant was detained at home by the police for a breach of Article 18.8 of the Code of Administrative Offences on account of his failure comply with the period of authorised stay, which had expired on 2 March 2018. In his statement to the Kalininskiy District Court in Novosibirsk on the same date, the applicant stated that he had been living in Russia with his wife to whom he was married since 2014 and that he had intended to regularise his stay in the country.
On the same date, 15 March 2018, the Kalininskiy District Court ordered that the applicant be fined RUB 2,500 and be subjected to administrative removal (expulsion) from Russia with subsequent re-entry ban. The length of the re-entry ban was not specified. The court ordered the applicant’s detention pending expulsion in the Centre of Temporary Detention for Foreign nationals in Novosibirsk. As for the applicant’s allegation that the removal would violated his right to respect for family life with his wife, the court left it without examination.
The applicant appealed the above decision to the Novosibirsk Regional Court. He stated, in particular, that the removal order had violated his right to respect for family life under Article 8 of the Convention, that he was married to Ms A.K. for four years, that she had no connection to Kyrgyzstan and would be unable to join him there.
On 27 March 2018 the Novosibirsk Regional Court upheld the removal order of the Kalininskiy District Court, limiting the term of his detention pending removal until 15 June 2018. As for the applicant’s allegation of a violation of Article 8 of the Convention on account of the disruptive effect of the removal on of his family life, the court’s decision stated as follows:
“... As for the allegations in the appeal concerning a violation of Article 8 of the Convention given the applicant’s marriage to Ms A.K. since 20 March 2014, it cannot serve as the basis for annulment of the impugned decision given that that decision had been taken with the consideration of decision of 7 December 2017 concerning the prohibition of the [applicant’s] entry into the Russian Federation and the other circumstances of the case, in compliance with the requirements of justice and proportionality ...”
It appears that on an unspecified date between 27 March and 5 June 2018 the applicant was deported to Kyrgyzstan.
2. Information concerning the appeals against the decision to declare the applicant’s presence in Russia undesirable
On 5 June 2018 the applicant, though his lawyers, complained to the Gorno-Altayskiy Town Court requesting that the decisions concerning the undesirability of his presence in Russia and the decision concerning his re‑entry ban be declared unlawful. He stated that the impugned decisions had been taken by the authorities on undisclosed grounds, that he had not posed any threat to Russia’s national security and that the ban on his re‑entry into Russia violated his right to respect for family life. He stressed that he had not been provided with a copy of either of the decisions and that he had been told that the decision concerning the undesirability of his presence in Russia had allegedly been taken by the Federal Security Service.
On 11 July 2018 the Gorno-Altayskiy Town Court examined the applicant’s complaint against the Federal Security Service’s decision concerning the undesirability of his presence in Russia and decided, upon request of the representative of the Federal Security Service, to transfer the complaint for examination to the Supreme Court of the Republic of Altay having stated that
“... the examination of the case required furnishing of documents containing State secret... the decision concerning the undesirability of Mr Sotvoldiyev’s presence [in Russia] has been classified as “secret” and [therefore], it is impossible to present it at the public hearing either in full or in part ...”
As for the applicant’s complaint concerning the ban on his re-entry into Russia, on the same date, 11 July 2018, the Gorno-Altayskiy Town Court decided to suspend its examination pending the outcome of the examination by the Supreme Court of the Republic of Altay of the above complaint concerning the undesirability of the applicant’s presence in Russia.
B. Relevant domestic law
For a summary of relevant domestic regulations see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011 and Guliyev and Sheina v. Russia, no. 29790/14, §§ 25-34, 17 April 2018.
COMPLAINT
The applicant complains under Article 8 of the Convention that decision of the Kalininskiy District Court of 15 March 2018 concerning his administrative removal from Russia was a disproportionate measure and violated his right to respect for family life.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to administrative removal/deportation from Russia following the decision of 15 March 2018 by the Kalininskiy District Court in Novosibirsk? If so, when and under what circumstances? The Government are invited to submit all the documents pertaining to the deportation/removal procedure.
2. Did the exclusion order of 15 March 2018 by the Kalininskiy District Court constitute an interference with the applicant’s right to respect for his family life within the meaning of Article 8 of the Convention? In particular, did the domestic authorities examine the applicant’s allegation of the adverse effect of the removal on his family life? Did domestic courts strike a fair balance between the grounds underlying their decision to remove the applicant and his right to respect for family life?
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