Communicated on 28 June 2016
THIRD SECTION
Application no. 2967/12
Yan ZAKHARCHUK
against Russia
lodged on 20 December 2011
STATEMENT OF FACTS
The applicant, Mr Yan Zakharchuk, is a Polish national who was born in 1980 and lives in Bialystok. He is represented before the Court by Ms O.P. Tseytlina, a lawyer practising in St Petersburg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The circumstances of the case
1. Background information
The applicant was born in February 1980 in Leningrad, in the former USSR (as of 1992 the city has been called St Petersburg), to a mother who was a Soviet citizen and a father who was Polish. In May 1980 the applicant’s parents chose Polish citizenship for him. After his birth the applicant lived in the former Soviet Union with his mother. In 1985 the applicant moved with his mother to Poland. In 1988 they returned to the USSR. According to the applicant, he lost contact with his Polish father.
In 1991 the applicant received a Polish passport but continued to reside in Russia with his mother. Between 1994 and 1995 the applicant spent six months with her in Poland and on his return to Russia he continued to reside in St Petersburg.
In 2004 the applicant graduated from a university in St Petersburg and started working as a Physical Education teacher. He resided in Russia on the basis of five-year residence permits, the last of which was issued as ИР-III no. 0147881 and which was valid until May 2008.
On 22 December 2004 the St Petersburg Military Garrison Court found the applicant guilty of aggravated serious bodily harm of a military officer and sentenced him to six years’ imprisonment.
On 4 May 2010 the Tosnenskiy Town Court in the Leningrad Region decided to release the applicant on parole for good behaviour. On 12 May 2010 the applicant was released.
According to the applicant’s submission, he does not speak Polish and has no family or social ties with Poland.
2. The applicant’s exclusion from Russia and appeals against the exclusion order
On 11 August 2010 the Russian Ministry of Justice took a decision on the undesirability of the applicant’s presence (residence) in Russia and on his exclusion from the country until 21 December 2018 following his criminal conviction (hereinafter “the exclusion order”). The decision stated that given the applicant’s conviction for a serious crime, his presence or residence in Russia represented a threat to public order. The applicant was informed of the decision on 9 March 2011.
The applicant appealed to the Kirov District Court in St Petersburg against the exclusion order. In his appeal he argued that excluding him from Russia would violate his right to respect for his family life as he had lived all his life in Russia, had lost any connection he had had with Poland, did not speak Polish, was a Russian citizen as he had been born in the former USSR and took care of his mother, who was his only relative. He further stressed that in order to comply with the conditions of his parole he had to remain in Russia to visit his parole officer on a regular basis.
On 12 April 2011 the Kirov District Court dismissed the applicant’s appeal. In its decision the court stated, inter alia, that the applicant had failed to provide any evidence of Russian citizenship and that his reference to his release on parole, his good behaviour and the fact of his mother’s residence in Russia were not sufficient to prove that he did not represent a real threat to public order. The court further stated that even though the applicant had been released on 4 May 2010 he had applied for Russian citizenship only in April 2011. The positive character references from the prison and his release on parole for good behaviour did not amount to convincing evidence that the applicant did not pose a threat to public order. The applicant’s need to comply with the requirements of his parole did not give him the right to remain in Russia.
The applicant appealed against the decision to the St Petersburg City Court, stating that the first-instance court had failed to examine his arguments concerning his right to Russian citizenship by birth, that the exclusion order was not sufficiently clear and specific as it did not specify the nature of the threat he posed to public order and that it was not supported by any evidence. The applicant stressed that he had lived all his life in Russia with his mother, that he had no other relatives, that he had not maintained contact with his Polish father and that the District Court had completely disregarded the information concerning his exemplary behaviour and his release on parole.
On 20 June 2011 the St Petersburg City Court upheld the decision of the District Court. Its decision referred, amongst other things, to the following:
“... the first-instance court established that Yan Zakharchuk was a Polish national ...
On 2 March 2009 the head of the Main Directorate of the Federal Service for the Execution of Sentences approved a decision on the undesirability of the presence (residence) in the Russian Federation of the foreign national who was to be released from detention.
On 25 March 2009 the Main Directorate of the Federal Service for the Execution of Sentences requested that the Ministry of Justice take a decision on the undesirability of the presence (residence) in the Russian Federation of the foreign national who was to be released from detention.
On 11 August 2010 the Russian Ministry of Justice issued decision no. 6204-P concerning the undesirability of the presence (residence) in the Russian Federation of this Polish citizen until 21 December 2018 as his presence in the Russian Federation posed a threat to public order and the lawful interests of Russian citizens and obliging him to leave the Russian Federation ...
... examining the applicant’s submission concerning the absence of grounds for the decision prohibiting his entry into the Russian Federation, the [first-instance] court established that the decision had been taken to provide security for the State.
The first-instance court correctly concluded that the decision on the undesirability of the applicant’s presence in the Russian Federation had been taken lawfully and had been confirmed by concrete facts. At the same time, Mr Zakharchuk had fully exercised his right to have legal counsel.
The decision taken by the Ministry of Justice was within its powers.
As for the applicant’s argument concerning his Russian citizenship, the court finds it unsubstantiated [for the following reasons] ...
Both parents lodge a joint request concerning the citizenship which they have chosen for their child. Under Article 7 of the Convention of 31 March 1965 [between the USSR and the Polish Republic on the prevention of dual citizenship] as of that date the person must have the citizenship that has been chosen for him. Therefore, given that the parents of Mr Zakharchuk chose citizenship of the Polish Peoples Republic for him, citizenship of the USSR was lost ... The applicant has not given up his Polish citizenship, he has been provided with a Polish passport.
Moreover, while residing in the Russian Federation, Mr Zakharchuk acted as a foreign citizen, which is demonstrated by the fact that he applied for a permanent residence permit and not for Russian citizenship ...
The court finds that the decision of the first-instance court is lawful and substantiated ...”
On 29 July 2011 the applicant was deported to Poland.
COMPLAINT
The applicant complains under Article 8 of the Convention that his deportation following his criminal conviction and the ban on his re-entry to Russia are unlawful and arbitrary and violate his right to respect for his private and family life.
According to the applicant, he takes care of his mother, the only relative who is dependent on him. According to the Court’s findings in Slivenko, cited above, § 97, the applicant can rely on the existence of “family life” based on his relation with his mother as she appears to be dependent on him.
QUESTIONS TO THE PARTIES
1. What was the scope of review of the domestic courts which examined the applicant’s appeal against the exclusion order? Did the courts make a balancing exercise between the need to maintain public order and the applicant’s right to respect for his private and family life?
2. Did the exclusion order constitute an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-09, 3 October 2014)?
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