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FIRST
SECTION
CASE OF
KAMALIYEVY v. RUSSIA
(Application
no. 52812/07)
JUDGMENT
(Merits)
STRASBOURG
3 June
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kamaliyevy v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52812/07) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Abdugani Kamaliyev, a national of
Uzbekistan, and his wife Mrs Maymuna Kamaliyeva, a national of Russia
(“the applicants”), on 3 December 2007. On 20 August 2008
the second applicant died, and the application is continued on her
behalf by the first applicant.
- The
applicants were represented by Mrs Ryabinina and Mr Koroteyev,
lawyers practising in Moscow. The Russian Government (“the
Government”) were represented by Mrs
V. Milinchuk, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their new Representative, Mr G. Matyushkin.
- The
applicants alleged, in particular, that the first applicant’s
expulsion to Uzbekistan would subject him to a risk of ill-treatment,
that he would be tried there in flagrant denial of justice, and that
his expulsion would violate their right to respect for their family
life. They referred to Articles 3, 6 and 8 of the Convention, as well
as Article 2 of Protocol No. 2.
- On
3 December 2007 the President of the Chamber decided to apply Rule 39
of the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of
the proceedings not to expel the first applicant to Uzbekistan
pending the Court’s decision. On 5 December 2007 the first
applicant was deported to Uzbekistan.
- On
20 May 2008 the President of the First Section decided to give notice
of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time as its admissibility.
It was also decided at that time that the interim measure should
remain in force.
- The
Court decided on 11 May 2010 to lift the interim measure.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant was born in 1958. He is currently
serving a prison sentence in Uzbekistan. His representatives have had
no contact with him since his expulsion. The second applicant was
born in 1958 and lived in the Tyumen Region, Russia. She died in
August 2008.
A. The applicants’ marriage and the acquisition
by the first applicant of a Russian passport
- According
to the first applicant, then named Tursinov, he arrived in Russia
from Uzbekistan in 1997. The Government disputed the date of the
first applicant’s arrival in Russia, pointing to the absence of
any documents in connection with it.
- On
29 November 2000 he obtained Russian internal identity papers
(“the passport” in question).
- On
28 December 2000 the first applicant married the second applicant and
took her surname, Kamaliyev. On 16 February 2001 he obtained a new
passport, containing his new name.
- In
their submissions of September and December 2008 the Government
stated that at the relevant time the first applicant had been in a
valid marriage concluded in Uzbekistan in 1979, from which he had
four children. They submitted a copy of the certificate of the first
applicant’s marriage, issued by the Namangan Department of the
Ministry of Justice of Uzbekistan in April 2008.
- On
10 January 2004 a new Russian internal passport was issued to the
first applicant, who had reached the age of forty-five.
- On
10 February 2006 the Federal Migration Service (FMS), following an
internal investigation, established that the first applicant’s
passport had been issued in breach of the lawful procedure and
declared it invalid. The FMS found that the first applicant had
obtained a Russian identity document without having properly obtained
Russian nationality and that his name had not been entered in the
relevant registers. The first applicant had never applied for, or
received Russian nationality and the identity document in question
could not be held as proof to the contrary. The head of the police
unit which had issued the passport had been subjected to disciplinary
measures for breaching the relevant legislation.
- In
February 2006 the police, aided by the FMS, seized the applicant’s
internal passport. It appears that after that the first applicant
remained in Russia without obtaining any other residence documents.
- On
6 March 2006 the Prosecutor’s Office of the Central District of
Tyumen found that the archives of the passport service which had
issued the first applicant’s passport in 2000 had been
destroyed in January 2005, in line with instructions issued at the
time. It concluded that there were no reasons to open a criminal
investigation into the actions of the officers of that department.
B. Attempted extradition of the first applicant
- On
16 March 1999 the deputy prosecutor of the Namangan Region in
Uzbekistan issued a decision to charge and detain the first applicant
for attempted subversion of the constitutional regime. It appears
that some time later an international search warrant was issued.
- On
31 October 2005 the head of the police department of the Namangan
Region in Uzbekistan informed his counterpart in the Tyumen Region
that the first applicant was being sought in Uzbekistan for a breach
of State security and asked him to locate the applicant. The same
letter indicated the first applicant’s address in Tyumen and
stated that he had unlawfully obtained a Russian passport.
- On
9 February 2006 the applicant was arrested with a view to extradition
and placed in the Tyumen Region temporary detention centre
no. IZ-72/1 (ФГУ ИЗ-72/1).
- On
23 March 2006 the deputy Prosecutor General of Uzbekistan
requested the applicant’s extradition on the ground that he was
charged with belonging to an extremist religious organisation, known
as “Wahhabi”, incitement of religious hatred and
attempted subversion of the constitutional regime. The crimes had
been committed in 1990-1993.
- On
5 May 2006 the Kalininskiy District Court examined a request by the
Tyumen Regional Prosecutor to have the applicant placed in detention
with a view to his extradition to Uzbekistan, where he was accused of
inciting racial, national or religious hatred, attempted subversion
of the constitutional regime, and the creation and leadership of
extremist organisations of a religious, separatist, fundamentalist
nature, or other prohibited organisations, crimes which were defined
by Articles 156 § 2 (d), 159 § 3 (b) and 244
§ 2 respectively of the Criminal Code of Uzbekistan.
- The
court, having noted that those acts were also punishable under
Articles 282 § 2, 280 and 282-1 of the Criminal Code of the
Russian Federation and that the applicant was an Uzbek citizen,
ordered that the applicant be placed in detention pending
extradition. The court noted that the applicant had unlawfully
obtained a Russian passport.
- On
20 December 2006 the Deputy General Prosecutor refused to extradite
the first applicant because the acts with which he had been charged
did not constitute a crime under Russian law and because the
prescription period for other acts had expired.
- On
26 December 2006 the Tyumen Regional Prosecutor ordered the
applicant’s release.
C. Application for refugee status
- On
1 August 2006 the first applicant requested the Tyumen Regional
Department of the FMS to grant him refugee status. In his application
he indicated that he had Uzbek nationality, but that in 2000 he had
received a Russian passport and had married the second applicant. The
first applicant gave the unstable economic and political situation
and absence of work as the reasons for his departure from Uzbekistan.
He denied that he had ever committed a crime in Uzbekistan.
- On
11 November 2006 he was questioned by officials of the FMS about the
details of his claim. In the questionnaire the first applicant
indicated his nationality as Uzbek and submitted details of his
national identity papers. He also submitted that he had divorced his
first wife in 1996 in Uzbekistan. As regards his Russian passport,
the first applicant submitted that a relative of his wife had helped
him to obtain the documents. That man, whose name he could not
recall, had died in 2002. As to his fear of persecution in
Uzbekistan, the first applicant explained that he had learned of the
criminal proceedings pending against him there when he was detained
in Russia in February 2006. He denied having any connection to the
charges brought against him and stated that he did not believe that
he would have a fair trial in Uzbekistan. The first applicant also
stated that he feared for his safety in that country.
- The
outcome of this request is unclear. The first applicant did not refer
to this application in the subsequent proceedings.
D. The first applicant’s expulsion to Uzbekistan
- On
23 November 2007, during an identity check, the applicant was
arrested in Tyumen as an unlawfully resident alien.
- On
the same day the Tsentralnyy District Court of Tyumen reviewed the
applicant’s administrative offence case. According to the
transcript of the hearing, the first applicant stated that he had
lived in Russia since 1997, had traded in fruit and then married. He
stated that in 2006 his Russian passport had been taken away from him
as part of the procedure for obtaining nationality, but that he did
not know the outcome of that procedure. He denied having committed
any violations of the Russian legislation. When asked by the judge
whether he had been aware that a search warrant had been issued for
him in Uzbekistan, the first applicant replied that he had not
committed any crimes. He also stated that he had changed his family
name because of his marriage. The District Court found the first
applicant guilty of a violation of the residence rules for aliens, in
that he had failed to take any steps to get a residence permit or to
obtain nationality by legal means. It imposed a fine of 2,000 Russian
roubles (RUB) and ordered that the first applicant be expelled from
Russia.
- On
30 November 2007 the applicant’s lawyer lodged an appeal
against the decision of 23 November, arguing that the extradition
would sever the applicant’s ties with his Russian family, in
view of the ensuing five-year ban on re-entering the country. He
therefore asked the Regional Court to alter the sentence and not to
order the first applicant’s deportation.
- On
3 December 2007, on instructions from the first applicant, “Civil
Assistance” (Комитет
“Гражданское
содействие”)
an NGO which specialises in providing assistance to refugees from
Central Asia, submitted to the European Court of Human Rights a
request for suspension of the first applicant’s extradition to
Uzbekistan. They stated that the first applicant had been charged in
Uzbekistan with crimes against the state security and membership of a
religious organisation, that he would certainly be detained upon
arrival and that the risk of torture for this category of persons was
recognised by all available international sources. In that letter the
representative indicated that the next flight from Tyumen to
Uzbekistan was scheduled for 2 a.m. on 5 December 2007 (4 December
2007, 10 p.m. CET). There is a two-hour difference between Moscow and
CET and another two-hour difference between Tyumen and Moscow.
- On
the same day, on 3 December 2007, the Court indicated to the Russian
Government that, under Rule 39 of the Rules of Court, it was adopting
an interim measure for suspension of the extradition. The letter to
the Government, indicating the application of a preliminary measure,
was received by the Office of the Representative at 7.50 p.m. CET.
According to the Government, on 4 December 2007 the information about
the application of the interim measure was forwarded to the Ministry
of the Interior and the FMS.
- The
applicants’ representative submitted that on 4 December 2007
she had forwarded a copy of the Court’s letter of 3 December
2007 indicating the preliminary measure to the office of the Tyumen
Prosecutor’s Office and the Main Department of the Interior of
the Tyumen Region.
- On
4 December 2007 the Tyumen Regional Court held a hearing in the
absence of the first applicant and his legal counsel. The court
established that the applicant was a citizen of Uzbekistan, that the
Russian passport had been issued in breach of the relevant
provisions, that the applicant had not submitted a request for
naturalisation to the competent police department and that, according
to the consular register of the Ministry of Foreign Affairs, he had
not obtained Russian nationality. Equally, between 10 February
2006, the date on which his passport had been confiscated, and
23 November 2007, the day on which his identity papers were
checked, the applicant had been unlawfully present on the territory
of Russia and had taken no steps to declare his residence. The court
held that the argument with regard to the potentially lengthy
separation of the applicant and his wife and that alleging the
applicant’s lack of fault in the issue of the Russian passport
were incidental. The court upheld the decision of 23 November 2007.
- The
applicants’ representative informed the Court of that decision
on the same day. On 4 December 2007 the Court forwarded an additional
letter to the Office of the Representative, alerting them to the
decision of the Tyumen Regional Court and drawing their attention to
the fact that the first applicant’s expulsion from Tyumen had
been scheduled for 5 December 2007, 2 a.m. local time. This letter
reached the Office in Moscow at 10.30 p.m.
- On
5 December 2007 at 2.25 a.m. local time the first applicant was
deported to Uzbekistan.
E. Subsequent events
- According
to the applicants, upon his arrival in Tashkent the first applicant
was arrested and charged with the crimes for which his extradition
had been sought from Russia earlier. The second applicant informed
the Court in February 2008 that in January 2008 she had received a
phone call from her husband’s relatives in Uzbekistan. They
claimed that he had been detained at the Namangan Detention Facility
and that he had been subjected to torture. After that she was unable
to reach the first applicant’s relatives by phone.
- In
response to the Court’s request, in December 2008 the
Government submitted that they had obtained unofficial information
that on 26 February 2008 the first applicant had been tried and found
guilty in Namangan. He was sentenced to eleven years in prison for
incitement to racial hatred, attempts to overthrow the constitutional
regime and participation in prohibited religious organisations. The
Government had no further information about the first applicant’s
whereabouts from the Uzbek authorities. They indicated that as the
first applicant had been a national of Uzbekistan and did not have
Russian nationality, there were no legal grounds for the Russian
authorities to intervene on his behalf. The applicants’
representatives had no way of contacting him in detention. It appears
that in 2008 he was serving his sentence in the Tashkent Region.
- On
20 August 2008 the second applicant died.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
- For
a summary of the relevant Russian law and practice on issues of
detention, extradition and expulsion of foreign nationals, see
Muminov v. Russia
(no. 42502/06, §§ 45-62, 11 December 2008).
- For
a review of the situation in Uzbekistan at the relevant time, see
Muminov (cited above, §§ 67-72) and Ismoilov and
Others v. Russia (no. 2947/06, §§ 74-79, 24 April
2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 6 OF THE CONVENTION
- The
applicants complained that the first applicant’s deportation to
Uzbekistan had been in violation of Articles 3 and 6 of the
Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 6
1. In the determination of his civil rights
and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing ...”
A. Arguments of the parties
- The
Government argued that the applicants’ claim should be
dismissed for failure to exhaust domestic remedies. They stressed
that in the proceedings before the district and regional courts
adjudicating on his deportation, the first applicant had not raised
his fear of being subjected to torture or inhuman and degrading
treatment, or a flagrant denial of justice, as arguments against his
deportation. They argued that the domestic courts were the relevant
authority before which these complaints should have been raised and
produced a number of recent court decisions from the Tyumen region
and from other regions whereby the sanction of administrative
deportation had been lifted or the proceedings discontinued in view
of various personal circumstances of the defendants. The Government
further pointed to the fact that the Uzbek authorities denied the
allegations of systematic torture of detainees.
- The
applicants requested the Court to dismiss this objection. They
submitted that the first applicant had effectively been prevented
from raising his complaints under Articles 3 and 6. He had only had a
limited possibility to argue his case before the judge of the
Centralnyy District Court of Tyumen, since he had been unrepresented.
Later, in the Tyumen Regional Court, neither he nor his lawyer had
been present. Furthermore, the effectiveness of the alleged remedy
had not been proved by the respondent Government, which had failed to
demonstrate that the courts could have discontinued the
administrative proceedings on the grounds of the alleged threat of
torture in the country of destination. The applicants relied on
international reports which pointed out that torture and
ill-treatment of prisoners, especially of those suspected of
political or religious crimes, had been systematic. They argued that
the judiciary in Uzbekistan had been criticised by outside observers
as lacking independence and unable to issue impartial decisions.
B. The Court’s assessment
- It
is recognised by the parties, and follows from the documents reviewed
by the Court, that in the proceedings before the Centralnyy District
Court and the Tyumen Regional Court the first applicant did not
raise, either expressly or in substance, the complaints under
Articles 3 and 6 of the Convention that he has brought before this
Court. The applicant and the Government dispute the effectiveness of
the remedy in question.
- The Court reiterates that the rule of exhaustion of
domestic remedies in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system, thus dispensing States from answering before the European
Court for their acts before they have had an opportunity to put
matters right through their own legal system. The burden of proof is
on the Government claiming non-exhaustion to satisfy the Court that
an effective remedy was available in theory and in practice at the
relevant time, namely, that the remedy was accessible, capable of
providing redress in respect of the applicant’s complaints and
offered reasonable prospects of success (see T. v. the United
Kingdom [GC], no. 24724/94, 16 December 1999, § 55).
Article 35 must also be applied to reflect the practical realities of
the applicant’s position in order to ensure the effective
protection of the rights and freedoms guaranteed by the Convention
(Hilal v. the United Kingdom (dec.), no. 45276/99, 8
February 2000).
- More
specifically, where the applicant seeks to prevent his removal from a
Contracting State, a remedy will only be effective if it has
suspensive effect (Jabari v. Turkey (dec.), no. 40035/98,
28 October 1999). Judicial review, where it is available and
where the lodging of an application for judicial review will operate
as a bar to removal, must be regarded as an effective remedy which in
principle applicants will be required to have recourse to before
lodging an application with the Court or indeed requesting interim
measures under Rule 39 of the Rules of Court to delay a removal.
- As a general rule, applicants are required to raise in
substance and in due form in the domestic proceedings the complaints
addressed to the Court, including the procedural means that might
have prevented a breach of the Convention (see Barberà,
Messegué and Jabardo v. Spain, 6 December 1988, § 59,
Series A no. 146).
- Turning
to the circumstances of the present case, the Court notes that the
first applicant was removed from Russia to Uzbekistan by way of
administrative expulsion imposed as a sanction for the breach of the
residence regulations. This happened eleven months after the Russian
authorities had refused to extradite him on charges of involvement in
subversive activities in Uzbekistan. The relevant provisions of the
Code of Administrative Offences provided that a breach of residence
regulations was punishable by a fine, which could be accompanied by
administrative expulsion. The determination of the offence and of the
sanction lay within the competence of the district court judge and
was subject to appeal to the regional court. The appeal had a
suspensive effect on deportation.
- Thus,
the Court is satisfied that the judicial procedure related to the
administrative offence was, in the circumstances, a proper remedy for
the purposes of Article 35. The examples concerning the practice of
administrative removal supplied by the Government support this
assertion and bear on the possible prospects of success of that
remedy.
- The
first applicant claims that even if the remedy was effective in
principle, he had been prevented from using it. He indicated that he
had been unrepresented at the hearing at the district court and had
been unable to plead in person or through his counsel before the
regional court.
- The
Court notes that, as it follows from the transcript of the hearing at
the Central District Court of 23 November 2007, the first applicant
had stated that he had fully understood Russian and that he did not
require legal representation or an interpreter. These points were not
raised in the appeal submitted by the first applicant’s counsel
on 30 November 2007. The only grounds for appeal were the first
applicant’s family ties and the modalities under which his
Russian passport had been found invalid (see paragraphs 28-29
above).
- In
such circumstances, the Court finds that the first applicant has not
come up with any plausible explanation for his failure to raise his
grievances in substance before the domestic courts, which
represented, in the present case, the remedy to be used.
- Finally,
the Court reiterates that the Convention is intended to guarantee
rights that are not theoretical or illusory, but practical and
effective (see, mutatis mutandis, Matthews v. the United
Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I).
Exceptionally, and in view of the absolute prohibition of treatment
contrary to Article 3, the Court has previously considered whether an
applicant’s claim about the existence of a real risk of torture
had received an adequate assessment by
the authorities even if brought to their attention outside of the
judicial challenge to the removal order. However, the first applicant
did not pursue his application for refugee status lodged in 2006 and
did not refer to it in the proceedings at issue. This case should
therefore be distinguished from Muminov v.
Russia, where the Court attached
a great weight to the fact that the applicant, in violation of the
domestic law, was deported for a breach of residence regulations
while the determination of his asylum application was pending
(Muminov,
cited above, § 87).
- In
these circumstances, the Court finds that the first applicant failed
to exhaust domestic remedies in respect of his complaints under
Articles 3 and 6 of the Convention. Consequently, the Court rejects
this part of the application for non-exhaustion of domestic remedies
pursuant to Article 35 §§ 1 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that the first applicant’s deportation to
Uzbekistan had been in violation of Article 8 of the Convention,
which 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. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
Government submitted that the marriage between the applicants had
been invalid from the start. They alleged that when marrying the
second applicant, the first applicant had failed to produce a divorce
certificate from his first marriage in Uzbekistan, as required by the
Russian legislation. In any event, assuming that there had been an
interference with the applicants’ family life, the Government
argued that it was lawful, pursued legitimate aims and was
proportionate, given that the first applicant had failed to take
steps to regularise his stay in Russia over a lengthy period of time.
The illegally obtained Russian passport could not have served as a
basis for that stay, and in any event that document had been seized
in February 2006. In November 2007 the first applicant had
nevertheless been found to be residing in Russia unlawfully. The
Government considered that the first applicant should have been fully
aware of the illegal nature of his stay by that time and of the
consequences of it. In respect of the proportionality of the
interference, the Government stressed that in his submissions before
the national courts the first applicant had failed to argue clearly
that his marriage to the second applicant was an impediment to
deportation, referring rather broadly to his “family
situation”, without submitting any supporting documents. As a
final argument, the Government did not consider that the first
applicant’s deportation constituted an obstacle to the
continuity of the applicants’ family life, since the second
applicant could have easily adapted to life in Uzbekistan, in view of
her Tatar ethnic origin and the similarity of the Uzbek and Tatar
languages.
- The
applicants argued that they had lived as a married couple since 2000
and that their marriage had not been found null. In the
administrative proceedings the first applicant referred to his
marriage in Russia as a reason not to deport him to Uzbekistan. The
deportation was an interference with their family life. The
applicants argued that the first applicant’s Russian
nationality made that deportation unlawful. Adversely, they argued
that if the Court found that the first applicant was not a Russian
national, the interference should be considered disproportionate.
They stressed that the domestic courts had failed to balance their
interests against the perceived aims of the deportation and that
their arguments had been summarily dismissed. They also remarked that
the Government’s assertion about the second applicant’s
possible integration in Uzbekistan was irrelevant, since the
authorities had been aware of the criminal charges pending against
the first applicant in that country and the fact that he would most
probably be arrested upon arrival.
2. The Court’s assessment
- Turning
to the present case, the Court, firstly, finds it established that
the first applicant does not hold Russian nationality. It follows
from the note issued by the FMS in February 2006 that the first
applicant had never applied for or received Russian nationality and
that his name was not entered into any of the relevant registers, but
rather that he had obtained a passport, presumably through illegal
means (see paragraph 13 above). By the same decision disciplinary
measures were imposed on the officer who had issued it. That passport
was seized in February 2006 and the first applicant did not contest
that decision. In March 2006 the Prosecutor’s Office considered
opening criminal proceedings against the officers who had issued the
passport to the first applicant but did not, in view of the fact that
the relevant archives had been destroyed (see paragraph 15). The
first applicant himself referred to his nationality as Uzbek in the
documents related to his refugee status and in the proceedings
related to his extradition. In the questionnaire filled in on 11
November 2006 the first applicant stated that he had obtained the
passport through an intermediary, whose name he could not recall and
who had allegedly died in 2002 (see paragraph 25). Thus, contrary to
the applicants’ assertion before this Court, it follows from
the documents submitted by the parties that the first applicant did
not hold Russian nationality. The Court also finds that at least
after February 2006 he could no longer have been unaware of the fact
that he had no valid residence papers.
- Next,
the Court observes that the applicants married in December 2000.
Notwithstanding the Government’s challenge to the validity of
that alliance, the Court notes that the marriage was officially
recognised by the respondent State and thus is prepared to assume
that the applicants were engaged in a genuine family relationship.
The Court also finds that the interference was in accordance with the
law, namely Article 18.8 of the Code of Administrative Offences, and
that it pursued legitimate aims, such as the economic well-being of
the country and the prevention of disorder and crime.
- The
key question for the Court is whether the measure was necessary in a
democratic society. The relevant criteria that the Court uses to
assess whether an expulsion measure is necessary in a democratic
society have recently been summarised as follows (see Üner v.
the Netherlands [GC], no. 46410/99, §§ 57-58,
ECHR 2006-XII):
“57. Even if Article 8 of the
Convention does not therefore contain an absolute right for any
category of alien not to be expelled, the Court’s case-law
amply demonstrates that there are circumstances where the expulsion
of an alien will give rise to a violation of that provision (see, for
example, the judgments in Moustaquim v. Belgium,
Beldjoudi v. France and Boultif v. Switzerland, [cited
above]; see also Amrollahi v. Denmark, no. 56811/00, 11
July 2002; Yılmaz v. Germany, no. 52853/99, 17 April
2003; and Keles v. Germany, 32231/02, 27 October 2005). In the
case of Boultif the Court elaborated the relevant criteria
which it would use in order to assess whether an expulsion measure
was necessary in a democratic society and proportionate to the
legitimate aim pursued. These criteria, as reproduced in paragraph 40
of the Chamber judgment in the present case, are the following:
- the nature and seriousness of the offence
committed by the applicant;
- the length of the applicant’s stay in
the country from which he or she is to be expelled;
- the time elapsed since the offence was
committed and the applicant’s conduct during that period;
- the nationalities of the various persons
concerned;
- the applicant’s family situation,
such as the length of the marriage, and other factors expressing the
effectiveness of a couple’s family life;
- whether the spouse knew about the offence
at the time when he or she entered into a family relationship;
- whether there are children of the marriage,
and if so, their age; and
- the seriousness of the difficulties which
the spouse is likely to encounter in the country to which the
applicant is to be expelled.”
- Turning
to the circumstances of the present case, the Court first notes that
the offence for which the first applicant was expelled consisted of a
breach of the registration rules for foreign nationals. This offence
is punishable under the Code of Administrative Offences by a fine of
RUB 500 to 1,000 (about 11 to 23 euros (EUR)) and possible
administrative removal. While this offence does not appear to be
particularly serious, the authorities noted that in February 2006 the
first applicant had been found to be in possession of an invalid
Russian identity document, and that after that he had taken no steps
to regularise his stay. Thus, his stay in Russia was illegal for a
long period of time and certainly after the document in question had
been seized. Nevertheless it did not appear that the first applicant
had taken any steps to regularise his status. The domestic courts
attached particular weight to this fact when deciding on the first
applicant’s expulsion.
- The
Court further notes that the first applicant pleaded not to be
expelled in view of his marriage to a Russian national before the
district court and, through his lawyer, before the appeal court.
These arguments were examined and dismissed by the courts, which
concluded that, in the circumstances of the case, the applicants’
family situation did not outweigh the interest of public order.
- Furthermore,
the Court notes that the applicants raised no additional arguments
related to their family or social ties which, in accordance with the
Court’s case-law cited above, could have influenced the
balancing exercise.
- In
such circumstances, the Court concludes that in striking a balance
between achieving the legitimate aim and the applicants’
protected interests, the State did not exceed the margin of
appreciation which it enjoys in the area of immigration matters.
Consequently, there was no violation of Article 8 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 OF
THE CONVENTION
- The
first applicant argued that the seizure of the Russian passport in
February 2006 had constituted an interference with his right to
freedom of movement. Article 2 of Protocol No. 4 provides:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence. ...”
- The
Court has already found that the first applicant had not possessed
Russian nationality and that he could not claim to have resided there
lawfully at the time when the passport had been seized. Consequently,
Article 2 of Protocol No. 4 is not applicable in the instant case and
this complaint is inadmissible for being incompatible ratione
materiae, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
- The
applicants’ representative complained that by expelling the
first applicant on 5 December 2007 despite the measure indicated by
the Court under Rule 39 of the Rules of Court, Russia had failed to
comply with its undertaking under Article 34 of the Convention not to
hinder the applicant in the exercise of his right of individual
application. Article 34 of the Convention provides:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
Rule
39 of the Rules of Court provides:
“1. The Chamber or, where appropriate,
its President may, at the request of a party or of any other person
concerned, or of its own motion, indicate to the parties any interim
measure which it considers should be adopted in the interests of the
parties or of the proper conduct of the proceedings before it.
2. Notice of these measures shall be given to
the Committee of Ministers.
3. The Chamber may request information from
the parties on any matter connected with the implementation of any
interim measure it has indicated.”
A. Arguments of the parties
- The
Government admitted that the first applicant’s deportation to
Uzbekistan had occurred in breach of Rule 39 of the Rules of Court.
They referred, however, to the objective impediments which had
prevented the authorities from complying with the interim measure in
question. These impediments arose in view of the short notice
involved and the difference in time between Strasbourg, Moscow and
Tyumen. They submitted that the Court’s letter of 3 December
2007 had reached their office in the evening of that day, after
working hours. They further explained that on 4 December 2007, after
they had been notified of the Court’s indication under Rule 39,
they had sent the relevant requests to the Ministry of the Interior
and the Federal Migration Service of Russia. On the same day the
appropriate territorial body of the FMS had been identified. The
information in question was not transferred in time in view of
further time difference between Moscow and Tyumen, from where the
deportation was scheduled. The Government cited the need to contact
the federal ministries which in turn requested information from the
local authorities. The preparation of these inquiries, their posting
and the obtaining of necessary information required some time. Late
at night on 4 December 2007 information arrived about the first
applicant’s deportation by plane from Tyumen, at 2. a.m. local
time on 5 December 2007. The Court’s second letter of 4
December 2007 about the scheduled flight had arrived after the
deportation had already occurred.
- The
applicants disputed the relevance of the difficulties cited by the
Government. They pointed out that taking into account the time
difference, more than 24 hours elapsed between the notification of
the respondent Government of the interim measure and the deportation.
They also pointed out that Mrs Ryabinina, the applicants’
counsel, had on 4 December 2007 notified the law-enforcement
authorities in Tyumen by fax of the Court’s ruling. They argued
that the Russian authorities had deported the first applicant in full
knowledge of the interim measure to the contrary imposed by the
Court.
B. The Court’s assessment
1. General principles
- The
Court reiterates that, by virtue of Article 34 of the Convention,
Contracting States undertake to refrain from any act or omission that
may hinder the effective exercise of an individual applicant’s
right of application.
- In
cases such as the present one where there is plausibly asserted to be
a risk of irreparable damage to the enjoyment by the applicant of one
of the core rights under the Convention, the object of an interim
measure is to maintain the status quo pending the Court’s
determination of the justification for the measure. As such, being
intended to ensure the continued existence of the matter that is the
subject of the application, the interim measure goes to the substance
of the Convention complaint (see Mamatkulov and Askarov v. Turkey
[GC], nos. 46827/99 and 46951/99, § 108, ECHR
2005 I; Shamayev and Others v. Georgia and Russia,
no. 36378/02, § 473, ECHR 2005 III; and Aoulmi v.
France, no. 50278/99, § 103, ECHR 2006 I
(extracts)).
- Thus,
indications of interim measures given by the Court permit it not only
to carry out an effective examination of the application but also to
ensure that the protection afforded to the applicant by the
Convention is effective; such indications subsequently allow the
Committee of Ministers to supervise execution of the final judgment.
Such measures thus enable the State concerned to discharge its
obligation to comply with the final judgment of the Court, which is
legally binding by virtue of Article 46 of the Convention (see
Mamatkulov and Askarov, cited above, § 125;
Shamayev, cited above, § 473; and Aoulmi,
cited above, § 108).
- Article 34 will be breached if the authorities of a
Contracting State fail to take all steps which could reasonably have
been taken in order to comply with the interim measure indicated by
the Court (Paladi v. Moldova [GC], no.
39806/05, § 88, ECHR 2009 ...). In examining a
complaint under Article 34 concerning the alleged failure of a
Contracting State to comply with an interim measure, the Court will
not re-examine whether its decision to apply interim measures was
correct. It is for the respondent Government to demonstrate to the
Court that the interim measure was complied with or, in an
exceptional case, that there was an objective impediment which
prevented compliance and that the Government took all reasonable
steps to remove the impediment and to keep the Court informed about
the situation (Paladi, cited above, § 92).
2. Application of the above principles to the present
case
- The Court observes that the Government did not dispute
their obligation under Article 34 of the Convention to comply with
the measure indicated by the Court. Rather, they contended that the
competent authorities had done everything in their power to comply
with that measure; however, in view of the short notice and the
difference in time between Strasbourg, Moscow and Tyumen the
information had failed to reach the intended recipients before the
expulsion had occurred.
- The
Court notes that the letter concerning the application of Rule 39 was
published on its secure website at 9.50 p.m. Moscow time on
3 December 2007. The Government do not indicate when they
actually acquainted themselves with its content, but presumably no
later than on the morning of 4 December 2007. They then forwarded the
information to the Ministry of the Interior and to the relevant
territorial branch of the FMS. Moreover, on 4 December 2007 the
applicants’ representative herself forwarded the Court’s
notification to the Tyumen Prosecutor’s Office and the local
department of the Ministry of the Interior. In the course of the same
day, the representative learnt of the Tyumen Regional Court’s
decision to uphold the deportation order on appeal and alerted the
Court. She also indicated that the next flight to Uzbekistan from
Tyumen was scheduled for 5 December 2007, 2 a.m. local time (midnight
in Moscow and 10 p.m. CET). By a second letter, published on its
secure website on 4 December 2007 at 10.30 p.m. Moscow time, the
Court informed the Government of these developments (see paragraphs
31-35 above).
- To
sum up, the first applicant was put on a plane about 26 hours after
the notification of the interim measure to the respondent Government.
This time-period included one full working day, when all the relevant
offices had been open and no difficulties in communication had been
reported. The Court is cognisant of the inevitable difficulties which
arise when differences in time are involved; however in the present
case they clearly were not of such nature as to explain the failure
to transmit the message to the service responsible (compare with
Muminov, cited above, § 135). Indeed, in the first
letter of 3 December 2007 the Court had already indicated the first
applicant’s place of detention and it should have been
relatively simple to identify the responsible body. The Court also
remarks that in the case under examination, the first applicant’s
deportation was upheld by the Tyumen Regional Court and the necessary
formalities to carry it out were completed in an even shorter period
of time.
- The
Government relied on the need to contact various ministries in Moscow
and to obtain information from the local services before any steps
could be ordered. The working day of 4 December 2007 was thus, they
argued, not sufficient to comply with the measure indicated by the
Court. The Court does not find such an excuse compatible with the
nature of urgent requests aimed at preventing a person’s
imminent deportation. By their definition, these decisions are not
complex to implement, since all that is needed is to inform the local
authority responsible for carrying out the deportation and/or the
administration of the detention centre about the temporary ban on the
person’s removal from the territory of the contracting State.
In view of all the information in its possession, the Court is not
satisfied that the Government in the present case took all reasonable
steps to comply with the Court’s ruling.
- In
the light of the above, the Court concludes that the Government have
not shown that there was an objective impediment to compliance with
the interim measure indicated under Rule 39 of the Rules of Court.
Accordingly, there has been a violation of Article 34 of the
Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
first applicant also complained that the seizure of his Russian
passport in February 2006 had violated his right to be presumed
innocent. He stated that the procedure under which his expulsion had
been decided had been unfair. He invoked Article 6 of the Convention.
However, having regard to all the material in its possession, and in
so far as these complaints fall within its competence, the Court
finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
representative claimed, on the first applicant’s behalf,
monetary compensation in respect of non-pecuniary damage, leaving the
amount to be awarded to the Court’s discretion. She also
invited the Court “to recognise the detriment to the
applicant’s ‘life plan’... caused by his unlawful
removal from Russia in violation of the Convention”. She
further requested that the respondent Government be required to
undertake, via their diplomatic contacts in Uzbekistan, measures
aimed at re-establishing contact with the first applicant and his
relatives, commuting his sentence by way of amnesty or pardon,
securing his eventual release and facilitating his departure for a
country which would be willing to accept him. The applicants’
representatives also claimed a total of 16,264 euros (EUR) in
reimbursement of costs and expenses.
- The
Court has previously found that as a result of a failure by a country
to comply with its obligations under Article 34 of the Convention the
applicants can suffer a non-pecuniary damage which cannot be repaired
solely by such a finding (see Mamatkulov and Askarov, cited
above, § 134).
- The
Court observes, however, that that the second applicant died in 2008
and the first applicant is currently serving a sentence of
imprisonment in Uzbekistan. His representatives have had no contact
with him lately. Thus, the Court considers that the question of the
application of Article 41 is not ready for decision. Accordingly, it
should be reserved and the subsequent procedure fixed, having regard
to any agreement which might be reached between the Government and
the applicant (Rule 75 § 1 of the Rules of Court).
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint under Article
8 of the Convention admissible and the remainder of the application
inadmissible;
- Holds by four votes to three that there has been
no violation of Article 8 of the Convention;
- Holds unanimously that there has been a
violation of Article 34 of the Convention;
- Holds unanimously that the question of the
application of Article 41 is not ready for decision; accordingly
(a) reserves
the question;
(b) invites
the Russian Government and the applicant to submit, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 3 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Rozakis, Steiner and Spielmann is annexed to this judgment.
S.N.
C.L.R.
PARTLY DISSENTING OPINION OF JUDGES ROZAKIS,
STEINER
AND SPIELMANN
- The
majority have found no violation of Article 8 of the Convention.
- We
are unable to agree with this finding.
- The
first applicant arrived in Russia from Uzbekistan and got married to
Mrs Maymuna Kamaliyeva in 2000. Notwithstanding their failure to have
him extradited to Uzbekistan in 2006, the Russian authorities did not
hesitate to expel the first applicant in 2007, thus failing to comply
with a decision of the Court under Rule 39 and hence in violation of
Article 34 of the Convention. This was an administrative expulsion,
for a minor offence, in contravention of the proportionality
requirement under Article 8 of the Convention.
- Indeed,
as the Court has rightly accepted, both applicants were in a genuine
family relationship (see paragraph 60). The Court also found that the
offence for which the first applicant had been expelled (breach of
the registration rules for foreign nationals, punishable by a fine of
about 11 to 23 euros (EUR)), does not appear to be a particularly
serious one (see paragraph 62).
- The
majority have justified their decision by the fact that the domestic
courts dismissed the arguments raised by the first applicant (see
paragraph 63). This should not have been decisive. In our view,
the mere fact that the domestic courts examined the first applicant’s
arguments should not lead the Court to conclude that the applicants’
family situation did not outweigh the interests of public order, in
the absence of a detailed analysis of the proportionality
requirement. Once again, and regrettably so, the Court has had the
reflex action of applying the concept of the margin of appreciation
to the circumstances of the case without examining whether the
domestic courts complied with the Üner criteria,
reiterated in paragraph 61 of the judgment.
- In
our view, the application of those criteria should have led the Court
to conclude that the expulsion violated Article 8 of the Convention.
Indeed, applying those criteria, we would like to emphasise that the
offence committed by the first applicant was a petty one, that he
stayed for many years in Russia, that he was married to a Russian
national and behaved well during his stay. Moreover, the expulsion
should also be seen in context. The authorities knew that the first
applicant was under the threat of prosecution in Uzbekistan for
offences for which extradition had previously been refused by the
Deputy General Prosecutor (paragraph 22). The mere fact that the
first applicant had not taken any steps to regularise his status
(paragraph 62) should not have been decisive.
- Under
those circumstances, and for these reasons, we are of the opinion
that Article 8 of the Convention has been violated.
