Application no. 35880/11
Akmalzhan Adakhamovich SHERMATOV and Others
The European Court of Human Rights (Third Section), sitting on 3 September 2019 as a Committee composed of:
Alena Poláčková, President,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar.
Having regard to the above application lodged on 15 May 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
1. 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.
2. The applicants live in the town of Syktyvkar, Komi Republic, Russia. They are represented before the Court by Mr E. Mezak, a human rights defender from Syktyvkar and Mr A. Laptev, a lawyer practising in Moscow.
The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
1. Background information
4. On an unspecified date prior to 2002 the first applicant (a Kyrgyz national) moved to Russia. Since 2002 he resided in Syktyvkar, where in 2006 he established a de facto family relationship with a Russian citizen (the second applicant), with whom he had two sons between 2007 and 2009 (the third and fourth applicants, both Russian nationals). The first applicant’s paternity of the third and fourth applicants was not officially established. He was not recorded as their father on their birth certificates.
5. Between 2002 and 2009 the first applicant’s residence in Russia was authorised. On 12 May 2009 the authorisation expired. He did not regularise his stay and continued living in Russia illegally.
6. On an unspecified date in 2010 or 2011 the first and second applicants had their third child; it is unclear when the first applicant registered his paternity in respect of the child.
2. The first expulsion order against the first applicant
7. 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 Code of Administrative Offences of the Russian Federation (the COA), 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.
8. The court fined the applicant RUB 3,000 and ordered his administrative removal (expulsion) from Russia. Following the expulsion, the first applicant would be unable to re-enter Russia for a period of five years.
9. From the documents submitted it transpires that the decision was not appealed against and became final. The applicant’s removal was not carried out, he did not pay the imposed fine and he continued to reside in Russia without authorisation.
3. The second expulsion order against the first applicant and its appeal
10. On 12 April 2011 the Ezhvinsk District Court (“the District Court”) in Syktyvkar found the first applicant liable for the same administrative offence of unlawful residence in Russia, ordered his expulsion from the country and his placement in the special detention facility for foreigners in Komi Republic pending the removal. Following the expulsion, the first applicant would be unable to re-enter Russia for a period of five years.
11. In its decision to expel the first applicant, the District Court stated that he was living in Russia illegally since 12 May 2009, that on 20 May 2010 he had already been found liable for a similar violation, that the term of that punishment was still in force and that he had not made any attempts to regularise his stay in Russia since 20 May 2009. As for the first applicant’s argument about the potentially adverse effect of the exclusion on his relationship with his minor children (the third and second applicants), the Town Court noted that his paternity was not officially established, and that no reliable evidence proving the existence of family ties between them was presented at the hearing.
12. 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, children, mother and uncle, all of whom were Russian nationals, 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.
13. 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, having noted that the applicant had failed to regularise his immigration status after the decision of 20 May 2010. As for the first applicant’s family situation, he had failed to submit appropriate proof of the existence of family ties between him and the other applicants. The court further noted that there were no grounds for the applicant’s detention at the special detention centre as, pending removal, he could stay with his mother or uncle, both of whom resided in Syktyvkar. The court upheld the exclusion order, but ordered that he be released from the detention centre.
14. From the documents submitted it transpires that the decision of 12 April 2011 became final, but the applicant failed to pay the imposed fine, his removal was not carried out and he continued to reside in Russia without authorisation.
15. On 29 August 2013 the District Court decided to terminate the execution of its decision of 12 April 2011 concerning the first applicant’s administrative removal from Russia due to the expiration of the statutory time-limits.
4. Information submitted by the Government on the first applicant’s immigration status
16. On 1 August 2013 the District Court found the first applicant guilty of an unauthorised stay in Russia in violation of Article 18.8 of the COA and fined him RUB 4,000.
17. On 3 August 2015 the Knyazhnopogostskiy District Court in Komi found the first applicant guilty of an unauthorised stay in Russia Article 18.8 of the COA and fined him RUB 3,000.
18. On 28 January 2017 the Town Court found the first applicant guilty of an unauthorised stay in Russia in violation of Article 18.8 of the COA and fined him RUB 4,000.
19. According to the Government, the first applicant has not taken any steps to legalise his status and continues to reside unlawfully in Russia.
5. Information concerning the first applicant’s family life
(a) Information submitted by the Government
20. According to the Government, the first applicant did not experience family life with the other applicants owing to his commission of a number of administrative infractions, including those committed against the other applicants. Without submitting the relevant documents, the Government referred to the following facts.
21. From the documents submitted it transpires that on an unspecified date between 2011 and 2015 the first applicant registered his paternity in respect of children he had with the second applicant, including the second and third applicants.
22. On 12 April 2011 the Vezhdinskiy sector Justice of the Peace in the Ezhvinsk District found the first applicant guilty of disorderly conduct and sentenced him to a two-day arrest.
23. On 16 April 2012 the Magistralniy sector Justice of the Peace in the Ezhvinsk District ordered that the first applicant pay the second applicant alimony for their children until the age of majority.
24. On 7 July 2013 the Vezhdinskiy sector Justice of the Peace in the Ezhvinsk District found the first applicant guilty of driving while intoxicated and sentenced him to a seven-day arrest.
25. On 2 September 2013 the Slobodskiy sector Justice of the Peace in the Ezhvinsk District found the first applicant guilty of insult and battery and sentenced him to 240 hours of community service.
26. On 14 October 2013 the District Court found the first applicant guilty of theft of the second applicant’s property and sentenced him to one and a half years of imprisonment with one year probation. On 22 August 2014, the latter was extended for one month.
27. On 3 December 2013 the District Court again found the first applicant guilty of theft of the second applicant’s property and sentenced him to six months and fifteen days of detention in a penal settlement.
28. On 22 December 2015 the District Court granted the second applicant’s claim against the first applicant concerning the annulment of his parental rights in respect of their children for the lack of parental care on his part. That decision became final on 25 February 2106.
(b) Information submitted by the applicants
29. The applicants did not dispute the above facts as presented by the Government (see paragraphs 16-18 and 22-28 above), but submitted that they maintained their family life in Russia, despite hardships caused by the first applicant’s unauthorised stay in the country and, therefore, his lack of official employment. Without submitting the relevant documents, they referred to the following facts.
30. On an unspecified date between 2007 and April 2011 the first applicant wanted to establish paternity in respect of the third and fourth applicants at a State Registry Office, but was informed that it was possible only if he had a duly authorised stay in Russia.
31. The fact of family life between the applicants was confirmed by the decisions taken by the domestic courts in respect of the first applicant’s administrative infractions committed between 2011 and 2017: the courts fined the first applicant for the failure to legalise his immigration status, but did not order his expulsion, having taken into account that he had children with the second applicant.
32. According to the applicants, the second applicant’s claim against the first applicant to annul his parental rights in respect of their children was lodged with the aim of obtaining the status of a single mother by the second applicant in order to apply for social aid.
B. Relevant domestic law
33. For a summary of the relevant domestic law and international materials see Muradeli v. Russia, no. 72780/12, §§ 45-55, 9 April 2015.
34. Article 31.9 of the Russian Code of Administrative Offences provides that a decision on administrative removal is enforceable within two years of becoming final.
35. The applicants complained under Article 8 of the Convention that the decision of 12 April 2011 to remove the first applicant subjected him to the risk of deportation from Russia which would adversely affect their right to respect for family life. Under Article 13 of the Convention, they complained that they had had no effective domestic remedies against the violation alleged.
36. The applicants complained that the decision of 12 April 2011 ordering the first applicant’s expulsion 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. The applicants relied on 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. The Government’s submissions
37. The Government contested that argument. They stressed that the applicant had failed to legalise his status in Russia despite his unlawful residence in the country for several years and his relationship with the second applicant, who had been aware of his precarious immigration status.
38. The Government stressed that the domestic authorities had never issued a deportation order in respect of the first applicant, who continued to reside in Russia unimpeded. Moreover, the expulsion order of 12 April 2011 was no longer enforceable and the first applicant could not be subjected to removal on the basis of that order.
B. The applicant’s submissions
39. The applicants complain under Article 8 of the Convention that the expulsion order failed to take into account their family life as it made the first applicant liable to administrative removal, resulting in the separation of their family. They submitted that given the first applicant’s lawful residence in Russia between 2002 and 2009, he should have been considered a long‑term, settled migrant and therefore, could not be expelled. Nonetheless, domestic courts neither took this information into account, nor allowed the first applicant to summon witnesses and order a DNA test to establish his paternity of the third and fourth applicants, thus depriving him of the opportunity to present evidence of an established family life.
40. The applicants submitted that even though the first applicant continued to reside in Russia, due to the lack of legal grounds for his residence he was under the constant threat of removal entailing a five to ten year subsequent re-entry ban owing to two consecutive exclusion orders (of 20 May 2010 and 12 April 2011) issued against him. The applicants stressed that the Court should examine their application as it stood at the time that it was lodged, that is only in respect of the proceedings concerning the exclusion order of 12 April 2011.
C. The Court’s assessment
41. At the outset, the Court notes that the applicants did not inform the Court of developments in their case which had occurred after lodging the application at the Court, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, which provides as follows:
“7. Applicants shall keep the Court informed of … all circumstances relevant to the application.”
42. It was only in their reply to the Government’s observations on the admissibility and merits of the case submitted in March 2018 that the applicants acknowledged the developments which had occurred after they had lodged their application in 2011, and of which they had failed to inform the Court. They then stressed that their application concerned only the proceedings relating to the decision of 12 April 2011.
43. The Court leaves aside the issue of the first applicant’s alleged status of a settled migrant in Russia as well as the question concerning the strength of his family ties with the other applicants, as the present application is in any case inadmissible, for the following reasons.
44. The Court notes that the Russian authorities took no steps towards the applicant’s removal during the period between 20 May 2010, when the first decision to expel the first applicant was issued, and 22 May 2018 (the date of submission of the applicants’ observations to the Court). Nothing had prevented the authorities from doing so, given that throughout the entire period the first applicant’s presence in the country was known to them, along with his failure to legalise his immigration status (see paragraphs 16‑18 above).
45. The Court further notes that according to the decision of 29 August 2013, the execution of the exclusion order issued against the first applicant on 12 April 2011 was terminated by the court that had issued it due to the expiration of the statutory time-limits (see paragraph 15 above). Moreover, in the following proceedings against the first applicant’s administrative violations, none of the authorities concerned took a decision to expel the first applicant (see paragraphs 16-18 above), despite his illegal immigration status.
46. The Court is aware that the absence of any legitimate grounds authorising the first applicant’s stay in the country required him to leave Russia (see paragraph 19 above). Nevertheless, the Court considers that such a situation did not necessarily entail that his exclusion was inevitable and impending. Under Russian law, a specific decision requiring a foreigner’s removal from the country must be taken before that foreigner can be removed,for instance, an extradition order, a decision imposing the penalty of administrative removal for an administrative offence, or a decision declaring his presence in Russia undesirable and ordering his deportation (see, by way of comparison, A.L. (X.W.) v. Russia, no. 44095/14, § 65, 29 October 2015). Furthermore, any such decision can be challenged (see paragraphs 28-29 above).
47. The Court considers that in the circumstances of the present case, given the absence of such a decision and, in particular, the court’s decision to terminate the execution of the exclusion order of 12 April 2011 (see paragraph 15 above) and further decisions concerning the first applicant’s failures to comply with immigration regulations which did not result in a new exclusion order against him (see paragraphs 16-18 above), the applicants’ arguments concerning potential adverse effects on the first applicant’s expulsion on their family life arising from his possible deportation from Russia remain speculative (see, mutatis mutandis, A.R. v. Russia (dec.), no. 25923/15, 10 May 2016 and Razigdad v. Russia, (dec.), no. 30764/13, 20 November 2018).
48. In view of the above, the applicants’ complaint under Article 8 of the Convention is manifestly ill‑founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
49. The above findings do not prevent the applicants from lodging a new application before the Court and making use of the available procedures in respect of any new circumstances, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011, and Bakoyev v. Russia, no. 30225/11, § 100, 5 February 2013).
50. As regards the applicants’ Article 13 complaint, the Court considers that it is unsubstantiated and should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on26 September 2019.
Stephen Phillips Alena Poláčková