CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 juillet 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .sF4EFF253 { border-spacing:1.5pt } .s90CF2D81 { border-style:solid; border-width:0.75pt; padding:0.38pt; vertical-align:middle } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } Published on 19 July 2021   THIRD SECTION Application no. 2317/19 Mekhmet AYDOGDU against Russia and 3 other applications (see list appended) communicated on 2 July 2021 STATEMENT OF FACTS The facts of the case, as submitted by the applicants, may be summarised as follows. The circumstances of the case Application Aydogdu v Russia (no. 2317/19) 1.     The applicant, Mr Mekhmet Aydogdu, is a Turkish national, who was born in 1977 and lives in Turkey. He is represented before the Court by Ms   E.   Filimonova, a lawyer practising in Izhevsk, Udmurtia, Russia. (a)    Background information 2.     The applicant arrived in Russia in or about 2006. In July 2007 he married a Russian national, Ms L., with whom they had a son in 2010, also a Russian national. They lived together as a family. In 2012 the applicant and his wife purchased the family house and a plot of land. 3.     The applicant had authorisation to work in Russia, was employed at a construction company and was the family’s breadwinner. He had no record of either administrative or criminal offences and resided in the country based on temporary residence permits. His last residence permit authorised his stay until 26 September 2017. 4.     On 29 July 2016 the applicant was informed by the Udmurtia Department of the Federal Migration Service (the FMS) of their decision to annul/revoke his residence permit (the exclusion order) upon recommendation by the Federal Security Service (the FSB) of 3 June 2016, according to which he represented a threat to Russia’s national security. No explanation concerning the grounds for the annulment was given. The applicant was to leave Russia within 15 days. 5.     The applicant appealed against that decision to the Oktyabrskiy District Court in Izhevsk, which on 6 October 2016 upheld the exclusion order. It examined neither the reasons for the exclusion, nor its effect on his family life. The applicant further appealed to the Udmurtia Supreme Court. On 12   May 2017 the Udmurtia Supreme Court upheld the exclusion order. On 21   November 2017 the Russian Supreme Court finalised this decision. (b)    The removal order and the applicant’s appeals against it 6.     On 12 July 2018 the Uvinskiy District Court sanctioned the applicant for a breach of Article 18.8 of the Code of Administrative Offences (living without a valid residence permit or non-compliance with the established procedure for residence registration) as his presence in the country was allowed only until 27 September 2017. 7.     The court sanctioned him to a fine of 3,000 Russian roubles (RUB) along with administrative removal, which implied automatic five-year re-entry ban (the removal order). The applicant was placed in a special temporary detention centre pending removal. 8.     The applicant challenged the removal order before the Udmurtia Supreme Court. He argued that his removal would disrupt his family life, and, given that he was the breadwinner, be detrimental to his family’s financial situation. Furthermore, the exclusion order of 29 July 2016 was unsubstantiated, had been issued in violation of Article 8 of the Convention and could not have served as the basis for his removal. 9.     On 25 July 2018 the Udmurtia Supreme Court upheld the removal order. It did not examine the applicant’s allegations of the adverse effect of his removal on his family life and reasoned, inter alia , as follows: “... the applicant resided in the Russian Federation unlawfully, failed to take due steps to regularise his situation and legalise his stay in the country, was not officially registered as a migrant, neither had employment nor paid taxes ... The local department of the FSB had taken the decision that the applicant’s stay in the Russian Federation represented a threat to its national security, which was [subsequently] confirmed by the relevant court decisions ...” 10.     On 7 August 2018 the applicant was subjected to administrative removal from Russia. 11.     On 9 October 2018 the applicant’s lawyer further appealed to the Udmurtia Supreme Court. He stated that both, the exclusion and the removal, orders were issued in complete disregard of the applicant’s right to respect for family life protected by Article 8 of the Convention. The outcome of this appeal is unknown. Application Kholikov v Russia (no. 3813/19) 12.     The applicant, Mr Fakhriddin Nadzhmurodovich Kholikov, is a Tajikistani national, who was born in 1988 and lives in Azovo. He is represented before the Court by Mr B.   Ponosov, residing in Ocher. (a)    Background information 13.     On an unspecified date prior to 2010 the applicant arrived in Russia. In 2011 he met Ms O. and in January 2012 they started living together as a family. On 15 October 2014 they registered their marriage. Between November 2012 and June 2018 the couple had three children. Together they purchased the family house in Azovo. The applicant was the family breadwinner. It appears that his stay in Russia was authorised until 27 June 2015. 14.     On 24 April 2015 the applicant applied for a three-year temporary residence permit. On an unspecified date in 2015 his application was rejected by the Department of the Federal Migration Service in the Perm Region (the Perm FMS), but he was not informed thereof. 15.     On 27 June 2016 the applicant suffered serious injuries as a result of a fall from the scaffolding at a construction site. Between 30 June and 11   July 2016, he was hospitalised, one of his kidneys was removed. After the hospitalisation, he required constant care and was dependent on others for at least three more months. 16.     On 13 March 2018 the applicant went to the Migration department of the Karagayskiy district police (the police) to apply for a residence permit. He was detained there for a breach of Article 18.8 of the Code of Administrative Offences (living without a valid residence permit or non-compliance with the established procedure for residence registration) and taken to the Karagayskiy District Court (the District Court). On the same date the court ordered that the applicant be fined RUB   3,000 roubles without administrative removal, having taken into account that he was married to a Russian national, that they had three children and that he had undergone complex medical treatment. (b)    Exclusion order against the applicant and the appeals against it 17.     On 28 August 2018 the applicant again went to the police to apply for a residence permit. He was again detained there for a breach of Article   18.8 of the Code of Administrative Offences and then taken to the District Court. At the hearing he stated that his wife and children were Russian nationals, that the delay in regularising his immigration status was caused by the state of his health and that he was the family breadwinner. He stated that imposition on him of the administrative removal would imply five-year re-entry ban which would disrupt his family life. 18.     On 28 August 2018 the District Court ordered the applicant’s administrative removal from Russia with subsequent five ‑ year re-entry ban (exclusion order) as well as payment of RUB 3,000 referring to the repeated violation of the immigration regulations. The court did not examine the applicant’s arguments concerning the disruptive effect of the exclusion on his family life and placed him in detention pending removal. 19.     The applicant appealed against the above decision alleging that his removal would constitute a disproportionate measure in view of his family life. In particular, he stated that he was the family’s breadwinner and that the work-related injury had precluded him from regularising his stay in Russia in a timely manner. Referring to Article 8 of the Convention, the applicant also alleged that the five-year re-entry ban would negatively affect his relationship with his children and wife, who would not be able to adjust to life in Tajikistan. 20.     On 25 September 2018 the Perm Regional Court examined the appeal and upheld the exclusion order. It did not examine the arguments concerning the exclusion’s adverse effect on the applicant’s family life having stated in general terms that “having children and registered marriage to a Russian national does not absolve a foreign national from complying with the law on the terms of temporary stay in the Russian Federation ...” 21.     On the same date the exclusion order became final and enforceable. It is unclear whether the applicant was subjected to the administrative removal from Russia and if so, under what circumstances. Application Fatkhudinov v Russia (no. 61447/19) 22.     The applicant, Mr Alidzhon Bakhodurovich Fatkhudinov, is Tajikistani national, who was born in 1990 and lives in Perm. He is represented before the Court by Mr B.   Ponosov, residing in Ocher. (a)    Background information 23.     At some point prior to 2010, the applicant arrived in Russia from Tajikistan. It appears that he resided in Russia based on bilateral visa-free agreement authorising a visa-free stay in Russia for 90 days out of 180 days. In order to comply with the immigration regulations, he had to regularly leave Russia for Tajikistan. 24.     At some point prior to 2015 the applicant started living together as a family with Ms M., along with her son A.M., who was born in 2011. 25.     It appears that on 22 September 2015 the applicant was detained for a breach of Article 18.8 of the Code of Administrative Offences (living without a valid residence permit or non-compliance with the established procedure for residence registration ) and taken to a court in Perm. On the same date the court sanctioned him to payment of a fine along with administrative removal from Russia. It is unclear whether that removal implied automatic five-year re-entry ban. The applicant did not appeal against that decision. 26.     On an unspecified date between October and December 2015, the applicant left for Tajikistan to obtain documents proving the lack of marriage in that country. 27.     On 25 December 2015 the applicant re-entered Russia. It is unclear on what grounds he did it and until when his stay was initially authorised and by what authority. From the documents submitted it transpires that his stay was eventually authorised until 15 October 2018 (see below the text of the exclusion order issued by the Dzerzhinsky District Court in Perm). 28.     On 13 January 2016 the applicant officially registered his marriage with Ms M. in Russia. According to him, thereafter he continued to reside in Russia illegally as he had to take care of his wife who had health problems. (b)    Exclusion order against the applicant and the appeals against it 29.     On 15 October 2019 the applicant was again detained for a breach of Article 18.8 of the Code of Administrative Offences and on 16 October 2019 he was taken to the Dzerzhinsky District Court in Perm . On that date the court found him guilty of a breach of Article 18.8 of the Code of Administrative Offences and ordered that he be fined for 2,000 roubles and subjected to administrative removal from Russia, with subsequent five-year re-entry ban (the exclusion order). 30.     At the hearing, the applicant explained that he was precluded from leaving Russia on time by his family situation, as he had sick wife who was a Russian national and was dependent on him. 31.     The court, having stated that being married to a Russian national did not make it “impossible to use the administrative removal as punishment” and, referring to the fact that his stay had been authorised only until 15   October 2018 , ordered the applicant’s removal from Russia and placed him in detention pending removal. 32.     The applicant appealed against the exclusion order to the Perm Regional Court. He referred to his marriage to a Russian national, stated that his wife was sick and that he had failed to leave the country on time because he had had to take care of her. He alleged that the five-year re-entry ban following his removal would disrupt his family life. 33.     On 23 October 2019 the Regional Court upheld the exclusion order. It stated that the applicant had already been found liable for an immigration violation in 2015 and his administrative removal had been ordered. Furthermore, he had failed to take steps to regularise his immigration status. As for his explanations of the failure to comply with the time limit of leaving Russia due to his wife’s state of health, the court found that it was unsubstantiated. Finally, it stated that the removal was not an excessive measure as the applicant had already demonstrated lack of respect to Russian immigration laws and having a Russian wife did not preclude his removal from the country. 34.     From the documents submitted it is unclear whether the applicant was subjected to administrative removal from Russia and if so, under what circumstances. Application Safarov v Russia (no.44333/20) 35.     The applicant, Mr Botir Safarov, is a national of Uzbekistan, who was born in 1987. Prior to his deportation to Uzbekistan, he resided in Petropavlovsk-Kamchatskiy. The applicant is represented before the Court by Ms Anna Maralyan, a lawyer practising in Strasbourg. (a)    Background information 36.     The applicant moved to Russia from Uzbekistan on or before 2007. In 2009 he started cohabiting with a Russian national Ms B. In 2013 they married and in 2016 they had a daughter, also a Russian national. It appears that the applicant’s stay in Russia was authorised until 21 May 2017. 37.     On 26 June 2014 the Federal Security Service (the FSB) issued a decision banning the applicant’s re-entry into Russia for five years, until 26   June 2019 (the exclusion order). The reasons for the sanction were unknown. The applicant learned about that order on 6 June 2019 when he was placed in detention pending deportation (see below). 38.     Between April 2014 and September 2016, the applicant left and re ‑ entered Russia on several occasions. In 2018 the applicant purchased a flat in Petropavlovsk-Kamchatskiy. 39.     It appears that at some point in 2019 the police in Petropavlovsk ‑ Kamchatskiy opened a criminal case against the applicant under Article 177 of the Criminal Code (non-payment of a debt) and imposed on him as the measure of restraint the undertaking to appear ( обязательство о явке ). (b)    Exclusion of the applicant and the appeals against it (i)       Appeals against the removal order of 27 May 2019 40.     On 27 May 2019 the FSB sent a letter to the Kamchatka Regional Department of the Ministry of Interior (the police) informing them about the exclusion order of 26 June 2014. 41.     On the same date, 27 May 2019, the police issued decision on the applicant’s deportation with the subsequent five-year re-entry ban (the removal order). However, the document did not refer to the FSB’s exclusion order of 26 June 2014; it cited no reasons for the sanction, other than stating in general terms that “Mr Safarov had been subjected to administrative sanctions on several occasions for non-compliance with the terms of his stay [in Russia] and violation of traffic regulations”. On 6 June 2019 the Elizovskiy District Court placed the applicant in detention pending removal. 42.     On 13 June 2019 the applicant appealed against the removal order to the Petropavlovsk-Kamchatskiy Town Court (the Town Court). He requested the stay of its execution and asked that it be overruled as unlawful as it provided no information as to the grounds for the removal and failed to take into account the removal’s adverse effect on his family life. 43.     On 14 June 2019 the Town Court granted the applicant the stay of the execution of the removal order until the end of proceedings concerning its lawfulness. 44.     On 27 February 2020 the Town Court examined the applicant’s appeal. At the hearing the applicant stressed the adverse effect of the sanction on his family life with his Russian wife and daughter and pointed out that he had no family ties or property left in Uzbekistan. He also stated that while the removal order of 27 May 2019 had been based on the exclusion order of 26 June 2014, he had learnt of the latter’s existence only on 6 June 2019; if he were to learn about it sooner, he would have left the country of his own accord to avoid the deportation which carried the subsequent five-year re-entry ban. Furthermore, at present, in view of the pending criminal proceedings against him, he was obliged to stay in Russia. 45.     On the same date, 27 February 2020, the Town Court rejected the appeal. It stated that given that the removal order had been issued on 27   May 2019, that is during the period of validity of the exclusion order issued on 26 June 2014 banning the applicant’s re-entry until 26 June 2019, it was “lawful and substantiated”. Furthermore, the period of the applicant’s stay in Russia was authorised only until 21 May 2017. In addition, it stated in general terms that between February 2010 and February 2019 the applicant had been subjected “to administrative sanctions for violations of the rules of stay in the Russian Federation and of traffic regulations”. As for the applicant’s allegations of the adverse effect of the five-year exclusion on his family life, the court stated: “... when taking the decision [on the expulsion] the executive body lawfully prioritised interests of the majority of the population whose security could not depend on whether a foreign national has a minor child or a spouse, who are Russian nationals, or the lack of that individual’s desire to leave the Russian Federation ...” 46.     The applicant appealed that decision to the Kamchatka Regional Court (the Regional Court). He pointed out that he was unaware of the exclusion order of 24 June 2014 until 6 June 2019 and that the execution of the removal order of 27 May 2019 would disrupt his family life. 47.     On 28 May 2020 the Regional Court upheld the removal order. As for its adverse effect on the applicant’s family life, the court stated in general terms that “the impugned order does not violate the rights of the applicant and his family members and represents the adequate reaction to the information concerning the foreign national’s threat to national security of the Russian Federation”. 48.     On 29 July 2020 the Ninth Cassation Court in Vladivostok rejected the applicant’s cassation appeal and upheld the exclusion order. (ii)     Appeals against the exclusion order of 24 June 2014 49.     On 8 July 2019 the applicant challenged the exclusion order of 24   June 2014 before the Regional Court, stating that he was unaware of its existence until 6 June 2019. He stressed that the document neither specified the reasons for his exclusion nor provided any evidence showing his alleged threat to Russia’s national security and that his exclusion would disrupt his family life with wife and minor child. 50.     On 18 September 2019 the Regional Court upheld the exclusion order. It stated, inter alia , that the applicant and his representative had been informed “within reasonable limits” about the factual circumstances which had served as the basis for the order, that is the operational information concerning the applicant’s involvement between 2012 and 2013 in the organisation of illegal immigration to Russia. The court did not address the applicant’s argument of a violation of his right to respect for family life. 51.     The applicant appealed against the above decision to the Supreme Court of Russia stating that the suspicion of his alleged involvement in illegal immigration was not confirmed by any evidence, other than the undisclosed operational information, and that the lack of the seriousness of such suspicion could be confirmed by the fact that he had not been informed about the exclusion order for almost five years, until 6 June 2019. Furthermore, between 2014 and 2019 he had resided in Russia and had left and re-entered the country on several occasions. Finally, the exclusion order violated his right to respect for family life. 52.     On 22 January 2020 the Supreme Court of Russia upheld the exclusion order, having found that it was duly substantiated. As for its adverse effect on the applicant’s family life, the court stated in general terms that the five-year ban on re-entry “did not mean that the applicant could not maintain his family life outside of the Russian Federation”. 53.     On 14 September 2020 the Supreme Court of Russia refused to transfer the applicant’s supervisory appeal for examination by its Presidium. (iii)    Subsequent developments 54.     On 3 July 2020 the applicant was deported from Russia and his re ‑ entry was banned until 3 July 2025. Relevant domestic law 55.     For a summary of the relevant domestic law, see Guliyev and Sheina v.   Russia , no. 29790/14, §§ 25-34, 17 April 2018, and Liu v. Russia (no. 2), no.   29157/09, §§ 45-52, 26 July 2011. COMPLAINTS 56.     The applicant in each application complains under Article 8 of the Convention that the imposition of the exclusion/removal order with the five-year re ‑ entry ban was a disproportionate punishment and that the domestic courts failed to examine his submissions concerning its disruptive effect on his family life. QUESTIONS TO THE PARTIES Common questions 1.     Did the exclusion and removal orders issued in respect of the applicants in each application constitute an interference with their right to respect for family life within the meaning of Article 8 of the Convention? Was there a violation of Article 8 in respect of each applicant? In particular, did the domestic courts duly examine the allegations of the adverse effect of the exclusion on their family life (see Üner v. the Netherlands [GC], no.   46410/99, §§ 54-60, ECHR   2006 ‑ XII, Jeunesse v. the Netherlands [GC], no.   12738/10, § 109, 3 October 2014; and Guliyev and Sheina v.   Russia , no. 29790/14, §§ 58-59, 17 April 2018)? 2.     The Government are requested to submit a copy of the documents pertaining to each of the applicants’ administrative removals/deportations from Russia. Case specific questions 1.     What was the factual basis for the removal order issued on 12 July 2018 in respect of the applicant in Aydogdu v Russia (no. 2317/19)? Given the exclusion order issued against him on 29 July 2016, was the applicant able to leave and re-enter Russia between 29 July 2016 and 12 July 2018?   2.     Given the exclusion order issued in respect of the applicant in Fatkhudinov v. Russia (no. 61447/19) on 22 September 2015 with the subsequent re-entry ban referred to in the decision of 23 October 2019 of the Perm Regional Court on the applicant’s removal, on what grounds was he able to re-enter Russia on 25 December 2015 and have his residence there authorised until 15 October 2018?   3.     In Safarov v.   Russia (no. 44333/20):   a)     Did the courts make a balancing exercise between the need to protect national security and the applicant’s right to respect for family life under Article 8?   b)   In respect of the appeal proceedings against the exclusion order of 26   June 2014, was the classified information from the Federal Security Service (the FSB) disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in that material? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against him? Did he have an opportunity to have witnesses questioned or present other evidence?   c)   The Government are invited to submit a copy of the materials from the FSB which served as the basis for the exclusion order of 26 June 2014 (the Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court).   d)   Given the exclusion order issued on 26 June 2014, was the applicant able to leave and re-enter Russia between 26 June 2014 and 27 May 2019? If so, what were the legal grounds allowing him to do that?   e)   What were the reasons for the authorities to inform the applicant of the exclusion order of 26 June 2014 only on 6 June 2019? Was it used as a ground for the removal order of 27 May 2019?   APPENDIX No. Application no. Case name Lodged on Applicant Year of Birth Nationality 1. 2317/19 Aydogdu v.   Russia 17/12/2018   Mr Mekhmet AYDOGDU 1977 Turkish   2. 3813/19 Kholikov v.   Russia 18/12/2018 Mr Fakhriddin Nadzhmurodovich KHOLIKOV 1988 Tajikistani   3. 61447/19 Fatkhudinov v.   Russia 13/11/2019 Mr Alidzhon Bakhodurovich FATKHUDINOV 1990 Tajikistani   4. 44333/20   Safarov v.   Russia   29/09/2020   Mr Botir SAFAROV 1987 Uzbekistani