Постановление Европейского суда по правам человека от 11.02.2010 «Дело Закаев и Сафанова (zakayev and safanova) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ZAKAYEV AND SAFANOVA v. RUSSIA
(Application No. 11870/03)
JUDGMENT*
(Strasbourg, 11.II.2010)
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*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 Zakayev and Safanova v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

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*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 21 January 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 11870/03) 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 Ramzan Zakayev, a national of Kazakhstan, and his wife Mrs Imani Safanova (Zakayeva), a national of Russia ("the applicants"), on 8 April 2003.

2. The applicants were represented by lawyers from the Memorial Human Rights Centre. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged, in particular, a violation of their right to respect for their family life on account of the first applicant's removal to Kazakhstan.

4. On 20 May 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS
I. The circumstances of the case
5. The applicants were born in 1958 and 1963 respectively. The first applicant was removed to Kazakhstan in April 2003; the second applicant lives in Moscow.

1. Events prior to January 2003
6. Both applicants come from families of ethnic Chechens who were forcibly deported to Kazakhstan in the 1940s. The second applicant's family returned to Chechnya in 1981. On 1 March 1992 the first applicant acquired Kazakh nationality, since at that time he was living with his family in Kazakhstan. Some time later in 1992 the first applicant and some of his family moved to Russia and settled in Chechnya. His parents and two adult sisters remained in Kazakhstan. Since the creation of the independent states of Russia and Kazakhstan in 1991 citizens of Kazakhstan have not needed a visa to enter Russia.

7. In 1994 the applicants married in Chechnya. Between 1994 and 1999 the couple had three children - P.Z. born in 1994, I.Z. born in 1996 and K.Z. born in 1999. The family lived in the village of Gikalo in the Grozny district of Chechnya, as attested in September 2003 by the head of the village authority. It does not appear that the first applicant took any steps to obtain Russian nationality or to regularise his stay during that period.

8. At some point between 1994 and 1995 the family went to Kazakhstan, fleeing from the hostilities in Chechnya. However, as soon as the situation calmed down they returned to Chechnya.

9. In October 1999 a second round of hostilities started in Chechnya. In December 2000 the second applicant moved to Moscow. The three children joined her there in August 2001. The first applicant was in Kazakhstan between August 2001 and March 2002, when he came to Moscow to live with his family.

10. In February 2002 the second applicant was living in a room let to her by the proprietor, who had left to receive medical treatment abroad. Hence, as she submitted, she was unable to obtain a temporary registration permit in Moscow, since that required written permission from the landlord. The second applicant submitted that she had informed the local police station about the practical difficulties she had faced in obtaining registration and that they had been willing to allow her to resolve those difficulties.

11. On 28 October 2002 the first applicant was arrested at home and taken to the local police station (the Levoberezhny ROVD of Moscow) for about two hours. He submitted that he had been questioned about the hostage-taking in the Moscow "Nord-Ost" theatre on 23 - 26 October 2002 by a group of Chechen fighters, of which he had denied any knowledge.

12. On 15 November 2002 the first applicant was asked to come to the Levoberezhny ROVD. He was again questioned about his status in Moscow and about Chechen illegal armed groups and was released several hours later. The Government submitted a copy of the registration log of the ROVD for 15 November 2002, which contained an entry concerning the first applicant's questioning. It did not refer to any offences or sanctions.

13. On 22 November 2002 a member of the State Duma Mr Igrunov, at the request of the NGO Civic Assistance, wrote to the head of the Levoberezhny ROVD requesting permission for the applicants to remain in the flat without registration until the family were able to resolve the practical difficulties encountered in obtaining the necessary documents.

14. Also on 22 November 2002 Mr Igrunov wrote a letter to the Prosecutor General asking him whether the police in Moscow had been instructed to conduct checks on all Chechens in relation to the hostage crisis of 23 - 26 October 2002. He referred to information from the NGO Civic Assistance, which helped refugees and forced migrants, according to which a large number of Chechens in Moscow had been detained and questioned in the days and weeks following the terrorist attack. Mr Igrunov reminded the Prosecutor General of the unlawfulness of such a practice. He attached seventeen pages to the letter giving details of individual cases, including the applicants' case.

15. On 12 December 2002 the head of the Levoberezhny ROVD replied to Mr Igrunov and stated that the applicants had not applied to that office for registration. The letter recalled that temporary registration was necessary for both Russian citizens and foreign nationals within three days of arrival. The letter further pointed out that the first applicant was a national of Kazakhstan and that his failure to comply with the relevant provisions of Russian law could lead to his expulsion.

16. On 10 January 2003 the Moscow city prosecutor's office informed Mr Igrunov that the information concerning the individual cases had been checked. In respect of the applicants, the Golovinskiy district prosecutor's office had established that they had been residing unlawfully in Moscow. In summer 2002 the first applicant had been warned of the need to take steps to obtain temporary registration. On 14 November 2002 the second applicant had been fined by the Levoberezhny ROVD for residing in Moscow without registration. On 28 October and 15 November 2002 the first applicant had been brought to the Levoberezhny ROVD and questioned about his residence status. The applicants never sought to obtain temporary registration at the local police station.

2. The first applicant's arrest and expulsion
17. On 15 January 2003 a police officer visited the applicants' home and asked them to appear at the Levobereznhy ROVD the following day. According to the applicants, on the morning of 16 January 2003 they went to the police station. Their documents were examined and the first applicant had his passport taken from him and was placed in a cell. The second applicant was allowed to leave.

18. On 17 January 2003 an officer of the Levoberezhny ROVD drew up a report concerning the first applicant's administrative arrest for a breach of Article 18.8 of the Code of Administrative Offences. According to the transcript of the questioning, the first applicant explained that he had lived in Moscow since January 2002 with his wife and three children. He did not work, but remained at home and looked after the children. On the same day the documents were transferred to a court, with a recommendation for removal.

19. On 17 January 2003 a judge of the Golovinskiy District Court of Moscow ordered, in accordance with Article 18.8 of the Code of Administrative Offences, that the first applicant should pay a fine of 500 Russian roubles (RUB) and be removed to Kazakhstan. According to the decision, the applicant had explained that he had been living in Moscow without registration because he intended to return to Kazakhstan but had no means of paying for the ticket. He had no permanent work and mostly remained at home assisting his wife in looking after the children. By the same decision the judge ordered the first applicant's detention in temporary detention centre No. 1 of the Moscow City Department of the Interior until 17 April 2003.

20. On 24 January 2003 the applicant's lawyer submitted an appeal to the Moscow City Court. In the appeal the lawyer referred to the applicant's family situation, the fact that his wife and three children were Russian nationals and the fact that he had attempted to obtain registration papers in Moscow. She also contested the lawfulness of the first applicant's detention.

21. On 27 February 2003 the Moscow City Court, in the presence of the applicant's lawyer, upheld the decision of 17 January 2003. The City Court noted that the first applicant had been living in Russia for a long time but had taken no steps to regularise his position. Referring to section 25 (10) of the Law on the Procedure for Entering and Leaving the Russian Federation, the court found that the first applicant had been guilty of a breach of the residence regulations for foreign nationals. The court remarked that the first applicant's "personal circumstances did not call for a mitigation of the sentence imposed".

22. On 15 April 2003 the first applicant was removed to Kazakhstan at the expense of the NGO Civic Assistance, which had been supporting the family.

3. Subsequent developments
23. On 30 September 2003 the applicants' fourth child, D.Z., was born in Moscow.

24. The applicants attempted to obtain judicial review of the removal order by means of supervisory review. On 25 December 2003 the vice-president of the Moscow City Court refused to take action to start supervisory review proceedings. He found no reasons to consider the sentence unfair or disproportionate to the offence committed.

25. According to the applicants, in 2004 the first applicant attempted to return to Russia by train, but was stopped by the border police since he was not allowed to enter Russia for five years after his removal.

26. The applicants submitted that the second applicant continued to live in Moscow with the couple's four minor children, without permanent registration. She was unable to take up a permanent job and had no means of visiting her husband in Kazakhstan. The first applicant lived with his parents in a small village in Kazakhstan; his financial situation was very poor and he was not in a position to send money to his family. They maintained regular telephone contact.

27. The applicants submitted that the children were deeply affected by the separation. They attached several medical certificates issued in 2004 which confirmed that the four children were regularly examined by the local children's health centre for various problems related to heart conditions and respiratory and gastric diseases.

28. In 2008 the applicants obtained papers from the local school and from a psychologist. According to these documents, the applicants' three eldest children were fully integrated in the school, spoke fluent Russian and were accustomed to living in Moscow. The youngest child attended a kindergarten. They missed their father, with whom they maintained regular telephone contact. The fourth child had never seen his father. His absence from their lives was a source of stress for the children and for the second applicant.

29. The second applicant submitted that after her husband's expulsion she had been unable to work for a while, since she had no one to look after the children. This situation had further deteriorated after the birth of D.Z. in September 2003. In November 2004 the second applicant was diagnosed with tuberculosis of the lungs. For several years she survived by receiving regular financial aid from Civic Assistance. In 2008 the second applicant resumed casual work and, according to her own estimates, earned between RUB 800 and RUB 1,000 a day.

II. Relevant domestic law
30. Article 18.8 of the Code of Administrative Offences of the Russian Federation provides that a foreign national who infringes the residence regulations of the Russian Federation, including by residing on the territory of the Russian Federation without a valid residence permit or by failing to comply with the established procedure for residence registration, will be liable to punishment by an administrative fine of RUB 500 to 1,000 and possible administrative removal from the Russian Federation. Under Article 28.3 § 2 (1) a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 requires such a report to be transmitted within one day to a judge or to an officer competent to examine administrative matters. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation shall be made by a judge of a court of general jurisdiction. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or to a higher court.

31. Section 25.10 of the Federal Law on the Procedure for Entering and Leaving the Russian Federation (No. 114-FZ of 15 August 1996, as amended in 2008) provides that a foreign national who does not have documents proving the lawfulness of his stay in Russia, or who does not leave the territory of Russia after the expiry of his permitted stay, is deemed to be residing in Russia unlawfully and incurs liability in accordance with the relevant legislation. Section 27 (2) of the same Law provides that a foreign national is not allowed to enter the country for five years after the day of his administrative deportation from Russia.

THE LAW
I. Alleged violation of Article 8 of the Convention
32. The applicants complained that the decision to remove the first applicant constituted an unjustified interference with their family life, in so far as it had led to the separation of the nuclear family. In particular, the