CASE OF LIU v. RUSSIA
Violation of Art. 8;No violation of Art. 5-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Christos Rozakis
5. The first applicant was born in 1968. The second applicant was born in 1973. They are husband and wife and live in the town of Sovetskaya Gavan in the Khabarovsk Region. 6. In 1994 the first applicant arrived in Russia on the basis of a valid visa and married the second applicant. In 1996 the second applicant gave birth to a daughter. In November 1996, after his visa had expired, the first applicant was deported to China. 7. In 1999 the second applicant gave birth to a son. 8. In 2001 the first applicant obtained a work visa valid until 1 August 2002 and resumed his residence in Russia. The visa was later extended until 1 August 2003. 9. In November 2002 the first applicant went to the Khabarovsk department of internal affairs (hereinafter “the Khabarovsk police department”) to lodge an application for a residence permit. The Khabarovsk police department did not have the necessary forms; therefore, the first applicant could not lodge his application. It was only on 11 July 2003 that the forms became available. 10. On 24 July 2003 the first applicant applied for a residence permit for a second time. The Khabarovsk police department refused to examine the application and returned the documents to the first applicant. 11. The first applicant challenged the refusal before a court. On 22 October 2003 the Sovetskaya Gavan Town Court found that the refusal to examine the application had been unlawful. It ordered that the Khabarovsk police department examine the first applicant's application for a residence permit. 12. On 22 July 2004 the Khabarovsk police department rejected his application by reference to section 7 (1) of the Foreign Nationals Act (see paragraph 33 below). No further reasons were provided. 13. The applicants challenged the refusal before a court. They complained, in particular, that the Khabarovsk police department had not given any reasons for the refusal. The first applicant had never been charged with any criminal offence or engaged in any subversive activities. The applicants also claimed that the refusal had interfered with their right to respect for their family life and had caused them non-pecuniary damage. 14. On 4 November 2004 the Tsentralniy District Court of Khabarovsk found that the decision of 22 July 2004 had been lawful and rejected the applicants' claim in respect of non-pecuniary damage. It found that the Khabarovsk police department had received information from the Federal Security Service that the first applicant posed a national security risk. That information was a State secret and could not be made public. There is no indication in the judgment that the information had been made available for judicial scrutiny. 15. The applicants appealed. On 18 January 2005 the Khabarovsk Regional Court upheld the judgment of 4 November 2004. It reiterated that, according to the information from the Federal Security Service, the first applicant posed a national security risk. That information was a State secret and was not subject to judicial scrutiny. 16. On 4 March 2005 the Khabarovsk police department rejected a new application for a residence permit. It found that the first applicant was unlawfully residing on Russian territory, that he had taken no steps to make his stay legal, and that he would therefore have to leave Russia. The refusal of a residence permit did not hinder his family life. 17. It appears that the applicants did not challenge the refusal of 4 March 2005 before a court. Instead they asked the Khabarovsk Regional Court to direct that the Khabarovsk police department issue the first applicant with a residence permit. They claimed that by refusing to provide the first applicant with a residence permit the authorities had showed disrespect for their family life. They asked for compensation in respect of non-pecuniary damage. On 9 September 2005 the Khabarovsk Regional Court rejected their claims in the last instance as having no basis in domestic law. It referred to the judgment of 4 November 2004 and held that there were no reasons to depart from its findings. 18. On several occasions in 2003, 2004 and 2005 the first applicant was administratively fined for living in Russia without a valid residence permit. However, the domestic courts reversed most of those decisions, finding them procedurally defective or time-barred. 19. It is apparent from a certificate issued by a deputy head of the Sovetskaya Gavan Town prosecutor's office on 15 December 2005 that no criminal proceedings had been brought against the first applicant between 1996 and 2005. 20. On 18 November 2005 the first applicant was stopped by the police. The police officer drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code (see paragraph 34 below). The report was transmitted to a judge. 21. On 21 November 2005 the Sovetskaya Gavan Town Court held that the first applicant had infringed the residence regulations and ordered his administrative removal and detention pending removal. On the same day he was placed in a detention centre. 22. On 13 December 2005 the Khabarovsk Regional Court quashed the decision of 21 November 2005 on appeal, remitted the case for a new examination by the Town Court, and ordered the first applicant's release. It held that, in accordance with Article 27.3 § 1 of the Administrative Offences Code, detention with a view to administrative removal could only be ordered if there were sufficient reasons to believe that the person would try to avoid execution of the removal order. The Town Court had not given reasons for the detention order and the case file did not contain any information justifying the first applicant's detention. On the same day the first applicant was released. 23. On 28 December 2005 the Sovetskaya Gavan Town Court held that the report of 18 November 2005 did not indicate which residence regulations had been infringed by the first applicant. It returned the report to the local police department for correction. 24. On 3 February 2006 the administrative proceedings against the first applicant were discontinued as time-barred. 25. In the meantime, on 3 February 2005, the Khabarovsk police department prepared a decision that the first applicant's presence on the Russian territory was undesirable and submitted it to the head of the Federal Migration Service for approval. The draft decision indicated that the first applicant had been unlawfully resident on Russian territory and had been repeatedly fined under Article 18.8 of the Administrative Offences Code for his failure to leave Russia after the expiry of the authorised residence period. On 22 March 2005 the head of the Federal Migration Service confirmed the decision and it became enforceable. The applicants were informed about the decision on 21 April 2005. 26. On 22 August 2005 the Khabarovsk police department asked the Federal Migration Service to order the first applicant's deportation. On 12 November 2005 the head of the Federal Migration Service ordered the first applicant's deportation by reference to section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation (see paragraph 35 below). No further reasons were provided. The applicants were informed of the decision on 12 December 2005. 27. On 15 May 2006 the Sovetskaya Gavan Town Court ordered the first applicant's placement in a detention centre with a view to deporting him. It held that the first applicant was unlawfully residing on Russian territory, and that on 12 November 2005 the Federal Migration Service had ordered his deportation. Therefore, he had to be held in custody until deportation. The first applicant was not present at the hearing. He was informed of the decision on 5 September 2006. 28. On 24 November 2006 the Khabarovsk Regional Court quashed the decision of 15 May 2006 on appeal and remitted the case. It found that the decision had been taken in the first applicant's absence, in breach of Articles 5 and 6 of the Convention. 29. On 25 December 2006 the Sovetskaya Gavan Town Court for a second time ordered the first applicant's placement in a detention centre with a view to deporting him. It referred to the same reasons as in the decision of 15 May 2006. 30. It appears that the deportation order was not enforced. The applicant is at present living with his family in Russia. 31. Until 2002 temporary resident foreign nationals were not required to apply for a residence permit. Their presence in the Russian territory was lawful as long as their visa remained valid. On 25 July 2002 the Law on Legal Status of Foreign Nationals in the Russian Federation, no. 115-FZ of 25 July 2002 (“the Foreign Nationals Act”) was adopted. It introduced the requirement of residence permits for foreign nationals. 32. A foreign national married to a Russian national living on Russian territory is entitled to a residence permit (section 6 § 3 (4)). 33. A residence permit may be refused only in exhaustively defined cases, particularly if the foreign national advocates a violent change to the constitutional foundations of the Russian Federation or otherwise creates a threat to the security of the Russian Federation or its citizens (section 7 (1)). 34. Article 18.8 of the Administrative Offences Code of the Russian Federation provides that a foreign national who infringes the residence regulations of the Russian Federation, including by living on the territory of the Russian Federation without a valid residence permit or by non-compliance with the established procedure for residence registration, will be liable to punishment by an administrative fine of 500 to 1,000 Russian roubles 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. 35. A competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, may issue a decision that a foreign national's presence on Russian territory is undesirable. Such decision may be issued if a foreign national is unlawfully residing on Russian territory, or if his or her residence is lawful but creates a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision has been taken, the foreign national has to leave Russia or will otherwise be deported. That decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996, as amended on 10 January 2003, “the Entry Procedure Act”). 36. If a police department uncovers circumstances indicated in section 25.10 of the Entry Procedure Act, it must prepare supporting materials, draft a decision that a foreign national's presence on Russian territory is undesirable and send the decision and supporting materials to the Federal Migration Service for approval. The officials of the Federal Migration Service must submit the materials to the head of the Federal Migration Service and must inform the police department of the decision taken. The police department must immediately send the decision to the foreign national whose presence on Russian territory has been declared undesirable (sections 2 to 6 of the Instruction on the organisation of the process of making decisions that a foreign national's presence on Russian territory is undesirable, approved by the Order of the Ministry of Internal Affairs, No. 510 of 17 August 2004). 37. Article 32.10 § 5 of the Administrative Offences Code allows domestic courts to order a foreign national's detention with a view to administrative removal. Article 27.3 § 1 provides that administrative detention can be authorised in exceptional cases if it is necessary for fair and speedy determination of the administrative charge or for execution of the penalty. 38. Sections 31 (9) and 34 (5) of the Foreign Nationals Act provide that a foreign national against whom an administrative removal order or deportation order has been made can be held in custody until execution of such order. Detention has to be authorised by a court. 39. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of unlawful criminal prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community work (Article 1070 § 1 of the Civil Code). Damage sustained by an individual through unlawful acts of the investigation or prosecution authorities in a form other than listed above is compensated for in accordance with the general grounds giving rise to liability for damage, that is on the condition that the fault of the person who inflicted the damage has been proven (Article 1069 read in conjunction with Article 1064). 40. A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151). Non-pecuniary damage must be compensated for irrespective of the tortfeasor's fault in the event of unlawful conviction or prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community service (Article 1100 § 2).