CASE OF GABLISHVILI v. RUSSIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Georgia);Non-pecuniary damage - finding of violation sufficient
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
6. The applicants are husband and wife. They were born in 1981 and 1987 respectively and live in Syktyvkar in the Komi Republic of Russia. 7. The first applicant, a Georgian national, arrived in Russia in 1999. On 4 May 2001 he received a first residence permit, which was subsequently extended at regular intervals. 8. The first applicant’s parents have lived in Syktyvkar since the early 2000s. His father and mother acquired Russian nationality in 2005 and 2008 respectively. 9. On 26 August 2011 the first applicant married the second applicant, a Russian national. 10. On 28 June 2012 the second applicant gave birth to a son. 11. On 14 November 2011 an operative officer of the Federal Service for Drug Control in the Komi Republic discovered that the first applicant had injected himself with desomorphine, a derivative of morphine known under the street name “krokodil”. An administrative case was instituted under Article 6.9 of the Code of Administrative Offences (“Use of narcotic substances without a medical prescription”) and the matter was referred to the Town Court. 12. On the following day the Syktyvkar Town Court found the first applicant guilty as charged and, pursuant to paragraph 2 of Article 6.9 concerning foreign nationals, fined him 4,000 Russian roubles (RUB) and ordered his administrative expulsion from Russia (the “expulsion order”). 13. Counsel for the first applicant appealed. He submitted that the penalty of expulsion was extremely severe given that the first applicant had lived in Russia for almost ten years, his wife, who was pregnant with their first child, was a Russian national and a majority of his relatives lived in Russia. In the lawyer’s opinion, the first applicant’s expulsion would destroy his family life. 14. On 1 December 2011 the Supreme Court of the Komi Republic rejected the appeal, upholding the first applicant’s conviction. On the alleged disruption of the first applicant’s family life, the Supreme Court pronounced as follows: “The representative’s argument to the effect that, in the light of Mr Gablishvili’s family situation, the Town Court had wrongly ordered his administrative expulsion from the Russian Federation cannot be taken into account as paragraph 2 of Article 6.9 of the Code of Administrative Offences provides for mandatory expulsion of the offender and is not an alternative to the main penalty which may take the form of either detention or a fine.” 15. On 24 April 2012 the first applicant paid the fine. 16. On 29 March 2008 the first applicant was issued with a five-year residence permit that was valid until 8 May 2013. 17. On 6 June 2011 the Komi Regional Centre for AIDS Prevention and Treatment notified the Komi division of the Federal Migration Service that the first applicant had been diagnosed with HIV. 18. On 10 June 2011 the Migration Service revoked the first applicant’s residence permit in accordance with section 9(1)(13) of the Foreign Nationals Act, which provided for the revocation of the residence permits of HIV-positive foreign nationals. The first applicant was informed of that decision on 9 November 2011 and ordered to leave Russia within fifteen days. 19. Counsel for the first applicant challenged the decision before a court, claiming that it amounted to a disproportionate interference with the first applicant’s family life and also put the first applicant’s life at risk. 20. On 28 February 2012 the Syktyvkar Town Court set aside the decision of 10 June 2011, observing that the first applicant had strong family ties in Russia and could receive medical treatment there with the assistance and under the supervision of his family. However, the Town Court declared itself incompetent to order the reinstatement of the residence permit. 21. On 31 May 2012 the Supreme Court of the Komi Republic heard an appeal against the Town Court’s judgment. It endorsed its reasons for setting aside the decision of 10 June 2011 and noted that the following logical step would be to reinstate the first applicant’s residence permit. It ordered the Migration Service to proceed accordingly. 22. On 28 June 2012 the Federal Migration Service complied with the judgment and reinstated the first applicant’s residence permit. 23. On the following day the Migration Service issued a new decision to revoke the permit, referring to the Town Court’s judgment of 15 November 2011 and section 9(1)(3) of the Foreign Nationals Act, which provided for the revocation of residence permits of foreign nationals who were liable to be expelled. 24. On 20 January 2012 the Federal Service for Drug Control issued a decision on the undesirability of the first applicant’s presence in Russia (the “exclusion order”) which read in its entirety as follows: “1. On the basis of the materials received from the Komi division of the Federal Service for Drug Control, and in accordance with section 25.10 of the Entry and Exit Procedures Act, to declare undesirable the presence in Russia of the Georgian national Mr Gablishvili ... 2. To notify the decision to the officers and employees of the drug control authorities ...” 25. Counsel for the first applicant challenged the exclusion order in court, claiming that it would disrupt the first applicant’s family life. 26. On 20 July 2012 the Syktyvkar Town Court found for the first applicant as follows: “The grounds for issuing the said decision were the following: use of drugs by the claimant, an offence of which he had been found guilty under Article 6.9 § 2 of the Code of Administrative Offences by the Town Court’s judgment of 15 November 2011 and fined RUB 4,000, and for which his administrative expulsion had been ordered; the discontinuation of the criminal proceedings on 29 November 2003 on non-exonerating grounds in connection with his active repentance; and his repeated convictions in administrative proceedings for breaches of public order. However, in the court’s view, these elements are not sufficient to reach the conclusion that Mr Gablishvili, who has lived in Russia for a long time and who has stable family connections and can undergo treatment under his family’s supervision, represents a real threat to national security, public order and health. In these circumstances, taking into account the provisions of the Russian Constitution ... according to which the rights and freedoms of man and citizen are directly operative and determine the essence, meaning and implementation of laws ... and may be restricted only to the extent necessary for the protection of the foundations of the constitutional system, morality, health, the rights and lawful interests of other people, national defence and security, the court considers that the said decision is unlawful and must be quashed.” 27. On an appeal by the Federal Service for Drug Control, the Supreme Court of the Komi Republic quashed, on 11 October 2012, the Town Court’s judgment and rejected the first applicant’s challenge to the exclusion order, finding as follows: “It was established by the Town Court and not disputed by the claimant that Mr Gablishvili was a drug user, that he had previously breached the criminal law and that he had been repeatedly charged with administrative offences in the period from 2003 to 2011. Those elements, taken cumulatively, indicate that, while living in the Russian Federation, Mr Gablishvili does not respect the applicable laws and lives an immoral lifestyle which – undoubtedly – is an imminent threat to public order and to the health and morals of Russian citizens. The [Supreme Court] considers that his stable family connections in Russia may not be a bar to deciding on the undesirability of his presence in Russia because the law provides that such a decision may be taken against a specific individual not as a punitive measure but as a means of upholding public order and if it pursues, as stated above, the aim of safeguarding the health and morals of the Russian population.” 28. In their submissions to the Court, the Government specified that the first applicant’s previous administrative convictions, referred to in the Supreme Court’s decision, had been in respect of the following offences: (a) non-medical use of heroin on 29 January 2009; (b) minor disorderly acts on 25 January and 18 June 2000, 28 October 2003, 19 April 2004 and 30 January 2011; (c) drunkenness in a public place on 26 February 2000; (d) failure to have his residence registered on 25 November 2004; and (e) “non-compliance with existing procedure” on 20 May 2010. 29. After the Town Court’s judgment dated 15 November 2011, the first applicant was found guilty of the following administrative offences: (a) breach of public order, public drunkenness and refusal to obey a police officer, all committed on 8 March 2012; (b) two cases of public drunkenness and a breach of public order on 27 and 28 May 2012; (c) breach of public order on 30 January 2013, for which the first applicant was sentenced to five-days’ detention; and (d) two driving offences on 31 March and 7 May 2013. 30. According to the Government, the first applicant’s current whereabouts are not known; he does not live at home. Nor is there any information showing that either the expulsion or the exclusion order has been executed.