CASE OF ALPEYEVA AND DZHALAGONIYA v. RUSSIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione materiae;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom
5. The first applicant is a Russian national who was born in 1951 and lives in Volzhskiy, in the Volgograd Region. 6. At the relevant time she was a Soviet national and lived in Kyrgyzstan. 7. In 1994 the first applicant applied to the Russian embassy in Bishkek for Russian citizenship. 8. In March 1994 she was granted Russian citizenship and the Russian embassy in Bishkek put a stamp in her Soviet passport to this effect. 9. Thereafter the first applicant moved to Russia. 10. On 14 July 2001 she obtained a new Russian “internal passport” (a citizen’s identity document for use inside Russia). 11. In 2006 the first applicant applied to the Federal Migration Service (FMS) for an “international passport” required for foreign travel. 12. On 11 April 2006 an official from the FMS seized her Russian passport, which was later destroyed. The FMS referred to a report of 26 January 2006 on a check carried out by the agencies of the interior, according to which the first applicant had never properly acquired Russian citizenship and therefore had no right to be in possession of a Russian passport. The report stated, in particular, that whereas the first applicant had been issued with a Russian passport on 14 July 2001, she was not registered in the database of the Ministry of Foreign Affairs as a person who had acquired Russian citizenship. Furthermore, according to a letter of 18 October 2015 from the Russian embassy in Kyrgyzstan, it had no records on her obtaining Russian citizenship either. Accordingly, she had been issued with a Russian passport erroneously in 2001. 13. The first applicant complained to the prosecuting authorities. 14. On 15 June 2006 the Volzhskiy prosecutor’s office rejected the complaint. 15. In a response of 27 October 2006 the Volgograd Region prosecutor’s office stated that the FMS was not competent to seize passports, something which only the agencies of the interior could do; that the first applicant’s passport had been seized in breach of the law; and that the prosecutor’s office recommended that the FMS rectify the situation. 16. On 20 March 2007 the FMS issued report no. 37 to the effect that the first applicant had never properly acquired Russian citizenship, and that a Russian passport had been issued to her unlawfully. 17. The first applicant appealed to a court against the findings of the report of 26 January 2006. 18. On 28 May 2007 the Volzhskiy Town Court found in favour of the first applicant and held that the check which had been carried out by the agencies of the interior had been unlawful. 19. The decision was subsequently quashed by means of supervisory review and the case was remitted for fresh examination. 20. On 28 February 2008 the Volzhskiy Town Court again held that the check had been unlawful. 21. However, the FMS did not set aside the decision to seize the first applicant’s passport, and a new passport was not issued to her either. 22. The first applicant again instituted court proceedings, this time for a finding that the seizure of her passport had been unlawful. 23. On 4 April 2008 the Volzhskiy Town Court dismissed the first applicant’s complaint. It accepted the FMS’s arguments that she had never acquired Russian citizenship, although it also found that the FMS officials’ actions of 11 April 2006 had been procedurally incorrect, as the FMS did not have competence to seize passports. 24. On 3 July 2008 the Volgograd Regional Court upheld the decision on appeal. 25. A request by the first applicant for supervisory review was dismissed on 30 January 2009. 26. The first applicant then instituted another set of court proceedings against the FMS concerning its inaction in relation to issuing her with an identity document. She also contested the FMS report no. 37 of 20 March 2007. 27. On 25 March 2009 the Volzhskiy Town Court dismissed the complaint. 28. On 7 August 2009 the Volgograd Regional Court upheld the decision on appeal. 29. The first applicant reapplied for Russian citizenship. 30. On 14 April 2009 she was granted Russian citizenship under a simplified procedure on the basis of a FMS decision of 16 March 2009 to this effect. 31. On 27 March 2010 the first applicant was issued with a Russian passport. 32. The second applicant was born in 1965 and lives in Kostroma. 33. According to the second applicant, between 1987 and 2010 he lived in the Rostov Region. Initially, he had a Soviet Union passport issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia. 34. On 23 December 1998, in accordance with the procedure then in force, the second applicant was issued with an insert for his passport (вкладыш) specifying that he was a citizen of the Russian Federation. 35. On 19 February 2002 the Passport and Visa Directorate of Police Office no. 1 of Taganrog, in the Rostov Region, issued the second applicant with a Russian passport. 36. In 2010 the second applicant moved to Kostroma. 37. On 18 January 2010 the second applicant applied to the FMS of the Centralniy District of Kostroma to register his place of residence. 38. According to the Government, owing to doubts as to whether the second applicant had been issued with a Russian passport in accordance with the established procedure, the FMS of the Centralniy District of Kostroma sent a request to the FMS of the Rostov Region. 39. On 30 June 2010 the FMS of the Rostov Region issued a certificate which reads, in so far as relevant: “On 19 February 2002 [the second applicant] was issued with [a Russian passport] following the exchange of [his passport] issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia. In section 8 of the application for issue (exchange) of [the second applicant’s] passport it is noted ‘RF citizen according to section 13(1)’. According to the information [available to the FMS of the Rostov Region], [the second applicant] has not been registered at the address [in Taganrog] since 17 February 2010, as he has moved to Kostroma. In the database of [the Ministry of Foreign Affairs], available to the FMS of the Rostov Region, there is no information as to whether [the second applicant] has obtained Russian citizenship. A copy of [the second applicant’s] passport issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia contains a [glued] insert issued by the Department of the Interior of the Leninskiy District of Rostov-on-Don on 21 December [year illegible] to the effect that [the second applicant] is a citizen of the Russian Federation in accordance with section 13(1) of the Russian Citizenship Act of 28 November 1991. On 29 January 2010 ... a request was sent to [the FMS of the Rostov Region] to confirm that [the second applicant] had Russian citizenship. According [to the information received], the issue of the above insert to [the second applicant] and its lawfulness or otherwise is [not] [section illegible] confirmed ... The decision to issue [the second applicant] with [a Russian] passport was made ... by [V.], former head of the Passport and Visa Directorate of Police Office no. 1 of Taganrog, in the Rostov Region, who on 26 April 2004 was ... dismissed from service because she had reached retirement age. It appears to be impossible to question [V.] concerning the circumstances of the issue of the Russian passport [to the second applicant], since she is absent from her place of residence. Accordingly, [V.] ... issued [the second applicant] with a Russian passport in the absence of documents confirming that he was a Russian citizen, and without checking the documents presented for the issue (exchange) of the passport, in breach [of the rules] then in force. The above circumstances allow the supposition that [V.] might have had an interest in issuing [the second applicant] with a Russian passport in breach of the established rules, which constitutes an offence punishable under Article 286 of the Criminal Code. Furthermore, it may be conjectured that [the second applicant] presented a passport [issued in 1981] which contained wrong information to the effect that he had Russian citizenship. On the basis of the foregoing, [it is proposed] ... to consider that [the second applicant’s passport] was issued in breach of the established rules ...” 40. On 22 July 2010, when the second applicant turned 45, in accordance with the applicable procedure, he applied to the FMS to exchange his passport. 41. The second applicant received a verbal refusal to issue him with a new passport. According to the official who notified him of the refusal, the second applicant had failed to prove that he had had a permanent place of residence in Russia on 6 February 1992 (see paragraph 57 below), and he had only had a registered place of residence in Russia since February 2002. 42. On 28 July 2010 the second applicant provided the Kostroma Region FMS with a written explanation to the effect that between 1989 and 2002 his place of residence had been registered in Rostov-on-Don, although he had actually been living with his partner, M., in the Krasnodar Region. 43. On 13 August 2010 the Residential Registration Department of the Leninskiy District of Rostov-on-Don provided the second applicant with a certificate confirming that he was not registered in the Leninskiy District and there was no information about him in the archives either. 44. On 23 September 2010 the Krasnodar Region FMS informed the Kostroma Region FMS that its archives contained no information about the second applicant, and that it appeared to be impossible to question M. because she was absent from her place of residence. 45. On 27 September 2010 the Kostroma Region FMS issued a decision to the effect that the second applicant was not a Russian citizen. With reference to the certificate of 30 June 2010 issued by the FMS of the Rostov Region, the decision stated, in particular, that according to the enquiries carried out, the second applicant’s Russian passport had been issued in breach of the applicable rules. It further stated that it had proved impossible to obtain documentary evidence that the second applicant had been living in Russia on 6 February 1992, and the stamp in his passport only confirmed that he had been registered as resident in the Rostov Region from 15 February 2002 to 17 February 2010. The decision also noted that the database of the Ministry of Foreign Affairs contained no information as to whether the second applicant had obtained Russian citizenship. Accordingly, the enquiries made had obtained no evidence that the second applicant had acquired Russian citizenship or that he had been living in Russia on 6 February 1992. 46. The second applicant appealed to the Sverdlovskiy District Court of Kostroma against the refusal to exchange his passport. 47. At a hearing on 20 October 2010 a representative from the FMS of the Centralniy District of Kostroma stated, in particular: “On the basis of the written instructions from the FMS that there should be an urgent check on all passports previously issued to individuals not born in the territory of the Russian Federation, we sent a request for information to the FMS of the Rostov Region. The FMS of the Rostov Region sent a certificate confirming that the [second applicant’s] passport should be considered as having been issued in breach of the applicable rules. I sent a report stating that it was necessary to obtain corroboration that [the second applicant] either had or did not have Russian citizenship. The head of the FMS ... issued a decision to the effect that [the second applicant] was not a Russian citizen. [The second applicant] was invited to familiarise himself with that decision. [I]t was suggested that he apply for a residence permit and subsequently Russian citizenship, under a simplified procedure. In 2004 the FMS issued instructions for checks to be carried out only in respect of individuals who had applied to exchange their passports. [The second applicant] applied [to exchange his passport], and I discovered that he had not been born in the territory of the Russian Federation, and sent the request. [His] passport was not seized: the FMS did not issue instructions to this effect, so that people would not be left without [an identity] document.” 48. On 21 October 2010 the Sverdlovskiy District Court of Kostroma upheld the decision of the FMS. It noted that, as a result of a check carried out pursuant to sections 51 and 52 of the 2002 Regulation on the Examination of Issues Related to Citizenship of the Russian Federation, the FMS had found that the second applicant had been issued with a Russian passport in breach of the applicable rules, and was not entitled to Russian citizenship. In particular, it had not been confirmed that he had been living in Russia on 6 February 1992. This justified the refusal to exchange his passport. The court also noted that the reports of the checks carried out by the FMS had not been appealed against or set aside in accordance with the established procedure, and that they were not the subject of the court’s examination in those proceedings. 49. The court further dismissed the second applicant’s argument that the fact that he had been using the previously issued Russian passport for eight years constituted a valid reason to exchange the passport. The court likewise dismissed his argument that he had not violated any laws or regulations in 2002, when he had been issued with the Russian passport. The court found that his passport was invalid regardless. 50. The second applicant appealed. 51. On 6 December 2010 the Kostroma Regional Court upheld the decision. The appeal court noted, in particular, that the certificate issued by the Rostov Region FMS on 30 June 2010 showed that a Russian passport had been issued to the second applicant on the basis of a certificate of 23 December 1998 issued by the Department of the Interior of the Leninskiy District of Rostov-on-Don confirming that he was a Russian citizen in accordance with section 13(1) of the 1991 Law on Citizenship of the Russian Federation. However, the legal validity of that certificate had not been confirmed. It further noted that, according to the results of the enquiries carried out in the places indicated by the applicant as his places of residence in Russia between 1989 and 2002, no confirmation of his registration and residence as of 6 February 1992 had been received with respect to any of the addresses indicated. 52. The appeal court also noted that the second applicant’s argument that he had not been informed about the report issued following the check carried out by the FMS, and that therefore he could not have appealed against it, had not affected the lower court’s conclusions. 53. On 25 March 2013, following the entry into force of Law no. 182FZ on Amendments to the Russian Citizenship Act of 12 November 2012, the second applicant applied for Russian citizenship. 54. On 23 April 2013 the FMS of the Kostroma Region decided to grant the second applicant Russian citizenship. 55. On 30 April 2013 the second applicant received a Russian passport.