CASE OF LIU v. RUSSIA (No. 2)
Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The applicants are a family comprising the husband and wife (the first and second applicants) and their two children (the third and fourth applicants). They were born in 1968, 1973, 1996 and 1999 respectively and live in the town of Sovetskaya Gavan in the Khabarovsk Region. 6. In 1994 the first applicant arrived in Russia with a valid visa and married the second applicant. In November 1996, after his visa had expired, the first applicant was deported to China. 7. 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. 8. On 24 July 2003 the first applicant applied for a residence permit. 9. On 22 July 2004 the police department of the Khabarovsk Region rejected his application by reference to section 7 § 1 (1) of the Foreign Nationals Act (see paragraph 47 below). No further reasons were provided. 10. The first and the second applicants challenged the refusal before a court. They complained, in particular, that the police department of the Khabarovsk Region 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. 11. 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 police department of the Khabarovsk Region 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. 12. On 18 January 2005 the Khabarovsk Regional Court upheld the judgment of 4 November 2004 on appeal. 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. 13. On 3 February 2005 the police department of the Khabarovsk Region prepared a decision that the first applicant’s presence on 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 (see paragraph 50 below) 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. 14. On 22 August 2005 the police department of the Khabarovsk Region 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 Entry Procedure Act (see paragraph 51 below). No further reasons were provided. The applicants were not informed of the decision until 12 December 2005. 15. On 25 November 2005 the first and second applicants lodged an application with the Court under Article 34 of the Convention. They complained, in particular, that the refusal to grant a residence permit to the first applicant and the subsequent decision to deport him to China had entailed a violation of the right to respect for their family life. 16. In its judgment of 6 December 2007 the Court found a violation of Article 8 of the Convention (see Liu v. Russia, no. 42086/05, 6 December 2007). It found that the applicants’ relationship amounted to family life and that the refusal to grant the first applicant a residence permit and his deportation order constituted interference with the applicants’ right to respect for their family life. That interference had a basis in domestic law, namely section 7 § 1 (1) of the Foreign Nationals Act and section 25.10 of the Entry Procedure Act. 17. However, the Court noted that the domestic courts were not in a position to assess effectively whether the decision to reject the first applicant’s application for a residence permit was justified, because it was based on classified information. The failure to disclose the relevant information to the courts deprived them of the power to assess whether the conclusion that the first applicant constituted a danger to national security had a reasonable basis in fact. It followed that the judicial scrutiny was limited in scope and did not provide sufficient safeguards against arbitrary exercise of the wide discretion conferred by domestic law on the Ministry of Internal Affairs and the Federal Security Service in cases involving national security. 18. As to the deportation order against the first applicant, the Court observed that it had been issued by the Federal Migration Service on the initiative of a local police department. Both agencies were part of the executive and took such decisions without hearing the foreign national concerned. It was not clear whether there was a possibility of appealing against those decisions to a court or other independent authority offering guarantees of an adversarial procedure and competent to review the reasons for the decisions and relevant evidence. 19. The Court concluded that the interference with the applicants’ family life was based on legal provisions that did not give an adequate degree of protection against arbitrary interference and therefore did not meet the Convention’s “quality of law” requirements. Accordingly, in the event of the deportation order against the first applicant being enforced, there would be a violation of Article 8. 20. On 2 June 2008 the judgment became final. 21. On 4 August 2008 the Federal Migration Service annulled the decision of 22 March 2005 stating that the first applicant’s presence on Russian territory was undesirable, and the decision of 12 November 2005 ordering his deportation. 22. By letter of 21 August 2008, the head of the local department of the Federal Migration Service notified the first applicant of the decision of 4 August 2008. She further reminded the first applicant that he was unlawfully residing on Russian territory. To make his residence lawful, he had to leave for China, obtain a Russian entry visa and then apply for a residence permit. If he failed to leave, he would be fined and administratively removed to China under Article 18.8 of the Administrative Offences Code. 23. On 23 September 2008 the first and the second applicants applied to the Tsentralniy District Court of Khabarovsk for a reconsideration of the judgment of 4 November 2004, as upheld on 18 January 2005, referring to the Court’s judgment of 6 December 2007. 24. On 2 December 2008 the Tsentralniy District Court of Khabarovsk allowed their request, quashed the judgment of 4 November 2004 and ordered a reconsideration of the case. 25. On 15 December 2008 the first and the second applicants submitted an amended statement of claim, asking that the first applicant be issued with a residence permit and that compensation in respect of non-pecuniary damage be paid to each of the applicants. The statement of claim mentioned that the first and the second applicants were acting on their own behalf and on behalf of their minor children, the third and the fourth applicants. 26. On 6 February 2009 the Tsentralniy District Court of Khabarovsk relinquished jurisdiction in favour of the Khabarovsk Regional Court. The judge noted that one of the main criticisms of the European Court expressed in the judgment of 6 December 2007 was the failure by the District Court to review documents containing classified information. This factor had prevented an effective assessment of whether the finding that the first applicant constituted a danger to national security had a reasonable basis in the facts and, consequently, of whether the decision to reject his application for a residence permit was justified. The judge concluded that the case should be referred to the Regional Court which, unlike the District Court, had competence to review documents containing State secrets. 27. During the hearing the Khabarovsk Regional Court examined the classified documents from the Federal Security Service containing information about the security risks allegedly posed by the first applicant. The first and second applicants were informed of the contents of those documents after they had undertaken not to disclose that information. They asked the court to call the police informants who had accused the first applicant of subversive activities to the witness stand and have them questioned. Their request was however refused. 28. On 17 March 2009 the Khabarovsk Regional Court found that the refusal of a residence permit to the first applicant had been lawful. It referred, in particular, to section 7 § 1 (1) of the Foreign Nationals Act and held as follows: “... if the security services discover that certain actions [of a foreign national] create a threat for the security of the Russian Federation or for the citizens of the Russian Federation, they are bound [by law] to inform the local department of the Federal Migration Service of [the existence of such threat]. [The law] does not require that the security services reveal the substance of the threat. The procedure for the preparation and approval of the materials in respect of a specified foreign national to whom a Russian three-year residence permit is to be refused is established by [unpublished] Instruction no. 0300, “On organisation of the activities of the Federal Security Service in respect of the examination of materials concerning residence permits for foreign nationals”, of 4 December 2003. During the hearing the court examined the requirements contained in the Instruction and the ‘classified’ documents which had formed the basis for the refusal, by the security services, of permission to grant a three-year residence permit to Chinese national Liu Jingcai. It finds that the Khabarovsk Regional Department of the Federal Security Service complied with the requirements contained in the Instruction. The court has established that the security service revealed circumstances and discovered factors representing a danger for the vital interests of individuals, society and the State. The security service made the finding that there were circumstances warranting the refusal of a Russian three-year residence permit to Liu Jingcai on the basis of information obtained in the course of its intelligence activities conducted in accordance with the procedure established by the laws of the Russian Federation, when discharging its [the security service’s] duties and within its competence. The court takes into account that issues relating to national security are special, in particular because the factors that represent a threat to national security are assessed by the competent authorities on the basis of information received from various sources, including sources not subject to judicial scrutiny. Moreover, section 7 § 1 (1) of [the Foreign Nationals Act] does not specify which actions may be qualified as representing a threat for the security of Russia or its citizens. This means that the competent security services have discretion in classifying various actions of a foreign national as a threat [to national security]. Thus, there are no reasons to hold that the refusal by the Khabarovsk Regional Department of the Federal Security Service of permission to grant a three-year residence permit to Liu Jingcai was unlawful. After the receipt of news of the refusal of permission by the security service, the application of Liu Jingcai for a three-year residence permit was rejected by the police department of the Khabarovsk region, by decision no. 401 of 22 July 2004, on the basis of section 7 § 1 (1) of [the Foreign Nationals Act]. The court concludes from the above that the mentioned decision of the police department of the Khabarovsk Region was lawful and justified...” 29. The court then cited Article 8 of the Convention and certain paragraphs of the Court’s judgment of 6 December 2007 reiterating the general principles under Article 8. It continued as follows: “Given that the instant case does not concern an expulsion order against Liu Jingcai and that during the court hearing statutory circumstances warranting a restriction of the right of Chinese national Liu Jingcai to obtain a Russian three-year residence permit have been established, the court does not see any grounds to satisfy the plaintiffs’ request for an injunction to examine Liu Jingcai’s application for a three-year residence permit and grant such residence permit on the basis of the UN Convention on the Rights of the Child.” 30. Finally, referring to section 8 of the Foreign Nationals Act (see paragraph 49 below), the Regional Court found that the first applicant was not entitled to receive a five-year residence permit either. A five-year residence permit could be issued only to a person who had lived in Russia for at least a year on the basis of a three-year residence permit. As the first applicant had never had a three-year residence permit, he was not eligible for a five-year residence permit. 31. The Regional Court dismissed the applicants’ claims in full. 32. The first and second applicants appealed to the Supreme Court of the Russian Federation. They complained, in particular, that they had not been given access to the classified materials but merely informed about their contents in general terms. They had therefore been denied an opportunity to contest the accusations levelled at the first applicant. They referred to the cases of Edwards and Lewis v. the United Kingdom ([GC], nos. 39647/98 and 40461/98, ECHR 2004X), and A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009), claiming that the refusal to disclose the relevant evidence had violated their right to a fair trial. They also argued that by refusing to provide the first applicant with a residence permit the authorities had showed disrespect for their family life. 33. A representative of the local department of the Federal Migration Service commented on the applicants’ appeal submissions. He submitted, in particular, that the decision to refuse a residence permit to the first applicant had been lawful and had been taken in accordance with the procedure established by law, in particular Instruction no. 0300. That instruction and the classified materials from the security services had been examined by the Regional Court in the applicants’ presence and had been attached to the case file. Accordingly, the applicants had had full access to those materials. 34. On 20 May 2009 the Supreme Court upheld the judgment of 17 March 2009 on appeal, finding that it had been lawful, well-reasoned and justified. The Regional Court had examined the classified materials in the applicants’ presence. The Supreme Court was therefore convinced that the security services’ assertion that the first applicant was a danger to national security had a basis in the facts. In those circumstances the public interest had absolute priority over any private interests that might be involved. There was no reason to depart from the findings made by the Regional Court, as those findings had been compatible with the domestic and international law. The applicants had been given access to all relevant evidence and materials and no other procedural defects had been established. Accordingly, their right to a fair trial had not been violated. 35. On 2 June 2009 several policemen went to the second applicant’s place of work in search of the first applicant. They took the first applicant to the nearby police station. An officer from the local department of the Federal Migration Service drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code and ordered that the first applicant pay a fine of 2,000 Russian roubles (RUB). The first applicant was then released. 36. The applicants challenged the decision of 2 June 2009 before the Sovetskaya Gavan Town Court. 37. On 7 July 2009 the Sovetskaya Gavan Town Court reversed the decision of 2 June 2009. It observed that the statutory limitation period for continuous administrative offences was one year starting to run from the day the offence was discovered. In the first applicant’s case the continuous offence of living in Russia without a valid residence permit had been first discovered in December 2004. Accordingly, the administrative offence proceedings were time-barred. The parties did not appeal and the decision became final. 38. On 28 August 2009 the prosecutor’s office asked the Khabarovsk Regional Court to quash the decision of 7 July 2009 as incorrect. 39. On 5 October 2009 the Khabarovsk Regional Court found that the Town Court had incorrectly interpreted and applied the legal provisions concerning limitation periods and that the administrative offence proceedings against the first applicant were not time-barred. However, the Administrative Offences Code did not provide for a procedure for quashing or reconsidering a court decision that had become final. It therefore rejected the prosecutor’s office’s application. 40. On 22 October 2009 several policemen went to the second applicant’s place of work and arrested the first applicant. He was taken to the police station, where an officer from the local department of the Federal Migration Service drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code. The report was transmitted to a judge. 41. On the same day the Sovetskaya Gavan Town Court held that the first applicant had infringed the residence regulations by living in Russia without a valid residence permit. It further held as follows: “The offender’s arguments that some members of his family (his wife and children) are living in the Russian Federation have been discussed. It has been found that these circumstances cannot prevent an administrative removal, as in the judgments mentioned above [the judgments of 17 March and 20 May 2009] the same circumstances were considered insufficient for granting Liu Jingcai a residence permit...” 42. The Town Court ordered the first applicant’s administrative removal and detention pending removal. It also ordered that he pay a fine of RUB 2,000. The first applicant was placed in a detention centre in Khabarovsk. 43. On 25 November 2009 the Khabarovsk Regional Court upheld the decision of 22 October 2009 on appeal. 44. On 27 November 2009 the first applicant was expelled to China. 45. Until 2002 temporary resident foreign nationals were not required to apply for a residence permit. Their presence in Russia was lawful as long as their visa remained valid. On 25 July 2002 Law no. 115-FZ on Legal Status of Foreign Nationals in the Russian Federation (“the Foreign Nationals Act”) was passed. It introduced the requirement of residence permits for foreign nationals. 46. A foreign national married to a Russian national living on Russian territory is entitled to a three-year residence permit (section 6 §§ 1 and 3 (4)). 47. A three-year residence permit (“разрешение на временное проживание”) 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 (1)). Nor may a three-year residence permit be issued during the five-year period following a person’s administrative removal or deportation from Russia (section 7 § 1 (3)). 48. The local department of the Federal Migration Service (before 2006, the local police department) examines an application for a three-year residence permit within six months. It collects information from the security services, the bailiffs’ offices, tax authorities, social security services, health authorities and other interested bodies. Those bodies must, within two months, submit information about any circumstances within their knowledge which might warrant refusal of a residence permit. After receipt of such information the local department of the Federal Migration Service or the local police department decides whether to grant or reject the application for a three-year residence permit (section 6 §§ 4 and 5). 49. During the validity of the three-year residence permit a foreign national may apply for a renewable five-year residence permit (“вид на жительство”). Such application is possible only after the foreign national has lived in Russia for at least a year on the basis of a three-year residence permit (section 8 §§ 1-3). 50. 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 RUB 2,000 to 5,000 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 the 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. 51. 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 a 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”). 52. A foreign national who has been deported or administratively removed from Russia may not re-enter it during the five-year period following such deportation or administrative removal (section 27 § 2 of the Entry Procedure Act). 53. The Civil Procedure Code provides that only those persons who have reached the age of eighteen may participate in civil proceedings. Minors participate in civil proceedings through their parents or guardians (Articles 37 § 1and 52 § 1).