CASE OF GULIYEV AND SHEINA v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicants, who are married, were born in 1975 and 1988 respectively. The second applicant lives in Perm; prior to his expulsion in March 2014, the first applicant also lived there. 6. On an unspecified date in 2002 or 2003 the first applicant arrived in Russia. It is unclear on what legal basis he resided there. He never applied for a residence permit or Russian nationality. 7. At some point in 2004 the first applicant started living with the second applicant. The Government did not dispute that fact. 8. The Government submitted that in April 2007 the first applicant was fined 2,000 Russian roubles (RUB) (about 60 euros (EUR)) for a breach of Article 18.8 of the Code of Administrative Offences (living on Russian territory without a valid residence permit or non-compliance with the established procedure for residence registration). 9. In 2007 and 2011 the applicants’ two children, T.S. and D.S., respectively, were born. The first applicant was not officially registered as their father, however, both children had his name indicated on the birth certificates as their patronym. 10. On 4 August 2012 the first applicant arrived in Russia from Azerbaijan. Under the bilateral visa-free agreement of 1997 between the countries, his stay was authorised until 2 November 2012. 11. On 10 August 2012 the applicants concluded a religious marriage in the Perm congregational mosque and continued to reside together in Perm. They furnished the Court with a copy of the marriage certificate. 12. It can be seen from the case documents that on 21 September 2012 the first applicant was shot in the left leg. As a result of the gunshot wound he was hospitalised and underwent several operations. He was released from hospital on 31 December 2012. 13. On 13 December 2013 the first applicant was detained by the police for a breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for a renewal of his period of authorised stay, which had expired on 2 November 2012. In his statement to the police, which was submitted to the Sverdlovsk District Court in Perm on the same date, the first applicant stated that he had been living in Russia for twelve years, that he resided with the second applicant as a family and that they had two children. He further stated that they had not officially registered their marriage and his paternity in respect of the children had not yet been officially established. He explained that he had overstayed the term of the authorised stay as he had been shot in the leg on 21 September 2012, which had resulted in several operations and his admission to hospital, ending on 31 December 2012; doctors had recommended that he not stay seated for longer than two hours and that considering that the trip to the border with Azerbaijan took more than ten hours, he had decided to stay in Russia until the injury had completely healed. 14. On 13 December 2013 the Sverdlovsk District Court in Perm ordered that the first applicant be fined RUB 2,000 and that he be subjected to administrative removal (expulsion) from Russia to Azerbaijan, which also implied a subsequent five-year entry ban. The court stated, inter alia, as follows: “[...] as can be seen from the documents that have been submitted, [the applicant] Mr Guliyev has stayed in the Perm Region without lawful grounds from 3 November 2012 to 12 December 2013 [...] ’s character: ... the applicant has never had administrative proceedings opened against him and has fully admitted his guilt in the commission of the administrative offence. The court finds it necessary to choose an administrative fine with subsequent administrative removal from the country as he has been residing in Russia without a legal basis and without having a work permit. When choosing the punishment the court is unable to take into account Mr Guliyev’s minor children as he has not legally registered his paternity in respect of them ...” 15. The first applicant appealed against the decision, alleging that his removal and five-year re-entry ban would constitute a disproportionate measure in view of his family life with the second applicant and their children. In particular, he stated that his wife, the second applicant, was pregnant with their third child, that they had two children, that he was the family’s breadwinner and that the leg injury had precluded him from regularising his stay in Russia in a timely manner. 16. On 17 December 2013 the first applicant was officially registered as the father of the minors T.S. and D.S. 17. On 26 December 2013 the Perm Regional Court examined the appeal and upheld the decision of 13 December 2013 stating, amongst other things, as follows: “[...] in the appeal the applicant’s representative requested that the court change the decision by excluding administrative removal from the punishment. Mr Guliyev lives with Ms Sheina, he has two dependent children, and he is the sole breadwinner for the family. Mr Guliyev’s paternity has been officially registered and confirmed by evidence. Presently Ms Sheina is pregnant with Mr Guliyev’s third child in respect of whom he would also establish paternity ... [he] believes that administrative removal and its negative consequences would violate his right to respect for his family life ... [...] as can be seen from the case file, the applicant has been unlawfully residing in Russia for more than a year. There are no reasons to believe that the applicant was prevented from leaving the country for a long time. The applicant’s statement and that of Ms Sheina that he was not able to move around owing to the injury have not been confirmed by relevant evidence ... the case file contains documents showing that the applicant was hospitalised from 23 to 31 December 2012 with a fracture of the left hip ... it was recommended that he minimise the burden on the leg for three months after the release from hospital. Other documents demonstrating that his mobility was limited have not been submitted to the court ... The administrative punishment has been chosen in respect of Mr Guliyev in accordance with Article 41 of the Code of Administrative Offences and is the minimum prescribed by paragraph 1 of part 1 of Article 18.8 of the Code of Administrative Offences, according to which administrative removal represents a compulsory element of the punishment along with an administrative fine. The kind of exceptional circumstances which could serve as a basis for excluding that type of punishment in accordance with international law are not present in this case ... ... There are no convincing arguments which would enable the court to conclude that Mr Guliyev intends to permanently reside in Russia, obtain the right to temporary residence and (or) acquire Russian citizenship. The marriage with Ms Sheina has not been officially registered ... paternity in respect of the two minors [T.S. and D.S.] was established after the District Court’s decision to administratively remove Mr Guliyev ... in connection with that the certificates of paternity provided to this court cannot be taken into account. There are no reasons to believe that Mr Guliyev had not had the opportunity prior to that to register his marriage with Ms Sheina and the paternity ... it is impossible to conclude from the case file that Mr Guliyev’s income is the only source of income for Ms Sheina and the minor children ...” 18. The applicants officially registered their marriage on 21 February 2014. 19. On 6 March 2014 the first applicant was expelled from Russia. 20. On 8 July 2014 the Supreme Court upheld by supervisory review the first applicant’s removal. 21. On 23 July 2014 the applicants’ third child, R.Sh., was born. He remained in the intensive care unit owing to a congenital heart condition. 22. On 11 August 2014 the applicants lodged a request for the application of Rule 39 of the Rules of Court, asking the Court to take measures to lift the first applicant’s re-entry ban in order to enable him to visit his child in hospital. 23. On 12 August 2014 the Court refused to grant the interim measure and asked for factual information from the Government. 24. On 18 August 2014 the Government informed the Court that R.Sh. had a very serious heart condition, that he was being treated in intensive care and that his state of health prevented him from travelling. The Government further stated that domestic legal provisions did not provide for any exceptions to the five-year re-entry ban.