CASE OF MURADELI v. RUSSIA
No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Georgia)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
6. The applicant was born in 1969 in Gori, Georgia. 7. According to the applicant, he first arrived in Penza, the Russian Federation, in 1992. Since his arrival took place shortly after the disintegration of the USSR, there were no entry requirements to comply with. 8. According to the Government, the applicant lived in Penza between 1993 and 1995. 9. In 1994 the applicant married L., a Russian national, and in September 1995 they had a son, G. According to the applicant, at some stage they sold their flat. Later they bought another flat. A loan for that flat was taken by the applicant’s wife, L., and is to be repaid by 2027. 10. In 1996 the applicant together with his family moved to Gori, Georgia, where until 1999 he worked at the Security Department of the Ministry of Internal Affairs. 11. According to the applicant, between 1996 and 1999 he regularly went to Russia to visit his parents-in-law. In May 1999 L. and G. moved back to Penza as L. had to return to her work after the maternity leave. The applicant also moved back to Penza in August 1999. He then regularly went to Georgia to visit his mother. As before 2000 there was no visa system between Russia and Georgia, he did not have to obtain any documents in this regard. After the visa system had been put in place, the applicant’s wife had to issue him an invitation so that he could legally reside in Russia. After one of his stays in Georgia he moved back to Russia on the basis of this invitation and thereafter lived together with his family in Penza. 12. According to the Government, having left for Georgia in 1996, the applicant returned to Russia on 18 May 2001 on the basis of a visa valid until 18 August 2001. Between 1999 and 2001 he still worked at the Georgian Ministry of Internal Affairs. After his return to Russia in 2001 his visa was renewed on a number of occasions. 13. On 25 December 2001 the applicant applied for a residence permit. 14. On 17 June 2002 the Penza Region Directorate of Internal Affairs granted the application. 15. On 31 July 2002 the applicant was issued with a residence permit valid until 10 August 2004, the date of expiry of his Georgian passport. 16. On 27 April 2006 the applicant was found in breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for the renewal of his residence permit, which had expired one year and eight months earlier. 17. On 24 May 2006 the applicant applied for the renewal of his residence permit. 18. On 8 August 2006 his residence permit was renewed until 10 August 2009. 19. On 27 October 2006 the applicant’s residential registration in Penza was cancelled upon his request and he obtained residential registration at a different address in the Penza Region until 10 August 2009, the date of expiry of his residence permit. 20. On 14 February 2009 the Federal Migration Service notified the applicant at the address of his registration in the Penza Region that he had to apply for the renewal of his residence permit six months prior to the expiry of the valid residence permit. As it transpired later, the applicant had moved to a different address in Penza and did not receive the notification. 21. According to the applicant, the authorities refused to accept his application for renewal of the residence permit submitted in due time because his birth certificate was not enclosed. 22. The applicant reapplied for residence permit on 27 July 2009, that is two weeks before the expiry of his valid residence permit. 23. On 29 July 2009 the applicant was found to have violated Article 18.8 of the Code of Administrative Offences on account of his failure to submit annual notifications of his continuous stay in Russia in breach of section 8 § 6 of the Foreigners Act. 24. On 5 August 2009 the Penza Region Directorate of the Federal Migration Service refused to renew the applicant’s residence permit. The decision stated that the applicant had failed to apply for the renewal in due time, despite the reminder sent to him on 14 February 2009, and had not specified any reasons for his failure. Furthermore, he had been twice found guilty of an administrative offence, on 27 April 2006 and 29 July 2009. 25. On 6 August 2009 the Penza Region Directorate of the Federal Migration Service sent the decision to the applicant with an accompanying letter which stated that upon expiry of his residence permit his residential registration would be cancelled and he would no longer have the right to live in Russia. Therefore, he had to leave Russia within fifteen days. However, the applicant could re-enter Russia and, after having obtained registration in the immigration register, reapply for a temporary residence permit. The applicant appealed to a court. 26. Also on 6 August 2009 the applicant was found in breach of Article 18.8 of the Code of Administrative Offences on account of his failure to inform the authorities of the change of his address as required by the legislation on immigration. 27. On 27 October 2009 the Leninskiy District Court of Penza upheld the decision of the Penza Region Directorate of the Federal Migration Service of 5 August 2009. The court dismissed, inter alia, the applicant’s argument that he had first applied for the renewal of his residence permit in February 2009, but his application had not been accepted as he had had to renew his Georgian passport prior to applying. The court noted, firstly, the lack of evidence that the applicant had applied for the renewal of his residence permit in February 2009, and, secondly, that in his application of 27 July 2009 he had only stated that he had not been familiar with the procedure as the only explanation of his failure to apply in due time. 28. On 22 December 2009 the Penza Regional Court upheld the firstinstance court’s decision on appeal. 29. Between 10 August 2009 and March 2011 the applicant lived in Russia without a residence permit. 30. On 3 March 2011 the Penza Region Migration Service found the applicant to have violated Article 18.8 of the Code of Administrative Offences on account of his continued failure to leave Russia after the expiry of his residence permit on 10 August 2009 and imposed on him a fine in the amount of 3,000 Russian roubles (RUB, approximately 67 euros). 31. The applicant did not appeal against this decision, and it became final on 15 March 2011. 32. On 11 March 2011 the applicant was granted transit visa valid until 21 March 2011 so that he could leave Russia legally. 33. According to the applicant, he went to Georgia to have his birth certificate reissued. 34. In the meantime the applicant’s wife applied to the Penza Region Directorate of the Federal Migration Service to issue an invitation for the applicant to stay in Russia. 35. By a decision of 1 April 2011 her application was refused on the ground of the applicant having been three times found guilty of an administrative offence on account of breach of immigration rules and numerous other times on account of other administrative offence involving breach of traffic rules. For these reasons the issue of an invitation for the applicant to enter Russia was refused until 14 September 2013. 36. It appears that the applicant’s wife resubmitted her application which was again refused on 23 May 2011 on the same grounds. The letter of the same date accompanying the decision reiterated that the issue of an invitation for the applicant to enter Russia had been refused until 14 September 2013. 37. On 6 October 2011 the applicant entered Russia through the border with Belarus. Belarus had no visa requirements for Georgian nationals. According to the applicant, passport control officers on the BelarussianRussian border explained to him that, having entered Russia from Belarus, he could stay in Russia without a visa for two or three weeks. 38. On 24 October 2011, in the course of an identity check conducted by the police, the applicant failed to present any documents that would authorise his stay in Russia. On the same date the Oktyabrskiy District Court of Penza found him guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences on account of a breach of immigration regulations, fined him with RUB 3,000 and ordered his administrative removal from Russia. The court also ordered the applicant’s placement in custody until his removal and noted that the decision could be appealed against within ten days after its announcement. In the decision the court noted the particular circumstances in which the offence had been committed and further stated as follows: “In order to determine the type ... of administrative penalty, the judge takes into account the concrete circumstances of the offence ... committed, [the applicant’s] financial and family situation, his personality, [the fact that] in 2011 he was found guilty of an administrative offence on account of a breach of regulations on foreign nationals’ stay in the Russian Federation, and, furthermore, that from 10 August 2009 to 11 March 2011 he was living in the Penza Region without [registration] in the migrants’ register and without a residential registration either, and avoided leaving the Russian Federation. The court is unaware of any circumstances that would prevent [the applicant’s] removal from Russia, given that he had been ... previously found guilty of an administrative offence in 2011 and the issue of an invitation for him to enter Russia is refused until 14 September 2013.” 39. As the applicant did not appeal within the set time-limits, the decision became enforceable. 40. The applicant was deported on 8 November 2011. 41. The applicant subsequently appealed against the decision of 24 October 2011. In his statement of appeal he submitted, in particular, that he had been married to L. since 1994 and that they had a son born in 1995. The decision on his administrative removal disrupted his family life. In particular, his son, who was sixteen at the time, needed his father at his side. The applicant’s removal from his family also placed a heavy burden on his wife, who not only had to raise their son on her own, but also to pay back the bank loan for the flat they had bought together. The applicant argued that the decision was in breach of Article 8 of the Convention. He also noted that he had failed to comply with the time-limits to apply for the renewal of his residence permit which had expired on 10 August 2009 as his application had been refused for his failure to enclose his birth certificate, which he had not had with him in Russia (see paragraphs 18 and 21 above). 42. On 18 April 2012 the Penza Regional Court upheld the decision of 24 October 2011, having found that the Oktyabrskiy District Court had duly taken into account the information about the applicant, his financial and family situation, the previous administrative offence, the fact that between 10 August 2009 and 11 March 2011 he had lived in Russia without being duly registered, and that the issue of an invitation for him to enter Russia was refused until 14 September 2013. The court also took note of the fact that, according to the applicant’s explanations provided on 24 October 2011, he had come to Russia for certain business matters and was going to leave once they were solved. 43. The applicant submitted a request for supervisory review. 44. On 16 November 2012 the Supreme Court of Russia upheld the decisions of 24 October 2011 and 18 April 2012 under supervisory review. It noted, in particular, that the penalty imposed on the applicant was in accordance with the law and proportionate for the purposes of Article 8 of the Convention, since the courts had taken into consideration the nature of the offence, his financial and family situation and other circumstances.