CASE OF SHARMA v. LATVIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien);No violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1973 and lives in New Delhi, India. 6. The applicant arrived in Latvia in May 1999 [in his observations, he mentions 1989 or 1992 and studies at Riga Aviation University]. He married a Latvian national on 2 July 1999. They have two daughters, born in Latvia on 19 January 1999 and 18 April 2000 respectively. 7. In August 1999 and August 2000 the applicant was issued a temporary residence permit for one year and four years respectively on the grounds of his marriage to a Latvian national. Under the domestic law which was applicable at the material time, following the expiry of the fouryear period the applicant was entitled to a permanent residence permit. 8. On 21 June 2004 the applicant’s documents for the permanent residence permit were accepted. 9. On 11 August 2004 the applicant’s wife asked the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvaldes Ārzemnieku apkalpošanas departaments) to check the information submitted by the applicant for the permanent residence permit in relation to his employment in Latvia. 10. On 21 September 2004 the Office of Citizenship and Migration Affairs refused to grant the permanent residence permit to the applicant on the grounds that he had submitted false information and did not have sufficient financial means to stay in Latvia. 11. According to the Government, on 30 September 2004 the applicant’s wife wrote the Office of Citizenship and Migration Affairs a short letter stating that “my husband ... was refused a permanent residence permit; I would like to object to this.” This objection was accompanied by another letter requesting to ignore the former, as it had been drawn up under threat by the applicant. She asked for help and for the applicant to be refused leave to remain in Latvia. The applicant disagreed with the allegations contained in this letter. 12. On 13 November 2004 the Office of Citizenship and Migration Affairs overturned the decision of 21 September 2004 (see above). It was concluded that the applicant had sufficient financial means and that no false information had been submitted by him. A permanent residence permit, valid until 9 July 2010, was then issued for the applicant. 13. On 6 December 2004 the applicant’s wife reported a domestic conflict to the police. According to her, on 4 and 5 December, when she had attempted to talk to the applicant about a divorce, he had allegedly tried to suffocate her and had inflicted bodily injuries on her. The applicant disagreed with his wife’s version of events; he submitted to the police that he had not inflicted any bodily injuries on his wife. The cause of their conflicts had been the fact that his wife had taken their children to live in another city in Latvia. 14. Following a forensic examination, unspecified minor injuries were found on the applicant wife’s body. On 29 December 2004 the police refused to open criminal proceedings, on the ground that no offence had been committed. No appeal was lodged against that decision. 15. Meanwhile, on 9 December 2004, the applicant’s wife applied to the Office of Citizenship and Migration Affairs with a view to withdrawing the applicant’s permanent residence permit and expelling him from Latvia on the grounds that he presented threats to her life and health and those of their children. She mentioned her previous letters to the Office of Citizenship and Migration Affairs. When the applicant had found out about them, he had asked for them to be recalled and had promised to stop the abuse he had been engaging in. She had done so. Nevertheless, when the permanent residence permit had been issued “it had started all over again”. The applicant had allegedly threatened to cripple her if he had to leave Latvia, and also to kill her, the children and himself. The applicant denied the allegations contained in this letter. 16. On 15 December 2004 her letter was forwarded to the Security Police (Drošības policija) for an assessment of the applicant’s character and to determine if he presented threats to national security or public order. 17. On 10 January 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant constituted a threat to public order and safety. 18. On 20 January 2005 the Minister of Interior decided to include the applicant in the blacklist for an indefinite period of time, on the ground that he constituted a threat to public order and safety, and decided to refuse him entry to Latvia. This decision was not amenable to judicial review at the time. Following legislative changes (see paragraph 45 below) the persistence of the grounds for the inclusion in the blacklist could be re-examined by the Minister of Interior; the applicant attempted to avail himself of this remedy (see paragraph 21 below). 19. On 24 March 2005 the Minister of Interior replied to the applicant’s enquiry of 22 February 2005 and, having reviewed the applicant’s case, concluded that the applicant could not be removed from the blacklist. 20. On 14 April 2005 the applicant’s wife applied to the Ministry of the Interior claiming that notwithstanding her previous letters expressing her wish for the applicant to leave the country their relations had improved and she wished to maintain her family and not to separate the applicant from their children. If he had to leave she and their children would probably follow him. In reply, the Minister explained that her subjective feelings towards the applicant did not imply a change in the circumstances on the basis of which the applicant had been included in the blacklist. 21. On 25 May 2005 the applicant applied to the Minister of Interior with a view to removing the prohibition on entering Latvia. He submitted that the relationship with his spouse had improved and that she and their children did not wish him to leave Latvia. 22. On 27 May 2005 the Security Police wrote to the Ministry of the Interior informing them that the applicant constituted a threat to public order and safety. On 31 May 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant had been included in the list of persons prohibited from entering in Latvia, confirming their view that the applicant constituted a threat to public order and safety; there had been no change in those circumstances. In view of this, they asked the State Border Guard Service to detain and expel the applicant in accordance with section 51, paragraph 1, part 2 of the Immigration Law. 23. On 13 June 2005 the Minister of Interior adopted decision no. 121 and refused to remove the applicant from the blacklist. The decision was sent to the applicant’s address in Jēkabpils. In the decision, the Minister relied on the letter of 27 May 2005 informing him that the circumstances on the basis of which the applicant had been included in the blacklist had not changed. Thus the Minister could not remove the prohibition on entering Latvia. The applicant’s submissions could not serve as the basis for his removal from the blacklist, since a person could not choose his country of residence under either domestic or international law. States were not obliged to respect couples’ choices concerning their country of residence. Nor were there any reasons detected why the applicant’s family could not join the applicant in India and enjoy their family life there. The Minister concluded that the restrictions on the applicant’s right to respect for his family life were justified in the interests of public order and safety and were proportionate. As regards the procedure for appeal, a reference was made to section 76, paragraph 2 and section 188, paragraph 2 of the Administrative Procedure Law which provided for an appeal to the administrative court. 24. The applicant did not appeal. 25. On 1 February 2005 the Office of Citizenship and Migration Affairs adopted decision no. 823 by which the applicant’s permanent residence permit was withdrawn on the grounds that he had been included in the blacklist (section 36, paragraph 1, part 2 of the Immigration Law). The decision was based on the decision of 20 January 2005 (see paragraph 18 above). It was drawn up on the basis of information and documents received from the Ministry of the Interior. The decision indicated that pursuant to section 70 of the Administrative Procedure Law (see paragraph 50 below) it was to take effect upon notification to the applicant. The decision also stated that the applicant was obliged to leave the country within forty-five days. On 14 February 2005 the applicant was informed of the decision and of the fact that he was to leave the country by 26 March 2005. The applicant lodged an appeal against this decision with the Office of Citizenship and Migration Affairs. 26. On 15 March 2005 the Office of Citizenship and Migration Affairs rejected the applicant’s appeal against the withdrawal of the residence permit. It found that the applicant had been lawfully included in the list of persons prohibited from entering in Latvia. Taking into account that the decision to include the applicant in the blacklist was in force and had not been declared unlawful, it was impossible for the applicant to stay in Latvia. It further considered that the contested decision complied with the rule of law, and that it was taken in the interests of national security, public order and safety and for protection of the rights of others, namely the spouse and children. It was proportionate because the protection of the interests of society in assuring national security and public order and safety in the State outweighed the individual interests of the applicant. The applicant was not heard ’s case-law on immigration control, to Article 8 of the Convention under which the interference with the applicant’s family life could be justified, and to the 2004 report of the Committee on the Elimination of Discrimination against Women (CEDAW) concerning Latvia. 27. On 23 March 2005 the applicant’s appeal against the decision to withdraw his permanent residence permit was allowed by the Administrative District Court. 28. On 12 April 2005 the Administrative District Court forwarded to the applicant’s address in Jēkabpils the written submissions of the Office of Citizenship and Migration Affairs in his case. The applicant was asked to indicate by 2 May 2005 if he would agree for the court to examine his case in written proceedings (rakstveida procedūra). Since he did not reply, the court could not examine the case without a hearing. 29. Following four hearings (on 19 December 2006, 16 January and 12 June 2007, and 5 August 2008), the case was left without determination on the grounds that the applicant had failed to appear before the court. This decision took effect on 16 August 2008. All the court correspondence was sent to the applicant’s address in India. His wife was invited as a third party to the proceedings. 30. Meanwhile, on 7 June 2005 the applicant was detained by State Border Guard Service officials under section 51, paragraph 1, part 2 of the Immigration Law on the ground that he constituted a threat to national security or public order and safety. The detention record also stated that by a decision of the Minister of Interior the applicant had been included in the blacklist, and that on 14 February 2005 his permanent residence permit had been withdrawn. The applicant signed the detention record and he was placed in a short-term detention facility in Jēkabpils, where he stayed until 17 June 2005. 31. The applicant lodged a complaint with a prosecutor, arguing that he had been unlawfully detained on the grounds of lack of a valid residence permit. On 14 June 2005 a prosecutor replied that the applicant’s detention was lawful and had been ordered on national security or public safety and order grounds. He could be detained for ten days on these grounds, following which a court order was necessary for continued detention. It was noted that on 31 May 2005 the Security Police had informed the State Border Guard Service that the applicant had been included in the blacklist. Finally, it was noted that the applicant’s detention as such did not automatically entail his expulsion. An expulsion order should be issued within ten days of the applicant’s detention. The applicant was informed that he could lodge an appeal against this reply with a superior prosecutor. 32. On 13 June 2005 the Jēkabpils branch of the Office of Citizenship and Migration Affairs adopted an expulsion order, no. 23-7 (lēmums par ārzemnieka piespiedu izraidīšanu) under section 47, paragraph 1, part 2 of the Immigration Law, on the grounds that the applicant had been detained by the State Border Guard Service in Latvian territory. He was informed that he would be excluded from Latvian territory for a five-year period. The decision took effect the same day, when it was notified to the applicant. On 14 June 2005 the applicant lodged an appeal against the expulsion order with the Head of the Office of Citizenship and Migration Affairs. 33. On 16 June 2005, following a closed hearing, a judge of the Jēkabpils District Court authorised the applicant’s detention for two more months. The judge heard the applicant and decided that he was to be transferred to an accommodation centre for foreign detainees in Olaine. He could not yet be expelled because he had lodged an appeal against order no. 23-7, and thus the judge considered that it was necessary to extend his detention. No appeal against the decision was lodged. 34. On 17 June 2005 the applicant was transferred to an accommodation centre for foreign detainees in Olaine. 35. On 30 June 2005 the Office of Citizenship and Migration Affairs adopted a decision under section 61, paragraph 4, part 3 of the Immigration Law (see paragraph 46 below), including the applicant in the list of persons prohibited from entering in Latvia until 13 June 2010. The applicant did not lodge an appeal against this decision with the administrative courts. 36. On 11 July 2005 the Head of the Office of Citizenship and Migration Affairs dismissed the applicant’s appeal against the expulsion order (see paragraph 32 above). The decision stated that it came into effect pursuant to section 70 of the Administrative Procedure Law and could be amenable to judicial review by the administrative court within one month of its coming into effect. 37. On 13 July 2005 this decision was sent to the accommodation centre for foreign detainees in Olaine. It was not served on the applicant because meanwhile, on 12 July 2005, the applicant had been expelled from Latvia to India. 38. Upon the applicant’s request, on 30 March 2011 the Minister of Interior adopted decision no. 26 entitled “Removal of prohibition on entering the Republic of Latvia”. On the basis of information received from the State Police and the Security Police and section 64, paragraph 1, part 1 of the Immigration Law the Minister decided to remove the applicant from the blacklist. The decision took effect immediately. 39. On 29 April 2011, in response to an email from the applicant, the Ministry of the Interior explained that he had been included in the blacklist on the basis of decision no. 72 of 20 January 2005 and that he could not appeal against the decision, but he could ask the competent authority to review that decision (reference was made to paragraph 7 of the transitional provisions of the Immigration Law). They also informed him that according to the Immigration Law the reasons for the applicant’s inclusion in the list could not be disclosed. Having received the applicant’s request for a review of the decision, the Ministry of the Interior had made enquiries with the State Police and the Security Police. They had received answers that threats under section 61, paragraph 1 of the Immigration Law were not present. Accordingly, the above decision was adopted. Lastly, in response to the applicant’s question whether he could now enter Latvia or receive a permanent residence permit, reference was made to the Immigration Law and the procedure established therein.