CASE OF ZEZEV v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Pere Pastor Vilanova
5. In 2005 the applicant, an information technology specialist, moved from Kazakhstan to the Krasnodar Region in Russia to live with his parents and brother, O.Z., who were Russian citizens. He resided there on the basis of visas and temporary residence permits. 6. In January 2007, the applicant married Ms M.K., a Russian national, with whom he had a son in June 2009. 7. On 23 December 2008 the Kazakh authorities provided the applicant, upon his request, with an official statement certifying that he had no criminal record in Kazakhstan. The applicant had requested the document with view to applying for Russian nationality through the simplified procedure for spouses of Russian nationals. 8. In January 2009 the applicant submitted his application for Russian nationality to the Federal Migration Service in the Krasnodar Region (Управление Федеральной миграционной службы по Краснодарскому краю (ФМС)) (hereinafter “the Krasnodar FMS”). 9. In May 2009 the Krasnodar FMS rejected the application, referring to information provided by the Federal Security Service (Федеральная Служба Безопасности (ФСБ)) (hereinafter “the FSB”) that the applicant posed a threat to Russia’s national security. 10. On 13 August 2009 the FSB informed the applicant about a decision it had made on the undesirability of his presence (residence) in Russia and on prohibiting him from re-entering the country until July 2014 (hereinafter “the exclusion order”). The applicant was to leave Russia within fifteen days of receipt of the letter. He was not provided with the reasons for the decision, its date or number. 11. On 13 November 2009 the applicant appealed against the exclusion order to the Oktyabrskiy District Court in Krasnodar, which forwarded it for examination to the Krasnodar Regional Court (hereinafter “the Regional Court”), which had jurisdiction under domestic legislation to look at cases involving State secrets. In his complaint, the applicant alleged, inter alia, that the exclusion order was arbitrary, that it had been taken on the basis of undisclosed information and that his removal from Russia would disrupt his family life. In particular, the applicant stated that he was ethnically Russian, had no connection with Kazakhstan and that his wife and child, as well as his brother and parents, were Russian nationals residing in Russia. He was the family breadwinner and his exclusion would entail distress and financial hardship for his wife and son. 12. On 24 March 2010 the Regional Court examined the applicant’s appeal in camera. The applicant testified before the court and stated that in 1999 his brother O.Z. had been prosecuted by the United States’ authorities for a computer crime perpetrated in that country; after serving his sentence in the United States, in 2004, his brother had returned to Russia, of which he was a national, and had been offered a job by the FSB. Meanwhile, the applicant and his parents had been pressured by the Kazakh security services to convince his brother to return to Kazakhstan and collaborate with them. Shortly thereafter, in 2005, the Kazakh authorities had opened a criminal case against the applicant on suspicion of computer fraud. Later that year, due to the Kazakh authorities’ pressure and his Russian ethnic origin, the applicant had decided to move to Russia. In 2006, the Kazakh authorities had pardoned the applicant and his criminal record had been expunged. The applicant stressed that throughout his time living in Russia he had been a law-abiding person, had been in full compliance with immigration regulations and had a wife and child who were Russian nationals. He pointed out that he was an ethnic Russian, that he did not speak Kazakh, had no family in that country, and that he had neither a place to live in Kazakhstan nor the financial means to move there with his wife and infant son. 13. Also at the hearing on 24 March 2010, the applicant’s counsel requested that the court examine the factual grounds for the exclusion and allow him to access the documents which had served as its basis. He stressed that the FSB had failed to produce a single item of evidence to substantiate their allegations about the threat the applicant posed for national security. Referring to the case of Liu v. Russia (no. 42086/05, 6 December 2007), he pointed out that the authorities had to provide evidence proving the applicant was a threat to national security, given that the sanction against him, the five-year exclusion, would lead to the disruption of his family life. The court examined and dismissed the request, stating that as the matter was within the FSB’s exclusive competence it fell outside the scope of judicial review. From the documents submitted to the Court, it is unclear whether the FSB presented the Regional Court with any evidence concerning the applicant’s case, other than its letter to the applicant of 13 August 2009 (see paragraph 10 above) and copies of the relevant legal provisions governing the activities of the FSB and the applicable immigration regulations. 14. On the same date, 24 March 2010, the Regional Court rejected the applicant’s appeal and upheld the exclusion order. Its decision stated, amongst other things, the following: “ ... in July 2009 the Federal Security Service took a decision on the undesirability of Mr Zezev’s presence (residence) in the Russian Federation and on prohibiting his re-entry into the country until July 2014 ... In his complaint, Mr Zezev seeks to have the decision of the Federal Security Service declared unlawful and for it to be overruled, referring to the following: He has resided in the Russian Federation for five years. He has never committed any crime, either in Russia or Kazakhstan. He does not have a criminal record. His character has been described in positive terms. He does not represent a threat to the security of the Russian Federation. He does not have a place to live in Kazakhstan. He is ethnically Russian and wants to work and live in Russia. The FSB’s decision is unlawful and unsubstantiated ... ... [According to the applicant] the court should examine [his] case in the light of the right to respect for his private and family life and respect for a citizen’s choice of the place for his family life. There is no evidence of any alleged criminal activities ... ... the FSB decided on the undesirability of Mr Zezev’s presence (residence) in Russia and on prohibiting his re-entry into the country until July 2014. The application of such preventive measures is within the Federal Security Service’s scope of discretion. The decision [in respect of the applicant] was taken by FSB officials within the scope of their authority and the procedure defined by federal legislation and was approved by the competent official. Given the circumstances, Mr Zezev’s request to have the FSB’s decision on the undesirability of his presence (residence) in Russia and on the prohibition on his re-entry until July 2014 declared unlawful should be rejected ...” 15. On 5 April 2010 the applicant appealed against the above decision to the Supreme Court of the Russian Federation (hereinafter “the Supreme Court”). He referred, in particular, to the Court’s case-law on Article 8 of the Convention concerning the right to respect for family life. He stated that the Regional Court had failed to examine whether the FSB decision had been substantiated by proof. He pointed out that the FSB had not furnished any evidence to the court of alleged activities by him that posed a threat to national security. The applicant further stated that even though he was a Kazakh national he was an ethnic Russian, did not speak Kazakh, and had nowhere to live in Kazakhstan as his parents had also moved to Russia in 2005. He further stressed that he had married a Russian national in 2007 with whom he had had a son in 2009 and that all his family members were Russian nationals. Lastly, the applicant pointed out that he was the sole breadwinner for his wife and infant child. 16. On 2 June 2010 the Supreme Court upheld the Regional Court’s judgment stating, amongst other things, the following: “...On 22 July 2009 the Federal Security Service issued a decision on the undesirability of the presence (residence) of the Kazakh national Mr Zezev in the Russian Federation and on the prohibition of his re-entry ... In the cassation appeal Mr Zezev seeks to have the judgment of the Krasnodar Regional Court overruled as unlawful. The court sees no basis for granting that request ... When deciding to reject Mr Zezev’s request, the Regional Court had in its possession information which served as the basis for the [FSB] order. Mr Zezev’s arguments concerning the unlawfulness of the FSB order were examined by the Regional Court. In those circumstances, the Chamber finds that the applicant’s right to a proper defence was fully complied with and that the reasons for the decision concerning the undesirability of his presence (residence) in Russia and on the prohibition of his re-entry, which was taken owing to the real threat he posed to national security, have been confirmed by concrete facts. As for the applicant’ In those circumstances, the decision of the Krasnodar Regional Court should remain unchanged ...” 17. On 17 August 2010 the FMS issued an order for the applicant’s deportation. It appears from the case file that the sanction was not enforced as, according to the applicant, he informed the local authorities that he had an application pending before the Court. He continued to reside in Russia. 18. In May 2011 the applicant and his wife had another child. 19. On 19 November 2013 the police arrived at the applicant’s home and fined him for a breach of immigration regulations under Article 18.8 of the Code of Administrative Offences (“the COA”). Then the police detained him on the spot and took him to the court. 20. The applicant was then taken to the Sovetskiy District Court in Krasnodar, which on 21 November 2013 ordered his deportation and placed him in a special centre for the detention of foreigners. 21. On 26 December 2013 the applicant was deported from Russia. 22. On an unspecified date in February 2014 the applicant attempted to re-enter Russia but was informed at the border that he was banned from entering until 31 July 2014. 23. The applicant has submitted that on 30 July 2014 police officers arrived at his wife’s home in Russia and informed her that he was wanted on suspicion of a crime. The applicant’s wife explained that he had been deported from Russia in December 2013. 24. It is unclear whether the applicant returned to Russia after the expiry of his re-entry ban on 31 July 2014. According to the Government, the applicant neither applied for a temporary residence permit nor sought Russian nationality between 2014 and 2016. 25. In their submission to the Court, the Government stated that on 12 December 2008 and 25 November 2012 the applicant was fined for being intoxicated in public and then on 19 November 2013 for a violation of immigration regulations (see paragraph 19 above). The Government further stated that on 31 July 2014 the police in Krasnodar had opened a criminal case against the applicant on suspicion of involvement in computer fraud. As of October 2016 the criminal proceedings against the applicant were still pending. 26. In reply to a request by the Court for a copy of the documents which served as the basis for the decision to exclude the applicant, the Government only furnished a thirteen-page copy of the transcript of the hearing of the applicant’s appeal by the Krasnodar Regional Court on 24 March 2010 (see paragraphs 12-14 above).