CASE OF BOLAT v. RUSSIA
Violation of P4-2;Violation of P7-1;Non-pecuniary damage - financial award
Christos Rozakis
9. The applicant was born in 1974 and lives in Kapaklı, Turkey. 10. From 1998 to 2003 the applicant, an ethnic Kabardinian, lived in the Kabardino-Balkarian Republic of the Russian Federation on the basis of a long-term residence permit (vid na zhitelstvo). 11. In early 2000 the applicant's residence permit was lost or stolen. On 22 February 2000 he asked the Passports and Visas Department of the Ministry of the Interior of the Kabardino-Balkarian Republic (passportno-vizovaya sluzhba MVD KBR) to replace the permit and to extend it until 5 August 2003. 12. After a few months' delay the applicant was issued with a new residence permit valid until 9 July 2000. The shortened term of validity was explained by reference to a recommendation of the Federal Security Service of the Russian Federation, which considered a longer extension “inappropriate” because the circumstances surrounding the loss of the first permit had not been clear enough. 13. The applicant complained to a court. On 1 June 2000 the Nalchik Town Court allowed the applicant's complaint and ordered the Passports and Visas Department to extend his residence permit until 4 August 2003. 14. On 7 June 2002 the applicant was fined for having breached the residence regulations. He did not contest the fine before a court. 15. After 5 December 2002 the applicant's registered place of residence was a flat on Kulieva avenue in Nalchik. His residence registration at that address was valid until 4 August 2003. Department of the Interior No. 1 of Nalchik (Pervyi otdel vnutrennikh del g. Nalchika) placed a stamp to that effect in the applicant's residence permit. 16. On 11 December 2002 the applicant was at a friend's flat in Furmanova street in Nalchik where he had stayed overnight. At 9 a.m. a man and a woman entered the flat. The woman introduced herself as a police inspector of Department of the Interior No. 2 of Nalchik; the man did not identify himself. The man and woman claimed that they were conducting a “check-up of identity documents”. The applicant's friend, Mr Kh., refused them entry to the flat, but they entered nevertheless. They proceeded to the room where the applicant was and asked him to produce identity documents. On seeing a different address in his residence permit, the woman asked the applicant why he did not live at home. The woman invited the applicant to come with them to the police station, which the applicant did. The applicant stayed at the station while a report was being drawn up. 17. On the same day Inspector A. drew up a report of an administrative offence and issued a decision to fine the applicant RUR 500 (approximately EUR 20) for “residing in Furmanova street without registering his place of stay” which was an offence under Article 18.8 of the Administrative Offences Code. Inspector A. asked the applicant to pay the fine on the spot. The applicant refused and complained to a court. 18. On 24 December 2002 the Nalchik Town Court heard the applicant's complaint. The court reiterated that the Russian Constitution guaranteed to anyone who lawfully resided in its territory the freedom to move freely and choose his or her place of residence and stay and that that provision also applied to foreign nationals. The court took statements from the applicant, his friend Mr Kh. and another person who had been in the flat in Furmanova street on 11 December 2002; they all maintained that the applicant had paid a visit to his friend and had not been living in Mr Kh.'s flat. Furthermore, Ms Sh., the owner of the flat on Kulieva avenue, confirmed that she had made her flat available to the applicant for residential purposes and that he had been duly registered at her address. The Town Court came to the conclusion that no administrative offence had been committed and annulled the decision of 11 December 2002. The police lodged an appeal. 19. On 20 January 2003 the Supreme Court of the Kabardino-Balkarian Republic quashed the judgment of 24 December 2002 on procedural grounds and remitted the case for examination by a different formation. 20. On 26 February 2003 the Nalchik Town Court dismissed the applicant's complaint, finding as follows: “The administrative proceedings against [the applicant] were initiated, and a fine in the amount of 500 roubles was imposed on him, not only on the basis of the obvious fact, established by Inspector A., that [the applicant] had been outside his place of residence but also on the basis of the report drawn up by O. and Sh., district police officers of Department of the Interior No. 3 of Nalchik, on [the applicant's] residence in the Furmanova street flat from 20 November to 11 December 2002... [These police officers] gave statements as witnesses and stated that they had learnt from operational sources that a foreigner, named Bolat Haci-Bayram, was secretly living in Kh.'s flat... At the same time the complainant and the witnesses Mr Kh. and Ms Sh. failed to satisfy the court that [the applicant] had only stayed overnight at Kh.'s on the night of 10-11 December 2002 because of heavy frost outside and the need to avoid returning to a remote district of the town. In particular, Ms Sh. did not inform the court on what date she had visited [the applicant] on Kulieva avenue and how many days before the administrative offence report was drawn up he might have been staying at Mr Kh.'s... Besides, the court takes into account that the witnesses examined on behalf of the complainant are his relatives or friends and might have an interest in the outcome of the case. Additionally, the court has examined a report by [the police officer Kha.] which stated that during checks he could not verify the applicant's residence either at the old or at the new address.” 21. The applicant appealed against the judgment. In the grounds of appeal the applicant's lawyer alleged, in particular, that the fine had been imposed in the applicant's absence by a police officer who had not been competent to do so, that the report of an administrative offence had not been corroborated by any evidence and that the sanction had not been imposed in accordance with law. The lawyer also submitted that the first-instance court had erred in its assessment of statements by the police officers O. and Sh. who had denied that they had known the applicant, and that the court had admitted in evidence a report by the officer Kha. who had not been examined before or at the hearing. 22. On 19 March 2003 the Supreme Court of the Kabardino-Balkarian Republic upheld the judgment of 26 February 2003. It rejected the applicant's arguments that he had been unlawfully fined, on the ground that he had allegedly failed to raise these issues before the Town Court. The Supreme Court did not address the applicant's inability to question the officer Kha. Instead, it found that “on 30 November 2002 Mr Af., district inspector of the first department of the interior of Nalchik, reported to his superior that the flat on Kulieva avenue was empty”. The remainder of the Supreme Court's reasoning was similar to that of the Town Court. 23. On 31 March 2003 the applicant and his lawyer asked the Presidium of the Supreme Court of Kabardino-Balkaria to lodge an application for supervisory review. On 6 June 2003 the request was refused. 24. On 4 February 2003 the applicant applied by mail for an extension of his residence permit to 30 July 2007. On 6 March 2003 the Passports and Visas Department informed him that he had to apply for an extension in person. The applicant responded in writing that there was no such requirement in the domestic law. 25. On 29 May 2003 the town prosecutor of Nalchik sent a request to remedy a violation of Russian laws (predstavlenie ob ustranenii narushenii zakonov RF) to the head of the Passports and Visas Department. The prosecutor requested that the applicant's residence permit be annulled and that he be expelled because he had been found guilty of two administrative offences in the previous year. 26. On 30 May 2003 Inspector Sh. of the Passports and Visas Department annulled the applicant's residence permit on the ground of repeated violations of residence regulations in the Russian Federation. The order was approved by the Minister of the Interior of Kabardino-Balkaria. The applicant was ordered to leave Russia within fifteen days. 27. On 9 June 2003 the Nalchik Town Court stayed the execution of the order of 30 May 2003 pending the Supreme Court's decision on a request by the applicant for supervisory review. 28. On 7 August 2003 at about 10 a.m. several officers of the Ministry of the Interior and the Federal Security Service entered the applicant's flat on the Kulieva prospect. Some of them wore face masks. They did not identify themselves and they did not present any search or deportation warrant. The applicant was handcuffed and taken by car to Nalchik Airport where he was placed on a flight to Istanbul, Turkey. 29. On 8 October 2003 the Supreme Court of Kabardino-Balkaria, giving a ruling in the supervisory-review procedure, quashed the decision on an administrative offence of 11 December 2002 and the judgment of the Nalchik Town Court of 26 February 2003, finding that there had been no admissible evidence showing that the applicant had lived outside the place of his residence registration. It noted that the reports by police officers O. and Sh. had been based on hearsay and that officer Kha.'s report had not confirmed the applicant's residence in Furmanova street either. Furthermore, it pointed out that the Town Court's requirement of proof that the applicant had only been a guest in Furmanova street ran contrary to the presumption of innocence enunciated in Article 1.5 of the Administrative Offences Code. Finally, it noted that the administrative charge against the applicant had been examined by an officer of the police station having no territorial jurisdiction over Furmanova street and that this fact alone had rendered the sanction unlawful. The Supreme Court discontinued the administrative proceedings against the applicant. 30. On 28 October 2003 the Nalchik Town Court heard the applicant's complaint against the order of 30 May 2003 annulling his residence permit. The court noted that a residence permit could only be annulled in case of repeated violations of residence regulations, but that this provision was no longer applicable as the administrative proceedings against the applicant had been terminated by the decision of 8 October 2003. The court declared the order of 30 May 2003 void and ordered that the Passports and Visas Department extend the applicant's residence permit for five years, starting from 4 August 2003. The judgment was not appealed against and became enforceable on 10 November 2003. 31. In a separate set of proceedings, the applicant's representative attempted to bring criminal charges against the officials who had deported the applicant by force. On 25 August 2003 he complained to the Nalchik town prosecutor's office about the allegedly unlawful search at the applicant's home and his deportation to Turkey. On 30 August 2003 his complaint was rejected because no evidence of a criminal offence had been adduced. On 20 November 2003 the head of the investigations department of the Kabardino-Balkaria prosecutor's office annulled the decision of 30 August and remitted the complaint for additional investigation. On 3 December 2003 the Nalchik town prosecutor's office again refused to prefer criminal charges on the ground that no evidence of a criminal offence had been adduced. This decision was subsequently quashed, but on 11 December 2003 and 1 February 2004 further orders discontinuing criminal proceedings were issued. 32. On 9 April 2004 the Passports and Visas Department informed the applicant that it would extend his residence permit in implementation of the Town Court's judgment of 28 October 2003. The Department invited the applicant to appear in person in order to collect the permit. 33. On 6 July 2004 the applicant's representative, Mr Kuchukov, received the documents for extension of the applicant's residence permit and forwarded them to the applicant in Turkey. 34. At 6.30 p.m. on 23 August 2004 the applicant arrived in Nalchik on board a flight from Istanbul. On arrival he was detained by officers of the Border Control and the Federal Security Service and locked in an isolated room in the Nalchik airport building. The applicant was not allowed to consult his lawyer, Mr Kuchukov. 35. On 23 and 24 August 2004 Mr Kuchukov sent complaints about the applicant's unlawful detention to prosecutor's offices of various levels, to the Border Control, to the Federal Security Service and to the Representative of the Russian Federation at the European Court of Human Rights. 36. At 10 a.m. on 25 August 2004 Mr Kuchukov asked Major D., the head of the Border Control, to see the applicant. His request was refused by reference to an order of the Federal Security Service. Major D. then called Captain G. from the Kabardino-Balkaria Department of the Federal Security Service who confirmed that the applicant's contacts with lawyers had indeed been banned. 37. At 1.10 p.m. on 25 August 2004 the applicant was put on a scheduled flight to Turkey. It can be seen from the “deportation record” of the same date, drawn up on the letterhead of the Nalchik airport border control point of the Federal Security Service, that the applicant was deported for having been in breach of section 27 § 1 of the Law on the Procedure for Entering and Leaving the Russian Federation. 38. According to the Government, the ban on the applicant's re-entry into Russia was imposed by the Federal Security Service some time in December 2002 on the basis of Section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation. The Government claimed that they could not produce a copy of that decision because it contained “State secrets”. They submitted, however, that the Prosecutor-General's Office had found no reason to challenge that decision before a court as it had been issued in accordance with the requirements of the above law. 39. In response to the applicant's lawyer's complaints, on 26 August 2004 a senior investigator with the military prosecutor's office of the Border Control of the Federal Security Service refused to initiate a criminal investigation into the applicant's deprivation of liberty at Nalchik Airport. He found that the ban had been imposed by Directorate “I” of the Federal Security Service and that the applicant had awaited the next flight to Turkey in the international zone of Nalchik Airport under the surveillance of the Border Control officers. The room had been equipped with a toilet, ventilation, lighting, a TV set, a bench and a chair. As the Border Control officials had acted in accordance with the applicable regulations, the applicant's stay in the transit area could not be interpreted as a “deprivation of liberty”. 40. The Government indicated that the Federal Security Service was examining the issue of annulment of the applicant's residence permit in accordance with section 9 (1) of the Foreign Nationals Law. 41. Everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence (Article 27 of the Russian Constitution). Foreign nationals in the Russian Federation shall have the same rights and obligations as Russian nationals subject to exceptions set out in a federal law or an international treaty to which Russia is a party (Article 62 § 3). 42. A foreign national must register his or her residence within three days of his or her arrival in Russia (section 20 § 1 of the Law on Legal Status of Foreign Nationals in the Russian Federation, no. 115-FZ of 25 July 2002 – “the Foreign Nationals Law”). Foreign nationals must obtain residence registration at the address where they stay in the Russian Federation. Should their address change, such change is to be re-registered with the police within three days (section 21 § 3). 43. A foreign national who violates the residence regulations of the Russian Federation, including by non-compliance with the established procedure for residence registration or choice of a place of residence, shall be liable to an administrative fine of RUR 500 to 1000 and possible expulsion from Russia (Article 18.8 of the Administrative Offences Code). A report of the offence described in Article 18.8 may be drawn up by officials of the State migration authorities (Article 28.3 § 2 (15)). This report must be forwarded within one day to a judge or an officer competent to adjudicate administrative matters (Article 28.8). The determination of an administrative charge that may result in expulsion from Russia shall be made by a judge of a court of general jurisdiction (Article 23.1 § 3). A right of appeal against a decision on an administrative offence lies to a court or to a higher court (Article 30.1 § 1). 44. A residence permit may be annulled if a foreign national has been charged two or more times within the last year with violations of residence regulations (section 9 (7) of the Foreign Nationals Law). 45. A foreign national's residence permit shall be issued for five years. Upon expiry it may be extended for a further five years at the holder's request. The number of extensions is not limited (section 8 (3) of the Foreign Nationals Law). 46. A residence permit may be annulled, particularly if the foreign national advocates a violent change of the constitutional foundations of the Russian Federation or otherwise creates a threat to security of the Russian Federation or its citizens (section 9 (1) of the Foreign Nationals Law). 47. Administrative expulsion of a foreign national from the Russian Federation must be ordered by a judge (Articles 3.10 § 2 and 23.1 § 3 of the Administrative Offences Code). 48. A foreign national may be refused entry into the Russian Federation if such refusal is necessary for the purpose of ensuring the defensive capacity or security of the State, or for the protection of public order or public health (section 27 § 1(1) of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996). 49. On 10 January 2003 the Law on the Procedure for Entering and Leaving the Russian Federation was amended. In particular, a new section 25.10 was added. It provided that a competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, could issue a decision that a foreign national's presence on Russian territory was undesirable, even if his or her presence was lawful, if it created a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision was made, the foreign national had to leave Russia or else be deported. That decision also formed the legal basis for subsequent refusal of re-entry into Russia. 50. Resolution 1277 (2002) on honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted in the relevant part as follows: “8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities: ... xii. whilst noting that the Russian federal authorities have achieved notable progress in abolishing the remains of the old propiska (internal registration) system, the Assembly regrets that restrictive registration requirements continue to be enforced, often in a discriminatory manner, against ethnic minorities. Therefore, the Assembly reiterates its call made in Recommendation 1544 (2001), in which it urged member states concerned 'to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders'...” 51. The Explanatory Report defines the scope of application of Article 1 of Protocol No. 7 in the following manner: “9. The word 'resident' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose... The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person's presence in the territory to be considered 'lawful'. [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still 'lawfully' present.” 52. The Report further cites definitions of the notion of “lawful residence” contained in other international instruments: “a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein... b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.” “a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it; b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.” 53. The Report clarifies the notion of “expulsion” as follows: “10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised. 11 . Paragraph 1 of this article provides first that the person concerned may be expelled only 'in pursuance of a decision reached in accordance with law'. No exceptions may be made to this rule. However, again, 'law' refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.”