K.M. AND OTHERS v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
The applicants are Ms M.H., who was born in 1963, Ms M.D., who was born in 1998, and Mr L.C., who was born in 1965. The applicants are Chinese nationals. The first and the third applicants are married; they are the parents of the second applicant. Prior to the deportation of the first two applicants to China in March 2007, the applicants lived in St. Petersburg, Russia. After that the third applicant was resettled in Sweden by the United Nations High Commissioner for Refugees (UNHCR). The facts of the case, as submitted by the parties, may be summarised as follows. According to the applicants' submission, the first applicant is a RussianChinese interpreter. She married the third applicant in 1987. The applicants furnished the Court with a certified copy of their marriage certificate. Their daughter, the second applicant, was born in July 1998. The third applicant had lived in St. Petersburg since 1997; he had a valid work permit. Between 1992 and 1998 the first applicant worked in St. Petersburg, and then from September 1998 to July 1999 she was in China. In August 1999 she returned to St. Petersburg. Her residence permit was valid until 25 August 2003. Since 1997 the first applicant has been a follower of the Falun Gong (also spelled as Falung Gong and Falung Dafa) movement persecuted by the Chinese authorities. In March 2003 she went to Switzerland to take part in an international conference of Falun Gong. There she learnt that her name had been placed by the Chinese authorities on a “blacklist” as an activist of the movement. In April 2003 the first applicant was interviewed at the UNHCR Office in Moscow. In October 2003 she was granted refugee status under the mandate of the UNHCR. The Government submitted that the first and second applicants had been registered by the Russian authorities as persons seeking asylum in Russia. The third applicant had never been registered as an asylum seeker; he was in Russia on a valid work visa. The first applicant has never applied for authorisation to remain in Russia as his spouse. The Government further stated that the first and third applicants were not married and that the third applicant was not the father of the second applicant. They referred to a copy of the second applicant's birth certificate which did not provide information about her father but simply stated: “Russian”. In addition, the third applicant was never registered as the second applicant's father with the Russian immigration authorities. On 20 August 2003 the first applicant applied to the Department of Migration Affairs of the Ministry of the Interior in St. Petersburg (the Department of Migration Affairs) for asylum. The asylum request also included the second applicant, her daughter. In her request the applicant stated that she was not being sought by the authorities in China, that she did not follow any religion and that her relatives had not been arrested by the Chinese authorities. At the same time she submitted that she could not return to China due to the persecution of members of Falun Gong, even though she had not played any role in the movement. On 30 April 2004 the Department of Migration Affairs rejected her request. The decision comprised eleven pages and provided a detailed explanation of the reasons for the refusal to grant refugee status. In particular, it stated that the applicant had been inconsistent in her submissions concerning the circumstances under which she had learnt that her name had been put onto the authorities' blacklist, having provided four different versions of the events; that her husband, who was also a follower of the same movement, had never applied for asylum and that she had submitted her request for asylum when her permission to remain in Russia was about to expire. On 31 May 2004 the first applicant appealed against the refusal to the Kuybyshevskiy district court. On 21 November 2005 the district court dismissed her appeal and on 29 June 2006 the St. Petersburg City Court upheld the decision of the first-instance court. On 18 November 2005 the first applicant issued an official authority form authorising a number of persons, including Ms. Oshirova, to represent her in all legal proceedings. On 30 July 2007 Ms Oshirova, on the basis of the form of 18 November 2005, authorised Ms Tseytlina to represent the first applicant in all legal proceedings. It appears that the first applicant was not aware of this. On 4 September 2007 the first applicant cancelled the authority form of 18 November 2005 (see below). On 29 June 2006 the first applicant lodged a request for temporary asylum with the Department of Migration Affairs. On 18 September 2006 her request was refused. The first applicant appealed against the decision to the Dzerzhinskiy district court of St. Petersburg (“the Dzerzhinskiy district court”). On 6 December 2006 the court upheld the refusal to grant temporary asylum. On 12 February 2007 the court's decision entered into force. The first applicant appealed against that decision but did not pay the court fee. On 21 February 2007 the district court ordered a stay of the appeal proceedings. On 14 March 2007 the first applicant had applied to the same court with a request for the time-limit for submitting an appeal to be restored. The district court scheduled a hearing for the restoration of the time-limit for 30 March 2007 and summoned the first applicant to that hearing. On 30 March 2007 the district court rejected the claim concerning reinstatement of terms for appeal against its decision of 6 December 2006. Meanwhile, on 13 March 2007 the Department of Migration Affairs decided to deport the first applicant. On 28 February 2007 the Department of Migration Affairs issued a decision to deport the first and second applicants from Russia, which was confirmed by the Federal Migration Service (the FMS) on 13 March 2007. On 28 March 2007 officers of the FMS arrived at the applicant's flat and took the first and second applicants to the airport for deportation. They were put on a plane to Beijing and left Russia the same day. On 9 April 2007 (in the submitted documents the date was also referred to as 6 April 2007) the third applicant appealed to the Dzerzhinskiy district court against the deportation order. On 13 April 2007 the court delivered two rulings. The first one concerned the court's refusal to examine the appeal as it had been lodged with a court which did not have jurisdiction; the second one stated that the third applicant was not empowered to submit complaints on behalf of the first and second applicants. On 5 June 2007 the St. Petersburg City Court quashed these two rulings and instructed the court to review these complaints in a single set of proceedings. On 30 June 2007 the third applicant left Russia. On 28 July 2007 the third applicant asked the district court to examine his appeal against the deportation in his absence. On 5 September 2007 (in the submitted documents the date was also referred to as 4 September 2007) the first applicant revoked the authority form issued for her representatives Ms Tseytlina and Ms Oshirova and requested that all legal proceedings initiated on her behalf, including those concerning the deportation, be discontinued. The Government furnished the Court with a certified translated copy of the request to this effect, no. 32414, dated 5 September 2007. The text of the document, which was certified by a notary in China, included the first applicant's address in Harbin, China and the following text: “...I declare that hereby I am cancelling the authority form of 18 November 2005 for the representation of my interests in civil and other proceedings in courts, governmental and other institutions... I request that the appellate proceedings initiated by my representatives in connection with the deportation decision of the Russian Federal Migration Service and the actions taken by the Department of Migration Affairs in connection with my deportation be discontinued. I understand the consequences of the refusal to continue the above proceedings...” It appears that on 9 November 2007 the Dzerzhinskiy district court discontinued the proceedings initiated by the third applicant and on 20 November 2007 this decision became final. On 23 November 2007 the applicants' representative Ms Tseytlina lodged the third applicant's request dated 22 November 2007 for postponement of a hearing scheduled for 23 November 2007 as the third applicant had not been able to properly prepare the authority form for Ms Tseytlina and Ms Oshirova as his passport had been in the process of being issued. On the same date, 23 November 2007, the Dzerzhinskiy district court discontinued the proceedings initiated by the third applicant, stating that the proceedings did not concern his legitimate rights. On 3 December 2007 the applicant's representatives appealed against this decision. On 15 January 2008 the St. Petersburg City Court forwarded the applicants' case to the Dzerzhinskiy district court to determine the right of the third applicant to appeal against the decision of 23 November 2007 as he had failed to submit any documents authorising Ms Tseytlina and Ms Oshirova to participate in the appellate proceedings. It is unclear whether the third applicant was able to submit any documents authorising Ms Tseytlina and Ms Oshirova to participate in the appellate proceedings and if not whether the proceedings have been discontinued. The applicants submitted that the first applicant's relatives in China had come to the airport to meet her; however, she and the second applicant had not come out and had not been on the list of passengers. The second applicant had later been taken by the police to the relatives' house in Harbin, China. It appears that the first applicant had been arrested upon arrival and released after nine days. No information concerning the time, the place of the arrest or the authority effecting it, the detention facility, its location or any other details pertaining to these events were provided to the Court. The applicants further submitted that since their return to China the first and the second applicants had been living with their relatives. According to their submission, the first applicant's passport had been taken away from her, she had been instructed to inform the police about her movements and put under pressure to renounce the practice of Falun Gong. The first applicant asked the third applicant not to call her because it put her relatives at risk. No details pertaining to this part of the applicants' submission had been submitted to the Court. For a summary of the relevant provisions see Y. v. Russia (no. 20113/07, 4 December 2008).