CASE OF SAMSONNIKOV v. ESTONIA
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for private life)
Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
6. The applicant was born in 1978. He currently lives in St Petersburg, Russia. 7. The applicant was born in Estonia and had not permanently resided in any other country until his expulsion from Estonia. 8. The applicant completed his basic education in Tallinn in 1993 in a school where the language of instruction was Russian. His knowledge of Estonian was graded “4” (“good”) at school. 9. In 1994 the applicant’s mother died in Moscow. She was buried in Russia. 10. From 20 June 1995 until 20 June 2000, from 5 May 2003 until 4 May 2005 and from 5 May 2005 until 4 May 2008 the applicant had temporary residence permits in Estonia. 11. In the meantime, in 1998, the applicant applied for, and was granted (as a citizen of the former USSR), citizenship of the Russian Federation. According to the applicant, in the late 1990s he attempted to acquire Estonian nationality. However, he never made a formal request to that effect. 12. The applicant has three criminal convictions in Estonia: - on 27 January 1997 the Tallinn City Court convicted him of aggravated hooliganism (he had beaten a person in the street and later broken a door of an apartment and beaten its inhabitants together with two co-defendants), aggravated theft and attempted theft; he was sentenced to two and a half years’ imprisonment, suspended; - on 26 September 2000 the Tallinn City Court convicted him of attempted aggravated theft and violence against a police officer (he had punched the officer in the face); he was again sentenced to two and a half years’ imprisonment, suspended; - on 22 March 2001 the Tallinn City Court convicted him of attempted aggravated theft; he was given eight months’ imprisonment. Taking into account the earlier, unserved sentence, the court set the compound sentence to be served by the applicant at two years and seven months’ imprisonment. It was noted in the judgment that in the course of 2000 the applicant had been punished seven times for administrative offences of petty theft and consumption of narcotic substances. 13. The applicant was released on 4 September 2003 after serving his prison term. 14. From 2006 until 2009 the applicant was given seven punishments for misdemeanours (illegal consumption or possession of narcotic drugs and travelling on public transport without a ticket). 15. The applicant is HIV-positive and suffers from hepatitis C. 16. In the meantime, on 6 December 2007, the applicant was arrested in Sweden on suspicion of smuggling of drugs. 17. On 7 March 2008 he was convicted of aggravated drug smuggling by the District Court of Helsingborg in Sweden. According to the judgment he smuggled more than 400 Subutex pills over the Swedish border. He was sentenced to two years and four months’ imprisonment and began serving his sentence in Salberga Prison in Sweden. In addition, the District Court decided that the applicant was to be expelled from Sweden and to be subsequently prohibited from entering the country before 7 March 2015. The court was unable to verify the applicant’s argument that he had a daughter in Sweden since he declined to disclose the alleged daughter’s or her mother’s personal details such as their names and addresses. 18. The applicant appealed against the District Court’s judgment. However, since he subsequently withdrew his appeal, the Scania and Blekinge Court of Appeal struck the case out of its list of cases on 24 April 2008. 19. In February 2009 the applicant requested the reopening of his case in Sweden, arguing that because of the prohibition on entry imposed by the Swedish court the Estonian migration authorities had refused to extend his residence permit in Estonia. He requested the removal of the deportation order from the judgment. 20. On 20 April 2009 the Scania and Blekinge Court of Appeal refused to reopen the case. On 26 May 2009 the Swedish Supreme Court refused the applicant leave to appeal against that decision. 21. On 10 July 2009 the applicant was released from prison in Sweden and deported to Estonia. 22. In the case file there are also copies of printouts from the Schengen Information System, according to which the applicant was to be refused entry or stay in the Schengen area until 20 September 2010 (this notice was entered into the system on 20 August 2007) and later until 17 July 2011 (entered into the system on 17 July 2008). It appears that on 24 August 2009 the Swedish authorities extended the prohibition on the applicant’s entry to the Schengen area until 24 August 2012. 23. In the meantime, on 11 February 2008, while in custody in Sweden, the applicant applied for an extension of his residence and work permit from the Estonian Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”). 24. By a letter of 10 September 2008 the Board informed the applicant that he would be denied an extension of his residence and work permit. He was requested to present his opinion and objections. In reply, the applicant asked for the Board’s letter to be translated into English or Russian since he did not have sufficient command of Estonian and being in prison he could not have the Board’s letter translated. On 30 September 2008 the Board sent the applicant a Russian translation of the letter. In his objections sent to the Board the applicant reiterated his request for a residence permit, saying that he wished to return to Estonia after his release from prison in Sweden. He submitted that he had been born and raised in Estonia and that he had his father and brother in that country. In spite of his Russian nationality he had never lived in Russia and had no place of residence or relatives there. He was seriously ill and the treatment he would continue to need could be carried out only in Estonia. His father also needed his support because of his age. 25. On 18 November 2008 the Board refused to extend the applicant’s residence and work permit. It had regard to the nature and severity of the offences committed by the applicant (already mentioned above), the fact that his criminal record had not expired and that an alert had been issued for the purposes of refusing him entry into Schengen countries, as well as the fact that he was serving a prison sentence in Sweden. The Board considered that although the applicant had been born in Estonia and his father and brother lived in Estonia, he did not have a family life in that country. It further considered that the applicant could continue his treatment in Russia. The Board found no exceptional circumstances that required extending his residence permit. In conclusion, the Board considered that the refusal to extend the applicant’s residence permit was a proportionate measure for pursuing the aim of protecting the constitutional rights of others. 26. The applicant lodged a complaint against the Board’s refusal with the Tallinn Administrative Court. He argued that the decision of the Board had been insufficiently reasoned and that the refusal infringed his right to respect for family life. At the Administrative Court’s hearing the applicant was represented by his father and a legal advisor. 27. By a judgment of 28 April 2009 the Tallinn Administrative Court dismissed the applicant’s complaint. It found that the Board’s refusal was lawful. The court agreed with the Board’s finding that the applicant’s criminal behaviour posed a threat to public safety. Furthermore, the prohibition on entry into the Schengen area imposed by the Swedish authorities also extended to Estonia. 28. The Administrative Court considered that the Board’s decision did not infringe on the applicant’s right to respect for family life. It noted that the applicant was divorced and had no partner or children. His father lived with his partner at the latter’s residence. The applicant’s brother had a family of his own. The court concluded that the applicant did not have a family life to be protected in Estonia. The court also dismissed the applicant’s arguments related to the advanced age of his father who was sixty-five years old, to the applicant’s illness and the fact that he had been born in Estonia. It found that there were no exceptional circumstances to justify the extension of his residence permit. 29. On 10 July 2009 the applicant was transferred from Sweden to Estonia. 30. On 1 August 2009 the applicant began living with V., a person of undetermined citizenship who held a permanent residence permit in Estonia, as his partner. 31. On 16 September 2009 the applicant sought permission from the Board to be allowed, by way of exception, to submit an application for a residence permit with the Board directly instead of submitting it to a foreign representation of Estonia. On 30 September 2009 the Board refused to grant the permission and declined to consider his application for a residence permit. 32. On 27 October 2009 the Tallinn Court of Appeal heard the applicant’s appeal against the Tallinn Administrative Court’s judgment. The Board’s representative submitted that based on humanitarian considerations the applicant’s expulsion procedure had not been initiated because of the ongoing court proceedings concerning his residence permit. 33. On 12 November 2009 the Tallinn Court of Appeal upheld the Administrative Court’s judgment of 28 April 2009. It noted, inter alia, that under section 12(4-1) of the Aliens Act (Välismaalaste seadus) a temporary residence permit could be issued, by way of exception, to an alien in respect of whom a prohibition on entry into the Schengen area had been issued. The Board and the Administrative Court had considered whether making such an exception had been justified in the present case but had found that this had not been warranted in the circumstances. The Court of Appeal also noted that the applicant had not turned to the Swedish authorities in order to have the period of validity of the prohibition on entry into the Schengen area amended as stipulated by the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus). 34. The Court of Appeal further noted that the refusal to extend the applicant’s residence permit during his imprisonment in Sweden had had no bearing on his private life because the one-year residence permit that was usually granted in such circumstances would have expired before the end of the applicant’s prison term in Sweden. During the time of the service of the prison sentence the applicant’s right to private life had been restricted by the execution of the sentence and it had not been dependent on the granting or refusal of a residence permit in Estonia. 35. The Court of Appeal also noted that the Board had considered the possibility of the applicant’s early release from prison and his expulsion in such case. It agreed with the Board’s preliminary assessment that the applicant’s expulsion was not excluded and that he could reside in the country of his nationality. 36. On 10 March 2010 the Supreme Court declined to hear the applicant’s appeal. 37. By a letter of 22 March 2010 the Police and Border Guard Board (Politsei- ja Piirivalveamet) asked the applicant to come to its offices on 31 March 2010 so that the circumstances of his stay in Estonia could be clarified and an order (ettekirjutus) be made. 38. On an unspecified date the applicant left Estonia for Denmark where he stayed for four months, according to a statement from V. to the Court. He was then arrested in Denmark and on 9 July 2010 the Danish authorities made a request to their Estonian counterparts concerning the applicant’s deportation to Estonia. However, his deportation on 13 July 2010 as agreed by the authorities did not take place since the applicant had escaped from them while in Copenhagen. He arrived in Estonia on 20 July 2010 via a passenger port. 39. On 29 January 2011 the applicant was arrested by the police. He was under the influence of narcotic drugs and presented an identity card of his brother, who was an Estonian national. The applicant was taken into custody. On 28 February 2011 he was fined for a breach of the Narcotic Drugs and Psychotropic Substances and Precursors thereof Act (Narkootiliste ja psühhotroopsete ainete ning nende lähteainete seadus). 40. In the meantime, on 31 January 2011 the Police and Border Guard Board issued an expulsion order (ettekirjutus Eestist lahkumiseks) in respect of the applicant. The order was immediately enforceable on the basis of section 7-2(2)(3) of the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus). In addition, a three-year prohibition on entry was imposed on the applicant. Pursuant to sections 71(2) and 7-1(3) of the above Act, the expulsion order was given by means of a standard form and it only revealed its legal basis without containing the factual basis, related circumstances or relevant considerations. 41. On the same day the Tallinn Administrative Court authorised the applicant’s detention in a deportation centre until his expulsion, but for not more than two months. This authorisation was later extended until 31 May 2011. 42. The applicant challenged the expulsion order and prohibition on entry before the Tallinn Administrative Court. 43. In May 2011 the applicant made inquiries by phone and electronic mail to a public notary about the possibility to get married while in detention. 44. On 26 May 2011 the applicant applied for an interim measure and requested that his expulsion be stayed. On the same day the Tallinn Administrative Court dismissed the request. An appeal was dismissed by the Tallinn Court of Appeal on 7 June 2011. 45. In the meantime, on 27 May 2011 the applicant was expelled to Russia. He stayed with a distant relative in Sebedzh, Pskov Region, for some weeks and then lived on the street for some time. His request for medicines against HIV was granted by the local authorities although one of the medicines he had used in Estonia was not available in Russia. In September 2011 he moved to St Petersburg where he was able to find temporary non-registered accommodation and unofficial employment. 46. In the meantime, on 8 June 2011, the applicant’s lawyer sought to amend the complaint lodged with the Tallinn Administrative Court. She challenged the applicant’s actual expulsion and requested that the State be obliged to allow the applicant to return to the country. The Administrative Court initially registered these complaints as a separate set of proceedings but, following instructions from the Tallinn Court of Appeal, it later joined the cases and proceeded to examine the new complaints. By a judgment of 2 March 2012 the Tallinn Administrative Court dismissed the complaints. It held that the expulsion order was lawful under sections 7-2(2)(3) and 72(2)(4) of the Obligation to Leave and Prohibition on Entry Act, as argued by the Police and Border Guard Board, and that the three-year prohibition on entry was lawful as well. Consequently, the complaint concerning the actual expulsion and the claim to be allowed to return to the country were also dismissed. According to the applicant he has instructed his lawyer to appeal against the judgment. 47. Section 12(4) of the Aliens Act (Välismaalaste seadus), as in force at the material time, listed the instances in which a residence permit could not be issued or extended. Section 12(4)(5) provided that a permit could not be issued or extended if the alien applying for it had been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record had neither expired nor been expunged, or the information concerning the punishment had not been expunged from the punishment register. Section 12(4)(8) provided that a residence permit be denied to persons who had been repeatedly punished for intentional criminal offences. 48. Section 12(5) of the Aliens Act provided that, by way of exception, a temporary residence permit could be issued or extended for aliens falling under the above provisions, if this was not excluded on other grounds referred to in the same provision. 49. Section 12(4-1) of the Aliens Act provided that a residence permit could not be issued or extended in respect of an alien for whom an alert for the purposes of refusing entry had been issued by a State belonging to the common visa area of the European Union and such an alert had been introduced into the Schengen Information System in accordance with the Schengen Convention. By way of exception, a temporary residence permit could be issued or extended on humanitarian grounds or by reason of international commitments. 50. Section 7-2(2)(3) of the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus) provides that no term for voluntary compliance with the obligation to leave is assigned in the expulsion order and it shall be enforced immediately if the order is made in respect of an alien who has arrived in Estonia illegally. Section 7-2(2)(4) provides that the same applies to an alien in respect of whom a prohibition on entry has been imposed. 51. Section 33-5(3) of the Obligation to Leave and Prohibition on Entry Act provides that in order to amend the period of validity of the prohibition on entry into the Schengen area the alien is required to turn to a member State of the Schengen Convention applying the prohibition on entry. 52. In a judgment of 22 March 2007 (case no. 3-3-1-2-07) the Administrative Law Chamber of the Supreme Court found that upon issuing an expulsion order in the case in question the migration authorities had not been required to assess whether the person concerned posed a threat to the national security. An assessment related to the possible infringement of the complainant’s right to respect for his family life had had to be carried out when the question whether to grant him a residence permit had been dealt with. 53. Recommendation Rec(2000)15 of the Committee of Ministers of the Council of Europe to member States concerning the security of residence of long-term migrants states, inter alia: “4. As regards the protection against expulsion a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria: – the personal behaviour of the immigrant; – the duration of residence; – the consequences for both the immigrant and his or her family; – existing links of the immigrant and his or her family to his or her country of origin. b. In application of the principle of proportionality as stated in paragraph 4.a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled: – after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; – after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension. After twenty years of residence, a long-term immigrant should no longer be expellable. c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen. Long-term immigrants who are minors may in principle not be expelled. d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”