Communicated on 8 January 2021 Published on 25 January 2021

THIRD SECTION

Application no. 14697/18 Liliya SHERSTOBITOVA against Russia lodged on 21 March 2018

STATEMENT OF FACTS

The applicant, Ms Liliya Sherstobitova , is a Moldovan national who was born in 1985. It appears that prior to her removal from Russia she lived in Borovsk , Russia.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant ’ s sister resides in Russia and is a Russian national. The applicant visited her regularly and stayed in Russia for several months at a time. It appears that each time her stay was based on the bilateral visa-free agreement between the two countries allowing Moldovan nationals a visa ‑ free stay in Russia for up to 90 days out of 180 days.

In January 2017 the applicant met a Russian national, Mr A.Sh . On 20 May 2017 they registered their marriage and moved together from Obninsk , in the Kaluga Region, to Gelendzhik , in the Krasnodar Region.

On 24 June 2017 the applicant returned to Russia after her trip to Moldova. Her stay in Russia was authorised for 90 days, that is until 21 September 2017.

On 7 September 2017 the applicant applied for a temporary residence permit (three-year permit) as the spouse of a Russian national, through a specialised state unitary company, where she was told that the permit would be ready in two months.

On 18 September 2017 the applicant was detained at home for breaching Article 18.8 of the Code of Administrative Offences (living in Russia without a valid residence permit or non-compliance with the established procedure for residence registration) and taken to the Prikubanskiy District Court (the District Court) in Krasnodar.

On the same date, 18 September 2017, the District Court found the applicant guilty of an administrative offence and ordered her removal from Russia via controlled departure procedure (hereafter “exclusion order”) with a subsequent five-year re-entry ban as well as payment of a 2,000 rouble (RUB - about 30 euros) fine. The court did not examine the applicant ’ s submissions that the period of her authorised stay would end on 21 September 2017, that she was married to a Russian national with whom she had family life and that she had no record of either criminal or administrative offences in Russia.

On 21 September 2017 the applicant appealed against the above decision to the Krasnodar Regional Court (the Regional Court) and requested that the District Court ’ s decision be overruled. She stated, in particular, that the first ‑ instance court had disregarded the information on the dates of her authorised stay, as well as the fact that her husband and sister were Russian nationals and that her exclusion from Russia with the automatic five-year re ‑ entry ban would disrupt her family life.

On 23 September 2017 the Regional Court examined the appeal and upheld the decision of 18 September 2017. It did not examine the applicant ’ s arguments concerning either the legitimacy of her stay in Russia or the adverse effect of her five-year exclusion on her family life.

On an unspecified date in September 2017 the applicant was deported from Russia to Moldova.

On 12 March 2018 the applicant ’ s representative lodged a cassation appeal with the Regional Court referring to arguments similar to those in the appeal of 21 September 2017. On 29 March 2018 the Regional Court rejected the appeal as groundless.

The applicant ’ s representative further appealed to the Russian Supreme Court. On 3 September 2018 , the court examined the appeal and overruled the exclusion order of 18 September 2017 having stated that the lower courts had not examined the applicant ’ s arguments duly. In particular, the court stated as follows:

“Considering the personality of Ms Sherstobitova , who had no record of immigration infractions, as well as the circumstances of the present case, showing that her right to respect for family life has been violated, given that she has a husband, who is a Russian national living in Russia, as well as the insignificant period of her unauthorised stay in Russia, the imposition of administrative removal [on the applicant] contradicts the requirements of Article 8 of the Convention...”

The rest of the decision of 18 September 2017 remained unchanged.

From the documents submitted it is unclear whether the applicant was able to re-enter Russia and, if so, when and under what circumstances.

For a summary of relevant domestic law, see Guliyev and Sheina v. Russia , no. 29790/14 , § 25-34, 17 April 2018.

COMPLAINT

The applicant complains under Article 8 of the Convention that the exclusion order with the subsequent re-entry ban was a disproportionate punishment and that the domestic courts failed to examine her submissions concerning its adverse effect on her family life.

QUESTIONS TO THE PARTIES

1. Has the applicant maintained the status of a victim of the alleged violation of Article 8 of the Convention in view of the Russian Supreme Court ’ s decision of 3 September 2018 overruling the exclusion order against her (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V ; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010 , and Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012) ? Has she been able to re-enter Russia since and if so, when and on what conditions?

2. Did the exclusion order issued on 18 September 2017 in respect of the applicant constitute an interference with her right to respect for family life within the meaning of Article 8 of the Convention? Did the domestic courts duly examine the applicant ’ s allegation of the adverse effect of the exclusion order on her family life (see Ãœner v. the Netherlands [GC], no. 46410/99, ECHR 2006 ‑ XII , and Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014)?

3. The Government are requested to submit a copy of the documents pertaining to the applicant ’ s administrative removal from Russia and her current immigration status in the country.