Communicated on 8 January 2021 Published on 25 January 2021

THIRD SECTION

Application no. 16623/19 Vitaliy Borisovich MANDRYGIN against Russia lodged on 13 March 2019

STATEMENT OF FACTS

The applicant, Mr Vitaliy Borisovich Mandrygin , is a Kazakh national who was born in 1979 and lives in Kogalym , Khanty- Mansiysk Autonomous Region.

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

Between 2009 and 2016 the applicant regularly visited Russia where four of his brothers, all Russian nationals, lived. I t appears that each time his stay was based on the bilateral visa agreement between the two countries authorising Kazakh nationals a visa-free stay in Russia for up to 90 days in 180 days.

In 2016 the applicant started cohabiting in Russia with Ms I.L., a Russian national. According to the applicant, they were planning to register their marriage. The couple own two vehicles together.

On 12 March 2017 the applicant returned to Russia after a trip to Kazakhstan; his stay in Russia was authorised until 10 June 2017.

On 10 June 2017 the applicant was hired until 31 December 2017 as a car mechanic by a private company. Due to this employment, the applicant was granted a work permit in Russia and was given a taxpayer ’ s identification number.

On 16 June 2017 the applicant ’ s stay in Russia was authorised until 31 December 2017 by the Migration Department of the Khanty- Mansiysk police department (hereafter “the police”).

On 2 October 2016 the applicant was detained in Kogalym , next to a café, for being drunk in public. As he refused to undergo an alcohol test, he was fined for being drunk and for failing to comply with lawful orders of the police. The fines comprised 500 roubles (RUB) (about 8 euros (EUR)) and RUB 600 (about 10 euros) respectively. The applicant paid the fines on 3 October 2016. He did not appeal against the sanctions.

On 16 June 2017, when the applicant arrived at the police station for the extension of his authorised stay which had ended on 10 June 2017, he was fined RUB 2,000 (about 40 euros) for a breach of Article 18.8 of the Code of Administrative Offences (living on Russian territory without a valid residence permit or non-compliance with the established procedure for residence registration). The applicant paid the fine. He did not appeal against the sanction.

On 15 September 2017 the police issued a decision on the prohibition of the applicant ’ s re-entry into the Russian Federation for five years (exclusion order). The applicant was not informed thereof.

On 21 November 2017 the applicant arrived at the police migration department to apply in advance for the extension of his stay authorised until 31 December 2017. There he was informed of the exclusion order of 15 September 2017, but received neither further explanations nor a copy of the document.

On 24 November 2017 the applicant appealed against the exclusion to Kogalym Town Court (hereafter “the Town Court”). In his appeal, he stated that until 17 November 2017 he had been unaware of the existence of the exclusion order, that he was employed and paid taxes in Russia, that he had a family life with his civil partner Ms I.L., with whom he owned joint property, that his four brothers lived in Russia and that the five-year exclusion order would disrupt his family life.

On 22 December 2017 the Town Court examined the applicant ’ s case. At the hearing, among other things, the court heard evidence from two witnesses: the applicant ’ s civil partner, Ms I.L., and his neighbour, Ms A.V. Both witnesses confirmed the applicant ’ s submission concerning his family life with Ms I.L.

On the same date, 22 December 2017, the court found for the applicant and overruled the exclusion order. It reasoned, among other things, as follows:

“... based on the evidence submitted, including the witness statements, the court takes into account that Mr Mandrygin , who has been subjected to administrative sanctions on more than one occasion, has been living in Russia since 2016, where his brothers, all of whom are Russian nationals, live. He has employment in Russia as a car mechanic, pays taxes and duties and has created a family with a Russian national. Those circumstances provide the court with firm grounds to believe that the impugned actions of the executive authority [the exclusion order] could not be deemed lawful as they violate the rights of Mr Mandrygin and are neither necessary nor proportionate to the infractions committed by him ...”

The police appealed against the above decision to the Administrative Cases Chamber of the Khanty- Mansiysk Regional Court (hereafter “the Regional Court”).

On 27 March 2018 the Regional Court examined the appeal and overruled the decision of the Town Court upholding the exclusion order. The court stated , in particular, as follows:

“... the case file shows that on 2 October 2016 Mr Mandrygin was sanctioned for two administrative violations...

On 16 June 2017 he was fined for [another] administrative infraction ...

... the case file shows that Mandrygin is neither married to a Russian national nor has he relatives who are Russian nationals ...”

The applicant appealed against the above decision to the Regional Court. In his cassation appeal his arguments were similar to those put before the Town Court. In addition he stated that, prior to the administrative offences, he had had no record of either administrative or criminal offences in Russia and that the reasons for the exclusion order had not been explained to him.

On 22 June 2018 the Regional Court refused to examine the applicant ’ s appeal on the merits and upheld the decision of 27 March 2018.

The applicant lodged a further cassation appeal with the Russian Supreme Court. On 10 October 2018 it rejected the appeal and upheld the exclusion order. It stated , in particular, that the applicant had been subjected to three administrative sanctions within three years (twice on 2 October 2016 and then on 16 June 2017), which served as sufficient grounds for the exclusion.

It appears that the applicant was deported from Russia and currently resides in Kazakhstan. However, it is unclear when and under what circumstances the removal took place.

For the 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 decision on his exclusion was a disproportionate punishment for the administrative offences committed by him and that the domestic courts failed to examine his submissions concerning its adverse effect on his family life.

QUESTIONS TO THE PARTIES

1. Did the exclusion order issued on 15 September 2017 in respect of the applicant constitute an interference with his 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 on his family life (see Ãœner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006 ‑ XII and see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014)?

2. The Government are requested to submit a copy of the documents pertaining to the applicant ’ s administrative removal from Russia.