Communicated on 20 June 2019

THIRD SECTION

Application no. 22335/18 Akhrorbek Abdishukur ugli KUCHKAROV against Russia lodged on 30 April 2018

STATEMENT OF FACTS

The applicant, Mr Akhrorbek Abdishukur ugli Kuchkarov , is an Uzbek national, who was born in 1983 and lives in Abakan, in the Republic of Khakassia, Russia. He is represented before the Court by Mr Y.Y. Podshibyakin , residing in Abakan.

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

A. The circumstances of the case

1. Background information

In 2003 the applicant moved to Russia from Uzbekistan. It appears that he resided in Russia on the basis of regularly extended temporary (three ‑ year) resident permits. In 2012, the applicant applied for a permanent (five ‑ year) residence permit. The Khakassia Department of the Federal Migration Service (the FMS) granted his request and issued him a permit valid until 28 February 2017.

In 2009 the applicant had a daughter, Ms A.Kh ., who is a Russian national, with Ms Z., also a Russian national. Between 2009 and 2017 the applicant resided with a Russian national Ms Kh . From the documents submitted it appears that the applicant lives with her as a family with his four children from his previous relationships, including his daughter Ms A.Kh . The applicant owns a house in Abakan and has a work permit.

On an unspecified date in 2015 representatives from the Khakassia Department of the Federal Security Service (the FSB) asked the applicant to provide them with regular information on his fellow compatriots residing in the region. The applicant refused.

2. The applicant ’ s exclusion from Russia and his appeals against it

On 27 October 2015 the FSB took decision concerning the undesirability of the applicant ’ s presence in Russia (the exclusion order) and banning his re-entry into the country for fifteen years, until October 2030. The decision referred to section 27 § 1 of the Entry Procedure Act, that is to say “for the purposes of ensuring the defensive capacity or security of the State, or protecting public order or health”. No other explanation was given.

On 20 April 2016 the FMS issued decision no. 1346/248 revoking (annulling) the applicant ’ s residence permit on the basis of the above FSB decision.

On 22 April 2016 the applicant was informed of the FMS decision. The letter contained reference to section 9(2) of the Federal Law on the Legal Status of Foreigners in the Russian Federation (hereinafter “the Foreigners Act”), which provided that a resident permit issued to a foreign national should be revoked if the foreign national finances, plans or supports terrorist or extremist activity. No other information concerning the grounds for the applicant ’ s exclusion were given.

(a) The applicant ’ s appeal against the FSB exclusion order of 27 October 2015

( i ) The first round of proceedings

On 27 April 2016 the applicant brought proceedings against the Federal Security Service and appealed against their exclusion order of 27 October 2015 to the Abakan Town Court (the Town Court). He stated, in particular, that his exclusion from Russia for fifteen years would disrupt his family life, that he was a law-abiding resident, that he had official employment and property in Russia, that he had not participated in any criminal or terrorist activities and that the reasons for his exclusion were unknown to him.

On 11 May 2016 the Town Court, upon the applicant ’ s request, applied an interim measure in the administrative proceedings and stayed the revocation of the applicant ’ s residence permit until the final examination on his appeal.

On 24 June 2016 the Town Court examined the appeal against the exclusion order and rejected it. The representatives of the FSB did not attend the hearing whereas those of the applicant were present. The court upheld the applicant ’ s exclusion until 2030. In its decision it did not cite any documents submitted by the FSB as serving as the basis for the ban, apart from noting that the measure had been imposed on the basis of the relevant internal instructions of the FSB. The court neither specified the nature of the data serving as the basis for the exclusion, nor provided any details regarding its origins or the circumstances of its collection. The court further stated as follows:

“... the court does not take into account the arguments of Mr Kuchkarov that he was not involved in either extremist or terrorist activity, as the right to assess the activities of foreign national as to whether they pose threat to national security, public order or health is within the competence of the Federal Security Service and the court does not have the right to interfere with that authority. The application of measures concerning the defence against a threat to national security by the Federal Security Service falls outside of the scope of judicial scrutiny.”

As to whether the exclusion order amounted to an interference with the applicant ’ s family life, the court stated that:

“... the fact that Mr Kuchkarov has a minor child residing in the Russian Federation cannot be taken into account as such circumstances do not absolve a foreign national from complying with Russian laws and bearing responsibility for failure to comply with them. The fact of taking by the competent body of the decision banning his entry into Russian Federation where his relatives reside, does not demonstrate an interference with his private and family life guaranteed by Article 8 of the European Convention on Human Rights.”

The applicant appealed the above decision to the Administrative Chamber of the Khakassia Supreme Court (the Khakassia Supreme Court) stating that his exclusion from Russia for fifteen years would disrupt his family life and that the reasons for his exclusion were unknown to him.

On 5 October 2016 the Khakassia Supreme Court overruled the decision of 24 June 2016 on procedural grounds (for failure of the representatives of the FSB to attend the hearing of 24 June 2016) and sent the case back to the Town Court for a fresh examination.

On 21 November 2016 the Town Court transferred the applicant ’ s appeal back to the Khakassia Supreme Court as, according to them, the applicant ’ s case concerned a State secret. The applicant appealed against that decision and on an unspecified date between January and February 2017 the case was again returned for examination to the Town Court.

(ii) The second round of proceedings

On 28 February 2017 the Town Court again examined the applicant ’ s appeal. At the hearing, the applicant ’ s representative stressed that the reasons for the applicant ’ s exclusion were not disclosed by the FSB and that in the absence of any proof whatsoever of the applicant ’ s alleged threat to national security, the exclusion order should be overruled as unsubstantiated and unlawful. The representatives of the FSB stated in general terms that in the past the applicant had been subjected to an administrative sanction and that his statements of being a law-abiding resident could be disproved by witness statements given by unidentified persons. Those statements were not furnished to the court.

On the same date, 28 February 2017, the Town Court rejected the applicant ’ s appeal and upheld the exclusion. It stated that the order, which was classified, had been issued with the FSB competence and in compliance with the relevant procedure. The court further reiterated that the use by the FSB of measures concerning protection of national security fell outside of judicial control:

“ on the basis of the public judicial control over the activities of the Federal Security Service, the non-classified evidence in the case file allows the court to verify the lawfulness of the impugned decision without analysing the classified information.

... the court does not take into account the arguments of Mr Kuchkarov that he was not involved in either extremist or terrorist activity, as the right to assess the activities of foreign national as to whether they pose threat to national security, public order or health is within the competence of the Federal Security Service and the court does not have the right to interfere with that authority. The application of measures concerning the defence against a threat to national security by the Federal Security Service falls outside of the scope of judicial scrutiny.”

As to whether the exclusion order amounted to an interference with the applicant ’ s family life, the court reiterated verbatim the relevant part of its decision of 24 June 2016:

“... the fact that Mr Kuchkarov has a minor child residing in the Russian Federation cannot be taken into account as such circumstances do not absolve a foreign national from complying with Russian laws and bearing responsibility for failure to comply with them. The fact of taking by the competent body of the decision banning his entry into Russian Federation where his relatives reside, does not demonstrate an interference with his private and family life guaranteed by Article 8 of the European Convention on Human Rights.”

The applicant appealed against the above decision to the Administrative Chamber of the Khakassia Supreme Court.

On 31 May 2017 the Khakassia Supreme Court rejected the appeal and upheld the exclusion order, having noted that all of the applicant ’ s arguments had been duly examined by the Town Court.

The applicant ’ s representative lodged cassation appeal with the Russia Supreme Court referring to the same grounds that is the lack of proof concerning the nature of the threat the applicant allegedly posed to Russia ’ s national security and the adverse effect of the fifteen-year exclusion on the applicant ’ s family life. He pointed out, in particular, the following:

“ the court of the first instance and then the court of appeal had stated that the use by the FSB of measures for national security protection fell outside the scope of judicial review. That is to say that the court stated that the executive power in our country prevails over the judicial one ...”

On 6 July 2017, a judge of the Russia Supreme Court refused to transfer the cassation appeal to the Administrative Chamber of the court for examination on the merits and upheld the exclusion order.

On 1 November 2017 the Russia Supreme Court again refused to transfer the cassation appeal to the Presidium of the Court and upheld the exclusion.

(b) The applicant ’ s appeal against the FMS decision of 20 April 2016 to annul (revoke) his residence permit

On 22 June 2017 the Town Court examined the applicant ’ s appeal against the FMS decision to revoke his residence permit taken on the basis of the FSB exclusion order. The court rejected the appeal having stated that as the domestic courts had already upheld the exclusion in the proceedings brought by the applicant against the FSB (see above), his appeal against the FMS decision taken on the basis of that order, should be rejected. In its decision, the Town Court also lifted the interim measure concerning the staying of the revocation of the applicant ’ s residence permit as the applicant ’ s appeals against the exclusion had been rejected finally in November 2016.

It is unclear whether the applicant continues to reside in Russia.

B. Relevant domestic law and practice

For the relevant domestic law and practice see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011 and for a summary of relevant Council of Europe material see Gablishvili v. Russia , no. 39428/12, § 37, 26 June 2014.

COMPLAINTS

The applicant complains under Article 8 of the Convention that his fifteen-year exclusion from Russia on national security grounds was based on undisclosed information, that the domestic court failed to duly examined the reasons thereof and that the exclusion violated his right to respect for family life.

QUESTIONS TO THE PARTIES

1 . What were the motives and factual grounds for the decision of 27 October 2015 taken by the Federal Security Service on the undesirability of the applicant ’ s presence in Russia (the exclusion order) and prohibition of his re-entry into the country until October 2030?

The Government are requested to produce a copy of the materials from the Federal Security Service which served as the basis for that decision. The Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.

2. What was the scope of review of the domestic courts, which examined the applicant ’ s appeals against the exclusion order? Was the judicial review limited to ascertaining whether the exclusion order had been delivered in accordance with the procedure prescribed by law and, in particular, whether the material which formed its basis had been issued within the competence of the Federal Security Service? Was it within the courts ’ competence to verify whether the exclusion order was based on genuine national security grounds and whether the executive was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard? Did the courts make a balancing exercise between the need to protect national security and the applicant ’ s right to respect for his family life?

3. Was the classified information from the Federal Security Service disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in that material? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against the applicant? Did the applicant have an opportunity to have witnesses questioned or present other evidence?

4. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention, as alleged by the applicant?

5. The Government are requested to provide a copy of the documents pertaining to the reasons for the applicant ’ s exclusion and reflecting his current immigration status, such as deportation order, etc.