Communicated on 18 September 2017

THIRD SECTION

Application no 66729/16 Om er AKCAY and Others against Russia lodged on 5 November 2016

STATEMENT OF FACTS

The applicants are a family. The first applicant, Mr Omer Ak ç ay (also spelt Yemer , Emer and Emir Akchay ), who was born in 1960, is a Turkish national. The second and third applicants are his wife, Ms Svetlana Akchay , who was born in 1975, and his son, Mr Deniz Akchay , who was born in 2000. Both of them are Russian nationals. The first applicant ’ s surname is spelt as it would be in Turkish. The second and third applicants ’ surname is the same as that of the first applicant, but it has been transliterated into Russian and has a different spelling.

The first applicant has been residing in Turkey since April 2016. Prior to that, from 1999 to 2016 he resided with his family in Syktyvkar, in the Komi Republic, Russia. The second and third applicants still reside there.

A. The circumstances of the case

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

1. Background information

At some point prior to December 1999 the first applicant moved from Turkey to Russia and started living with the second applicant in Syktyvkar. He resided in Russia on the basis of regularly extended residence permits.

In January 2000 the third applicant was born and the first applicant was registered as his father on his birth certificate. The third applicant goes to school in Syktyvkar.

In 2007 the first applicant was officially registered as a business owner; he had a cattle farm, where he employed five Russian nationals.

On 27 January 2015 the Komi Department of the Federal Migration Service (“the Komi FMS”) granted the first applicant yet another five-year residence permit, valid until 3 February 2020.

On 24 November 2015 a Russian military aircraft was brought down by the Turkish military. The event provoked a negative reaction on the part of the Russian Government. A number of sanctions were introduced against Turkey, including a measure aimed at making the visa regime for its citizens in Russia more stringent.

2. Annulment of the first applicant ’ s residence permit

On 27 November 2015 the Komi Department of the Federal Security Service (“the Komi FSB”) issued a decision concerning the annulment of the first applicant ’ s residence permit. The grounds for the decision were undisclosed and classified.

On 2 December 2015 (in the documents submitted, the date was also referred to as 4 December 2015) the Komi FSB informed the Komi FMS of its decision and requested that the first applicant ’ s residence permit be annulled, as he “represented a threat to the security of the Russian Federation”. The request specified neither the grounds for the measure nor the nature of the alleged threat.

On 8 December 2015 the Komi FMS annulled the first applicant ’ s residence permit.

On 29 December 2015 the first applicant was invited to the Komi FMS, where he was made aware of the decision and his residence permit was confiscated. He was warned that he was supposed to leave Russia within two weeks, or he would be deported. The applicant was not informed of the grounds for the annulment.

On 17 February 2016 the Komi FMS issued a decision banning the first applicant from re-entering the Russian Federation until 19 September 2018 and ordering him to leave Russia within five days of receiving the decision, under the threat of deportation. The first applicant was informed of that decision on 7 April 2016.

On an unspecified date in April 2016 the first applicant was again invited to the Komi FSB and reminded to leave Russia on his own initiative, as otherwise he would be detained and then deported. He was given an exit visa valid until 20 April 2016.

On 20 April 2016 the first applicant left Russia. The second and third applicants remained in Syktyvkar to take care of the farm and continue attending school.

On 13 July 2016 (in the documents submitted, the date was also referred to as 21 June 2016) the first and second applicants officially registered their marriage in Turkey.

3. Court appeals against the annulment

On 31 December 2015 the first applicant appealed against the annulment to the Syktyvkar Town Court (“the Town Court”), stating that the decision of the Komi FMS to withdraw his residence permit was unlawful and disproportionate, as he had a family in Russia, was a business owner and had no criminal record or record of administrative offences.

On 24 February 2016 the Town Court examined the applicant ’ s appeal. At the hearing, representatives of the Komi FSB informed the court that between 2013 and 2016 the first applicant had received fifteen administrative fines for violations of traffic regulations (such as speeding), and two administrative fines for violations of the terms of foreigners ’ residence in Russia (failure to register within the prescribed time-limit, in May 2013 and then in October 2015). In addition, on one occasion in January 2016 he had received an administrative fine for a failure to comply with veterinary regulations at the cattle farm.

The applicant asserted that he had not known about this information prior to the hearing. He further submitted that he was not aware of the nature of the threat he allegedly posed to Russia ’ s national security, and that he had family in Syktyvkar, including his son, who was a minor. He also had a farm which required constant attention. In the applicant ’ s opinion, the impugned decision had been taken in view of the strained relations between Russia and Turkey after the incident with the Russian military aircraft.

On the same date, 24 February 2016, the Town Court upheld the annulment. In its decision, the court referred to the first applicant ’ s record of administrative violations as submitted by the Komi FSB at the hearing. The court did not make any references to the nature of the threat posed by the first applicant to national security, other than stating that his record of administrative offences for the period 2013-2016 had provided the necessary basis for the FSB decision to annul the residence permit. The court did not examine the complaints concerning the applicant ’ s family life in Russia.

On 17 March 2016 the first applicant appealed against the decision of 24 February 2016 to the Komi Supreme Court, stating, amongst other things, that he had been residing in Russia since 1999, and that since 2005 he had lived there on the basis of regularly extended five-year residence permits. The last permit had been granted in February 2015, which demonstrated that he was a long-term migrant of good standing who complied with the relevant regulations. The applicant further stated that the State taxes relating to his farm were always paid and that he provided jobs for five Russian nationals. Referring to Article 8 of the Convention, he submitted that the annulment violated his and his family members ’ right to respect for their family life, and that it was a disproportionate measure which did not pursue a legitimate aim. Lastly, the applicant stressed that he was unaware of the nature of the threat he allegedly posed to the national security of the Russian Federation.

On 15 and 28 April 2016 the Komi FSB lodged their objections against the applicant ’ s appeal with the Komi Supreme Court, demanding that the court find against the applicant. Their submissions of 15 April 2016 stated the following, amongst other things:

“... the right to evaluate the activities of foreign citizens and stateless persons as those representing a threat to defence or the security of the State, public order or health belongs to State security bodies, in particular, to the Federal Security Service, and the court has no right to interfere with that authority. The use of those preventive measures in respect of national security is left to the discretion of the Federal Security Service.

Issues relating to national security are specific, and their evaluation is carried out by designated bodies on the basis of information obtained from sources, including those outside of judicial control.

Therefore, the Federal Security Service is not supposed to provide the court with documents substantiating the grounds for its decisions concerning the undesirability of the residence of a foreign citizen in the Russian Federation, as such documents contain State secrets, and the court does not have authority to request those documents ...”

The FSB ’ s further submissions to the court of 15 April 2016 stated the following, amongst other things:

“... the information concerning the annulment of the residence permit was provided to the Federal Migration Service by the Federal Security Service on the basis of classified decision no. 18577c of 27 November 2015 concerning the applicant ’ s actions posing a threat to the national security of the Russian Federation and its citizens, [actions] which serve as the basis for the annulment of the residence permit in accordance with section 9(1) of The Foreign Nationals Act ...

The [Komi] FSB provided the court of first instance with information whose disclosure was not limited ...”

On 5 May 2016 the Komi Supreme Court examined the appeal and upheld the annulment. In its decision, the court referred to the first applicant ’ s record of administrative violations committed between 2013 and 2016 and the undisclosed information provided by the FSB, without specifying the nature of that information. The court stated that the decision to annul the residence permit had been taken by the FSB within its executive authority, and that the information obtained from classified sources was not subject to judicial control. The court did not examine allegations by the applicants regarding the adverse effect of the measure on their right to respect for family life, stating that the annulment “did not represent inadmissible interference by the authorities with the applicant ’ s right to respect for family life”.

On 28 October 2016 the first applicant lodged a cassation appeal with the Presidium of the Komi Supreme Court, and on 25 November 2016 the court rejected the appeal without examining his allegations concerning the violation of his right to respect for family life.

On 13 February 2017 the Administrative Cases Chamber of the Supreme Court of the Russian Federation refused to examine a further cassation appeal on the merits lodged by the applicant.

B. Relevant domestic law and practice

For the relevant domestic law and practice, see Muradeli v. Russia , no. 72780/12 , §§ 45-54, 9 April 2015 .

COMPLAINTS

1. The applicants complain under Article 8 of the Convention that the annulment of the first applicant ’ s residence permit violated their right to respect for family life. In particular, they allege that the impugned decision, which was taken on the basis of undisclosed information, failed to take into account their family situation.

2. Under Article 13 of the Convention, the applicants allege that they had no effective domestic remedies against the above violation of their right.

QUESTIONS TO THE PARTIES

1. What were the motives and factual grounds for the annulment of the first applicant ’ s residence permit issued in February 2015? The Government are requested to produce a copy of the letter from the Federal Security Service to the Komi Department of the Federal Migration Service dated 2 December 2015 which served as the basis for the decision to annul. The Court notes that access to these 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 appeals against the annulment of the residence permit? Did the courts have jurisdiction to verify the factual grounds on which the impugned measure had been imposed? Were the executive authorities able to demonstrate the existence of specific facts serving as a basis for their conclusion that the first applicant presented a risk to national security? Did the courts carry out a balancing exercise between the need to protect national security, public order and health and the applicants ’ right to respect for their family life?

3. Was the classified material from the Federal Security Service disclosed to the first applicant or his representative? Was the first 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 him?

4. Did the annulment of the first applicant ’ s residence permit constitute an interference with the applicants ’ right to respect for family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Ãœner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII; C.G. and Others v. Bulgaria , no. 1365/07, §§ 37-50, 24 April 2008; and Slivenko v. Latvia ( dec. ) [GC], no. 48321/99 , §§ 93-129, ECHR 2002 ‑ II (extracts) )?

5. Did the applicants have an effective domestic remedy within the meaning of Article 13 of the Convention in respect of the alleged violation of Article 8 ( De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012 ) ?