Communicated on 4 October 2016

THIRD SECTION

Application no. 9183/16 Dzhitender Kumar SINGLA against Russia lodged on 15 February 2016

STATEMENT OF FACTS

The applicant is Mr Dzhitender Kumar Singla , who was born in 1972. The applicant is an Indian national. He is currently serving a prison sentence in the settlement of Molochnitsa , in the Republic of Mordovia. His family lives in Moscow.

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

A. The circumstances of the case

1. Criminal proceedings against the applicant

The applicant was born in 1972 in India. He went to Moscow in 1991 to study at university and has been living there since.

In 1995 the applicant met a Russian national Ms Natalia Anokhina. They have been living together since 1996. In 2006 and 2009, they had two daughters, Ms Printsessa Daniella Singla and Ms Printsessa Anzhelina Singla , respectively. The applicant ’ s partner and children have no connections with India. The daughters, being minors, go to school in Moscow and maintain a close relationship with their grandparents, Ms Anokhina ’ s parents, who also live in that city.

On 13 November 2013 the applicant was sentenced to five and half years ’ imprisonment under Article 165 of the Russian Criminal Code for defrauding the Moscow City authorities by the fraudulent use of State rental properties. The applicant is serving his sentence in the Republic of Mordovia, Russia. His wife and daughters keep in contact with him by making regular visits and through telephone calls and correspondence. The applicant ’ s release is expected in September 2017.

2. The applicant ’ s removal proceedings

On 14 January 2015 the Russian Ministry of Justice issued decision no. 339-RN on the undesirability of the applicant ’ s presence (residence) in Russia until 27 September 2020 (“the exclusion order”), when his criminal record would be expunged. According to the order, the applicant was to be deported from Russia shortly after his release from prison.

On 2 April 2015 the applicant appealed against the exclusion order to the Zamoskvoretskiy District Court in Moscow (“the District Court”) complaining, inter alia , of a violation of his right to a family life. He pointed out that his family life was in Russia, that his daughters were minors, that neither they nor their mother had any ties with India and that he had had no record of administrative or criminal offences prior to his imprisonment in 2013.

On 1 June 2015 the District Court upheld the exclusion order. It stated, inter alia , that the applicant ’ s right to respect for his family life would not be violated as “the impugned decision was taken considering the degree of threat presented by the [applicant ’ s] crime to the public”.

The applicant appealed against the District Court ’ s decision to the Moscow City Court stating, inter alia , that the first-instance court had failed properly to examine his allegations of a violation of his right to respect for his family life. In particular, the District Court had disregarded the fact that the execution of the exclusion order would make it impossible for him to maintain a family life with his family and that there had been no proof that the threat he posed to the public outweighed his right to respect for family life. In that connection, the applicant pointed out that the first-instance court had stated in its decision that the crime he had been convicted of had been “especially grave” whereas under Russian law it was classified as “moderately grave”. Lastly, the applicant stated that the execution of the exclusion order would make it impossible for him to register his marriage with Ms Anokhina.

On 8 September 2015 the Moscow City Court upheld the decision of the District Court. The decision stated, inter alia , the following:

“... the court notes that the applicant has relatives in the Russian Federation, that he intends to register his marriage with a Russian national, that he [currently] studies at a higher education institution and participates in organisations providing social assistance to invalids. [However], these facts do not lead to unconditional recognition that the exclusion order violates his right to respect for his personal and family life ... as the relevant decision was taken considering the threat presented by the applicant ’ s crime to the public ...”

The court also stated that the classification of the applicant ’ s crime by the first-instance court as being “especially grave” had indeed been incorrect owing to a clerical error and that it should have been classified as “moderately grave”. However, that fact had had no bearing on the applicant ’ s case.

On 28 October 2015 the applicant lodged a cassation appeal against the decision of the Moscow City Court. Referring to the case-law of the European Court of Human Rights, the applicant stressed that the exclusion order had been issued without any regard to his family life in Russia and that the domestic courts had failed to examine his arguments concerning a violation of his right under Article 8 of the Convention. In particular, he stated that the crime he had been convicted of had been of moderate gravity, that he had lived permanently in Russia since 1991, that he had obtained his university degree in Moscow, that he spoke fluent Russian, and that he was the head of a company in Moscow where he also had real estate. Furthermore, the applicant pointed out that prior to his conviction he had had no record of criminal or administrative violations and that there had been no evidence that he would pose a threat to society when he was released from prison. He further stressed that all the members of his family, that is Ms Anokhina and his daughters, were Russian citizens, that he had had an ongoing family life since 1995 and that Ms Anokhina and his two daughters maintained regular contact with him in prison by visiting him, making regular telephone calls and exchanging letters frequently. Lastly, the applicant pointed out that his family members were unable to relocate to India as Ms Anokhina had a permanent job in Russia, both daughters went to school there and none of them spoke the main language needed to reside in India. The applicant argued that the courts of first and second instance had not taken all of the above factors into account when upholding the exclusion order and had based their conclusions only on the fact that he had a criminal record.

On 16 November 2015 the Moscow City Court took up the cassation appeal and dismissed it by refusing to examine it further on the merits. The court stated, inter alia , that the exclusion order had been issued in full compliance with the domestic legislation and that the applicant ’ s arguments concerning an alleged violation of his right to respect for his family life were unsubstantiated.

B. Relevant domestic law

For the relevant domestic law and practice see Gablishvili v. Russia (no. 39428/12, §§ 33-37, 26 June 2014), and Muradeli v. Russia (no. 72780/12, §§ 45-55, 9 April 2015).

COMPLAINT

The applicant complains under Article 8 of the Convention that the exclusion order issued against him following his conviction on criminal charges is unlawful and arbitrary and violates his right to respect for family life.

QUESTIONS TO THE PARTIES

1. What was the scope of review of the domestic courts which examined the applicant ’ s appeal against the exclusion order? Did the courts carry out a balancing exercise between the need to maintain public order and the applicant ’ s right to respect for his private and family life?

2. Did the exclusion order constitute an interference with the applicant ’ s right to respect for his private and 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 Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII, and Jeunesse v. the Netherlands [GC], no 12738/10, §§ 106-09, 3 October 2014)?