Communicated on 28 June 2016

THIRD SECTION

Application no. 33148/15 Dmitriy Borisovich SUKHOMLINOV against Russia lodged on 15 June 2015

STATEMENT OF FACTS

The applicant, Mr Dmitriy Borisovich Sukhomlinov , is a Kazakh national who was born in 1979 and currently lives in Kazakhstan.

A. The circumstances of the case

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

The applicant was born in 1979 in the former USSR, in the Magadan Region of Russia. He lived there until 1993. In 1993 he moved with his parents to Kazakhstan where he resided until 2013. From the documents submitted to the Court it appears that between 1993 and 2013 the applicant visited Russia on numerous occasions and stayed there for the whole of the period permitted for nationals of Kazakhstan of ninety days, each time respecting the terms of his stay.

On an unspecified date between 1993 and 2013 the applicant met Ms A.M., a resident of Krasnoyarsk, Russia, with whom he started a relationship.

On an unspecified date between February and May 2013 the applicant arrived in Krasnoyarsk and left on an unspecified date in May 2013.

On 4 July 2013 the applicant again arrived in Krasnoyarsk and started working for a local company called Krasnoyarskiy kamen .

On an unspecified date in August 2013 the applicant and Ms A.M. purchased a flat in Krasnoyarsk where they intended to live as a family with Ms A.M. ’ s two children, who were minors. According to the applicant, even though he made a significant financial contribution to the acquisition of the flat, it was decided that Ms A.M. should have the title to it as he was a foreign national. According to the applicant, he was the principal breadwinner for Ms A.M. and her two children.

On 9 October 2013 the Federal Migration Service checked the applicant ’ s documents and found that he was in violation of the terms of his stay in Russia. In particular, according to the documents, the authorised 90 ‑ day stay in Russia had ended on 3 October 2013 but the applicant was still in the country.

On 10 October 2013 the Oktyabrskiy District Court in Krasnoyarsk found the applicant guilty of a violation of the terms of his stay in Russia under Article 18.8 of the Russian Code of Administrative Offences. The court ordered his administrative removal ( hereinafter “the removal order ”), imposed a five-year re-entry ban and fined him 2,000 Russian roubles. The applicant was detained in the special detention facility of the Krasnoyarsk Regional Department of the Interior ( спецприемник Межмуниципального управления Министерства внутренних дел Российской Федерации ( МУ МВД РФ ) “ Красноярское ” ) pending his removal.

The applicant appealed against the removal order to the Krasnoyarsk Regional Court. In his appeal, the applicant stated that he had not had any record for criminal or administrative offences prior to 10 October 2013 and that in July 2013 his employer at Krasnoyarskiy kamen had assured him that they would ensure his compliance with the necessary immigration formalities. As the official employment documents had extended the length of his stay in Russia until the end of his work contract, he had decided to rely on them and not to register with the immigration authorities within thirty days of his arrival, as required by the regulations in force. On 2 September 2013 he had intended to go to Kazakhstan by train to collect the documents necessary for an application for Russian citizenship, but had lost his Kazakh passport that day and had had to return the train ticket. He had immediately put up notices in the area where he had lost his passport, promising a reward to the finder, but to no avail. After two weeks, he had had put an advertisement on local television, but that had not worked either. On 6 October 2013 he had managed to obtain a temporary identification document through his relatives in Kazakhstan which had enabled him to purchase tickets to go to Kazakhstan. Throughout that period, he had been sure that his employer had officially registered him with the immigration authorities and that he had therefore been in compliance with the relevant regulations. On 9 October 2013 he had been detained during an identity check and only then had he found out that he had been in breach of immigration rules. The applicant further stressed that his removal to Kazakhstan was a disproportionate measure, that it would violate his right to respect for his family life and adversely affect his family ’ s financial situation as he was the main breadwinner. Finally, he stated that removal would also make it impossible for him to apply for Russian citizenship and requested that the court change the punishment to a fine without administrative removal. The applicant enclosed proof that he had purchased and returned the tickets from Russia to Kazakhstan, and proof of payment for the television advertisement concerning the loss of his passport.

On 31 October 2013 the Krasnoyarsk Regional Court dismissed the applicant ’ s appeal. In its decision the court stated that the applicant had failed to substantiate his statements about his employment, that the alleged loss of his Kazakh passport had not absolved him from the obligation to leave Russia on time, that he had not been officially married to Ms A.M. and that there was no proof of their alleged family life.

On an unspecified date between October and December 2013 the applicant was deported to Kazakhstan.

On 6 January 2014 the applicant and Ms A.M. registered their marriage in Kazakhstan.

On an unspecified date between November 2013 and May 2014 the applicant ’ s representative Ms A.M. appealed against the decision of 31 October 2013 to the Chairman of the Krasnoyarsk Regional Court by way of supervisory review.

On 8 May 2014 the Chairman of the Krasnoyarsk Regional Court dismissed the appeal, stating that the applicant ’ s removal had been duly justified and necessary in view of the administrative offence he had committed. The evidence submitted by the applicant to demonstrate that he had intended to leave Russia but had not been able to owing to the loss of his Kazakh passport and his statement that he had a family life with Ms A.M. were insufficient to overrule the order for his removal.

On 15 December 2014 the Supreme Court of the Russian Federation upheld all of the decisions on appeal.

B. Relevant domestic law

For the relevant domestic law and practice see Alim v. Russia , no. 39417/07 , §§ 26-36, 27 September 2011

COMPLAINT

The applicant complains under Article 8 of the Convention that his administrative removal and the subsequent re-entry ban violate his right to respect for his family life.

QUESTIONS TO THE PARTIES

1. Noting that the appeal decision in respect of the applicant was given on 31 October 2013 while the present application was lodged on 15 June 2015, has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? Should the decision of 15 December 2014 be taken into consideration in that regard (see for comparison Martynets v. Russia ( dec. ), no. 29612/09, 5 November 2009; Kovaleva and Others v. Russia ( dec. ), no. 6025/09, 25 June 2009; Denisov v. Russia , ( dec. ), no. 33408/03, 6 May 2004; and AO Uralmash v. Russia ( dec. ), no. 13338/03, 10 April 2003)?

2. Did the removal order of 10 October 2013 constitute an interference with the applicant ’ s right to respect for his private and family life wi thin 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. t he Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII, and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-09, 3 October 2014)?