Communicated on 2 March 2016

THIRD SECTION

Application no. 5618/10 Mukhammet Ali SERDAR against Russia lodged on 28 December 2009

STATEMENT OF FACTS

The applicant, Mr Mukhammet Ali Serdar , is a Turkish national, who was born in 1970 and lives in Sochi. He is represented before the Court by Mr V.N. Yeremenko, a lawyer practising in Krasnodar.

A. The circumstances of the case

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

1. Background information

In 1994 the applicant arrived in Russia and settled in Sochi, in Krasnodar region, where he owned a shop.

In June 2004 the applicant married a Russian national, Ms E.B. In September 2004 they had a son, Ismail, a Russian national.

Between 1994 and 2006 the applicant lived in Russia on the basis of visas and temporary residence permits.

On 13 September 2006 the Federal Migration Service ( федеральная миграционная служба ) (hereinafter “the FMS”) in Krasnodar Region issued the applicant a three-year residence permit valid until 13 September 2009. The document stated, amongst other things, that the decision “... [ had ] been in agreement with the [local] office of the Federal Security Service (hereinafter “the FS S ”) in Krasnodar Region – no. 20394 of 15 June 2006”.

On 29 September 2007 the applicant lodged a request with the FMS in Krasnodar Region for a five-year residence permit. Such requests should have been examined within six months of the date on which they were lodged.

In December 2007 the applicant was requested to attend an in terview at the office of the FSS in Sochi. During the meeting with Officer S. the applicant stated that he intended to live in Russia with his family.

In April 2008 Officer S. had another meeting with the applicant during which the officer told him “we need to find a mutual understanding here, otherwise you will have problems with your business and the residence permit”. The applicant refused.

Later on the same day two officers from the FMS arrived at the applicant ’ s shop and drew up two reports on the commission of administrative offences there. On the basis of that report, the head of the FMS in the Tsentralny district in Sochi fined the applicant a total of 500,000 Russian roubles (RUB) ( about 13,000 euros (EUR) ) .

The applicant appealed against the fines and on 22 May 2008 the head of the FMS in Krasnodar Region overruled the imposition of the fines as unlawful.

On 30 May 2008 the applicant wrote to the FMS in Krasnodar Region asking about the reasons for the prolonged examination of his application for a residence permit lodged in September 2007. On 14 August 2008 the FMS replied that the application had been delayed because the FS S had not given their approval at that time.

On 1 September 2008 the applicant complained to the Pervomayskiy District Court (“the District Court”), Krasnodar of the unlawful procrastination of the FMS in the issuance of his residence permit.

On 24 September 2008 the District Court found for the applicant and ordered the FMS to take a decision on the residence permit. On 11 November 2008, following an appeal by the authorities, the Krasnodar Regional Court (“the Regional Court”) upheld this decision.

On unspecified dates in July or August 2009 the applicant lodged complaints concerning the alleged unlawful actions of the FS S officers with the Krasnodar regional prosecutor and the Krasnodar office of the FS S . The replies received in August 2009 from both agencies stated that as a result of enquires carried out in connection with the complaints “no information concerning any unlawful activities [had] been obtained”.

2. Proceedings concerning the revocation of the applicant ’ s three-year residence permit

On 5 December 2008 the FMS informed the applicant that his three-year residence permit had been revoked.

On 17 December 2008 the applicant appealed against this decision to the District Court.

On 12 January 2009 the District Court found for the applicant and ordered that the permit be restored. On 5 March 2009 the Krasnodar Regional Court upheld this decision on appeal and it became final.

On 25 March 2009 the Presidium of the Regional Court overturned the District Court ’ s decision by way of supervisory review and remitted the complaint for a fresh examination.

On 22 May 2009 the District Court initiated a fresh examination of the applicant ’ s complaint. On 30 June 2009 the District Court rejected the applicant ’ s complaint.

On 13 July 2009 the FMS in Krasnodar Region informed the applicant that his three-year residence permit had been annulled on th e basis of a letter from the FSS .

3. Proceedings concerning the refusal to grant a five-year residence permit

On 19 June 2009 (in the documents submitted the date is also referred to as 23 June 2009) the FMS refused to grant the applicant a five-year residence permit. No reasons for the refusal were provided in the letter by which the applicant was informed that he was to leave Russia within fifteen days or he would be deported.

The applicant appealed that decision to the District Court referring, inter alia , to Article 8 of the Convention, and stating in detail that the refusal to grant him a residence permit would adversely affect his family life.

On 15 September 2009 the District Court rejected the applicant ’ s complaint. The court did not examine the applicant ’ s allegation concerning the adverse effect of the refusal on his family life.

The applicant appealed against that decision to the Regional Court . In his appeal he stressed that he had been living in Russia for fifteen years, that his wife and son were Russian citizens and that the FMS decision would have a negative impact on his family life. He also stated that the information concerning the alleged threat he posed to Russian national security was unsubstantiated and arbitrary. The information which served as the basis for the FMS decision had not been furnished to the District Court by the FSS and was not included into the case file.

On 29 October 2009, following an appeal by the applicant, the Regional Court upheld that decision without examination of the complaint concerning the violation of the applicant ’ s right to respect for family life.

4. Proceedings concerning the exclusion order

On 4 September 2009 the FSS issued a decision on the undesirability of the applicant ’ s presence in Russia (“the exclusion order”) referring to his alleged unlawful activities threatening the country ’ s national security.

The applicant appealed against the exclusion order to the Regional Court referring to, inter alia , the adverse effect of the measure on his family life and its arbitrary application against him.

On 24 November 2009 the Regional Court upheld the exclusion order. It decision stated, amongst other things, the following:

“... [ according to the applicant ’ s submission] for the entire period of his stay in the Russian Federation [the applicant] has not been convicted or charged with commission of crime ...

According to [the applicant], the reason for the decision on the undesirability of his presence in Russia was his refusal to comply with the unlawful conditions proposed to him by FS S officials in Sochi for a positive outcome to his application for a long-term residence permit in the Russian Federation.

Those officials, using their positions, acting ... in their own private interests, used every way possible to expel [the applicant] from Russia and, therefore, have created this farfetched reason for the decision on the undesirability of his presence in Russia and misled the FS S leadership who approved that decision.

The decision on the undesirability of the presence in Russia of the applicant, who is married to a Russian national with whom he has a child, also a Russian national, is in contradiction of ... Article 8 of the European Convention on Human Rights.

...

... the decision on the undesirability of the presence in Russia of [the appl icant] has been taken by the FSS as his activities pose a real threat to national security.

Application of such measures is within the discretion of the Federal Security Service.

The decision on the undesirability of the [continued] presence (residence) in Russia of [the applicant] has been taken by FS S officials within the scope of their authority and in an order defined by federal legislation and approved by the competent official.

In such circumstances, the application of [the applicant] to have the FS S decision on the undesirability of his presence in Russia declared unlawful should not be granted.

As for the allegations presented before the Court by the applicant ’ s representative concerning the threats and extortion by the Sochi FS S officials exercised in respect of Mr Serdar , the court finds them objectively unsubstantiated as no pertinent evidence has been submitted to the court ...”

In its decision the court did not examine the applicant ’ s complaint concerning the adverse effect of the exclusion order on his family life.

The applicant appealed against the decision referring to, inter alia , the violation of his right to respect for family life.

On 17 March 2010, following an appeal by the applicant, the Supreme Court of the Russian Federation upheld the decision without examining the complaint concerning the violation of the right to respect for family life.

On 1 September 2010 the Supreme Court of the Russian Federation upheld the decision of 24 November 2009 and refused to examine the appeal by the applicant by way of supervisory review.

B. Relevant domestic law

For the relevant domestic law and practice see Nolan and K. v. Russia (no. 2512/04, §§ 44-47, 12 February 2009) and Liu v. Russia (no. 2) (no. 29157/09, §§ 45-53, 26 July 2011).

COMPLAINT

The applicant complains, under Article 8 of the Convention, that the decision on the undesirability of his presence (residence) in Russia, taken on the basis on undisclosed information, was arbitrary and unsubstantiated and that it violates his right to respect for family life .

QUESTIONS TO THE PARTIES

1. What were the motives and factual grounds for the decision on the undesirability of the applicant ’ s presence in Russia (“the exclusion order”)? The Government are requested to produce a copy of the Federal Security Service materials which served as the basis for the ban. 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 Krasnodar Regional Court and the Supreme Court which examined the applicant ’ s appeal 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 materials which formed the basis for the ban had been issued within the competence of the Federal Security Service? Did the courts have competence to verify whether the exclusion order had been 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 perform a balancing exercise between the need to protect national security and the applicant ’ s right to respect for his family life?

3. Were the classified Federal Security Service materials disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in those materials? 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. Did the exclusion order constitute an interference with the applicant ’ s right to respect for his 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-..., and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-109, 3 October 2014 )?