Communicated on 22 February 2016

THIRD SECTION

Application no. 41830/15 Dashgyn Takhir Ogly ALIYEV against Russia lodged on 19 August 2015

STATEMENT OF FACTS

The applicant, Mr Dashgyn Takhir Ogly Aliyev , is an Azerbaijani national, who was born in 1985 and is, apparently, being kept in a detention facility. He is represented before the Court by Mr V. Rykov , a lawyer practising in Roshchino , Leningrad Region, Russia .

A. The circumstances of the case

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

On an unspecified date the applicant arrived in Russia. It appears that he settled there and resided there for most of the time since his arrival in the country.

On an unspecified date he started living with Ms P., a Russian national. According to the applicant, he has also been taking care of her children as their stepfather.

On 26 September 2013 the applicant received a temporary residence permit for three years ( разрешение на временное проживание ). It was incumbent on him to provide the migration authorities with a number of documents concerning the source of his income in Russia and a copy of his tax declaration. Notification should have taken place every year after the receipt of the permit. In 2014 the applicant was expected to make such a notification between 26 September and 26 November 2014.

However, the applicant was abroad between 27 August and 20 December 2014 and did not comply in time with the above obligation. It is unclear whether he eventually complied with the obligation at a later date.

On 26 December 2014 a migration officer instituted administrative offence proceedings against the applicant and compiled an administrative offence record. He then submitted this record to Kingisepp Town Court, Leningrad Region at 10.47 a.m. the same morning. According to the applicant, he had insufficient time to make arrangements for legal assistance.

On the same day, at 11.40 a.m. the applicant appeared before the Town Court and pleaded guilty; he was convicted of an administrative offence under Article 18.8 § 3 of the Code of Administrative Offences (“the CAO”), on account of the delay in complying with the notification requirement. The court sentenced the applicant to a fine and expulsion by “compulsory procedure”. To this end, the court decided that the applicant should be detained immediately in a specialised facility for foreign nationals.

The applicant appealed, asking the court to replace the “compulsory procedure” with the “controlled departure procedure” (which did not require detention pending execution of the expulsion order and did not block a possibility of re-entry for a five-year period).

The applicant was not represented by a lawyer in the appeal proceedings.

On 31 December 2014 the Leningrad Regional Court upheld the first ‑ instance judgment. The applicant was not taken to the hearing from the detention centre. No other parties were present either.

On 11 February 2015 the applicant married Ms P. According to the applicant, this was necessary because only a registered marriage had a bearing on an expulsion case examined by a Russian court.

The applicant applied for review of the final judgme nts under Article 30.12 of the CAO.

The applicant submitted a short written statement from Ms P. and a request to have the applicant released from detention. Ms P. stated that they had lived as a family “for a long time” and that her husband ’ s expulsion would disproportionately interfere with their family life.

On 10 April 2015 the Regional Court dismissed the review application and upheld the lower courts ’ decisions. The reviewing judge stated that the penalty of expulsion was proportionate; the marriage had only been concluded on 11 February 2015 while no proof was adduced regarding a de facto marital relationship prior to that date; no related arguments had been raised before the first-instance and appeal courts. In particular, the applicant had submitted no proof of having partially brought up Ms P. ’ s children.

The applicant lodged a further appeal with the Supreme Court of Russia. On 13 July 2015 the Supreme Court confirmed the lower courts ’ decisions, noting that the “family life” argument had received proper attention and had been properly dismissed.

It appears that, at least up until August 2015, the applicant had not been expelled.

B. Relevant domestic law and practice

1. Penalty of administrative removal

In July 2013 section 3 was introduced to Article 18.8 of the CAO, stating that the offences mentioned its sections 1 and 2 were punishable by a fine and administrative removal from Russia, when committed in Moscow, St Petersburg, Moscow Region or Leningrad Region.

In its decision no. 628-O of 5 March 2014 the Russian Constitutional Court considered that the State was allowed to make provision for measures of responsibility for violations of migration regulations, in particular on account of its current migration policies and the need for tightening measures of responsibility in view of the increasing danger of administrative offences of a certain type. The legislator ’ s decision to complement an administrative fine with the mandatory penalty of expulsion does not, per se , violate the Constitution. A possibility of absolving the defendant of administrative responsibility where the authority concludes that the penalty is disproportionate in the view of the nature of the acts committed would favour an atmosphere of irresponsibility, which is incompatible with the principle of “unavoidable punishment” inherent in the Constitution. While family life is protected by the Constitution and Russia ’ s international treaties, it has no absolute prevalence in all cases over other constitutional values; the fact that a foreigner has a family does not entail immunity from lawful and effective measures in the area of migration. Article 8 of the European Convention, as interpreted by the European Court, does not impede the State from controlling the entry and stay of foreigners on its territory. With due regard to the acceptable limits of the margin of appreciation on the part of the legislative and adjudicating (foremost judicial) authorities, Russia may decide whether a particular type of migration-related offences creates a need for mandatory expulsion, in the context of the existing situation of a pressing social need. The CAO makes a distinction between various types of migration-related offences and modulates sentences, on account of the gravity of each type of offence.

The position of the Supreme Court of Russia is as follows. While noting the mandatory nature of the penalty of administrative removal for the offences committed by the cases under review, the Supreme Court referred to Article 4.1 of the CAO, which requires that when imposing a penalty account should be taken of the particular circumstances of each case, the defendant ’ s personality, his or her financial situation and mitigating or aggravating circumstances. The court also confirmed its earlier position that the penalty of administrative removal should be based on the information which confirmed the actual need for such a measure and which confirmed the proportionality of the penalty as the only means to achieve a balance between the private and public interests at st ake. Next, referring to Article 1.1 of the CAO and Article 8 of the Convention, the Supreme Court annulled the penalty of administrative removal in the applicants ’ cases (decision no. 83-AD15-5 of 7 October 2015, and decision no. 13-AD15-6 of 20 October 2015).

2. Other relevant provisions of domestic law

The Entry and Departure Act (Federal Law no. 114-FZ of 15 August 1996) provides that a foreign national cannot enter or re-enter the territory of Russia for five years following administrative expulsion from Russia (section 27 of the Act).

Article 31.6 of the CAO provides that the court that imposed the penalty (for instance, expulsion) suspends ( приостанавливает ) the enforcement of the penalty in a situation where a prosecutor has lodged an application for review of the final judgment, until this application has been examined, or other circumstances prescribed by the Code have arisen.

Since March 2015 Article 31.5 of the CAO provides that where certain circumstances impede the timely enforcement of an expulsion order, a judge who issued the order is also empowered to reschedule ( отсрочить ) the execution of the order for a period of no longer than one month.

COMPLAINTS

Referring to Articles 6 and 8 of the Convention, the applicant complains that he had no adequate opportunity and time to exercise his right to legal assistance; that he was not notified of the appeal hearing and was not taken to it from the detention facility; that the appeal court did not “admit a defence lawyer”; that the expulsion by compulsory procedure was a disproportionate penalty, failing to take account of the circumstances of the case.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month rule in respect of his complaints under Article 6 of the Convention and his complaint under Article 8 of the Convention? As regards Article 8, did the applicant have a possibility to seek the suspension of the final expulsion penalty when lodging an application for review under Article 30.12 of the Code of Administrative Offences (“the CAO”) (see De Souza Ribeiro v. France [GC], no. 22689/07, §§ 82-83, ECHR 2012)? If not, was this procedure a remedy to be exhausted in relation to his Article 8 complaint?

2.1. Was the criminal limb of Article 6 of the Convention applicable to the administrative offence proceedings against the applicant (see, by way of comparison, Muminov v. Russia , no. 42502/06, § 126, 11 December 2008, and Malofeyeva v. Russia , no. 36673/04 , §§ 99-100, 30 May 2013 )?

2.2. If yes, was there a violation of Article 6 of the Convention, in particular, on account of the swift course of the trial proceedings and the absence of the applicant from the appeal hearing?

2.3. Alternatively , did the same circumstances give rise to a violation of Article 1 of Protocol No. 7 to the Convention?

3. Was there or will there be a violation of Article 8 of the Convention on account of the expulsion order by way of compulsory procedure and the ensuing five-year re-entry ban?

4. Did the applicant have an effective remedy before a “national authority”, as required under Article 13 of the Convention, for his complaint under Article 8 of the Convention? Did the applicable legislation and any settled judicial practice make room for assessing the proportionality and necessity of the impugned “interference”? Specifically, was it within a court ’ s margin of appreciation ( i ) not to impose or to annul a sentence of administrative removal, despite the imperative wording of Article 18.8 § 3 of the CAO, or to make a choice as regards the modalities of its execution, and/or (ii) to modulate the period of the re-entry ban?