Communicated on 6 February 2014

FOURTH SECTION

Application no. 5794/13 S.N. and T.D . against Latvia lodged on 18 January 2013

STATEMENT OF FACTS

1. The applicants, Mr S.N. and Mr T.D. , are Russian nationals, who were born in 1977 and 1972 respectively. On 9 September 2013 t he Vice- President of the Fourth Section of the Court decided on his own motion that the applicants ' identity ought not to be disclosed to the public (Rule 47 § 3 of the Rules of the Court ). They are represented before the Court by Ms C. Kruger, a lawyer practising in Strasbourg, as well as by Mr O. Rode and Ms J. Kvjatkovska , lawyers practising in Riga .

A. The circumstances of the case

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

3. The applicants were born in what is now the Chechen Republic in the Russian Federation. The first applicant moved to Latvia in 1997 and has lived there since then, on the basis of regularly renewed residence permits. In 2002 he was issued a permanent residence permit, which was renewed in 2007 and 2012. The second applicant moved to Latvia in 2002 and has been living there since, on the basis of regularly renewed temporary residence permits.

4. On 26 July 2012 the Latvian Minister of the Interior adopted decisions to include the applicants in the list of aliens prohibited to enter and remain in Latvia and the Schengen area (hereafter – “the black list”). These decisions were taken on the basis of a report of the Constitution Protection Bureau ( Satversmes aizsardzības birojs ; hereafter – the SAB) of 9 July 2012, amended on 20 July 2012. Apparently the SAB had informed the Minister of the Interior that both applicants engaged in criminal activities and were planning to commit a serious crime, hence posing a threat to the national security or public order and safety. The applicants have never seen the report of the SAB.

5. The decisions evaluated, inter alia , the impact of the applicants ' inclusion in the black list on their private and family lives.

6. Concerning the first applicant the respective decision pointed out that he was married to a Russian national. It was hence concluded that he would not have any obstacles to meeting his spouse outside Latvia.

7. Concerning the second applicant the decision noted that he was married to a Latvian national and also that his former spouse (a Russian national) and their child were residing in Latvia. The decision went on to find that an interference with the second applicant ' s right to respect for his private and family life was justified, taking into account, among other things, that during the nine years he had resided in Latvia “he had not learned the [State language], which clearly obstructs his integration in the society”. The decision furthermore noted that the second applicant had moved to Latvia when he was over eighteen, which meant that his ties to his native country had not disappeared. With regard to the second applicant ' s opportunity to meet with his underage son the decision noted that already in 2002, when the second applicant had still resided in Russia, the second applicant had agreed that his son would reside together with the mother in Latvia. It was hence concluded that he “would not be entirely deprived of opportunities to meet [his] son” in Russia. The interference with the second applicant ' s family life with his spouse, a Latvian national, was held to be “commensurate with the interests of the society”.

8. The applicants were detained on 31 July (the first applicant) and 2 August 2012 (the second applicant) and placed in a temporary detention facility of the State Police.

9. On 1 August 2012 the acting director of the Office of Citizenship and Migration Affairs decided to withdraw the first applicant ' s residence permit for the reason of his inclusion in the black list. On 22 August 2012 the first applicant ' s legal representative appealed against that decision but his appeal was rejected on 24 September 2012 by the acting director of the Office of Citizenship and Migration Affairs .

10. On 1 August 2012 the acting director Office of Citizenship and Migration Affairs decided to reject the second applicant ' s request for an extension of his temporary residence permit for the reason of his inclusion in the black list. On 28 August 2012 the first applicant ' s legal representative appealed against that decision but his appeal was rejected .

11. On 2 August 2012 the acting chief of the Riga Bureau of State Border Guard Service decided to expel the applicants from Latvia and to deport them to the Russian Federation.

12. According to the applicants, the Latvian authorities ignored the their statements that their expulsion to Russia would expose them to the risk of torture or even death, taking into account, among other things, their prior activities in the Chechen Republic where in 1998 they had been operating as undercover agents of the Latvian Security Police and had participated in the liberation of three Latvian nationals who had been taken hostage by an organised crime group. According to the applicants, the former hostage-takers “now work for the special secret services of the Russian Federation”.

13. The decisions on the applicants ' expulsion contain a reference to section 62(2 )( 3) of the Administrative Procedure Law to the effect that the Border Guard Service had asked for the applicants ' opinion “because [their] opinions would not change the factual circumstances of the case, which have been confirmed by documents”. The decisions contain an indication that an appeal without a suspensive effect is possible to the chief of the Border Guard Service. In the decision that pertains to the first applicant the space which the concerned person has to sign to attest having been explained the substance of the decision as well as his rights to appeal against it and to obtain legal assistance at his own expense is left blank. The decision concerning the second applicant contains an indication that he has refused to sign. The second decision has also been signed by two witnesses.

14. In the morning of 3 August 2012 the applicants were taken to the Russian border and expelled from Latvia. According to the applicants, the expulsion proceedings as well as the actual expulsion were carried out in violation of the respective Latvian laws. Among other matters, they were not given a 12 ‑ hour notice prior to the expulsion and were not allowed to contact and meet with their lawyers and family members.

15. According to the applicants, five days after they arrived in the Chechen Republic, they were summoned by the local police, questioned about their role in the hostage-liberation procedure in 1998 and then severely beaten. The case file contains two documents issued by a hospital in the Chechen Republic, confirming that on 10 August 2012 both applicants had been diagnosed with concussion, brain trauma and multiple bruises and scratches.

1. Appeals against the inclusion in the black list

16. On 3 August 2012 the applicants, acting through their legal representative, sought to challenge the Minister of the Interior ' s decision to include them in the black list before the Administrative Cases Division of the Senate of the Supreme Court. On 7 and 9 August 2012 single judges of the Senate refused to accept the applicants ' complaints for examination, since it was considered that the lex specialis in the case was section 61(8) of the Immigration Law, which provided for a possibility of an appeal to the Office of the Prosecutor General. The decisions also made a reference to a conclusion of the Constitutional Court (case no. 2004-14-01) that the prosecutors in Latvia could be considered an effective and accessible mechanism capable of ensuring an impartial and objective examination of complaints in compliance with Article 13 of the Convention.

17. On 22 August 2012 the applicants ' legal representative appealed to the Prosecutor General, asking that the decision to include them in the black list be quashed and that he be given access to the letters of the SAB of 9 and 20 July 2012, which had formed the basis for the Minister of the Interior ' s decision. The appeals were subsequently amended on five occasions.

18. On 23 November 2012 the Prosecutor General amended the decision of the Minister of the Interior by removing the reference to the applicants ' purported involvement in criminal activities, since he found that the information contained in the letters of the SAB was “not sufficient” to come to such a conclusion. On the other hand, the decision to include the applicants in the black list remained unchanged. The alleged threat that the applicants posed to national security or public order remained unspecified but apparently the conclusion about its existence was based on information obtained by the SAB in the course of counterespionage activities. Lastly, the Prosecutor General dismissed the applicants ' fear that they could be exposed to ill-treatment in Russia due to their involvement in the hostage-liberation operation in 1998, since the applicant ' s allegations of their role in the operation remained unconfirmed. The decision of the Prosecutor General was final and not subject to further appeal.

2. Events after the application was lodged with the Court

19. On 18 January 2013 the applicants lodged the present application with the Court.

20. Subsequently, i n the light of the Prosecutor General ' s decision to amend the basis for the applicants ' inclusion in the black list by removing the reference to their alleged criminal activities , on 22 August 2013 the applicants ' legal representative wrote to the Minister of the Interior and to the director of the SAB, asking that the decision to include the first applicant in the black list be reviewed.

21. On 3 September 2013 the Court received a following request from the Agent of the Latvian Government:

“In the light of administrative proceedings currently pending before the Latvian authorities, I hereby kindly ask you to provide information on whether [the first applicant] has submitted an application to the Court. If such application has indeed been submitted to the Court, the Government of Latvia would also appreciate receiving any information concerning the content of the said application, especially which Articles of the Convention have been allegedly violated, as well as on the current status of proceedings before the Court. Finally, I would also highly appreciate any other relevant information as considered by the Court.”

22. On 12 September 2013 the Court informed the Government that the present application was indeed pending before the Court and provided them with a copy of the application form. The Government were also informed that the Vice-President of the Fourth Section had decided not to disclose the applicants ' identities to the public and had made a ruling that the documents deposited with the Registry in which the applicants ' names appear or which could otherwise easily lead to their identification should remain confidential. The Government were further invited “to bear the above in mind when deciding on the appropriateness of disseminating information about the applicants to other authorities”.

23. The applicants ' representatives were informed about the request of the Government and about the Court ' s response.

24. On 25 September 2013 the applicants ' representative received a response from the director of the SAB, stating that his request of 22 August 2013 did not refer to any circumstances which had not been taken into account when preparing the SAB ' s letters to the Minister of the Interior in July 2012. On 10 October 2013 a similar reply was given to the applicants ' representative by the Minister of the Interior.

25. On 25 September 2013 one of the applicants ' representatives requested information from the Agent of the Government concerning the nature of the administrative proceedings mentioned in the Agent ' s letter to the Court of 3 September 2013 as well as about the Latvian domestic institution which had requested the information.

26. By a response of 4 October 2013 the Agent informed the applicants ' representative that the request for the information received by the Agent had been classified by its author and that the author of the request was the SAB. The Agent also noted that she had no information about the administrative proceedings mentioned in her letter to the Court.

B. Relevant domestic law

27. Pursuant to section 61(1) of the Immigration Law the Minister of the Interior may decide to include a person who is not a Latvian citizen or a “non-citizen” (hereafter – “a foreigner”) in the black list if, among other things, “competent state institutions have a reason to believe” (“ kompetentām valsts iestādēm ir pamats uzskatīt ”) that the foreigner is a member of an anti-governmental or criminal organisation or has a role in such an organisation, if he threatens State security or public order or security or if he has carried out or is planning to carry out a serious or particularly serious crime.

28. Pursuant to section 61(6) such decisions may be appealed within one month before the Administrative Cases Division of the Senate of the Supreme Court, without an appeal having a suspensive effect. However, if the Minister has taken the decision on the basis of information obtained as a result of espionage or counterespionage ( izlūkošanas vai pretizlūkošanas ) activities of a State security institution, section 61(8) provides that an appeal may be lodged with the Prosecutor General. The law does not explicitly address the question of whether an appeal to the Prosecutor General has a suspensive effect. The latter provision was inserted in the law after the Constitutional Court declared unconstitutional the provision that provided that such decisions were not amenable to appeal.

29. According to section 46(5) of the Immigration Law, once a decision to include a foreigner in the black list has been adopted by the Minister of the Interior and if the foreigner is present in the Latvian territory, the chief of the Border Guard Service or a person authorised by him shall adopt a decision to expel ( lēmums par piespiedu izraidīšanu ) the foreigner concerned within eight days, counting from the day when it has been established that the foreigner is present in the Latvian territory.

30. According to section 62 of the Administrative Procedure Law, the institution which is deciding on issuing an administrative act that could have an adverse effect on its addressee or a third person is bound to determine and weigh the potentially concerned person ' s opinion and arguments. An exception to this general rule is contained in section 62(2 )( 3), which provides that it is not necessary to ask for the potentially concerned person ' s opinion if “it derives from the substance of the case that it is impossible or is not adequate ( noskaidrošana nav iespējama vai nav adekvāta ) to determine the person ' s opinion”.

31. Section 50(1) of the Immigration Law provides that the foreigner has a right to appeal against a decision to expel within seven days. According to section 50(3) an appeal against a decision taken pursuant to section 46 does not have a suspensive effect.

COMPLAINTS

The applicants complain under Article s 2 and 3 of the Convention that their expulsion to Russia has exposed them to the risk of torture or inhuman treatment or even to the risk of deprivation of their lives .

The applicants complain that the de priva tion of their liberty contravened Article 5 of the Convention in that they were arrested in breach of the requirements of the domestic law and detained under conditions and in premises in which their rights were restricted to a larger extent than if they had been detained in premises designated for detention with a view to expulsion.

The applicants further complain that their expulsion violated their right to respect for their private and family lives, guaranteed by Article 8 of the Convention.

The applicants maintain that their inability to have the decisions on their inclusion in the black list reviewed by an independent and impartial tribunal established by law violated their rights guaranteed by Articles 6 and 13 of the Convention.

Lastly the applicants allege that their expulsion to Russia was ordered as a punishment for the political activities of the Chechen community in Latvia and that hence their rights guaranteed by Article 10 of the Convention had been violated

In a letter sent to the Court on 21 October 2013 the applicants ' representatives informed the Court that “in an unofficial conversation with a certain high ranking police officer” a staff member of the SAB had stipulated that he would “take care” of any potential complaints of the applicants to the Court and that certain politicians would ensure that such complaints do not succeed. In the light of the Government Agent ' s request for information to the Court, the applicants drew the Court ' s attention to the fact that the request had been submitted upon an initiative of the SAB for unspecified purposes.

QUESTIONS TO THE PARTIES

1. Have the applicant s been expos ed a risk of being subjected to treatment in breach of Article 3 of the Convention due to the decisions adopted by the Minister of the Interior and the acting chief of the Riga Bureau of State Border Guard Service ? Before deciding on their deportation, did the aut horities consider the applicant s ' claim that they would be exposed to a risk of being subjected to inhuman treatment if expell ed to Russia? Did the decision-making and appeal procedure followed in the applicants ' cases give them an adequate opportunity to comment on the potential risks related to their expulsion?

2. Did the applicants have access to a remedy with automatic suspensive effect with regard to their expulsion order, as required by Article 13 of the Convention (see, mutatis mutandis , Gebremedhin [ Gaberamadhien ] v. France , no. 25389/05, § 66, ECHR 2007 ‑ II, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011 )? Did an appeal to the Prosecutor General pursuant to section 61(8) of the Immigration Law have such an effect?

3. Was Article 1 of Protocol No. 7 applicable to the applicants ' expulsion proceedings? If so, was the exception contained in the second paragraph of that article applicable? Was the procedure followed in relation to the applicants ' expulsion (both before and after the actual expulsion) in compliance with the requirements of Article 1 § 1 of Protocol No. 7?

4. Has there be en a violation of the applicant s ' right to respect for their private and family life protected by Article 8 of the Convention?

5. In the light of the allegations contained in the applicants ' letter to the Court o f 21 October 2013 and in view of the interest of the domestic authorities in the first applicant ' s application to the Court prior to the notification of the said application to the Government, h as there been any hindrance by the State in the present case with the effective exercise of the applicants ' right of application, ensured by Article 34 of the Convention?