Information Note on the Court’s case-law 235

December 2019

Zakharchuk v. Russia - 2967/12

Judgment 17.12.2019 [Section III]

Article 8

Expulsion

Article 8-1

Respect for private life

Exclusion for eight years of long-term migrant following criminal conviction for serious crime: no violation

Facts – The applicant, a Polish national, was born in 1980 in the former Soviet Union to a mother who was a Soviet citizen and a Polish father. Apart from a few years spent in Poland during his childhood, the applicant had lived all his life in Russia as a foreign national on the basis of five-year residence permits that were regularly extended. In 2004 the applicant was foun d guilty of causing grievous bodily harm to a military officer in the course of a group attack and he was sentenced to six years’ imprisonment. A few months after the applicant’s release on parole by the Town Court in 2010, the Russian Ministry of Justice issued a decision regarding his exclusion from the country until December 2018. The exclusion order was made on the grounds that, given his conviction for a particularly serious crime, the applicant’s presence or residence in Russia posed a threat to publi c order. The applicant’s appeal against the exclusion order was dismissed. In July 2011 the applicant was deported to Poland.

Law – Article 8: The expulsion to Poland of the applicant, a settled migrant in Russia for the majority of his life, had constitut ed an interference with his right to respect for private life. That interference had been prescribed by a law that was adequately accessible and foreseeable, and that pursued the legitimate aim of preventing disorder and crime.

The applicant had undoubted ly been fully integrated into Russian society. He had been born in Russia, had attended school and then university there, and he had worked there until he was deported at the age of 31. His mother, his only relative and a Russian national, had also resided there with him.

However, the applicant had spent several years of his childhood and then six months at the age of 15 in Poland, so it would be reasonable to assume that he must have spoken some basic Polish. The applicant had also visited Poland afterward s, in the years preceding his conviction in 2004. Furthermore, despite his residency in Russia, he had remained a Polish national and had taken conscientious steps to maintain that status by regularly renewing his Polish passport. Prior to his expulsion, t he applicant had never showed a desire to become a Russian national when he had been entitled to do so. Thus, the Court was not convinced by the applicant’s arguments to the contrary and found that the applicant had ties with Poland.

Turning to the applicant’s criminal conviction, which served as the basis for his exclusion, the Court noted that the offence committed by the applicant had been of a premeditated and particularly serious nature. The danger he posed to society could be dem onstrated by the nature of the crime, which had involved causing grievous bodily harm to the victim. Despite the fact that the applicant had been released on parole and had complied with the relevant conditions from the time of his release in May 2010 unti l his deportation in July 2011, he had failed to find employment or justify the lack thereof, which went counter to the direct orders of the Town Court. Furthermore, at the time of the commission of the assault in 2004, the applicant had been 24 years old – unlike in Maslov v. Austria , where the applicant had been 16 years old – and the applicant in the present case had therefore not been in a situation comparable to that of a juvenile.

The domestic courts had conducted a thorough examination of the applica nt’s appeals against the impugned measure by taking into account and weighing up all the necessary relevant factors above. Therefore, the domestic authorities had struck a fair balance between the competing interests when issuing the exclusion order agains t the applicant and subsequently expelling him.

Conclusion : no violation (four votes to three).

(See also Baghli v. France , 34374/97, 30 November 1999, Information Note 12 ; Ãœner v. the Netherlands [GC], 46410/99, 18 October 2006, Information Note 90 ; Maslov v. Austria [GC], 1638/03, 23 June 2008, Information Note 109 ; and Samsonnikov v. Estonia , 52178/10, 3 July 2012, Information Note 154 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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