PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. As indicated in paragraph 1 of the judgment, the present application concerns the domestic authorities’ refusal to renew the first applicant’s temporary residence permit as a long-term migrant due to his failure to submit a medical certificate.

2. Regrettably, I disagree with my eminent colleagues in the majority that there has been a violation of Article 8 of the Convention for the following reasons.

3. There is no dispute, and in any event there is no reason to hold otherwise, that: (a) there was an interference with the applicant’s rights with respect to family life, and (b) that the said interference was in accordance with the applicable law, and that it pursued a legitimate aim, namely the protection of public health. It therefore remains to be examined whether: (a) the interference was necessary in a democratic society, and, in particular, whether, the reasons invoked by the domestic authorities for the interference were relevant and sufficient, and (b) whether the measure in issue was proportionate to the aim pursued.

4. It is clear from the well-established case-law of the Court, that an interference will be considered “necessary in a democratic society” for the achievement of a legitimate aim if the reasons given by the national authorities to justify it are “relevant and sufficient” and if it is proportionate to the legitimate aim pursued. According to the case-law of the Court, matters of healthcare policy are in principle within the margin of appreciation of the domestic authorities, who are best placed to assess priorities in the use of resources (see Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, §§ 273-75, 8 April 2021).

5. Even though the first applicant contended before the Town Court that prior to the refusal he had been unaware that his failure to furnish the necessary medical certificate might lead to a negative outcome of the examination of his request for the extension of the residence permit, the documents submitted show otherwise (see paragraphs 7 and 9 of the judgment). It should further be underlined that the applicant did not invoke, either in the domestic proceedings or before the Court, any reasons to justify his failure to comply with the obligation to submit the compulsory document (see paragraphs 10, 12 and 20 of the judgment). Consequently, the domestic courts were right that the negative consequences of the failure to submit the necessary document were clear and foreseeable for the first applicant. The documents which had to be enclosed with an application for a temporary residence permit, as well as the grounds for refusing a temporary permit, are clearly spelled out in the member State’s law. Section 6(8) of the Foreign Nationals Act (no. 115-FZ of 25 July 2002) and Government Resolution no. 789 of 1 November 2002 specified that an applicant must enclose a medical certificate showing that he/she is not HIV ‑ positive and section 7(1)(13) of the same Act lists amongst the grounds for refusing a temporary residence permit, or for cancelling a previous permit, an applicant’s drug abuse or inability to produce a certificate showing that he or she is not HIV-positive.

6. A person cannot complain that his or her human right is not effectively protected by the domestic law and authorities if he or she does not first comply with the requirements of the relevant law or decision of the domestic authorities, without giving any reasons for his or her failure to do so. It is tenable that such a failure could be a ground for the inadmissibility of an application for lack of an appearance of a violation, and/or for abuse of the right of individual application (Article 35 §§ 3 (a) and 4 of the Convention). However, no issue of inadmissibility was raised by the Government on such grounds. The two parties to the present proceedings did not have the opportunity to discuss this matter before the Court and therefore I decided not to deal with grounds of inadmissibility other than noting that which was raised by the Government (see paragraphs 17-19 of the judgment). I therefore considered, as the judgment did, that the application was admissible. This does not prevent me, however, from observing that an applicant cannot – and should not – take the rule of law into his own hands and then try to seek the protection of the Court.

7. I am unable to contribute to opening Pandora’s box by giving the impression that the Court may allow applicants to disobey or disrespect laws, regulations and equitable principles and thereafter try to have their behaviour condoned and seek the protection of the Court. Relevant in this respect are the equitable principles ex turpi causa non oritur actio (no action arises out of a wrongful consideration) and nemo auditur propriam turpitudinem allegans (no one can be heard whose claim is based on his own wrongdoing). An applicant who comes to court must come with clean hands in order to seek justice and cannot be heard if relying on his or her own wrongdoing. I entirely disagree with the judgment that there was excessive formalism on the part of the respondent State in regulating the issue of renewal of temporary residence permits, an issue which falls within the imperium and exclusive competence of the State concerned. Furthermore, it is to be noted that the applicant should first have produced the required medical certificate and then if his application was refused he could have had recourse to justice. The applicant, although being aware of his obligation to furnish the relevant medical certificate, had not complied with it. In any event, if the applicant had furnished the requisite medical certificate and a medical problem was disclosed, it is uncertain that this, by itself, would have led to a refusal of his permit application. In Novruk and Others v Russia (nos. 31039/11 and 4 others, 15 March 2016), where section 7(1)(13) of the Foreign Nationals Act was at issue, the Court referred to the Constitutional Court’s statement that the law-enforcement authorities and courts might – on the basis of humanitarian considerations – take into account the family situation and the state of health of the HIV ‑ positive foreign national or stateless person, and other exceptional but meritorious circumstances, in determining whether the person should be granted temporary residence in Russia. It was also mentioned that, from a summary of twenty-five cases submitted by the Russian Government on 20 December 2012 and heard by Russian courts in 2011 and 2012, it could be seen that in a majority of those cases the Russian courts had overturned the decisions of the Migration Service or the lower courts and found in favour of the applicants, noting in particular their family ties in Russia and state of health.

8. Furthermore, even though the domestic courts did not elaborate in their decisions on the first applicant’s complaint about the adverse effect of the refusal on his family life, the Komi Supreme Court did indicate, albeit in general terms, that in a situation where the lack of necessary information concerning the first applicant could have been indicative of his danger to the public, interests of public safety and health prevailed over other interests.

9. It should be noted that even though, as a result of the refusal, the first applicant was obliged, for a year, to leave Russia at regular intervals (see paragraphs 13 and 21 of the judgment), he was later granted a three-year residence permit, which was subsequently extended for another five years (see paragraph 14 of the judgment). Given that he continues to reside in Russia, the consequences of the refusal for his family life with the second applicant (his wife) and their child were not of such a kind and nature as to outweigh his failure to furnish the necessary document and to comply with the relevant regulations.

10. The foregoing considerations are sufficient for me to conclude that the authorities’ refusal to extend the first applicant’s residence permit, which was decided ultimately due to the applicant’s non-compliance with the law, fell within their margin of appreciation and was not disproportionate.

11. In conclusion, it follows that there has been no violation of Article 8 of the Convention and as a consequence I would not make an award for non-pecuniary damage or costs.