Application no. 20953/03
by Brice and Yuliya EWALAKA-KOUMOU
The European Court of Human Rights (First Section), sitting on 4 February 2010 as a Chamber composed of:
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 7 June 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants are Mr Brice and Mrs Yuliya Ewalaka-Koumou (“the applicants”). The first applicant is a national of Congo, born in 1969. The second applicant is his wife, a Russian national, born in 1972. They live in St. Petersburg. They are represented before the Court by Ms O. Tseytlina, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants' marriage
In 1989 the first applicant arrived in Russia on a student visa and entered university. In 1995 he enrolled in a post-graduate programme. In 1996 he left university. It appears that in 1996 his residence registration ended and after that he had no legal grounds to remain in Russia.
According to the applicants, they have been living together as husband and wife since 1995.
It appears that prior to 2001 the applicants attempted to register their marriage, but the first applicant was unable to produce a certificate of single status because the Congolese Embassy in Russia was closed due to hostilities in Congo. The applicants also attempted to obtain a residence registration for the first applicant at the second applicant's address, but in the absence of official registration of their marriage they were refused.
In 1998 the second applicant gave birth to a son. In 1999 the first applicant formally acknowledged his paternity.
On 14 April 2001 the applicants got married after the first applicant obtained a certificate of single status.
2. Expulsion proceedings
On 15 January 2001 the applicants went to the Krasnogvardeyskiy District police office to lodge an application for a residence permit. The police fined the first applicant for living without residence registration and the second applicant for letting the first applicant live in her flat without residence registration.
On 15 February 2001 the Vyborgskiy District police office ordered the first applicant's expulsion to Congo. The applicants claim that they received no copy of that decision.
On 28 March 2001 the Vyborgskiy District police office issued the applicant with an exit visa for the purpose of expulsion, valid until 26 April 2001. On 26 April 2001 the exit visa was extended until 26 May 2001.
On 31 May 2001 the first applicant complained to the Ministry of the Interior about the decision to expel him. In particular, he stated that expulsion would separate him from his wife and son and would violate his right to respect for family life. Moreover, it was impossible to travel to Congo because flights between Russia and Congo were suspended due to military actions in Congo.
On 20 July 2001 the St. Petersburg prosecutor ordered the first applicant's expulsion by force and his detention for forty-eight hours pending expulsion. The applicants were not informed about the decision.
On 18 October 2001 the first applicant was arrested and placed in detention at the St. Petersburg police office.
On 19 October 2001 the Dzerzhinskiy District Court of St. Petersburg ordered his detention for ninety days with a view to expulsion.
On 9 November 2001 the applicants retained counsel. On 29 November 2001 counsel appealed against the detention order of 19 October 2001. On 21 December 2001 the Dzerzhinskiy District Court declared the appeal inadmissible because the first applicant had missed the time-limit. On 5 February 2002 the St. Petersburg City Court upheld the decision.
On 7 December 2001 counsel complained to the St. Petersburg prosecutor's office that the decision of 20 July 2001 to arrest the first applicant and to expel him by force had been unlawful. In particular, she complained that by ordering expulsion the authorities had not shown respect for the applicants' family life. Moreover, the decision had been taken in violation of the procedure prescribed by law.
On 16 January 2002 the first applicant was released after the expiration of the court order for his detention.
On 31 January 2002 the St. Petersburg Prosecutor's office found that the decision of 20 July 2001 to expel the first applicant had been justified by his unlawful residence in Russia. However, the decision had been taken in breach of the procedure prescribed by law because no report on the administrative offence had been drawn up and because the first applicant had not been allowed to choose counsel and to retain an interpreter.
On 6 September 2002 the St. Petersburg police office annulled the decision of 20 July 2001. It found that as the decision had not been enforced within a year it was no longer enforceable.
On 20 September 2002 the Dzerzhinskiy District Court, upon the applicants' appeal, found that the decision of 20 July 2001 had been justified. The first applicant had been unlawfully resident on the Russian territory and had taken no steps to make his stay legal.
In his grounds of appeal the first applicant submitted that he had taken steps to make his stay legal. However, his applications for a residence permit had not been examined. He further complained that the decision to expel him hindered his family life.
On 10 December 2002 the St. Petersburg City Court quashed the judgment of 20 September 2002 and discontinued the proceedings. It found that the first applicant's complaint could not be examined in civil proceedings, without supplying further grounds for that finding.
3. Applications for a residence permit and Russian citizenship
On several occasions the first applicant applied for a residence permit. His applications were not processed because he had no legal residence in Russia. The first applicant complained to the Ministry of the Interior.
By letter of 5 September 2001, the Ministry of the Interior informed the first applicant that an application for a residence permit could only be lodged by a person lawfully resident in Russia. He had been unlawfully resident on the Russian territory since 1996. The fact that he was married to a Russian national did not make his stay legal. The Ministry advised him to apply for temporary asylum.
In December 2001 and February 2002 the first applicant lodged new applications for a residence permit and citizenship. He submitted that his wife was a Russian national and that they had a minor child, therefore he was entitled to a residence permit and to Russian citizenship.
On 19 March 2002 the Krasnogvardeyskiy District police office found that his application was unsubstantiated. The first applicant's place of residence was unknown, therefore his application for Russian citizenship could not be examined.
The applicants challenged the decision of 19 March 2002 before a court. On 7 February 2003 the Krasnogvardeyskiy District Court of St. Petersburg held that the decision of 19 March 2002 (the judgment erroneously referred to 29 March 2002) had been lawful. In the District Court's view, the Krasnogvardeyskiy District police office had not rejected the application for Russian citizenship but had merely found the application unsubstantiated. Therefore the decision had not violated the applicants' rights.
On 15 April 2003 the St. Petersburg City Court upheld the decision on appeal. It found that the first applicant was living in Russia illegally, therefore he had no right to apply for a residence permit or citizenship.
Between July 2003 and September 2005, the applicant again unsuccessfully attempted to submit an application for a residence permit to the local police department.
4. Application for temporary asylum
On 20 December 2001 the first applicant applied to the Federal Migration Service for temporary asylum. On 4 February 2002 he submitted a new application.
On 10 January 2003 his application was rejected. The Federal Migration Service found that the first applicant had been living in Russia unlawfully and found no grounds for extending temporary protection to him.
The first applicant challenged the decision before a court in February 2003. He submitted that his wife and minor child were Russian nationals and could not be expected to follow him to Congo. The refusal of temporary asylum violated his right to respect for family life.
On 5 June 2006 the Kuybyshevskiy District court granted the applicant's complaint. It agreed that there were humanitarian grounds to extend temporary protection to the first applicant, in view of his personal and family situation.
The Migration Service appealed the decision, but on 7 February 2007 the St. Petersburg City Court upheld the decision of 5 June 2006.
On 17 April 2007 the Migration Service issued the first applicant a certificate of temporary asylum valid until 7 February 2008. This certificate could be renewed by the Migration Service. For the same period the first applicant was registered at his temporary place of residence.
On 19 July 2007 the first applicant applied for a residence permit. According to the Government, on 13 November 2007 the first applicant received a temporary residence permit valid for three years, of which he was notified on 16 November 2007.
It is unclear whether after November 2007 the first applicant has applied for a permanent residence permit or for the acquisition of Russian citizenship, as he was entitled to do.
B. Relevant domestic law
1. Expulsion of foreign nationals
A foreign national who committed a serious violation of the Foreign Citizens Act can be expelled. The expulsion decision shall be taken by a competent authority. The foreign national has to leave the country within the time-limit indicated in the expulsion decision. If he does not leave the country within the established time-limit, a prosecutor can order his arrest and expulsion by force. The foreign national can be held in detention as long as it is necessary for his expulsion (section 31 §§ 1 (3) and 2 of the Foreign Citizens Act no. 5152-X of 24 June 1981, in force until 9 October 2002).
2. Residence permits for foreign nationals
A residence permit can be issued to a foreign national married to a Russian national living in Russian territory (section 6 § 3 (4) of the Foreign Citizens Act, Law no. 115-FZ of 25 July 2002 in force from 9 October 2002).
3. Applications for Russian citizenship
A foreign national married to a Russian national may obtain Russian citizenship through a simplified registration procedure (section 18 § 1 (a) of the Russian Citizenship Act, Law no. 1948-I of 8 November 1991, in force until 1 July 2002).
A foreign national residing in Russia who has been married to a Russian national for three years can apply for Russian citizenship through a simplified procedure (section 14 § 2 (b) of the Russian Citizenship Act, Law no. 62-FZ of 31 May 2002, in force from 1 July 2002).
4. Temporary asylum
The Refugees Act (Law no. 4258-I of 19 February 1993) provides that a person who cannot be expelled or deported from Russia for humanitarian reasons may be granted temporary asylum (section 12 § 2). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4). A person who has been refused refugee status or temporary asylum after appeal who has no other legal grounds for remaining in Russia and refuses to leave voluntarily will be expelled (deported) from Russia in accordance with the relevant national and international legislation (section 13 § 2).
The applicants complained under Article 8 of the Convention that the first applicant had been refused a residence permit and Russian citizenship. They alleged that his expulsion would separate him from his wife and child and violate their right to respect for family life.
The applicants further complained that the conditions of the first applicant's detention amounted to a violation of Article 3 of the Convention. The first applicant alleged a violation of Article 5 § 1 (f) on account of his detention between 18 October 2001 and 16 January 2002. The applicants alleged a violation of Article 1 of Protocol No. 7 to the Convention, because the decision to expel the first applicant had been in breach of its guarantees for aliens lawfully residing in the territory of a Contracting Party. Finally, they alleged that they had no domestic remedies against the above violations, in violation of Article 13 of the Convention.
A. Alleged violation of Article 8 of the Convention
The applicants claimed to be victims of a violation of Article 8 of the Convention, the relevant parts of which provide:
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties' submissions
By their letter of 26 November 2007 the Government informed the Court that on 13 November 2007 the first applicant's request of July 2007 for temporary residence had been granted and he received a residence permit valid for three years. This decision was taken in accordance with the courts' decisions to grant the first applicant temporary asylum, which in turn took into account his personal and family situation and were adopted with express reference to the provisions of Article 8 of the Convention. In view of these measures, the Government suggested that the applicants could no longer claim to be victims of the violations alleged, since the national authorities had resolved the situation and afforded redress to the applicants prior to the communication of the compliant (which took place on 27 March 2007). The first applicant was now entitled to seek a permanent residence permit or to apply for Russian nationality. They stressed that the order to expel the first applicant has never been enforced and that it was found to have been unlawful. Thus, there has been no interference with the applicants' family life. Accordingly, the application should be declared inadmissible.
The applicants argued that there was no express acknowledgement of the unlawful nature of the expulsion order and that they had received no adequate redress for the breach of their right to respect for family life. They also argued that the first applicant's requests for a residence permit and citizenship could be dismissed in which case he could again face the risk of expulsion.
2. The Court's assessment
The Court notes, first of all, that the question whether or not the applicants have maintained their victim status by the time the present complaint has been communicated to the Government is irrelevant in the present case. In the light of the events occurring since February 2007, and especially since 13 November 2007, the Court considers that there is no longer any justification for examining the merits of the case, in line with its practice in similar cases (see Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 55, 7 December 2007, and Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 51, 7 December 2007) and for the reasons set out below.
The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved...” To be able to conclude that this provision applies to the instant case, the Court must answer two questions in turn: firstly, it must ask whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002). In the present case, that entails first of all establishing whether the risk of the first applicant's being deported persists; after that, the Court must consider whether the measures taken by the authorities constitute adequate redress in respect of the applicants' complaint (see Sisojeva and Others v. Latvia [GC], no. 60654/00, § 97, ECHR 2007-II).
As regards the first question, the Court notes that the expulsion order against the first applicant has never been enforced. On 31 January 2002 the St. Petersburg Prosecutor's Office admitted serious procedural breaches. On 6 September 2002 the decision was officially declared void, in view of its procedural deficiencies and because it had not been enforced for one year. After that date no proceedings were initiated with the aim of expelling the first applicant. Moreover, with effect from February 2002 the review of the first applicant's claim for temporary asylum by the authorities provided him with the right to remain in Russia until the outcome of the appeal. In February 2007 these proceedings resulted in the award to the applicant of temporary asylum, so that his expulsion was no longer possible under Russian law. The first applicant's assumption that if his temporary asylum status was withdrawn, a new set of expulsion proceedings could be commenced, amounts to no more than a speculation.
Accordingly, the Court finds that at present the first applicant cannot claim to be affected by the threat of expulsion and that therefore the matters complained of have ceased to exist. It remains to be seen whether the steps taken by the authorities can be considered sufficient to redress the possible effects of the situation of which the applicants complained to the Court.
The Court agrees that the first applicant experienced a certain period of uncertainty and legal insecurity in Russia. As follows from the materials reviewed by the Court, the first applicant's temporary registration as a student ceased in 1996, and it was not until January 2001 that the applicant took steps to regularise his stay and to apply for a residence permit on the ground of his family situation. After February 2002 the first applicant's claim for temporary asylum permitted him to remain in Russia, although the question of his residence registration remained unsettled. In view of that, the Court considers that the period prior to January 2001 cannot be attributed to the authorities and that the first applicant's legal status between February 2002 and February 2007 was governed by the provisions of the Refugee Act applicable to persons claiming temporary asylum. Thus, the period complained of in the present case constituted slightly over thirteen months. During this period a decision to expel the first applicant was adopted but not executed, for practical reasons. He remained in detention with a view to expulsion for ninety days.
The Court finds it regrettable that no applicable solution was found sooner. It nevertheless considers that in the present case the regularisation of the first applicant's immigration status through the procedure of temporary asylum and the grant to him of a temporary residence permit on that basis, constituted an adequate and sufficient remedy for the complaint under Article 8 of the Convention. The reasons invoked by the applicants and endorsed by the domestic courts specifically referred to the protection of the right to respect of family life as the grounds for granting temporary asylum. The fact that no other residence permit was accorded to the applicant in the meantime does not raise problems under the Convention, since, as the Court has reaffirmed on several occasions, Article 8 cannot be construed as guaranteeing as such the right to a particular type of residence permit. Where the domestic legislation provides for several different types, the Court must analyse the legal and practical implications of issuing a particular permit. If it allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the grant of such a permit represents in principle a measure which is sufficient to meet the requirements of that provision. In such cases the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Sisojeva and Others cited above § 91, with further references).
To sum up, the measures taken by the authorities enabled the first applicant to remain lawfully in the Russian Federation and to exercise there freely his right to respect for private and family life as protected by Article 8 of the Convention and interpreted in the Court's established case-law (see mutatis mutandis, Boughanemi v. France, judgment of 24 April 1996, Reports 1996-II, pp. 607-08, § 35; C. v. Belgium, judgment of 7 August 1996, Reports 1996-III, pp. 922-23, § 25; Boujlifa v. France, judgment of 21 October 1997, Reports 1997-VI, p. 2263, § 36; and Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999-VI).
Having regard to all the above considerations, the Court concludes that both conditions for the application of Article 37 § 1 (b) of the Convention are met in the instant case. The matter giving rise to this complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine.
Accordingly, the complaint about the alleged violation of Article 8 of the Convention should be struck out of the Court's list of cases.
B. Other alleged violations of the Convention
The applicants complained that the conditions of the first applicant's detention amounted to a violation of Article 3 of the Convention. The first applicant alleged a violation of Article 5 § 1 (f) on account of his detention between 18 October 2001 and 16 January 2002. They alleged a violation of Article 1 of Protocol No. 7 to the Convention, because the decision to expel the first applicant had been in breach of its guarantees for aliens lawfully residing in the territory of a Contracting Party. Finally, they alleged that they had no domestic remedies for the above violations, in violation of Article 13 of the Convention.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Application of Rule 43 § 4 of the Rules of Court
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. If an award of costs is made in a decision striking out an application which has not been declared admissible, the President of the Chamber shall forward the decision to the Committee of Ministers.”
The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention. In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations and be reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.
The aggregate claim in respect of costs and expenses relating to the applicants' legal representation amounted to EUR 5,430 (EUR 2,000 and 3,044 pounds sterling (GBP)). The applicants submitted a breakdown of costs, a copy of legal representation agreement and vouchers attesting the translation costs.
In the present case, regard being had to the documents in its possession and the above criteria, and taking into account that a large part of the applicants' complaints has been declared inadmissible, the Court considers it reasonable to award to the applicants under this heading the sum of EUR 2,000, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable to the applicants; the net award to be paid in pounds sterling into the representatives' bank account in the United Kingdom, as identified by the applicants.
The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
For these reasons, the Court unanimously
Decides that the matter giving rise to the applicants' complaint under Article 8 of the Convention has been resolved and decides to strike the application out of its list of cases in so far as it relates to that complaint;
Declares the remainder of the application inadmissible;
(a) that the respondent State is to pay the applicants, within three months from the date of this decision, EUR 1,150 (one thousand one hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses; the net award to be converted in pounds sterling at the date of settlement, to be paid into the representatives' bank account in the United Kingdom, as identified by the applicants;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Søren Nielsen Nina
EWALAKA-KOUMOU v. RUSSIA DECISION
EWALAKA-KOUMOU v. RUSSIA DECISION