GRAND CHAMBER

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48321/99 
by Tatjana SLIVENKO and Others 
against Latvia

The European Court of Human Rights (“the Court”), sitting as a Grand Chamber composed of

Mr L. Wildhaber, President
 Mr C.L. Rozakis
 Mr J.-P. Costa
 Mr G. Ress,

Mr A. Pastor Ridruejo
 Mr J. Makarczyk
 Mr I. Cabral Barreto
 Mrs F. Tulkens
 Mrs V. Strážnická
 Mr P. Lorenzen
 Mrs  Tsatsa-Nikolovska
 Mrs H.S. Greve
 Mr A.B. Baka
 Mr R. Maruste,

Mr  K. Traja, 
 Mrs S. Botoucharova
 Mr A. Kovler, Judges
 Mr P.J. Mahoney, Registrar, 
 

Having regard to the above application lodged on 28 January 1999 and registered on 26 May 1999,

Having regard to the fact that Mr E. Levits, the judge elected in respect of Latvia, withdrew from sitting in the case (Rule 28), and that the respondent Government appointed Mr R. Maruste, the judge elected in respect of Estonia, to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 1),

Having regard to the decision of 14 June 2001 by which the Chamber of the Second Section to which the case had originally been assigned relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the third party comments submitted on behalf of the Russian Federation,

Having regard to the oral submissions of the parties and of the representative of the Russian Federation at the hearing on 14 November 2001,

Having deliberated onNote 14 November 2001 and 23 January 2002,

decided, on the last-mentioned date, as follows:

 

THE FACTS

1.  The first applicant is Mrs Tatjana Slivenko, born in 1959. The second applicant is her husband Mr Nikolaj Slivenko, born in 1952. The third applicant is their daughter Ms Karina Slivenko, born in 1981.

2.  The applicants are represented before the Court by Mr Aleksandr Asnis and Mr Vitaliy Portnov, lawyers practising in Moscow. The representatives attended the oral hearing before the Court together with their adviser, Ms Tatyana Rybina. The first and the third applicants also attended the hearing.  

3.  The respondent Government are represented by their Agent, Ms Kristine Malinovska, of the Foreign Ministry. She attended the hearing together with Ms Anda Stahova, Counsel. 

4.  The third party are represented by the Representative of the Russian Federation before the Court, Mr Pavel Laptev, of the President’s Office. He attended the hearing together with Mr Sergey Volkovskiy and Mr Sergey Kulik, Counsel.  

A.  The circumstances of the case

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

6.  The applicants are of Russian origin. The first applicant was born in Estonia in a family of a military officer of the Union of Soviet Socialist Republics (“the USSR”). At the age of one month she moved to Latvia together with her parents. The second applicant was transferred to Latvia in 1977 to serve as a Soviet military officer. In 1980 the first and the second applicants married. In 1981 the first applicant gave birth to their daughter, the third applicant. The first applicant’s father retired from military service in 1986.

7.  Latvia regained independence from the USSR in 1991. On 28 January 1992 the Russian Federation assumed jurisdiction over the former Soviet armed forces stationed on the territory of Latvia. 

8.  On 4 March 1993 the first and the third applicants and the first applicant’s parents were entered on the Register of Latvian Residents (“the Register”) as “ex-USSR citizens” (see the ‘Relevant domestic law and practice’ part below). At that time, none of them were citizens of any particular State. In her request to be entered on the Register, the first applicant had not indicated that her husband was a Russian military officer.

9.  The respondent Government state that, in requesting her entry on the Register, the first applicant submitted false information about the occupation of her husband, stating that he had worked at a factory. The applicants state that the respondent Government has presented no evidence in this respect. The applicants refer to the fact that, during the subsequent proceedings concerning the legality of their stay in Latvia (see below), the immigration authorities did not refer to such false information, and the Latvian courts did not establish that the applicants had at any point submitted the information mentioned by the respondent Government. 

10.  The second applicant, who had become a Russian citizen, continued his service in the Russian army until his discharge in 1994 on the ground of the liquidation of his post. The parties disagree as to the actual date of the second applicant’s discharge: the applicants state that he was discharged on 2 March 1994. They rely on the fact that an order on the second applicants’ discharge was signed and became effective on 2 March 1994. The Russian Government support this conclusion. The respondent Government argue that he was discharged only on 5 June 1994 as on that date he formally completed his leave; his leave pay and retirement benefits had been calculated by reference to that date.

11.  The treaty between Latvia and Russia on the withdrawal of the Russian troops (“the treaty”) was signed in Moscow on 30 April 1994 and became effective on that date (see point C of the ‘Facts’ part below) .

12.  According to the Latvian Government, already before the signature and the entry into force of the treaty, various Latvian and Russian authorities co-operated in establishing the names of the Russian military personnel liable to be removed from Latvia. In this context, on 31 March 1994 the Russian military authorities submitted to the Latvian side a list of the Russian military officers in Latvia, including the second applicant, with an accompanying request to prolong his and his family’s temporary residence in Latvia. The list of 31 March 1994, the respondent Government said, made clear that the stay of the second applicant and his family in Latvia was temporary, and that they would be subject to withdrawal.

13.  According to the applicants and the Russian Government, the list of 31 March 1994 did not concern any obligation of the second applicant to leave Latvia as it was a document solely requesting the prolongation of his temporary stay in Latvia, submitted before the actual signature and entry into force of the treaty.    

14.  On 7 October 1994 the second applicant applied to the Latvian Citizenship and Migration Authority (“the CMA”) to be issued with a temporary residence permit in Latvia inter alia by reason of his marriage to the first applicant, a permanent resident of Latvia. This was refused on the ground that, as a Russian military officer, he was required to leave Latvia as a result of the withdrawal of the Russian troops in accordance with the treaty.

15.  On 29 November 1994 the CMA annulled the first and the third applicants’ entry in the Register on the ground of the second applicant’s military status. The applicants state that they were not informed about the decision, and that they found out about it only in 1996, in the context of the court proceedings brought by the second applicant (see below).

16.  According to a list submitted to the Latvian authorities by the Russian armed forces on 10 December 1994, the second applicant was included in the category of military personnel who had retired after 28 January 1992.

17.  On 16 October 1995 the Russian consulate in Riga submitted to the Latvian foreign ministry several lists of Russian military pensioners who had been discharged from the Russian armed forces after 28 January 1992, including a separate list of those who wished to request temporary or permanent residence in Latvia, and a list of those who had already left Latvia. The second applicant’s name was included in the latter list. It was noted that on 3 August 1994 he had been given housing in the city of Kursk in Russia, and that he had left Latvia on 31 December 1994.

18.  In point of fact, however, the second applicant had stayed in Latvia. He brought a court action against the CMA, claiming that their refusal to issue him with a temporary residence permit was void. On 2 January 1996 the Riga City Vidzeme District Court found in favour of the second applicant. The CMA appealed against the judgment.

19.  On 19 July 1996 the Riga Regional Court upheld the CMA’s appeal, finding inter alia that the second applicant had been a Russian military officer until 5 June 1994, and that the treaty of 30 April 1994 required that all Russian officers in service on 28 January 1992 leave Latvia together with their families by virtue of the treaty. The Regional Court referred inter alia to the list of 16 October 1995 which confirmed that he had been furnished accommodation in Kursk, and that he had left Latvia in 1994. The second applicant did not bring a cassation appeal against the appellate judgment.

20.  On 20 August 1996 the immigration authorities issued a deportation order in respect of the applicants. They were presented with that order on 22 August 1996.

21.  On 22 August 1996 the local authorities decided to evict the applicants from their flat which they rented from the Latvian Defence Ministry. Russian military officers and their families as well as other residents of Latvia had lived in the apartment block where the flat was located. The eviction order was not enforced. 

22.  On an unspecified date in 1996 the second applicant moved to Russia, while the first and the third applicants remained in Latvia. 

23.  The first applicant brought a court action in her own name and on behalf of the third applicant, claiming that they were in fact permanent residents of Latvia, and that they could not be removed from the country. 

24.  On 19 February 1997 the Riga City Vidzeme District Court found in favour of the first and the third applicants. The court held inter alia that the first applicant had come to Latvia as a relative of her father, not her husband. As her father had retired in 1986, he could thereafter no longer be considered as a military officer, and his family members, including the first and the third applicants, could be entered on the Register as permanent residents of Latvia. The court quashed the expulsion order in respect of the first and the third applicants and authorised their re-entry on the Register.    

25.  The CMA appealed against the judgment of 19 February 1997. On 30 October 1997 the Riga Regional Court rejected the appeal, finding that the first instance court had properly decided the case. Upon the CMA’s cassation appeal, on 7 January 1998 the Supreme Court quashed the decisions of the lower courts and returned the case for fresh examination by the appeal court. The Supreme Court referred to the fact that the applicants had been furnished a flat in Kursk, and that they were subject to the provisions of the treaty of 30 April 1994.

26.  On 6 May 1998 the Riga Regional Court upheld the CMA’s appeal, finding that the second applicant had been a serving Russian military officer until 5 June 1994. Referring to the fact that the second applicant had been given housing in Kursk in 1994 following his retirement from the Russian military, the court decided that he had been required to leave Latvia with his family in accordance with the treaty. The court found that the decision of the immigration authorities to annul the first and the third applicants’ entry on the Register had been lawful.

27.  On 12 June 1998 the first applicant was informed by the immigration authorities that the deportation order of 20 August 1996 became effective  upon the pronouncement of the appeal judgment of 6 May 1998.

28.  On 29 July 1998, upon the first and the third applicants’ cassation appeal, the Supreme Court confirmed the decision of 6 May 1998. The Supreme Court stated that the second applicant had been discharged from the Russian armed forces on 5 June 1994. The Supreme Court noted that the applicants’ had received the flat in Kursk in the context of the material assistance provided by the United States of America for the withdrawal of Russian troops. Relying on the fact that the second applicant had been discharged from the military after 28 January 1992, the Supreme Court concluded that the first and the third applicants as part of his family had also been required to leave Latvia in accordance with the treaty.

29.  On 14 September 1998 the first applicant requested the CMA to defer execution of the deportation order. That was refused on 22 September 1998.

30.  On 7 October 1998 the first applicant submitted to the immigration authorities an appeal against the deportation order, requesting a residence permit and her re-entry on the Register. She stated inter alia that Latvia was her and her daughter’s motherland as they had lived there all their lives and had no other citizenship, and that she was required to take care of her handicapped parents who were permanently resident in Latvia.

31.  On 29 October 1998 the first and the third applicants were detained in a centre for illegal immigrants on the ground of their failure to comply with the expulsion order of 20 August 1996.

32.  On the same date the CMA Director decided to grant the first and third applicants temporary residence permits valid for 90 days from the above date. Also on the same date he sent a letter to the immigration police, stating that the first and the third applicants’ arrest had been “premature” in view of the fact that the first applicant had submitted the appeal of 7 October 1998. No reference to a domestic law was made in the letter. The CMA Director ordered that the immigration police release the first and the third applicants. They were released immediately.  

33.  The decision of 29 October 1998 to grant her temporary residence was communicated to the first applicant only after its expiry on 3 February 1999. The CMA informed her that she was required to leave Latvia immediately as the deportation order of 20 August 1996 was now in force. She was also informed that, in case of her voluntary compliance with the expulsion order, she could thereafter be issued with a visa to be able to stay in the country 90 days per annum.

34.  On 16 March 1999 the flat of the first applicant’s parents was searched by the police. The third applicant was arrested on the same date and thereafter detained for 30 hours in a centre for illegal immigrants. She was released on 17 March 1999.

35.  On 11 July 1999 the first and the third applicants moved to Russia to join the second applicant. By that time the third applicant had completed her secondary education in Latvia. On an unspecified date in 2001 the first and the third applicants adopted Russian citizenship as former nationals of the USSR. The applicants now live in Kursk, in an accommodation owned by the Russian defence authorities. 

36.  According to the applicants, the first applicant’s parents are seriously ill, but the applicants had not been able to come to Latvia to visit them. The expulsion order of 20 August 1996 had imposed on the first and the third applicants a prohibition on entry to Latvia for five years. That prohibition expired on 20 August 2001. In the end of 2001 the first and the third applicants obtained visas permitting their stay in Latvia for no more than 90 days per annum.

37.  In view of the fact that the second applicant had left Latvia voluntarily, the prohibition on entry to Latvia had not been extended to him. He was permitted to visit Latvia several times in the period from 1996 to 2001. 

 

B.  Relevant domestic law and practice

Citizenship and nationality in Latvia

38.  The relevant domestic legislation (the Citizenship Act 1994, the Status of  Former USSR Citizens Act 1995 and the Aliens Act 1992) uses the term “citizenship” (pilsonība) also to denote nationality of a person. In the official English translations of the domestic statutes, the term “nationality” is sometimes used in brackets alongside the term “citizenship”. An official English translation of the Aliens Act (section I) provides, for example, that “an ‘alien’ [is] a person having the citizenship (nationality) of another State; [a] ‘stateless person’ [is] an individual having no citizenship (nationality). ”

Categories of Latvian residents

39.  There are two categories of permanent residents of Latvia:

1) Latvian citizens (pilsoņi);

2) aliens (ārvalstnieki).

There are also two types of aliens:

1) persons who have the special status of an “ex-USSR citizen” (bijušās PSRS pilsoņi), which may also be referred to as the status of “non-citizen” (nepilsoņi);

2) stateless individuals (bezvalstnieki) or foreigners who must obtain permanent residence permits.

Latvian citizens and “ex-USSR citizens” (“non-citizens”) have the right to be entered in the Register of Residents by operation of, respectively, the Citizenship Act and the Status of Former USSR Citizens Act.

Article 2 of the Status of Former USSR Citizens Act guarantees to “ex-USSR citizens” (“non-citizens”) all the basic constitutional rights and prohibits their expulsion from Latvia, save in exceptional circumstances warranting expulsion.

Aliens having no “ex-USSR citizens” (“non-citizens”) status can be granted permanent residence permits by decision of a competent authority by virtue of the Aliens Act. 

The above laws exclude the possibility of permanent residence in Latvia of those persons who arrived in Latvia before it regained its independence in 1991 as Soviet military officers or their family members. Such persons may be considered as stateless persons or foreigners, and must obtain limited (temporary) residence permits or visas in order to stay in the country legally in accordance with the Aliens Act.

Expulsion of aliens and their detention pending expulsion

40.  Under Article 36 § 3 of the Aliens Act, a residence permit shall be annulled where a stateless person or alien presents a threat to public order or national security. Under Articles 36 § 6, a residence permit shall be annulled  where the person has entered the military service of a foreign State. 

Under Article 38 §§ 1 and 2, an expulsion order shall be issued with respect to stateless persons and aliens subject to restrictions pursuant to Article 36, and also to those stateless persons and aliens who reside in Latvia without a visa or temporary residence permit.   

Pursuant to Article 40 of the Act, a person shall leave the territory of Latvia within seven days after he or she has been notified of the expulsion order, provided that it had not been appealed against in accordance with the procedure established in this Article. The person has the right, within seven days from the notification, to appeal against the expulsion order to the immigration authorities. A decision by the immigration authorities may be appealed to a court.

Under Article 48, where a person has not complied with the deportation order, he or she can be forcefully removed from Latvia by the police. Under Article 48-4, the police have the right to arrest a person in order to execute a deportation order.

Under Article 48-5, the police have the right to arrest a person without a decision to deport where:

1) the person has illegally entered the State;

2) the person has knowingly provided false information to competent authorities in order to receive a visa or residence permit;

3) the authorities have a well-founded suspicion that the person will hide, or that he or she has no permanent place of residence;

4) the authorities have a well-founded suspicion that the person poses a threat to public order or national security.

In such cases the police have the right to detain a person for not more than 72 hours, or, where a prosecutor has been notified, for not more than 10 days. The police shall immediately inform the immigration authorities about  the arrest, with a view to issuing an order for the deportation of the person by the use of force. The person concerned can appeal against that deportation order in accordance with the provisions of Article 40 of the Act.   

Pursuant to Article 48-6, a person against whom such a deportation order has been issued can be detained until the execution of the order, and a prosecutor shall be notified thereof. 

Under Article 48-7, the arrested person shall be immediately informed of the reasons for his arrest, and of his right to have legal assistance.   

Pursuant to Article 48-10, the police have the right to arrest aliens and stateless persons who reside in Latvia without a valid visa or residence permit. Such persons shall be brought to the immigration authorities or to a police remand centre within three hours.   

C.  The Latvian-Russian treaty on the withdrawal of the Russian troops

41.  The treaty between Latvia and Russia on the withdrawal of the Russian troops was signed in Moscow on 30 April 1994 and became effective on that date.

By virtue of Article 2 § 1 of the treaty, the Russian armed forces were obliged to withdraw from Latvia before 31 August 1994.

Under Article 2 § 2, the withdrawal concerned all persons enlisted in the armed forces of the Russian Federation, members of their families and their movable property.

Article 2 § 3 provides that the dismantling on the Latvian territory of  Russian military units and discharge from them of military servicemen after 28 January 1992 “cannot be regarded as the withdrawal of troops”.  

The treaty also established the schedule of the withdrawal. 

According to Article 3 § 5, the Russian Federation was under an obligation to inform Latvia about its military personnel on Latvian territory and about the course of the withdrawal.

Under Article 9, Latvia undertook to guarantee to members of the Russian military forces and to their families the rights and freedoms in accordance with the Latvian legislation and the principles of international law. 

COMPLAINTS

42.  The applicants complain under Article 8 of the Convention about their removal from Latvia, claiming that it violated their rights to respect for their “private life”, their “family life” and their “home” within the meaning of this provision. They consider that their removal was not required by the Latvian-Russian treaty on the withdrawal of the Russian troops, correctly interpreted, and that in any event the resultant interference with their above rights pursued no legitimate aim and was not justified as being necessary in a democratic society.

43.  The applicants further contend, relying on Article 14 of the Convention taken in conjunction with Article 8, that they were removed from Latvia as members of the Russian-speaking ethnic minority and the family of a former Russian military officer. They complain that they were subjected to different treatment than other non-original Latvian residents in that they were not able to keep the status of “ex-USSR citizens” under the Status of Former USSR Citizens Act, which would have precluded their expulsion.

44.  The first and the third applicants further submit that their removal breached Article 3 of Protocol No. 4 to the Convention, having regard to the fact that Latvia was their motherland, and that they had been citizens of the Latvian Soviet Socialist Republic (“SSR”) until 1991.

45.  In the letter of 10 September 2000 the applicants also argue that their removal amounted to a “collective expulsion” in breach of Article 4 of Protocol  No. 4 to the Convention.

46.  The applicants claim that, in violation of Article 6 of the Convention, the proceedings concerning the legality of their stay in Latvia were conducted in an unfair manner.

47.  They also submit that contrary to Article 13 of the Convention, they had no effective remedy to review the legality of their stay in Latvia and prevent their expulsion.

48.  The first and the third applicants further contend that the conditions of their detention on 29 October 1998 and of the third applicant’s detention on 16-17 March 1999 amounted to inhuman and degrading treatment, contrary to Article 3 of the Convention

49.  The first and the third applicants maintain that contrary to Article 5 §§ 1 and 4 of the Convention, their detention was arbitrary and unlawful and that they did not obtain a judicial review of their detention.

50.  In their letter to the Court of 10 September 2000 the first and the third applicants also rely on Article 2 of Protocol No. 4 to the Convention, alleging that their detention amounted to an unjustified interference with their freedom of movement, and that no adequate remedy was available in Latvia regarding the allegedly unlawful interference with this freedom. 

51.  The applicants also claim under Article 1 of Protocol No. 1 to the Convention that, as a result of the loss of their legal status in Latvia and their removal, they were unable to take advantage of a privatisation scheme concerning the flat which they had rented from the local authorities. They further complain that after they left Latvia the flat was broken into, and that some of their personal items left in the flat were stolen or destroyed by the authorities.

52.  Finally, the third applicant contends under Article 2 of Protocol No. 1 to the Convention that the two periods of her detention on 29 October 1998 and 16-17 March 1999, and the constant fear for her liberty and security as a result of the proceedings concerning her removal from Latvia, prevented her from adequately pursuing her studies at secondary school.

 

THE LAW

53.  The applicants have raised numerous complaints under various Articles of the Convention and its Protocols about their removal from Latvia and related matters. The respondent Government contest the Court’s jurisdiction to entertain the case on the ground that the impugned measures were taken in implementation of a treaty concluded by Latvia prior to the  ratification of the Convention and whose conformity with the Convention, they submit, cannot be examined by the Court. In any event they contend that the applicants’ various complaints are inadmissible.

The Court must therefore first address the question of its own jurisdiction (Article 32 § 2 of the Convention).

I.  As to the Court’s jurisdiction to entertain the application

54.  The respondent Government contend that the Court is precluded from examining the case as the impugned measures were taken in implementation of the Latvian - Russian treaty of 30 April 1994 on the withdrawal of  the Russian troops. According to the respondent Government, the subsequent ratification of the Convention and Protocols by Latvia on 27 June 1997 was based on the assumption that the treaty was compatible with the Convention. They stress that the withdrawal of the foreign armed forces was absolutely essential for the sovereignty and national security of Latvia. Her obligations under the Convention and Protocols must therefore be seen as being subject to a "quasi-reservation” in respect of the treaty.

55.  In the submission of the applicants and the third party the treaty cannot be invoked to justify any measures which might not comply with the requirements of the Convention and its Protocols. They contest the respondent Government’s argument that the Court has no jurisdiction to entertain the case.

56.  The Court is thus confronted with a dispute between the parties as to whether or not it has jurisdiction. Pursuant to Article 32 § 2 of the Convention the Court itself is called upon to decide this question.

57.  The first point to note is that under Article 19 of the Convention it is the Court’s function to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. Under the terms of Article 32 § 1 its jurisdiction extends to all matters concerning the interpretation and application of the Convention and Protocols which are referred to it, inter alia by way of an individual application lodged under Article 34. In accordance with its established case-law, the Court’s power of interpretation is not limited to the text itself of the Convention and Protocols, but also embraces the interpretation of reservations and other unilateral declarations made by a Contracting Party in relation thereto (see, among other authorities, in the context of requirements for applicability of a reservation under Article 57 of the Convention, Jėčius v. Lithuania, no. 34578/97, 31.7.2000, § 77-87, to be reported in ECHR 2000-IX; see also, concerning applicability of a derogation under Article 15 of the Convention, the Sakik and Others v. Turkey judgment of 26 November 1997, Reports of Decisions and Judgments 1997-VII, §§ 34-39).

58.  By ratifying the Convention and Protocols Nos 1, 4, 6 and 7 on 27 June 1997, Latvia has undertaken to “secure”, as from that date, the rights and freedoms defined in the Convention and the said Protocols to everyone within its jurisdiction (Article 1 of the Convention), subject to any valid reservations made under Article 57 of the Convention. At the time of ratification Latvia made a reservation in respect of Article 1 of Protocol No. 1, concerning certain laws on the regulation of property rights then in force in its territory. However, Latvia entered no reservations in respect of other Convention articles, in particular no formal reservation regarding specifically the above-mentioned Latvian-Russian treaty or the general immigration and citizenship provisions of Latvian law.

59.  The respondent Government submit that it was their assumption at the time of the ratification of the Convention and Protocols that the above treaty did not conflict with the requirements of the Convention and that therefore, notwithstanding the absence of a formal reservation, Latvia’s obligations under  the Convention would be subject to a “quasi-reservation” in respect of that treaty, thereby precluding the Court from examining the conformity with the Convention of any measures taken in implementation thereof. 

60.  The Court does not share this view. It follows from the text of Article 57 § 1 of the Convention, read in conjunction with Article 1, that ratification of the Convention by a State presupposes that any law then in force in its territory should be in conformity with the Convention. If that should not be the case, the State concerned has the possibility of entering a reservation in respect of the specific provisions of the Convention (or Protocols) with which it cannot fully comply by reason of the continued existence of the law in question. Reservations of a general character, in particular those which do not specify the relevant provisions of the national law or fail to indicate the Convention articles that might be affected by the application of those provisions, are not however permitted. The Court always retains the power to examine whether or not a purported reservation has been validly made in conformity with the requirements of Article 57; if the reservation is found to be valid, the Court will be barred from examining the conformity of the reserved legal provisions with the Convention articles in relation to which the reservation has been made (see inter alia the Jėčius v. Lithuania judgment cited above, loc. cit.).

61.  In the Court’s opinion the same principles must apply as regards any provisions of international treaties which a Contracting State has concluded prior to the ratification of the Convention and which might be at variance with certain of its provisions. Certain States have in fact made reservations in respect of prior treaty obligations (e.g. the Austrian reservation to Article 1 of Protocol No. 1 in relation to provisions of the State Treaty 1955). In the present case Latvia had the possibility of entering a specific reservation in respect of the treaty of 30 April 1994. As it has not done so, the Court concludes that it has jurisdiction to examine all questions that may arise in the light of the Convention and Protocols as a consequence of the application of the provisions of the said treaty in relation to the facts of the applicants’ case.

62.  This conclusion is all the more justified in the present case as the applicants contend that the treaty, correctly interpreted, is not actually applicable to them. Furthermore, while the impugned measures were in fact based on the treaty, as interpreted by the Latvian authorities, apparently their interpretation is not shared by the authorities of the Russian Federation, being the other party to the treaty (and a third party in the present proceedings). It appears that the Latvian authorities had a certain discretion concerning the manner in which they implemented the treaty in regard to the applicants. Finally, the treaty itself, in its Article 9, required that Latvia comply with the principles of international law in order to protect the rights of persons affected by its implementation. In these circumstances the Latvian authorities’ assumption that that the treaty did not contradict the Convention cannot serve as a valid basis for depriving the Court of its control as to whether there has been an interference with the applicants’ rights and freedoms under the Convention and, if so, whether any such interference was justified.

63.  The Court accordingly concludes that it has jurisdiction to entertain the applicants’ complaints and that the respondent Government’s objection must be rejected.      

II.  The complaints of the second applicant

64.  The second applicant alleges that his removal from Latvia violated his right to respect for private and family life (Article 8 of the Convention), and was part of a “collective expulsion” prohibited by Article 4 of Protocol No. 4 to the Convention. He further contends that this measure was discriminatory contrary to Article 14 of the Convention and that his procedural rights under Articles 6 and 13 of the Convention as well as his right to the protection of property under Article 1 of Protocol No. 1 to the Convention, were violated.

65.  The respondent Government submit that the second applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as he did not bring a cassation appeal to the Supreme Court against the decision of the Riga Regional Court of 19 June 1996. 

66.  In reply the second applicant maintains that no adequate appeal was available against the judgment of 19 June 1996 as the latter became effective immediately after its pronouncement in accordance with the relevant domestic procedure, and hence was final. He pursued no further judicial appeals and left Latvia in 1996 as he did not want to “create obstacles” for his wife’s staying in Latvia. According to the second applicant, his removal from Latvia gave rise to a continuing violation of his Convention rights. The Russian Government support the second applicant’s conclusions.   

67.  The Court observes that it has no jurisdiction to entertain complaints which relate to facts that occurred prior to 27 June 1997, which is the date of the entry into force of the Convention with regard to Latvia.

68.  Furthermore, under the terms of Article 35 § 1 of the Convention, the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. Only adequate remedies have to be exhausted for this purpose (see, mutatis mutandis, Civet v. France, no. 29340/95, 28.9.1999, § 41, ECHR 1999-VI).

69.  The Court notes that the second applicant left the territory of Latvia on an unspecified date in 1996, following the finding against him by the Riga Regional Court on 19 June 1996, that is before the entry into force of the Convention with regard to Latvia.

70.  Furthermore, while it is clear that the appeal judgment of 19 June 1996 became effective in domestic law on the same date, it is undisputed that the second applicant had the statutory right to submit a cassation appeal to the Supreme Court and that he failed to do so. There is no indication that this remedy may have been deemed as inadequate at the material time. Even in so far as the second applicant contends that the violation of his Convention rights continued after the entry into force of the Convention with regard to Latvia, it follows that he failed to comply with the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies.

71.  His complaints must therefore be rejected under Article 35 §§ 1, 3 and 4 of the Convention.

 

III.  The complaints of the first and the third applicants

72.  As regards the complaints of the first and the third applicants, the Court will first examine whether their removal from Latvia was compatible with the absolute prohibitions stipulated by Articles 3 and 4 of Protocol No. 4 or whether it amounted to an unjustified interference with their rights under Article 8 of the Convention, taken in isolation or in conjunction with Article 14. It will then turn to the complaints about the procedure by which that removal was decided, the complaints about their detention in connection therewith, and finally the complaints about the consequences of their removal from the standpoint of Articles 1 and 2 of Protocol No. 1.

A.  Complaints relating to their removal from Latvia

73.  The first and the third applicants allege a violation of Article 3 of Protocol No. 4 to the Convention, which provides as follows:

“1.  No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.

2.  No one shall be deprived of the right to enter the territory of the state of which he is a national.”

74.  The respondent Government submit that “nationality” within the meaning of Article 3 of Protocol No. 4 is governed exclusively by the norms of domestic law, and that the State is accordingly entitled to determine whether or not a person is its national. The fact that the applicants were nationals of the Latvian SSR before the time when the USSR ceased to exist has no relevance because the applicants have never been “nationals” of independent Latvia. The Government therefore consider this complaint to be incompatible with the Convention.   

75.  The first and the third applicants point out that the first applicant came to Latvia at a very young age, and the third applicant was born there. Both were citizens of the Latvian SSR until 1991, while it was part of the USSR. They state that they have not lived in or had citizenship of another country. They could thus be regarded as Latvian “nationals” within the meaning of Article 3 of Protocol No. 4, and their removal from Latvia breached that provision.

76.  The Russian Government state that the first and the third applicants should be regarded as Latvian “nationals” in view of their history in Latvia. 

77.  The Court observes that Article 3 of Protocol No. 4 secures an absolute and unconditional freedom from expulsion of a national. However, the Court considers that for the purposes of Article 3 of Protocol No. 4 the applicants’ “nationality” must be determined, in principle, by reference to the national law. A “right to nationality” similar to that in Article 15 of the Universal Declaration of Human Rights is not guaranteed by the Convention or its Protocols, although an arbitrary denial of nationality may under certain circumstances amount to an interference with the rights under Article 8 of the Convention (see, mutatis mutandis, Karassev and Family v. Finland, no. 31414/96, 12.1.1999, to be reported in ECHR 1999-II).

78.  Latvian legislation makes no distinction between the notions of “citizenship” and “nationality”, and it is undisputed that the first and the third applicants have not been Latvian citizens at any time after 27 June 1997, that is the date of the entry into force of the Convention with regard to Latvia. Nor is there any indication that the first and the third applicants have been arbitrarily denied Latvian citizenship.

79.  It follows that the first and the third applicants cannot be regarded as Latvian “nationals” within the meaning of Article 3 of Protocol No. 4 to the Convention and that this part of the application is incompatible ratione materiae with this provision. Accordingly, this aspect of the case must be rejected under Article 35 §§ 3 and 4 of the Convention.

80.  In their letter of 10 September 2000 the first and the third applicants also submit that their removal from Latvia amounted to a “collective expulsion” in breach of Article 4 of Protocol  No. 4 to the Convention as they were required to leave Latvia on the basis of the treaty of 30 April 1994.

81.  The respondent Government argue that the first and the third applicants were not physically expelled. In any event, even assuming that there was an expulsion, it was not “collective” as the case of each applicant was  reviewed separately by the domestic courts.

82.  The Court recalls that, under the terms of Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision (see § 68 above). 

83.  The Court notes that while this complaint was first submitted to the Court on 10 September 2000, the final decision concerning the case was taken by the Supreme Court on 29 July 1998, that is more than six months earlier. By virtue of Article 35 §§ 1 and 4 of the Convention, the Court is not empowered to entertain this part of the application as it has been lodged out of time.

84.  The first and the third applicants allege a violation of Article 8 of the Convention, which provides as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

85.  The respondent Government submit that there has been no interference with the rights of the first and the third applicants to respect for their “private” or “family” life. In any event, even assuming that the removal constituted an interference with their rights under Article 8, it was compatible with the treaty and Latvian law as confirmed by the judgments of the Latvian courts in the case. Pursuant to Article 2 § 3 of the treaty, all those who were active servicemen of the Russian army on 28 January 1992, including those who were discharged thereafter, were required to withdraw from Latvia. Furthermore, by insisting on the withdrawal of the foreign military officers and their families from Latvia, the authorities sought to protect national security and prevent disorder and crime. The interference thus pursued  legitimate aims and was necessary in a democratic society, in accordance with the second paragraph of Article 8 of the Convention.

86.  The first and the third applicants claim that, on the basis of a wrong interpretation by the Latvian courts of the Latvian-Russian treaty on the withdrawal of Russian troops, they lost their legal status in Latvia and were forced to leave their home and  country regardless of their long-term residence in Latvia, as a result of the political changes rather than their own actions.

87.  According to the Russian Government the removal was incompatible with the treaty and Latvian law as the second applicant had been discharged from the Russian military already since 2 March 1994. The treaty did not  concern persons who had been discharged from the armed forces before its  signature and entry into force. The Russian authorities did not indicate to the Latvian side that the second applicant and his family should be removed under Article 5 § 3 of the treaty. The interpretation by the respondent Government that they should be removed from Latvia as part of the treaty-based withdrawal was therefore wrong. In any event, the interference with the applicants’ rights by way of their removal pursued no legitimate aim within the meaning of Article 8 § 2, and was not necessary in a democratic society.

88.  The Court considers that, having regard to the parties’ observations, this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

89.  The first and the third applicants also allege a violation of Article 14 of the Convention, in conjunction with Article 8, by reason of the difference in statutory treatment between members of families of Russian military officers, who were required to leave Latvia, and other Russian-speaking residents of Latvia, who as former Soviet citizens could obtain residence in the country.  

Article 14 states as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

90.  The respondent Government deny a difference in treatment on the ground of language or ethnic origin of persons. They also maintain that the difference in statutory treatment regarding the Russian army officers and their families was justified as the removal of the foreign military forces and their families from the territory of independent Latvia was essential for the protection of national security, and for the prevention of disorder and crime.

91.  The Court considers that this part of the application is closely related to the above complaint under Article 8 of the Convention and should therefore be examined as to its merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B.  Complaints relating to the procedure regarding the legality of their stay in Latvia

92.  The first and the third applicants allege various procedural irregularities in the course of the proceedings on the legality of their stay in Latvia which, in their view, violated Article 6 of the Convention, which, in so far as relevant, provides as follows:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. … .”

93.  The respondent Government argue that Article 6 is not applicable to the proceedings in question. 

94.  The Court observes that the proceedings concerning the legality of the first and the third applicants’ stay in Latvia pertained exclusively to the domain of public law, and involved no determination of their “civil” rights or of any “criminal charge” against them (see, mutatis mutandis, Maaouia v. France, no. 39652/98, 5.10.2000, §§ 34-41, to be reported in ECHR 2000-X).

95.  It follows that Article 6 is not applicable and that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention under Article 35 §§ 3 and 4 of the Convention.

96.  The first and the third applicants also claim that they had no effective remedy to establish the lawfulness of their stay in, and to prevent their expulsion from, Latvia, in breach of Article 13 of the Convention, which states:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

97.  The respondent Government argue that there is no violation of this provision as their case was reviewed by the domestic courts at three instances.

98.  The Court first points out that Article 13 can be invoked by the applicants in the present case as Article 1 of Protocol No. 7, being the lex specialis for expulsion procedures, does not apply. Indeed, the first and the third applicants could not rely on the more specific guarantees of the latter provision as they were not lawful residents of Latvia. However, they had an arguable claim that their Convention rights had been violated as a result of the loss of their legal status in the Republic of Latvia. Accordingly, Article 13 of the Convention applies in this case.  

99.  The Court reiterates that judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion and extradition, provided that the courts can effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see, mutatis mutandis, Hilal v. the United Kingdom, no. 45276/99, 6.3.2001, §§ 75-77, to be reported in ECHR 2001). 

100.  The Court is satisfied that the domestic courts gave careful scrutiny to the first and the third applicants’ claims at three levels of jurisdiction. It is undisputed that the courts had power to afford them the relief they sought, as confirmed by the judgment of the first instance court quashing the administrative decisions against them.

101.  However, the effectiveness of a remedy under Article 13 does not depend on the certainty of a favourable outcome for an applicant (loc. cit., § 78). The fact that the courts ultimately decided against the first and the third applicants does not indicate, as such, a lack of effectiveness of the proceedings within the meaning of Article 13 of the Convention. 

102.  In the absence of an indication of arbitrariness of the domestic judicial decisions, the Court is led to the conclusion that the first and the third applicants had available to them an effective remedy in relation to the complaints regarding the lawfulness of their stay in Latvia.

103.  Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and it must be rejected under Article 35 § 4.

C.  Complaints relating to the first and the third applicants’ detention on 29 October 1998 and the third applicant’s detention on 16-17 March 1999

104.  The first and the third applicants submit that the conditions attending their detention for one day on 29 October 1998 and the detention of the third applicant for 30 hours on 16-17 March 1999 for failure to comply with the deportation order amounted to a violation of Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

105.  The first and the third applicants claim that the space, ventilation, and sanitary and catering conditions in the illegal immigrants centre were below the threshold permitted under Article 3 of the Convention. This assessment is supported by the Russian Government.

106.  The respondent Government argue that the treatment complained about did not attain the minimum level of severity to attract application of Article 3 of the Convention.

107.  In the Court’s opinion, even assuming that no adequate remedy was available to the first and the third applicants as regards the conditions of their detention (see the § 68 above; also see, mutatis mutandis, Valašinas v. Lithuania (dec.), no. 44558/98, 14.3.2000), they have failed to demonstrate that the impugned treatment attained the minimum level of severity required for that treatment to fall within the ambit of Article 3 of the Convention, given in particular the very short duration of the detention and the absence of a medical document or other evidence attesting a suffering or damage to the health of the first and the third applicants as a result of the treatment complained of (see, mutatis mutandis, Valašinas v. Lithuania, no. 44558/98, 24.7.2001, §§ 100-113, to be reported in ECHR 2001). It follows that this part of the application would in any event be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

108.  Accordingly, this aspect of the case must be rejected under Article 35 §§ 1, 3 and 4 of the Convention.

109.  In their letter of 10 September 2000 the first and the third applicants contend that their above detention amounted to an unjustified interference with their freedom of movement under Article 2 of Protocol No. 4 of the Convention, and that no adequate remedy was available regarding the allegedly unlawful interference with their rights under this provision.

Article 2 of Protocol No. 4 reads as follows:    

“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. … .”

110.  The respondent Government argue that there was no interference with the first and the third applicants’ rights under this provision.

111.  The Court recalls that, under the terms of Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. Where a complaint is made about the absence of an adequate remedy against a particular act which is alleged to be in breach of the Convention, the six-month period runs from the date when that act took place (see, mutatis mutandis, Papon v. France, no. 64666/01, 7.6.2001, to be reported in ECHR 2001). 

112.  The first and the third applicants have alleged the absence of an adequate remedy in respect of an alleged interference with their freedom of movement. However, the acts complained of occurred on 29 October 1998 and 16 to 17 March 1999 respectively, whereas the complaint was submitted to the Court only on 10 September 2000, that is more than six months after the events at issue. In accordance with Article 35 §§ 1 and 4 of the Convention, the Court is not empowered to entertain this part of the application as it was submitted out of time.

113.  The first and the third applicants further claim that the detention violated Article 5 of the Convention, which, in so far as relevant, reads as follows:   

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. …

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. … .”

114.  The respondent Government submit that the arrest was compatible with the provisions of Article 5 of the Convention as the unlawfulness of the first and the third applicants’ stay in Latvia was confirmed by valid decisions of the domestic courts, and there was a valid expulsion order against them. They submit that under the Aliens Act the judicial control of the lawfulness of the detention was exercised by a prosecutor.

115.  The first and the third applicants allege that their arrest was arbitrary and unlawful, and that it could not be and was not reviewed by a court. The Russian Government support this contention.

116.  The Court considers that, having regard to the parties’ observations, this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

D.  Complaints about the consequences of the proceedings concerning their removal from Latvia

117.  The first and the third applicants complain under Article 1 of Protocol No. 1 to the Convention, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

118.  The respondent Government submit that they have made a reservation to Article 1 of Protocol No. 1 regarding certain domestic provisions on restitution and privatisation of property. They submit that in any event there has been no interference with the first and the third applicants’ enjoyment of their “possessions” within the meaning of Article 1 of Protocol No. 1.

119.  The first and the third applicants contend that, as a result of the proceedings concerning the legality of their stay in Latvia and their consequent removal, they were prevented from benefiting from a privatisation scheme concerning the rented flat. They also state that after they left Latvia the flat was broken into and that some of their personal items left in the flat were stolen or destroyed by the authorities. The Russian Government support this complaint. 

120.  The Court considers that it is not necessary to determine whether the Latvian reservation to Article 1 of Protocol No. 1 is applicable to the facts complained of because this part of the application must in any event be rejected for the following reasons.   

121.  The Court recalls that the Convention does not guarantee, as such, a right to acquire property. An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her  “possessions” within the meaning of this provision. “Possessions” can be “existing possessions” or assets, including claims by virtue of which the applicant can argue that he or she has at least a “legitimate expectation” of acquiring effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively after the entry into force of Protocol No. 1 with regard to the State concerned cannot be considered as a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the statutory condition (see, mutatis mutandis, the Malhous v. the Czech Republic (dec.), no. 33071/96, 13.12.2000, to be reported in ECHR 2000-XII).

122.  It is undisputed that the first and the third applicants did not own the flat in question, and that they had no personal entitlement or claim to privatise the flat under the relevant domestic legislation in force after 27 June 1997, which is the date of the entry into force of Protocol No. 1 in regard to Latvia. In relation to the flat, they had no sufficient proprietary interest to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Beyeler v. Italy, no. 33202/96, 5.1.2000, §§ 100-105, to be reported in ECHR 2000-I). It follows that the first and the third applicants’ complaint about their inability to privatise the flat is incompatible ratione materiae with this provision.

123.  To the extent that the first and the third applicants complain that the flat was broken into and that some of the items left behind were stolen or destroyed, the Court notes that they brought no legal proceedings in Latvia regarding these claims. It follows that they have not exhausted domestic remedies as required by Article 35 § 1 of the Convention in this respect.

124.  Accordingly, this aspect of the case must be rejected under Article 35 §§ 1, 3 and 4 of the Convention.

125.  The third applicant also alleges that the authorities breached Article 2 of Protocol No. 1 which provides as follows:

“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

126.  The respondent Government point out that the third applicant graduated from secondary school in 1999.

127.  The third applicant claims that the two periods of her detention on 29 October 1998 and 16-17 March 1999, and the constant fear for her liberty and security as a result of the proceedings concerning her removal from Latvia, prevented her from adequately pursuing her studies at school.

128.  The Court notes that, despite the fact that a deportation order had been issued against the third applicant, she was permitted to complete her secondary education. It has not been established that the two brief periods of  detention on 29 October 1998 and then on 16 to 17 March 1999 constituted a significant obstacle to her ability to pursue the education at school, or that there has been any other interference with her rights under Article 2 of Protocol No. 1 to the Convention.

129.  Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and it must be rejected under Article 35 § 4.

For these reasons, the Court, 

unanimously, decides that the Court is not precluded from entertaining the application because of the fact that the impugned measures were taken in implementation of the Latvian-Russian treaty of 30 April 1994 on the withdrawal of the Russian troops;

by a majority, declares inadmissible the second applicant’s complaints;

by a majority, declares admissible, without prejudging the merits, the complaints of the first and the third applicants under Article 5 of the Convention;

unanimously, declares admissible, without prejudging the merits, the complaints of the first and the third applicants under Articles 8 and 14 of the Convention;

unanimously, declares inadmissible the remainder of the complaints of the first and the third applicants.

Done in English and French, both texts being equally authentic. Note

Paul MAHONEY                  Luzius WILDHABER  
        Registrar       President

Indicate dates of all oral deliberations if there were more than one.


If there was a partial decision where part of the complaints were already declared inadmissible.


SLIVENKO AND OTHERS v. LATVIA DECISION


SLIVENKO AND OTHERS v. LATVIA DECISION