Постановление ЕСПЧ от 29.03.2022

<Дело Рахмоновы (Rakhmonovy) против России> (жалоба № 296/18) [англ.]

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<*> This judgment is final but it may be subject to editorial revision.

In the case of Rakhmonovy v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

María Elósegui , President,

Andreas Zünd ,

Frédéric Krenc, judges,

and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 296/18) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») on 14 December 2017 by an Uzbekistani national Mr Abdulfoiz Boypulatovich Rakhmonov and a Russian national Ms Dilshoda Fazylboyevna Rakhmonova, who were born in 1991 and 1993 respectively («the applicants»). Prior to his expulsion from Russia, the first applicant lived in Perm; the second applicant continues to live there. The applicants were represented by Mr B.I. Ponosov, a lawyer practising in Ocher;

the decision to give notice of the application to the Russian Government («the Government»), initially represented by Mr G. Matyushkin and Mr M. Galperin, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr M. Vinogradov;

the parties' observations;

Having deliberated in private on 8 March 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The first applicant lived in Russia since December 2013, when he married the second applicant, with whom he has two minor children. The second applicant and the applicants' children are Russian nationals. The applicants' family lived in Perm.

2. On 17 November 2017 the police took the first applicant to the Kirov District Court in Perm as his residence permit in Russia had expired on 28 October 2017. His application for its renewal had been rejected by the authorities on 27 October 2017 as the actual place of the first applicant's residence in Perm did not match the one he had indicated in his application for the renewal.

3. At the hearing the first applicant stated that his wife, the second applicant, and their two minor children were Russian nationals and that his expulsion from Russia with the automatic five-year re-entry ban would disrupt their family life. On the same date, with reference to the provisions of the Russian Federal Code of Administrative Offences, the court found him guilty of violation of the immigration regulations. It fined him 2,000 roubles (about 30 euros) and ordered his administrative removal from Russia with the five-year re-entry ban. As for the allegations of the disproportionality of the sanction and its disruptive effect on the applicants' family life, the court limited its examination to the statement «having two minor children in the Russian Federation does not provide Mr Rakhmonov with the right of stay [in the country]».

4. On 28 November 2017 the Perm Regional Court upheld that decision on appeal, having left without examination the arguments of disproportionality of the sanction and its detrimental effect on the applicants' family life.

5. On 4 December 2017 the first applicant was subjected to removal from Russia.

6. On 28 February 2018 the Perm Regional Court refused further appeal against the removal order.

THE COURT'S ASSESSMENT

Alleged violation of Article 8 of the Convention

7. The applicants complained that the first applicants' removal with the five-year re-entry ban was a disproportionate sanction which disrupted their family life.

8. According to the Government, the applicants had failed to exhaust domestic remedies as they should have lodged a cassation appeal with the Supreme Court of Russia. The applicants disagreed.

9. The Court observes that the applicants exhausted the relevant remedies under the Code of Administrative Offences (see Smadikov v. Russia (dec.), no. 10810/15, 31 January 2017). It therefore rejects the Government's objection and finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

10. For relevant general principles see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014, and Guliyev and Sheina v. Russia, no. 29790/14, §§ 46 — 52, 17 April 2018.

11. The Government's submission that the removal of the first applicant was a necessary and proportionate measure is not substantiated by the documents submitted. The case file shows that the domestic courts neither carefully balanced the interests involved — including the best interests of the applicants' minor children — nor analysed the proportionality and necessity of the sanction to the aim pursued and its impact on the applicants' family life. Therefore, the proceedings in which the decision on the first applicant's removal was taken and upheld fell short of the Convention requirements.

12. Accordingly, there has been a violation of Article 8 of the Convention in respect of the applicants.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses.

14. The Government submitted that the claims should be dismissed as excessive and unsubstantiated.

15. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants EUR 3,750 each in respect of non-pecuniary damage and EUR 2,000 for costs and expenses, plus any tax that may be chargeable on those amounts.

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,750 (three thousand seven hundred and fifty euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 29 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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