K.M. and Others v Russia - 46086/07 [2010] ECHR 767 (29 April 2010)

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The European Court of Human Rights (First Section), sitting on 29 April 2010 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

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

The applicants are Ms M.H., who was born in 1963, Ms M.D., who was born in 1998, and Mr L.C., who was born in 1965. The applicants are Chinese nationals. The first and the third applicants are married; they are the parents of the second applicant. Prior to the deportation of the first two applicants to China in March 2007, the applicants lived in St. Petersburg, Russia. After that the third applicant was resettled in Sweden by the United Nations High Commissioner for Refugees (UNHCR).

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

According to the applicants' submission, the first applicant is a Russian Chinese interpreter. She married the third applicant in 1987. The applicants furnished the Court with a certified copy of their marriage certificate. Their daughter, the second applicant, was born in July 1998. The third applicant had lived in St. Petersburg since 1997; he had a valid work permit.

Between 1992 and 1998 the first applicant worked in St. Petersburg, and then from September 1998 to July 1999 she was in China. In August 1999 she returned to St. Petersburg. Her residence permit was valid until 25 August 2003.

Since 1997 the first applicant has been a follower of the Falun Gong (also spelled as Falung Gong and Falung Dafa) movement persecuted by the Chinese authorities. In March 2003 she went to Switzerland to take part in an international conference of Falun Gong. There she learnt that her name had been placed by the Chinese authorities on a “blacklist” as an activist of the movement.

In April 2003 the first applicant was interviewed at the UNHCR Office in Moscow. In October 2003 she was granted refugee status under the mandate of the UNHCR.

The Government submitted that the first and second applicants had been registered by the Russian authorities as persons seeking asylum in Russia. The third applicant had never been registered as an asylum seeker; he was in Russia on a valid work visa. The first applicant has never applied for authorisation to remain in Russia as his spouse. The Government further stated that the first and third applicants were not married and that the third applicant was not the father of the second applicant. They referred to a copy of the second applicant's birth certificate which did not provide information about her father but simply stated: “Russian”. In addition, the third applicant was never registered as the second applicant's father with the Russian immigration authorities.

On 20 August 2003 the first applicant applied to the Department of Migration Affairs of the Ministry of the Interior in St. Petersburg (the Department of Migration Affairs) for asylum. The asylum request also included the second applicant, her daughter. In her request the applicant stated that she was not being sought by the authorities in China, that she did not follow any religion and that her relatives had not been arrested by the Chinese authorities. At the same time she submitted that she could not return to China due to the persecution of members of Falun Gong, even though she had not played any role in the movement.

On 30 April 2004 the Department of Migration Affairs rejected her request. The decision comprised eleven pages and provided a detailed explanation of the reasons for the refusal to grant refugee status. In particular, it stated that the applicant had been inconsistent in her submissions concerning the circumstances under which she had learnt that her name had been put onto the authorities' blacklist, having provided four different versions of the events; that her husband, who was also a follower of the same movement, had never applied for asylum and that she had submitted her request for asylum when her permission to remain in Russia was about to expire.

On 31 May 2004 the first applicant appealed against the refusal to the Kuybyshevskiy district court. On 21 November 2005 the district court dismissed her appeal and on 29 June 2006 the St. Petersburg City Court upheld the decision of the first-instance court.

On 18 November 2005 the first applicant issued an official authority form authorising a number of persons, including Ms. Oshirova, to represent her in all legal proceedings.

On 30 July 2007 Ms Oshirova, on the basis of the form of 18 November 2005, authorised Ms Tseytlina to represent the first applicant in all legal proceedings. It appears that the first applicant was not aware of this.

On 4 September 2007 the first applicant cancelled the authority form of 18 November 2005 (see below).

On 29 June 2006 the first applicant lodged a request for temporary asylum with the Department of Migration Affairs. On 18 September 2006 her request was refused. The first applicant appealed against the decision to the Dzerzhinskiy district court of St. Petersburg (“the Dzerzhinskiy district court”). On 6 December 2006 the court upheld the refusal to grant temporary asylum. On 12 February 2007 the court's decision entered into force.

The first applicant appealed against that decision but did not pay the court fee. On 21 February 2007 the district court ordered a stay of the appeal proceedings. On 14 March 2007 the first applicant had applied to the same court with a request for the time-limit for submitting an appeal to be restored. The district court scheduled a hearing for the restoration of the time-limit for 30 March 2007 and summoned the first applicant to that hearing.

On 30 March 2007 the district court rejected the claim concerning reinstatement of terms for appeal against its decision of 6 December 2006. Meanwhile, on 13 March 2007 the Department of Migration Affairs decided to deport the first applicant.

On 28 February 2007 the Department of Migration Affairs issued a decision to deport the first and second applicants from Russia, which was confirmed by the Federal Migration Service (the FMS) on 13 March 2007.

On 28 March 2007 officers of the FMS arrived at the applicant's flat and took the first and second applicants to the airport for deportation. They were put on a plane to Beijing and left Russia the same day.

On 9 April 2007 (in the submitted documents the date was also referred to as 6 April 2007) the third applicant appealed to the Dzerzhinskiy district court against the deportation order. On 13 April 2007 the court delivered two rulings. The first one concerned the court's refusal to examine the appeal as it had been lodged with a court which did not have jurisdiction; the second one stated that the third applicant was not empowered to submit complaints on behalf of the first and second applicants.

On 5 June 2007 the St. Petersburg City Court quashed these two rulings and instructed the court to review these complaints in a single set of proceedings.

On 28 July 2007 the third applicant asked the district court to examine his appeal against the deportation in his absence.

On 5 September 2007 (in the submitted documents the date was also referred to as 4 September 2007) the first applicant revoked the authority form issued for her representatives Ms Tseytlina and Ms Oshirova and requested that all legal proceedings initiated on her behalf, including those concerning the deportation, be discontinued. The Government furnished the Court with a certified translated copy of the request to this effect, no. 32414, dated 5 September 2007. The text of the document, which was certified by a notary in China, included the first applicant's address in Harbin, China and the following text:

“...I declare that hereby I am cancelling the authority form of 18 November 2005 for the representation of my interests in civil and other proceedings in courts, governmental and other institutions...

I request that the appellate proceedings initiated by my representatives in connection with the deportation decision of the Russian Federal Migration Service and the actions taken by the Department of Migration Affairs in connection with my deportation be discontinued.

I understand the consequences of the refusal to continue the above proceedings...”

It appears that on 9 November 2007 the Dzerzhinskiy district court discontinued the proceedings initiated by the third applicant and on 20 November 2007 this decision became final.

On 23 November 2007 the applicants' representative Ms Tseytlina lodged the third applicant's request dated 22 November 2007 for postponement of a hearing scheduled for 23 November 2007 as the third applicant had not been able to properly prepare the authority form for Ms Tseytlina and Ms Oshirova as his passport had been in the process of being issued.

On the same date, 23 November 2007, the Dzerzhinskiy district court discontinued the proceedings initiated by the third applicant, stating that the proceedings did not concern his legitimate rights. On 3 December 2007 the applicant's representatives appealed against this decision.

On 15 January 2008 the St. Petersburg City Court forwarded the applicants' case to the Dzerzhinskiy district court to determine the right of the third applicant to appeal against the decision of 23 November 2007 as he had failed to submit any documents authorising Ms Tseytlina and Ms Oshirova to participate in the appellate proceedings.

It is unclear whether the third applicant was able to submit any documents authorising Ms Tseytlina and Ms Oshirova to participate in the appellate proceedings and if not whether the proceedings have been discontinued.

The applicants submitted that the first applicant's relatives in China had come to the airport to meet her; however, she and the second applicant had not come out and had not been on the list of passengers. The second applicant had later been taken by the police to the relatives' house in Harbin, China. It appears that the first applicant had been arrested upon arrival and released after nine days. No information concerning the time, the place of the arrest or the authority effecting it, the detention facility, its location or any other details pertaining to these events were provided to the Court.

The applicants further submitted that since their return to China the first and the second applicants had been living with their relatives. According to their submission, the first applicant's passport had been taken away from her, she had been instructed to inform the police about her movements and put under pressure to renounce the practice of Falun Gong. The first applicant asked the third applicant not to call her because it put her relatives at risk. No details pertaining to this part of the applicants' submission had been submitted to the Court.

For a summary of the relevant provisions see Y. v. Russia (no. 20113/07, 4 December 2008).

1. The first applicant complained under Article 3 that her deportation to China put her at real risk of being subjected to inhuman and degrading treatment. She stresses that she had been granted refugee status by the UNHCR and that the Russian authorities had breached a number of international and domestic legal norms by deporting her to China, especially in view of the pending court procedure concerning her asylum request.

2. The applicants submitted that the way in which the deportation had been carried out constituted inhuman and degrading treatment, especially for the second applicant, a minor, who had been born and lived her life in Russia. The applicants argued that the procedure of deportation set up by the instruction of the Ministry of the Interior was incompatible with the requirements of Article 3 of the Convention, since it allowed for no procedural guarantees for the person subjected to deportation and no judicial control of the procedure.

3. The applicants alleged a violation of Article 5 § 1 (f) on account of the first and second applicants' allegedly illegal detention prior to and during the deportation to China, that is for about eighteen hours. They stressed that during that time they could not move freely, could not contact the third applicant or their counsel and were under the control of the officers who were enforcing the deportation.

4. The applicants stated that the decision to deport the first and the second applicants constituted an unjustified interference with their family life, in so far as it led to the separation of the nuclear family. In particular, the applicants argued that the child's deportation from Russia, where she had been born, spent the majority of her life and attended school, was not necessary because her father remained in the country legally. This measure was not, in their view, necessary in a democratic society and was a breach of the guarantees of Article 8 of the Convention.

5. The applicants claimed a violation of Article 13 on account of absence of effective domestic remedies against the above alleged violations of Articles 3 and 5.

The Government contended that the first applicant had revoked the authority form for her representatives and therefore the latter were not authorised to represent her and the second applicant before the Court.

The applicants' representatives submitted that the first applicant must have revoked it under pressure and that in any event this cancellation had concerned only the domestic proceedings and had no bearing in the Strasbourg proceedings. They further referred to the difficulties of communicating with the first applicant in China.

As for the authority form, the Court notes that the first applicant has never been in contact with the Court directly, and that she introduced her application through her representative Ms Tseytlina on 27 September 2007. However, the general legal authority form submitted with the application dated 18 November 2005 had been officially revoked by the first applicant on 5 September 2007, before the application was lodged with the Court. No other documents confirming the authority to directly represent the first applicant at the Court had been produced. As for the supposed pressure on the first applicant in China to revoke the authority form, the case file contains no evidence or details concerning the alleged pressure on the applicant in connection with her application to the Court. There is nothing to suggest that the first and second applicants had been personally affected by the situation of Falun Gong practitioners in China (see, for a similar situation, Y. v. Russia, cited above, §§ 86-91) and/or that the Chinese authorities had somehow affected their ability to communicate with their representatives in Russia.

The Court considers it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act. In the present case the file contains no document in which the first applicant herself has indicated that she wished Ms Tseytlina to lodge an application with the Court on behalf of her and her daughter. Consequently, in the circumstances of the case the application in respect of the first and the second applicants' complaints must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009).

2. The third applicant's locus standi in respect of his complaint under Article 8

The Government challenged the third applicant's capacity to complain under Article 8 of the Convention. They submitted that there were no documents proving that he was in fact the first applicant's husband and the second applicant's father and therefore he had no standing in the Strasbourg proceedings.

The applicant contested this objection. He submitted that he was indeed the first applicant's husband and the second applicant's father.

The Court notes that the case file contains documents confirming that the first and the second applicants are married and that the third applicant is their daughter, and that the veracity of these documents was not challenged by the Government. Therefore, the Government's objection in the respect of the third applicant's standing is dismissed.

The Government alleged that the applicants' failure to inform the Court about the cancellation by the first applicant of the authority form amounted to an abuse of the right of application within the meaning of Article 35 § 3.

The Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue statements (see Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 53-54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; and Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X).

Having regard to the statements made by the applicants in the present case, the Court does not consider that they amount to an abuse of the right of petition. Accordingly the Government's objection is dismissed.

The third applicant complained that the first and the second applicants' deportation to China had violated his right to respect for family life. He relied on Article 8 of the Convention, which provides:

“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.”

The Government asked the Court to declare this part of the application inadmissible. They pointed out that the third applicant had failed to exhaust domestic remedies as he could have sought a residence permit for the first applicant under the Foreign Nationals' Act.

The applicant considered that the Government's argument of non exhaustion essentially meant that he had de facto waived his right to apply for regularisation. He disputed that the situation was comparable to a waiver.

The first issue is whether domestic remedies have been exhausted. However in the present case the Court finds it unnecessary to examine whether the third applicant has complied with the requirement of exhaustion of domestic remedies since the application is in any event manifestly ill founded for the following reasons.

By way of introduction the Court notes that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple's choice of country for their matrimonial residence or to authorise family reunion on its territory (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996-I). However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life, as guaranteed by Article 8 § 1 of the Convention (see Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001 IX).

Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (for instance, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000).

Turning to the present case, the Court notes that the applicants, all of them Chinese nationals, were aware that their permission to remain in Russia was temporary. The first and third applicants had been married since 1987; they had spent just a few years living in Russia and had no family members there. The applicants have relatives in China with whom the first and the second applicants have been living in Harbin. In these circumstances, there are no special reasons to assume that the applicants could not establish their family life and matrimonial home outside Russia (see, by contrast, the Moustaquim v. Belgium, 18 February 1991, § 45, Series A no. 193). As for the second applicant, it is true that the first and the second applicants' nine-year-old daughter had lived her life mostly in Russia. However, her age did not preclude her from being able to integrate into the local society in China, taking into account that she spoke the language, she had moved there with her mother, that she had other relatives in the country and no remaining family in Russia (see, by contrast, Amrollahi v. Denmark, no. 56811/00, § 41, 11 July 2002).

Further, the Court observes that the first applicant's request for temporary asylum was rejected on 18 September 2005 and that since then she had no legal grounds entitling her to remain in Russia, except for the pending appeal against the decision of the Migration Department. Nonetheless, the applicants had never sought to obtain a residence permit for the first applicant as the spouse of a legitimately residing foreign national and therefore the question of whether she would have received such a permit remained open.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court has examined other complaints submitted by the third applicant under Article 13 and Article 1 of Protocol No. 7. However, having regard to all the material in its possession, it 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 this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> K.M. and Others v Russia - 46086/07 [2010] ECHR 767 (29 April 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/767.html Cite as: [2010] ECHR 767