BATENKOV v. RUSSIA

 
Communicated on 28 May 2019
 
THIRD SECTION
Application no. 51160/18
Nikolay Nikolayevich BATENKOV
against Russia
lodged on 19 October 2018
STATEMENT OF FACTS
The applicant, Mr Nikolay Nikolayevich Batenkov, is a Stateless national, who was born in 1988 and lives in Kichibukhino in the Yaroslavl Region.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A.  The circumstances of the case
1.  Background information
The applicant was born in Kazakhstan in 1988. At some point prior to 2000 he moved with his family to Russia, where his parents subsequently obtained the Russian nationality, while the applicant was recognised by the local authorities as a stateless person. He resided in Russia on the basis of temporary residence permits. The last permit issued to the applicant was valid until 23 April 2015.
In 2010 the applicant married a Russian national Ms Yu.B. with whom he has two sons: A., who was born in 2007 and D., who was born in 2010. The applicant and wife also have another child, the one from her previous marriage. All of the applicant’s children are Russian nationals.
According to the applicant, he has no ties with Kazakhstan, he is ethnically Russian and does not speak Kazakh.
2.  The exclusion order against the applicant
On 19 May 2015 the applicant was arrested and on 9 October 2015 was sentenced to two years and eight months of imprisonment for aggravated theft, which was qualified under the national legislation as a serious crime.
On 30 November 2016 the Russian Ministry of Justice issued decision no. 7982 on the undesirability of the applicant’s presence (residence) in Russia (“the exclusion order”), due to his criminal conviction, without indicating the term of his exclusion, which made it the exclusion order of unlimited duration.
3.  The applicant’s appeals against the exclusion order
The applicant appealed, through his legal counsel, against the exclusion order to the Pereslavskiy District Court in the Yaroslavl Region (“the District Court”) complaining, of a violation of his right to a family life and asking to declare it unlawful. He pointed out that his family life was entirely in Russia, as his wife and children, as well as his parents lived there and were Russian nationals. He had neither relatives, nor property in Kazakhstan. He considered Russia to be his homeland as he was a native speaker of Russian. He stressed that his conviction in 2015 was his only criminal offence, that he had fully compensated the damage caused, demonstrated exemplary behaviour in prison and repented for his crime. He stressed that he did not represent any danger to the public and his exclusion from Russia for unlimited duration of time would completely disrupt his family life.
On 21 September 2017 the District Court upheld the exclusion order. It stated, inter alia, as follows:
“... the applicant’s arguments concerning the absence of either the Kazakh citizenship, relatives or property there [in Kazakhstan] do not have legal significance. Since 2006, when Mr Batenkov attained the age of majority, he has failed to take due steps to obtain the Russian nationality. Being a stateless person, he violated the rules of residence and committed a serious crime. A month prior to his arrest on 19 May 2015 the authorised term of his presence in Russia had expired (on 23 April 2015). He failed to take steps to legalise his status in the Russian Federation. Mr N. Batenkov is convicted for commission of three episodes of the crime (two episodes were complete and one – attempted) which showed that he openly disregarded the accepted norms of social behaviour, had firm antisocial inclinations, which in its totality represented real threat to the public order and lawful interest of Russian citizens ...”
The applicant appealed against the above decision to the Yaroslavl Regional Court (the Regional Court), stating, inter alia, that the first‑instance court had failed to examine properly his allegations of a violation of his right to respect for his family life. In particular, the District Court had disregarded the fact that the execution of the exclusion order would make it impossible for him to maintain a family life with his wife and children and that there had been no proof that the threat he posed to the public outweighed his right to respect for family life.
On 5 December 2017 the Regional Court upheld the decision of the District Court. The decision stated, inter alia, the following:
“... contrary to the applicant’s mistaken opinion, the criteria for assessment of [his] threat to the public order is the existence of non-expunged conviction for serious crime.
In such situation, Mr Batenkov’s family status and his family ties do not lead to unconditional annulment of the exclusion order as the interest of the majority of the population have priority. Their security could not depend on the foreigner’s close family ties in Russia or the lack thereof. Besides, if such person has relatives in the Russian Federation, it does not absolve him from the duty to comply with the laws of the Russian Federation and responsibility for failure to do that ...”
On 12 February 2018 the Regional Court took up the applicant’s cassation appeal against the exclusion order and dismissed it by refusing to examine it further on the merits. The court stated, inter alia, that the exclusion order had been issued in full compliance with the domestic legislation and that the applicant’s arguments concerning an alleged violation of his right to respect for his family life were unsubstantiated.
On 28 April 2018 the Administrative Cases Chamber of the Russia Supreme Court rejected the applicant’s further appeal and refused to examine it on the merits.
4.  Relevant information and subsequent developments
On 11 January 2018 the deputy head of the Yaroslavl Regional Department of the Interior issued deportation order against the applicant, according to which the latter was to be deported “outside of the Russian Federation” upon his release from prison on 18 January 2018.
On 18 January 2018, shortly after his release from prison, the applicant was detained in view of deportation and placed into the centre for detention of foreign nationals in the Yaroslavl Region.
On 5 March 2018 the Yaroslavl Regional Department of the Interior ordered, in view of the applicant’s deportation, the procedure of his readmission to Kazakhstan.
In April and then in May 2018 the Kazakh authorities informed their Russian counterparts that the applicant was not a Kazakh national, had never applied for the Kazakh nationality and that he had no close relatives there. Therefore, his readmission to Kazakhstan was impossible.
On 15 June 2018 the Tutayev Town Court in the Yaroslavl Region ordered the applicant’s release in view of the lack of destination for his deportation.
According to the applicant, he remains in Russia and due to the unlimited duration exclusion order, he has been unable to legalise his immigration status, has no identity documents and therefore cannot be officially employment and duly provide for his family.
B.  Relevant domestic law
For the relevant domestic law and practice see Gablishvili v. Russia (no. 39428/12, §§ 33-37, 26 June 2014), and Muradeli v. Russia (no. 72780/12, §§ 45-55, 9 April 2015).
COMPLAINT
The applicant complains under Article 8 of the Convention that the unlimited duration exclusion order issued against him following his criminal conviction is unlawful and arbitrary and violates his right to respect for family life.
QUESTIONS TO THE PARTIES
1.  What was the scope of review of the domestic courts which examined the applicant’s appeal against the exclusion order of unlimited duration? Did the courts make a balancing exercise between the need to maintain public order and the applicant’s right to respect for his family life?
2.  Did the exclusion order constitute an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006-XII and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-09, 3 October 2014)?
3.  The Government are invited to inform the Court whether any remedial measures have been taken in respect of the applicant in order to regularise his situation from the standpoint of Russian immigration law, as well as to provide examples of such measures successfully taken in similar cases (Kim v. Russia, no. 44260/13, §§ 73-74, 17 July 2014).

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