In the case of Samsonnikov v. Estonia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić, President,
PeerLorenzen,
KhanlarHajiyev,
MirjanaLazarova Trajkovska,
JuliaLaffranque,
Linos-AlexandreSicilianos,
ErikMøse, judges,
andAndré Wampach, Deputy Section Registrar,
Having deliberated in private on 12 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
52178/10) against the Republic of Estonia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Russian national, Mr Dmitry Samsonnikov (“the
applicant”), on 10 September 2010.
The applicant was represented by Ms M. Issaeva
and Ms M. Suchkova, lawyers practising in Moscow. The Estonian
Government (“the Government”) were represented by their Agent, Ms M. Kuurberg,
of the Ministry of Foreign Affairs.
The applicant alleged, in particular, that his
expulsion from Estoniahad violated his right to respect for his family and
private life guaranteed under Article 8 of the Convention.
On 30 March 2011the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
The Russian Government, having been informed by
the Registrar of their right to intervene (Article 36 § 1 of the Convention),
indicated that they did not intend to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1978. He currently
lives in St Petersburg, Russia.
A. Factual background
The applicant was born in Estonia and had not permanently resided in any other country until his expulsion from Estonia.
The applicant completed his basic education in Tallinn in 1993 in a school where the language of instruction was Russian. His knowledge
of Estonian was graded “4” (“good”) at school.
In 1994 the applicant’s mother died in Moscow. She was buried in Russia.
From 20 June 1995 until 20 June 2000, from 5 May
2003 until 4 May 2005 and from 5 May 2005 until 4 May 2008 the applicant
had temporary residence permits in Estonia.
In the meantime, in 1998, the applicant applied
for, and was granted (as a citizen of the former USSR), citizenship of the Russian Federation. According to the applicant, in the late 1990she attempted to acquire
Estonian nationality. However, he never made a formal request to that effect.
The applicant has three criminal convictions in Estonia:
- on 27 January 1997 the Tallinn City Court convicted him of
aggravated hooliganism (he had beaten a person in the street and later broken a
door of an apartment and beaten its inhabitants together with two
co-defendants), aggravated theft and attempted theft; he was sentenced to two
and a half years’ imprisonment, suspended;
- on 26 September 2000 the Tallinn City Court convicted him of
attempted aggravated theft and violence against a police officer (he had
punched the officer in the face); he was again sentenced to two and a half
years’ imprisonment, suspended;
- on 22 March 2001 the Tallinn City Court convicted him of
attempted aggravated theft; he was given eight months’ imprisonment. Taking
into account the earlier, unserved sentence, the court set the compound
sentence to be served by the applicant at two years and seven months’
imprisonment. It was noted in the judgment that in the course of 2000 the
applicant had been punished seven times for administrative offences of petty
theft and consumption of narcotic substances.
The applicant was released on 4 September 2003
after serving his prison term.
From 2006 until 2009 the applicant was given
seven punishments for misdemeanours (illegal consumption or possession of
narcotic drugs and travelling on public transport without a ticket).
The applicant is HIV-positive and suffers from
hepatitis C.
B. Proceedings in Sweden
In the meantime, on 6 December 2007, the
applicant was arrested in Sweden on suspicion of smuggling of drugs.
On 7 March 2008 he was convicted of aggravated drug
smuggling by the District Court of Helsingborg in Sweden. According to the
judgment he smuggled more than 400 Subutex pills over the Swedish border. He
was sentenced to two years and four months’ imprisonment and began serving his
sentence in Salberga Prison in Sweden. In addition, the District Court decided
that the applicant was to be expelled from Sweden and to be subsequently
prohibited from entering the country before 7 March 2015. The court was unable
to verify the applicant’s argument that he had a daughter in Sweden since he declined to disclose the alleged daughter’s or her mother’s personal
details such as their names and addresses.
The applicant appealed against the District
Court’s judgment. However, since he subsequently withdrew his appeal, the Scania
and Blekinge Court of Appealstruckthe case out of its list of caseson 24 April
2008.
In February 2009 the applicant requested the
reopening of his case in Sweden,arguing that because of the prohibition on
entry imposed by the Swedish court the Estonian migration authorities had refused
to extend his residence permit in Estonia. He requestedthe removal of the
deportation order from the judgment.
On 20 April 2009 the Scania and Blekinge Court
of Appeal refused to reopen the case. On 26 May 2009 the Swedish Supreme Court
refused the applicant leave to appeal against that decision.
On 10 July 2009 the applicant was released from
prison in Sweden and deported to Estonia.
In the case file there are also copies of
printouts from the Schengen Information System, according to which the
applicant was to be refused entry or stay in the Schengen area until 20
September 2010 (this notice was entered into the system on 20 August 2007) and
later until 17 July 2011 (entered into the system on 17 July 2008). It appears
that on 24 August 2009the Swedish authorities extended the prohibition on the
applicant’s entry to the Schengen area until 24 August 2012.
C. Proceedings in Estonia and further developments
In the meantime, on 11 February 2008, while in
custody in Sweden, the applicant applied for an extension of his residence and
work permit from the Estonian Citizenship and Migration Board (Kodakondsus-
ja Migratsiooniamet – hereinafter “the Board”).
By a letter of 10 September 2008 the Board
informed the applicant that he would be denied an extension of his residence
and work permit. He was requested to present his opinion and objections. In
reply, the applicant asked forthe Board’s letter to be translated into English
or Russian since he did not have sufficient command of Estonian and being in
prison he could not have the Board’s letter translated. On 30 September 2008
the Board sent the applicant a Russian translation of the letter. In his
objections sent to the Board the applicant reiterated his request for a
residence permit, saying that he wished to return to Estonia after his release
from prison in Sweden. He submitted that he had been born and raised in Estonia and that he had his father and brother in that country. In spite of his Russian
nationality he had never lived in Russia and had no place of residence or
relatives there. He was seriously ill and the treatment he would continue to
need could be carried out only in Estonia. His father also needed his support
because of his age.
On 18 November 2008 the Board refused to extend
the applicant’s residence and work permit. It had regard to the nature and
severity of the offences committed by the applicant (already mentioned above),
the fact that his criminal record had not expired and that an alert had been
issued for the purposes of refusing him entry into Schengen countries, as well
as the fact that he was serving a prison sentence in Sweden. The Board
considered that although the applicant had been born in Estonia and his father and brother lived in Estonia, he did not have a family life in that country.
It further considered that the applicant could continue his treatment in Russia. The Board found no exceptional circumstances that required extending his residence
permit. In conclusion, the Board considered that the refusal to extend the
applicant’s residence permit was a proportionate measure for pursuing the aim
of protecting the constitutional rights of others.
The applicant lodged a complaint against the
Board’s refusal with the Tallinn Administrative Court. He argued that the
decision of the Board had been insufficiently reasoned and that the refusal
infringed his right to respect for family life. At the Administrative Court’s
hearing the applicant was represented by his father and a legal advisor.
By a judgment of 28 April 2009 the Tallinn Administrative Court dismissed the applicant’s complaint. It found that the Board’s
refusal was lawful. The court agreed with the Board’s finding that the
applicant’s criminal behaviour posed a threat to public safety. Furthermore,
the prohibition on entry into the Schengen area imposed by the Swedish
authorities also extended to Estonia.
The Administrative Court considered that the
Board’s decision did not infringe on the applicant’s right to respect for
family life. It noted that the applicant was divorced and had no partner or
children. His father lived with his partner at the latter’s residence. The
applicant’s brother had a family of his own. The court concluded that the
applicant did not have a family life to be protected in Estonia. The court also dismissed the applicant’s arguments related to the advanced age of
his father who was sixty-five years old, to the applicant’s illness and the
fact that he had been born in Estonia. It found that there were no exceptional
circumstances to justify the extension of his residence permit.
On 10 July 2009 the applicant was transferred
from Sweden to Estonia.
On1 August 2009 the applicant began living with
V., a person of undetermined citizenship who held a permanent residence permit
in Estonia, as his partner.
On 16 September 2009 the applicant sought
permission from the Board to be allowed, by way of exception, to submitan
application for a residence permit with the Board directly instead of
submitting it to a foreign representation of Estonia. On 30 September 2009 the
Board refused to grant the permission and declined to consider his application for
a residence permit.
On 27 October 2009 the Tallinn Court of Appeal
heard the applicant’s appeal against the Tallinn Administrative Court’s
judgment. The Board’s representative submitted that based on humanitarian
considerations the applicant’s expulsion procedure had not been initiated
because of the ongoing court proceedings concerning his residence permit.
On 12 November 2009 the Tallinn Court of Appeal
upheld the Administrative Court’s judgment of 28 April 2009.It noted, inter
alia, that under section 12(4-1) of the Aliens Act (Välismaalaste seadus)
a temporary residence permit could be issued, by way of exception, to an alien in
respect ofwhom a prohibition onentry into the Schengen area had been issued.
The Board and the Administrative Court had considered whether making such an
exception had been justified in the present case but had found that this had
not been warranted in the circumstances. The Court of Appeal also noted that
the applicant had not turned to the Swedish authorities in order to have the
period of validity of the prohibition onentry into the Schengen area amended as
stipulated by the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse
ja sissesõidukeelu seadus).
The Court of Appeal further noted that the
refusal to extend the applicant’s residence permit during his imprisonment in Sweden had had no bearing on his private life because the one-year residence permit that was usually
granted in such circumstances would have expired before the end of the
applicant’s prison term in Sweden. During the time of the service of the prison
sentence the applicant’s right to private life had been restricted by the
execution of the sentence and it had not been dependent on the granting or
refusal of a residence permit in Estonia.
The Court of Appeal also noted that the Board
had considered the possibility of the applicant’s early release from prison and
his expulsion in such case. Itagreed with the Board’s preliminary assessment
that the applicant’s expulsion was not excluded and that he could reside in the
country of his nationality.
On 10 March 2010 the Supreme Court declined to
hear the applicant’s appeal.
By a letter of 22 March 2010 the Police and
Border Guard Board (Politsei- ja Piirivalveamet) askedthe applicant to come
to its offices on 31 March 2010 so that the circumstances of his stay in
Estonia could be clarified and an order (ettekirjutus) be made.
On an unspecified date the applicant leftEstonia for Denmark where he stayed for four months, according to a statement fromV. to the Court.
He was then arrested in Denmark and on 9 July 2010the Danish authorities
made a request to their Estonian counterparts concerning the applicant’s
deportation to Estonia. However, his deportationon 13 July 2010 as agreed by
the authorities did not take place since the applicant had escaped from them
while inCopenhagen. He arrived in Estonia on 20 July 2010 via a passenger port.
On 29 January 2011 the applicant was arrestedby
the police. He was under the influence of narcotic drugs and presented an
identity card of his brother, who was an Estonian national. The applicant was
taken into custody. On 28 February 2011 he was fined for a breach of the
Narcotic Drugs and Psychotropic Substances and Precursors thereof Act (Narkootiliste
ja psühhotroopsete ainete ning nende lähteainete seadus).
In the meantime, on 31 January 2011 the Police
and Border Guard Board issued an expulsion order (ettekirjutus Eestist
lahkumiseks) in respect of the applicant. The order was immediately
enforceable on the basis of section 7-2(2)(3) of the Obligation to Leave and
Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus).
In addition, a three-year prohibition on entry was imposed on the applicant.
Pursuant to sections 7‑1(2) and 7-1(3) of the above Act, the
expulsion order was given by means of a standard form and it only revealed its
legal basis without containing the factual basis, related circumstances or
relevant considerations.
On the same day the Tallinn Administrative Court
authorised the applicant’s detention in a deportation centre until his
expulsion, but for not more than two months. This authorisation was later
extended until 31 May 2011.
The applicant challenged the expulsion order and
prohibition on entry before the Tallinn Administrative Court.
In May 2011 the applicant made inquiries by
phone and electronic mail to a public notary about the possibility to get
married while in detention.
On 26 May 2011 the applicant applied for an
interim measure and requested that his expulsion be stayed. On the same day the
Tallinn Administrative Court dismissed the request. An appeal was dismissed
by the Tallinn Court of Appeal on 7 June 2011.
In the meantime, on 27 May 2011 the applicant
was expelled to Russia. He stayed with a distant relative in Sebedzh, Pskov
Region, for some weeks and then lived on the street for some time. His request
for medicines against HIV was granted by the local authorities although one of
the medicines he had used in Estonia was not available in Russia. In September 2011 he moved to St Petersburg where he was able to find temporary
non-registered accommodation and unofficial employment.
In the meantime, on 8 June 2011, the applicant’s
lawyer sought to amend the complaint lodged with the Tallinn Administrative
Court. She challenged the applicant’s actual expulsion and requestedthat the
State be obliged to allow the applicant to return to the country. The Administrative Court initially registered these complaints as a separate set of proceedings
but,following instructions from the Tallinn Court of Appeal, it later joined
the cases and proceeded to examinethe new complaints. By a judgment of 2 March
2012 the Tallinn Administrative Court dismissed the complaints. It held that
the expulsion order was lawful under sections 7-2(2)(3) and 7‑2(2)(4) of
the Obligation to Leave and Prohibition on Entry Act, as argued by the Police
and Border Guard Board, and that the three-year prohibition on entry was lawful
as well. Consequently, the complaint concerning the actual expulsion and the
claim to be allowed to return to the country were also dismissed. According to
the applicant he has instructed his lawyer to appeal against the judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section 12(4) of the Aliens Act (Välismaalaste
seadus), as in force at the material time, listed the instances in which a
residence permit could not be issued or extended. Section 12(4)(5)
provided that a permit could not be issued or extended if the alien applying
for it had been convicted of a criminal offence and sentenced to imprisonment
for a term exceeding one year and his or her criminal record had neither
expired nor been expunged, or the information concerning the punishment had not
been expunged from the punishment register. Section 12(4)(8) provided that a
residence permit be denied to persons who had been repeatedly punished for
intentional criminal offences.
Section 12(5) of the Aliens Act provided that,
by way of exception, a temporary residence permit could be issued or extended
for aliens falling under the above provisions, if this was not excluded on
other grounds referred to in the same provision.
Section 12(4-1) of the Aliens Act provided that
a residence permit could not be issued or extended in respect of an alien for
whom an alert for the purposes of refusing entry had been issued by a State
belonging to the common visa area of the European Union and such an alert had
been introduced into the Schengen Information System in accordance with the
Schengen Convention. By way of exception, a temporary residence permit could be
issued or extended on humanitarian grounds or by reason of international
commitments.
Section 7-2(2)(3) of the Obligation to Leave and
Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus)
provides that no term for voluntary compliance with the obligation to leave is
assigned in the expulsion order and it shall be enforced immediately if the
order is made in respect of an alien who has arrived in Estonia illegally. Section
7-2(2)(4) provides that the same applies to an alien in respect of whom a
prohibition on entry has been imposed.
Section 33-5(3) of the Obligation to Leave and
Prohibition on Entry Act provides that in order to amend the period of validity
of the prohibition on entry into the Schengen area the alien is required to
turn to a member State of the Schengen Convention applying the prohibition on
entry.
In a judgment of 22 March 2007 (case no.
3-3-1-2-07) the Administrative Law Chamber of the Supreme Court found that upon
issuing an expulsion order in the case in question the migration authorities
had not been required to assess whether the person concerned posed a threat to
the national security. An assessment related to the possible infringement of
the complainant’s right to respect for his family life had had to be carried
out when the question whether to grant him a residence permit had been dealt
with.
III. RELEVANT COUNCIL OF EUROPEMATERIAL
Recommendation
Rec(2000)15of the Committee of Ministers of the Council of Europe to member States
concerning the security of residence of long-term migrants states, inter
alia:
“4. As
regards the protection against expulsion
a. Any
decision on expulsion of a long-term immigrant should take account, having due
regard to the principle of proportionality and in the light of the European
Court of Human Rights’ constant case-law, of the following criteria:
– the
personal behaviour of the immigrant;
– the
duration of residence;
– the
consequences for both the immigrant and his or her family;
– existing
links of the immigrant and his or her family to his or her country of origin.
b. In
application of the principle of proportionality as stated in paragraph 4.a,
member States should duly take into consideration the length or type of
residence in relation to the seriousness of the crime committed by the
long-term immigrant. More particularly, member States may provide that a
long-term immigrant should not be expelled:
– after
five years of residence, except in the case of a conviction for a criminal
offence where sentenced to in excess of two years’ imprisonment without
suspension;
– after
ten years of residence, except in the case of a conviction for a criminal
offence where sentenced to in excess of five years of imprisonment without
suspension.
After twenty
years of residence, a long-term immigrant should no longer be expellable.
c. Long-term
immigrants born on the territory of the member state or admitted to the member
state before the age of ten, who have been lawfully and habitually resident,
should not be expellable once they have reached the age of eighteen.
Long-term
immigrants who are minors may in principle not be expelled.
d. In
any case, each member state should have the option to provide in its internal
law that a long-term immigrant may be expelled if he or she constitutes a
serious threat to national security or public safety.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the refusal to
extend his residence permit and his expulsion violated his right to respect for
private and family life protected under Article 8 of the Convention, which
reads 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.”
The Government contested that argument.
A. Admissibility
The Government considered that the application
was inadmissible because the domestic remedies had not been exhausted. They
pointed out that the judicial proceedings related to the applicant’s expulsion
order and his actual expulsion were pending before administrative
courts.Moreover, the applicant could also submita new application for a
residence permit once the circumstances changed. The Government also noted that
the applicant had not contested the prohibition on entry to the Schengen area
applied by Sweden and that Estonia had to adhere to that restriction.
Alternatively, the Government argued that the
applicant had failed to comply with the six-month rule since his initial
petition to the Court had not contained sufficient factual information.
The applicant disagreed. In respect of the
exhaustion issue he argued that the Government had failed to refer to any
domestic case-law demonstrating the effectiveness of challenging the expulsion
order considering that he had already been expelled from Estonia. Indeed, during the proceedings before the Strasbourg Court, a first-instance
administrative court had dismissed the applicant’s complaint against the
expulsion order. As concerns the possibility of reapplying for a residence
permit, the applicant noted that the Government had not specified what
circumstances had changed in the meantime and argued that since his applicationhad
been rejected by the migration authorities and the courts, he was not required
to make another similar applicationin order to comply with the requirement of
exhaustion of domestic remedies before applying to the Court.
The applicant further argued that he had raised
all his complaints in his initial application to the Court and provided the
Court with the documents available to him. Therefore, he had complied with the
six-month rule.
The Court notes that after the Estonian
authorities’ refusal to grant the applicant a residence permit he had no legal
basis for staying in Estonia. He challenged the refusal before the domestic
judicial authorities.His complaint was dismissed, after which he lodged an
application with the Court. The Court considers that the fact that it was – and
still is – open to the applicant to submitfurther applicationsfor a residence
permitto the Estonian authorities cannot render his application to the Court
premature. The possibility of proceedings identical to those complained about being
initiated in the future does not prevent the Court from dealing with the
outcome of the original proceedings; holding otherwise would mean that the
complaint would remain premature forever and lead to adenial of the possibility
to lodge an application in such circumstances.
As concerns the ongoing judicial proceedings
related to the expulsion order, the Court notes that this order was issued on
31 January 2011, it was immediately enforceable and did not contain any
substantive considerations. Although the applicant challenged the order before
the Tallinn Administrative Court and also requestedthe application of an
interim measure (staying the expulsion) – a request that was dismissed by the Administrative Court on 26 May 2011 – these steps were not capable of preventing the
applicant’s actual removal on 27 May 2011. The Court has doubts as to the
applicant’s chances of obtaining theright to reside in Estonia through these proceedings, which appear to constitute consequences of a rather
technical nature that followed the refusal to grant him a residence permit. Indeed,
on 2 March 2012 the Tallinn Administrative Court dismissed the applicant’s
complaints related to the expulsion order and his actual expulsion. The Court also
notes that the Government have not provided it with any examples of domestic
case-law where an expelled person’s complaint against an expulsion order or
actual expulsion was allowedafter his or her removal from the country, given
that the final refusal to grant him or her a residence permit had been made
beforehand, as in the present case.
In respect of the prohibition on entry to the
Schengen area, the Court notes that under section 12(4-1) of the Aliens Act, by
way of exception, a residence permit could be issued despite such prohibition
being in force. Thus, the Estonian authorities were not prevented from considering
the applicant’s applicationfor a residence permit on its merits on that basis; indeed,
they did consider it, weighing in substance the applicant’s rights against the
public interest.
In these circumstances, the Government’s objections
as to the non-exhaustion of domestic remedies have to be dismissed.
The Court further notes that the application was
lodged with it on 10 September 2010, that is within six months of the
Supreme Court’s decision not to examine the applicant’s appeal (10 March 2010).
The Court considers that the application form contained sufficient information
for it to be considered an “application” within the meaning of Article 34 of
the Convention and Rule 47 of the Rules of Court. Accordingly, this objection also
has to be dismissed.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant argued that the Estonian
authorities had failed to strike a fair balance between the aims they had
pursued and his right to respect for his family and private life. He emphasised
that he had spent his whole life in Estonia and being a second-generation
immigrant had no ties whatsoever withany other country. Therefore, he deservedincreased
protection under the Convention.
In respect of the offences committed by him, the
applicant was of the view that they were most appropriately characterised as
petty crime. In particular, all offences committed in Estonia after his conviction on 22 March 2001 had been classified as misdemeanours
under national law and he had been punished with small fines. The convictions
in 1997 and 2000 had only related to minor bodily injuries.
In respect of the drugs-related offences, the
applicant submitted that he had never been involved in drug dealing. Rather,
his conviction in Sweden had concerned smuggling a controlled substance into Sweden without prescription. The applicant’s drugs-related convictions in Estonia had all been misdemeanours concerning drug consumption and not supply.
Furthermore, the applicant asserted that he had
made successful efforts to overcome his drug addiction, having received
treatment in Estonia and France and that he had not used drugs since 2007. He
had not engaged in any criminal activity during the period of almost oneand a
half years between his readmission to Estonia and his placement in detention
pending expulsion. He had only been punished for minor traffic offences and
once on suspicion of being intoxicated.
The applicant argued thatEstonia was the only country inwhich he had developed, since his birth, anetwork of
personal, social and economic relations.He had been born in that country and
had lived there all his life. The fact that he had not obtained Estonian nationality
through naturalisation had not resulted from his lack of motivation but was to
be explained by the obstacles encountered by him. He had been told by officials
that perfect knowledge of Estonian had been required to pass a language exam
for obtaining Estonian nationality but he could not afford the language
courses. Nevertheless, he had sufficient command of Estonian for the purposes
of day-to-day communication and had been fully integrated into Estonian
society. He also noted that Russian was widely spoken in Estonia. As concerns his requests for translations of official documents, the applicant
submitted that these had been in complex legal language and he had believed
that he had to understand all the details in order to be able to present his
case.
At the same time, he had no ties whatsoever with
Russia other than nationality. He had never lived in Russia and had only visited Russia as a tourist. He had not maintained contact with anyone in that
country, including his distant relatives with whom he had brieflystayed after
his expulsion. He had found himself completely isolated and had numerous
difficulties with housing, employment and social benefits. The mere knowledge
of the Russian language did not enable him to integrate into Russian society
and the labour market.
The applicant also argued that his expulsion
amounted to a severe interference with his family life both with his partner
and his father. He had lived with V. since August 2009, they had made attempts
to register their marriage, V. had regularly visited him while he had been in
custody and they had maintained close contact after his expulsion, V. having
visited him in Russia three times. The applicant further submitted that owingto
his medical condition and his father’s age they had been dependent on each
other; he had also supported his father financially. Although the applicant’s
father and V. did not need a visa for travelling to Russia, they could only
stay there for up to ninety days a year, otherwise their residence permits in
Estonia could be revoked. Both his father and V. had strong family ties in Estonia. Like the applicant, V. had been born in Estonia, lived there all her life and knew
noone in Russia apart from the applicant.
The applicant also disputed the proportionality
of the three-year prohibition on entry and noted that even after its expiry the
decision to grant him a new residence permit would be wholly at the discretion
of the Estonian migration authorities.
(b) The Government
The Government considered that the expulsion of
the applicant had not been disproportionate and that his rights protected under
Article 8 had not been violated.
The Governmentnoted that the applicant had been
repeatedly convicted and punished for various criminal offences and
misdemeanours. He had three criminal convictions in Estonia and one in Sweden and had been given prison terms for all these criminal offences, although initially
the sentences had been suspended. All the criminal offences in question –
aggravated hooliganism, violence against a police officer and drug trafficking
–, as well as the misdemeanours, had been serious ones. The Government were of
the opinion that the applicant had continuously and regularly committed
offences which had gradually become more serious. After his readmission from Sweden he had committed five misdemeanours in Estoniaand had been given the first drugs-related fine
in less than four months after his return. This had demonstrated his
unwillingness to improve his behaviour and attitude.
As regards the temporal aspect, the Government
noted that the decision to refuse to extend the applicant’s residence permit
had been made on 18 October 2008, that is at the time when he had been serving
a prison sentence in Sweden. Although the applicant’s stay in Estonia after his readmission from Sweden on 10 July 2009 had had no legal basis, the Estonian
authorities had decided, based on humanitarianconsiderations, not to expel him
until the completion of the judicial proceedings in which he sought to
challenge the refusal. These proceedings had come to their end with the Supreme
Court’s decision of 10 March 2010. Thereafter, the applicant had left for Denmark and evaded the authorities. He had been arrestedsix months after his return and
expelled four months later after the completion of the formalities between the
Estonian and Russian authorities.
The Government noted that the applicant had been
born and raised in Estonia but had never wanted to become an Estonian citizen. The
ability to communicate at a basic level in day-to-day activities was sufficient
to pass the language exam required for obtaining citizenship. Unlike his
brother who had applied for and obtained Estonian citizenship, the applicant
had not even tried buthad chosen Russian citizenship. This indicated that he
must have felt a particular connection with that country. The applicant had
studied in aRussian-language school and was fluent in Russian but not in
Estonian. He had visited Russia, Estonia’s neighbouring country. The Government
concluded that there was no reason to believe that he would find himself
completely isolated. Since he had had no job in Estonia, the loss of job and
income was not an issue.
The Government argued that the applicant hadhad
no family life in Estoniato be protected under Article 8. His cohabitation with
V. had started in 2009, after the refusal to extend his residence permit, and
V. had to have been aware that the applicant had no legal basis for staying in Estonia. Therefore, V.’s possible difficulties would not be a criterion that would support granting
an Estonian residence permit to the applicant, also keeping in mind that they
had no children.
In any event, considering that the applicant had
left for Denmark on an unknown date, the Government concluded that his
cohabitation with V. had been neither long-term nor regular. The applicant’s
father and brother lived separately and had no family life with him within the
meaning of Article 8. The Government also noted that the applicant’s father and
V. were personsof undetermined citizenship who could easily visit him in Russia
since they did not need a visa for travelling to Russia. They were fluent in
Russian and would have no difficulties with coping in Russia if necessary. The applicant’s partner could also apply for a residence permit in Russia or, considering her ethnic origin, for Russian citizenship.
The Government noted that the applicant could
request the amendment of the duration of the prohibition on entry; he could
also apply – after its expiry or an amendment of its terms – for a residence
permit, which could be granted, by way of exception, even before his criminal record
had been expunged, or for a visa to enter Estonia and visit his relatives. The
Government considered that the three-year prohibition on entry was
proportionate in the circumstances.
2. The Court’s assessment
(a) Whether there has beenan interference with the
applicant’s right to respect for his private and family life
The Court reiterates
that,as Article 8 protects the right to establish and develop relationships
with other human beings and the outside world and can sometimes embrace aspects
of an individual’s social identity, it must be accepted that the totality of
social ties between settled migrants such as the applicant and the community in
which they are living constitutes part of the concept of “private life” within
the meaning of Article 8 (see Maslov v. Austria [GC], no. 1638/03,
§ 63, ECHR 2008, and Üner v. the Netherlands [GC], no. 46410/99, § 59,
ECHR 2006‑XII). Indeed it will be a rare case
where a settled migrant will be unable to demonstrate that his or her
deportation would interfere with his or her private life as guaranteed by
Article 8 (seeA.H. Khan v. the United Kingdom, no. 6222/10, § 32, 20 December 2011, and Miah
v. the United Kingdom (dec.), no. 53080/07, § 17, 27 April 2010). Not all settled migrants
will have equally strong family or social ties in the Contracting State where
they reside but the comparative strength or weakness of those ties is, in the
majority of cases, more appropriately considered in assessing the
proportionality of the applicant’s deportation under Article 8 § 2. It will
depend on the circumstances of the particular case whether it is appropriate
for the Court to focus on the “family life” rather than the “private life”
aspect (see Maslov,and Üner, loc. cit.). However, the Court has previously held that the
existence of “family life” cannot be relied on by applicants in relation to
adults who do not belong to the core family and who have not been shown to have
been dependent members of the applicants’ family(see Slivenko
v. Latvia [GC], no. 48321/99, § 97, ECHR 2003-X; see alsoKwakye-Nti
and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November
2000, and, more recently, A.H. Khan, loc. cit., and Anam v. the
United Kingdom (dec.), no. 21783/08, 7 June 2011).
The Court notes that there is no dispute between
the parties that the applicant’s expulsion interfered with his right to respect
for his private life. The Court sees no reason to hold otherwise. However, the
parties’ opinions differed as to whether the applicant had a family life to be
protected under Article 8. The Court considers that there is no need to
determine this matter conclusively at this stage since in practice the factors
to be examined in order to assess the proportionality of the deportation
measure are essentially the same regardless of whether family or private life
is engaged (see A.A. v. the United Kingdom, no. 8000/08, § 49, 20September 2011, with reference to the
case of Üner, cited above, §§ 57-60).
An interference with the right to respect for
private and family life will be in breach of Article 8 of the Convention unless
it can be justified under paragraph 2 of Article 8 as being “in accordance with
the law”, as pursuing one or more of the legitimate aims listed therein and as
being “necessary in a democratic society” in order to achieve the aim or aims
concerned.
(b) “In accordance with the law”
The parties did not dispute that the applicant’s
expulsion was in accordance with the law. The Court notes that the refusal to
extend the applicant’s residence permit was based on sections 12(4)(5), 12
(4)(8) and 12(4-1) of the Aliens Act and his actual deportation was made
pursuant to the relevant provisions of the Obligation to Leave and Prohibition
on Entry Act.
(c) Legitimate aim
It is also not in dispute between the parties
that the applicant’s expulsion served a legitimate aim for the purposes of the
second paragraph of Article 8. The Court observes that in its decision to
refuse to extend the applicant’s residence permit the Board considered that his
expulsion was necessary for the protection of the constitutional rights of
others. Considering the legal basis of the decision (commission of crimes),
“the prevention of disorder and crime” can also be seen as a legitimate aim
served by the interference.
(d) “Necessary in a democratic society”
(i) General principles
The main principles of the Court’s case-law in
respect of whether the interference was “necessary in a democratic society”
have been summarised as follows (see Üner, cited
above, §§ 54-55 and 57-58):
“54. The Court reaffirms at the outset that a State
is entitled, as a matter of international law and subject to its treaty
obligations, to control the entry of aliens into its territory and their
residence there (see, among many other authorities, Abdulaziz, Cabales and
Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, andBoujlifa
v. France, 21 October 1997, § 42, Reports of Judgments and Decisions
1997‑VI). The Convention does not guarantee the right of an alien to
enter or to reside in a particular country and, in pursuance of their task of
maintaining public order, Contracting States have the power to expel an alien
convicted of criminal offences. However, their decisions in this field must, in
so far as they may interfere with a right protected under paragraph 1 of
Article 8, be in accordance with the law and necessary in a democratic society,
that is to say justified by a pressing social need and, in particular,
proportionate to the legitimate aim pursued (see Dalia v. France,
19 February 1998, § 52, Reports 1998-I; Mehemi v. France,
26September 1997, §34, Reports 1997-VI; Boultif v. Switzerland, cited
above, § 46; and Slivenko v. Latvia[GC], no. 48321/99, § 113, ECHR
2003-X).
55. The Court considers that these principles apply
regardless of whether an alien entered the host country as an adult or at a
very young age, or was perhaps even born there. In this context the Court
refers to Recommendation 1504 (2001) on the non‑expulsion of long-term
immigrants, in which the Parliamentary Assembly of the Council of Europe
recommended that the Committee of Ministers invite member States, inter alia,
to guarantee that long-term migrants who were born or raised in the host
countrycannot be expelled under any circumstances (see paragraph 37 above). While
a number of Contracting States have enacted legislation or adopted policy rules
to the effect that long-term immigrants who were born in those States or who
arrived there during early childhood cannot be expelled on the basis of their
criminal record (see paragraph 39 above), such an absolute right not to be
expelled cannot, however, be derived from Article 8 of the Convention, couched,
as paragraph 2 of that provision is, in terms which clearly allow for
exceptions to be made to the general rights guaranteed in the first paragraph.
...
57. Even
if Article 8 of the Convention does not therefore contain an absolute right for
any category of aliennot to be expelled, the Court’s case‑law amply
demonstrates that there are circumstances where the expulsion of an alien will
give rise to a violation of that provision(see, for example, the judgments in Moustaquim
v. Belgium, Beldjoudi v. France, and Boultif v. Switzerland,
cited above; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yilmaz
v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany,
32231/02, 27 October 2005). In the case of Boultif the Court elaboratedthe
relevant criteria which it would use in order to assess whether an expulsion
measure was necessary in a democratic society and proportionate to the
legitimate aim pursued. These criteria, as reproduced in paragraph 40 of
the Chamber judgment in the present case, are the following:
– the nature and
seriousness of the offence committed by the applicant;
– the length of the
applicant’s stay in the country from which he or she is to be expelled;
– the time elapsed since
the offence was committed and the applicant’s conduct during that period;
– the nationalities of
the various persons concerned;
– the applicant’s family
situation, such as the length of the marriage, and other factors expressing the
effectiveness of a couple’s family life;
– whether the spouse knew
about the offence at the time when he or she entered into a family
relationship;
– whether there are
children of the marriage, and if so, their age; and
– the seriousness of the
difficulties which the spouse is likely to encounter in the country to which
the applicant is to be expelled.
58. The
Court would wish to make explicit two criteria which may already be implicit in
those identified in the Boultif judgment:
– the best interests and
well-being of the children, in particular the seriousness of the difficulties
which any children of the applicant are likely to encounter in the country to
which the applicant is to be expelled; and
– the solidity of social,
cultural and family ties with the host country and with the country of
destination.
As to the first point, the Court
notes that this is already reflected in its existing case-law (see, for
example, Şen v. the Netherlands, no. 31465/96, § 40, 21 December
2001, and Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, §
47, 1 December 2005) and is in line with the Committee of Ministers’
Recommendation Rec(2002)4 on the legal status of persons admitted for family
reunification (see paragraph 38 above).
As to the second point, it is to be
noted that, although the applicant in the case of Boultif was already an
adult when he entered Switzerland, the Court has held the ‘Boultif
criteria’ to apply all the more so (à plus forte raison) to cases
concerning applicants who were born in the host country or who moved there at
an early age (see Mokrani v. France, no. 52206/99, § 31, 15 July 2003).
Indeed, the rationale behind making the duration of a person’s stay in the host
country one of the elements to be taken into account lies in the assumption
that the longer a person has been residing in a particular country the stronger
his or her ties with that country and the weaker the ties with the country of
his or her nationality will be. Seen against that background, it is
self-evident that the Court will have regard to the special situation of aliens
who have spent most, if not all, their childhood in the host country, were
brought up there and received their education there.”
(ii) Application of the above principles in the
instant case
The Court notes at the outset that the applicant
was born and brought up in Estonia and that he lived in that country for his
entire life until his imprisonment in Sweden. His father and brother also lived
in Estonia. Although the applicant argued that he had close family ties with
his father and that they were dependent upon one another owing to his illness
and his father’s advanced age, the Court is not convinced that these relations
extended beyond usual ties between grown-up family members. It takes note of
the fact that the applicant’s father lived separately with his partner and also
has regard to the periods that the applicant spent in prison or abroad. The
applicant’s brother also has a family of his own. As concerns the applicant’s
relations with V., the Court notes that their cohabitation started soon after
the applicant’s deportation from Sweden. By that time the applicant had been
refused a residence permit in Estonia and that refusal had been upheld by the
first-instance court.Thus, V. must have been aware of the applicant’s
precarious status as regards his residence rights in Estonia. Furthermore, the
applicant and V. had no children and they only made inquiries about the
possibility to get married some weeks before the applicant’s expulsion.
Considering the above circumstances, the Court does not doubt that the
applicant had strong personal ties with Estoniabut finds that his family ties
were weaker.
The Court also notes that the applicant was
educated in a Russian-language school and spoke Russian as his mother tongue.It
appears that his knowledge of Estonian was somewhat limited. Furthermore, the
applicant never applied for Estonian citizenship. On the other hand, having
applied for, and having been granted Russian citizenship at the age of twenty,
the applicant must have identified himself with that country. Thus, the Court
is not convinced by the applicant’s argument that he had no ties withRussia. It also appears that his relatives were Russianand that his social circle mainly
consisted of persons of Russian origin. The Courthas regard in this context to
the fact that although V. was a person of undetermined citizenship and held a
permanent residence permit in Estonia, she was of Russian ethnic origin as
well. The Court observes that Russia is a country geographically close toEstonia, sharing aborder with it, and that the applicant has relatives in Russia – although
according to him they aredistant ones with whom he maintained no contact prior
to his expulsion.The Court concludes that the applicant had such links withRussia that he did notface insurmountable difficulties in settling in Russiaand that V. would not
have any such difficulties either if she wished to continue her relationship
with the applicant.
Proceeding to examine the nature and seriousness
of the offences committed by the applicant, the Court notes that he was refused
an extension of his residence permit after having been convicted of aggravated drug
smuggling in Sweden. He was sentenced to two years and four months’
imprisonment for that offence and although he was released before having served
the sentence in full, the sentence meted out to him is indicative of the
seriousness of the cross-border drugs offence in the view of the Swedish authorities.
The Swedish court also applied a seven-year ban on the applicant entering Sweden. Furthermore, it appears from the information in the case file that a prohibition onentry
or stay in the Schengen area had already been applied in respect of the
applicant on 20 August 2007, that is before the commission of the offence in
Sweden, and that the prohibition on entering the Schengen area was subsequently
extended. It is unclear whether the later extensions were related to the
applicant’s conviction in Sweden, but the first prohibition could evidently
have had no connection to the conviction in question and must have been based
on some other considerations. That being said, the application by the Swedish
authorities of a prohibition on entry intothe Schengen area, indicative of
their assessment of the applicant’s dangerousness as it may have been, did not
conclusively rule out granting the applicant an Estonian residence permit. Even
though the applicant might have been expected to challenge the decision of the
Swedish authorities in Sweden, it was still possible for the Estonian
authorities to grant him a residence permit under section 12(4-1) of the Aliens
Act.
The Estonian authorities did not rejecthis applicationmerely
for the reason that there was a valid prohibition on him entering the Schengen area;
rather, they made their own assessment of the circumstances of the case. In
doing so, the Board had regard – in addition to his conviction in Sweden – to the applicant’s other convictions, including the offences against public order
and safety. The Court observes in this context that during the twelve years
before the Board’s refusal, the applicant had been convicted of criminal
offences on four occasions. Two of the offences involved violence and one was
related to narcotic drugs. Although he did not have to serve the full sentences
in each instance and the first two sentences were suspended altogether (albeit the
fact that he had to serve the second sentence later, after having reoffended),
it remains a fact that the applicant was sentenced to a total imprisonment of
eight years in the course of the twelve years preceding the Estonian
authorities’ refusal to extend his residence permit. In addition, the applicant
had a number of convictions formisdemeanours, someof which were drugs-related.
Against this background and having regard to the applicant’s age, the length of
the period of his criminal behaviour as well as the seriousness of the
offences, the Court is unable to conclude that the acts committed by the
applicant can be regarded as “acts of juvenile delinquency” (see, by contrast, Maslov,
cited above, § 81; see also Joseph Grant v. the United Kingdom,
no. 10606/07, §§ 39‑40, 8 January 2009).The Court reiterates,
in this context, that an absolute right not to be expelled cannot be derived
from Article 8 of the Convention regardless of whether an alien entered the
host country as an adult or at a very young age, or indeed whether he or she was
born there (see Üner, cited above, § 55).
Furthermore, according to Recommendation Rec(2000)15 of the Committee of
Ministers of the Council of Europe, each member state should have the option to
provide in its internal law that a long-term immigrant may be expelled if he or
she constitutes a serious threat to national security or public safety (see
paragraph 53 above).
The Court has also had regard to the fact that
the applicant was prohibited fromenteringEstonia for three years following his
expulsion. It observes that in a number of cases it has found a residence
prohibition disproportionate on account of its unlimited duration (see, for
instance, Ezzouhdi v. France, no.47160/99, § 35, 13February 2001; Yilmaz
v. Germany,no. 52853/99, §§ 48-49, 17 April 2003; Radovanovic
v. Austria, no. 42703/98, § 37, 22 April 2004; and Keles v. Germany,
no. 32231/02, § 66, 27 October 2005) while, in other cases, it has
considered the limited duration of a residence prohibition as a factor speaking
in favour of its proportionality (see Benhebba v. France,no. 53441/99,
§ 37, 10 July 2003; Jankov v. Germany (dec.), no. 35112/97, 13 January
2000; and Üner, cited above, § 65). The Court considers that the
duration of the entry ban in the present case did not amount to a
disproportionate interference with the applicant’s rights guaranteed under the
Convention.
In the light of the above, the Court considers
that in the given circumstancesthere has been no violation of Article 8 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 3 of the
Convention that when he had been deported from Sweden to Estonia he had not been
granted a residence or work permit and thus had had no possibility ofgetting
social aid for subsistence or medical expenses. He further argued that his
deportation to the Russian Federationhadalso been in breach of Article 3
because of his lack of ties with that country and owing to his illness and need
for continuous medical treatment.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declaresunanimously the complaint under
Article 8 of the Convention concerning the applicant’s expulsion admissible and
the remainder of the application inadmissible;
2. Holdsby five votes to twothat there has
been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 3 July 2012,
pursuant to Rule 77§§2 and3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of JudgesK. Hajiyev
and M. Lazarova Trajkovska is annexed to this judgment.
N.A.V.
A.M.W.
JOINT DISSENTING OPINION OF
JUDGES LAZAROVA TRAJKOVSKA AND HAJIYEV
1. We do not share the opinion of the majority in
finding no violation of Article 8 of the Convention concerning the applicant’s
expulsion, or the majority’s conclusion that the applicant’s expulsion with
prohibition from entering Estonia for three years did not amount to a
disproportionate interference with his rights guaranteed under the Convention.
In our view this approach is not in line with the case-law already established
in the cases of Üner v. the Netherlands, (judgment
of 18 October 2006, Application no. 46410/99)
and Maslov v. Austria (judgment of 23 June
2008, Application no. 1638/03, §74).
2. Inthe present case the applicant, HIV-positive
and suffering from hepatitis C, was expelled to Russia after the refusal of the
Estonian authorities to extend his residence permit following his criminal
convictions. He was born, raised and educated in Estonia and had not
permanently resided in any other country until his expulsion from Estonia. His only link with Russia was his Russian Federation citizenship granted when he
was twenty years old. He had never lived in Russia and had no place of
residence or close relatives there. His father, brother and partner V. lived in
Estonia, where he has strong family, private and social ties. He speaks
Russian and his knowledge of Estonian was graded as “good” at school. The
applicant was expelled to Russia on 27 May 2011 and he lived on the street for
some time. Some of the medicines he had used in Estonia were not available to
him in Russia.
3. In an area of profound changes in Europe, from both a human rights and an economic viewpoint, long-term legal residents have
stronger ties with the host country than with the country of their nationality.
They participate in the economy by working and paying taxes and they are
influenced by the culture, language and education of the host country. As a
result of this reality, nationality is defined as a legal and not an effective
bond with the country. The Court pointed out that although Article 8 provides
no absolute protection against expulsion for any category of aliens, including
those who were born in the host country or moved there in their early
childhood, regard is to be had to the special situation of aliens who have
spent most, if not all, their childhood in the host country, were brought up
there and received their education there (see Üner§
55 and Maslov§ 74). This is the reason why we look at the sum total
of the social ties with the community in the host country as part of the
concept of “private life”. The concept of expulsion to the country of
nationality without any other supporting element is not convincing and leads to
interference with the applicant’s private and family life.
4. We find it problematical in the judgment that
“the Court does not doubt that the applicant had strong personal ties with Estonia but finds that his family ties were weaker” (§ 87). It is important to note that
the fundamental principles that laid the foundations forthe Court’s subsequent
case-law concerningthe application of Article 8 of the Convention to cases
involving the expulsion, following conviction,of foreign nationals legally
resident in the host country are well established in the Boultifjudgment
(Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX)and have been
further developed in the Üner case
(§§ 54-55 and 57-58) and later in Maslov v. Austria.In these cases, the
main emphasis was consistently placed on the “family life” aspect. The Court
has adopted a broad approach to the notion of “family life”.In the Marckx judgment it observed that
“ ’family life’, within the meaning of Article 8, includes at least the
ties between near relatives, for instance those between grandparents and
grandchildren, since such relatives may play a considerable part in family
life” (see Marckx v. Belgium,
judgment of 13 June 1979, Series A no. 31, p. 21, § 45). Therefore, the notion
of “family life” is much broader than the notion of “family”.
5. The Court has held that there will be no family
life between parents and adult children or between adult siblings unless they
can demonstrate additional elements of dependence (see Slivenko v. Latvia [GC],no.
48321/99, § 97, ECHR 2003-X). This acknowledgment is even more important
as regards the extremely difficult health and social situation of the applicant
in this concrete case. The applicant is HIV-positive and suffers from hepatitis
C. We consider that at the time when he was expelled, the applicant was in an
extremely vulnerable position. The support and help of his family were all the
more necessary to him. He stressed that he had close family ties with his
father and that because of his own illness and his father’s age they were
dependent upon one another. In our view the applicant not only has strong
personal ties but also strong family ties with Estonia. His brother and his
brother’s family also live in Estonia. The applicant is in a relationship with
V. They live together and attempted to marry, but without any success
(paragraphs 43 and 44). Family is crucial for stability, support and social
integration not only for children but also for adults facing life-threatening
instability and uncertainty as a result of health and social problems. In this
concrete case Article 8 of the Convention appears to play an enhanced role
regarding the notion of family life between a seriously ill dependant adult and
his family.
6. Some of the majority’s arguments are
particularly problematical in our view, for example that “having applied for,
and having been granted Russian citizenship at the age of twenty, the applicant
must have identified himself with that country. Thus, the Court is not
convinced by the applicant’s argument that he had no ties with Russia. It also appears that his relatives were Russian and that his social circle mainly
consisted of persons of Russian origin” (see paragraph 88). In our view, the
argument that in applying for Russian citizenship “the applicant must have
identified himself with that country” does not lead to the conclusion that he
should be expelled from the host country to the country of nationality.
According to Article 2 of the European Convention on Nationality, “nationality
means the legal bond between a person and a State and does not indicate the
person’s ethnic origin”. Furthermore, the fact that he spoke his mother tongue
better than the Estonian language and that his relatives in Estonia were Russian and his social circle mainly consisted of persons of Russian origin, is without
any relevance for the outcome of the procedure for expulsion with prohibition from
entering Estonia for three years. Unlike the majority, we conclude that none of
these reasons was sufficient to demonstrate his links with Russiaor justify expelling him toRussia, where it is difficult for him to organise his existence and
his health care. We think that all these elements were primarily part of his
social, cultural and family ties with Estonia, because his father and brother,
his Russian relatives and friends and his partner V. all live in Estonia and not in Russia. In the circumstances of his case the support of the community where he
was born and raised was of crucial importance.
7. Turning to the nature and seriousness of the offences
committed by the applicant, the most important issue to be determined is
whether the interference was “necessary in a democratic society”.Similar to our
case is the case ofNasri v. France (judgment of 13 July 1995, series A
no. 320‑B). The applicant, born deaf and dumb inAlgeria, arrived in Franceat the age of five and was convicted several times, of theft, robbery and
gang rape. In 1987, following that last conviction, the Minister of the
Interior ordered hisdeportation. The applicant alleged violations of Articles 3
and 8 of the Convention andthe Commission found violations of those Articles.
In that particular case, even before the Maslov v. Austria case, the
Courtplaced itself mainly in thecontext of Article 8. It began by pointing out
that the offence at the origin of the deportation decision (gang rape) was very
serious, but most of all took into account the applicant’s infirmityand the
very special importance of the family’s support in such circumstances.The
family’s strong ties withFranceand the applicant’s lack of social and cultural
ties with Algeria led the Court tofind a breachof Article 8 (Nasri § 46).
8. The Court always seeks to strike a balance
between the legitimate aim of States to protect the public interest andthe fundamental
rights of all individuals, even criminals, to a family life. With much regret
we disagree that this balance was successfully struck in this case. The applicant
was refused an extension of his residence permit after he was convicted of
aggravated drug smuggling in Sweden. He was sentenced to two years and four
months’ imprisonment for that offence and released before having served the
sentence in full. At the same time the Swedish court also applied a seven-year
ban on the applicant entering Sweden. In Estonia the applicant has criminal
convictions mainly for aggravated hooliganism, aggravated theft and attempted
theft,and administrative offences of petty theft and consumption of narcotic
substances. Between 2006 and 2009 the applicant was punished seven times for
misdemeanours (illegal consumption or possession of narcotic drugs and
travelling on public transport without a ticket). Like the majority we are
unable to conclude that the acts committed by the applicant can be regarded as
“acts of juvenile delinquency” (contrast Maslov, § 81), but in our view,
none of his criminal convictions was of a sufficiently serious nature to
endanger the interests and constitutional rights of others. We are convinced
that instead of expelling him, the authorities could have used other, less
severe measures.
9. For all the foregoing reasons, we consider that
the decision to expel the applicant in the present case amounted to a
disproportionate interference with his rights guaranteed under Article 8 of the
Convention.
