SHARMA v. LATVIA - 28026/05 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 305 (24 March 2016)

In the case of Sharma v. Latvia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 1 March 2016,

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

PROCEDURE

1. The case originated in an application (no. 28026/05) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Indian national, Mr Pradeep Sharma (“the applicant”), on 18 July 2005.

2. The applicant, who had been granted legal aid, was represented by Mr A. Castelino, a lawyer practising in Delhi. The Latvian Government (“the Government”) were represented by their Agents, Mrs I. Reine and later Mrs K. Līce.

3. The applicant complained, in particular, about interference with his family life and absence of procedural safeguards as regards his expulsion; that he had not been promptly informed of the reasons for his arrest on 7 June 2005, and that there had been no effective procedures for the review of its lawfulness.

4. On 11 January 2011 the above-mentioned complaints were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1973 and lives in New Delhi, India.

A. The applicant’s stay in Latvia and the events leading to the expulsion proceedings

6. The applicant arrived in Latvia in May 1999 [in his observations, he mentions 1989 or 1992 and studies at Riga Aviation University]. He married a Latvian national on 2 July 1999. They have two daughters, born in Latvia on 19 January 1999 and 18 April 2000 respectively.

7. In August 1999 and August 2000 the applicant was issued a temporary residence permit for one year and four years respectively on the grounds of his marriage to a Latvian national. Under the domestic law which was applicable at the material time, following the expiry of the four-year period the applicant was entitled to a permanent residence permit.

8. On 21 June 2004 the applicant’s documents for the permanent residence permit were accepted.

9. On 11 August 2004 the applicant’s wife asked the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvaldes Ārzemnieku apkalpošanas departaments) to check the information submitted by the applicant for the permanent residence permit in relation to his employment in Latvia.

10. On 21 September 2004 the Office of Citizenship and Migration Affairs refused to grant the permanent residence permit to the applicant on the grounds that he had submitted false information and did not have sufficient financial means to stay in Latvia.

11. According to the Government, on 30 September 2004 the applicant’s wife wrote the Office of Citizenship and Migration Affairs a short letter stating that “my husband ... was refused a permanent residence permit; I would like to object to this.” This objection was accompanied by another letter requesting to ignore the former, as it had been drawn up under threat by the applicant. She asked for help and for the applicant to be refused leave to remain in Latvia.

The applicant disagreed with the allegations contained in this letter.

12. On 13 November 2004 the Office of Citizenship and Migration Affairs overturned the decision of 21 September 2004 (see above). It was concluded that the applicant had sufficient financial means and that no false information had been submitted by him. A permanent residence permit, valid until 9 July 2010, was then issued for the applicant.

13. On 6 December 2004 the applicant’s wife reported a domestic conflict to the police. According to her, on 4 and 5 December, when she had attempted to talk to the applicant about a divorce, he had allegedly tried to suffocate her and had inflicted bodily injuries on her. The applicant disagreed with his wife’s version of events; he submitted to the police that he had not inflicted any bodily injuries on his wife. The cause of their conflicts had been the fact that his wife had taken their children to live in another city in Latvia.

14. Following a forensic examination, unspecified minor injuries were found on the applicant wife’s body. On 29 December 2004 the police refused to open criminal proceedings, on the ground that no offence had been committed. No appeal was lodged against that decision.

15. Meanwhile, on 9 December 2004, the applicant’s wife applied to the Office of Citizenship and Migration Affairs with a view to withdrawing the applicant’s permanent residence permit and expelling him from Latvia on the grounds that he presented threats to her life and health and those of their children. She mentioned her previous letters to the Office of Citizenship and Migration Affairs. When the applicant had found out about them, he had asked for them to be recalled and had promised to stop the abuse he had been engaging in. She had done so. Nevertheless, when the permanent residence permit had been issued “it had started all over again”. The applicant had allegedly threatened to cripple her if he had to leave Latvia, and also to kill her, the children and himself.

The applicant denied the allegations contained in this letter.

16. On 15 December 2004 her letter was forwarded to the Security Police (Drošības policija) for an assessment of the applicant’s character and to determine if he presented threats to national security or public order.

B. The decision to include the applicant in the list of persons prohibited from entering in Latvia (hereinafter “the blacklist”)

17. On 10 January 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant constituted a threat to public order and safety.

18. On 20 January 2005 the Minister of Interior decided to include the applicant in the blacklist for an indefinite period of time, on the ground that he constituted a threat to public order and safety, and decided to refuse him entry to Latvia. This decision was not amenable to judicial review at the time. Following legislative changes (see paragraph 45 below) the persistence of the grounds for the inclusion in the blacklist could be re-examined by the Minister of Interior; the applicant attempted to avail himself of this remedy (see paragraph 21 below).

19. On 24 March 2005 the Minister of Interior replied to the applicant’s enquiry of 22 February 2005 and, having reviewed the applicant’s case, concluded that the applicant could not be removed from the blacklist.

20. On 14 April 2005 the applicant’s wife applied to the Ministry of the Interior claiming that notwithstanding her previous letters expressing her wish for the applicant to leave the country their relations had improved and she wished to maintain her family and not to separate the applicant from their children. If he had to leave she and their children would probably follow him. In reply, the Minister explained that her subjective feelings towards the applicant did not imply a change in the circumstances on the basis of which the applicant had been included in the blacklist.

21. On 25 May 2005 the applicant applied to the Minister of Interior with a view to removing the prohibition on entering Latvia. He submitted that the relationship with his spouse had improved and that she and their children did not wish him to leave Latvia.

22. On 27 May 2005 the Security Police wrote to the Ministry of the Interior informing them that the applicant constituted a threat to public order and safety. On 31 May 2005 the Security Police informed the Office of Citizenship and Migration Affairs that the applicant had been included in the list of persons prohibited from entering in Latvia, confirming their view that the applicant constituted a threat to public order and safety; there had been no change in those circumstances. In view of this, they asked the State Border Guard Service to detain and expel the applicant in accordance with section 51, paragraph 1, part 2 of the Immigration Law.

23. On 13 June 2005 the Minister of Interior adopted decision no. 121 and refused to remove the applicant from the blacklist. The decision was sent to the applicant’s address in Jēkabpils. In the decision, the Minister relied on the letter of 27 May 2005 informing him that the circumstances on the basis of which the applicant had been included in the blacklist had not changed. Thus the Minister could not remove the prohibition on entering Latvia. The applicant’s submissions could not serve as the basis for his removal from the blacklist, since a person could not choose his country of residence under either domestic or international law. States were not obliged to respect couples’ choices concerning their country of residence. Nor were there any reasons detected why the applicant’s family could not join the applicant in India and enjoy their family life there. The Minister concluded that the restrictions on the applicant’s right to respect for his family life were justified in the interests of public order and safety and were proportionate. As regards the procedure for appeal, a reference was made to section 76, paragraph 2 and section 188, paragraph 2 of the Administrative Procedure Law which provided for an appeal to the administrative court.

24. The applicant did not appeal.

C. Other proceedings following the decision of the Minister of Interior of 20 January 2005 to include the applicant in the blacklist

1. Withdrawal of the applicant’s permanent residence permit

25. On 1 February 2005 the Office of Citizenship and Migration Affairs adopted decision no. 823 by which the applicant’s permanent residence permit was withdrawn on the grounds that he had been included in the blacklist (section 36, paragraph 1, part 2 of the Immigration Law). The decision was based on the decision of 20 January 2005 (see paragraph 18 above). It was drawn up on the basis of information and documents received from the Ministry of the Interior. The decision indicated that pursuant to section 70 of the Administrative Procedure Law (see paragraph 50 below) it was to take effect upon notification to the applicant. The decision also stated that the applicant was obliged to leave the country within forty-five days. On 14 February 2005 the applicant was informed of the decision and of the fact that he was to leave the country by 26 March 2005. The applicant lodged an appeal against this decision with the Office of Citizenship and Migration Affairs.

26. On 15 March 2005 the Office of Citizenship and Migration Affairs rejected the applicant’s appeal against the withdrawal of the residence permit. It found that the applicant had been lawfully included in the list of persons prohibited from entering in Latvia. Taking into account that the decision to include the applicant in the blacklist was in force and had not been declared unlawful, it was impossible for the applicant to stay in Latvia. It further considered that the contested decision complied with the rule of law, and that it was taken in the interests of national security, public order and safety and for protection of the rights of others, namely the spouse and children. It was proportionate because the protection of the interests of society in assuring national security and public order and safety in the State outweighed the individual interests of the applicant. The applicant was not heard because his views could not change the circumstances of the case, which were evidenced with proof and would not change. References were also made to the Court’s case-law on immigration control, to Article 8 of the Convention under which the interference with the applicant’s family life could be justified, and to the 2004 report of the Committee on the Elimination of Discrimination against Women (CEDAW) concerning Latvia.

27. On 23 March 2005 the applicant’s appeal against the decision to withdraw his permanent residence permit was allowed by the Administrative District Court.

28. On 12 April 2005 the Administrative District Court forwarded to the applicant’s address in Jēkabpils the written submissions of the Office of Citizenship and Migration Affairs in his case. The applicant was asked to indicate by 2 May 2005 if he would agree for the court to examine his case in written proceedings (rakstveida procedūra). Since he did not reply, the court could not examine the case without a hearing.

29. Following four hearings (on 19 December 2006, 16 January and 12 June 2007, and 5 August 2008), the case was left without determination on the grounds that the applicant had failed to appear before the court. This decision took effect on 16 August 2008. All the court correspondence was sent to the applicant’s address in India. His wife was invited as a third party to the proceedings.

2. The applicant’s detention and expulsion

30. Meanwhile, on 7 June 2005 the applicant was detained by State Border Guard Service officials under section 51, paragraph 1, part 2 of the Immigration Law on the ground that he constituted a threat to national security or public order and safety. The detention record also stated that by a decision of the Minister of Interior the applicant had been included in the blacklist, and that on 14 February 2005 his permanent residence permit had been withdrawn. The applicant signed the detention record and he was placed in a short-term detention facility in Jēkabpils, where he stayed until 17 June 2005.

31. The applicant lodged a complaint with a prosecutor, arguing that he had been unlawfully detained on the grounds of lack of a valid residence permit. On 14 June 2005 a prosecutor replied that the applicant’s detention was lawful and had been ordered on national security or public safety and order grounds. He could be detained for ten days on these grounds, following which a court order was necessary for continued detention. It was noted that on 31 May 2005 the Security Police had informed the State Border Guard Service that the applicant had been included in the blacklist. Finally, it was noted that the applicant’s detention as such did not automatically entail his expulsion. An expulsion order should be issued within ten days of the applicant’s detention. The applicant was informed that he could lodge an appeal against this reply with a superior prosecutor.

32. On 13 June 2005 the Jēkabpils branch of the Office of Citizenship and Migration Affairs adopted an expulsion order, no. 23-7 (lēmums par ārzemnieka piespiedu izraidīšanu) under section 47, paragraph 1, part 2 of the Immigration Law, on the grounds that the applicant had been detained by the State Border Guard Service in Latvian territory. He was informed that he would be excluded from Latvian territory for a five-year period. The decision took effect the same day, when it was notified to the applicant. On 14 June 2005 the applicant lodged an appeal against the expulsion order with the Head of the Office of Citizenship and Migration Affairs.

33. On 16 June 2005, following a closed hearing, a judge of the Jēkabpils District Court authorised the applicant’s detention for two more months. The judge heard the applicant and decided that he was to be transferred to an accommodation centre for foreign detainees in Olaine. He could not yet be expelled because he had lodged an appeal against order no. 23-7, and thus the judge considered that it was necessary to extend his detention. No appeal against the decision was lodged.

34. On 17 June 2005 the applicant was transferred to an accommodation centre for foreign detainees in Olaine.

35. On 30 June 2005 the Office of Citizenship and Migration Affairs adopted a decision under section 61, paragraph 4, part 3 of the Immigration Law (see paragraph 46 below), including the applicant in the list of persons prohibited from entering in Latvia until 13 June 2010. The applicant did not lodge an appeal against this decision with the administrative courts.

36. On 11 July 2005 the Head of the Office of Citizenship and Migration Affairs dismissed the applicant’s appeal against the expulsion order (see paragraph 32 above). The decision stated that it came into effect pursuant to section 70 of the Administrative Procedure Law and could be amenable to judicial review by the administrative court within one month of its coming into effect.

37. On 13 July 2005 this decision was sent to the accommodation centre for foreign detainees in Olaine. It was not served on the applicant because meanwhile, on 12 July 2005, the applicant had been expelled from Latvia to India.

D. Events subsequent to the communication of the present application

38. Upon the applicant’s request, on 30 March 2011 the Minister of Interior adopted decision no. 26 entitled “Removal of prohibition on entering the Republic of Latvia”. On the basis of information received from the State Police and the Security Police and section 64, paragraph 1, part 1 of the Immigration Law the Minister decided to remove the applicant from the blacklist. The decision took effect immediately.

39. On 29 April 2011, in response to an email from the applicant, the Ministry of the Interior explained that he had been included in the blacklist on the basis of decision no. 72 of 20 January 2005 and that he could not appeal against the decision, but he could ask the competent authority to review that decision (reference was made to paragraph 7 of the transitional provisions of the Immigration Law). They also informed him that according to the Immigration Law the reasons for the applicant’s inclusion in the list could not be disclosed. Having received the applicant’s request for a review of the decision, the Ministry of the Interior had made enquiries with the State Police and the Security Police. They had received answers that threats under section 61, paragraph 1 of the Immigration Law were not present. Accordingly, the above decision was adopted. Lastly, in response to the applicant’s question whether he could now enter Latvia or receive a permanent residence permit, reference was made to the Immigration Law and the procedure established therein.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Immigration Law

1. Residence permits

40. Section 36 of the Immigration Law lists the grounds on which a permanent residence permit must be withdrawn. Paragraph 1, part 2 mentions as one of those grounds the fact that an alien has been included in the list of persons prohibited from entering in Latvia.

41. Section 40, paragraph 1 of the Immigration Law at the material time provided that an appeal lies against a refusal to issue, or withdrawal of, a residence permit to the Head of the Office of Citizenship and Migration Affairs within thirty days of receipt. Under paragraph 2 only an alien legally residing in Latvia or their inviter in Latvia could lodge an appeal in court against a refusal by the Head of the Office of Citizenship and Migration Affairs to issue a residence permit.

2. Expulsion orders

42. Section 47, paragraph 1, part 2 of the Immigration Law at the material time provided that an expulsion order had to be issued if an alien was detained by the State Border Guard Service. Under paragraph 3 the expulsion order could be appealed against to the Head of the Office of Citizenship and Migration Affairs within seven days of receipt.

3. Detention of aliens

43. Section 51 of the Immigration Law lists the circumstances in which the State Border Guard Service may detain an alien. Paragraph 1, part 2 at the material time provided that an alien could be detained on grounds of public order and safety or for the protection of national security.

44. At the material time section 54 provided that an official of the State Border Guard Service had a right to detain an alien for a maximum of ten days. Such decisions were not subject to court review but could be appealed against to a prosecutor (section 56). With the amendments which became effective on 27 December 2005 the section stipulated that the decisions of the State Border Guard Service were amenable to court review.

4. The list of persons prohibited from entering in Latvia

45. Section 61 of the Immigration Law states the circumstances in which an alien may be placed on the list of persons prohibited from entering in Latvia. Paragraph 1, part 2 provides that an alien is included in that list if a competent public authority has reasons to consider that the person presents a threat to national security or public order and safety. Such a decision is taken by the Minister of Interior. At the material time no appeal lay against the decision of the Minister of Interior (section 61, paragraph 6). Following the Constitutional Court’s judgment (see paragraph 55 below), this provision was declared unconstitutional and void as of 1 May 2005. On 1 July 2005 amendments, which were adopted on 16 June 2005, took effect. These amendments stipulated that “after an alien has become aware of [the decision to place him on the list under paragraph 1 of this section], he can lodge an appeal to the Senate of the Supreme Court”. No time-limit for such an appeal was prescribed. By virtue of the transitional provisions (paragraph 7), an alien could not appeal against the decision to place him on the list if that decision had been delivered to him before 30 April 2005. However, a request could be made to a competent body to review its decision on the merits.

46. Section 61, paragraph 4, part 3 of the Immigration Law provides that if an expulsion order has been issued, the Head of the Office of Citizenship and Migration Affairs must place an alien on the list of persons prohibited from entering in Latvia.

47. Section 62 of the Immigration Law (as in force before the 1 July 2005 amendments) provided in its first paragraph that the Security Police must inform the Office of Citizenship and Migration Affairs about the circumstances in which an alien had been placed on the list under section 61, paragraph 1 of that law if it was done on national security or public order and safety grounds.

Following the amendments which came into effect on 1 July 2005, section 62, paragraph 1 provided that “an appeal to court” does not suspend the execution of the decision to include an alien in the list. With subsequent amendments of 26 January 2006 to the Immigration Law, section 62 was deleted.

48. Section 63, paragraph 2 of the Immigration Law provided at the material time that an alien could be excluded from Latvian territory for a five-year period if a forced expulsion order had been issued. Under section 63, paragraph 3 an alien could be excluded for an indefinite period of time if a decision was made under section 61, paragraph 1 of that law.

49. Section 64, paragraph 1 of the Immigration Law provided at the material time that the Minister of Interior could reduce the alien’s period of exclusion from Latvian territory or could remove the ban on entry to Latvia if the circumstances had changed. On 24 November 2005 that provision was amended and such a decision could subsequently only be taken by the Minister of Interior upon a request from the alien.

B. The Administrative Procedure Law

50. Section 70 of the Administrative Procedure Law determines the point in time when an administrative act takes effect. Section 70, paragraph 1 provides that when no particular provision has been made to the contrary an administrative act takes effect when it is notified to the addressee. Under paragraph 2 of the same section, if an administrative act is sent to the addressee by post it takes effect on the seventh day after its posting.

51. Section 76 prescribes the general procedure for a hierarchical appeal against an administrative act. Under paragraph 2, as in force at the material time, an administrative act could be appealed against before an institutionally higher authority or another authority, as prescribed by law. If there was no such authority (or if the authority was the Cabinet of Ministers), the administrative act could be appealed against before the (administrative) courts.

52. Section 80 provides that an appeal against a contested administrative act to an institutionally higher authority or another authority suspends its effect from the moment the appeal is received by the authority (paragraph 1). If the higher authority leaves the administrative act unchanged, its effect continues from the day the period of the appeal expires if no appeal has been brought against it.

53. Under section 188, paragraph 2 of the Law of Administrative Procedure an administrative act could be appealed against within one month of its entry into force.

54. Section 360 sets out the conditions for compulsory execution of an administrative act. Paragraph 1 provides that an administrative act shall be compulsorily executed where the following aggregate circumstances coexist: 1) the administrative act has come into effect (section 70); 2) the administrative act has become non-disputable (section 76); and 3) at the time of the commencement of compulsory execution the administrative act has not been executed voluntarily. Under paragraph 2 an administrative act may be executed on a compulsory basis from the moment it comes into effect, without waiting until it becomes indisputable if: 1) compulsory execution from the moment it comes into effect is provided for by another law; 2) the authority specifically determines it in the administrative act, justifying such urgency on the basis that any delay may directly endanger State security, public order, or the life, health or property of persons; or 3) the administrative act is issued orally on the grounds of urgency. Under paragraph 3, an administrative act adopted by the police, the border guard, the national guard, the fire service and other officials authorised by law which are issued to urgently prevent a direct danger to State security, public order, or the life, health or property of persons, may be executed on a compulsory basis from the moment they come into effect.

C. The domestic case-law

1. The Constitutional Court

55. In its judgment of 6 December 2004 in case no. 2004-14-01 the Constitutional Court ruled that section 61(6) of the Immigration Law, according to which no appeal lies against the decision of the Minister of Interior to place an alien on the list of persons prohibited from entering in Latvia, was unconstitutional and void from 1 May 2005.

2. The Administrative Cases Division of the Senate of the Supreme Court

56. On 2 September 2004, by a decision of the Minister of Interior of the Republic of Latvia, a certain A.K. was included in the blacklist on national security grounds (section 61 of the Immigration Law). The above decision resulted in expulsion proceedings against A.K. Following the legislative amendments (see paragraph 45 above), on 5 September 2005 A.K. asked the Minister of Interior to review his decision. The Minister of Interior upheld his earlier findings, and in November 2005 the applicant appealed against the Minister’s decision to the Administrative Cases Division of the Senate of the Supreme Court.

The latter adopted a judgment on 24 February 2006 and established that the Minister of Interior does not need to specify the activities of the particular person posing threats to national security, nevertheless the Minister has to ascertain whether the person concerned has close personal, economic or social ties with Latvia, as well as other issues closely related to that person’s private life. In A.K.’s case the failure of the Minister of Interior to provide such an assessment constituted a violation of A.K.’s human rights, and accordingly the disputed decision was repealed from the date of its adoption.

D. Other relevant documents

57. The relevant part of the Explanatory Report to the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms:

“9. As to its field of application, this article only concerns an alien lawfully resident in the territory of the State in question.

The word “resident” is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control, or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose. This period also covers the period pending a decision on a request for a residence permit.

The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person’s presence in the territory to be considered "lawful".

The provision applies not only to aliens who have entered lawfully but also to aliens who have entered unlawfully and whose position has been subsequently regularised. However, an alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still "lawfully" present.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

58. The applicant complained that his expulsion was in breach with his right to respect for family life as provided in Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his ... family life ...

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.”

A. Application of Article 37 of the Convention

59. With reference to several previous cases against Latvia (Sisojeva and Others v. Latvia, (striking out) [GC], no. 60654/00, ECHR 2007-I; Kaftailova v. Latvia (striking out) [GC], no. 59643/00, 7 December 2007; and Shevanova v. Latvia (striking out) [GC], no. 58822/00, 7 December 2007), the Government invited the Court to strike the application out of its list of cases as “the matter has been resolved” as far as the complaint under Article 8 of the Convention was concerned. They referred to the fact that the prohibition on entering Latvia had been lifted on 30 March 2011.

60. The applicant did not comment on this matter.

61. The Court observes that in all the cases cited by the Government the Court decided that the matter giving rise to the complaint had been “resolved” within the meaning of Article 37 § 1 (b) on the grounds that the applicant had no real and imminent risk of being deported, as the expulsion orders had ceased to be enforceable. In all the above-mentioned cases the applicants had never left the territory of Latvia and continued to enjoy family life there. In the present case, however, it is not disputed that the expulsion order of 13 June 2005 (see paragraph 32 above) was executed on 12 July 2005 when the applicant was expelled to India, and that the ban on entry to the territory of Latvia in respect of the applicant was revoked only in March 2011. In the light of the above, the Court considers that there exist no circumstances leading to the conclusion that it is no longer justified to continue the examination of the complaint.

62. The Court accordingly dismisses the Government’s request.

B. Admissibility

63. The Government further argued that the applicant had failed to use the appropriate remedies in respect of each particular decision adopted by the competent State authorities within his expulsion proceedings. By relying on the case-law of the Administrative Cases Division of the Senate of the Supreme Court, the Government argued in particular that the expulsion proceedings for the person concerned constituted a “uniform process” and that the administrative court, when examining a particular decision adopted in the course of expulsion proceedings, cannot address each particular decision in isolation. Accordingly, the applicant should have made an application to the administrative courts and should have lodged appeals with the administrative court against the decision adopted by the Minister of Interior on 13 June 2005 (see paragraph 23 above) and the decision adopted by the Office of Citizenship and Migration Affairs on 11 July 2005 (see paragraph 36 above). The Government further contended that after the legislative changes of 1 July 2005 the applicant had to ask the Minister of Interior for re-examination of the decision to put his name on the blacklist.

64. The applicant stated that he had asked the Minister of Interior to review his initial decision to include him in the list of persons prohibited from entering in Latvia, but that his arguments had not been considered, and on 13 June 2005 the Minister had dismissed the applicant’s request.

65. The Court reiterates that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 116, 23 February 2016, and the case-law cited therein).

66. At the outset the Court observes that by the decision of the Minister of Interior of 20 January 2005 the applicant was included in the list of persons prohibited from entering in Latvia (also referred to as a blacklist). That decision triggered several subsequent proceedings under the Immigration Law, namely withdrawal of the applicant’s permanent residence permit (see paragraph 25 above), the applicant’s detention (see paragraph 30 above) and his expulsion from the territory of Latvia (see paragraph 32). The decision of the Minister of Interior of 20 January 2005 was at the origin of the ensuing proceedings whose outcome was closely related to the validity of that decision.

67. It is true that at the time the Minister of Interior adopted the decision of 20 January 2005 it was not amenable to judicial review. However, following the judgment of the Constitutional Court of 6 December 2004 (see paragraph 55 above), the decision could be reassessed on its substance by the Minister of Interior. In the applicant’s case such a re-examination of his situation resulted in the decision adopted by the Minister of Interior on 13 June 2005 (see paragraph 23 above). The applicant was duly informed that an appeal against the above decision lay with the administrative court.

68. Referring to the decision of the Administrative Cases Division of the Senate of the Supreme Court of 24 February 2006 (see paragraph 56 above) the Court observes that at the material time the administrative court had examined an identical complaint submitted by another person who had been included in the blacklist on national security grounds. The Senate of the Supreme Court found that the Minister of Interior had not carried out a proportionality test as required under Article 8 of the Convention, and owing to this procedural shortcoming the contested decision was repealed. In the light of the above the Court considers that a review by the administrative court of the decision of the Minister of Interior could in practice provide a remedy which is appropriate and effective for the applicant’s complaint under Article 8. The Court also notes that the applicant did not submit that he was not able to make use of the remedy, nor did he put forward any other arguments which could absolve him from the requirement to exhausting this domestic remedy.

69. Accordingly the Court concludes that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention and declares the complaint under Article 8 inadmissible in accordance with Article 35 § 4 of the Convention. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine the other non-exhaustion grounds raised by the Government.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7 TO THE CONVENTION

70. The applicant alleged that the expulsion had been carried out in breach of Article 1 of Protocol No. 7 to the Convention, which reads as follows:

“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a) to submit reasons against his expulsion,

(b) to have his case reviewed, and

(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”

A. Admissibility

71. The Government argued first that this provision was not applicable because since 20 January 2005 the applicant could not be considered “lawfully resident” in the meaning of Article 1 of Protocol No. 7 to the Convention. In this respect they noted that on 20 January 2005 he had lost the right to lawfully reside in the territory of Latvia, and that the subsequent withdrawal of the applicant’s permanent residence permit and his expulsion were merely the legal consequence of the decision of the Minister of Interior of 20 January 2005 to include the applicant in the blacklist.

72. The applicant contested the argument and contended that in the context of the expulsion proceedings by the decision of 16 June 2005 Jēkabpils District Court had extended the applicant’s detention by a two-month term, therefore, according to the applicant, his stay could not be considered unlawful.

73. As regards its field of application, the Court notes that pursuant to paragraph 9 of the Explanatory Report to Protocol No. 7, the word “lawfully” in Article 1 of that Protocol refers to the domestic law of the State concerned. It is therefore for the domestic law to determine the conditions which must be fulfilled for a person’s presence in the territory to be considered lawful.

74. The Court observes that in accordance with the provisions of the Immigration Law (see paragraph 41 above) the applicant exercised the right to appeal to the administrative court against the decision to withdraw his residence permit on the grounds of his inclusion in the blacklist. Under the domestic law such a right was reserved to “an alien legally residing in Latvia” (ibid.). The applicant’s appeal was allowed and at the time of his expulsion in July 2005 the court proceedings were pending and they continued until 2008 (see paragraphs 27-29 above). The domestic authorities considered the applicant to be “lawfully resident” in relation to the review of the withdrawal of his residence permit. Besides, in June 2005 a judge of the Jēkabpils District Court had authorised the applicant’s detention for two more months on the grounds that the applicant’s appeal against the expulsion order was pending (see paragraph 33 above), which adds to the lawfulness of the applicant’s stay. In such circumstances it is not for the Court to provide an interpretation contrary to that of the domestic authorities.

75. The Court refers next to the Government’s argument that the withdrawal of the residence permit and the subsequent expulsion were merely the legal consequences of the initial decision to include the applicant in the blacklist, and that ever since he was no longer “lawfully resident” (see paragraph 71 above). However, the Court points out that as long as under the operation of the domestic law the national authorities treated the applicant as “lawfully resident”, the Court has no room to conclude that, in the overall process, he was not “lawfully resident” for the purposes of Article 1 of Protocol No. 7.

76. In the light of the above considerations, the Court finds that Article 1 of Protocol No. 7 was applicable in the present case.

77. 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

78. The Government contended that the applicant had fully exercised his procedural rights, because his complaint against the expulsion order of 13 June 2005 had been duly examined by the Head of the Office of Citizenship and Migration Affairs, who had adopted a decision on 11 July 2005. They also argued that Article 1 of Protocol No. 7 did not imply that prior to the expulsion the person concerned ought to be served with a decision reached as a result of the review proceedings.

79. The applicant submitted that he had never been served with the decision of 11 July 2005 and therefore he had been unable to seek further remedies.

80. The Court reiterates that in the event of deportation, in addition to the protection afforded by Articles 3 and 8 of the Convention taken in conjunction with Article 13, aliens benefit from the specific guarantees provided for in Article 1 of Protocol No. 7 (see Lupsa v. Romania, no. 10337/04, § 51, ECHR 2006-VII). Paragraph 1 of this Article establishes as the basic guarantee that the person concerned may be expelled only “in pursuance of a decision reached in accordance with law”. No exceptions to this rule may be made. According to the Explanatory Report to Protocol No. 7, the term “law” here again refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules (see Bolat v. Russia, no. 14139/03, § 81, ECHR 2006-XI (extracts)).

81. In assessing whether the applicant’s expulsion was carried out pursuant to a decision reached “in accordance with law”, the Court notes that under section 70 of the Administrative Procedure Law an administrative act normally takes effect when it is notified to the addressee (see paragraph 50 above). Pursuant to section 80 of the same law the lodging of an appeal to a hierarchically higher authority suspends the execution of an administrative act, unless the conditions for urgent execution of an administrative act have been set out either in lex specialis or in the contested decision itself (see paragraphs 52 and 54 above).

82. Turning to the present case, the initial expulsion order in relation to the applicant was adopted on 13 June 2005 and came into effect on the same day when it was served on the applicant. The following day the applicant lodged a hierarchical appeal with the Head of the Office of Citizenship and Migration Affairs (see paragraph 32 above) which in principle suspended the execution of the initial expulsion order until coming into effect of the decision reached as a result of hierarchical appeal. In the applicant’s case the domestic authorities did not advance any grounds justifying urgent execution of his expulsion pending his hierarchical appeal (see, in relation to pending court proceedings, section 62 of the Immigration Law, paragraph 47 above). The applicant’s appeal against the expulsion order was decided on 11 July 2005 and, as stated in the decision, it took effect upon notification to the applicant. It is undisputed that the above decision was not served on the applicant before his expulsion on 12 July 2005. Accordingly, the applicant’s expulsion was based on a decision which had not yet become final, thus failing to comply with the procedure set out in the domestic law.

83. There has therefore been a violation of Article 1 of Protocol No. 7.

III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION

84. The applicant further complained that he had not been informed promptly of the reasons for his arrest on 7 June 2005. He relied on Article 5 § 2 of the Convention, which reads as follows:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

85. The Government contended that on the day of the applicant’s detention he was served with the records of detention setting out the relevant legal basis for the detention, as well as the reasoning thereof, which had been signed by the applicant. The Government also brought the Court’s attention to the fact that the applicant had passed the Latvian language test and therefore he could not possibly allege that there was anything to prevent him from following the detention procedure in Latvian.

86. The applicant did not comment on this matter.

87. The Court reiterates that Article 5 § 2 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees ﬁt, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. Whilst this information must be conveyed ‘promptly’, it need not be related in its entirety by the arresting officer at the actual moment of arrest. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see, among other authorities, Murray v. the United Kingdom, 28 October 1994, § 72, Series A no. 300-A). It also reiterates that paragraph 2 of Article 5, like paragraph 4, is applicable both to persons deprived of their liberty by arrest and to those deprived of it by detention (see Suso Musa v. Malta, no. 42337/12, § 113, 23 July 2013, and the cases cited therein). Article 5 § 2 applies to Article 5 § 1 (f) cases, although less detailed reasons are required to be given than in Article 5 § 1 (c) cases (see Bordovskiy v. Russia, no. 49491/99, § 56, 8 February 2005).

88. In the present case it is not contested that the applicant was aware of the decision of 1 February 2005 by which his residence permit was withdrawn on the grounds of his inclusion in the blacklist, and that accordingly he had to leave the territory of Latvia by 26 March 2005 (see paragraph 25 above). Even though the above decision was pending a court review and, presumably, the applicant could have expected that the expulsion proceedings would be stayed pending the outcome of the court proceedings, under Article 5 § 2 of the Convention the Court is limited to examining whether the applicant was informed promptly of the reasons for his arrest. It transpires from the evidence before the Court that the detention records, filed at the time of his detention and signed by the applicant, contained the information stated above. They indicated in particular that the applicant had been arrested under section 51, paragraph 1, part 2 of the Immigration Law (see paragraph 43 above) because he had been included in the blacklist and his residence permit had thereby been withdrawn. In addition, there is no evidence that the applicant had any language barriers which would prevent him from understanding the information provided to him in Latvian.

89. The Court concludes that the information provided to the applicant on the day of his detention satisfied the requirements of Article 5 § 2 of the Convention.

90. In the light of the above, there has been no violation of Article 5 § 2 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

91. The applicant further complained that he could not have the lawfulness of his arrest reviewed by a court. He relied on Article 5 § 4 of the Convention, which reads as follows:

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

A. Admissibility

92. The Government argued that it was for the applicant to submit a constitutional complaint if he considered his rights under Article 5 § 4 to the Convention had been violated by the fact that under section 51, paragraph 1, part 2 of the Immigration Law (as in force at the material time), the State Border Guard Service had the right, without a court decision, to detain a person for a period of ten days.

93. The applicant did not comment on this matter.

94. The Court considers that the non-exhaustion argument raised by the Government is closely related to the substance of the complaint under Article 5 § 4 of the Convention, and should be joined to the merits.

95. 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.

B. Merits

96. The Government argued that the guarantees afforded by Article 5 § 4 are less stringent in expulsion cases, and therefore the review carried out by the prosecutor’s office ensured an effective review mechanism. The Government also noted that after the expiry of the ten-day detention period the lawfulness of the applicant’s detention was subject to judicial review. Furthermore, they referred to the Guidelines on Forced Return by the Committee of Ministers of the Council of Europe of 20 May 2005, according to which a review in respect of the need to detain an individual should be subject to the supervision of a judicial authority in the event of prolonged detention. In the light of the above the Government contended that the ten-day detention period to which the applicant had been subjected without judicial review cannot be regarded as a prolonged period.

97. The applicant did not comment on this matter.

98. The Court reiterates that by virtue of Article 5 § 4, arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the Convention sense, of their deprivation of liberty. The notion of “lawfulness” must have the same meaning under paragraph 4 of Article 5 as in paragraph 1, so that the detained person is entitled to a review of the “lawfulness” of his detention in the light not only of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1 (see Chahal v. the United Kingdom, 15 November 1996, § 127, Reports of Judgments and Decisions 1996-V127; see also Georgia v. Russia (I) [GC], no. 13255/07, § 183, ECHR 2014 (extracts). Accordingly, in cases of detention with a view to deportation Article 5 § 4 does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law (see Chahal, cited above, § 128), whereas a remedy must be made available during a person’s detention to allow the individual to obtain a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see, mutatis mutandis, Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009, see also Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 139, 22 September 2009).

99. The Government argued that the detention period in expulsion proceedings was too short to be susceptible to judicial review. In this relation the Court observes that on 7 June 2005 the applicant was detained for a period of ten days, thus the maximum period for which an official of the State Border Guard Control could detain an alien without a judicial decision, irrespective of the grounds on which the detention had been ordered. The Court emphasises that where detention is ordered by an administrative authority for a period of several days, Article 5 § 4 requires an opportunity to challenge it before a judicial authority (see, mutatis mutandis, Shamsa v. Poland, nos. 45355/99 and 45357/99, § 59, 27 November 2003, and Čonka v. Belgium, no. 51564/99, § 55, ECHR 2002-I. Accordingly the Court dismisses the Government’s argument.

100. The Court will next examine in turn the remedies which, according to the Government, have provided or could have provided adequate redress to the applicant’s grievances.

101. The Government invoked, first, that the prosecutor’s review provided the guarantees stipulated in Article 5 § 4 of the Convention (see paragraph 31 above). The Court has already found that decisions adopted by the prosecutor could not be qualified as a decision taken by a “court” within the meaning of Article 5 § 4 (see Čalovskis, cited above, § 222). Moreover, the Court notes that at the time the prosecutor carried out their review, the proceedings leading to the applicant’s inclusion in the blacklist had not yet been terminated. It was only on 13 June 2005 that the Minister of Interior adopted a decision on the applicant’s request for his inclusion in the blacklist to be re-examined, and that the above-mentioned decision was still amenable to judicial review (see paragraph 23 above). The Court notes that the prosecutor’s decision adopted on 14 June 2005 did not even mention the ongoing proceedings against the applicant’s inclusion in the blacklist (see paragraph 31 above), and the possible implications the proceedings could have on the “lawfulness” of the applicant’s detention. In the light of the above, the Court cannot conclude that the prosecutor’s review complied with the requirements of Article 5 § 4.

102. On the Government’s next argument that the lawfulness of the applicant’s detention was also subjected to judicial review (see paragraph 33 above), the Court observes that on 16 June 2005 the Jēkabpils District Court reviewed the need for the applicant’s continued detention. Its competence was limited to the question of whether the applicant’s detention after the expiry of the ten-day period should be granted. The re-evaluation of the detention order adopted by the official of the Office of Citizenship and Migration Affairs was not amenable to judicial review.

103. Finally, the Court notes the Government’s submissions that the applicant could have lodged a constitutional complaint. It is true that in the light of the individual complaint mechanism before the Constitutional Court the applicant could claim that by failing to provide for a judicial review, section 47, paragraph 1, part 2 of the Immigration Law was not compatible with the Constitution. However, even if the Constitutional Court had ruled in the applicant’s favour, there is nothing to show that in the course of constitutional proceedings the applicant’s deprivation of liberty would be examined speedily and, where appropriate, that his release would be ordered (see, for an identical conclusion, Čalovskis v. Latvia, no. 22205/13, § 224, 24 July 2014, and Taraneks v. Latvia, no. 3082/06, § 107, 2 December 2014). In the light of the above, the Court finds that the remedies referred to by the Government did not provide the applicant an opportunity to challenge effectively the lawfulness of his detention. Accordingly, it dismisses the Government’s objection in relation to non-exhaustion of domestic remedies.

104. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was not provided with a remedy whereby he could obtain a judicial review of the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention.

105. Accordingly, there has been a violation of Article 5 § 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

106. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

107. The applicant claimed 142,960 United States dollars (USD) in respect of pecuniary damage and USD 800,000 in respect of non-pecuniary damage.

108. The Government disagreed with the claim.

109. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage.

B. Costs and expenses

110. The applicant also claimed the sum of USD 3,600 for costs and expenses incurred before the domestic courts, and EUR 1,400 for those incurred before the Court.

111. The Government disagreed with the claim.

112. Noting that the applicant had been granted legal aid (see paragraph 2 above), and relying on its case-law, the Court reiterates that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the fact that no documents were submitted attesting to the fact that the costs and expenses had been actually incurred, the Court rejects the claim.

C. Default interest

113. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Dismisses the Government’s request to strike the complaint under Article 8 of the Convention out of its list of cases;

2. Decides to join to the merits the Government’s objection as to the exhaustion of domestic remedies concerning the complaint under Article 5 § 4 of the Convention and rejects it;

3. Declares the complaints under Article 1 of Protocol No. 7 and Article 5 §§ 2 and 4 of the Convention admissible and the remainder of the application inadmissible;

4. Holds that there has been a violation of Article 1 of Protocol No. 7;

5. Holds that there has been no violation of Article 5 § 2 of the Convention;

6. Holds that there has been a violation of Article 5 § 4 of the Convention;

7. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

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

8. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SHARMA v. LATVIA - 28026/05 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 305 (24 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/305.html Cite as: [2016] ECHR 305