CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 décembre 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   882 6.12.2007   Press release issued by the Registrar   CHAMBER JUDGMENT LIU AND LIU v. RUSSIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Liu and Liu v. Russia (application no. 42086/05).   The Court held unanimously, that: if Liu Jingcai were deported from Russia, there would be a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights; and there had been no violation of Article 5 § 1 (right to liberty and security) of the Convention.   Under Article 41 (just satisfaction), the Court awarded the applicants, jointly, 6,000   euros   (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)   1.     Principal facts   The applicants are Liu Jingcai, a Chinese national who was born in 1968, and his wife, Yulia Aleksandrovna Liu, a Russian national who was born in 1973. They have been married since 1994 and have a daughter and son, born in 1996 and 1999 respectively, who are both Russian nationals. Ms Liu and the two children have lived in Russia all their lives. The family live in Sovetskaya Gavan in the Khabarovsk region of Russia.   Mr Jingcai lived legally in Russia from 1994-6 and 2001 to August 2003 on the basis on renewable work permits.   The case concerned the refusal to grant him a residence permit. He is currently living under the threat of being deported from Russia and being separated from his family.   From November 2002 onwards he applied for a residence permit, but his application was eventually rejected by the Khabarovsk Department of Internal Affairs under section 7 (1) of the Foreign Nationals Act, without any reasons being given.   The applicants appealed unsuccessfully to the Russian courts. On 4 November 2004 Tsentralniy District Court of Khabarovsk found that The Department of Internal Affairs had received information from the Federal Security Service that Mr Jingcai posed a national security risk. However, that information was a State secret and could not be made public. There was no indication in the district court’s judgment that it had had access to the classified information in question.   On 4 March 2005 a new application for a residence permit was rejected by The Department of Internal Affairs. The applicants’ attempts to have that decision overturned failed.   On several occasions in 2003, 2004 and 2005 Mr Jingcai was administratively fined for living in Russia without a valid residence permit. However, the domestic courts reversed most of those decisions, finding them procedurally defective or time-barred.   On 21 November 2005 Sovetskaya Gavan Town Court held that Mr Jingcai had infringed the residence regulations and ordered his detention pending deportation. On the same day he was placed in a detention centre. He was released when the decision to detain him was quashed, on 13 December 2005, under the Administrative Offences Code, because reasons justifying his detention had not been provided. On 3 February 2006 the administrative proceedings against Mr Jingcai were discontinued as time-barred.   On 12 November 2005 the head of the Federal Migration Service ordered Mr Jingcai’s deportation under section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation. No further reasons were provided.   On 25 December 2006 Sovetskaya Gavan Town Court ordered Mr Jingcai’s placement in a detention centre with a view to deporting him. The deportation order appears not to have been enforced. The applicant is currently living with his family in Russia.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 25 November 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Nina Vajić (Croatian), Anatoli Kovler (Russian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), Giorgio Malinverni (Swiss), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained that Liu Jingcai’s detention had been unlawful and that his deportation to China would damage their family life. They relied on Articles 8 and Article 5.   Decision of the Court   Article 8   The Court found that the applicants’ relationship amounted to family life and that the refusal to grant him a residence permit and his deportation order constituted interference with the applicants’ right to respect for their family life and that it had a basis in domestic law, namely section 7 (1) of the Foreign Nationals Act and section 25.10 of the Entry Procedure Act.   However, the Court noted that the domestic courts were not in a position to assess effectively whether the decisions to reject Mr Jingcai’s application for a residence permit were justified, because they were based on classified information.   The Court recognised that the use of confidential material might be unavoidable where national security was at stake. That did not mean, however, that the national authorities could be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism were involved. There were ways to deal with legitimate security concerns about the nature and sources of intelligence information while providing the individual with a substantial measure of procedural justice.   The failure to disclose the relevant information to the courts deprived them of the power to assess whether the conclusion that Mr Jingcai constituted a danger to national security had a reasonable basis in the facts. It followed that the judicial scrutiny was limited in scope and did not provide sufficient safeguards against arbitrary exercise of the wide discretion conferred by domestic law on the Ministry of Internal Affairs in cases involving national security.   The Court concluded that the relevant provisions of the Foreign Nationals Act allowed the Ministry of Internal Affairs to refuse residence permits and to require a foreign national to leave the country on national security grounds without giving any reasons and without effective scrutiny by an independent authority.   The decisions ordering Mr Jingcai’s detention were taken by the Federal Migration Service on the initiative of a local police department. Both agencies were part of the executive and took such decisions without hearing the foreign national concerned. It was not clear whether there was a possibility of appealing against those decisions to a court or other independent authority offering guarantees of an adversarial procedure and competent to review the reasons for the decisions and relevant evidence.   The Court further observed that the Administrative Offences Code provided for a different procedure for removal of foreign nationals unlawfully residing in Russia, with substantial procedural safeguards, in particular, the power to order administrative removal belonged exclusively to a judge and that order was subject to appeal to a higher court. It followed that Russian law establishes two parallel procedures for expulsion of foreign nationals whose residence in Russia had become unlawful. In one of those procedures deportation of a foreign national could be ordered by the executive without any form of independent review or adversarial proceedings, while the other procedure (administrative removal) provided for judicial scrutiny. Domestic law permitted the executive to choose between those procedures at their discretion. The enjoyment of procedural safeguards by a foreign national was therefore in the hands of the executive.   The Court concluded that Mr Jingcai’s deportation was ordered on the basis of legal provisions (section 25.10 of the Entry Procedure Act) that did not give an adequate degree of protection against arbitrary interference. Accordingly, in the event of the deportation order against Mr Jingcai being enforced, there would be a violation of Article 8.   Article 5 § 1   The Court considered whether the detention order of 21 November 2005 had constituted a lawful basis for the first applicant’s detention until it was quashed on 13 December 2005.   The Court noted that the detention order of 21 November 2005 was quashed because the town court had not given reasons to justify the necessity of holding Mr Jingcai in custody. The Court considered that that flaw did not amount to a “gross or obvious irregularity”. The town court had not acted in bad faith and had attempted to apply the relevant legislation correctly. The fact that certain flaws in the procedure were found on appeal did not in itself mean that the detention was unlawful. As it had not been established that Mr Jingcai’s detention from 21 November to 13 December 2005 was unlawful, there had been no violation of Article 5 § 1.   Other articles   The Court rejected the applicants’ other complaints as inadmissible.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.