EHRM, 12-06-2018, nr. 7549/09, nr. 33330/11

The first applicant is a Russian national who was born in 1951 and lives in Volzhskiy, in the Volgograd Region.

At the relevant time she was a Soviet national and lived in Kyrgyzstan.

In 1994 the first applicant applied to the Russian embassy in Bishkek for Russian citizenship.

In March 1994 she was granted Russian citizenship and the Russian embassy in Bishkek put a stamp in her Soviet passport to this effect.

Thereafter the first applicant moved to Russia.

On 14 July 2001 she obtained a new Russian ‘internal passport’ (a citizen's identity document for use inside Russia).

In 2006 the first applicant applied to the Federal Migration Service (FMS) for an ‘international passport’ required for foreign travel.

On 11 April 2006 an official from the FMS seized her Russian passport, which was later destroyed. The FMS referred to a report of 26 January 2006 on a check carried out by the agencies of the interior, according to which the first applicant had never properly acquired Russian citizenship and therefore had no right to be in possession of a Russian passport. The report stated, in particular, that whereas the first applicant had been issued with a Russian passport on 14 July 2001, she was not registered in the database of the Ministry of Foreign Affairs as a person who had acquired Russian citizenship. Furthermore, according to a letter of 18 October 2015 from the Russian embassy in Kyrgyzstan, it had no records on her obtaining Russian citizenship either. Accordingly, she had been issued with a Russian passport erroneously in 2001.

The first applicant complained to the prosecuting authorities.

On 15 June 2006 the Volzhskiy prosecutor's office rejected the complaint.

In a response of 27 October 2006 the Volgograd Region prosecutor's office stated that the FMS was not competent to seize passports, something which only the agencies of the interior could do; that the first applicant's passport had been seized in breach of the law; and that the prosecutor's office recommended that the FMS rectify the situation.

On 20 March 2007 the FMS issued report no. 37 to the effect that the first applicant had never properly acquired Russian citizenship, and that a Russian passport had been issued to her unlawfully.

The first applicant appealed to a court against the findings of the report of 26 January 2006.

On 28 May 2007 the Volzhskiy Town Court found in favour of the first applicant and held that the check which had been carried out by the agencies of the interior had been unlawful.

The decision was subsequently quashed by means of supervisory review and the case was remitted for fresh examination.

On 28 February 2008 the Volzhskiy Town Court again held that the check had been unlawful.

However, the FMS did not set aside the decision to seize the first applicant's passport, and a new passport was not issued to her either.

The first applicant again instituted court proceedings, this time for a finding that the seizure of her passport had been unlawful.

On 4 April 2008 the Volzhskiy Town Court dismissed the first applicant's complaint. It accepted the FMS's arguments that she had never acquired Russian citizenship, although it also found that the FMS officials' actions of 11 April 2006 had been procedurally incorrect, as the FMS did not have competence to seize passports.

On 3 July 2008 the Volgograd Regional Court upheld the decision on appeal.

A request by the first applicant for supervisory review was dismissed on 30 January 2009.

The first applicant then instituted another set of court proceedings against the FMS concerning its inaction in relation to issuing her with an identity document. She also contested the FMS report no. 37 of 20 March 2007.

On 25 March 2009 the Volzhskiy Town Court dismissed the complaint.

On 7 August 2009 the Volgograd Regional Court upheld the decision on appeal.

The first applicant reapplied for Russian citizenship.

On 14 April 2009 she was granted Russian citizenship under a simplified procedure on the basis of a FMS decision of 16 March 2009 to this effect.

On 27 March 2010 the first applicant was issued with a Russian passport.

The second applicant was born in 1965 and lives in Kostroma.

According to the second applicant, between 1987 and 2010 he lived in the Rostov Region. Initially, he had a Soviet Union passport issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia.

On 23 December 1998, in accordance with the procedure then in force, the second applicant was issued with an insert for his passport (bкладыш) specifying that he was a citizen of the Russian Federation.

On 19 February 2002 the Passport and Visa Directorate of Police Office no. 1 of Taganrog, in the Rostov Region, issued the second applicant with a Russian passport.

In 2010 the second applicant moved to Kostroma.

On 18 January 2010 the second applicant applied to the FMS of the Centralniy District of Kostroma to register his place of residence.

According to the Government, owing to doubts as to whether the second applicant had been issued with a Russian passport in accordance with the established procedure, the FMS of the Centralniy District of Kostroma sent a request to the FMS of the Rostov Region.

On 30 June 2010 the FMS of the Rostov Region issued a certificate which reads, in so far as relevant:

On 22 July 2010, when the second applicant turned 45, in accordance with the applicable procedure, he applied to the FMS to exchange his passport.

The second applicant received a verbal refusal to issue him with a new passport. According to the official who notified him of the refusal, the second applicant had failed to prove that he had had a permanent place of residence in Russia on 6 February 1992 (see paragraph 57 below), and he had only had a registered place of residence in Russia since February 2002.

On 28 July 2010 the second applicant provided the Kostroma Region FMS with a written explanation to the effect that between 1989 and 2002 his place of residence had been registered in Rostov-on-Don, although he had actually been living with his partner, M., in the Krasnodar Region.

On 13 August 2010 the Residential Registration Department of the Leninskiy District of Rostov-on-Don provided the second applicant with a certificate confirming that he was not registered in the Leninskiy District and there was no information about him in the archives either.

On 23 September 2010 the Krasnodar Region FMS informed the Kostroma Region FMS that its archives contained no information about the second applicant, and that it appeared to be impossible to question M. because she was absent from her place of residence.

On 27 September 2010 the Kostroma Region FMS issued a decision to the effect that the second applicant was not a Russian citizen. With reference to the certificate of 30 June 2010 issued by the FMS of the Rostov Region, the decision stated, in particular, that according to the enquiries carried out, the second applicant's Russian passport had been issued in breach of the applicable rules. It further stated that it had proved impossible to obtain documentary evidence that the second applicant had been living in Russia on 6 February 1992, and the stamp in his passport only confirmed that he had been registered as resident in the Rostov Region from 15 February 2002 to 17 February 2010. The decision also noted that the database of the Ministry of Foreign Affairs contained no information as to whether the second applicant had obtained Russian citizenship. Accordingly, the enquiries made had obtained no evidence that the second applicant had acquired Russian citizenship or that he had been living in Russia on 6 February 1992.

The second applicant appealed to the Sverdlovskiy District Court of Kostroma against the refusal to exchange his passport.

At a hearing on 20 October 2010 a representative from the FMS of the Centralniy District of Kostroma stated, in particular:

On 21 October 2010 the Sverdlovskiy District Court of Kostroma upheld the decision of the FMS. It noted that, as a result of a check carried out pursuant to sections 51 and 52 of the 2002 Regulation on the Examination of Issues Related to Citizenship of the Russian Federation, the FMS had found that the second applicant had been issued with a Russian passport in breach of the applicable rules, and was not entitled to Russian citizenship. In particular, it had not been confirmed that he had been living in Russia on 6 February 1992. This justified the refusal to exchange his passport. The court also noted that the reports of the checks carried out by the FMS had not been appealed against or set aside in accordance with the established procedure, and that they were not the subject of the court's examination in those proceedings.

The court further dismissed the second applicant's argument that the fact that he had been using the previously issued Russian passport for eight years constituted a valid reason to exchange the passport. The court likewise dismissed his argument that he had not violated any laws or regulations in 2002, when he had been issued with the Russian passport. The court found that his passport was invalid regardless.

The second applicant appealed.

On 6 December 2010 the Kostroma Regional Court upheld the decision. The appeal court noted, in particular, that the certificate issued by the Rostov Region FMS on 30 June 2010 showed that a Russian passport had been issued to the second applicant on the basis of a certificate of 23 December 1998 issued by the Department of the Interior of the Leninskiy District of Rostov-on-Don confirming that he was a Russian citizen in accordance with section 13(1) of the 1991 Law on Citizenship of the Russian Federation. However, the legal validity of that certificate had not been confirmed. It further noted that, according to the results of the enquiries carried out in the places indicated by the applicant as his places of residence in Russia between 1989 and 2002, no confirmation of his registration and residence as of 6 February 1992 had been received with respect to any of the addresses indicated.

The appeal court also noted that the second applicant's argument that he had not been informed about the report issued following the check carried out by the FMS, and that therefore he could not have appealed against it, had not affected the lower court's conclusions.

On 25 March 2013, following the entry into force of Law no. 182-FZ on Amendments to the Russian Citizenship Act of 12 November 2012, the second applicant applied for Russian citizenship.

On 23 April 2013 the FMS of the Kostroma Region decided to grant the second applicant Russian citizenship.

On 30 April 2013 the second applicant received a Russian passport.

In decision no. GKPI 06-337 of 6 June 2006 the Supreme Court stated ‘a passport confirms citizenship of the Russian Federation, which does not arise out of this document, but on the basis of and in accordance with the procedure provided for by the federal law and other [applicable] laws and regulations’.

In decision no. KAS 06-300 of 17 August 2006 the Appeals Division of the Supreme Court stated ‘[a] passport constitutes a document confirming citizenship of the Russian Federation only if it is issued by a competent State agency in the official form in accordance with the [applicable] procedure. A passport that does not meet these requirements may not be considered a [valid] document, nor will it confirm the [holder's] citizenship of the Russian Federation’. It also noted that ‘the rules on the seizure of unduly issued passports that do not constitute a document confirming citizenship of the Russian Federation do not affect the rights and freedoms of citizens guaranteed by the Constitution and laws of the Russian Federation’.

Russia is not a party to the 1954 United Nations Convention relating to the Status of Stateless Persons, nor is it a party to the 1961 United Nations Convention on the Reduction of Statelessness.

Desiring to promote the progressive development of legal principles concerning nationality, as well as their adoption in internal law, and desiring to avoid, as far as possible, cases of statelessness, the Council of Europe drew up the 1997 European Convention on Nationality. One of its principles, provided for in Article 4, is that ‘statelessness shall be avoided’. Article 6 provides that each State Party must facilitate in its internal law the acquisition of its nationality for stateless persons. Article 7, however, specifies that a State Party may not provide in its internal law for the loss of its nationality if the person concerned would thereby become stateless, with the exception of cases of acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to that person.

This Convention was signed by Russia on 6 November 1997 but has not been ratified.

On 15 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 18 on the avoidance and reduction of statelessness. In particular, concerning the avoidance of statelessness as a consequence of loss of nationality, it recommends, in so far as relevant, the following:

The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on untrue facts (see, among others, Akdivar and Others v. Turkey [GC], 16 September 1996, §§ 53–54, Reports of Judgments and Decisions 1996-IV; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012; and, with further references, Gross v. Switzerland [GC], no. 67810/10, §§ 27–37, ECHR 2014 ). The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Bencheref v. Sweden (dec.), no. 9602/15, § 37, 5 December 2017; Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; and Kowal v. Poland (dec.), no. 2912/11, 18 September 2012). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Centro Europa 7 S.r.l. and Di Stefano, ibid., and Gross, ibid.). However, even in such cases, the applicant's intention to mislead the Court must always be established with sufficient certainty (see Al-Nashif v. Bulgaria, no. 50963/99, § 9, 20 June 2002; Melnik v. Ukraine, no. 72286/01, §§ 58–60, 28 March 2006; Nold v. Germany, no. 27250/02, § 87, 29 June 2006; Centro Europa 7 S.r.l. and Di Stefano, ibid.; and Gross, ibid.).

The Court takes note of the applicants' observations to the effect that the issue of a new passport was irrelevant to the essence of their complaints. The Court considers that the fact that the applicants were eventually granted Russian citizenship is undoubtedly relevant for the examination of the present cases. However, in the court's view it does not affect the substance of the applicants' complaints under the Convention. Furthermore, the Court does not have sufficient elements in its possession to establish with certainty the applicants' intention to mislead it (see, by contrast, Gross, cited above, § 36).

In view of the above, the Court does not consider that the applicants' conduct amounted to an abuse of the right of petition. Accordingly, the Government's objection is dismissed.

The Court must first ascertain whether the applicants remain victims of an alleged violation of Article 8, when account is taken of the fact that on 14 April 2009 and 23 April 2013 respectively they were granted Russian citizenship.

The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V).

In the cases at hand, there is no evidence that the authorities have acknowledged a breach of the applicants' rights in connection with the seizure of the first applicant's Russian passport in 2006 and the refusal to exchange the second applicant's Russian passport in 2010. Furthermore, the Court notes that the applicants' complaints concern not just the very fact of the seizure of the passport or the refusal to exchange it, but the whole scope of the ensuing practical difficulties they encountered in their everyday life on account of the lack of a valid identity document. In the court's view, the fact that the applicants were eventually granted Russian citizenship could not in itself be considered to constitute sufficient redress for the fact that, over the course of several years, each of the applicants had been a stateless person without a valid passport. The Court has no information in respect of any other type of redress which may have been afforded to them.

The Court therefore concludes that the applicants can still be considered victims.

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.

The Court reiterates that the notion of ‘private life’ within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B), the right to ‘personal development’ (see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001-I) and the right to self-determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III).

The Court has accepted that an arbitrary denial of citizenship might, in certain circumstances, raise an issue under Article 8 of the Convention because of its impact on the private life of the individual (see Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II, and Genovese v. Malta, no. 53124/09, § 30, 11 October 2011). Recently, the Court has accepted that the same principles must apply to the revocation of citizenship already obtained, since this might lead to a similar — if not greater — interference with the individual's right to respect for family and private life (see Ramadan v. Malta, no. 76136/12, § 85, ECHR 2016 (extracts), and K2 v. the United Kingdom (dec.), no. 42387/13, 7 February 2017). In determining whether a revocation of citizenship is in breach of Article 8, the Court has addressed two separate issues: whether the revocation was arbitrary, and what the consequences of revocation were for the applicant.

In determining arbitrariness, the Court has had regard to whether the revocation was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and swiftly (see Ramadan, cited above, §§ 86–89 and K2, cited above, § 50).

The Court notes that, in the present case, the domestic procedure applied to the applicants was not that of revocation of citizenship. Rather, the domestic authorities found that the applicants had never properly acquired Russian citizenship, due to certain irregularities in the relevant proceedings in 1994 and 1998 respectively. However, the Court does not find that the qualification of the procedure under domestic law is of crucial importance in the present case, and considers that the principles referred to above in paragraphs 107 and 109 are applicable.