ECtHR - Gaspar v Russia, Application no. 23038/15, 12 June 2018
| Country of applicant: | United States |
| Court name: | European Court of Human Rights (Third Section) |
| Date of decision: | 12-06-2018 |
| Citation: | Gaspar v Russia, Application no. 23038/15, 12 June 2018 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
Headnote:
The European Court of Human Rights finds Russian authorities violated an American national’s Article 8 right to respect for family life, as it had compelled her to leave Russia, where her husband and minor child were living.
Facts:
The applicant, an American national, had been living in Russia since 2004 on the basis of regularly extended residence permits. In 2005, she married her Russian husband and her daughter was born in 2009.
In 2014, the Russian authorities rejected her application for Russian citizenship and revoked her Residences Permit on national security grounds. As a result of this the applicant had to leave Russia, where her husband and dependant child were living.
Relying on Article 8 ECHR, the applicant complained that the order to leave the Russian territory disrupted her family life and that she was unable to refute the security services’ reports, which had been used in the decisions to remove her, as these were kept secret during the judicial review of their cases.
Decision & reasoning:
The court found that that the domestic courts confined the scope of their examination to ascertaining that the recommendation of the Federal Security Service (to revoke the residence permit on national security grounds) had been issued within its administrative competence, without carrying out an independent review of whether their conclusion had a reasonable basis in fact.
Furthermore, the applicant’s representative was not shown the confidential materials on which this recommendation was based. The undisclosed nature of the allegations against the applicant made it impossible for her to challenge the security services’ assertions by providing exonerating evidence, such as an alibi or an alternative explanation.
Therefore, the Court found that the domestic court proceedings concerning the examination of the decision to revoke the applicant’s residence permit – and the effects it had on the family life of the applicant – was not attended by sufficient procedural guarantees, in violation of Article 8 ECHR.
Outcome:
Violation of Article 8. Just satisfaction: 12,500 euros (EUR) (non-pecuniary damage) and EUR 1,642 (costs and expenses).
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Slivenko v. Latvia [GC], Application No. 48321/99 |
| ECtHR - Liu v. Russia (no. 2), Application No. 29157/09 |
| ECtHR - Boultif v Switzerland, Application No. 54273/00 |
| ECtHR - De Souza Ribeiro v France [GC], Application No. 22689/07 |
| ECtHR - Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI |
| ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| ECtHR - Dalia v. France, Application No. 26102/95 |
| ECtHR - Mehemi v. France, no. 53470/99 |
| ECtHR - Nolan and K. v Russia, Application no. 2512/04, 12 February 2009 |
| ECtHR - Al- Nashif v Bulgaria, Applciation no. 50963/99, 20 September 2002 |
| ECtHR - Liu v. Russia (no. 2), application no. 29157/09, 26 July 2011 |
| ECtHR - Gablishvili v. Russia, application no. 39428/12, § 37, 26 June 2014 |
| ECtHR - Buckley v. the United Kingdom, 25 September 1996, Reports of Judgments and Decisions 1996-IV |
| ECtHR - Amie and Others v. Bulgaria, no. 58149/08, 12 February 2013 |
| ECtHR - Dzhurayev and Shalkova v. Russia, no. 1056/15, 25 October 2016 |
Other sources:
On the same day, the ECtHR gave its judgment in Zezev v. Russia (application no. 47781/10) which concerned similar facts to Gaspar and where the Court similarly found that the removal of a Kazakh national on security grounds violated the applicant's Article 8 rights.