EHRM, 22-02-2007, nr. 1509/02

The Government denied that there had been an interference with the applicant's right to liberty of movement because her presence in the Russian Federation had not been lawful. They claimed that the applicant, who had arrived from Georgia, had failed to take any steps to determine her citizenship and to make her residence in Russia lawful, such as confirming her Georgian citizenship or applying for Russian citizenship. They stated that the applicant's situation had been governed by the 1981 USSR Law on the Legal Status of Foreign Citizens in the USSR and by the 1991 Rules on the Stay of Foreign Citizens in the USSR. Pursuant to sections 5 and 32 of the 1981 USSR law, the applicant, as a stateless person, should have obtained a residence permit from the department of the interior. The Government concurrently claimed that, after entry visas had been introduced for Georgian citizens from 5 December 2000, the applicant could only be lawfully resident in Russia on 25 December 2000 if she had crossed the border with a valid Russian visa in her national passport.

The applicant criticised the Government's arguments as mutually exclusive and inconsistent. She continued to hold citizenship of the former USSR and had never acquired Georgian citizenship. Consequently, she had not been required to obtain an entry visa as a Georgian citizen. In any event, she had not crossed the Russian border in 2000 or later. As to the Government's reliance on the 1981 USSR law and the 1991 Rules, section 1 of that law states that it did not apply to USSR citizens, which the applicant had remained, and it had therefore not been applicable to her. In fact, until a new Russian law on the Legal Status of Foreign Citizens was adopted on 25 June 2002, Russia had no legislation imposing an obligation on citizens of the former USSR to obtain residence permits as a condition of their lawful residence in Russia. Thus, at the material time she was lawfully present in the Russian Federation.

The third party submitted that at least after the adoption of Government resolution no. 290 of 12 March 1997 (see paragraph 30 above) the conditions for enjoyment of liberty of movement across Russia had been the same for Russian citizens and citizens of the former USSR, that is, the very presence (even without registration at the place of residence) of citizens of the former USSR in Russia had constituted lawful residence. Recognition of the status of citizens of the former USSR in the Russian Federation had ceased to exist only on 31 December 2000. After that date they were to be considered as stateless persons and subjected to the same legal regime as foreign citizens. The third party noted that before 1 November 2002 there had been no notion of temporary residence permits in Russian legislation, and registration at the permanent place of residence could not by its nature be regarded as such a permit. Failure to register at the place of residence could lead to a fine, but it did not affect the lawfulness of the residence of citizens of the former USSR in Russia per se.

Article 2 of Protocol No. 4 guarantees the right to liberty of movement and freedom to choose his residence to everyone who is ‘lawfully within the territory of a State’. The Government claimed that the applicant did not fit into that category because she did not possess a residence permit and an entry visa.

The Court notes at the outset that the reasons advanced by the Government did not form the basis for the initial administrative decision refusing registration of the applicant's address for a failure to submit a complete set of documents (see paragraph 10 above). The contention that the applicant should have possessed an entry visa as a Georgian citizen, appeared for the first time in the comments on the applicant's statement of claim and was subsequently upheld by the domestic courts (see paragraph 12 et seq. above).

In so far as the Russian authorities claimed that the applicant needed an entry visa as a Georgian citizen, the Court observes that the applicant maintained as her citizenship that of the former USSR. She denied that she had ever acquired Georgian citizenship. Neither in the domestic proceedings nor before the Court did the Russian authorities produce any evidence in support of their claim that the applicant had been a Georgian citizen. The registration of the applicant's residence in Tbilisi dating back to early 1990s had no automatic bearing on determination of her citizenship under either Russian or Georgian laws. As the Government's allegation that the applicant was of Georgian citizenship has no evidentiary basis, the denunciation, by the Russian Federation, of the Bishkek Agreement on visa-free exchanges could not have affected the lawfulness of her residence on the Russian territory.

The Government concurrently maintained that the applicant had been a stateless person — having acquired no other citizenship after the collapse of the Soviet Union — and had been therefore required to hold a residence permit in accordance with the 1981 USSR Law on Foreign Citizens. The Court notes at the outset that this argument first appeared in the Government's observations of 26 March 2004 and that it had not been relied upon for refusing the application for residence registration in the domestic proceedings. In any event, the Court does not consider this argument convincing for the following reasons.

Before 31 December 2000 the individuals who had not obtained the citizenship of one of the newly independent States that had once formed the Soviet Union, had had a special legal status in Russia, that of a ‘citizen of the former USSR’. Only after that date they were to be considered as stateless persons (see paragraph 24 above). The applicant claimed that she belonged into that category and the Government did not produce any evidence to the contrary. It follows that at the material time, in early December 2000, the requirement to have a residence permit established in the 1981 USSR law governing the status of foreign citizens and stateless persons did not apply to her because she was neither a foreign citizen nor a stateless person (see paragraph 25 above). In any event, both the 1993 Law on the liberty of movement and freedom to choose residence, and the Government resolution of 12 March 1997 established that the procedure for registration of residence of ‘former USSR citizens’ should be the same as that for Russian citizens (see paragraphs 29 and 30 above).

Since the Government's claims that the applicant's presence in Russia was unlawful have been found to be without legal and/or factual basis, the Court accepts that the applicant, a ‘citizen of the former USSR’ at the material time, was lawfully present in Russia.

Article 2 § 1 of Protocol No. 4 is therefore applicable in the instant case.

The applicant submitted that residence registration is the proof of residence in the Russian Federation and its absence had prevented her from exercising many social rights, including access to medical assistance, social security, old-age pension, the right to possess property, to marry, and others.

The Court reiterates that it has found the requirement to report to the police every time applicants wished to change their place of residence or visit family friends to disclose an interference with their right to liberty of movement (see Denizci and Others v. Cyprus, nos. 25316–25321/94 and 27207/95, §§ 346–47 and 403–04, ECHR 2001-V; and Bolat v. Russia, no. 14139/03, § 65, 5 October 2006).

In the present case the applicant was required by law to have her place of residence registered by the police within three days of moving in (see paragraph 30 above). The domestic authorities' refusal to certify her residence at the chosen address exposed her to administrative penalties and fines (see paragraph 32 above). Accordingly, the Court considers that there has been an interference with the applicant's right to liberty of movement under Article 2 of Protocol No. 4.

The Court has next to determine whether the interference complained about was justified. In this connection it observes that the Parliamentary Assembly of the Council of Europe expressed concern over the existing restrictive system of residence registration in Russia (see paragraph 33 above). It reiterates, however, that it is not the Court's task to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied in a particular case gave rise to a violation. Accordingly, in the present case the Court has to ascertain whether the interference with the applicant's right to freedom to choose residence was ‘in accordance with the law’, pursued one or more of the legitimate aims set out in paragraph 3 of Article 2 of Protocol No. 4 and was ‘necessary in a democratic society’ or, where it applies to particular areas only, was ‘justified by the public interest in a democratic society’ as established in paragraph 4 (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 45, ECHR 2005-…).

The applicant maintained that she had produced a complete set of documents, even though some of these documents had not been required by law but requested as a matter of administrative convenience. In these circumstances, the police department had had no discretion to refuse her application for residence registration.

The Government did not offer any justification for the interference, beyond the arguments of the unlawfulness of the applicant's residence in Russia, which the Court has already examined and rejected above.

The Court notes that the Regulations on registering residence required an applicant to submit a completed application form accompanied by an identity document and a document showing the legal basis for residing at the indicated address (see paragraph 30 above).

The applicant submitted to the Filevskiy Park passports department a completed application form, her passport and a duly signed and certified consent by the flat owner, as well as certain other documents not required by law (see paragraph 8 above). Her application was nevertheless declined for a failure to submit a complete set of documents. It has never been specified which of the documents required by law were allegedly missing (see paragraph 10 above).

In this connection the Court reiterates that if the applicant's application was not deemed complete, it was the national authorities' task to elucidate the applicable legal requirements and thus give the applicant clear notice how to prepare the documents in order to be able to obtain residence registration (see Tsonev v. Bulgaria, no. 45963/99, § 55, 13 April 2006). This had not, however, been done. Accordingly, the Court considers that this ground for refusing registration has not been made out.

The Court pays special attention to the authoritative interpretation of the Regulations for registering residence given by the Constitutional Court of the Russian Federation in 1998 (see paragraph 31 above). It held that the registration authority had a duty to certify an applicant's intention to live at the specified address and that it should have no discretion for reviewing the authenticity of the submitted documents or their compliance with the Russian laws. It determined that any such grounds for refusal would not be compatible with the Constitution. It appears, however, that the binding interpretation of the Constitutional Court was disregarded by the domestic authorities in the applicant's case.

In these circumstances, the Court finds that the interference with the applicant's right to freedom to choose her residence was not ‘in accordance with law’. This finding makes it unnecessary to determine whether it pursued a legitimate aim and was necessary in a democratic society (see Gartukayev v. Russia, no. 71933/01, § 21, 13 December 2005).

There has therefore been a violation of Article 2 of Protocol No. 4.