Ukrainian citizen freed from detention center following appeal by ADC “Memorial”

Defense of the rights of Russian-speaking people” and prevention of “persecution of people with pro-Russian sympathies” in the Ukraine recently became top concerns for the Russian state officials and mass media and it was this “necessity of defending Russians” that was used as a pretext for annexation of the Crimea. Russian state officials declare that the “persecuted” Ukrainian citizens can easily get the status of refugees and temporary asylum in Russia and even receive Russian citizenship following a simplified procedure, especially those who have their families or children in Russia.

However, in spite of all these loud declarations, we are not aware of a single case when asylum was granted to a Ukrainian citizen in Russia, while the examples of the contrary are known. Igor Yu., a Ukrainian citizen was held in Saint Petersburg Center for detention of foreign nationals awaiting expulsion to the Ukraine. He is an ethnic Russian, a Russian-speaking citizen of the Ukraine, and his wife and child are both Russian citizens. He lived with his family in Russia for the last 9 years.

Yury’s wife, a Russian citizen, has approached ADC “Memorial” by writing on our website asking to help free her husband, who had been detained in the Center for foreign nationals. She feared that in case he was expelled from Russia, he would be banned from entering the country for the next 5 years, which would break the family and would be a psychological trauma for the child of Yury. Yury’s wife was not in a position to go with her husband to a western region of Rovno in the Ukraine, because she also had a daughter and a son from her previous marriage, she lived in Russia for the whole of her life, had private housing in Russia, her children were born and grew up in Russia and moving with them to the Ukraine would be unreasonable because of unstable situation there.

A lawyer, who is cooperating with ADC “Memorial”, has presented a legal appeal against an earlier ruling by Kalininsky district court of Saint Petersburg, which required expulsion of Yury Yu. from Russia and his placement into the Center for detention of foreign nationals ahead of expulsion. The lawyer also asked for provision of temporary asylum for Yury Yu. because the latter is an ethnic Russian, a Russian speaker and had a wife and child in the Russian Federation. On April 8, 2014 the case was considered by the Saint Petersburg city court. The lawyer presented the documents concerning the family situation of Yury Yu. and asked to take into consideration the necessity of keeping the family united, as well as the request for asylum that had been made by Yury Yu.

Saint Petersburg city court ruled to annul the earlier district court ruling concerning expulsion from Russia and sent the case for reconsideration, at the same time requiring to free Yury Yu. from the detention center. On April 9, 2014 Yury was freed.

It should be noted that the legal regulations, which are applied in Saint Petersburg and Leningrad region (Article 18.8, Section 3 of the Code on administrative violations), do not allow to apply penalty payment by foreign nationals without expulsion from the country in case they had violated the terms of stay in Russia (i.e. living in Russia without registration or due to lack of some documents). In this case even foreign nationals who have their spouses, children, parents in Russia, which is an indication of strong family ties in this country, in case they have formally broken Russian immigration legislation (for example, if they lack insurance policy or stayed in Russia over the 90 day period) are to be expelled from the country and placed into the Center for detention of foreign nationals awaiting expulsion despite humanitarian grounds and family situation in Russia. The period of detention in this center can amount to as long as two years and is not subject to any legal control by the authorities.

European Court for Human Rights (ECtHR) has repeatedly pointed out that the decisions concerning expulsion from a country and the scale of interference into family life of people should be made after studying relevant factors such as the personal situation of the defendants, the period of their previous stay in the country, the strength of family ties they have, the interests of their children, the absence of risk for the parents or children in case they are returned to the country of their origin. (See decision of ECtHR in the case of Boultif v. Switzerland no. 54273/00, 02.08.2001.)

A similar position was formulated by the ECtHR in cases against the Russian Federation, such as Liu and Liu v. Russia (no. 42086/05, 06.12.2007) and Zakayev and Safanova v. Russia no. 11870/03b, 11.02.2010). ECtHR has established that Article 8 of the Convention on expulsion was violated in these cases because the degree of interference into family life of the defendants in case one of the spouses was expelled from the country was not up to the criteria of “necessity in a democratic society” and had a negative impact on children.

A similar position was adopted by the Russian Supreme Court, but the absence of an alternative sanction in Article 18.8, Section 3 of the Code on administrative violations prevents Russian courts from making any other decision but expulsion from the Russian Federation.

In particular case of Yury Yu., his family was saved, but there are other numerous cases of broken families, expelled spouses, parents or children in Russia. We hope that Russian Federation will not only make declarations, but will observe the responsibilities it has agreed upon regarding Ukrainian and other foreign citizens, including the principle of unity of family and respect of the interests of children.

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