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Постановление Европейского суда по правам человека от 12.02.2009 «Дело Нолан (Nolan) и K. против России» [англ.]





ntinuous links with a specific place (see, mutatis mutandis, Prokopovich v. Russia, No. 58255/00, § 36, ECHR 2004-XI, and Gillow v. the United Kingdom, 24 November 1986, § 46, Series A No. 109). In the instant case the applicant had been continuously resident in Russia since 1994 and he had not established his residence elsewhere. His absence abroad was of a short duration and, on coming back, he expected to continue his residence in Russia. This is all the more evident in the light of the fact that his very young son K. had remained on Russian soil. The Court accordingly finds that the applicant was "resident" in Russia at the material time.
111. Secondly, as to the Government's second argument about the allegedly unlawful nature of his residence, the Court observes that, by contrast with the applicants in the above-mentioned Voulfouvitch and Oulianova case, who had arrived on one-day transit visas without ever having been resident in Sweden and had no legitimate expectation that they would be permitted to stay once their asylum application had been turned down, the applicant in the present case had been lawfully resident in Russia for over seven years and at the material time possessed a multiple-entry annual visa valid until 19 June 2002. The Government did not explain why they considered that the applicant's visa had been invalid at the time of his attempted return to Russia. The Court, for its part, does not discern any information in the case file to corroborate such an allegation. The visa the applicant possessed entitled him to reside in Russia and his place of residence had been registered on the basis of that visa (see paragraph 19 above). There had been no deportation order against him or any decision on reducing the term of validity of his visa. Finally, in so far as the Government may be understood to be referring to the effect of the border control's cancellation of the applicant's visa in the morning of 3 June 2002 (see paragraph 23 above), the Court considers that this act cannot deprive the applicant of his status as a "lawful resident" in the preceding period. Were it otherwise, a decision to expel would in itself remove the individual from the protection of Article 1 of Protocol No. 7 with the result that its guarantees would have no sphere of application at all. Accordingly, the Court dismisses the Government's claim that the applicant's residence was not lawful.
112. A third element required for Article 1 of Protocol No. 7 to apply is that an alien be "expelled". The notion of "expulsion" is an autonomous concept which is independent of any definition contained in domestic legislation (see Bolat v. Russia, No. 14139/03, § 79, ECHR 2006-XI). With the exception of extradition, any measure compelling the alien's departure from the territory where he was lawfully resident constitutes "expulsion" for the purposes of Article 1 of Protocol No. 7 (ibid.; see also paragraph 10 of the Explanatory Report cited in paragraph 50 above). The Court has no doubt that by issuing a decision of such nature as to bar the applicant from returning to Russia following his next trip abroad, the Russian authorities sought to prevent him from re-entering Russian territory and to compel his definitive departure from Russia. The applicant may therefore be considered to have been "expelled".
113. In the light of the above considerations, the Court finds that Article 1 of Protocol No. 7 was applicable in the present case.

2. Compliance with Article 1 of Protocol No. 7

114. The Court reiterates that the High Contracting Parties have a discretionary power to decide whether to expel an alien present in their territory but this power must be exercised in such a way as not to infringe the rights under the Convention of the person concerned (see Bolat, cited above, § 81, and Agee v. the United Kingdom, No. 7729/76, Commission decision of



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