CASE OF BARTIK v. RUSSIA
(Application no. 55565/00)
21 December 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bartik v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 30 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“I, [the applicant], undertake:
(a) not to disclose information containing State and professional secrets that are entrusted to me or that I learn by virtue of my service (work) duties...
(c) not to visit embassies, missions, consulates or other representative offices of foreign States, and not to contact – directly or through others – foreigners without the consent of the management of the agency I work for or the relevant Soviet authorities...
I have been informed of the prohibition on travel abroad, except as permitted by relevant laws and regulations...”
“I, [the applicant], on assuming my work duties at the Raduga design agency, undertake:
(a) not to disclose information containing State and professional secrets entrusted to me or coming to my attention by virtue of my service (work) duties;
(b) to abide by the applicable requirements laid down in the orders, instructions and regulations concerning the secrecy of the studies conducted, of which I have taken cognisance;
(c) to notify the department of the enterprise responsible for secrecy arrangements or the competent authorities of any attempts by outsiders to obtain secret information from me;
(d) to inform the human resources department in a comprehensive and timely fashion of any change in my personal circumstances. To inform the department responsible for secrecy arrangements of any contacts with my relatives permanently living abroad or planning to take up permanent residence abroad, or of any non-professional contacts with foreigners.
In the event of my dismissal I undertake to abide strictly by requirements (a) and (c) above...”
“As there exist grounds for a temporary restriction on your right to leave the Russian Federation as set out in section 15 of the Act on the Procedure for Entering and Leaving the Russian Federation, your application for a travel passport has been declined until 2001 further to a recommendation (zakluchenie) by the Raduga design agency of 20 February 1997 (registration number 6/209/23324)”.
“According to the report... [the applicant] in his work used workbooks bearing inventory nos. 5301 and 4447 that contained extracts from top-secret documents (nos. ...). In respect of some inventory numbers, requests were sent to the design enterprises [in order] to verify whether the information contained therein was still sensitive. However, no response was received. Moreover, the court questioned a witness, Mr K., the deputy General Director responsible for the regime and for security at the Raduga agency, who confirmed that the information contained in the documents that had been drawn up in the Raduga agency had retained its top-secret classification and was still sensitive... As the witness Mr K. clarified to the court, there are no grounds for changing the secrecy classification of this information...”
On these grounds the court determined that the restriction on the applicant's right to leave the Russian Federation until 14 August 2001 was lawful and justified.
II. RELEVANT DOMESTIC LAW
A. The USSR Act on the Procedure for Entering and Leaving the USSR (USSR Law no. 2177-I of 20 May 1991 – “the USSR Act”)
B. The Act on the Procedure for Entering and Leaving the Russian Federation (Law no. 114-FZ of 15 August 1996 – “the Russian Act”)
C. The State Secrets Act (Law no. 5485-1 of 21 July 1993)
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
“10. The Parliamentary Assembly notes that the Russian Federation shares fully its understanding and interpretation of commitments entered into... and intends:
xv. to cease to restrict – with immediate effect – international travel of persons aware of state secrets, with the exception of those restrictions which are generally accepted in Council of Europe member states...”
IV. SITUATION IN THE COUNCIL OF EUROPE MEMBER STATES
V. RELEVANT UNITED NATIONS DOCUMENTS
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.”
“1. Liberty of movement is an indispensable condition for the free development of a person...
2. The permissible limitations which may be imposed on the rights protected under article 12 must not nullify the principle of liberty of movement, and are governed by the requirement of necessity provided for in article 12, paragraph 3, and by the need for consistency with the other rights recognized in the Covenant.
8. Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus travelling abroad is covered, as well as departure for permanent emigration...
9... Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere...
11. Article 12, paragraph 3, provides for exceptional circumstances in which rights under paragraphs 1 and 2 may be restricted...
14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.
16. States have often failed to show that the application of their laws restricting the rights enshrined in article 12, paragraphs 1 and 2, are in conformity with all requirements referred to in article 12, paragraph 3. The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality. These conditions would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of 'State secrets'...”
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4
“2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of [this] right other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The applicant's status as a “victim” of the alleged violation
In these circumstances the applicant may still claim to be a “victim” of a violation of Article 2 of Protocol No. 4.
B. Existence of an interference
C. Justification for the interference
1. The applicable test
2. Whether the restriction was “in accordance with law”
3. Whether the restriction pursued a legitimate aim
4. Whether the restriction was “necessary in a democratic society”
Accordingly, there has been a violation of Article 2 of Protocol No. 4.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR 1,600 (one thousand six hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 21 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
1. The name of the document is literally translated as “foreign passport”. It is sometimes referred to as the “international passport”, by contrast with the “internal passport”, a Russian citizen’s identity document for use inside Russia.