(Application no. 2512/04)
12 February 2009
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 Nolan and K. v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 22 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Legal status of the Unification Church in Russia
“In the Russian Federation neither the Unification Church nor its leaders have ever been held criminally liable. No violations of the federal law on freedom of conscience and religious associations on the part of the Unification Church or its various representatives have been established. Thus, (1) the Unification Church is a religious, non-commercial organisation and, accordingly, has the characteristics of a religious association within the meaning of section 6 § 1 of the federal law on freedom of conscience and religious associations; and (2) no indication of unlawful activities has been uncovered in its religious teachings and corresponding practice.”
B. The applicant's residence in Russia
“Ensuring the national security of the Russian Federation also includes the protection of its ... spiritual and moral heritage ... the forming of a State policy in the field of spiritual and moral education of the population ... and also includes opposing the negative influence of foreign religious organisations and missionaries ...”
“The prosecutor's office of the Stavropol Region has banned the activity of social organisations under the protection of which the Korean Moon ... was buying souls for $500 a piece.
Once there were two public organisations registered by the Stavropol Department of Justice: the Youth Federation for World Peace (YFWP) and the Family Federation for World Peace and Unification (FFWPU). As it turned out, these so-called public movements preach one of the most dangerous religions of the past century...
Outwardly inoffensive 'pedlars' who sell or give away the 'New Families' newspaper and cheap caramels lure young men and women into Moon's family ... Young missionaries who were freely permitted to lecture to senior students at Stavropol schools introduced themselves as volunteers from the International Education Fund (IEF), [which is] one of Moon's many 'parishes' ...
The self-proclaimed lecturers had no documents authorising them to talk to students. To 'sweeten' the lectures, they distributed caramels. Later, a panel of experts from the Stavropol clinic for borderline states gave a negative appraisal of Gutsulka caramels that Moonies distributed to children and adults alike. As it turned out, an outwardly inoffensive caramel destroys the human being's energy-information profile. Simply speaking, such caramels with little-known inclusions – in some of them small holes are visible – facilitate the conversion of neophytes into zombies.
The contents of Moonies' lectures leave a strong aftertaste of debility. It is sufficient to read the briefing materials [prepared by] the IEF – an outline of the lecture on 'Preparation of a Secure Marriage'. Citation: 'The genitals belong to a spouse and they only serve their purpose in a marital relationship ... Until the marriage you are the guardian of your genitals for your future spouse ...'
After some time ... [a certain young man] was introduced to the head Moonie in the Northern Caucasus, Patrick Nolan. To the newcomers he was presented as an American professor who periodically came to them from Rostov-on-Don ...
In Russia, a mass of associations belong to the Moonie movement – professors, women and even mass-media employees, including cultural foundations and the aforementioned YFWP and FFWPU. All these socialites are preachers of the Unification Church. Meanwhile, as early as three years ago the [upper chamber of the Russian Parliament] declared the Unification Church a totalitarian sect and a destructive cult ...
At long last the prosecutor's office and the Federal Security Service of the Stavropol Region have started working on the Moonies. The regional prosecutor has filed an application ... for dissolution of the YFWP and banning of its activities. The same goes for the FFWPU ...
One question is still open: why does such a tenacious businessman as Rev. Moon spend [resources] on Russians? There are several theories. Not long ago... addresses were confiscated from one Moonie ... Among them – the address of an American, Patrick Nolan, who passes his time in Rostov, and two e-mail addresses of the CIA. Why shouldn't we imagine that Moon's aim ... is to catch our homeland in a spy net consisting of millions of agents – teachers, scholars, engineers, students and servicemen ...?” [italics as in the original]
C. The applicant's exclusion from Russia
1. Refusal of re-entry to Russia
- the Ministry of Foreign Affairs;
- the Federal Security Service (FSB) and its department in the Krasnodar Region;
- the Federal Border Service, the military prosecutor's office of that service and the Moscow Border Control;
- the Ministry of the Interior and its Krasnodar department of passports and visas; and
- the Ombudsman and Presidential Envoy for the Central Circuit.
2. Attempted return to Russia on a new visa
D. Proceedings concerning the applicant's complaints
“The representative of the first deputy head of the Department for the Protection of the Constitutional Order and the Fight against Terrorism, of the Russian FSB Directorate ... did not accept the appellants' claims, and presented a written defence to the complaint ... In support of his position the representative pointed out that his client had approved the report to deny US citizen Patrick Francis Nolan entry into the Russian Federation, which was prepared by the Stavropol Regional Branch of the Federal Security Service on the basis of materials obtained as a result of operational and search measures. In the opinion of Russian FSB experts participating in the preparation of the report, the [applicant's] activities in our country are of a destructive nature and pose a threat to the security of the Russian Federation. The representative ... emphasised that the threat to State security is created by the activities, not the religious beliefs of [the applicant].”
“Representatives of such foreign sectarian communities as the Jehovah's Witnesses, Moon's Unification Church ... under the cover of religion establish extensive governing structures which they use for gathering socio-political, economic, military and other information about ongoing events in Russia, indoctrinate the citizens and incite separatist tendencies ... Missionary organisations purposefully work towards implementing the goals set by certain Western circles with a view to creating the conditions in Russia and perfecting the procedure for practical implementation of the idea of replacing the 'socio-psychological code' of the population, which will automatically lead to the erasing from the people's memory of the over a thousand-year-long history of the Russian State and the questioning of such concepts as national self-identification, patriotism, Motherland and spiritual heritage ...”
“The decision on the issue whether or not the activities of a citizen (in respect of whom a conclusion barring entry into Russia has been issued) pose a threat to State security ... comes within the competence of the Russian authorities ... this right of the State is one of the basic elements of its sovereignty. Therefore, the [regional] court's conclusion that the claims of the appellant and his representatives that the Russian FSB acted ultra vires are unfounded in the present case.” [so in the original]
II. RELEVANT DOMESTIC LAW
A. Provisions relating to the exclusion of aliens from Russian territory
“...upon discovery of [persons whose entry into Russia is prohibited], officials of the border control shall notify them of the grounds for refusing them entry across the border, escort them to isolated premises and place them under guard, and take measures towards deportation of such persons from the territory of the Russian Federation.”
B. Provisions on State liability for damages
III. RELEVANT TRAVAUX PRÉPARATOIRES
“9. The word 'resident' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose...
The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person's presence in the territory to be considered 'lawful'.
... [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still 'lawfully' present.”
Article 11 of the European Convention on Social and Medical Assistance (1953)
“a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein...
b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.”
Section II of the Protocol to the European Convention on Establishment (1955)
“a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it;
b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.”
“10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised.
11. Paragraph 1 of this article provides first that the person concerned may be expelled only 'in pursuance of a decision reached in accordance with law'. No exceptions may be made to this rule. However, again, 'law' refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.”
I. THE GOVERNMENT'S COMPLIANCE WITH ARTICLE 38 OF THE CONVENTION
“1. If the Court declares the application admissible, it shall
(a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities ...”
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. Submissions by the parties
B. The Court's assessment
1. Existence of an interference with the applicant's right to freedom of religion
2. Justification for the interference
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 9
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Submissions by the parties
B. The Court's assessment
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
A. Submissions by the parties
B. The Court's assessment
1. Existence of a deprivation of liberty
2. Compliance with Article 5 § 1
3. Compliance with Article 5 § 4
4. Compliance with Article 5 § 5
VI. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7
“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.
2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”
A. Submissions by the parties
B. The Court's assessment
1. Applicability of Article 1 of Protocol No. 7
2. Compliance with Article 1 of Protocol No. 7
VII. 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
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 810 (eight hundred and ten euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 12 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Kovler is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE KOVLER
I share with some hesitation the conclusions of the Court concerning the alleged violations of Articles 9 and 8 and Article 5 § 1, as well as some of its other conclusions, but I am strongly opposed to the conclusions on the Article 38 and Article 1 of Protocol No. 7 issues.
The conclusion that there was a breach of Article 38 § 1 of the Convention is based on a very broad interpretation of the phrase “... the State concerned shall furnish all necessary facilities” in this Article. I would observe that in the recent Grand Chamber judgment Stoll v. Switzerland the Court accepted the idea of “a necessary discretion” for some confidential official documents of the member States (see Stoll v. Switzerland [GC], no. 69698/01, § 136, ECHR 2007-) and the need to preserve it. The document requested by the Court in the present case was the report of the Federal Security Service dated 18 February 2002 containing the factual grounds for the applicant's expulsion from Russia (see details in paragraph 51 of the judgment). The Court notes itself that the report was examined in the domestic proceedings and the applicant's representative in those proceedings was allowed to take cognisance of its contents, but he could not disclose its contents to the Court because of the confidentiality undertaking he had been required to sign (see paragraph 36). To my mind, the conclusion of the Court is rather strange: “This fact indicates that the nature of the information contained in the report was not such as to exclude any possibility of making it known to anyone outside the secret intelligence services and the highest State officials” (see paragraph 56). I think that a serious question relating to the interpretation of the Court's case-law on Article 38 and to the concept of the States' margin of appreciation is raised.
As to Article 1 of Protocol No. 7, I see a great difference between the present case and the case of Bolat (see Bolat v. Russia, no. 14139/03, ECHR 2006-IX), where the applicant was expelled at the time when his complaint about the annulment of his residence permit was being reviewed and the interim measure indicated by the Town Court for the period necessary for the review was effective. In the present case, on the contrary, the applicant was able to challenge the decision refusing his return to Russia at two levels of jurisdiction and the Moscow Regional Court finally dismissed the complaint in a nine-page judgment. In my view, this procedure satisfied the provisions of both paragraphs of Article 1 of Protocol No. 7 of the Convention, but the Court preferred to give a new, rather radical, interpretation (very brief, I must say) of paragraph 2 of this provision (see paragraphs 114-115 of the judgment).
Last but not least, I am not sure that the activities of a missionary are the same as those of a priest and amount only to the exercise of the right to freedom of religion. The notion of “social work” is not clarified in our judgment (see paragraphs 64-65).