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SOLTYSYAK v. RUSSIA - 4663/05 [2011] ECHR 250 (10 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/250.html
Cite as:
[2011] ECHR 250,
62 EHRR 5,
(2016) 62 EHRR 5
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FIRST
SECTION
CASE OF SOLTYSYAK v. RUSSIA
(Application
no. 4663/05)
JUDGMENT
STRASBOURG
10
February 2011
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 Soltysyak v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4663/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sergey Timofeyevich
Soltysyak (“the applicant”), on 18 January 2005.
The
applicant was represented by Ms M. Voskobitova, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant complained, in particular, of a restriction on his right to
leave his own country.
On
3 September 2007 the President of the First Section decided to give
notice of the application to the Government.
The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1958. He lived at the Baikonur space launch
site in Kazakhstan which is rented by, and under the administration
of, the Russian Federation and is under joint Kazakh-Russian
jurisdiction.
A. Refusal to issue a travel document
From
December 1983 to January 2004 the applicant served as a military
officer in the Soviet (later Russian) Army at the Baikonur site. On
8 April 1986 he received security clearance and was granted
access to information concerning rocket test launches, including the
military unit responsible, launch parameters and test results, which
were classified as top secret.
On
1 September 1999 the applicant signed a standard contract concerning
access to State secrets, which provided in the relevant part as
follows:
“Pursuant to the State Secrets Act and other
normative regulations concerning the protection of State secrets, of
which I am aware, I take upon myself an obligation to keep
confidential any information constitutive of State secrets and accept
a temporary restriction on my rights which may affect:
By
an order of 21 May 2004, the applicant retired from the military upon
reaching the age limit. His service travel document was taken away
from him and destroyed.
On
24 November 2004 the applicant asked the passports and visas service
of the Baikonur police department to issue him with a travel passport
(заграничный
паспорт).
On 11 May 2005 the passports and visas service sent
him a notice which stated that his right to leave the Russian
Federation had been temporarily suspended until August 2009 “on
the basis of recommendation no. 9/196 of 16 February 2005 and the
decision of the command of military unit 11284”. According to
the information submitted by the Government, the applicant was last
exposed to secret information on 16 December 2003 and the restriction
on his right to travel was due to expire on 16 December 2008.
The
applicant complained to a court. He submitted that, lacking a travel
document, he was unable to return to Russia from Kazakhstan or go to
the Kaliningrad Region, which is the Russian exclave between Poland
and Lithuania on the Baltic Sea.
On
24 May 2005 the Military Court of the 26th Garrison rejected the
applicant’s complaint. It found that the refusal to issue a
travel passport had been lawful because the applicant had previously
had knowledge of State secrets during his service in the military.
Access to State secrets had not been granted to him against his will,
and he had received a pay rise on that ground. Furthermore, the
applicant did not need a travel document to return to Russia or to go
to the Kaliningrad Region, his identity document (общегражданский
паспорт)
was sufficient for these purposes.
On
1 July 2005 the Third Circuit Military Court upheld, on an appeal by
the applicant, the judgment of 24 May 2005.
B. Housing dispute
The
applicant sued the military commander of the Russian Space Forces,
claiming that he should have received full title to his service flat
on his retirement.
On
5 October 2004 the Military Court of the 26th Garrison dismissed the
action as having no grounds in domestic law. On 10 December 2004
the Third Circuit Military Court upheld the judgment on appeal.
II. RELEVANT DOMESTIC LAW
A. Entry and Leave Procedures Act (no. 114-FZ of 15
August 1996)
Section
2 provides that the right of a Russian citizen to leave the Russian
Federation may only be restricted on the grounds of, and in
accordance with, the procedure set out in the Act. Section 15(1)
provides that the right of a Russian national to leave the Russian
Federation may be temporarily restricted if he or she has had access
to especially important or top-secret information classified as a
State secret and has signed an employment contract providing for a
temporary restriction on his or her right to leave the Russian
Federation. In such cases the restriction is valid until the date set
out in the contract, but for no longer than five years from the date
the person last had access to especially important or top-secret
information. The Interagency Commission for the Protection of State
Secrets can extend this period up to a maximum of ten years.
B. The State Secrets Act (no. 5485-1 of 21 July 1993)
The granting of access to State secrets presupposes
the consent of the person concerned to partial and temporary
restrictions on his or her rights in accordance with section 24 of
the Act (section 21).
The
rights of persons who have been granted access to State secrets may
be restricted. The restrictions may affect their right to travel
abroad during the period stipulated in the work contract, their right
to disseminate information about State secrets and their right to
respect for their private life (section 24).
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
The relevant part of Opinion no. 193 (1996) on
Russia’s request for membership of the Council of Europe,
adopted by the Parliamentary Assembly on 25 January 1996 (7th
Sitting), reads as follows:
“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
The
laws of the founding members of the Council of Europe have not
restricted the right of their nationals to go abroad for private
purposes since the inception of the organisation. The Schengen
Agreement, which was originally signed on 14 June 1985 by five
States and has, to date, been implemented by twenty-five States, has
removed border posts and checks in much of the Western part of Europe
and abolished any outstanding restrictions on European travel.
Many other Contracting States, including, in
particular, the former Socialist countries, repealed restrictions on
international travel by persons having knowledge of “State
secrets”, a common legacy of the Socialist regime, during the
process of democratic transition (for example, Estonia, Georgia,
Hungary, Latvia, Lithuania and Poland). Among the Council of Europe
States, with the exception of Russia, Azerbaijan was the last to
abolish such a restriction in December 2005. Nevertheless, three
member States (Armenia, Azerbaijan and Ukraine) provide for temporary
restrictions on permanent emigration – but not on international
travel for private purposes – for persons who have had access
to State secrets.
V. RELEVANT UNITED NATIONS DOCUMENTS
23. Article
12 of the International Covenant on Civil and Political Rights
(“ICCPR”), to which the Russian Federation is a party,
defines the right to freedom of movement in the following terms:
“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.”
General Comment No. 27: Freedom of movement (Article
12), adopted by the Human Rights Committee under Article 40 § 4
of the ICCPR on 2 November 1999 (CCPR/C/21/Rev.1/Add.9), reads as
follows:
“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 ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4
The
applicant complained under Article 3 § 2 of Protocol No. 4,
Article 2 of Protocol No. 4 and Article 14 of the Convention that,
following the termination of his employment in 2004, he could not
return to Russia from the Baikonur launch site in Kazakhstan or visit
his ailing father or his mother’s grave in Ukraine or go to any
other visa-free CIS country, owing to the absence of a travel
document. The Court considers that this complaint falls to be
examined from the standpoint of Article 2 §§ 2 and 3 of
Protocol No. 4 which provides as follows:
“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. Admissibility
1. Compatibility ratione
materiae
Referring
to the applicant’s status as a military serviceman and to the
fact that the matter was examined in military courts, the Government
claimed that the two conditions established by the Court for
excluding the protection embodied in Article 6 of the Convention had
been fulfilled (here they cited Vilho Eskelinen and Others v.
Finland [GC], no. 63235/00, ECHR 2007 IV) and that the
complaint was therefore incompatible ratione materiae with the
provisions of the Convention.
The
applicant maintained that he had been affected by the restriction.
The
Court observes that the criteria elaborated in the case of
Vilho Eskelinen only concerned the applicability of
Article 6, without prejudice to any other Convention rights. Article
2 § 2 of Protocol No. 4 guarantees the right to leave the
country to everyone and it does not make a distinction between
civilians and military servicemen. Accordingly, the Government’s
objection is without merit and must be rejected.
2. Exhaustion of domestic remedies
The
Government submitted that the applicant had not exhausted domestic
remedies because he had not asked the Interagency Commission for the
Protection of State Secrets to review the validity of the restriction
on his right to travel.
The
applicant replied that he had exhausted domestic remedies because he
had brought judicial proceedings to challenge the restriction.
The
Court notes that an application to the Interagency Commission was, in
fact, no more than a petition submitted to the supervisory organ with
the suggestion to make use of its powers if it sees fit to do so. If
proceedings before the Commission are taken, they take place
exclusively between the Commission and the officials concerned. The
applicant would not be a party to such proceedings and would only be
informed of the Commission’s decision. It follows that an
application to the Interagency Commission does not give the person
employing it a personal right to the exercise by the State of its
supervisory powers, and that such an appeal does not therefore
constitute an effective remedy within the meaning of Article 35 of
the Convention (see Belevitskiy v. Russia, no. 72967/01, §§
59-60, 1 March 2007, and Horvat v. Croatia, no. 51585/99, §
47, ECHR 2001 VIII).
Further,
the Court observes that an application to the Commission was not a
pre-requisite for challenging the refusal to issue a travel document
before a court of general jurisdiction. The applicant instituted
judicial proceedings, in which the Russian courts at two levels of
jurisdiction took cognisance of the merits of his complaint and
rejected it as unfounded. The Court finds that since the domestic
courts examined the substance of the applicant’s complaint, he
cannot be said to have failed to exhaust domestic remedies (compare,
for instance, Dzhavadov v. Russia, no. 30160/04, § 27,
27 September 2007).
It
follows that the Government’s objection as to the alleged
non exhaustion of domestic remedies must also be rejected.
3. Conclusion as to the admissibility
The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Existence of an interference
The
Government accepted that there had been an interference with the
applicant’s right to leave his own country. They submitted,
however, that an identity document would have been sufficient for the
applicant to travel to Ukraine, Kyrgyzstan, Tajikistan, and Belarus.
He could also have travelled by air or by sea to the Kaliningrad
exclave. He did not need a travel document to visit his relatives or
return to Russia from Kazakhstan.
The
applicant emphasised that he had had a vital interest in obtaining a
travel document: his father and brother lived in Kiev, his mother was
buried in Ukraine, and his aunt and uncle lived in Riga, Latvia,
where the applicant had been born.
The
Court reiterates that in accordance with its established case-law,
the right of freedom of movement as guaranteed by paragraphs 1 and 2
of Article 2 of Protocol No. 4 is intended to secure to any person a
right to liberty of movement within a territory and to leave that
territory, which implies a right to leave for any country of the
person’s choice to which he may be admitted. In particular, a
measure by means of which an individual is denied the use of a
document which, had he so wished, would have permitted him to leave
the country, amounts to an interference within the meaning of
Article 2 of Protocol No. 4 (see Bartik v. Russia, no.
55565/00, § 36, ECHR 2006 XV; Timishev v. Russia
(dec.), nos. 55762/00 and 55974/00, 30 March 2004; and
Napijalo v. Croatia, no. 66485/01, § 68, 13 November
2003). While the applicant was able to cross the Russian-Ukrainian or
Russian-Kazakh border with his internal identity document, he needed
a travel passport to go to virtually any other country in the world
or, for example, to go by land to the Kaliningrad Region through
Lithuanian territory.
Following
the termination of the applicant’s employment in 2004, his
service passport which had previously enabled him to travel abroad
was taken away from him and destroyed (see paragraph 9 above). As the
applicant’s request for a travel document was refused in the
subsequent period and until at least August 2009, the Court finds
that there has been an interference within the meaning of Article 2
of Protocol No. 4 (see Bartik, cited above, § 37).
2. Justification for the interference
(a) The applicable test
The
Court has next to determine whether the interference complained about
was justified. It reiterates that Article 2 § 2 of Protocol No.
4, which guarantees the right to leave any country, including one’s
own, must be read subject to the third paragraph of that Article,
which provides for certain restrictions that may be placed on the
exercise of that right in the interests of, inter alia,
national security or public safety. The applicable test is similar in
all cases: in order to comply with Article 2 of Protocol No. 4 a
restriction must be “in accordance with the law”, pursue
one or more of the legitimate aims contemplated in paragraph 3 of the
same Article and be “necessary in a democratic society”
(see Bartik, cited above, § 38).
(b) Whether the interference was “in
accordance with law”
The
Government pointed out that the possibility of imposing a restriction
on the right to go abroad in respect of those persons who have had
access to State secrets featured in section 15 of the Entry and Leave
Procedures Act and the State Secrets Act. The applicant had
voluntarily accepted that restriction for a period of five years,
which had been included in his employment contract.
The
applicant did not dispute the Government’s submissions.
The
Court accepts that the possibility of a five-year restriction on the
applicant’s right to travel following the termination of his
employment was provided for in the Entry and Leave Procedures Act and
the State Secrets Act and also in his employment contract. However,
according to the Government’s own admission, the five-year
period was set to expire on 16 December 2008 (see paragraph 11
above). The legal basis for maintaining the restriction beyond that
date until August 2009 is unclear.
The Court finds that the impugned measure had a legal
basis until 16 December 2008 but that it was not “in
accordance with law” for the remaining period after that date.
Accordingly, it will pursue the examination of the justification for
the interference only in respect of the period that spanned from the
termination of the applicant’s employment in 2004 and up to 16
December 2008.
(c) Whether the interference pursued a
legitimate aim
The
parties agreed that the restriction on the applicant’s right to
travel abroad had been introduced for the protection of security and
the defence capacity of the Russian Federation.
The
Court accepts that the interests of national security may be a
legitimate aim for an interference with the rights set forth in
Article 2 of Protocol No. 4.
(d) Whether the restriction was “necessary
in a democratic society”
The
Government submitted that the information to which the applicant had
had access was highly valuable for the protection of national
security and that its confidentiality was crucial for national
interests. The applicant’s right to travel abroad had been
restricted because it was more difficult for the State to ensure the
security of its nationals in foreign countries. The Government
emphasised that the information on military research could have ended
up in the hands of foreign intelligence services and also terrorist
or extremist organisations. Finally, they pointed out that the
applicant had been a military serviceman who had, by voluntarily
signing the employment contract, accepted the possibility of a
five-year restriction on his right to travel abroad and that he had
received a twenty per cent pay rise on that account. In their view,
these elements distinguished the present case from the case of Bartik
v. Russia (cited above) where the applicant had been a civilian
scientist who had not signed such a contract.
The
applicant replied that the Government had failed to explain how the
restriction on his right to travel abroad had furthered the interests
of national security, even though he had had access to certain State
secrets. He also pointed out that a twenty per cent pay rise had not
been sufficient compensation for the five-year ban on leaving the
country to visit his closest relatives.
The
Court reiterates that the test as to whether the impugned measure was
“necessary in a democratic society” involves showing that
the action taken was in pursuit of that legitimate aim, and that the
interference with the rights protected was no greater than was
necessary to achieve it. In other words, this requirement, commonly
referred to as the test of proportionality, demands that restrictive
measures should be appropriate to achieve their protective function
(compare with point 14 of the Human Rights Committee’s General
Comment on Article 12 of the ICCPR, cited in paragraph 24 above).
The
Court has already examined the same restriction from the standpoint
of the proportionality test in the case of Bartik v. Russia
and found as follows:
“49. The Government did not indicate
how the unqualified restriction on the applicant’s ability to
travel abroad served the interests of national security. The Court,
for its part, considers that it is precisely the link between the
restrictive measure at issue and its purported protective function
that is missing. Historically, the purported “protective
function” of the impugned measure was to prevent disclosure of
classified information concerning ‘State secrets’. At the
time the restriction was conceived, the State was able to control
transmission of information to the outside world, using a combination
of restrictions on outgoing and incoming correspondence, prohibition
on international travel and emigration and a ban on unsupervised
contacts with foreigners within the country. However, once the ban on
personal contacts with foreigners was removed and correspondence was
no longer subject to censorship, the necessity of restriction on
international travel for private purposes by persons aware of ‘State
secrets’ became less obvious. In these circumstances, in so far
as the ban on international travel for private reasons purported to
prevent the applicant from communicating information to foreign
nationals, in a contemporary democratic society such a restriction
fails to achieve the protective function previously assigned to it.
That view is shared by the UN Human Rights Committee, which expressed
the opinion, in general terms, that ‘the test of necessity and
the requirement of proportionality ... would not be met ... if an
individual were prevented from leaving a country merely on the ground
that he or she is the holder of ‘State secrets’’
(see point 16 of General Comment no. 27, paragraph [24] above).
50. The Parliamentary Assembly’s
Opinion on Russia’s request for membership of the Council of
Europe indicates that the repeal of restrictions on international
travel for private purposes was regarded as a necessary condition for
membership of the Council of Europe, as the organisation of States
adhering to the principles of individual freedom, political liberty
and the rule of law (Preamble to the Statute of the Council of
Europe) ... The express mention in the Parliamentary Assembly’s
Opinion on Russia’s accession request of Russia’s
undertaking to cease restrictions on international travel by persons
with knowledge of State secrets suggests that the Assembly did not
consider the existence of such a restriction compatible with
membership of the Council of Europe. Indeed, many member States of
the Council of Europe have never had a comparable restriction in
their legislation, whereas many others have abolished it during the
process of democratic reforms... However, Russia’s undertaking
to abolish that restriction has not been implemented and the relevant
provisions of domestic law have remained in force to date ...”
The
Court finds nothing in the Government’s submissions in the
instant case that would warrant a different conclusion.
The
Court reiterates its constant approach that it takes into account
relevant international instruments and reports, and in particular
those of other Council of Europe organs, in order to interpret the
guarantees of the Convention and to establish whether there is a
common European standard in the field. Where there is a common
standard which the respondent State has failed to meet, this may
constitute a relevant consideration for the Court when it interprets
the provisions of the Convention in specific cases (see Tănase
v. Moldova [GC], no. 7/08, § 176, ECHR 2010 ..., and
Demir and Baykara v. Turkey [GC], no. 34503/97, § 85,
12 November 2008). An overview of the situation in the Council of
Europe Member States demonstrates that at present Russia has remained
the only Member State that has retained the restrictions on
international travel for private purposes by persons who had been
previously aware of “State secrets”. Whereas Western
European Member States have never imposed such restrictions, Central
and Eastern European States abolished them during the process of
democratic transition. Azerbaijan was the last one to remove that
restriction in December 2005 (see paragraph 22 above). On the
international level, the UN Human Rights Committee deplored the
blanket nature of similar restrictions, expressing the opinion that
the curtailing of an individual’s right to leave the country
merely on the ground that he or she was the holder of State secrets
would not meet the test of necessity and proportionality (see
paragraph 24 above in fine). In Russia, however, the impugned
restriction has remained in force to date, despite the Russian
Government commitment to abolish it with immediate effect, adopted in
1996 as a condition for its membership of the Council of Europe (see
Opinion no. 193 (1996) on Russia’s request for membership of
the Council of Europe, cited in paragraph 20 above). Russia did not
enter any reservation to Article 2 of Protocol No. 4 when ratifying
the Convention. Having regard to the established common European and
international standard, the Court considers that the Russian
Government were under an obligation to provide a particularly
compelling justification for maintaining the restriction in question.
The
Court reiterates that, as in the Bartik case, the confidential
information which the applicant possessed could be transmitted in a
variety of ways which did not require his presence abroad or even
direct physical contact with anyone. The Government’s claim
that the applicant would be abducted by foreign intelligence services
or terrorist organisations while abroad appears to be mere conjecture
not supported by any actual assessment of the security risks in the
applicant’s individual case because of the blanket nature of
the prohibition on private international travel in respect of all
those who, like the applicant, had had access to State secrets in the
past.
The
applicant’s status as a military serviceman or the fact that he
acknowledged the possibility of a restriction in 1999 do not alter
the conclusion that the restriction failed to achieve the protective
function that had been previously assigned to it. Even though the
Court has previously accepted that the rights of military personnel
may, in certain circumstances, be restricted to a greater degree than
would be permissible in the case of civilians (see Engel and
Others v. the Netherlands, 8 June 1976, §§ 73 and 103,
Series A no. 22; Kalaç v. Turkey, 1 July 1997, §
28, Reports of Judgments and Decisions 1997 IV; Larissis
and Others v. Greece, 24 February 1998, §§ 50 and
51, Reports 1998 I; Hadjianastassiou v. Greece,
16 December 1992, §§ 39 and 46, Series A no. 252; and Pasko
v. Russia, no. 69519/01, § 86, 22 October 2009), such a
restriction must in all cases be commensurate with its protective
function. However, as noted above, there does not appear to have been
a reasonable relationship of proportionality between the means
employed and the aim pursued.
Finally,
the Court reiterates that, unlike some other Articles of the
Convention, such as Article 4 § 3 (d) or Article 11 § 2,
Article 2 of Protocol No. 4 guarantees to everyone the freedom to
leave one’s own country and does not distinguish between
civilians and members of the armed forces. The applicant has been
affected by the restriction on his right to travel abroad for a
considerable period of time, that is, for more than five years
following the termination of his employment. Accordingly, the Court
considers that the applicant was made to bear a disproportionate
burden which undermined the essence of his right under Article 2 of
Protocol No. 4 and which not necessary in democratic society.
(e) Conclusion
In
the light of the foregoing, the Court finds as follows:
(a) in
the period following the termination of the applicant’s
employment in 2004 and up until 16 December 2008 the impugned
restriction was not “necessary in a democratic society”,
and
(b) in
the subsequent period the restriction had no basis in law or in
contract (see paragraph 43 above).
There
has therefore been a violation of Article 2 of Protocol No. 4.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained under Article 6 of the Convention that the
proceedings in the housing dispute had been unfair because the courts
had misinterpreted the domestic law and his evidence, and under
Article 1 of Protocol No. 1 that he had been denied title to the
flat.
Having
regard to the information before it and considering that it has only
limited power to deal with alleged errors of fact or law committed by
the national courts, to which it falls in the first place to
interpret and apply the domestic law, the Court finds no appearance
of unfairness of the kind prohibited under Article 6 of the
Convention in the civil dispute, to which the applicant was a party.
It further reiterates that Article 1 of Protocol No. 1 does not
guarantee, as such, the right to acquire property (see, for example,
Grishchenko v. Russia (dec.), no. 75907/01, 8 July 2004).
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government submitted that the claim was excessive.
The
Court accepts that the applicant suffered distress as a result of the
unjustified restriction on his ability to leave Russia. However, it
considers the applicant’s claim excessive. Making its
assessment on an equitable basis, the Court awards the applicant EUR
3,000, plus any tax that may be chargeable on it.
B. Costs and expenses
The
applicant also claimed 30,000 Russian roubles (RUB) for legal costs
and RUB 1,000 for postal expenses. He produced postal receipts and a
copy of the legal-services agreement with his counsel.
The
Government submitted that the postal receipts only covered the amount
of RUB 486.4 and that no “billing documents” had been
provided.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 850 covering costs
under all heads, plus any tax that may be chargeable to the
applicant.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the
applicant’s right to leave the country admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
2 of Protocol No. 4;
Holds
(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, to
be converted into Russian roubles at the rate applicable on the date
of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
850 (eight hundred and fifty euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant;
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
