European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF FRISON v. RUSSIA

(Application no. 57614/17)

 

 

 

 

JUDGMENT

STRASBOURG

8 June 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Frison v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Georgios A. Serghides, President,
          María Elósegui,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 57614/17) 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 French national, Mr Philippe Frison (“the applicant”), on 4 August 2017;

the decision to give notice to the Russian Government (“the Government”) of the complaint concerning Article 8 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 11 May 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the authorities’ refusal to issue the applicant a temporary residence permit in Russia due to undisclosed security reasons and the applicant’s unsuccessful appeals against this refusal in the domestic courts.

THE FACTS

2.  The applicant was born in 1960 and lives in Strasbourg. He was represented by Mr V. Gavrilov, a lawyer practising in Nizhniy Novgorod.

3.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

I.         The applicant’s request for a temporary residence permit

5.  The applicant works as a university teacher and as a translator at the Council of Europe in Strasbourg, France. At some point prior to 2015 he met a Russian national, Ms E.G., who lived in Nizhniy Novgorod, Russia. On 5 December 2015 the applicant and Ms E.G. married in Strasbourg. After that, Ms E.G. returned to Russia where she lived and worked.

6.  On 20 June 2016 the applicant applied to the Russian Consulate General in Strasbourg for a temporary residence permit in Russia for family reunion.

7.  On 6 December 2016 the Department of Migration of the Ministry of the Interior in Nizhniy Novgorod (the Department of Migration) informed the applicant that, on 24 October 2016, the Federal Migration Service (the FMS) had refused his request for a residence permit on the basis of Article 7 § 1(1) of the Foreigners Act (no. 115 FZ), that is, that the applicant posed a threat to Russia’s national security. Neither a copy of that decision nor the reasons therefor were given to the applicant.

8.  On 27 March 2017 the applicant and his wife had a daughter, E.F., who was born in Nizhniy Novgorod.

II.      The applicant’s appeals against the refusal to ISSUE A residence permit

9.  On 7 December 2016 the applicant appealed against the refusal of 24 October 2016 to the Priokskiy District Court in Nizhniy Novgorod (the District Court). He stated that, according to the text of the refusal, he posed a threat to Russia’s national security, but no reasons had been given. The applicant further stated that, prior to the refusal, he had regularly been granted visas to enter the Russian Federation, that he had never been involved in activities of either state or political bodies and that he worked as a translator and a university teacher. The applicant stressed that the refusal to issue him a permit to reside in Russia with his wife violated his right to respect for family life under Article 8 of the Convention.

10.  On 11 January 2017 the District Court examined the applicant’s complaint. At the hearing, the applicant’s lawyer stated, inter alia, that as of 1997 the applicant had been granted visas to enter Russia, that he spoke fluent Russian and appreciated Russian culture. Since his marriage to Ms E.G. in 2015, he had regularly applied for a visa for Russia and visited the country to visit his wife. The applicant had not been involved in any type of activity which could have posed a threat to Russia’s national security. The refusal to issue him a permit did not provide any reasons or explanations of the alleged risk the applicant posed to national security. Given that the applicant’s wife resided in Russia, that he spoke Russian and that they were expecting a child, the applicant requested that the refusal be overruled and that he be issued a residence permit.

11.  At the hearing, the representative of the Department of Migration stated that the refusal had been based on a letter of 24 September 2016 from the Nizhniy Novgorod Department of the Federal Security Service (the FSB) which stated that the applicant had posed a threat to Russia’s national security. Given that the approval of the FSB for the issuance of a residence permit was necessary for the migration authorities, the applicant’s request for a residence permit had been rejected.

12.  On the same date, 11 January 2017, the District Court rejected the applicant’s complaint. The court’s decision did not cite any documents from the FSB serving as the basis for the refusal, apart from noting that the measure had been imposed on the basis of the letter of 24 September 2016 (no. 106/1013163) and the relevant internal instructions of the FSB. No information concerning the contents of that letter, the nature of the threat allegedly posed by the applicant or any details regarding its origins or the circumstances of its collection was provided to the applicant’s lawyer, despite his request to this end. As to whether the refusal amounted to an interference with the applicant’s family life, the court left that issue without examination.

13.  On 22 January 2017 the applicant appealed against the above‑mentioned decision to the Nizhniy Novgorod Regional Court (the Regional Court). The applicant stressed, inter alia, that the first-instance court had failed to verify whether there had been a basis for the alleged risk he posed to Russia’s national security. The District court had refused his representative’s application to request and examine the FSB’s letter which had served as the basis for the refusal, and failed to analyse the adverse effect of the refusal on the applicant’s family life. The applicant also stated that in March 2017 he and his wife had had a daughter, and explained that the time-limits and restrictions of the visa for Russia precluded him from having a normal life with his family. In particular, he stated that a stay in Russia based on a visa covered 90 days at a time, at most, the visa could not be extended for more than 10 days at a time and each time he had been obliged to leave Russia and re-apply for a visa from abroad. The time taken to issue a new visa was at least a month and having visa status precluded him from working in Russia.

14.  On 3 May 2017 the Regional Court examined the applicant’s appeal and upheld the decision of the District Court, having stated that were no grounds to “cast doubt” on the information contained in the FSB’s letter. The court refused the applicant’s lawyer’s request for a copy of the FSB’s decision which served as the basis for the refusal. According to the Government’s submission, “an audio recording” from the Regional Court hearing showed that “the contents of the FSB’s letter which served as the basis for the refusal” had been “read out” to the parties. The Government’s submission did not contain a transcription of the recording or of any other materials showing what exactly had been read out during the hearing. As for the adverse effect of the refusal on the applicant’s family life the court stated that, given that he resided and worked in France, his wife and daughter could join him there.

15.  On 12 July 2017 the applicant lodged a cassation appeal against the refusal with the Presidium of the Regional Court. He stated, in particular, that the lower courts had failed to request the necessary evidence and information from the FSB.

16.  On 20 July 2017 the Regional Court refused to allow the applicant’s appeal to be examined on the merits by the cassation court, having stated that the FSB “was not obliged to show the concrete basis for not issuing a temporary residence permit”.

17.  On 4 August 2017 the applicant lodged a further cassation appeal against the refusal with the Supreme Court of the Russian Federation which, on 29 November 2017, refused to examine it on the merits.

III.   Subsequent developments

18.  In March 2018 the applicant lodged another request for a temporary residence permit for family reunion.

19.  On 12 July 2018 the Department of Migration issued the applicant a temporary residence permit valid until 21 July 2021. According to the Government, on the same date the applicant was informed of this by a letter sent to his address in France. The applicant contested this and stated that, contrary to the Government’s submission, he was not informed of that decision until the end of December 2018 (see below). A copy of the letter as submitted to the Court by the Government contains no outgoing number, copy of the envelope nor delivery receipt. The applicant’s address in its heading is indicated in Russian only.

20.  In November 2018 the applicant went to the Russian Consulate in Strasbourg, France, to apply for an entry visa to visit his family in Russia. While there, he was not informed of the decision of 12 July 2018 to issue him a residence permit. On 19 December 2018 the applicant was granted a multiple-entry visa for Russia, valid until 19 March 2019.

21.  At the end of December 2018, while on a visa visit to Russia, the applicant learnt from his lawyer that, according to the Government’s submission to the Court of 19 October 2018 on the admissibility and merits of the application, he had been issued a residence permit.

22.  Shortly thereafter, on 31 December 2018 the applicant informed the Court about the above-mentioned developments in his case.

23.  In reply to the Court’s request for a copy of the documents that served as the basis for the refusal to issue a residence permit, including the FSB’s recommendation of 24 September 2016, the Government, referring to the domestic regulations concerning State secrets, refused to furnish any documents.

RELEVANT LEGAL FRAMEWORK

24.  For the relevant domestic law and practice see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011.

THE LAW

I.         ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

25.  The applicant complained that the Russian authorities’ refusal to issue him a temporary residence permit based on undisclosed national security reasons had an adverse effect on his family life, in violation of Article 8 of the Convention, which reads as follows:

“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.    Admissibility

1.     The Government

26.  The Government stated that the applicant had abused the right of individual petition, having informed the Court only in December 2018 that he had been issued a residence permit on 12 July 2018, in breach of his duty under Rule 47 § 7 of the Rules of Court to keep the Court informed of all circumstances relevant to the application. In the Government’s view, this constituted an essential element in the examination of the applicant’s complaint, which should thus be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

27.  The Government further stated that the applicant had lost victim status in the proceedings before the Court as the Russian authorities granted him a residence permit on 12 July 2018 which was valid until 21 July 2021.

28.  According to the Government, the applicant failed to exhaust domestic remedies as he did not appeal against the FSB’s letter of 24 September 2016 which served as the basis for the refusal to issue him a residence permit.

2.     The applicant

29.  The applicant contested the Government’s argument concerning the abuse of the right of individual petition. In his view, the issue of the granted residence permit was of no relevance to his complaint. In any event, he had learnt of that decision only in December 2018 (see paragraph 21 above) and he had updated the Court on those developments shortly thereafter.

30.  The applicant submitted that he retained his victim status as, despite the residence permit issued in July 2018, the refusal of 24 October 2016 issued on undisclosed security reasons remained in force, it had not been annulled or revoked, which made his immigration status in Russia precarious.

31.  The applicant pointed out that he was not obliged to appeal against the FSB’s letter of 24 September 2016 as he had appealed against the refusal of the FMS of 24 October 2016. Moreover, the District Court had refused to allow the applicant’s lawyer’s application to familiarise himself with the contents of the FSB’s letter (see paragraph 12 above), which made any appeal against it impossible.

3.     The Court’s assessment

(a)     The allegation of an abuse of the right of individual petition

32.  The Court notes the applicant’s explanations about the circumstances under which he had learnt of the residence permit being issued in 2018. It does not find that the circumstances of the case contain sufficient elements to establish with certainty the applicant’s intention to mislead it in any way (see, by contrast, Gross v. Switzerland [GC], no. 67810/10, § 36, ECHR 2014).

33.  In view of the above, the Court does not consider that the applicant’s conduct amounted to an abuse of the right of petition. Accordingly, the Government’s objection is dismissed.

(b)    Victim status

34.  The Court must ascertain whether the applicant remains the victim of an alleged violation of Article 8, when account is taken of the fact that, on 12 July 2018, the Russian authorities issued him a residence permit. Therefore, it must determine whether the circumstances complained of by the applicant still continue and, whether the effects of a possible violation of the Convention on account of those circumstances have been redressed (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I).

35.  The Court observes that in 2018 the applicant has been granted the residence permit authorising his stay in Russia (see paragraphs 19 and 21 above). Therefore, it is clear that the circumstances complained of no longer persist. At the same time, in so far as redressing of possible violations, the Court remarks that his complaint concerns essentially the refusal to issue a residence permit prior to 2018, and the scope of the ensuing practical difficulties he had encountered in his family life as a result. The Court further notes that the decision to issue the residence permit in July 2018 was taken after the applicant had lodged another request for residence permit in March 2018 (see paragraph 18 above) and did not represent the outcome of the examination of his initial request lodged in June 2016 (see paragraph 6 above) which was neither redressed nor acknowledged as a breach of his rights.

36.  The Court therefore concludes that the applicant can still be considered a victim.

(c)    The objection concerning failure to exhaust domestic remedies

37.  As to the applicant’s alleged failure to appeal against the FSB’s letter, the Court observes that the documents submitted did not indicate whether the impugned document represented a decision which could be appealed against or a recommendation, as in a number of similar cases examined by the Court (see, for recent examples, Rozhkani v. Russia [Committee], no. 14918/14, § 13, 9 July 2019, and Akçay and Others v. Russia [Committee], no. 66729/16, § 10, 12 December 2018).

38.  The Court further observes that the parties disagreed as to whether the applicant’s lawyer had been informed of the contents of the letter (see paragraph 14 above). In particular, the Government stated that its contents had been “read out” at the hearing, whereas the applicant denied that his lawyer had been familiarised with the necessary information enabling him to lodge an appeal against it. The Court notes, to this end, that the Government did not furnish a copy of the transcript of the hearing to which they referred (see paragraph 23 above). Considering the lack of substantiation, the Court is unable to accept the assertion that the contents of the document had been “read out” as alleged.

39.  Therefore, given that the applicant and his lawyer were neither provided with a copy of that document, nor familiarised with its contents, it would be impossible for them to appeal against it, given the lack of basic information concerning the document, such as its number and the name of the official who had signed it. Furthermore, the Government had failed to submit any examples showing the effectiveness of such an appeal. The Court therefore dismisses the Government’s plea of non-exhaustion.

(d)    Conclusion

40.  The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 §§ 3 (a) and 4 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions

41.  The applicant submitted that the domestic courts had not allowed for the relevant procedural guarantees during the examination of his appeals against the refusal to issue a residence permit as no evidence had been presented and examined by them in order to verify the claim of his being a threat to national security.

42.  The applicant further submitted that the refusal was a disproportionate measure as it failed to balance the interests of the State against his right to respect for family life. The refusal disrupted his family life with his wife and minor child.

43.  The Government did not comment on the merits of the applicant’s complaint.

2.     The Court’s assessment

44.  For a summary of the relevant principles, see Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-109, 3 October 2014, and Nolan and K. v. Russia, no. 2512/04, § 71, 12 February 2009.

45.  The parties do not dispute that the gist of the applicant’s complaint concerns the lack of reasons from the domestic authorities to justify the sanction (see, for a similar situation, Liu (no. 2), cited above; Kamenov v. Russia, no. 17570/15, 7 March 2017; and Zezev v Russia, no. 47781/10, 12 June 2018). Therefore, the Court must examine whether the domestic proceedings were attended by sufficient procedural guarantees and whether the applicant was able to challenge the executive’s assertion that national security was at stake (see Nolan and K., cited above, § 71, and Al-Nashif v. Bulgaria, no. 50963/99, §§ 123-24, 20 June 2002). In particular, for an interference to be “in accordance with the law” the measures affecting fundamental human rights in the area of expulsion and deportation must be subject to some form of adversarial proceedings involving effective scrutiny of the reasons for them and review of the relevant evidence, if need be with appropriate procedural limitations on the use of classified information, and giving the person concerned a possibility to challenge the authorities’ assertion that national security is at stake (see Amie and Others v. Bulgaria, no. 58149/08, § 92, 12 February 2013).

46.  The Court observes that there is no information in the case file concerning the acts ascribed to the applicant. Moreover, no concrete evidence was examined by the courts when they upheld the refusal of the applicant’s request for the residence permit on national security grounds (see paragraphs 12 and 14 above). In their submissions to the Court, the Government neither gave an outline of the possible basis for the security services’ allegations against the applicant (see paragraph 23 above) nor provided documents supporting those allegations (see, by contrast, Liu (no. 2), cited above, § 75, and Amie and Others, cited above, §§ 12‑13 and 98).

47.  Given that the applicant was not given even an outline of the national security case against him, it was impossible for him to challenge the allegations by providing exonerating evidence, such as an alibi or an alternative explanation for his actions (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 220-24, ECHR 2009).

48.  Therefore, the Court finds that the domestic court proceedings concerning the examination of the applicant’s appeals against the refusal to issue him a residence permit and its effects on his family life did not represent an effective scrutiny and were not attended by sufficient procedural guarantees. In view of this, the Court finds that it is not necessary to examine whether, in the domestic proceedings, the courts duly balanced the public and the private interests involved.

49.  There has therefore been a violation of Article 8 of the Convention.

II.      APPLICATION OF ARTICLE 41 OF THE CONVENTION

50.  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.”

51.  The applicant claimed 14,500 euros (EUR) in respect of non‑pecuniary damage and EUR 500 in respect of costs and expenses.

52.  The Government submitted that the claim should be rejected as there was no violation of the applicant’s rights.

53.  The Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage and EUR 500 in respect of costs and expenses, plus any tax that may be chargeable on those amounts to the applicant.

54.  The Court considers it appropriate that the default interest rate 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,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable, 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;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                            Georgios A. Serghides
Deputy Registrar                                                                       President