Information Note on the Court’s case-law No. 92
December 2006
Bartik v. Russia - 55565/00
Judgment 21.12.2006 [Section I]
Article 2 of Protocol No. 4
Article 2 para. 1 of Protocol No. 4
Freedom to choose residence
Absolute prohibition on a person having had access to “State secrets” to travel abroad for a long period: violation
Facts: In 1977 the applicant started working for the State-owned company, Raduga, which developed equipment for the aerospace industry. While working for Raduga, the applicant signed various undertakings not to disclose classified information. His employment contract of 16 May 1989 also included the statement: “I have been informed of the prohibition on travel abroad, except as permitted by the relevant laws and regulations…”. However, the last contract he signed, on 31 January 1994, did not include any statement about prohibitions on foreign travel. On 20 August 1996 the applicant resigned, leaving all the classified documents which had been in his possession with Raduga. In early 1997 the applicant’s father, who lived in Germany, fell ill. Wishing to visit his father, the applicant applied to the Passports and Visas Service of the Department of the Interior of Dubna for a “foreign travel passport”. The Passports and Visas Service told the applicant that his request could not be granted until 2001. The applicant applied to the Moscow City Court, which observed that he had signed several undertakings not to disclose State secrets and that the undertaking he had signed in 1989 also contained a clause restricting his right to leave the country. Having examined a report on the applicant’s knowledge of State secrets, the court noted that the applicant had in the past had access to top-secret documents. It concluded that the restriction on the applicant’s right to leave Russia until 14 August 2001 had been lawful and justified. That decision was upheld on appeal. On 25 October 2001 the applicant was issued with a foreign travel passport and subsequently moved to the United States.
Law: The applicant’s right to leave his own country had been restricted in a manner which amounted to interference within the meaning of Article 2 of Protocol No. 4. The restriction had been imposed in accordance with the law. As to the necessity of the interference, the Court observed that the applicant had surrendered all classified material to his employer on termination of his contract, before applying for a passport to travel abroad. Moreover, the purpose of the applicant’s planned trip abroad had been purely private – he wished to visit his father, who was ill – and was unrelated to his previous work. Russian legislation on international travel by persons with knowledge of State secrets imposed an unqualified restriction on their right to leave Russia, irrespective of the purpose or duration of the visit. Accordingly, the scope of review by the domestic authorities had been confined to an examination of whether the information to which the applicant had once had access was still sensitive. None of the authorities had considered whether the restriction on the applicant’s right to travel abroad for private purposes was still necessary or whether a less restrictive measure could have been applied. Furthermore, the Government had not indicated how the unqualified restriction on the applicant’s ability to travel abroad served the interests of national security. It had to be borne in mind that at the time the restriction was conceived, the State had been able to control the transmission of information to the outside world, using a combination of restrictions on outgoing and incoming correspondence, a ban on international travel and emigration and a ban on unsupervised contacts with foreign nationals within the country. However, once the ban on personal contacts with foreign nationals had been removed and correspondence was no longer subject to censorship, the need to impose restrictions on international travel for private purposes became less obvious. In those circumstances, in so far as the ban on international travel for private reasons purported to prevent the applicant from communicating information to foreign nationals, such a restriction, in the context of a contemporary democratic society, failed to achieve the protective function previously assigned to it. Furthermore, the fact that the Parliamentary Assembly, in its opinion on Russian accession, had made express reference to Russia’s undertaking to end that restriction, suggested that the Assembly considered it to be incompatible with membership of the Council of Europe. However, the Russian undertaking to abolish the restriction had not been implemented and the relevant provisions of domestic law had remained in force. In that connection, most of the member States had never provided for a comparable restriction in their legislation, and many more had abolished it as part of the democratic reform process. Lastly, the Court observed that the restriction on the applicant’s right to leave the country had been imposed for a considerable length of time – five years following the termination of his employment contract – notwithstanding the fact that the restriction had not been explicitly mentioned in the undertaking he had given in 1994. The consequences of the measure had been particularly serious for the applicant, who had been unable to travel abroad for a total of 24 years after taking up his job in 1977. The restriction on the applicant’s right to leave his own country had therefore not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicant EUR 3,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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