FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 55565/00
by Arkadiy BARTIK
against Russia
The European Court of Human Rights (First Section), sitting on 16 September 2004 as a Chamber composed of:
MrC.L. Rozakis, President,
MrP. Lorenzen,
MrG. Bonello,
MrA. Kovler,
MrV. Zagrebelsky,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 23 February 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Arkadiy Mikhaylovich Bartik, is a Russian national, who was born in 1954 and at the material time lived in the Moscow Region. He is represented before the Court by Ms M. Voskobitova, a lawyer with the International Protection Centre in Moscow. The respondent Government are represented by Mr P. Laptev, representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1977 the applicant started working for a construction and design agency “Raduga” (ГМКБ «Радуга»), a State corporation that developed rocket and space devices. He signed an undertaking not to disclose classified information.
On 16 May 1989 the applicant signed a new undertaking, the relevant part of which reads as follows:
“I, [the applicant’s name], 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...”
On 31 January 1994 the applicant signed a new undertaking. It contained clauses prohibiting the disclosure of State secrets, including after termination of the contract of employment and requiring compliance with the secrecy obligations at work, as well as an obligation to inform the security department of any attempts by third parties to obtain classified information and of any contact with relatives living or moving abroad or with foreigners. No other restrictions were listed.
On 20 August 1996 the applicant resigned.
On 24 January 1997 the applicant applied to the Passports and Visas Service of the Department of the Interior of Dubna (отдел паспортно-визовой службы отдела внутренних дел г. Дубны) for an international passport, the identity document which entitles Russian citizens to leave the country and travel abroad.
On 17 March 1997 the head of the Passports and Visas Service refused the applicant’s request. The refusal indicated that the applicant’s right to obtain an international passport was restricted until 2001 further to a recommendation (заключение) by his former employer.
The applicant contested the refusal before the Interagency commission for the examination of Russian citizens’ complaints in connection with restrictions on their right to leave the Russian Federation (Межведомственная комиссия по рассмотрению обращений граждан РФ в связи с ограничениями их права на выезд из РФ, “the Commission”). On 24 February 1998 the Commission upheld the restrictions.
On 5 May 1998 the European Convention on Human Rights entered into force in respect of the Russian Federation.
The applicant appealed against the decision of the Commission to the Moscow City Court.
On 24 September 1999 the Moscow City Court gave its judgment. It found that on 22 April 1977, 16 May 1989 and 31 January 1994 the applicant had signed undertakings not to disclose State secrets; the 1989 undertaking also contained a clause restricting the applicant’s right to leave the country. Having examined a report on the applicant’s knowledge of State secrets (заключение об осведомленности в государственных секретах) drawn up by the applicant’s former employer and confirmed by the Aviation and Space Industry Department and the State Secrets Protection Department of the Ministry of Economy, the court found as follows:
“According to the report... [the applicant] in his work used workbooks bearing inventory nos. 5301, 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 Kozhemyak, 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 Kozhemyak clarified to the court, there are no grounds for changing the secrecy classification of this information...”
On these grounds the court concluded that the restriction on the applicant’s right to leave the Russian Federation until 14 August 2001 was lawful and justified.
On 9 November 1999 the Supreme Court of the Russian Federation examined the applicant’s appeal against the judgment of 24 September 1999 and upheld the judgment.
The restriction on the applicant’s right to leave the country expired on 14 August 2001.
On 25 October 2001 the applicant was issued with an international passport and he subsequently took up residence in the United States of America.
B. Relevant domestic law
1. The USSR law “on the procedure for entering and leaving the USSR” (Law no. 2177-I of 20 May 1991)
The USSR law provided that USSR citizens could only leave the country with an international passport issued by a competent body (section 1). An international passport could be refused, in particular, if the person had knowledge of State secrets or was subject to other contractual obligations prohibiting his departure from the USSR (section 7 § 1). An appear lay against a refusal to a special commission of the Cabinet of Ministers and from there to a court (Section 8).
Pursuant to section 12, “restrictions [concerning international travel] [were to be] brought to citizens’ attention by the management of enterprises, institutions, organisations... on their enrolment for work or study... that entailed access to State secrets. Before such access [could be] authorised, a written employment contract [had to] be signed on a voluntary basis...”
The USSR law remained in force until 19 August 1996 when it was replaced by the Russian law described below.
2. The Russian federal law “on the procedure for entering and leaving the Russian Federation” (Law 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, and in accordance with, the procedure set out in the law. Section 15 (1) provides that the right of a Russian national to leave the Russian Federation may be temporarily restricted if he or she 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.
3. The Russian federal law “on State secrets” (Law no. 5485-1 of 21 July 1993)
Sections 21 and 24 stipulate that the granting of access to State secrets presupposes the person concerned’s consent to partial and temporary restrictions on his or her rights, including his or her right to go abroad for the period set out in the employment contract.
C. 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...”
COMPLAINTS
1. The applicant complained under Article 2 § 2 of Protocol No. 4 about a restriction on his right to leave the Russian Federation. He contended that the restriction was not in accordance with the law, as required by Article 2 § 3 of Protocol No. 4, because he had never signed a contract of employment containing a restriction on his right to leave the Russian Federation. He further submitted that between 1993, when the Law on State Secrets was passed, and 1996, when he resigned, the State authorities had had sufficient time to inform him of the restriction in writing or to offer him a new contract, but had not done so. The undertaking he had signed in 1994 did not contain such a restriction.
2. The applicant complained under Article 8 of the Convention of a violation of his right to respect for his private and family life. He submitted that his elderly parents had moved to Germany in 1997, and in 1999 his father had developed a life-threatening medical condition. However, without an international passport, the applicant had not been able to visit his father or provide him with comfort and support.
THE LAW
1. The applicant complained under Article 2 of Protocol No. 4 of the Russian authorities’ refusal to issue him with a passport to travel abroad. The relevant parts of that provision read 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.”
The Government’s submissions
The Government submitted that the applicant had worked as a team leader in the Raduga agency between November 1991 and August 1996. Until his resignation he had been in possession of a “special briefcase”, a seal, a “special notebook” and workbooks that contained top-secret information. On 14 August 1996 he had surrendered all these items to the agency. This was the last date he had had access to classified information.
The Government indicated that in 1977, 1989 and 1994 the applicant had signed undertakings not to disclose State secrets. The undertaking of 16 May 1989 also contained a clause restricting his ability to travel abroad.
The Government did not dispute that the federal law of 15 August 1996 required all agencies dealing with classified information to sign new employment contracts with employees having access to such information. This was not done in the applicant’s case because the law came into force on 19 August 1996, that is to say a day before the applicant’s employment ended. The USSR law of 20 May 1991 to which the applicant had referred only contained a similar requirement in respect of new employees, whereas the applicant had been working for Raduga since 1977.
The Government claimed that the restriction on the applicant’s right to travel abroad had been necessary in the interests of national security and for the protection of the State interests, and was only temporary. They considered the applicant’s complaint to be manifestly ill-founded.
The applicant’s submissions
The applicant maintained that the restriction that had been imposed was not in accordance with the law. The 1994 undertaking covered all possible restrictions of the applicant’s rights and, since he had never been advised – either orally or in writing – of the restriction, he had believed that he would be able to obtain an international passport when necessary.
The applicant further claimed that the domestic courts’ approach was too formalistic and that they had relied excessively on statements by his former employer, without analysing the necessity for such a restriction in the light of his explanation that his access to classified information had been virtually nil since 1989.
The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant complained under Article 8 of the Convention that the restriction on his travel abroad to tend to his ailing father had interfered with his right to respect for his private and family life. Article 8 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.”
The Court observes that the applicant and his parents had been living separately at least since 1997, when they moved to Germany. His elderly parents did not belong to his core family and they have not been shown to have been dependent members of his family. The Court finds that the applicant’s arguments as to the existence of “family life” between them have not been sufficiently substantiated and cannot be relied upon (see, among other authorities, Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003‑X).
The Court further notes that the applicant was not removed from his habitual environment of personal and social relationships and, apart from the issues that are to be examined from the standpoint of Article 2 § 2 of Protocol No. 4, the sphere of his immediate personal autonomy does not seem to have been restricted in any way. It considers, therefore, that there was no interference with the applicant’s “private life”.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint about a restriction on his right to leave his own country;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy