Communicated on 7 October 2015
FIRST SECTION
Application no. 1056/15
Tuychi Akbarovich DZHURAYEV and Yekaterina Sergeyevna SHALKOVA
against Russia
lodged on 15 December 2014
STATEMENT OF FACTS
The applicants, Mr Tuychi Akbarovich Dzhurayev, a Tajikistani national and Ms Yekaterina Sergeyevna Shalkova, a Russian national, who were born in 1966 and 1985 respectively. The first applicant lives in Khatlonskaya Oblast in Tajikistan and the second applicant in Perm, Russia. The applicants are represented before the Court by Mr B. I. Ponosov, a lawyer practising in Ocher, in the Perm Region, Russia.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
1. Background information
In 1995 the first applicant moved to Russia. In 1998 he was sentenced by the Dzerzhinsky District Court in Perm to eight years of imprisonment for drug trafficking. In 2011 that conviction was expunged.
In 2009 the first applicant married the second applicant with whom he had had a son in 2006. It appears that the first applicant lived in Russia on regularly extended temporary residence permits and was allowed to work.
2. The re-entry ban imposed on the first applicant
On 13 May 2014 the first applicant left Russia to go to Tajikistan. On 21 May 2013 on his way back to Russia, at the Ekaterinburg airport Koltsovo he was informed that he was not allowed to re-entry Russia. The written notice given to him stated that he was a subject to re-entry ban on the basis of section 27 § 1 of the Entry Procedure Act that is “for the purposes of ensuring the defensive capacity or security of the State, or protecting public order or health”. No indication of the ban’s duration or any other explanation was given.
3. The applicants’ attempts to establish which executive imposed the ban
Following the first applicant’s refusal for admission to Russia, on various dates between May and November 2013 the second applicant sent requests to a number of executive authorities, including the Federal Security Service (FSB) and its department in the Perm Region (the Regional FSB), the Federal Border Service, the Russian Ministry of the Interior, the Ministry of Foreign Affairs, the Russian Drug Enforcement Agency, the Russian Federal Migration Service (the FMS) and its Department in the Perm Region (the Perm Region FMS) asking whether their agency had taken the decision for the first applicant’s exclusion from Russia. In their replies the agencies either denied having provided the basis for the re-entry ban or refused to provide information.
In the absence of the information concerning the basis for the ban and the executive authority responsible thereof, in December 2013 the applicants complained to the Leninskiy District Court in Perm against the Perm Region FMS alleging that the agency had taken the decision to impose the ban reasons and basis for which were unknown and that the first applicant’s inability to enter Russian disrupted the applicants’ family life. By decision of 20 February 2014 the Leninskiy District Court rejected the complaint stating that the defendant should have been not the Perm Region FMS, but the Regional FSB.
4. Appeal of the ban in the domestic courts
(a) Proceedings in the Perm Regional Court
In the end of February 2014 the applicants complained against the Regional FSB to the Dzerzhinsky District Court in Perm and requested that the ban be lifted. The Dzerzhinsky District Court forwarded the complaint to the Perm Regional Court (the Regional Court) as according to domestic regulations regional courts were to examine cases involving State secrets.
On 16 May 2014 the Regional Court examined the complaint. Prior to the examination the applicants and their counsel gave confidentiality undertakings concerning the information examined during the hearing. The Regional FSB provided the court with a case file concerning the first applicant. The case file which seemed to comprise about two hundred pages was quickly reviewed by the court. Neither the applicants nor their representative were allowed to see the file’s contents.
The Regional FSB was represented in the proceedings by their counsel. Another FSB officer, an operational search agent, who had participated in operational measures against the first applicant, was had been called as a witness. According to the executive agency, the re‑entry ban was imposed on the basis of the report of the Federal Security Service of 7 September 2012 according to which the first applicant was a member of an extremist group and incited ethnic tensions. The FSB refused to specify which actions of the first applicant had served as the basis for the ban. The judge interrupted the applicants’ counsel when the latter tried to question the FSB operational search officer concerning the factual basis for the report of 7 September 2012. According to the applicants, neither they nor their counsel were allowed to access any of the documents which served as the basis for the re-entry ban, in spite of the confidentiality undertaking given prior to the hearing.
On 16 May 2014 the Regional Court upheld the re-entry ban stating, amongst other things that according to the witness statement of the FSB operational search officer “the applicant had been involved in activities threatening the State security. This has been confirmed by secret operational documents presented, which have been reviewed by the court and returned to the representative of the FSB”. The court further stated that the decision to exclude the first applicant had been issued in accordance with the procedure prescribed by law, had been reasoned by reference to the information submitted by the FSB and, therefore, had been lawful. As to whether the imposition of the re-entry ban amounted to an interference with the right to family life, the court stated that interests of the society prevailed over the private interests of the [first] applicant. The court further stated that taking into account that the ban was valid until the end of 2014, the second applicant and her son could visit the first applicant in the summer of 2014 during the school holidays.
(b) Appeal to the Supreme Court of the Russian Federation
The applicants appealed the decision of 16 May 2014 to the Supreme Court of the Russian Federation (the Supreme Court) stating, amongst other things, that neither they nor their representative had not been given the chance to familiarise themselves with the contents of the FSB information which had served as the basis for the exclusion in spite of having given a duly signed confidentiality undertaking; that the court took into account the operational search information furnished by the FSB and that that information had not been duly formalised as evidence and, therefore, should not have been used as such in the civil proceedings. The applicants further stated that the information furnished by the executive did not specify any details concerning the nature of the first applicant’s activity which allegedly posed risk to the national security. Finally, the applicants stated that the ban disrupted their family life and that the Regional Court failed to properly balance the interests at stake.
On 23 July 2014 the Supreme Court upheld the decision of 16 May 2014 stating in general terms that the Regional Court had duly examined the necessary legal basis for the ban, that its decision had been lawful and balanced the public and private interests.
From the documents submitted it appears that the first applicant’s re‑entry ban was imposed until 31 December 2014. It is unclear whether the first applicant was able to enter Russia after that date.
B. Relevant domestic law
For the relevant domestic law and practice see Nolan and K. v. Russia, no. 2512/04, §§ 44-47, 12 February 2009 and Liu v. Russia (no. 2), no. 29157/09, §§ 45-53, 26 July 2011.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the entry ban imposed on the first applicant violated their right to respect for family life. The applicants complain under Article 6 of the Convention that the judicial review of their appeal against the re-entry ban was limited in scope, that the accusations against the first applicant were based on secret documents to which they had no access and, therefore, the opportunity to refute the allegations.
QUESTIONS TO THE PARTIES
1. What were the motives and factual grounds for the first applicant’s re‑entry ban to Russia? The Government are requested to produce a copy of the report of the Federal Security Service of 7 September 2012 and other materials from the Federal Security Service and other executives which served as the basis for the ban. The Court notes that access to these documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.
2. What was the scope of review of the Perm Regional Court and the Supreme Court which examined the applicants’ appeal against the re-entry ban? Was the judicial review limited to ascertaining that the ban had been imposed in accordance with the procedure prescribed by law and, in particular, that the materials which formed the basis for the ban had been issued within the administrative competence of the Federal Security Service? Did the courts have competence to verify whether the decision to ban the first applicant’s re-entry had been made on genuine national security grounds and whether the executive was able to demonstrate the existence of specific facts serving as a basis for its assessment that the first applicant presented a risk in that regard? Did the courts make a balancing exercise between the need to protect national security and the first applicant’s right to respect for family life?
3. Were the classified materials from the Federal Security Service disclosed to the applicants or their representative? Was the first applicant given a fair and reasonable opportunity to refute the facts and findings contained in those materials? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against the first applicant? Did the first applicant have an opportunity to have witnesses questioned or present other evidence?
4. Did the re-entry ban imposed on the first applicant constitute an interference with his right to respect for family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54 - 60, ECHR 2006-...; C.G. and Others v. Bulgaria, no. 1365/07, §§ 37 - 50, 24 April 2008; and Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 93 - 129, ECHR 2002‑II (extracts))?
Full & Egal Universal Law Academy