Communicated on 22 September 2015
FIRST SECTION
Application no. 17570/15
Murat Akhmetovich KAMENOV
against Russia
lodged on 28 March 2015
STATEMENT OF FACTS
The applicant, Mr Murat Akhmetovich Kamenov, is a Kazakhstani national, who was born in 1968 and lives in Zhangala, Kazakhstan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In June 2000 the applicant moved from Kazakhstan to Russia, where he married Ms G.K., a Russian citizen, with whom he had two daughters who were born in 2000 and 2002. The applicant and his family lived in the settlement of Slantseviy Rudnik in the Saratov Region. The applicant regularly visited his relatives in Kazakhstan.
The applicant lived in Russia on regularly extended temporary residence permits. On 20 August 2013 the Saratov Regional Department of the Federal Migration Service issued the applicant a three-year residence permit valid until 20 August 2016.
On 12 April 2014 the applicant was returning from Kazakhstan to Russia through the border crossing station ‘Ozinki’ in the Saratov Region when the Federal Border Control Department of the Russian Federal Security Service informed him that he was denied re-entry to the Russian Federation. According to the notice handed to the applicant at the station, he was a subject to re-entry ban until 2030 on the basis of information letter of 14 January 2014 from the Saratov Regional Department of the Federal Security Service (the Saratov Regional Department of the FSB) sent pursuant to 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 other explanation was given.
On 13 May 2014 the applicant appealed the re-entry ban to the Frunzenskiy District Court in Saratov and requested that it be lifted. The latter forwarded the appeal to the Saratov Regional Court (the Regional Court) as according to the domestic regulations regional courts were to examine cases involving State secrets. In his complaint the applicant stated that he was unaware of the reasons for the ban and that the denial of re-entry adversely affected his family life.
On 25 July 2014 the Regional Court examined the applicant’s complaint and upheld the re-entry ban. In its decision it did not refer to any documents submitted by the Federal Security Service (the FSB) which had served as the basis for the ban other than mentioning that the measure had been imposed based on the information letter of 14 January 2014. It noted that the relevant procedure had been complied with and that findings made by the FSB represented a State secret and, therefore, could not be included into the case file and could only be “reviewed” by the court and not by the applicant. The court emphasised that the information served as the basis for the ban was not subject to judicial scrutiny and that the scope of the court’s review was the assessment whether the procedure had been complied with. As to whether the imposition of the re-entry ban amounted to an interference with the applicant’s family life, the court stated that “interests of the society prevailed over the private interests of the applicant”.
The applicant appealed the above decision to the Administrative Cases Chamber of the Supreme Court of the Russian Federation (the Supreme Court) stating, amongst other things, that his representative had not been given the chance to familiarise himself with the contents of the FSB information of 14 January 2014 and the other documents which had served as the basis for the re-entry ban in spite of fact that he had given a duly signed confidentiality undertaking; that he had been unaware of the basis for the ban, that he had never committed criminal or administrative violations and that the ban disrupted his family life.
On 24 December 2014 the Supreme Court upheld the decision of 25 July 2014 stating that the Regional Court had duly examined the necessary legal basis for the ban and that its decision had been lawful and reasonable. The Supreme Court neither specified the documents or the evidence which had served as the basis for the FSB information letter of 14 January 2014, nor did it make any references to its contents. As for the applicant’s complaint concerning the interference of the ban with his right to family life, the Supreme Court left it without examination.
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 applicant complains under Article 8 of the Convention that the entry ban imposed on him violated his right to respect for family life.
The applicant complains under Articles 6 and 13 of the Convention that the proceedings in the Russian courts were unfair. In particular, he argued that the judicial review was limited in scope, as the domestic courts had no competence to verify the information which served as the basis for the re‑entry ban. Moreover, he was informed about the accusations against him in general terms only and had no opportunity to refute them.
QUESTIONS TO THE PARTIES
1. What were the motives and factual grounds for the applicant’s re-entry ban to Russia? The Government are requested to produce a copy of the information letter of the Federal Security Service of 14 January 2014 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 Saratov Regional Court and the Supreme Court which examined the applicant’s 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 applicant’s re-entry had been made on genuine national security grounds, protection of public order or health and whether the executive was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard? Did the courts make a balancing exercise between the need to protect national security, public order or health and the applicant’s right to respect for his family life?
3. Were the classified materials from the Federal Security Service disclosed to the applicant or his representative? Was the 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 applicant? Did the applicant have an opportunity to have witnesses questioned or present other evidence?
4. Did the re-entry ban imposed on the applicant constitute an interference with his right to respect for his 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))?
5. Did the applicant have an effective domestic remedy within the meaning of Article 13 of the Convention, in respect of the alleged violation of Article 8 (De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012)?
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