Communicated on 9 February 2021
Published on 1 March 2021
THIRD SECTION
Application no. 54003/20
Vanessa Stoessel KOGAN and Others
against Russia
lodged on 10 December 2020
STATEMENT OF FACTSThe circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.The applicants’ personal profiles and their family situation
The applicants are a family. The first applicant is a citizen of the United States of America (“USA”) who has been living and working in Russia since 2009. She is married to the second applicant, Mr A., who is a Russian citizen. They have two minor children (third and fourth applicants) who are dual Russian-American nationals and attend kindergarten in Moscow. The applicants live in a Moscow apartment that is jointly owned by the first and the second applicants and visit USA once a year for vacations. All applicants have close relationship with the second applicant’s mother (who is financially dependent on the second applicant) and his brother who also live in Russia.The first and second applicants’ professional profiles
In 2009 the first applicant moved to Russia to work for the Russian office of Stitching Justice Initiative (“SJI”), a non-governmental organization (“NGO”) based in the Netherlands with a mission of providing legal protection to victims of human rights violations.
In 2012, the first applicant became Director of Legal Assistance — Astreya, (“Astreya”), a partner NGO of SJI in Russia. According to the first and second applicants, Astreya represents approximately 1,700 applicants in over 400 cases before the Court.
The first applicant states that “she moved to Russia in 2009 specifically to perform human rights work, finding her calling in ensuring legal representation for victims of serious human rights violations in Russia, including the right to life, freedom from torture and protection from domestic and other forms of gender-based violence”.
The second applicant is a practising lawyer who represents applicants at implementation stage of the Court’s judgments adopted in respect of them. The second applicant also coordinates international advocacy work related to the implementation of the Court’s judgments and has made over twenty submissions to the Committee of Ministers of the Council of Europe since 2010. Most recently, in September 2020, at the request of the European Implementation Network, the first and second applicants participated in two briefings to delegates of the Committee of Ministers of the Council of Europe concerning Russia’s implementation of the Khanamirova v. Russia and Volodina v. Russia groups of cases.The first applicant’s immigration situation in Russia
Between 2009 and 2014 the first applicant lived in Russia on the basis of employment-based visas. In 2014 the authorities granted a three-year residence permit in Russia to her.
On 16 February 2017 a five-year residence permit (valid until 16 February 2022) was issued to the first applicant by the Russian migration service.
On 7 September 2020 the first applicant applied for Russian citizenship. On 2 December 2020 she was notified that (i) on 24 November 2020 her application for citizenship had been rejected by the migration service of the Moscow Department of the Interior on the grounds that she posed a threat to national security; (ii) her residence permit had been revoked on 16 November 2020 under section 9(1)(1) of the Federal Law on the Legal Status of Foreigners in the Russian Federation (hereinafter “the Foreigners Act”), which provided that a residence permit issued to a foreign national should be revoked if he or she advocated a radical change in the constitutional order of the Russian Federation or otherwise posed a threat to the security of the Russian Federation or its citizens and (iii) she had to leave the country within 15 days. The first applicant was not provided with either the text of the decision or its details, including how exactly she herself and/or her activities posed a threat to the constitutional order of Russia.
On 5 December 2020 the first applicant appealed against the decision revoking her residence permit. She also lodged a request to apply provisional protective measures and suspend her removal.
On 14 December 2020 the Koptevskiy District Court of Moscow (“the District Court”) ruled that there had been no legal grounds to apply provisional protective measures in respect of the first applicant. In particular, the District Court held that the first applicant had not submitted evidence that there had been imminent risk that her rights and freedoms would be violated and that she in essence had requested the court to annul the decision of 16 November 2020 of the Moscow Department of the Interior, pending examination of her case on the merits.
On 29 December 2020 the police charged the first applicant with breaching migration regulations, an administrative offence punishable by imposition of administrative fine and/or administrative expulsion. On the same date the materials of the first applicant’s administrative case file were submitted to the Koptevskiy District Court of Moscow which found substantive shortcomings in the administrative offence report drawn up by the police, ruled that the police should “remedy” those shortcomings and returned the case file to the police.
The hearing in respect of her complaint against revocation of residence permit of the first applicant was at first scheduled for 21 January 2021. On that day it was adjourned for 9 February 2021.Application of interim measure by the Court
On 10 December 2020 the first applicant requested the Court to grant an interim measure under Rule 39 of the Rules of the Court preventing her removal from Russia to the USA. She alleged, inter alia, that revocation of her residence permit was arbitrary, it did not pursue a legitimate aim and that her removal to the USA would interfere with her family life in breach of Article 8 of the Convention. She also alleged that “the Russian authorities view[ed] her as a threat to national security only because of her successful work as a human rights lawyer, and the sole reason for the revocation of her residence permit [was] to prevent her from pursuing her activities and suspending her organization’s operations”.
On 11 December 2020 the Court applied an interim measure in respect of the first applicant having indicated to the Russian Government that she should not be removed from Russia to the USA for the duration of the proceedings before the Court.
On 5 January 2021, at the first applicant’s request, the Court reminded the Russian Government that the interim measure in respect of her was still valid and invited the Government to keep the Court updated regarding her case and its developments.The alleged contacts of the Federal Security Service with the first applicant
According to the first applicant, in December 2016 when she sought to obtain a five-year residence permit in Russia, she was invited for an interview at the main office of Federal Migration Service in Moscow. She was interviewed by certain D., who allegedly introduced himself as a representative of the Russian Federal Security Service (“FSB”). The first applicant states that D. extensively questioned her in respect of her work and told her that they would have to meet several more times to discuss additional questions. After their meeting he called her several times asking for a meeting. The first applicant requested D. to send his questions by email. The first applicant submitted what appears to be an email exchange between D. and her in February-March 2017 which includes, inter alia, D.’s request to provide him with a list of NGOs that “manifest animosity in respect of Russia and do not actually defend rights of citizens”. D. also requested the first applicant “to explain working principle of [NGOs] that provide legal aid, using her organisation as an example [indicating] [F]ull chain [structure], including names of persons and their contact information, and applications lodged with the European [institutions].”
The first applicant submitted in reply that she could not provide D. with the list of NGOs or persons “that manifest animosity in respect of Russia” because they had not been known to her. She replied that those NGO’s representatives that she knew were “Russian citizens who love[d] their country and sincerely believe[d] that they [could] make it better by carrying out legal defence activities”. She further replied that she had never encountered any “insurgent” activities under pretences of “rendering legal protection” and that “persons who work in a legal defence sector considered criticising authorities to be their work and that society needed that.” She further described the structure of her organisation and noted that it was financed by the NGO based in the Netherlands and that it had also received financial support directly from the Dutch Embassy in Russia for a project concerning gender-based violence in the North Caucasus, Pskov and Ulyanovsk Regions. She further stated that they had also received funding from the Russian Representation of the United Nations Office of High Commissioner for Refugees for rendering legal advice to residents of Ingushetia and Chechnya. She pointed out that the mission of her organisation was the protection of fundamental human rights (right to life, prohibition of torture) and providing legal aid to victims of domestic and sexual violence, including in the North Caucasus. The first applicant also noted that Astreya’s further activity included training courses for lawyers.
The first applicant further submits that in February 2018, at D.’s insistence, she met with D. and his colleague. They allegedly told her “not to be afraid because her residence permit had been granted even though she avoided everything”, which the first applicant understood as avoiding contact with D. They allegedly offered the first applicant, for significant financial compensation, to head a new Russian organisation that would monitor human rights violations in Russia and other countries. They further requested her to provide them with information on Astreya’s clients, financial aspects of their work and colleagues from other organisations. They allegedly offered to render assistance with “promotion” of any upcoming projects of organisation. The first applicant firmly rejected all offers and requests that had been made by D. and his colleague.Law enforcement activities and raids in respect of Astreya and its counterparts
According to the first applicant, in July 2019 the founder of Astreya reported that a law-enforcement officer had visited her home looking for her, left his contact information and introduced himself as a representative of the “human rights-protecting agency[,] the FSB”.
In August 2019, the offices of Astreya in Moscow were allegedly raided and searched by the units of Special Rapid Deployment Force (masked and armed with automatic weapons), the FSB and the MVD. They confiscated the telephones of the employees and photographed their identity documents. Two days later the office of Justice Initiative, Astreya’s partner organisation in Nazran, Ingushetia, was raided and the documents were confiscated during search ordered in connection with alleged “organisation of protests”.
In September 2019 a journalist who covered the North Caucasus allegedly warned the second applicant that the FSB in Chechnya were showing “interest” in the first applicant and the work that she had been doing and that they “would try to either destroy organisation or infiltrate an agent.”
In February 2020 the offices and homes of SJI’s and Astreya’s partners in Dagestan (law office of Ms Malika Abubakarova in Khasavyurt and homes of staff and psychologist of organisation for women’s’ rights in Makhachkala) were allegedly raided. In September 2020 the first applicant was informed by the partners in Dagestan that the FSB had forbidden all municipal structures and representatives and all universities to cooperate with Astreya which had been carrying out educational activities in Dagestan since 2017.The statements of the European Union in respect of the first applicant’s situation
On 4 December 2020, the European External Action Service (EU’s Foreign and Security Policy Service) made a statement urging the authorities to revoke their decision in respect of the first applicant. On 8 December 2020, during the 1391st Meeting of Committee of Ministers of the Council of Europe, the EU Delegation made a special statement characterizing the annulment of her residence permit as a manifestation “of the pressures on independent civil society and human rights defenders in Russia” and calling “upon the Russian authorities to review their decision [revoking the residence permit] and to allow [the first applicant] to continue carrying out in full extent her work in the field of human rights in Russia”.The first applicant’s complaint to the Federal Communications Agency
The first applicant alleges that following the media coverage concerning the revocation of her residence permit, several state-supported websites and media channels began to publish malicious and untrue statements about the work of Astreya and SJI. On 7 December 2020, the first applicant requested the Investigative Directorate of the FSB and the Federal Communications Agency (Роскомнадзор - “Roskomnadzor”) through its website to check whether some of the users’ comments posted under the online publication of News Front information agency were of extremist nature. She provided a link to the publication and a print-out of comments in question with her request. On 24 December 2020, Roskomnadzor replied that it could not check the material in question because the first applicant had not provided link to it.Relevant domestic law and practice
For the relevant domestic law and practice, see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the revocation of the first applicant’s residence permit had violated their right to respect for private and family life. The first and second applicants also claim that the authorities revoked the first applicant’s residence permit to silence and punish the first and the second applicant for their activities in the area of human rights and to prevent them from pursuing those activities, in breach of Article 18 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the applicants exhaust effective domestic remedies that were available to them in respect of their complaint under Article 8 of the Convention?
2. If yes, did the decision to revoke the first applicant’s residence permit constitute an interference with the applicants’ right to respect for private and 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? In particular,
What were the motives, factual and legal grounds for the decision to revoke the first applicant’s residence permit in Russia?
Was/Were the decision(s) of the Moscow Department of the Interior or other state bodies, including those of Federal Security Service (“FSB”), on the basis of which the first applicant’s residence permit was revoked, disclosed to the first applicant or her representative(s)? If yes, when and under what circumstances? If no, what were the reasons for non-disclosure?
What was the scope of review of the domestic courts that examined the appeals against the decision revoking the first applicant’s residence permit? Did the domestic courts give the first applicant a fair and reasonable opportunity to refute the facts and findings contained in the decisions of the Moscow Department of the Interior or other state bodies, including the FSB, issued in respect of her? Did they examine other 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? Did the courts make a balancing exercise between the need to protect national security and the applicants’ right to respect for their family life? Was it within the domestic courts’ competence to verify whether the decision revoking the first applicant’s residence permit was based on genuine national security grounds and whether the Moscow Department of the Interior or relevant state bodies were 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 (see Gaspar v. Russia, no. 23038/15, §§ 46-49, 12 June 2018; Zezev v. Russia, no. 47781/10, §§ 39-43, 12 June 2018; Kamenov v. Russia, no. 17570/15, §§ 31-38, 7 March 2017; and Liu v. Russia (no. 2), no. 29157/09, §§ 87-92, 26 July 2011)?
3. Owing to the nature of the first and second applicants’ professional activities, were the restrictions imposed by the State in the present case, purportedly pursuant to Article 8 § 2 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention? What was the nature and extent of the FSB’s contacts with the first applicant? Were the following organisations raided by the Russian law enforcement authorities as described by the first applicant and if yes, what were the legal grounds for those raids:
offices of Astreya in Moscow and Justice Initiative in Nazran, Ingushetiya, in August 2019;
law office of Ms Malika Abubakarova in Khasavyurt, Dagestan, in February 2020; and
homes of staff and psychologist of SJI’s and Astreya’s partner organisation for women’s rights in Makhachkala, Dagestan, in February 2020?
4. The Government are invited to produce copies of the following documents:
decisions of the Moscow Department of the Interior of 16 and 24 November 2020 and other documents, including respective reports from the Federal Security Service, if applicable, and/or other authorities which served as the basis for the decision to revoke the first applicant’s residence permit in Russia. The Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court;
documents reflecting the first applicant’s current immigration status; documents showing when and under what conditions the first applicant could be granted a temporary or permanent residence permit in Russia;
decisions in which persons whose residence permits were revoked or whose expulsion from Russia was ordered on national security grounds were able to challenge successfully the respective decisions and/or orders for their removal; and
with references to the relevant legislation, a list of national authorities authorised to revoke (annul) residence permits and issue re-entry bans based on national security considerations as well as the grounds and time frame for periodical/regular review of the bans imposed.
APPENDIX
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Vanessa Stoessel KOGAN
1981
American
Moscow
2.
Grigor Yuryevich AVETISYAN
1976
Russian
Moscow
3.
Aleksandr Grigoryevich AVETISYAN
2014
Russian, American
Moscow
4.
Luka Grigoryevich AVETISYAN
2017
Russian, American
Moscow
Full & Egal Universal Law Academy