NOLAN AND K. v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2512/04
by Patrick Francis NOLAN and K.
against Russia

The European Court of Human Rights (First Section), sitting on 30 November 2006 as a Chamber composed of:

MrC.L. Rozakis, President,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 18 December 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Patrick Francis Nolan and Mr K., are citizens of the United States of America who were born in 1967 and 2001 respectively and live in Tbilisi, Georgia (hereinafter the first applicant will be referred to as “the applicant” and the second applicant as “the applicant’s son”). They are represented before the Court by Ms G. Krylova, a lawyer practising in Moscow, and Mr D. P. Holiner, a member of the St. Petersburg Bar.

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.

1. The applicant’s activities in Russia

Since 1988 the applicant has been a member of the Unification Church, a religious movement founded by Rev. Sun Myung Moon in Korea in 1954. In 1994, the Church invited the applicant to assist its activities in Russia.

In 1994, the Ministry of Foreign Affairs of the Russian Federation granted the applicant leave to stay in Russia. His leave to stay was subsequently renewed by the Ministry on a yearly basis through invitations issued by the registered religious organisation of the Unification Church in Moscow and an associated social organisation in St. Petersburg, the Family Federation for World Peace and Unification (FFWPU).

The applicant lived primarily in Rostov-on-Don in Southern Russia where he worked with local branches of the FFWPU and the Youth Federation for World Peace (YFWP). He explains that, while the Unification Church, the FFWPU and the YFWP and other associations operating in Russia maintain legal independence of one another, they co-operate with one another in pursuit of similar goals. According to the applicant, these organisations acknowledge their origin in the Unification Movement founded by Rev. Moon; their different titles and legal forms reflect specific focus of their activities and the fact that the social organisations are open to members of other faiths.

On 21 May 1999 the FFWPU established a local organisation in Rostov. Since the applicant’s host organisation in Russia was responsible for processing his residence registration with the police during his term of stay, this was subsequently arranged through the Rostov FFWPU.

On 10 January 2000 the acting President of the Russian Federation amended, by Decree no. 24, the “Concept of National Security of the Russian Federation” adopted in 1997. The relevant paragraph of Chapter IV “Ensuring the National Security of the Russian Federation” was amended to read:

“Ensuring the national security of the Russian Federation also includes the protection of its... spiritual and moral heritage... the forming of a State policy in the field of spiritual and moral education of the population... and also includes opposing the negative influence of foreign religious organisations and missionaries...” (emphasis added)

On 25 July 2000 the Promyshlenniy District Court of Stavropol, on an application by the acting Stavropol Regional prosecutor, decided to dissolve the Stavropol regional branch of the FFWPU and ban its activities “irrespective of State registration” on the ground that it was “engaged in religious activities under the guise of a registered social organisation”. On 25 October 2000 the Stavropol Regional Court upheld the judgment of 25 July 2000.

On 3 August 2000 the Rossiyskaya Gazeta newspaper ran an article on the Unification Church’s activities in the Southern Russia. It was entitled “Caramels from Moon will drive to debility” («‘Гуцулочки’ от Муна до маразма доведут»):

“The prosecutor’s office of the Stavropol Region has banned the activity of social organisations under the protection of which the Korean Moon... was buying souls for $500 a piece. [italics in the original]

Once there were two public organisations registered by the Stavropol Department of Justice: the Youth Federation for World Peace (YFWP) and the Family Federation for World Peace and Unification (FFWPU). As it turned out, these so-called public movements preach one of the most dangerous religions of the past century...

Outwardly inoffensive ‘peddlers’ who sell or give away the ‘New Families’ newspaper and cheap caramels, lure young men and women into Moon’s family... Young missionaries who were freely permitted to lecture to senior students at Stavropol schools introduced themselves as volunteers from the International Education Fund (IEF) [which is] one of Moon’s many ‘parishes’...

Self-proclaimed lecturers had no documents authorising them to talk to students. To ‘sweeten’ the lectures, they distributed caramels. Later, a panel of experts from the Stavropol clinic for borderline states gave a negative appraisal of Gutsulka caramels that Moonies distributed to children and adults alike. As it turned out, an outwardly inoffensive caramel destroys the human being’s energy-information profile [sic]. Simply speaking, such caramels with little known inclusions – in some of them small holes are visible – facilitate conversion of neophytes into zombies.

The contents of Moonies’ lectures leave a strong aftertaste of debility. It is sufficient to read the briefing materials [prepared by] the IEF – an outline of the lecture on ‘Preparation of a Secure Marriage’. Citation: ‘The genitals belong to a spouse and they only serve their purpose in a marital relationship... Until the marriage you are the guardian of your genitals for your future spouse...’

After some time... [a certain young man] was introduced to the head Moonie in the North Caucasus, Patrick Nolan. To the newcomers he was presented as an American professor who periodically came to them from Rostov-on-Don...

In Russia, a mass of associations belongs to the Moonie movement – professors, women and even mass-media employees, including cultural foundations and the already-mentioned YFWP and FFWPU. All these socialites are preachers of the Unification Church. Meanwhile, as early as three years ago the [upper chamber of the Russian Parliament] declared the Unification Church a totalitarian sect and a destructive cult...

At long last the prosecutor’s office and the Federal Security Service [FSB] of the Stavropol Region have started working on the Moonies. The regional prosecutor has filed an application... for dissolution of the YFWP and banning of its activities. The same goes for the FFWPU...

One question is still open: why does such a tenacious businessman as Rev. Moon spend [resources] on Russians? There are some versions. Not long ago... addresses were confiscated from one Moonie... Among them – the address of an American, Patrick Nolan, who passes his time in Rostov, and two e-mail addresses of the CIA. Why shouldn’t we imagine that Moon’s aim... is to catch our homeland in a spy net consisting of millions of agents – teachers, scholars, engineers, students and servicemen...”

On 26 June 2001 the applicant’s leave to stay in Russia was renewed for another year by the Ministry of Foreign Affairs on the basis of an invitation of the FFWPU. As before, the applicant registered his residence with the police upon arrival in Rostov, through the Rostov branch of the FFWPU.

On 12 July 2001 the applicant’s son, K., was born. On 2 October 2001 the applicant and his wife separated; the applicant’s wife returned to the United States and the applicant remained the sole custodian of the child.

On 31 August 2001 the Kirovskiy District Court of Rostov-on-Don, on an application by the Rostov Department of Justice, decided to liquidate the Rostov FFWPU pursuant to section 29 of the federal law on public associations (failure to notify of continuation of activities for more than three years). The applicant claims that by that time the Rostov FFWPU had been incorporated for only two years and three months and had just been issued a new registration certificate by the Rostov Department of Justice eight months prior, after undergoing re-registration. According to the judgment, the Rostov FFWPU was incorporated on 21 May 1998 or 21 May 1999, both dates being mentioned as the incorporation date. The hearing was held in the absence of both parties and the FFPWU learned of the decision after it came into force on 17 September 2001 with no further right of appeal.

On 10 October 2001 the Rostov police summoned the applicant and demanded his passport. They entered a stamp that his registration was “terminated”, orally notifying him that the Rostov FFWPU had been liquidated by a court order.

Thereafter the applicant obtained registration with the police through other FFWPU branches, first in Novorossiysk and then in Krasnodar. His final registration in Krasnodar was valid for the entire term of his leave to stay under his current visa, that is until 19 June 2002.

2. The applicant’s exclusion from Russia

(a) Refusal of re-entry to Russia

On 19 May 2002 the applicant travelled to Cyprus. His son stayed in Russia with his nanny.

At 11.00 p.m. on 2 June 2002 the applicant arrived at Sheremetyevo-1 airport in Moscow on a flight from Cyprus. When he reached the passport control booth, two officers – one male and the other female – examined his passport and visa insert. The male officer left with his documents, while the other told him to wait.

At about 0.30 a.m. on 3 June 2002 the applicant was allowed to cross the border to collect his baggage. Border officials conducted an extensive search of his belongings. Then he was directed back through passport control and out through the passenger entry doors from the tarmac to a flight transfer bus, which took him to the airport transit hall.

Upon arrival at the transit hall officials directed the applicant to wait in a small room adjacent to their office with a desk and a sofa, but no phone, ventilation or windows. Once he entered the room, the officials locked him in from outside. Initially the applicant thought that this would be just for a few minutes, but after half an hour he realised that he was being held in an improvised detention cell. He began knocking on the door, asking to be let out. The female officer responded through the door that he would not be let out until the morning, and told him to lie down and sleep. Ten minutes after that a male officer came with the applicant’s visa stapled to a one-page document. He told the applicant that his visa had been cancelled and asked him to sign the document. The applicant did as bidden although he could not read the document handwritten in Russian.

At 8.30 a.m., after knocking and shouting for twenty minutes, the applicant was allowed to leave under guard and use the toilet.

At 10.00 a.m. a man in civilian clothing came to the room and introduced himself as the official in charge of passport control officers. The applicant was told that he would not be allowed to cross the Russian border and that border officials were only following orders and were not responsible for the decision. The man said he did not know the reason for the decision and could not disclose where the order had come from. The man apologised that the applicant had been held overnight in the room, stating that “the night crew is not too bright”.

The applicant bought a ticket to Tallinn, Estonia. A border guard continued to accompany the applicant until he boarded his flight at 11.30, returning his passport, but not his visa, only before he entered the aeroplane.

On 26 June 2002 the applicant sent letters, through his legal representatives in Russia, by registered mail to:

-the Ministry of Foreign Affairs;

-the Federal Security Service (FSB) and its department in the Krasnodar Region;

-the Federal Border Service, the military prosecutor’s office of that service and the Moscow Border Control;

- the Ministry of the Interior and its Krasnodar department of passports and visas;

-the Ombudsman and Presidential Envoy for the Central Circuit.

In these letters the applicant asked why he was denied entry and detained even though he had committed no violation and why no procedural documents were compiled or given to him. He also complained that he had been detained for over nine hours, and that as a result of the exclusion his eleven-month-old son had been left behind in Russia without either of his parents. The first applicant also requested assistance to be re-united with his son.

(b) Attempted return to Russia on a new visa

On 4 July 2002 the applicant received a new invitation issued through the Russian Ministry of Foreign Affairs. On 5 July 2002 he applied for a visa to enter Russia at the Russian consulate in Tallinn and on the same day he was issued a multiple-entry visa valid until 3 July 2003.

On 7 July 2002, when crossing the border from Finland to Russia, Russian border guards at passport control twice stamped the applicant’s visa “annulled” and denied him entry into Russia. No explanation was given. The consulate in Tallinn referred him to the Ministry’s office in Moscow.

3. Proceedings on the applicant’s complaints

Many of the applicant’s complaints sent on 26 June 2002 did not see a response. Of those that did, none addressed the substance of his complaints. Responses from the Moscow Border Control of the Federal Border Service of 9 July and 22 August 2002 indicated that he had been denied entry into Russia on the basis of section 27 § 1 of the federal law on the procedure for entering and leaving the Russian Federation, in implementation of an order given by another (unnamed) State body. The military prosecutor’s office responded that the applicant “had not been placed in administrative detention and therefore no detention record had been drawn up”.

On 8 August 2002 the applicant, through his legal representative in Moscow, challenged the decision refusing him return to Russia before the Khimki Town Court of the Moscow Region. He filed a challenge on behalf of himself and his son K., listing the Moscow Border Control as defendant.

On 29 August 2002, at the directions hearing, the defendants disclosed that they had acted on the orders of the Federal Security Service (FSB). The court joined the FSB as a co-defendant.

On 5 September 2002 the defendant requested that jurisdiction be transferred to the Moscow Regional Court because the matters involving State secrets could only be examined by regional courts, pursuant to Article 115 § 1 of the RSFSR Code of Civil Procedure. The court granted their request by an interim decision.

On 25 March 2003, after repeated adjournments due to the FSB’s lack of preparation, the hearing was held in camera before the Moscow Regional Court. The applicant and his son were represented by a counsel and an officer of the Unification Church in Russia, both of whom were required to give an undertaking not to disclose the contents of the proceedings.

The Moscow Regional Court dismissed the complaint. On the issue of whether he presented a threat of national security, the judgment stated as following:

“The representative of the first deputy head of the Department for the Protection of the Constitutional Order and the Fight against Terrorism, of the Russian FSB Directorate... did not admit the appellants’ claims, and presented a written defence against the complaint... In support of his position the representative pointed out that his client had approved the conclusion to deny US citizen Patrick Francis Nolan entry into the Russian Federation, which was prepared by the Russian FSB Directorate for the Stavropol Region on the basis of materials obtained as a result of operative investigative measures. In the opinion of Russian FSB experts participating in the preparation of the conclusion, the [applicant’s] activities in our country are of a destructive nature and pose a threat to the security of the Russian Federation. The representative... emphasised that the threat to State security is created by the activities, not the religious beliefs of [the applicant].”

It also appears that the court examined an information letter of the Federal Security Service of 29 May 2000, entitled “Information on the activities of representative of non-traditional religious associations on Russian territory” which stated, in particular, as follows:

“Representatives of such foreign sectarian communities as the Jehovah’s Witnesses, the Moon’s Unification Church... under the religious cover establish extensive governing structures which they use for gathering socio-political, economic and military and other information about on-going events in Russia, indoctrinate the citizens and incite separatist tendencies... Missionary organisations purposefully work towards implementing the goals set by certain Western circles with a view to creating the conditions in Russia and perfecting the procedure for practical implementation of the idea of replacement of the ‘socio-psychological code’ of the population which will automatically lead to erasing from the people’s memory of the over-a-thousand-year-long history of the Russian State and reviewing of such concepts as national self-identification, patriotism, Motherland and spiritual heritage...”

Nowhere else in the nine-page judgment did the court indicate what “activities” posed a threat to national security. It may, however, inferred from the judgment that the applicant’s phone conversations were intercepted by the FSB pursuant to a certain earlier court order.

As to the applicant’s overnight detention, the officers of the Moscow Border Control denied before the court that the applicant had been “detained” and claimed that he had bought a ticket to Tallinn and merely waited for his flight scheduled for the following day. Although the court established that the ticket had been in fact bought in the morning of 3 June 2002, it held that this fact was “of no legal significance” and ruled that the applicant had not been deprived of his liberty.

The court also noted that the Russian authorities did not prevent the applicant from reuniting with his son in any country other than Russia. His allegations about interference with his family life were therefore rejected as manifestly ill-founded.

The applicant appealed, citing as grounds, inter alia, that the regional court had failed to examine whether the FSB had any legitimate basis in fact for its “conclusions”. He invoked Articles 5, 8, 9 and 14 of the Convention.

On 19 June 2003 the Supreme Court of the Russian Federation, sitting in camera in a three-judge formation, dismissed the appeal. It held that there had been no violations of the applicant’s Convention rights. The judgment was based on the administrative competence of the FSB and the Border Control to take decisions in the field of national security and border control. It did not indicate what activities of the applicant were alleged to pose a threat to national security:

“Decision on the issue whether or not the activities of a citizen (in whose respect the conclusion to bar him entry into Russia has been issued) pose a threat to State security... comes within the competence of Russian authorities... this right of the State is one of the basic elements of its sovereignty. Therefore, the [regional] court’s conclusion that the claims of the appellant and his representatives that the Russian FSB acted ultra vires are unfounded in the present case.”

On 12 April 2003 the applicant was re-united with his son whom his nanny, a Ukrainian national, brought to Ukraine.

4. Legal status of the Unification Church in Russia

On 21 May 1991 the Unification Church was officially registered in the Russian Socialist Federalist Soviet Republic.

On 29 December 2000 the Ministry of Justice of the Russian Federation granted State re-registration to the Unification Church on the federal level as a centralised religious organisation. It did so on the basis of an expert opinion from the Expert Council for Conducting State Expert Examinations in Religious Studies, which stated, inter alia, the following:

“In the Russian Federation neither the Unification Church nor its leaders have ever been held for criminal liability. No facts of violations of the federal law on freedom of conscience and religious associations on the part of the Unification Church or its various representatives have been established. Thus, (1) the Unification Church is a religious, non-commercial organisation and, accordingly, has the characteristics of a religious association in the meaning of section 6 § 1 of the federal law on freedom of conscience and religious associations; and (2) no indication of unlawful activities has been uncovered in its religious teachings and corresponding practice.”

5. Practices of expulsion of foreign missionaries from Russia

The applicant submitted the following examples of expulsion of foreign missionaries from Russia.

In 2001 two other missionaries of the Unification Church, a Japanese and a Korean national, were detained on entering Russia and subsequently excluded. Responding to their requests for explanations, the Russian authorities refused to disclose reasons for the exclusion and referred to section 27 § 1 of the law on entering and leaving Russia, without giving further details.

On 25 October 2002 the Keston News Service, a British NGO monitoring religious liberty in communist and post-communist countries, released an investigative report showing that no less than 30 foreign missionaries have been expelled or excluded from Russia since the presidential decree of 10 January 2000 amending the National Security Concept (see above) was adopted. Most missionaries belonged to Christian religions, including Catholic priests, Lutheran and Baptist pastors.

On 28 November 2003 Forum 18, a Norwegian NGO monitoring religious liberty in post-communist States, reported on a deportation order issued to a Baptist pastor who, being an ethnic Tartar, allegedly engaged in “extremist activities” because he “disseminate[d] Christianity within Tatarstan ‘from a Baptist standpoint’... so as to convert Muslims in the republic in [that] faith...”

B. Relevant domestic law and practice

Section 27 of the federal law on the procedure for entering and leaving the Russian Federation (no. 114-FZ of 15 August 1996) provides:

“Entry into the Russian Federation is not allowed to foreign nationals or stateless persons in the event that:

1) such is necessary for the purpose of ensuring the State security;...”

COMPLAINTS

1. The applicant complained under Article 9 of the Convention that he was excluded from Russia where he had lived for nearly eight years for his religious activities. He submitted that the sanction of exclusion imposed on him was for no other motive that the peaceful and lawful manifestation of his religion and that that sanction sought to repress the exercise of his right under Article 9 and to stifle the spreading of his religion.

2. The applicant complained under Article 14 of the Convention, read in conjunction with Article 9, that he had been singled out for exclusion as a foreign missionary and an alleged threat to the Russia’s spiritual heritage.

3. The applicants alleged a breach of their right to respect for their family life under Article 8 of the Convention as regards the first applicant’s forced ten-month separation from his son K., whose sole custodial parent he had been.

4. The applicant complained under Article 5 of the Convention that his overnight detention at the Sheremetyevo Airport in Moscow had not been in accordance with the law and that he was not informed of the reasons for his detention.

5. The applicant alleged that his exclusion from Russia had been carried out in a manner incompatible with Article 1 of Protocol No. 7.

6. Finally, the applicant complained under Article 13 of the Convention that he had had no effective remedy for all of the above violations.

THE LAW

1. The applicant complained under Article 9 of the Convention about his exclusion from Russia which allegedly purposed to penalise him for manifestation and spreading of his religion. Article 9 reads as follows:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that the motive for the applicant’s exclusion from the Russian territory was his activity as the co-ordinator of Moon’s groups in the Southern and North Caucasus regions of Russia which activity affected private, family and other legitimate interests of others. By way of example, they referred to the witness testimony by a school teacher before the Promyshlenniy District Court who claimed that a lecture by members of the Stavropol FFWPU had had a “bad effect on the mental state of the teenage audience and indirectly encouraged them to leave their families”. The factual grounds for the applicant’s exclusion had been set out in the report of the Federal Security Service of 18 February 2002 which the Government refused to submit to the Court on the pretext that it contained “State secrets”.

The applicant took note of the Government’s acknowledgement that the sanction of exclusion from Russian had been imposed in connection with his religious activity. Accordingly, that sanction sought “to repress the exercise” and “stifle the spreading of the religion” in Russia and thus amounted to an interference with his right to freedom of religion (he referred to the case of Omkarananda and the Divine Light Zentrum v. Switzerland, no. 8118/77, Commission decision of 19 March 1981, Decisions and Reports (DR) 25, p. 118). He referred, mutatis mutandis, to the Piermont case, in which the exclusion of the applicant from a dependant French territory was found to constitute an interference with her right to freedom of expression (see Piermont v. France, judgment of 27 April 1995, Series A no. 314, § 81). Finally, he cited the cases in which a State’s use of immigration controls as an instrument to put an end to an applicant’s religious activities within its jurisdiction was found to have given rise to an admissible complaint of an interference with rights under Article 9 (Al-Nashif v. Bulgaria (dec.), no. 50963/99, 25 January 2001; and Lotter v. Bulgaria (dec.), no. 39015/97, 5 November 1997).

As regards the justification for the interference, the applicant pointed out that the interests of national security relied upon in the domestic proceedings are not included as a legitimate aim in paragraph 2 of Article 9. As to the protection of the rights of others, the Government solely referred to the school teacher’s testimony in different proceedings. However, neither that testimony nor the Promyshlenniy District Court’s judgment made any reference whatsoever to the applicant. Neither the testimony nor the judgment were relied upon by the State authorities in the proceedings concerning the applicant’s exclusion, nor were they attached to the file. The applicants concluded that there was no justification for the interference with the applicant’s right under Article 9 of the Convention.

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 that he had suffered discrimination in the enjoyment of his right to freedom of religion on the ground of his position as a foreign missionary, contrary to Article 14 of the Convention read in conjunction with Article 9. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government argued that there had been no discrimination on the grounds of religion because the Moscow Regional Court found that the threat to national security had been posed by the applicant’s “activity” rather than his “religious beliefs”. The prohibition on activities of the Stavropol FFWPU could not be regarded as discrimination of the applicant.

The applicant submitted that his exclusion on the ground that he had co-ordinated the activities of the Unification Church in Southern Russia affected his enjoyment of rights under Article 9 and therefore attracted the protection against discrimination under Article 14. There was a difference in treatment between “traditional” Russian religions and those that were perceived as having foreign origins, in that only the latter were singled out in Russia’s National Security Doctrine as being a “negative influence” and posing a threat to national security. The applicant acknowledged that the position of nationals and non-nationals was not analogous in the context of immigration controls, but he pointed out that the respondent State singled foreign religious missionaries as undesirable and abused immigration controls as an instrument to repress their activities. He claimed that the extreme measure of excluding him from Russia where he had engaged in the lawful and peaceful manifestation of his religious beliefs, served no legitimate purpose and was also disproportionate to whatever aim pursued.

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.

3. The applicants complained that their forced separation resulting from the first applicant’s exclusion from Russia, had been in breach of the right to respect for his family life under Article 8 of the Convention which reads:

“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 Government claimed that the Russian law treats all aliens on an equal basis, irrespective of whether or not they have a minor child in Russia. There was no evidence that the State authorities prevented the applicant from being re-united with his son in a different State. Nor did he show that he had taken any steps to remove his son from Russia. The Government also submitted that the applicant did not file a complaint concerning unlawful actions of the Federal Security Service in accordance with the procedure set out in Chapter 25 of the Code of Civil Procedure.

The applicants firstly pointed out that the remedy under Chapter 25 of the Code of Civil Procedure was the very one they had used when they had applied to the Moscow Regional Court. The complaint under Article 8 concerning K.’s separation from his father formed part of the matter examined by the Moscow Regional Court.

The applicants submitted that the first applicant had not been given any advance warning of the exclusion order and that no provision had been made to allow him to leave together with his son. He had lived in Russia for eight years and had not had a settled home elsewhere to which to take his son. As a result of State actions, he had faced the practical difficulty of having to arrange, from abroad, for the paperwork of an infant, including an exit visa, through a third party with no family relation. The consideration of his complaint had been drawn out over seven and a half months instead of ten days required by law because of repeated adjournments granted by the court to the FSB due to their consistent lack of preparation. In the applicant’s submission, these elements pointed towards an interference with the applicants’ right to respect for family life, for which the Government offered no justification.

The Court notes that the applicants lodged a complaint concerning unlawful actions of the Federal Security Service with the Khimki Town Court, from where it was later transferred to the Moscow Regional Court. He did so on his own behalf and on behalf of the second applicant K. The Regional Court examined, in particular, the alleged violation of the applicants’ right to respect for family life. In these circumstances, the Government’s objection as to the non-exhaustion of domestic remedies must be dismissed.

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.

4. The applicant complained that he had been detained at the Sheremetyevo Airport in Moscow in breach of the guarantees of Article 5 of the Convention which provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government denied that the applicant had ever been “detained”. He had not been permitted to cross the border and had been offered to stay in the transit hall of the airport where he could use the bar and telephone. Nor had the applicant been subject to expulsion or extradition because he had not been allowed onto Russian territory. Accordingly, the Government considered that Article 5 found no application in the present case.

The applicant contested the Government’s submissions as a formalistic interpretation of the concept of “detention” that did not take account of the concrete situation. He maintained that he had been locked in a room for nine hours and during that period had only been permitted to access the toilet once, under guard. At all other times up until his departure he had been under constant escort and supervision of a border guard.

The applicant submitted that, pursuant to the Border Crossing Guidelines ratified by Order no. 0234 of the Federal Border Service of 4 August 2000 which were never published but relied upon by the Moscow Regional Court, the persons whose entry into Russia is prohibited were to be escorted to isolated premises and placed under guard, as it happened in his case. Whether or not he was on Russian territory, he was under jurisdiction of the respondent State (he referred to Shamsa v. Poland, nos. 45355/99 and 45357/99, § 45, 27 November 2003). His detention was unlawful because the Border Crossing Guidelines were not “accessible” regardless of formal compliance with them. Since he was not detained in connection with any administrative or criminal procedure, he had no procedural protection allowing him to have the lawfulness of his detention reviewed, as required by paragraph 4 of Article 5. Finally, since the courts held that the border officials’ actions had not constituted a breach of Russian law or Article 5, he had no enforceable right to compensation, as required by Article 5 § 5.

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.

5. The applicant claimed that the exclusion order had been issued in breach of the guarantees of Article 1 of Protocol No. 7 which provides:

“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a) to submit reasons against his expulsion,

(b) to have his case reviewed, and

(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”

The Government claimed, firstly, that the applicant was not resident in Russia because he had flown in from Cyprus. Secondly, they alleged that his visa had no longer been valid and his residence therefore unlawful, referring to the Commission’s decision in the Voulfouvitch and Oulianova v. Sweden case (no. 19373/92, Commission decision of 13 January 1993). Thirdly, they maintained that the applicant had not been permitted to cross the Russian border in accordance with section 27 § 1 of the law on entry and exit from the Russian Federation. The Government declined to state the reasons for that decision, referring to the “generally accepted international practice”. They finally pointed out that the right to admit aliens on its territory is a universally recognised sovereign right of the State.

The applicant contended that the Government’s approach to viewing the situation solely from the perspective of his attempt to re-enter Russia failed to take into consideration that he had been lawfully resident in Russia for over seven years and that at the time of the attempted re-entry possessed a valid visa. The allegation that his visa had expired was false; it was fully valid at the material time and no order had been issued to deport him or to shorten its length. Equating “residence” with “physical presence” would be incompatible with the purpose of Article 1 of Protocol No. 7, for it would mean that a person ceases to be lawfully resident in a State each time he takes a trip abroad, no matter how short in duration. In the Voulfovitch case, to which the Government referred, the applicants had never resided in Sweden and only possessed a one-day transit visa.

The applicant further pointed out that the Explanatory Report to Protocol No. 7 defined the concept of expulsion as “any measure compelling the departure of an alien from the territory”, irrespective of any other definition in domestic law. He argued that that definition covered his situation because the Federal Security Service had taken the decision to exclude him from Russia on 8 April 2002, when he had still been inside Russia, and then made no effort to inform him of the exclusion order. He had thus been allowed to leave the country with the legitimate expectation that he would be able to return without hindrance.

The applicant finally submitted that he had not been afforded the procedural protections required under Article 1 § 1 of Protocol No. 7. Even if the Government were to rely upon the national security exception in paragraph 2 of that provision, the applicant claimed that on the facts that would amount to a breach of Article 18 of the Convention in conjunction with Article 1 § 2 of Protocol No. 7.

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.

6. Lastly, the applicant complained that he had not had an effective remedy for the above violations, as required by Article 13 of the Convention which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 requires that any individual who considers himself injured by a measure allegedly contrary to the Convention should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. That provision does not, however, require the certainty of a favourable outcome (see, for example, Amann v. Switzerland [GC], no. 27798/95, § 88, ECHR 2000‑II).

In the instant case the Court notes that the applicant brought a civil complaint concerning his allegedly unlawful exclusion from Russia, overnight detention at the airport, and separation from his infant son before the domestic courts. The Moscow Regional Court and the Supreme Court had jurisdiction to rule on those matters and they had examined the issues raised by the applicant. The mere fact that the applicant’s claims were dismissed is not in itself sufficient to show that the civil complaint was not an “effective” remedy.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints concerning –

– the first applicant’s exclusion from Russia,

– the alleged discrimination against him on the grounds of his religious affiliation,

– his overnight detention in the transit zone of the Moscow airport,

– the applicants’ separation from each other, and

– the alleged failure of the Russian authorities to respect the procedural guarantees required in cases of expulsion of aliens;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

Full & Egal Universal Law Academy