Communicated on 28 June 2016
THIRD SECTION
Application no. 47781/10
Aleksandr Anatolyevich ZEZEV
against Russia
lodged on 11 August 2010
STATEMENT OF FACTS
The applicant, Mr Aleksandr Anatolyevich Zezev, is a Kazakh national who was born in 1979 and lives in Krasnodar.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. Background information
In 2005 the applicant moved from Kazakhstan to Russia to live with his brother, a Russian citizen. The applicant started to live and work in the Krasnodar Region of Russia with his brother and parents, also Russian citizens.
In January 2007 the applicant married Ms M.K., a Russian citizen, with whom he had a son in 2009.
Between 2005 and 2009 the applicant lived in Russia on the basis of visas and temporary residence permits.
In January 2009 the applicant applied to the Federal Migration Service of the Krasnodar Region (Управлении Федеральной миграционной службы по Краснодарскому краю (ФМС)) (hereinafter “the Krasnodar FMS”) for Russian citizenship.
In May 2009 the Krasnodar FMS rejected the applicant’s application, referring to information provided by the Federal Security Service (Федеральная служба безопасности (ФСБ)) (hereinafter “the FSS”) that the applicant posed a threat to national security.
On 13 August 2009 the FSS informed the applicant about a decision it had made on the undesirability of his presence (residence) in Russia and on the prohibition of his re-entry into the country until July 2014 (hereinafter “the exclusion order”). The applicant was to leave Russia within fifteen days of receipt of the letter. No reasons for the decision or its date or number were given.
2. The applicant’s attempts to appeal against the exclusion order
On 13 November 2009 the applicant appealed against the decision to the Oktyabrskiy District Court in Krasnodar. The applicant’s complaint was sent to be examined by the Krasnodar Regional Court (hereinafter “the Regional Court”) as under domestic legislation it had jurisdiction to look at cases involving State secrets. In his complaint the applicant stated, inter alia, that the exclusion order was arbitrary, that it had been taken on the basis of undisclosed information and that his removal from Russia would adversely affect his family life.
On 24 March 2010 the Regional Court upheld the exclusion order. Its decision stated, amongst other things, the following:
“... in July 2009 the Federal Security Service took a decision on the undesirability of Mr Zezev’s presence (residence) in the Russian Federation and on the prohibition of his re-entry into the country until July 2014...
In his complaint Mr Zezev seeks to have the decision of the Federal Security Service declared unlawful and for it to be overruled, referring to the following:
He has resided in the Russian Federation for five years. He has never committed any crime, either in Russia or Kazakhstan. He does not have a criminal record. His character has been described in positive terms. He does not represent a threat to the security of the Russian Federation. He does not have anywhere to live in Kazakhstan. He is ethnically Russian and wants to work and live in Russia. The FSS decision is unlawful and unsubstantiated ...
... the court should examine [his] case in the light of the right to respect for his private and family life and to respect for a citizen’s choice of the place for his family life. There is no evidence of any alleged criminal activities ...
...
... the FSS decided on the undesirability of Mr Zezev’s presence (residence) in Russia and on the prohibition of his re-entry into the country until July 2014.
The application of such preventive measures is within the scope of discretion of the Federal Security Service.
The decision [in respect of the applicant] was taken by FSS officials within the scope of their authority and in a procedure defined by federal legislation and approved by the competent official.
In those circumstances, Mr Zezev’s application to have the FSS decision on the undesirability of his presence (residence) in Russia and on the prohibition on his re‑entry until July 2014 declared unlawful should be rejected ...”
On 5 April 2010 the applicant appealed against the above decision to the Supreme Court of the Russian Federation (hereinafter “the Supreme Court”). He referred, in particular, to the case-law of the European Court of Human Rights on Article 8 of the Convention concerning the right to respect for family life and stated that the Regional Court had failed to examine whether the impugned FSS decision had been substantiated. He pointed out that the executive had not furnished any evidence to the court of alleged activities posing a threat to national security. The applicant further stated that even though he was a Kazakh national he was an ethnic Russian. He did not speak Kazakh, and had nowhere to live in Kazakhstan as his parents had also moved to Russia in 2005. He further stressed that in 2007 he had married a Russian national with whom he had had a son in 2009 and that all of the members of his family were Russian nationals. Lastly, the applicant pointed out that he was the sole breadwinner for the family.
On 2 June 2010 the Supreme Court upheld the Regional Court’s judgment stating, amongst other things, the following:
“... On 22 July 2009 the Federal Security Service issued a decision on the undesirability of the presence (residence) of the Kazakh national Mr Zezev in the Russian Federation and on the prohibition of his re-entry ...
In the cassation appeal Mr Zezev seeks to have the judgement of the Krasnodar Regional Court overruled as unlawful.
The court sees no basis for granting that request ...
When deciding to reject Mr Zezev’s request, the Regional Court had in its possession information which served as the basis for the [FSS] order.
Mr Zezev’s arguments concerning the unlawfulness of the FSS order were examined by the Regional Court.
In those circumstances, the Chamber finds that the applicant’s right to a proper defence were fully complied with and that the reasons for the decision concerning the undesirability of his presence (residence) in Russia and on the prohibition of his re-entry, which was taken owing to the real threat he posed to national security, have been confirmed by concrete facts.
As for the applicant’s arguments concerning a violation of his private interests as a result of the decision on the undesirability of his presence (residence) in Russia and on the prohibition of his re-entry, the Chamber does not agree with him as it finds that in the circumstances of the case public interests should outweigh private ones.
In those circumstances, the decision of the Krasnodar Regional Court remains unchanged ...”
From the documents submitted to the Court it is unclear whether the applicant has been deported from Russia and if so, on what 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.
COMPLAINT
The applicant complains under Articles 6 and 8 of the Convention that the exclusion order and the re-entry ban issued on the basis of undisclosed information furnished by the executive is arbitrary and unsubstantiated and violates his right to respect for his family life.
QUESTIONS TO THE PARTIES
1. What were the motives and factual grounds for the decision on the undesirability of the applicant’s presence (residence) in Russia and the prohibition on his re-entry into Russia (hereinafter “the exclusion order”)? The Government are requested to produce a copy of the material from the Federal Security Service which served as the basis for the exclusion order. The Court notes that access to those 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 Krasnodar Regional Court and the Supreme Court, which examined the applicant’s appeal against the exclusion order? Was the judicial review limited to ascertaining whether the exclusion order had been delivered in accordance with the procedure prescribed by law and, in particular, whether the material which formed the basis for the ban had been issued within the competence of the Federal Security Service? Was it within the courts’ competence to verify whether the exclusion order was based 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 applicant presented a risk in that regard? Did the courts make a balancing exercise between the need to protect national security and the applicant’s right to respect for his family life?
3. Was the classified information 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 that material? 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 exclusion order constitute an interference with the applicant’s 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-XII, and Jeunesse v. the Netherlands [GC], no. 12738/10, §§ 106-09, 3 October 2014)?
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