CASE OF VLASOV AND BENYASH v. RUSSIA
Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The first applicant, Mr Aleksey Yuryevich Vlasov, was born in 1957 and lives in Moscow. 7. On 6 October 2008 Mr Vlasov applied to the Federal Migration Service for a travel passport which would allow him to go abroad. 8. On 27 October 2008 the Golovinskiy District Court of Moscow convicted him of smuggling and sentenced him as follows: “... the penalty in the form of three years’ imprisonment is not to be enforced and is to be considered conditional with a three years’ probationary period. To require Mr Alexey Vlasov to report twice a month during the probationary period to the authority in charge of execution of conditional sentences, and to inform [that authority] of any change of residence ...” 9. On 11 November 2008 his application for a travel passport was refused by reference to the fact that he had been given a suspended threeyear sentence whose period of suspension had not yet expired. 10. The applicant Mr Vlasov applied for judicial review of the refusal. 11. On 3 June 2009 the Butyrskiy District Court of Moscow upheld the refusal as lawful, finding as follows: “The argument by Mr Vlasov to the effect that the Golovinskiy District Court’s judgment of 27 October 2008 contained an exhaustive list of restrictions during the probation period which did not include a restriction on leaving Russia and which was not, in the claimant’s view, subject to expansive interpretation by State officials, does not contradict section 15(4) of the Entry and Exit Procedures Act which provides for a restriction on the right to leave for abroad in cases of both actual custodial and suspended sentences. A person who is given a suspended sentence is a convicted offender serving a sentence, and may be relieved from punishment only after the period of suspension has expired. Mr Vlasov’s period of suspension expires on 14 January 2012 and after its expiry Mr Vlasov’s criminal conviction will be spent in accordance with Article 86 of the Criminal Code. Until that time Mr Vlasov is an offender serving a sentence, which is a ground for restricting his right to leave for abroad.” 12. On 18 August 2009 the Moscow City Court rejected an appeal against the District Court’s judgment. It held: “The arguments that Mr Vlasov was subjected to restrictions that go beyond those imposed by his conviction and that he was compelled to serve the sentence within the Russian Federation, whereas he needed to take care of his business interests and perform his duties abroad, are not grounds for setting aside the correct judgment [of the first-instance court].” 13. The second applicant, Mr Mikhail Mikhaylovich Benyash, was born in 1977 and lives in Sochi. 14. On 31 August 2011 the Tsentralnyy District Court of Sochi convicted Mr Benyash of extortion and sentenced him to three years’ imprisonment, suspended for three years. He was released in the courtroom. On 12 October 2011 the Krasnodar Regional Court upheld the conviction on appeal. 15. On 5 December 2011 the Federal Migration Service refused Mr Benyash’s application for a travel passport, noting that he had been arrested on 1 September 2010 and that, according to the available information, the criminal proceedings against him were still pending. 16. The applicant Mr Benyash applied for judicial review of the refusal. 17. On 28 June 2012 the Tsentralnyy District Court of Sochi upheld the refusal as lawful: “...for the time being the conviction of 31 August 2011 is not yet spent, Mr Benyash is a convicted offender, and, accordingly, the refusal [of travel documents] does not violate his rights”. 18. On 29 November 2012 the Krasnodar Regional Court rejected the appeal, endorsing the reasoning of the District Court. 19. On 11 April 2013 the Regional Court refused him leave to appeal to the cassation instance.