CASE OF SOLTYSYAK v. RUSSIA
Remainder inadmissible;Violation of P4-2;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
6. The applicant was born in 1958. He lived at the Baikonur space launch site in Kazakhstan which is rented by, and under the administration of, the Russian Federation and is under joint Kazakh-Russian jurisdiction. 7. From December 1983 to January 2004 the applicant served as a military officer in the Soviet (later Russian) Army at the Baikonur site. On 8 April 1986 he received security clearance and was granted access to information concerning rocket test launches, including the military unit responsible, launch parameters and test results, which were classified as top secret. 8. On 1 September 1999 the applicant signed a standard contract concerning access to State secrets, which provided in the relevant part as follows: “Pursuant to the State Secrets Act and other normative regulations concerning the protection of State secrets, of which I am aware, I take upon myself an obligation to keep confidential any information constitutive of State secrets and accept a temporary restriction on my rights which may affect: the right to go abroad for a period of five years ...” 9. By an order of 21 May 2004, the applicant retired from the military upon reaching the age limit. His service travel document was taken away from him and destroyed. 10. On 24 November 2004 the applicant asked the passports and visas service of the Baikonur police department to issue him with a travel passport (заграничный паспорт). 11. On 11 May 2005 the passports and visas service sent him a notice which stated that his right to leave the Russian Federation had been temporarily suspended until August 2009 “on the basis of recommendation no. 9/196 of 16 February 2005 and the decision of the command of military unit 11284”. According to the information submitted by the Government, the applicant was last exposed to secret information on 16 December 2003 and the restriction on his right to travel was due to expire on 16 December 2008. 12. The applicant complained to a court. He submitted that, lacking a travel document, he was unable to return to Russia from Kazakhstan or go to the Kaliningrad Region, which is the Russian exclave between Poland and Lithuania on the Baltic Sea. 13. On 24 May 2005 the Military Court of the 26th Garrison rejected the applicant's complaint. It found that the refusal to issue a travel passport had been lawful because the applicant had previously had knowledge of State secrets during his service in the military. Access to State secrets had not been granted to him against his will, and he had received a pay rise on that ground. Furthermore, the applicant did not need a travel document to return to Russia or to go to the Kaliningrad Region, his identity document (общегражданский паспорт) was sufficient for these purposes. 14. On 1 July 2005 the Third Circuit Military Court upheld, on an appeal by the applicant, the judgment of 24 May 2005. 15. The applicant sued the military commander of the Russian Space Forces, claiming that he should have received full title to his service flat on his retirement. 16. On 5 October 2004 the Military Court of the 26th Garrison dismissed the action as having no grounds in domestic law. On 10 December 2004 the Third Circuit Military Court upheld the judgment on appeal. 17. Section 2 provides that the right of a Russian citizen to leave the Russian Federation may only be restricted on the grounds of, and in accordance with, the procedure set out in the Act. Section 15(1) provides that the right of a Russian national to leave the Russian Federation may be temporarily restricted if he or she has had access to especially important or top-secret information classified as a State secret and has signed an employment contract providing for a temporary restriction on his or her right to leave the Russian Federation. In such cases the restriction is valid until the date set out in the contract, but for no longer than five years from the date the person last had access to especially important or top-secret information. The Interagency Commission for the Protection of State Secrets can extend this period up to a maximum of ten years. 18. The granting of access to State secrets presupposes the consent of the person concerned to partial and temporary restrictions on his or her rights in accordance with section 24 of the Act (section 21). 19. The rights of persons who have been granted access to State secrets may be restricted. The restrictions may affect their right to travel abroad during the period stipulated in the work contract, their right to disseminate information about State secrets and their right to respect for their private life (section 24). 20. The relevant part of Opinion no. 193 (1996) on Russia's request for membership of the Council of Europe, adopted by the Parliamentary Assembly on 25 January 1996 (7th Sitting), reads as follows: “10. The Parliamentary Assembly notes that the Russian Federation shares fully its understanding and interpretation of commitments entered into ... and intends: ... xv. to cease to restrict – with immediate effect – international travel of persons aware of state secrets, with the exception of those restrictions which are generally accepted in Council of Europe member States ...” 21. The laws of the founding members of the Council of Europe have not restricted the right of their nationals to go abroad for private purposes since the inception of the organisation. The Schengen Agreement, which was originally signed on 14 June 1985 by five States and has, to date, been implemented by twenty-five States, has removed border posts and checks in much of the Western part of Europe and abolished any outstanding restrictions on European travel. 22. Many other Contracting States, including, in particular, the former Socialist countries, repealed restrictions on international travel by persons having knowledge of “State secrets”, a common legacy of the Socialist regime, during the process of democratic transition (for example, Estonia, Georgia, Hungary, Latvia, Lithuania and Poland). Among the Council of Europe States, with the exception of Russia, Azerbaijan was the last to abolish such a restriction in December 2005. Nevertheless, three member States (Armenia, Azerbaijan and Ukraine) provide for temporary restrictions on permanent emigration – but not on international travel for private purposes – for persons who have had access to State secrets. 23. Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”), to which the Russian Federation is a party, defines the right to freedom of movement in the following terms: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.” 24. General Comment No. 27: Freedom of movement (Article 12), adopted by the Human Rights Committee under Article 40 § 4 of the ICCPR on 2 November 1999 (CCPR/C/21/Rev.1/Add.9), reads as follows: “1. Liberty of movement is an indispensable condition for the free development of a person ... 2. The permissible limitations which may be imposed on the rights protected under article 12 must not nullify the principle of liberty of movement, and are governed by the requirement of necessity provided for in article 12, paragraph 3, and by the need for consistency with the other rights recognized in the Covenant. ... 8. Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus travelling abroad is covered, as well as departure for permanent emigration ... ... 9. ... Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere ... ... 11. Article 12, paragraph 3, provides for exceptional circumstances in which rights under paragraphs 1 and 2 may be restricted ... ... 14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected. ... 16. States have often failed to show that the application of their laws restricting the rights enshrined in article 12, paragraphs 1 and 2, are in conformity with all requirements referred to in article 12, paragraph 3. The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality. These conditions would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of State secrets ...”