CASE OF BERKOVICH AND OTHERS v. RUSSIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;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;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant, Mr Gennadiy Mikhailovich Berkovich, was born in 1950 and lives in Moscow. He was represented before the Court by Ms M. Samorodkina, a lawyer practising in Moscow. 6. In 1973 Mr Berkovich started working for the Scientific Research Electromechanical Institute, a State design bureau that developed air defence weapons. 7. Mr Berkovich signed an undertaking concerning the non-disclosure of State secrets which contained a restriction on the right to go abroad. The employer had despatched Mr Berkovich on official missions to France (in 1993 and 1994), China (in 1996 and 2003) and Greece (in 2001 and 2004). On 9 September 1993 he was provided with a travel passport (заграничный паспорт), the identity document that entitles Russian citizens to leave the country and travel abroad. It was renewed on 16 December 1998 and then on 3 November 2003, both times for a five-year period. 8. On 28 September 2004 Mr Berkovich terminated his employment. His employer retained his travel passport and refused to return it to him. 9. On 25 July 2005 Mr Berkovich applied to the Passport and Visa Service of the Akademicheskiy District in Moscow for a new travel passport. On 16 December 2005 the head of the Passport and Visa Service refused his application. The refusal indicated that his right to obtain a travel passport was restricted until 26 February 2009 on account of his past access to State secrets. 10. Mr Berkovich challenged the refusal before the Moscow City Court, relying on the fact that he had been previously allowed to travel abroad on official business. 11. On 8 June 2006 the City Court gave judgment. It found that, even though the law provided that a refusal could be challenged before the Interagency Commission for the Protection of State Secrets, Mr Berkovich could not avail himself of that remedy because the Commission had not held any hearings since 22 June 2004 and had been disbanded by a Government resolution of 21 March 2005. The City Court upheld the restriction on Mr Berkovich’s right to travel abroad, noting that, according to his former employer, he had last accessed confidential information in February 2004 and that the classified status of that information was not due to be reviewed until 2009. As to his previous official trips abroad, the City Court said: “The court has established that Mr Berkovich’s work duties required him to travel abroad for official purposes more than once; each time [his employer] obtained for him through the Consular Department of the Ministry of Foreign Affairs a travel passport, which was kept by the human resources department [of the employer] until its expiry. His travel abroad – as an individual aware of State secrets – was organised in accordance with the procedure set out in [the internal documents of the employer]. The claimant was allowed to go abroad because his personal participation was required for the performance of the task and because it was impossible to send abroad other employees who were aware of State secrets to a lesser degree.” 12. On 1 September 2006 the Supreme Court of the Russian Federation upheld the City Court’s judgment on appeal. 13. Following the expiry of the restriction, on 3 April 2009 Mr Berkovich was issued with a travel passport. He used it to travel to Egypt, China, Greece, Croatia and Italy. 14. The applicant, Mr Igor Borisovich Boldyrev, was born in 1958 and lives in Moscow. From February 1987 to 6 February 2007 he was a military serviceman in the Russian Army. 15. Mr Boldyrev was the only son to his parents, who lived in Tallinn, Estonia. His father was born in 1929 and his mother in 1930, and they were both retired and disabled. During his military service Mr Boldyrev visited his parents more than ten times; each time he submitted a report to his military superior indicating the purpose of his visit and the dates and means of transport that he would be using. 16. Following the termination of his military service, on 27 November 2007 Mr Boldyrev applied to the Federal Migration Service for a travel passport. He also submitted medical certificates that attested to the poor health of his parents and justified his need to go and see them. 17. By a letter of 22 December 2010, the Federal Migration Service notified him that his application had been refused on account of his previous awareness of State secrets during the period of his military service. His right to leave Russia was restricted until 22 January 2012. 18. Mr Boldyrev challenged the refusal in court. 19. By a judgment of 24 April 2008, the Moscow City Court upheld the travel ban as lawful. It held that the poor health of Mr Boldyrev’s parents was of no legal significance. On 25 June 2008 the Supreme Court of the Russian Federation upheld that decision on appeal. 20. On 9 November 2009 Mr Boldyrev’s mother died in Tallinn. He tried to obtain a travel passport to attend her funeral but received no response to his application. A travel passport was first issued to him in 2012. 21. The applicant, Mr Aleksandr Nikolayevich Ilchenko, was born in 1968 and lives in Moscow. From 1985 to 30 April 2009 he was a military serviceman employed in the Chief Operative Department of the General Headquarters of the Russian Army. 22. On 29 December 2004 Mr Ilchenko signed a contract of employment, which contained a restriction on his right to leave Russia for a period not exceeding five years on account of his awareness of State secrets. In October 2006, the Main Directorate for International Co-operation of the Ministry of Defence issued a new travel passport for him, which he never used. 23. Following his retirement in April 2009, on 13 September 2010 Mr Ilchenko applied to the Federal Migration Service in Moscow for a travel passport. He submitted that he needed to go abroad for rest and recreation and pointed out that he had already surrendered all classified material on 13 February 2009. 24. By a letter of 22 December 2010, the Federal Migration Service notified him that his application had been refused on the following grounds: “During the period of your service in the Chief Operative Department of the General Headquarters of the Russian Military Forces from November 2004 to date, you have been aware of State secrets; accordingly, your right to go abroad has been temporarily restricted until 13 February 2014 [on the basis] of a decision of the Chief Operative Department of the General Headquarters no. 312/3/196 of 8 October 2010.” 25. Mr Ilchenko challenged the refusal in court. 26. On 3 March 2011 the Presnenskiy District Court of Moscow rejected his complaint. It examined the above-mentioned decision of 8 October 2010, according to which “the plaintiff’s right to travel abroad for private purposes [would] be possible after 13 February 2014, but there [were] no objections to his leaving abroad on official missions arranged by organisations or companies affiliated with the Ministry of Defence.” The court found that the decision refusing the application had been made by the competent authority. 27. On 10 October 2011 the Moscow City Court upheld the District Court’s judgment, summarily endorsing its reasoning. 28. Mr Ilchenko also challenged the compatibility of section 15(1) of the Entry and Exit Procedures Act and section 24 of the State Secrets Act with the Constitution. By judgment no. 14-P of 7 June 2012, the Constitutional Court rejected his complaint, holding as follows: “1. To recognise that the interconnected provisions of section 15(1) of the Entry and Exit Procedures Act and section 24 of the State Secrets Act do not contradict the Russian Constitution inasmuch as these provisions ... presuppose that a decision concerning a temporary restriction on the right to leave the Russian Federation may not be predicated solely on the formal grounds that are expressly mentioned in these provisions; such a decision should not have as its sole basis the established fact that the individual concerned has had access to particularly important or top-secret information classified as a State secret; the elements to be verified in every case should include the nature of the specific information which the individual has had access to [through] his work duties, the degree of confidentiality – including at the time when an application to competent authorities is being made in connection with a planned trip abroad – as well as the purpose of the trip and other circumstances which are relevant for determining that the said restriction was necessary.” 29. The applicant, Mr Vladimir Vitalyevich Litavrin, was born in 1965 and lives in the Moscow Region. 30. From June 1986 to October 2008 he was a military serviceman in the Russian Army. In February 2004, with the consent of his commander and the Federal Security Service (FSB), he was issued with a travel passport, which he used to go abroad on private tourist trips in 2004, 2005, 2006 and 2007. 31. Following the expiry of his travel passport in February 2009, on 24 March 2009 Mr Litavrin applied to the Federal Migration Service for its renewal. In October 2009 he was notified that his application had been refused and that his right to leave Russia was restricted until 15 December 2011. 32. Mr Litavrin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Odintsovo Town Court of the Moscow Region on 7 September 2011 and the Moscow Regional Court on 1 December 2011. Both courts upheld the restriction as lawful. 33. The applicant, Mr Roman Aleksandrovich Lytin, was born in 1982 and lives in Moscow. From June 2006 to May 2010 he was a military serviceman in the Russian Army. 34. On 21 September 2010 Mr Lytin applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 24 February 2011, he was notified that his application had been refused and that his right to leave Russia was restricted until 29 July 2014. 35. Mr Lytin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, first by the Moscow City Court on 14 October 2011 and later by the Supreme Court of the Russian Federation on 11 January 2012. Both courts upheld the restriction as lawful. 36. The applicant, Mr Aleksey Gennadyevich Khil, was born in 1965 and lives in the Khabarovsk Region. From August 1997 to 9 February 2009 he was a military serviceman in the Russian Army. 37. In September 2010, Mr Khil applied to the Federal Migration Service for a travel passport. By a letter of 27 September 2011, he was notified that his application had been refused and that his right to leave Russia was restricted until 27 November 2012. 38. Mr Khil challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, first by the Khabarovsk Regional Court on 1 February 2012 and later by the Supreme Court of the Russian Federation on 18 April 2012. Both courts upheld the restriction as lawful. 39. The applicant, Mr Aleksandr Aleksandrovich Yenin, was born in 1964 and lives in Sochi. He is a lawyer. From January 1997 to June 2011 he was a military serviceman in the FSB. 40. On 27 December 2007 the Sochi division of the Ministry of Foreign Affairs issued Mr Yenin with a travel passport valid for five years. In accordance with the regulations in force, the passport was kept in the human resources department of the FSB. 41. Following his retirement on 25 June 2011, Mr Yenin repeatedly asked the FSB to return his travel passport because he wished to travel abroad for private reasons. His request was refused on the grounds that, by a report of 29 June 2011, his right to go abroad was restricted until 28 July 2015, that is, for a period of five years from his last contact with top-secret documents. It appears that the documents in question contained details of FSB informants. 42. Mr Yenin challenged the restriction in court, seeking to have it lifted or reduced to a period of two and a half years. His complaint was rejected at two levels of jurisdiction, by the Military Court of the Sochi Garrison on 24 January 2013 and the Military Court of the North-Caucasus Circuit on 7 May 2013. 43. The applicant, Mr Aleksandr Aleksandrovich Garkusha, was born in 1987 and lives in Moscow. He was represented before the Court by Mr A. Yenin, a lawyer practising in Sochi (see paragraph 39 above). From July 2009 to October 2011 Mr Garkusha was a military serviceman in the FSB. 44. On 6 February and 12 December 2012 he applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 26 December 2012, he was notified that his application had been refused and that his right to leave Russia was restricted until 31 October 2016. 45. Mr Garkusha challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Military Court of the Sochi Garrison on 14 March 2013 and the Military Court of the North-Caucasus Circuit on 26 June 2013. 46. The applicant, Mr Aleksandr Aleksandrovich Burnayev, was born in 1980 and lives in Krasnodar. 47. From November 2002 to August 2012 he was an investigator with the Krasnodar regional investigations department of the FSB. He had a travel passport and in 2008 travelled with his spouse to the United Arab Emirates for a holiday. 48. On 22 April 2013 the chief of the Krasnodar regional office of the FSB decided that Mr Burnayev’s right to travel abroad for private purposes should be restricted until 19 May 2016 on the grounds that he had previously had access to a top-secret investigative file concerning the theft of property committed by a Russian national on Russian territory. 49. Mr Burnayev applied for a judicial review of that decision. His complaint was rejected at two levels of jurisdiction, by the Krasnodar Regional Court on 12 July 2013 and the Supreme Court of the Russian Federation on 23 October 2013. 50. The applicant, Mr Sergey Viktorovich Samasadkin, was born in 1973 and lives in St Petersburg. 51. From 1997 to 2009 he was a military serviceman in the Komi regional office of the FSB. His contract of employment provided that his access to State secrets would be terminated if he or his family members took up permanent residence abroad or started making an application to take up residence abroad. Termination of his access to State secrets would lead to early termination of his employment. 52. Following his retirement in May 2009, his right to travel abroad for private purposes was restricted until 16 November 2012. 53. In July 2012, anticipating the expiry of the restriction on his right to travel, he applied to the Federal Migration Service for a travel passport which would allow him to go abroad. By a letter of 1 August 2012, he was notified that his application had been refused. 54. Mr Samasadkin challenged the refusal in court. His complaint was rejected at two levels of jurisdiction, by the Syktyvkar Town Court on 25 September 2012 and the Supreme Court of the Komi Republic on 30 May 2013. Referring to section 15 of the Entry and Exit Procedures Act and the decision to restrict Mr Samasadkin’s right to leave Russia, the courts held that the refusal to issue him with a travel passport had been lawful. 55. On 17 December 2012 Mr Samasadkin was issued with a travel passport.