Kogan and Others v. Russia

Legal summary
March 2023

Kogan and Others v. Russia – 54003/20

Judgment 7.3.2023 [Section III]

Article 18
Restrictions for unauthorised purposes

Revocation of prominent human rights lawyer’s residence permit predominantly aiming to punish her and her husband for human rights related activities and prevent their continuation: violation

Article 8
Article 8-1
Respect for family life
Respect for private life

Unjustified revocation of prominent human rights lawyer’s residence permit on undisclosed national security grounds: violation

Facts – The four applicants are members of the same family. The first applicant is a citizen of the United States of America who moved to Russia in 2009 to live and work in the field of human rights. In 2012 she became director of Legal Assistance – Astreya (“Astreya”), a non-governmental organisation (“NGO”) providing legal assistance to victims of human rights violations in Russia, which has brought many successful applications before the Court. The first applicant, and her husband, the second applicant, a Russian citizen and a practising lawyer, have also represented applicants at the implementation stage of the Court’s judgments. The remaining applicants are their two minor children.

In 2020 the first applicant applied for Russian citizenship. The Moscow Department of the Federal Security Service (“the FSB”) wrote to the Moscow Department of the Interior (“the MVD”) informing them that the first applicant’s application had not been approved as she posed a threat to national security and recommended that her residence permit be revoked. The MVD revoked her residence permit and rejected her application for citizenship on undisclosed national security grounds. She unsuccessfully challenged the decision up to the Supreme Court. In the meanwhile the applicants left Russia.

In addition, the first applicant alleged that in the years preceding the revocation of her residence permit she was contacted by a representative of the FSB, who had requested information about the work of Astreya, its clients and her colleagues. She also alleged State bodies had interfered with Astreya’s work, carrying out raids and searches in its offices and those of its partner organisations.

Law –

Preliminary issue – As the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application.

Article 8:

The revocation of the first applicant’s residence permit had constituted an interference with the applicants’ right to respect for their family life and with the first and the second applicants’ right to respect for their private life in so far as it concerned their professional activities. The Court did not need to rule on the “accordance with the law” and “legitimate aim” requirements of the impugned measure, as in the circumstances of the case it had fallen short of being necessary in a democratic society.

In particular, the proceedings against the first applicant had not been surrounded by sufficient procedural safeguards. The contents of the FSB report, which had served as the basis for the revocation of the residence permit, had not been made known to the first applicant or revealed to the Court by the Government. She had also only been notified of that report during the preliminary hearing of her case and thus was prevented from having sufficient time to duly prepare for the examination of her case by the first instance court. Moreover, the domestic courts judgments neither contained any indication of the reasons why she had been considered a danger to national security nor established a generalised description of the acts ascribed to her, if necessary with some procedural arrangements. As a result, the first applicant had not even been given an outline of the allegations against her, making it impossible for her either to challenge the factual allegations against her or to reply to them in adversarial proceedings. The domestic courts had thus subjected the MVD’s decision to a purely formal examination, resulting in the first applicant not having been able to have her case genuinely heard. Lastly, the domestic courts had failed, contrary to Article 8, to apply the general principles established by the Court and to strike a balance between national security interests and the applicants’ right to respect for their family and private life. Consequently, the residence permit revocation proceedings had been tainted with gross procedural defects that had undermined their fairness and had gone beyond the permissible procedural limitations in cases of expulsion on national security grounds.

Conclusion: violation (unanimously).

Article 18:

The domestic authorities had been well aware that the first applicant was not merely a private citizen but a well-known human rights lawyer and that the impugned restriction would not only affect her personally but would also put her work in jeopardy. She had a proven track record of representing applicants before the Court as well as during the implementation stage of its judgments and the organisation she had headed had provided legal assistance to many vulnerable victims of human rights violations. The interference had thus been capable of having a chilling effect on her colleagues or of silencing many other persons whom she represented and who claimed to be victims of human rights violations in Russia.

The news reports by State-supported media outlets, which had highlighted the revocation of her permit, showed a strong negative bias towards her and her human rights work by publicly portraying her as hostile towards the State. The authorities’ failure to act in respect of her complaint of resulting online threats had also contributed to the atmosphere of pressure and hostility against her. Further, her account of the events before and after the revocation of her residence permit had been detailed, consistent and supported by written material, the authenticity and accuracy of which had not been questioned. In the absence of an alternative explanation or denial by the Government, the Court attached highly probative value to the first applicant’s allegations about her contact and copies of correspondence with the presumed FSB representative; that also supported her allegations that pressure had been exerted on her in connection with her work at Astreya.

Moreover, given the Government’s failure to provide any reasonable and sustainable explanation or materials concerning the alleged law enforcement activities directed at Astreya, and in view of the documents submitted by the first applicant, it was apparent to the Court that at least one search had taken place which, in the circumstances, could be seen as a further indication of pressure. Furthermore, the procedural defects in the proceedings had not been insignificant and, when looked at together, casted serious doubt on the Government’s assertion that the main reason for the revocation of the first applicant’s residence permit had indeed been national security interests.

The unfounded refusal of the first instance court to suspend the first applicant’s removal while her case was pending, the belated notification to her of the FSB report, the examination of her case in apparent breach of the rules of jurisdiction, the absence of reasoned decisions concerning the first applicant’s procedural requests and the absence of even a summary of the undisclosed allegations against her throughout the proceedings – all those factors, taken together, had indicated that the first applicant had faced an insurmountable obstacle in challenging the decision of the MVD, which had been indicative of the authorities’ intent to deprive her of the legal grounds to remain in Russia. The European Union bodies at the highest level had considered that the revocation of her residence permit had been nothing other than a reflection of the pressure on independent civil society in Russia. Lastly, the Court did not lose sight of the overall hostile context and the political and social climate in which many NGOs, human rights defenders and other civil society actors had been operating in the past years in Russia, including severe restrictions on their funding or on their projects which had resulted in a significant “chilling effect” on their activities.

Accordingly, the interference with the first applicant’s right to respect for her family life had pursued an ulterior purpose other than the restrictions of that right prescribed by Article 8 § 2, and had been carried out, predominantly, for punishing the first and second applicants for their human rights activities and to prevent them from continuing them in Russia. That ulterior purpose went clearly against the values of the Convention and was of particular gravity given the prominent role of human rights defenders in a democratic society.

Conclusion: violation (unanimously).

The Court also held, unanimously, that the respondent State had failed to comply with its obligations under Article 38 on account of its unjustified refusal to submit requested material relating to the alleged searches or raids of the officers of Astreya and its partner organisations.

Article 41: EUR 9,800 awarded to the applicants jointly in respect of non-pecuniary damage.

(See also Navalnyy v. Russia [GC], 29580/12, 36847/12, 11252/13 et al., 15 November 2018, Legal Summary; Kavala v. Turkey, 28749/18, 10 December 2019, Legal Summary)

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