Last Updated on August 2, 2019 by LawEuro
THIRD SECTION
CASE OF NAVALNYY v. RUSSIA
(Application no. 32963/16)
JUDGMENT
STRASBOURG
15 May 2018
This judgment is final but it may be subject to editorial revision.
In the case of Navalnyy v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
JolienSchukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 17 April 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 32963/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksey AnatolyevichNavalnyy (“the applicant”), on 3 June 2016.
2. The applicant was represented by Ms O. Mikhaylova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. On 17 March 2017 the application was communicated to the Government.
4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1976 and lives in Moscow.
6. On 2 June 2015 the applicant asked the Federal Migration Service to issue him a travel passport. His application was refused by reference to the fact that he had been convicted on two occasions and given suspended sentences which had not yet expired (see, for details, as regards the first conviction, Navalnyy and Ofitserovv. Russia, nos. 46632/13 and 28671/14, 23 February 2016, and, as regards the second conviction, Navalnyye v. Russia, no. 101/15, 17 October 2017).
7. The applicant asked the court of general jurisdiction to overturn the refusal, relying in particular on the Court’s finding of a violation of Article 2 of Protocol No. 4 in a similar case of Nalbantski v. Bulgaria (no. 30943/04, 10 February 2011).
8. On 30 September 2015 the Zamoskvoretskiy District Court in Moscow upheld the refusal as lawful, finding as follows:
“The complainant’s reference to the European Court’s judgment of 10 February 2011 in the case of Nalbantski v. Bulgaria is unsubstantiated because, in view of Mr Navalnyy’s personality, there are clear indications of a real public interest that outweigh the [complainant’s] right to freedom of movement.”
9. On 4 December 2015 the Moscow City Court upheld the District Court’s judgment in a summary fashion. On 14 January 2016 the City Court corrected a clerical error in the date of the judgment.
10. On 27 April 2017 the applicant was assaulted when leaving his office. The attacker threw green dye in his face and he suffered a chemical burn to his right eye.
11. Faced with the risk of losing sight, on 3 May 2017 the applicant asked for authorisation to go to Spain for eye surgery. On the following day he was issued with a travel passport on humanitarian grounds.
II. RELEVANT DOMESTIC LAW AND PRACTICE
12. For a summary of relevant domestic law and practice, see Vlasov and Benyash v. Russia (nos. 51279/09 and 32098, §§ 20-22, 20 September 2016).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4
13. The applicant complained that the refusal to issue him with a travel document had been in breach of Article 2 of Protocol No. 4 to the Convention, the relevant part of which reads as follows:
“2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of [this right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
14. The Government put forward the same arguments as they had relied upon in the Vlasov and Benyash case (cited above, § 27). They maintained moreover that the Court had erred in finding a violation in Vlasov and Benyash, and that it should have followed the line of cases in which a violation of Article 2 of Protocol No. 4 had not been found: Popoviciu v. Romania, no. 52942/09, 1 March 2016; Fedorov and Fedorova v. Russia, no. 31008/02, 13 October 2005; Peltonen v. Finland, no. 19583/92, Commission decision of 20 February 1995; Nordblad v. Sweden, no. 19076/91, Commission decision of 13 October 1993; C. v. Germany, no. 10893/84, Commission decision of 2 December 1985, and M. v. Germany, no. 10307/83, Commission decision of 6 March 1984. The Government also pointed out that the applicant had been issued with a travel document in May 2017 on humanitarian grounds, after he had justified the medical reason for going abroad.
A. Admissibility
15. The Court notes at the outset that, even though the applicant was issued with a travel passport in 2017 and went abroad, no domestic authority acknowledged the alleged violation of his right to leave his own country in the previous period and that he did not receive any compensation or other redress in that connection. Accordingly, he may still claim to be a “victim” of the alleged violation of Article 2 of Protocol No. 4 (see Bartik v. Russia, no. 55565/00, §§ 32-34, ECHR 2006‑XV).
16. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
17. The Court reiterates that a measure by means of which an individual is denied the use of a document which, had he so wished, would have permitted him to leave the country, amounts to an interference within the meaning of Article 2 of Protocol No. 4 and must meet the requirements of paragraph 3 of that Article (see Bartik, cited above, § 36, and Napijalo v. Croatia, no. 66485/01, § 68, 13 November 2003).
18. The applicant’s request for a travel passport was rejected on the ground that his conviction had not yet been spent. In Vlasov and Benyash, the Court accepted that the measure, which seeks to restrict a convicted and not yet rehabilitated offender from travelling abroad, pursued the legitimate aims of maintenance of public order and prevention of crime. It dispensed however with the analysis whether or not it was “in accordance with law” because it was in any event incompatible with Article 2 of Protocol No. 4 as not being “necessary in a democratic society” (cited above, §§ 30-31).
19. The decisions which the Government sought to rely upon are not relevant to the present case. The cases of Popoviciu, Fedorov and Fedorova, and M. v. Germany concerned the applicants whose freedom to travel was restricted in order to ensure the efficient conduct of a criminal investigation. In Peltonen, the applicant was liable to military service and sought to evade the draft. Nordbladinvolved restrictions on travel arrangements for a person of unsound mind. Lastly, the applicant in C. v. Germany was lawfully held in custody and could not travel anywhere.
20. In the instant case, the criminal proceedings against the applicant had already been concluded. He was given a suspended sentence andwas not deprived of his liberty. Nor was his freedom of movement restricted to prevent him from re-engaging in criminal conduct (see the case-law cited in Vlasov and Benyash, § 33). His situation was therefore substantially similar to that of the applicants in cases where the travel ban was the automatic consequence of their status as convicted and not yet rehabilitated offenders (see, among others, Vlasov and Benyash, cited above; Milen Kostov v. Bulgaria, no. 40026/07, 3 September 2013; Sarkizov and Others v. Bulgaria, nos. 37981/06 and 3 others, 17 April 2012; and Nalbantski v. Bulgaria, no. 30943/04, 10 February 2011).
21. It has been the Court’s well-established case-law that the mere fact that an individual has been criminally convicted but not yet rehabilitated cannot justify the imposition of restrictions on his or her freedom to leave the country (see Vlasov and Benyash, cited above, § 35, and Nalbantski, cited above, § 67). Such a general and almost automatic restriction cannot be regarded as “necessary in a democratic society” unless the domestic authorities have shown the existence of clear indications of a genuine public interest based on concrete factual elements that outweigh the individual’s right to freedom of movement (ibid.).
22. In the instant case, as in the above-mentioned cases, the Russian authorities, apart from referring to the applicant’s convictions and lack of rehabilitation, did not give any reasons for refusing him a travel passport (compare Vlasov and Benyash, § 35; Milen Kostov, § 17, and Nalbantski, § 67, all cited above). The Russian courts confined their findings to verifying the formal lawfulness of the ban and referring to the applicant’s “personality” and to a “real public interest” outweighing his right to leave Russia (see paragraph 8 above). They did not explain what specific traits of his personality led them to believe that the travel ban would be conducive to his rehabilitation or what factual elements supported their conclusion that the public interest was a real and weighty one or, for that matter, what the nature of that public interest was.
23. In these circumstances, in the absence of relevant and sufficient reasons and a proper judicial review of the question of proportionality by the domestic authorities, the Court cannot find that the automatic imposition of a travel ban was “necessary in a democratic society”.
24. There has accordingly been a violation of Article 2 of Protocol No. 4 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 4
25. The applicant further complained that he had not had an effective domestic remedy required by Article 13 of the Convention because of a formal and superficial nature of the judicial review of the travel ban. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
26. The Court considers that this complaint must be declared admissible. However, in the light of the reasoning in paragraph 22 above that led to the finding of a violation of Article 2 of Protocol No. 4, the Court finds that it is not necessary to examine separately the same issue from the standpoint of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
28. The applicant claimed50,000 euros (EUR) or any other amount at the Court’s discretion in respect of non-pecuniary damage. He also claimed EUR 5,081.71 for the costs and expenses incurred before the domestic courts and before the Court.
29. The Government submitted that the amounts claimed were excessive and unreasonable.
30. The Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable. Having regard to the repetitive nature of the present case, it makes no award in respect of costs and expenses.
31. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe application admissible;
2. Holdsthat there has been a violation of Article 2 of Protocol No. 4;
3. Holdsthat it is not necessary to examine the complaint under Article 13, taken in conjunction with Article 2 of Protocol No. 4;
4. Holds
(a) that the respondent State is to pay the applicant, within three months,EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,to be converted into the currency of the respondent State;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Alena Poláčková
DeputyRegistrar President
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