EHRM, 21-12-2006, nr. 55565/00

The Court has next to determine whether the interference complained about was justified. It reiterates that Article 2 § 2 of Protocol No. 4, which guarantees the right to leave any country, including one's own, must be read subject to the third paragraph of that Article, which provides for certain restrictions that may be placed on the exercise of that right in the interests of, inter alia, national security or public safety. The Convention organs have previously accepted that restrictions imposed following a failure to comply with military service obligations (see Marangos v. Cyprus, no. 31106/96, Commission decision of 20 May 1997), or restrictions on the travel of a mentally ill person who had no arrangements for appropriate care in the destination country (see Nordblad v. Sweden, no. 19076/91, Commission decision of 13 October 1993), were permissible. The Court has dealt with the withdrawal of travel documents and passports in applications concerning criminal (or bankruptcy) proceedings against applicants or third parties (see, for example, Luordo v. Italy, no. 32190/96, ECHR 2003-IX). So far there has been no application to the Convention institutions where a person was denied the right to travel abroad on the sole ground of his or her knowledge of certain ‘State secrets’. The applicable test is nonetheless similar: in order to comply with Article 2 of Protocol No. 4 such a restriction must be ‘in accordance with the law’, pursue one or more of the legitimate aims contemplated in paragraph 3 of the same Article and be ‘necessary in a democratic society’ (see Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, p. 19, § 39, and Napijalo, cited above, § 74).

The applicant contended that the restriction that had been imposed was not in accordance with the law because he had never signed a contract of employment containing a restriction on his right to leave the Russian Federation. The undertaking he had signed in 1994 did not contain any such restriction.

The Government indicated that in 1977, 1989 and 1994 the applicant had signed undertakings not to disclose State secrets. The undertaking of 16 May 1989 also contained a clause restricting his ability to travel abroad. The Russian Act of 15 August 1996 required agencies to sign new employment contracts with employees having access to sensitive information. That had not been done in the applicant's case because the law had entered into force on 19 August 1996, that is to say, a day before the applicant's employment ended.

The Court notes that both the USSR and Russian Acts provided for temporary restrictions on international travel of the persons who had been granted access to ‘State secrets’ (see paragraphs 19 and 22 above). A similar provision was included in the State Secrets Act (see paragraph 23 above). The Court finds therefore that the impugned restriction was imposed in accordance with law.

The Government claimed that the restriction on the applicant's right to travel abroad had been introduced in the interests of national security and for the protection of the State's interests.

The Court accepts that the interests of national security may be a legitimate aim for an interference with the rights enunciated in Article 2 of Protocol No. 4.

The applicant claimed that the domestic courts' approach had been excessively formalistic and that they had relied excessively on statements by his former employer, without analysing the necessity for such a restriction in the light of his explanation that his access to classified information had been virtually nil since 1989.

The Government submitted that the applicant had worked as a team leader in the Raduga agency. Until his resignation he had been in possession of a ‘special briefcase’, a seal, a ‘special notebook’ and workbooks that had contained top-secret information. On 14 August 1996 he had surrendered all these items to the agency. That was the last date on which he had had access to classified information. The restriction was of a temporary nature, spanning over five years after that date.

The Court reiterates that the test as to whether the impugned measure was ‘necessary in a democratic society’ involves showing that the action taken was in pursuit of that legitimate aim, and that the interference with the rights protected was no greater than was necessary to achieve it. In other words, this requirement, commonly referred to as the test of proportionality, demands that restrictive measures should be appropriate to achieve their protective function (compare with point 14 of the Human Rights Committee's General Comment on Article 12 of the ICCPR, cited in paragraph 30 above).

The Court notes at the outset that the applicant surrendered all classified material to his employer on termination of his contract in 1996, that is, before he applied for the travel passport. The applicant submitted that the purpose of his planned trip abroad had been purely private and not related to his previous work, as he had intended to visit his ailing father. This was not contested by the respondent Government.

The Court further observes that the Russian law on international travel by persons with knowledge of State secrets imposed an unqualified restriction on their right to leave Russia, whatever the purpose or duration of their visit. Accordingly, the scope of review by the Interagency Commission and the domestic courts was confined to examination of the formal issue as to whether the information to which the applicant had once had access in the Raduga design agency was still sensitive. They did not consider whether the restriction on the applicant's right to travel abroad for private purposes was still necessary for achieving the legitimate aim it had been intended to serve and whether a less restrictive measure could be applied.

The Government did not indicate how the unqualified restriction on the applicant's ability to travel abroad served the interests of national security. The Court, for its part, considers that it is precisely the link between the restrictive measure at issue and its purported protective function that is missing. Historically, the purported ‘protective function’ of the impugned measure was to prevent disclosure of classified information concerning ‘State secrets’. At the time the restriction was conceived, the State was able to control transmission of information to the outside world, using a combination of restrictions on outgoing and incoming correspondence, prohibition on international travel and emigration and a ban on unsupervised contacts with foreigners within the country. However, once the ban on personal contacts with foreigners was removed and correspondence was no longer subject to censorship, the necessity of restriction on international travel for private purposes by persons aware of ‘State secrets’ became less obvious. In these circumstances, in so far as the ban on international travel for private reasons purported to prevent the applicant from communicating information to foreign nationals, in a contemporary democratic society such a restriction fails to achieve the protective function previously assigned to it. That view is shared by the UN Human Rights Committee, which expressed the opinion, in general terms, that ‘the test of necessity and the requirement of proportionality… would not be met… if an individual were prevented from leaving a country merely on the ground that he or she is the holder of ‘State secrets’’ (see point 16 of General Comment no. 27, paragraph 30 above).

The Parliamentary Assembly's Opinion on Russia's request for membership of the Council of Europe indicates that the repeal of restrictions on international travel for private purposes was regarded as a necessary condition for membership of the Council of Europe, as the organisation of States adhering to the principles of individual freedom, political liberty and the rule of law (Preamble to the Statute of the Council of Europe) (see paragraph 25 above). The express mention in the Parliamentary Assembly's Opinion on Russia's accession request of Russia's undertaking to cease restrictions on international travel by persons with knowledge of State secrets suggests that the Assembly did not consider the existence of such a restriction compatible with membership of the Council of Europe. Indeed, many Member States of the Council of Europe have never had a comparable restriction in their legislation, whereas many others have abolished it during the process of democratic reforms (see paragraphs 27 and 28 above). However, Russia's undertaking to abolish that restriction has not been implemented and the relevant provisions of domestic law have remained in force to date (see paragraphs 22 and 34 above).

Finally, the Court observes that the restriction on the applicant's right to leave his country was imposed for a considerable period of time, for five years following the termination of his employment, notwithstanding the fact that that restriction was not explicitly mentioned in the 1994 undertaking (see paragraph 9 above). The impact of that measure must have been particularly heavy on the applicant because he had not been able to travel abroad since the beginning of his employment in 1977, that is, for a total of twenty-four years.

Having regard to the above considerations, the Court finds that the restriction on the applicant's right to leave his own country was not ‘necessary in a democratic society’.

Accordingly, there has been a violation of Article 2 of Protocol No. 4.