CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 septembre 2016

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RUSSIA   (Applications nos. 51279/09 and 32098/13)               JUDGMENT     STRASBOURG   20 September 2016   FINAL   30/01/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vlasov and Benyash v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Helen Keller,   Johannes Silvis,   Dmitry Dedov,   Branko Lubarda,   Pere Pastor Vilanova, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 30 August 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   51279/09 and 32098/13) 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 two Russian nationals, Mr Aleksey Yuryevich Vlasov and Mr Mikhail Mikhaylovich Benyash (“the applicants”), on 10   February 2010 and 21 April 2013 respectively. 2.     The first applicant was represented by Mr V. Kuznetsov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants alleged that a restriction placed on their right to leave Russia had not been justified. 4.     On 20 November 2014 and 9 July 2015 the above-mentioned complaint was communicated to the Government and the remainder of the applications was declared inadmissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     The case of Mr Vlasov 6.     The first applicant, Mr Aleksey Yuryevich Vlasov, was born in 1957 and lives in Moscow. 7.     On 6 October 2008 Mr Vlasov applied to the Federal Migration Service for a travel passport which would allow him to go abroad. 8.     On 27 October 2008 the Golovinskiy District Court of Moscow convicted him of smuggling and sentenced him as follows: “... the penalty in the form of three years’ imprisonment is not to be enforced and is to be considered conditional with a three years’ probationary period. To require Mr Alexey Vlasov to report twice a month during the probationary period to the authority in charge of execution of conditional sentences, and to inform [that authority] of any change of residence ...” 9.     On 11 November 2008 his application for a travel passport was refused by reference to the fact that he had been given a suspended three ‑ year sentence whose period of suspension had not yet expired. 10.     The applicant Mr Vlasov applied for judicial review of the refusal. 11.     On 3 June 2009 the Butyrskiy District Court of Moscow upheld the refusal as lawful, finding as follows: “The argument by Mr Vlasov to the effect that the Golovinskiy District Court’s judgment of 27 October 2008 contained an exhaustive list of restrictions during the probation period which did not include a restriction on leaving Russia and which was not, in the claimant’s view, subject to expansive interpretation by State officials, does not contradict section 15(4) of the Entry and Exit Procedures Act which provides for a restriction on the right to leave for abroad in cases of both actual custodial and suspended sentences. A person who is given a suspended sentence is a convicted offender serving a sentence, and may be relieved from punishment only after the period of suspension has expired. Mr Vlasov’s period of suspension expires on 14   January 2012 and after its expiry Mr Vlasov’s criminal conviction will be spent in accordance with Article 86 of the Criminal Code. Until that time Mr Vlasov is an offender serving a sentence, which is a ground for restricting his right to leave for abroad.” 12.     On 18 August 2009 the Moscow City Court rejected an appeal against the District Court’s judgment. It held: “The arguments that Mr Vlasov was subjected to restrictions that go beyond those imposed by his conviction and that he was compelled to serve the sentence within the Russian Federation, whereas he needed to take care of his business interests and perform his duties abroad, are not grounds for setting aside the correct judgment [of the first-instance court].” B.     The case of Mr Benyash 13.     The second applicant, Mr Mikhail Mikhaylovich Benyash, was born in 1977 and lives in Sochi. 14.     On 31 August 2011 the Tsentralnyy District Court of Sochi convicted Mr Benyash of extortion and sentenced him to three years’ imprisonment, suspended for three years. He was released in the courtroom. On 12 October 2011 the Krasnodar Regional Court upheld the conviction on appeal. 15.     On 5 December 2011 the Federal Migration Service refused Mr   Benyash’s application for a travel passport, noting that he had been arrested on 1   September 2010 and that, according to the available information, the criminal proceedings against him were still pending. 16.     The applicant Mr Benyash applied for judicial review of the refusal. 17.     On 28 June 2012 the Tsentralnyy District Court of Sochi upheld the refusal as lawful: “...for the time being the conviction of 31 August 2011 is not yet spent, Mr   Benyash is a convicted offender, and, accordingly, the refusal [of travel documents] does not violate his rights”. 18.     On 29 November 2012 the Krasnodar Regional Court rejected the appeal, endorsing the reasoning of the District Court. 19.     On 11 April 2013 the Regional Court refused him leave to appeal to the cassation instance. II.     RELEVANT DOMESTIC LAW AND PRACTICE 20.     The Entry and Exit Procedures Act (Law no. 114-FZ of 15 August 1996) provides: Section 2 “The right of a Russian citizen to leave the Russian Federation may be restricted only on the grounds listed in this Act and in accordance with the procedure set out therein.” Section 15 “The right of a Russian citizen to leave the Russian Federation may be temporarily restricted if ... (4)     he has been convicted of an offence, – up until the penalty has been enforced or until the individual has been relieved from serving the penalty.” 21.     The Russian Criminal Code provides: Article 73. Suspended sentence “1.     If, having decided on a penalty not exceeding ... eight years’ imprisonment, the court considers that the offender may be corrected without serving the sentence, it may declare the sentence to be a suspended one ... 5.     Taking into account the offender’s age, work capacity and state of health, the court may supplement a suspended sentence with a requirement to abide by certain restrictions: to abstain from changing the place of residence, work or study without prior notification to the competent State authority in charge of probation, to abstain from visiting certain places ... The court may impose other restrictions conducive to the rehabilitation of the offender.” Article 86.     Criminal record “1.     A convicted offender shall be considered to have a criminal record from the day the conviction becomes final and until the day the criminal record is cancelled or becomes spent ... 2.     An individual who has been exempted from punishment shall have no criminal record. 3.     A criminal record is cancelled – (a)     in case of a suspended sentence, on expiry of the period of suspension ...” 22.     On 8 December 2009 the Constitutional Court dismissed a constitutional challenge to section 15(4) of the Entry and Exit Procedures Act brought by two claimants who had been refused travel documents (judgment no. 19-P). The first claimant had been given a suspended sentence and the second claimant had been released on parole on condition that he found employment and abstained from changing his place of residence without notifying the probation authority. The Constitutional Court held that enforcement of final convictions was a constitutionally important objective, as a failure to enforce them would undermine the rights of others and the authority of the judiciary. A   suspended sentence does not mean that the convicted offender has been exempted from punishment: he or she is on probation during the specified period of time and may be subject to additional restrictions during that period (Articles 73 and 86(3) of the Criminal Code). The Constitutional Court inferred therefrom that the restriction on the right to leave the country applicable to those who received a suspended sentence was a “temporary measure designed to secure the enforcement of a criminal conviction”. Similarly, as regards the situation of individuals released on parole, the Constitutional Court considered that a temporary restriction on their right to leave Russia was a safeguard necessary to secure the full enforcement of the sentence. Since the probation authorities only have jurisdiction within the Russian territory, they can only exercise effective control over the conduct of convicted offenders on probation within Russia. A convicted offender’s departure from Russia would remove them from the sphere of such control, undermining the objectives of the punishment and negating the established procedure for enforcement of the sentence as a means of rehabilitating offenders. The Constitutional Court finally pointed out that federal law-makers should be able to determine situations in which the competent authority, in certain extraordinary circumstances and having regard to the principle of humanity and valid and objective reasons, could authorise the convicted offenders to leave the Russian Federation. THE LAW I.     JOINDER OF THE APPLICATIONS 23.     Given their similar factual and legal background, the Court decides that the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II.     ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 24.     The applicants complained that the refusal to issue them with travel documents which would have allowed them to leave Russia 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.” A.     Admissibility 25.     The Court notes that the application 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 1.     Submissions by the parties 26.     The applicants pointed out that section 15(4) of the Entry and Exit Procedures Act merely provided for the possibility of the right to leave Russia being restricted, rather than for actual restriction. The applicant Mr   Vlasov emphasised that on 27 October 2008 the District Court had explicitly decided not to enforce the penalty, without imposing any other restriction apart from a requirement to report any changes in his place of residence. This requirement could not have been interpreted as including a ban on travel abroad. The applicant Mr Benyash submitted that the obligation to report twice a month to the probation authority, which had been required of him, was not incompatible with short-term travel abroad for work, tourism or medical treatment. If he were to breach the conditions of his sentence by failing to report, the probation could have been revoked and his name would then have been placed on the list of fugitives from justice. He pointed out that the Government’s arguments were of a general, non-specific nature, and that they failed to indicate any public interest which might have been impaired in the event of his leaving abroad. 27.     The Government acknowledged that the refusal of a travel document amounted to interference with the applicants’ right to leave Russia. The interference was based on section 15(4) of the Entry and Exit Procedures Act and pursued the legitimate aim of securing the enforcement of a criminal conviction and ensuring control over the applicants’ conduct by the probation authorities (the Government cited the Constitutional Court judgment of 8 December 2009 extensively, see paragraph 22 above). As to the necessity for the interference in a democratic society, the Government pointed out that the impugned measure responded to a pressing social need, that it was limited in time and could not be automatically extended. In their applications for travel documents and the ensuing judicial proceedings, the applicants did not refer to sufficiently specific, objective and valid grounds for leaving Russia. As regards the applicant Mr Vlasov, the Government submitted that he had been twice convicted of smuggling, that is to say of an activity connected with crossing the State border, and that there was accordingly a risk of reoffending. The restriction on his right to leave Russia was of a short duration, it applied in the period between 14   January 2009 and 20 March 2010, a total of one year and four months. The applicant Mr   Benyash was convicted of a serious offence and subjected to certain restrictions for the entire duration of the probation period, including the obligation to report twice a month to the competent body. If he had left Russia, enforcing that obligation would have become impossible. 2.     The Court’s assessment 28.     The Court reiterates that Article 2 § 2 of Protocol No. 4 to the Convention guarantees to any person the right to leave any country for any other country of the person’s choice to which he or she may be admitted. 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 v.   Russia , no. 55565/00, § 36, ECHR 2006‑XV, and Napijalo v. Croatia , no.   66485/01, § 68, 13 November 2003). 29.     The decisions rejecting the applicants’ requests for travel passports clearly amounted to such a measure. It must therefore be examined whether they were “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and whether they were “necessary in a democratic society” to achieve such an aim. 30.     The Government asserted that section 15(4) of the Entry and Exit Procedures Act furnished a sufficient legal basis for the interference. The applicants contended that section 15 merely provided for the possibility of restricting the right to travel abroad in certain situations and for a certain period of time, without defining the procedural and substantive conditions for its application, and therefore did not meet the “quality of law” requirements. The Court, for its part, does not find it necessary to determine whether the measure was “in accordance with law”, as, for the reasons that follow, it considers that it was incompatible with Article 2 of Protocol No. 4 in other respects (see Nalbantski v.   Bulgaria , no. 30943/04, § 62, 10   February 2011). 31.     The Court is prepared to accept that the measure, which seeks to restrict a convicted and not yet rehabilitated offender from travelling abroad, pursues the legitimate aims of maintenance of public order and prevention of crime. The question arises whether the travel ban was “necessary in a democratic society” for achieving those aims (see Kerimli v.   Azerbaijan , no. 3967/09, §   49, 16 July 2015). 32.     On that point, the Court reiterates that under Article 2 §§ 2 and 3 of Protocol No. 4 the authorities are under an obligation to ensure that a restriction of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate. That assessment should normally be subject to review by the courts, since they offer the best guarantees of independence, impartiality and lawfulness of the procedures. The scope of their review should enable them to take account of all the factors involved, including those concerning the proportionality of the restrictive measure (see Battista v. Italy , no. 43978/09, § 42, ECHR   2014, and Nalbantski , cited above, § 64, with further references). 33.     Admittedly, in certain cases restrictions on the movements of convicted offenders may be justified, for instance by the need to prevent them from re-engaging in criminal conduct. Thus, the Court has allowed restrictions on the freedom of movement of individuals suspected of being members of a criminal syndicate (see Raimondo v. Italy , 22   February 1994, § 39, Series A no. 281-A, and Labita v. Italy [GC], no.   26772/95, § 195, ECHR 2000-IV) or of an individual who had been found guilty of a violent offence (see Villa v. Italy , no. 19675/06, §§ 45-50, 20   April 2010). 34.     However, such restrictions can be justified in a given case only if there are clear indications of a genuine public interest which outweigh the individual’s right to freedom of movement. They must be based on concrete elements which are truly indicative of the continued existence of the risk that such measures seek to forestall. In cases where the travel ban was the consequence of the applicant’s status as a convicted and not yet rehabilitated offender, the Court did not consider that such a general and almost automatic restriction could be regarded as necessary (see Milen Kostov v. Bulgaria , no. 40026/07, § 17, 3   September 2013; Sarkizov and Others v. Bulgaria , nos. 37981/06, 38022/06, 39122/06, and 44278/06, §   67, 17 April 2012; and Nalbantski , cited above, § 66). The Court also found a violation of Article 2 of Protocol No. 4 in a case where a travel restriction had been automatically imposed on account of unpaid debts, without examining the applicant’s personal situation or his ability to pay the amounts due (see Battista , cited above, § 44). 35.     In the instant case, as in the above-mentioned cases against Bulgaria, the Russian authorities, apart from referring to the applicants’ convictions and lack of rehabilitation, did not give any reasons for refusing them travel passports, without examining their individual situations or explaining the need to impose such a measure on them. They thus failed to carry out the requisite assessment of the proportionality of the restriction of the applicants’ right to travel abroad and to provide justification for it (compare Milen Kostov , § 17, and Nalbantski , § 67, both cited above). In particular, they gave no explanation why they believed that the travel ban was conducive to the applicants’ rehabilitation or why a short-term absence on a trip abroad should have prevented Mr Benyash’s from complying with the obligation to report twice a month to the probation authority. The Court reiterates that the mere fact that an individual has been criminally convicted and has not yet been rehabilitated cannot justify the imposition of restrictions on his or her freedom to leave his or her country (see Nalbantski , cited above, § 67). 36.     In the subsequent judicial review proceedings the Russian courts only concerned themselves with the formal lawfulness of the ban. Once satisfied that the prerequisites under section 15(4), namely conviction and lack of rehabilitation, were in place, the courts pronounced the travel ban to be lawful (see paragraphs 11, 12 and 17 above). They did not make any genuine attempt to consider the specific reasons advanced by Mr Vlasov to justify the need to go abroad (see the Moscow City Court’s decision in paragraph 12 above), or to assess whether the restrictions on the applicants’ right to leave Russia were a proportionate measure and whether they struck a fair balance between the public interest and the applicants’ right to freedom of movement. Such a rigid and automatic approach cannot be reconciled with the obligation imposed by Article 2 of Protocol No. 4 to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances (see Nalbantski , Sarkizov and Others and Milen Kostov , all cited above). In these circumstances, in the absence of reasons and proper judicial review of the question of proportionality by the domestic authorities, the Court cannot speculate as to whether or not there were grounds that could have justified the travel ban. The alleged risk of reoffending in the case of Mr Vlasov, to which the Government referred, was not mentioned in any form in the domestic decisions and was cited for the first time in the proceedings before this Court. 37.     In the light of the foregoing, the Court does not consider that the automatic imposition of a travel ban without any regard to the individual circumstances of the person concerned can be described as “necessary in a democratic society”. 38.     There has accordingly been a violation of Article 2 of Protocol No. 4 to the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 39.     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.” A.     Damage 40.     The applicant Mr Vlasov claimed 13,620 euros (EUR) in respect of pecuniary damage representing his loss of earnings in the period until 10   June 2010. The applicants further claimed EUR 1,800 and 12,000 respectively for non-pecuniary damage. 41.     The Government submitted that the alleged loss of earnings was not related to the violation in the instant case and was not supported with any documents (they referred to S.C. Prodcomexim SRL v. Romania (no. 2) , no.   31760/06, § 53, 6 July 2010; Patrikova v. Bulgaria , no. 71835/01, §§   108-09, 4 March 2010; and Marini v. Albania , no. 3738/02, § 190, 18   December 2007). They further submitted that the second applicant’s claim in respect of non-pecuniary damage was excessive in the light of the Court’s awards in similar cases (here they referred to Battista and Bartik , both cited above, and also Miażdżyk v. Poland , no. 23592/07, 24 January 2012). 42.     The Court does not discern any causal link between the violation found and Mr Vlasov’s claim regarding the lost earnings; it therefore rejects this claim. It further awards Mr Vlasov the full amount claimed, namely EUR 1,800, and Mr   Benyash EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.     Costs and expenses 43.     The applicant Mr Vlasov also claimed EUR 150 in respect of postal expenses. 44.     The Government pointed out that postal receipts were produced only for the amount of EUR 100. 45.     In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award Mr Vlasov the sum of EUR 150, plus any tax that may be chargeable to him. C.     Default interest 46.     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.     Decides to join the applications;   2.     Declares the applications admissible;   3.     Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention;   4.     Holds (a)     that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     to Mr Vlasov EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     to Mr Benyash EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii)     to Mr Vlasov EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable to him, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Luis López Guerra Deputy Registrar   President