CEDH · CASELAW;CLIN;ENG — 10 février 2011

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 138 February 2011 Soltysyak v. Russia - 4663/05 Judgment 10.2.2011 [Section I] Article 2 of Protocol No. 4 Article 2 para. 1 of Protocol No. 4 Freedom of movement Ban on foreign travel for former military officer who had had access to “State secrets”: violation   Facts – Under the Entry and Leave Procedures Act (no.   114-FZ of 15   August 1996) the right of a Russian national to leave the Russian Federation may be restricted for up to five years if he or she has had access to State secrets and has signed an employment contract providing for such a restriction. The applicant, a military officer with access to State secrets, had such a contract. After retiring in May 2004 he applied for a passport to travel abroad to visit his family, but his request was rejected until at least August 2009 on the basis of a decision by the military. Law – Article 2 of Protocol No. 4: The prohibition imposed on the applicant’s travel abroad from May 2004 had constituted an interference with his right to freedom of movement. While that interference may have served the legitimate aim of protecting the interests of national security and, until December 2008, have had a legal basis under domestic law and in the applicant’s employment contract, it could not be said to have been “necessary in a democratic society” and proportionate to the aim of protecting national security. Russia was still the only Council of Europe member State to have retained restrictions on international travel for private purposes by persons who had had access to State secrets, despite the Government’s commitment to abolish such restrictions as a condition for joining the Council of Europe and the United Nations Human Rights Committee’s condemnation of blanket restrictions of this type. Having regard to the established common European and international standard, the Court considered that particularly compelling justification would be required for maintaining the restriction. However, as in Bartik v.   Russia , the Russian Government had failed to explain how the blanket restriction on travel abroad imposed on all those who had had access to State secrets in the past served the interests of national security, especially as the confidential information in the applicant’s possession could have been transmitted in a variety of ways which did not require his presence abroad or direct physical contact. The Government’s claim that the applicant could be abducted by foreign intelligence services or terrorist organisations while abroad appeared to be mere conjecture not supported by any actual assessment of the risk in his particular case. While the Court had previously accepted that the rights of military personnel could in certain circumstances be restricted to a greater degree than would be permissible in the case of civilians, neither the applicant’s status as a serviceman nor his acknowledgement in 1999 that a restriction might be imposed altered the conclusion that the restriction in question failed to achieve the protective function that had been assigned to it. The applicant had been affected by the restriction for a considerable period following the termination of his contract of employment and had thus borne a disproportionate burden which had undermined the essence of his right under Article   2 of Protocol No.   4. As for the restriction on his right to travel after December 2008, there had been no basis for it in domestic law or in the applicant’s employment contract. Conclusion : violation (unanimously). Article 41: EUR 3,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes