ECtHR - Nolan and K. v Russia, Application no. 2512/04, 12 February 2009

Facts:

The applicant was a member of the Unification Church and had resided lawfully in Russia for many years, where he worked with branches of the church. His leave to stay was extended by invitations issued by the Unification Church in Moscow. His infant son also lived with him and he was his only guardian. After a trip to Cyprus, Mr Nolan was refused re-entry to Russia and detained for 10 hours in a small room in the airport. His son remained in Russia under the care of a nanny and he was only reunited with him 10 months later. Mr Nolan made complaints but was given no information with regard to why he had been denied entry into Russia beyond it being based on his activities being a threat to national security. Both the Moscow Regional Court and Supreme Court dismissed his complaints. Mr Nolan claimed that his rights under Articles 5, 8, 9 and 14 read with 9 of the Convention and Article 1 of Protocol No. 7 had been violated.

Decision & reasoning:

Firstly, Russia was found to have breached Article 38 § 1 (a) as they failed to submit a copy of the report of 18 February 2002 which was requested repeatedly by the Court and thus did not furnish all necessary facilities for the effective conduct of the Court’s investigation.

Secondly, Article 9 was found to have been breached. The Court noted the importance of religious freedom in a democratic society and that ECtHR case law indicates that measures relating to residence in connection with the exercise of right to freedom of religion can be an interference with that right. It held that the applicant’s exclusion from Russia was connected with this right because his activities were primarily of a religious nature and the government had a general policy that foreign missionaries were a threat to national security. The ban on entry was thus designed to repress this right. Moreover, the lack of evidence provided by Russia with regard to reasons for and necessity of the ban means the Court could not consider it to be pursuing a legitimate aim, especially as Article 9 does not provide for national security being grounds for justification. Thus, Article 9 was violated. In light of this, the Court found it unnecessary to assess whether Article 14 read with Article 9 had been violated also.

There was also found to be a violation of Article 8 due to the applicant’s forced separation from his son. Mr Nolan was given no advance warning of his expulsion and thus could not make provisions, forcing him to organise his reunion through a third party. The separation was held to be a combination of the Russian authorities omissions and actions, with the Court noting that Article 8 can also entail positive obligations. Significantly, there is a positive obligation to ensure the protection of children. Considering the fact that Mr Nolan was the only legal guardian and that K. was of a very young age, and that Russian authorities knew of the nature of the situation, their failure to protect K.’s best interests falls outside of their margin of appreciation. This is especially considering the fact that there already was no material evidence re: national security which could have outweighed these interests.

There was also found to be a violation of Article 5 §  1 and Article 5 § 5 with regard to Mr Nolan’s detention in the airport. This was found to be a deprivation of liberty. There was also no procedural protection available with which the decision could be questioned and thus the detention could not be considered ‘lawful’. Any domestic legislation which may have been applicable here e.g. the Border Crossing Guidelines were found to fall short of the ‘quality of law’ standard required by the Convention. Art 5 § 5 was also violated because there was no enforceable right of compensation with regard to his deprivation of liberty because national courts did not consider his detention unlawful.

Furthermore, Article 1 of Protocol No. 7 was found to have been violated. It was found to be applicable because the applicant was held to have been lawfully resident in Russia and expelled from Russia within the meaning of the Article. There was a violation because once again there was no evidence of any justification for this expulsion.

Finally, Article 41 was held to be applicable and the Court awarded 7,000 Euros in damages and reimbursement of legal costs and expenses.

Outcome:

Applicant granted with regard to the violation of Articles 9, 5 and 8 of the Convention and the violation of Article 1 of Protocol No. 7.

Observations/comments:

This case summary was written by Tabatha Pinto, GDL student at BPP University

Other sources:

Omkarananda and the Divine Light Zentrum v Switzerland, no. 8118/77, Commission Decision of 19 March 1981, Decisions and Reports (DR) 25

European Court of Human Rights Rules of Court - Rule 33 §§ 1 and 2

Expert opinion from the Expert Council for Conduction State Expert Examinations in Religious Studies (re: re-registration on 29 December 2009 of the Unification Church)

Rossiyskaya Gazeta newspaper article of 3 August 2000

Information Letter from the Russian Federal Security Service of 29 May 2000 entitled ‘Informations on the activities of representatives of non-traditional religious associations on Russian territory’

Report by the Stavropol Regional Branch of the Federal Security Service of 18 February 2002

European Parliament’s Resolution on Cults in Europe of 29 February 1996

Recommendation 1178 (1992) of the Parliamentary Assembly of the Council of Europe on sects and new religious movements

Committee of Ministers’ supplementary reply to the Recommendation above, adopted on 17 February 1994 (doc. 7030)