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The man who knew too much

Judges today declared Russia breached the human rights of a retired military officer by banning him from international travel to protect state secrets.

Following a Chamber judgment in the case Soltysyak v. Russia (application no. 4663/05), which is not final, the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 2 of Protocol No. 4 (freedom of movement) to the European Convention

The case concerned Mr Soltysyak’s complaint that he could not travel abroad for private purposes.

Principal facts

The applicant, Sergey Soltysyak, is a Russian national who was born in 1958 and lived at the Baikonur space launch site in Kasakhstan (under joint Kazakh-Russian jurisdiction) where he served as a military officer from 1983 to 2004.

During his career he was granted access to information – on rocket test launches, launch parameters and test results – classified as top secret.

Following his retirement from the Russian army in May 2004, he applied for a passport with which he could leave Kazakhstan to travel abroad.

In May 2005, the passports and visa service refused to issue him a passport as they considered that he had last been exposed to state secrets via his work in December 2003 and, according to the terms of his employment contract, had accepted the possibility under the State Secrets Act of a five-year restriction on his right to travel. He could therefore only travel abroad from December 2008.

The domestic courts rejected Mr Soltysyak’s ensuing complaint, finding that the refusal to issue him with a passport was lawful in view of his knowlege of state secrets, and that he had received a pay rise on that account.

Mr Soltysyak maintained that a valid travel document was essential to him for visiting his family, his brother and ailing father living in Kiev, his mother’s grave situated in Ukraine and his aunt and uncle living in Riga (Latvia).

Complaints procedure

Relying in particular on Article 2 of Protocol No. 4 (freedom of movement), Mr Soltysyak complained that he could not travel abroad.

The application was lodged with the European Court of Human Rights on 18 January 2005.

Decision of the Court

The Court noted that, although Mr Soltysyak could cross the Russian-Ukrainian or Russian-Kazakh border with his internal identity document, he needed a passport to travel to virtually any other country in the world. There had therefore been an interference with his right to freedom of movement. That interference had had a legal basis, under the Entry and Leave Procedures Act, State Secrets Act as well as in the Mr Soltysyak’s employment contract, until December 2008 and had served the legitimate aim of protecting the interests of national security.

However, as in a similar case (2) already brought before it, the Court found that the Russian Government had not shown how the blanket restriction on Mr Soltysyak’s ability to travel abroad had served the interests of national security. It reiterated that the confidential information in his possession could be transmitted in a variety of ways which did not require his presence abroad or even direct physical contact with him. The Government’s claim that he could be abducted by foreign intelligence services or terrorist organisations while abroad was mere conjecture, no assessment of the security risks in his particular case having been carried out.

Indeed, despite the Russian Government’s commitment to abolish restrictions on international travel for private purposes by those who had previously been aware of state secrets as a condition for its membership of the Council of Europe, an overview of the situation in the 47 Council of Europe member States demonstrated that Russia was the only member State to retain such a restriction.

In any case, Article 2 of Protocol No. 4, without distinguishing between civilians and members of the armed services, guaranteed to everyone the freedom to leave one’s own country.

The Court therefore considered that the ban on Mr Soltysyak travelling abroad from May 2004 (when he retired) to December 2008 had not been proportionate to the aim of protecting national security and had not therefore been “necessary in a democratic society”. As concerned the period after December 2008, when – by the Russian Government’s own admission – the five-year restriction had been set to expire, the Court found that any restriction on Mr Soltysyak’s right to travel had had no basis in law or in contract. There had therefore been a violation of Article 2 of Protocol No. 4.

Article 41 (just satisfaction)

The Court held that Russia was to pay the applicant 3,000 euros (EUR) in respect of non pecuniary damage and EUR 850 for costs and expenses.

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