Youth Initiative For Human Rights v. Serbia (application no. 48135/06)
In a Chamber judgment of June 25, the Court found a violation of Article 10 (freedom of expression) of the Convention. The applicant, a non-governmental organization, requested information from the Serbian intelligence agency regarding how many people were under electronic surveillance by the agency in 2005. The agency refused to provide the information, citing a provision in the Freedom of Information Act applicable to secret information. The NGO complained to the Information Commissioner, which held that the agency breached the law and ordered the agency to make the information available within three days. In 2008, the agency informed the NGO that it did not hold the requested information.
The Court stated that the NGO requested information of public interest and was entitled to Convention protection similar to that provided to the press. The Court found that the agency’s refusal to provide the information constituted an interference with the NGO’s right to freedom of expression. Additionally, the agency’s refusal was not in accordance with domestic law, since the domestic body set up to ensure compliance with the Freedom of Information Act had decided that the requested information must be made available to the applicant. The Court found that the agency’s assertion that it did not hold the information was not persuasive given the nature of the information and the agency’s initial response to the NGO’s request.
Turluyeva v. Russia (application no. 63638/09)
The applicant brought proceedings related to the disappearance of her son, who was last seen by his uncle at the external guards regiment of the police in Grozny, Chechnya. The applicant’s son, Sayd-Salekh, was detained by the police after an armed skirmish in Goyty, Chechnya. The Government claimed that he had been taken to the police regiment’s headquarters and released within several hours, but no records were made of his detention, questioning, or release. The family has not heard from or of Sayd-Salekh since his detention.
Considering the passage of time and the life-threatening nature of unrecorded detention in the region, the Court found that Sayd-Salekh could be presumed dead. The Court found that the Government had failed to provide any plausible explanation of what happened to Sayd-Salekh after his detention and disappearance. Thus, the liability for his presumed death was attributable to the Government, and Article 2 had been violated. Additionally, although the authorities had been aware that Sayd-Salekh had been deprived of his liberty in a life-threatening situation, they failed to take appropriate measures to protect his life, which was another violation of Article 2. Furthermore, the investigation had been beset by delays. Statements were taken from police officers months after the events, and CCTV records from the police premises had been lost. Additionally, the investigation had no effect on the police officers’ continued service and ability to put pressure on others involved in the investigation, including witnesses. Thus, Article 2 was violated because the investigation had been ineffective.
The Court also found a violation of Article 3 due to the applicant’s distress and anguish resulting from her inability to find out what happened to her son and the authorities’ reaction to her complaints. The Court also found that Article 5 had been violated by the detention of the applicant’s son without legal grounds or official acknowledgment. Finally, the Court found a violation of Article 13 in conjunction with Article 2 due to the lack of effective legal remedies available to the applicant.
Khlyustov v. Russia (application no. 28975/05)
In a Chamber judgment of July 11, 2013, the Court found that Article 2 of Protocol No. 4 (freedom of movement) to the European Convention on Human Rights had been violated.
The applicant was ordered by a district court to pay back a sum of money advanced to him for construction of a house. The Moscow north-west bailiffs’ service initiated enforcement proceedings. The applicant requested that the district court postpone enforcement of the judgment on a number of occasions due to the applicant’s difficult financial situation, but the court refused. During enforcement proceedings between 2003 and 2005, the bailiffs’ service imposed a series of six-month travel bans on the applicant, prohibiting him from leaving Russia. The applicant alleges that he did not become aware of the travel ban until he tried to leave the country for a vacation in 2004. He lodged a complaint contesting the travel restriction in the Moscow City Court, which was rejected in May 2004, as were appeals against subsequent travel bans. The Constitutional Court rejected the applicant’s request to examine whether the relevant legal provisions were compatible with the Constitution. The enforcement proceedings were eventually discontinued because a writ of execution was sent to the applicant’s employer. The applicant later paid the debt.
Article 2 of Protocol No. 4 of the Convention guarantees any person the right to leave any country. Any measure restricting that right should be “in accordance with law,” pursue one or more of the legitimate aims set forth in paragraph 3 of the same Article, and be “necessary in a democratic society.”
The Court was satisfied that the interference with the applicant’s right to leave the country had been in “accordance with law” for the purpose of Article 2 of Protocol No. 4, as it had a basis in national law. Furthermore, the relevant laws were adequately accessible to the applicant and the travel bans were reasonably foreseeable. The Court found that the interference with the applicant’s right to leave his country pursued a legitimate aim, namely protection of the rights of others.
Regarding whether the interference was “necessary in a democratic society” for the purpose of Article 2 of Protocol No. 4, the Court noted that the Russian Constitutional Court’s interpretation of the pertinent legal provisions required the authorities to justify the restrictions on the applicant’s travel. Thus, the travel restriction could not have been imposed automatically upon failure to pay the debt, but only upon a showing that such a measure was necessary in the circumstances of the case. Additionally, according to the relevant provisions on enforcement proceedings, the bailiff was required to issue a ruling indicating the grounds for a decision affecting the interests of a party to the proceedings.
In contrast, the decisions in the applicant’s case were issued through orders or demands based solely on the ground that he had not paid the judgment debt voluntarily. In its decisions, the bailiff’s service did not state that the applicant had evaded payment; it did not explain how the travel ban might help to collect the debt; and it did not examine the applicant’s individual situation or other relevant circumstances of the case. Additionally, when domestic courts reviewed the decisions of the bailiffs’ service, they did not assess the justification and proportionality of the travel restrictions.
The Court concluded that the Russian authorities had not complied with their obligation to ensure that interference with the right of individuals to leave their country was justified and proportionate throughout its duration in the circumstances of the case. Thus, there was a violation of Article 2 §§ 2 and 3 of Protocol No. 4.
