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

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.