Article 8 of the European Convention on Human Rights (The Right to Respect for Family Life) and the Revocation of Residence Permits - Case of Gaspar v. Russia
Julius ADLER
On 12 June 2018 the European Court of Human Rights decided in favour of the applicant in the case of Gaspar v. Russia. Gaspar - a non-Russian national living in Russia - had her residence permit revoked following a report by the Federal Security Service stating that she posed a threat to national security. Consequently, she was not able to live with her husband and child in Russia anymore. The domestic courts ruled in favour of the Russian authorities, mainly because the matter fell within the exclusive competence of the security service and therefore fell outside of the scope of judicial review. However, the respective report was never disclosed. The European Court of Human Rights found a violation of Article 8 of the European Convention on Human Rights since the domestic proceedings were not attended by sufficient procedural guarantees.
Article 8 ECHR, Respect for Family Life, Residence Permit, National Security, Security Service.
1. Preface
In the case of Gaspar v. Russia the European Court of Human Rights (hereinafter “the ECtHR”) had to deal with the interpretation of the right to respect for family life in accordance with Article 8 of the European Convention on Human Rights (hereinafter “the ECHR”) and its limits in national security. In the following, the facts of the case as well as the proceedings before the domestic courts will be summarized and the judgement of the ECtHR will be analysed.
2. The Case of Gaspar v. Russia
The applicant was born in the Czech Republic. She arrived in Russia in 2004, where she married a Russian citizen, with whom she had a daughter, also a Russian national. The applicant and her family lived in St Petersburg. She lived in Russia based on regularly extended residence permits. On 15 October 2013 she applied for Russian citizenship. However, the St Petersburg department of the Federal Security Service (hereinafter “the FSB”) issued a report stating that the applicant posed a national security threat and that her application should therefore be rejected. Accordingly, the St Petersburg department of the Federal Migration Service (hereinafter “the FMS”) rejected the applicant’s citizenship application. Additionally, the FMS revoked the applicant’s residence permit, based on the FSB’s recommendation. She was informed that she had to leave Russia within fifteen days. Following that, the applicant and her daughter left Russia.
3. Procedural History: Proceedings before the domestic courts of Russia
In a first set of proceedings in August 2014, the District Court examined the applicant’s complaint concerning the revocation of her residence permit and rejected it. A request for a copy of the FSB report was refused. Apart from mentioning that the decision had been made following the FSB’s recommendation, the District Court did not refer to any documents which could have served as the basis for the impugned measure. Additionally, it was emphasised that the factual information which had served as the basis for the decision was not amenable to judicial scrutiny. Furthermore, the District Court limited the scope of its review to assessing whether the procedural requirements had been complied with. On the contrary, the District Court neither examined the effect of the impugned measure on the applicant’s family life, nor balanced the affected public and private interests. Further appeals were not successful. Accordingly, the City Court upheld the prior decision, stating that the District Court had properly examined the legal basis for the decision and that its decision had therefore been lawful.
In a second set of proceedings the applicant’s counsel challenged the legality of the FSB report and the FSB’s recommendation to revoke the applicant’s residence permit, by stating that those documents had been the basis for the actions taken by the FMS. The City Court held that the FSB’s report and its recommendation had been issued in accordance with the statutory procedure - and that they had therefore been lawful. The City Court dismissed a request to examine the report because the matter was within the FSB’s exclusive competence and therefore fell outside of the scope of judicial review. Furthermore, “the evidence presented to the court did not disclose a violation of the applicant’s rights by the FSB”.1 The Supreme Court of the Russian Federation (hereinafter “the Supreme Court”) upheld the decision of the City Court following an appeal of the applicant’s counsel. The FSB provided the court with a copy of its report. The Supreme Court found it lawful. However, while the Supreme Court did examine the report it further held that it contained state secrets. Accordingly, the information could not be disclosed. Consequently, the applicant’s counsel was not allowed access to the document.
