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Case of Berkovich & Others v/s Russia

    Applications No. 5871 of 07

    Decided On, 27 March 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT HELENA J√ĄDERBLOM
    By, THE HONOURABLE MR. JUSTICE BRANKO LUBARDA
    By, THE HONOURABLE MR. JUSTICE HELEN KELLER
    By, THE HONOURABLE MR. JUSTICE DMITRY DEDOV
    By, THE HONOURABLE MR. JUSTICE PERE PASTOR VILANOVA
    By, THE HONOURABLE MR. JUSTICE GEORGIOS A. SERGHIDES
    By, THE HONOURABLE MR. JUSTICE JOLIEN SCHUKKING

    For the Appearing Parties: --------------



Judgment Text

PROCEDURE

1. The case originated in ten applications (nos. 5871/07, 61948/08, 25025/10, 19971/12, 46965/12, 75561/12, 73574/13, 504/14, 31941/14 and 45416/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by ten Russian nationals, whose names are given below ("the applicants").

2. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicants complained about a restriction on their right to leave Russia and travel abroad for private purposes.

4. On 4 July 2012, 30 August 2013 and other dates the above complaint was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The case of Mr Berkovich (no. 5871/07 lodged on 28 December 2006)

5. The applicant, Mr Gennadiy Mikhailovich Berkovich, was born in 1950 and lives in Moscow. He was represented before the Court by Ms M. Samorodkina, a lawyer practising in Moscow.

6. In 1973 Mr Berkovich started working for the Scientific Research Electromechanical Institute, a State design bureau that developed air defence weapons.

7. Mr Berkovich signed an undertaking concerning the non-disclosure of State secrets which contained a restriction on the right to go abroad. The employer had despatched Mr Berkovich on official missions to France (in 1993 and 1994), China (in 1996 and 2003) and Greece (in 2001 and 2004). On 9 September 1993 he was provided with a travel passport (заграничный паспорт), the identity document that entitles Russian citizens to leave the country and travel abroad. It was renewed on 16 December 1998 and then on 3 November 2003, both times for a five-year period.

8. On 28 September 2004 Mr Berkovich terminated his employment. His employer retained his travel passport and refused to return it to him.

9. On 25 July 2005 Mr Berkovich applied to the Passport and Visa Service of the Akademicheskiy District in Moscow for a new travel passport. On 16 December 2005 the head of the Passport and Visa Service refused his application. The refusal indicated that his right to obtain a travel passport was restricted until 26 February 2009 on account of his past access to State secrets.

10. Mr Berkovich challenged the refusal before the Moscow City Court, relying on the fact that he had been previously allowed to travel abroad on official business.

11. On 8 June 2006 the City Court gave judgment. It found that, even though the law provided that a refusal could be challenged before the Interagency Commission for the Protection of State Secrets, Mr Berkovich could not avail himself of that remedy because the Commission had not held any hearings since 22 June 2004 and had been disbanded by a Government resolution of 21 March 2005. The City Court upheld the restriction on Mr Berkovich's right to travel abroad, noting that, according to his former employer, he had last accessed confidential information in February 2004 and that the classified status of that information was not due to be reviewed until 2009. As to his previous official trips abroad, the City Court said:

"The court has established that Mr Berkovich's work duties required him to travel abroad for official purposes more than once; each time [his employer] obtained for him through the Consular Department of the Ministry of Foreign Affairs a travel passport, which was kept by the human resources department [of the employer] until its expiry.

His travel abroad - as an individual aware of State secrets - was organised in accordance with the procedure set out in [the internal documents of the employer].

The claimant was allowed to go abroad because his personal participation was required for the performance of the task and because it was impossible to send abroad other employees who were aware of State secrets to a lesser degree."

12. On 1 September 2006 the Supreme Court of the Russian Federation upheld the City Court's judgment on appeal