Communicated on 8 February 2021 Published on 1 March 2021

THIRD SECTION

Application no. 58505/18 Thomas NILSEN against Russia lodged on 24 November 2018

STATEMENT OF FACTS

The applicant, Mr Thomas Nilsen, is a Norwegian national who was born in 1968 and lives in Hesseng. He is represented before the Court by Mr N. Olenichev, a lawyer practising in St Petersburg.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant, a Norwegian journalist, worked in Russia as a correspondent for The Independent Barents Observer AS , an online newspaper covering the Barents Region and the Arctic, based in Kilkines, Norway. The newspaper provided information and opinions across the borders of the regions, including the North West of Russia, and published articles criticising local authorities.

The applicant ’ s work in Russia was duly authorised: he had a Russian multiple-entry visa issued on 11 April 2016 and valid until 30 April 2021 and a special correspondent ’ s identity card no. C055108, issued by the Press and Information Department of the Russian Ministry of Foreign Affairs and valid until 30 April 2017.

(a) The exclusion order against the applicant

On 8 March 2017 the applicant was returning to Russia from Norway via the border crossing at Borisoglebsk border station in the Murmansk Region. The Russian officials there did not allow the applicant to cross the border, stating that the local authorities had taken a decision to ban his entry into the country (“the exclusion order”). Neither a copy of the decision, nor information on the State authority which had issued it, were given. The applicant was not informed of the order ’ s requirements, its grounds nor its duration.

The applicant was handed a “notice” ( уведомление ) containing a general statement to the effect that his entry into Russia was prohibited under Article 27 of the Entry and Leave Procedures Act (see below).

On 22 March and 5 April 2017 the applicant sent requests to the Russian Federal Security Service (the FSB) and the Ministry of Foreign Affairs asking to be informed about which authority had taken the decision to exclude him from Russia, its date and number, the factual and legal basis for the decision, its purpose and the duration of the ban. He also asked to be provided with a copy of that decision. The Ministry of Foreign Affairs refused to provide the requested information. The FSB replied that they had forwarded his request to the Karelia Department of the FSB.

On 6 September 2017 the FSB informed the applicant that the exclusion order “banning [the applicant ’ s] return to the Russian Federation until November 2021 was taken by the Federal Security Service in accordance with Article 27 § 1 of “Entry and Leave Procedures Act”. No other information was given. Only at the hearing concerning his appeal against the order did the applicant find out that it had been issued on 22 November 2016 (see below).

(b) The appeals against the exclusion order

On 18 September 2017 (in the documents submitted the date was also referred to as 7 October 2017) the applicant brought proceedings against the FSB in the Meshchanskiy District Court in Moscow asking for the exclusion order to be declared unlawful. He stated , in particular, that the sanction had been based on undisclosed information, that there was no factual basis for that measure and that he had not committed any acts threatening Russia ’ s national security. The applicant also stressed that the exclusion order violated his right to personal life and his right to freedom of expression as it had made it impossible for him to stay in Russia and carry out his professional activity as a journalist there.

The applicant ’ s complaint was forwarded to the Moscow City Court, as the domestic regulations stipulated that the courts at regional level were to examine cases involving State secrets.

On 4 December 2017 the Moscow City Court examined the complaint and rejected it on procedural grounds, that is for the applicant ’ s failure to comply with the time-limit for lodging the appeal. At the same time, it stated that the exclusion order had been issued within the FSB ’ s competence and in compliance with the relevant procedure. On 8 March 2017 the applicant had been informed about the order and, therefore, he should have appealed against it within the prescribed time-limit, that is by 8 June 2017. As for the applicant ’ s allegation that neither he nor his representative had been familiarised with the contents of the order, despite his direct requests to this end, it was “impossible” to allow him to familiarise himself with the document as it contained a State secret. The applicant ’ s representative was provided only with a copy of the operative part of the court ’ s decision.

The applicant appealed against the decision to the Administrative Cases Chamber of the Russia Supreme Court (the Supreme Court). He stated , in particular, that he was not familiar with the entire contents of the Moscow City Court ’ s decision, which made it impossible to lodge a proper appeal against it. The applicant further stated there was no proof of his being a threat to Russia ’ s national security and that the Moscow City Court had failed to establish the factual circumstances which had served as the basis for the exclusion order. Furthermore, when he had been informed of the exclusion order at the border crossing, the “notice” which had been given to him had not contained even the most basic information, such as the authority which had issued the decision, the date, number and place of its issue and the name of the official who had signed it. Without this basic information, he could not lodge an appeal against the exclusion order. Only on 6 September 2017 had he found out that the order had been issued by the FSB, when the latter had informed him about it, yet again without providing a copy of the actual decision. The applicant stressed that in his opinion, the exclusion order had been issued to deter his journalist activity and preclude him from exercising his profession in Russia.

On 25 May 2018 the applicant ’ s lawyer unsuccessfully requested that the Supreme Court allow him to participate in an in camera examination of the appeal.

On 25 May 2018 the Supreme Court examined the applicant ’ s appeal in camera, without the applicant ’ s lawyer being present, and rejected it as unsubstantiated and procedurally flawed. It stated that the FSB ’ s decision of 22 November 2016 (the exclusion order) had been lawful and had been issued within its competence. The applicant, despite being informed of the time and the place of the hearing of his appeal, had failed to attend. As for the applicant ’ s explanations concerning his inability to comply with the deadline for lodging the appeal against the exclusion order due to the lack of basic information concerning its origins, the court stated as follows:

“... the fact that the applicant had missed, without a reasonable excuse, the time ‑ frame for lodging the appeal with the court, could not lead to annulment of that [impugned] decision, as, most importantly, his appeal had been rejected as unsubstantiated and in view of the lawfulness of the decision to ban his entry into the Russian Federation ...”

On 11 October 2018 a judge of the Supreme Court refused to transfer the applicant ’ s further appeal for examination by the Presidium of the Supreme Court via the supervisory review procedure.

For a summary of the relevant domestic law and practice see Liu v. Russia (no. 2), no. 29157/09, §§ 45-52, 26 July 2011.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the exclusion order issued against him on national security grounds violated his right to respect for his private life and that the domestic courts had failed to examine the basis for the sanction against him and balance the interests involved. Under Article 10 of the Convention, he complains that the exclusion order interfered with his professional activities as a journalist and therefore violated his right to freedom of expression. The applicant further complains that the exclusion order was issued in breach of the guarantees of Article 1 of Protocol No. 7 to the Convention .

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right under Article 8 of the Convention in conjunction with Article 10 of the Convention, as alleged by the applicant? Was the issue of the exclusion order against him related to/caused by his professional activities as a journalist in Russia?

- Was the classified information from the Federal Security Service disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in that material? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against the applicant? Did the applicant have an opportunity to have witnesses questioned or present other evidence?

- The Government are invited to clarify the motives and factual grounds for the applicant ’ s exclusion from Russia. They are invited to produce a copy of the conclusion of the Federal Security Service of 22 November 2016 concerning the applicant. The Court notes that access to this document may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.

- When and how was the applicant informed of the exclusion order on 8 March 2017? When was he informed of the authority which had issued the order, its number and the date of its issue and other information enabling him to appeal against this sanction within the prescribed time-limit?

- What was the scope of review of the domestic courts which examined the applicant ’ s appeals against the exclusion order? Was the judicial review limited to ascertaining whether the order had been delivered in accordance with the procedure prescribed by law and , in particular, whether the material which formed its basis had been issued within the competence of the Federal Security Service? Was it within the courts ’ competence to verify whether the exclusion order was based on genuine national security grounds and whether the executive was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard? Did the courts make a balancing exercise between the need to protect national security and the applicant ’ s right to respect for his private life?

2. Was the applicant “an alien lawfully in the territory of the respondent State” in the meaning of Article 1 § 1 of Protocol No. 7? Was the decision to exclude him equivalent to “expulsion” in the meaning of that provision? Assuming the applicant was a lawfully resident alien, in whose respect an expulsion order was made, was the decision to expel him reached in accordance with law and the procedural requirements of Article 1 § 1 of Protocol No. 7 (see Muhammad and Muhammad v Romania [GC], no. 80928/12, §§ 129 and 133-34, 15 October 2020)? If not, was that decision necessary within the meaning of Article 1 § 2 of Protocol No. 7? (See, for example, Nolan and K. v. Russia, no. 2512/04, §§ 109-13, 12 February 2009).