Communicated on 1 September 2020 Published on 21/09/2020

THIRD SECTION

Application no. 10845/20 Inna Viktorovna TOBOLICH against Russia lodged on 13 February 2020

STATEMENT OF FACTS

1 . The applicant, Ms Inna Viktorovna Tobolich , is a Russian national, who was born in 1977 and lives in Moscow.

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

3 . Since 2005 the applicant had worked as an operative officer in the Moscow police force. In 2012, she was granted “confidential” security clearance (Form 3) for the performance of her duties.

4 . On 29 January 2015 the Ministry of the Interior restricted the right to leave Russia for all employees, both career officers and civilian staff, who had access to “State secrets” (Directive no. 288/444). On 11 December 2015 the chief of the Moscow police required staff having Form 3 security clearance to surrender their travel passports for safekeeping to the district security departments within five days of returning from a trip abroad (Order no. 1/2085).

5 . The applicant ’ s children live with her mother in Moldova. In January 2017, the applicant, with the consent of the chief of her police station, took leave to visit them. On 28 June 2017 she was given a reprimand because she had not surrendered her travel passport within five days of returning to Russia. Her superiors were not convinced by her explanation that she needed to keep the passport in her possession in case something happened to her ailing mother or children and she needed to travel at short notice.

6 . On 22 May 2017 the applicant went again to Moldova. On 1 June 2017 the head of the human resources department informed her superiors that she had crossed the border without authorisation. An internal inquiry was launched. Upon her return to Russia on 6 June 2017, the applicant explained that she had submitted her leave request in good time and that the chief of her station had not objected to her leaving Russia. As it subsequently transpired, her leave request had been rejected but she was not aware of it.

7 . The report concluding the internal inquiry, dated 13 June 2017, found that the applicant had committed a disciplinary offence. She had not obtained the authorisation for travelling abroad and she had crossed the Russian border without authorisation. It was recommended to revoke her security clearance and to suspend or transfer her to another position until clearance had been reinstated.

8 . On 14 June 2017 the head of the Severnyy district police in Moscow suspended the applicant on account of the revocation of her security clearance (Order no. 356). On 28 June 2017 she was given a reprimand for failing to surrender her passport after returning from the second trip (Order no. 386). On 13 July 2017 she was dismissed on the grounds that she had been absent without leave (Orders no. 414 and 415).

9 . The applicant complained to a court. She considered that disciplinary measures against her had been unlawful because the legislation had restricted the right to leave Russia only for those having access to “top secret” or “secret” information while her level of access had been “confidential”.

10 . An initial judgment by a district court was quashed on the grounds that district courts were not competent to examine claims involving “State secrets”. The matter was referred to the Moscow City Court.

11 . On 24 August 2018 the Moscow City Court found that the applicant could not have been reproached for failing to inform her superiors of her planned trip abroad. She had done so fourteen days before the planned departure, and the applicable staff guidance had not established any particular form of the notification. On that ground, the City Court quashed the order concerning the revocation of the applicant ’ s security clearance. It further held that the applicant ’ s dismissal had been also unlawful. It had not been conclusively shown that the day on which she had been absent had been a working day in her work schedule. Lastly, the City Court upheld the reprimand for the failure to surrender the passport.

12 . On 11 February 2019 the Supreme Court of the Russian Federation, upon considering the appeals by the applicant and her employer, issued a new decision. On its interpretation of the staff guidance, submitting a leave request containing the indication of a planned trip abroad, as the applicant had done, had not been sufficient to discharge the obligation to obtain the consent of hierarchical superiors for leaving Russia. The applicant had not obtained consent and had been rightly disciplined for it. The Supreme Court also attached decisive importance to the fact that the work schedule on which the applicant had relied had not borne the seal of approval of the station chief. According to the schedule which did have such a seal, the applicant should have been in the office on the day on which she had been absent, and her dismissal on that ground had been justified.

13 . On 16 September 2019 a judge of the Supreme Court refused the applicant leave to appeal to the review instance.

COMPLAINT

14 . The applicant complains under Article 2 of Protocol No. 4 to the Convention that she had been disciplined for her failure to surrender her travel document and stripped of security clearance, suspended and eventually dismissed for travelling abroad without authorisation.

QUESTION TO THE PARTIES

Has there been a violation of Article 2 of Protocol No. 4 to the Convention (see Bartik v. Russia , no. 55565/00, ECHR 2006 ‑ XV; and Berkovich and Others v. Russia , nos. 5871/07 and 9 others, 27 March 2018)?