DISSENTING OPINION OF JUDGE KOVLER

In the previous case of Liu v. Russia (no. 42086/05, 6 December 2007) I voted without any hesitation in favour of finding that in the event of the deportation order against the first applicant being enforced, there would be a violation of Article 8 of the Convention. The main reason was that the order for the first applicant ’ s deportation was not attended by sufficient safeguards against arbitrariness. The failure of the State agencies to disclose the relevant information to the courts deprived the latter of the power to assess whether the conclusion that Mr Liu constituted a danger to national security had a reasonable basis in the facts.

The annulment of the deportation order after the Court ’ s judgment became final and the re-examination of the application for a residence permit with sufficient procedural guarantees radically changed the first applicant ’ s situation and provided sufficient safeguards against arbitrariness despite the fact that the outcome of the new set of proceedings was unfavourable to the first applicant.

The Court has reiterated on many occasions that any interference with an individual ’ s right to respect for his private and family life will constitute a breach of Article 8, unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2, and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought to be achieved (see, among other authorities, Slivenko v. Latvia [GC], no. 48321/99, § 99, ECHR 2003-X). The Court reaffirms in this case that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. It also reiterates that decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see paragraph 77 of the judgment with relevant references).

A. Whether the interference was “in accordance with the law”

The domestic authorities based their decisions on two legal provisions, namely section 7 § 1 (1) of the Foreign Nationals Act, which provided that a residence permit could be refused if the foreign national posed a threat to the security of the Russian Federation or its citizens, and Article 18.8 of the Administrative Offences Code, which provided that a foreign national living in Russia without a valid residence permit could be administratively removed from Russia. Thus, the refusal to grant the first applicant a residence permit and the administrative removal order had a basis in domestic law.

The Court has consistently held that the expression “in accordance with the law” does not merely require that the impugned measure should have a basis in domestic law but also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. The law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to the impugned measures. In addition, domestic law must afford a measure of legal protection against arbitrary interference by public authorities with the right s guaranteed by the Convention (see Lupsa v. Romania , no. 10337/04, §§ 32 and 34, ECHR 2006- VII ; Al ‑ Nashif v. Bulgaria , no. 50963/99, § 119, 20 June 2002; and Malone v. the United Kingdom , 2 August 1984, §§ 67 and 68, Series A no. 82).

The Foreign Nationals Act and the Administrative Offences Code had been officially published and were accessible to the applicants. They define the circumstances in which an application for a residence permit can be rejected and administrative removal can be ordered. In particular, the Acts provide that such measures can be taken against a foreign national if he presents a national security risk or unlawfully resides in Russia . The Foreign Nationals Act also provides that the security services must inform the authority responsible for issuing residence permits of any circumstances within their knowledge which might warrant refusal of a residence permit. Although it is true that Instruction no. 0300, “On organisation of the activities of the Federal Security Service in respect of the examination of materials concerning residence permits for foreign nationals”, has not been published, this fact is not sufficient to render domestic law inaccessible or unforeseeable. The Instruction seems to be a purely technical document describing the internal organisation of the work of the security services without conferring on them any new powers not already provided for by the publicly accessible Foreign Nationals Act. The Court could therefore have considered that the relevant Russian legal provisions were sufficiently accessible to satisfy the requirements of Article 8 § 2.

Further, the Foreign Nationals Act leaves the authorities a wide degree of discretion in determining which acts constitute a threat to national security. However, a law which confers discretion is not in itself inconsistent with the requirement of “foreseeability” (see Olsson v. Sweden (no. 1) , 24 March 1988, § 61, Series A no. 130). This requirement does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to deport an individual on national security grounds. At the same time, it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must provide for sufficient procedural safeguards to ensure that the discretion left to the executive is exercised without abuse (see Al-Nashif, cited above, §§ 121-124).

The issue of procedural safeguards against abuse under the Convention ’ s “quality of law” requirements overlaps with similar issues analysed in the examination of the decision-making process by means of the proportionality test under Article 8 § 2.

B. Whether the interference pursued a legitimate aim

The Court is prepared to accept the Government ’ s argument that the measures taken against the first applicant pursued the legitimate aims of protection of national security and prevention of disorder and crime (see paragraph 80 of the judgment), but at the same time, in contradiction with that acceptance, concludes that the domestic courts explicitly refused to balance the different interests involved (see paragraph 81).

C. Whether the interference was “necessary in a democratic society”

In assessing the question of necessity, the Court could have had regard to the various criteria set out in the judgment of Ãœner v. the Netherlands ([GC], no. 46410/99, § § 57-58 , ECHR 2006 ‑ XII ).

The Court notes at the outset that the offence for which the first applicant was expelled consisted in unlawfully residing in Russia without a valid visa or residence permit (see paragraph 83 of the judgment ) . It further notes that the first applicant ’ s residence became unlawful after the domestic authorities rejected his application for a residence permit, relying on confidential information from the Federal Security Service that he presented a national security risk.

It is important to bear in mind in this connection that in the present case the issue of the risk to national security was examined by domestic courts at two levels of jurisdiction, that is the Khabarovsk Regional Court and the Supreme Court. The procedural defects indicated in the Court ’ s judgment of 6 December 2007 were corrected during the fresh examination of the applicants ’ case. In particular, the classified materials from the Federal Security Service were disclosed to the domestic courts. It is of decisive importance that the judges were able to study the confidential material from the security services and had the power to quash the decision refusing a residence permit to the first applicant if they considered that decision to be unlawful. It is also significant that the applicants attended the hearings, were informed of the contents of confidential documents after they had undertaken not to disclose that information and were given an opportunity to present their case before the courts.

Given that the decision to refuse a residence permit to the first applicant was subject to adversarial proceedings before independent domestic courts competent to review the reasons for the decision and the relevant evidence and that the applicants were given an opportunity to challenge the security service ’ s assertion that the first applicant constituted a danger to national security, it is evident that sufficient procedural guarantees were afforded in the present case.

Balanced against the important public interests of protecting national security and preventing disorder and crime was the applicants ’ right to respect for their family life. One can acknowledge that the refusal to grant a residence permit to the first applicant and his subsequent administrative removal to China greatly affected his relationship with his wife and children. It is true that the second, third and fourth applicants would probably experience some difficulties and inconveniences in settling in China . In any event, even if they do not wish to follow the first applicant to China , there is nothing to prevent the children, accompanied by their mother, from visiting the first applicant in that country, to the extent their financial situation would allow. Moreover, regular contact between the applicants would be possible through letters and telephone calls.

Against this background, it is difficult to find that the national authorities of the respondent State acted arbitrarily or otherwise overstepped their margin of appreciation when deciding to expel the first applicant. Given the importance of the public interests involved and the wide margin of appreciation open to the States in matters of national security, I believe that the first applicant ’ s expulsion must be considered to have been justified and that, notwithstanding the resulting implications for his relationship with his wife and children, it cannot be regarded as disproportionate to the legitimate aim of protecting national security. In other words, the refusal to grant the residence permit to the first applicant and his subsequent administrative removal from Russia struck a fair balance between the interests involved and could reasonably have been considered “necessary” within the meaning of Article 8 § 2 of the Convention.

Lastly, taking into account the fact that in the 2007 judgment the Court awarded the first and second applicants jointly 6,000 Euros in respect of non-pecuniary damage, the finding of a violation in relation to practically the same issue in this second case would in itself have been sufficient.