Considering the case of Zezev v. Russia (CASE OF ZEZEV v. RUSSIA, Application no. 47781/10), the European Court of Human Rights (hereinafter referred to as the Court) emphasized the importance of having national effective procedures that allow for the determination of the justification of decisions made against individuals in its decision dated June 12, 2018:
According to the facts of the case, the Applicant, whose wife and child were citizens of the Russian Federation, had applied to the competent authorities of the Russian Federation for simplified citizenship acquisition. However, his application was rejected on the grounds of posing a threat to national security:
As a result, a decision was made to deport the applicant from the country. In order to clarify the circumstances underlying the rejection, the applicant initiated processes to challenge the decision made against him:
It is noteworthy that the existence of the circumstances underlying the conclusion of posing a threat to national security was not only not subject to examination by the courts but also, being considered a state secret, was not disclosed to the applicant:
In such circumstances, the decision to deport him was viewed by the applicant as a violation of his right to respect for his family life guaranteed by Article 8 of the European Convention on Human Rights (hereinafter referred to as the Convention), as the decision separated him from his family members:
Thus, according to the first part of Article 8 of the Convention, everyone has the right to respect for their family life:
The second part of the same article defines the exceptional cases when the intervention of the state authorities of the member states of the Convention in the exercise of that right may be considered permissible:
These are cases where such intervention is prescribed by law and is necessary in a democratic society in the interest of national security, public order, or the economic well-being of the country, as well as for the prevention of disorder or crime, the protection of health or morals, or for the protection of the rights and freedoms of others.
Assessing the factual circumstances of the case in the context of Article 8 of the Convention, the court concluded that although the Convention does not guarantee the right of a foreigner to enter or reside in any country, decisions made by competent authorities against them must be in accordance with the law, necessary in a democratic society, and pursue a legitimate aim:
When it comes to migration, the right to respect for family life cannot be interpreted as the freedom of married couples to choose a place of residence in any country or as a general obligation for the member state to ensure family reunification within its territory. However, the removal of a person from a country where their family members reside can fall within the scope of the right to respect for family life guaranteed by Article 8 of the Convention:
The court also noted that in all cases where the issue of deportation of a parent without citizenship of the country is discussed, which may directly relate to the interests of the child, the competent authorities making such decisions have a direct obligation to assess the appropriateness and justification of the parent's removal from the country, thereby pursuing the best interests of the child affected by the decision:
Even in cases where national security is at risk, in order to justify the legality of the proposed intervention and its necessity in a democratic society, it is essential to ensure the possibility of verifying the grounds for the decision and the evidence supporting them by an independent body in certain procedures:
The court also stated that a person should have the opportunity to challenge the claims made by those making decisions regarding the threat to national security:
As a result of not establishing such guarantees, the police or other authorities with decision-making power may exhibit arbitrariness in the matter of interference with rights guaranteed by the Convention. (see Nolan and K. v. Russia, no. 2512/04, § 71, 12 February 2009, and Al-Nashif, cited above, §§ 123-24).
Returning to the factual circumstances of the case, the court first noted that the grounds for the decision to remove the applicant from the country were not subject to examination by national courts. Moreover, they remained undisclosed to the addressee of the decision:
In such circumstances, the court found that the national procedures for determining the justification of the decision, in light of the impact on the applicant's family life, did not sufficiently guarantee the applicant's right to respect for family life, resulting in a violation of Article 8 of the Convention.