Постановление Европейского суда по правам человека от 12.02.2009 «Дело Нолан (Nolan) и K. против России» [англ.]

egitimate aim for the purposes of that provision and was "necessary in a democratic society".

2. Justification for the interference

68. The Government claimed, firstly, that the interference was justified because the applicant's activities in Russia had posed a threat to national security. The applicant denied that claim.
69. The Court reiterates that, in assessing evidence in Convention proceedings, it is habitually guided by the principle affirmanti, non neganti, incumbit probatio (the burden of proof lies upon him who affirms, not upon him who denies). The proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In certain instances the respondent Government alone have access to information capable of corroborating or refuting specific allegations. The failure on a Government's part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant's claims (see, among other authorities, Makhmudov v. Russia, No. 35082/04, § 68, 26 July 2007; Fadeyeva v. Russia, No. 55723/00, § 79, ECHR 2005-IV; and Ahmet {Ozkan} and Others v. Turkey, No. 21689/93, § 426, 6 April 2004).
70. The justification for the interference offered by the Government in the present case was confined to the assertion that the applicant's activities had posed a threat to national security. Obviously, given the sensitive nature of the information, solely the respondent Government, and not the applicant, had access to material which would be capable of substantiating that claim. However, the Government did not submit any such material or offer an explanation as to why it was not possible to produce evidence supporting their allegation. Moreover, they consistently refused to provide the report of 18 February 2002 which had apparently been at the heart of the Russian authorities' decision to exclude the applicant from Russia on the grounds of national security, or at least to make a summary of its contents.
71. The Court further observes that no evidence corroborating the necessity to ban the applicant from entering Russia was produced or examined in the domestic proceedings. It reiterates that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive's assertion that national security is at stake. While the executive's assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of "national security" that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Liu and Liu v. Russia, No. 42086/05, § 59, 6 December 2007; Al-Nashif v. Bulgaria, No. 50963/99, §§ 123 - 124, 20 June 2002; and Lupsa v. Romania, No. 10337/04, §§ 33 - 34, ECHR 2006-VII).
72. In the instant case, counsel acting for the Federal Security Service in the domestic proceedings referred to the report of 18 February 2002 but did not make specific submissions on the factual circumstances underlying its findings or the nature of allegations of unlawful conduct on the part of the applicant, if such were indeed contained in the report. The Moscow Regional Court at first instance and subsequen



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