esidence is lawful but creates a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision has been given, the foreign national has to leave Russia or will otherwise be deported. The decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, No. 114-FZ of 15 August 1996, as amended on 10 January 2003 - "the Entry Procedure Act").
45. A foreign national will be refused entry into Russia if this is necessary for the purposes of ensuring the defensive capacity or security of the State, or protecting public order or health (section 27 § 1 of the Entry Procedure Act).
46. The Guidelines on checking the documents of persons crossing the border of the Russian Federation, ratified by order No. 0234 of the Federal Border Service of 4 August 2000 ("the Border Crossing Guidelines"), were not published or accessible to the public. The applicant submitted that they contained the following provisions, the authenticity of which was not disputed by the Government:
"...upon discovery of [persons whose entry into Russia is prohibited], officials of the border control shall notify them of the grounds for refusing them entry across the border, escort them to isolated premises and place them under guard, and take measures towards deportation of such persons from the territory of the Russian Federation."
B. Provisions on State liability for damages
47. The State or regional treasury is liable - irrespective of any fault by State officials - for the damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code). A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151 of the Civil Code). Non-pecuniary damage must be compensated for irrespective of the tortfeasor's fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2).
III. Relevant travaux {preparatoires}
48. The Explanatory Report to Protocol No. 7 (ETS No. 117) defines the scope of application of Article 1 of Protocol No. 7 in the following manner:
"9. The word "resident" is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose...
The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person's presence in the territory to be considered "lawful".
... [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still "lawfully" present."
49. The Report further cites definitions of the notion of "lawful residence" contained in other international instruments:
Article 11 of the European Convention on Social and Medical Assistance (1953)
"a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside ther
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