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

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b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted."
Section II of the Protocol to the European Convention on Establishment (1955)
"a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it;
b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations."
50. The Report clarifies the notion of "expulsion" as follows:
"10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised.
11. Paragraph 1 of this article provides first that the person concerned may be expelled only "in pursuance of a decision reached in accordance with law". No exceptions may be made to this rule. However, again, "law" refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules."

THE LAW

I. The Government's compliance with Article 38
of the Convention

51. The Court observes that on 1 March 2005, when communicating the application to the Government, it asked them to produce a copy of the report by the Federal Security Service dated 18 February 2002, for the purpose of clarifying the factual grounds for the applicant's exclusion from Russia. Mindful of the sensitive nature of the report, it reminded the Government of the possibility of restricting public access to the document in accordance with Rule 33 §§ 1 and 2 of the Rules of Court. The Government refused to produce the report on the ground that Russian law did not lay down a procedure for communicating information classified as a State secret to an international organisation.
52. At the admissibility stage the Court reiterated the request for a copy of the report of 18 February 2002 and also put questions to the parties as regards the Government's compliance with their obligations under Article 38 of the Convention, the relevant part of which reads as follows:
Article 38
"1. If the Court declares the application admissible, it shall
(a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities..."
53. In their observations on the merits of the case, the Government declined once again to submit the report, stating that it contained operative and investigative information about the "unlawful activity of P.F. Nolan [in] the territory of the Russian Federation". That information was a State secret and could not be made available to the Court. The Government claimed that their refusal was compatible with the duties of the State and derived from the provisions of Article 10 of the Convention.
54. In his statement to the Court dated 10 November 2005, Mr K., the applicant's representative in the domestic proceedings, stated that he was aware of the contents of the report of 18 February 2002 but, bound by the non-disclosure undertaking, was unable to inform the Court of its contents.
55.



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