Defending human rights as a threat to national security? The perverse consequences of ignoring the legitimate aim question in Kogan and Others v. Russia

Tobias Mortier

Given Russia’s rather poor track record in terms of its protection of human rights, one might presume that the number of Article 18 violations found by the European Court of Human Rights (‘the Court’) in respect of Russia would be significant. After all, Article 18 provides protection against the misapplication of the Convention by its Contracting Parties – and accordingly serves to protect the principles of democracy and the rule of law. Judgments where a violation of this provision is established therefore attain a certain level of gravity. The list of States in respect of whom such a violation has been found is rather brief: only eight States have so far been found to have imposed restrictions onto Convention rights for motives other than the ones in pursuance of which they were asserted to have been restricted, with Poland being the newest member since the Court’s Juszczyszyn judgment (see also here). Since its inception, the Court has found such violations against Russia in the cases of Gusinskiy, Navalnyy, Navalnyy (no. 2) and Kutayev. The recent revocation of renowned human rights defender Vanessa Kogan’s residence permit brings this total to five. This blogpost provides a dissection of this judgment, giving particular attention to the Court’s assessment of the avowed and hidden aims under Articles 8 and 18.

Facts

The first applicant, Ms Kogan (‘the first applicant’), is an American citizen who lived and worked in Russia as director of Astreya, a partner NGO of the Stichting Justice Initiative which sought to conduct strategic litigation before the Court. The second applicant, her husband, is a Russian lawyer who predominantly worked on the implementation of the Court’s judgments against Russia. The third and fourth applicants are their children, with dual American and Russian nationality. The first and second applicants had participated in briefings to the Committee of Ministers of the Council of Europe on the implementation of judgments in Russia. After having been granted several employment-based visas, the first applicant obtained a three-year and five-year residence permit, in 2014 and 2017 respectively. When she applied for Russian citizenship in 2020, the migration service of the Moscow Department of the Interior (‘MVD’) rejected her application and revoked her residence permit on the advice of the Department of the Federal Security Service of the Russian Federation for Moscow and Moscow Region (‘FSB’), who alleged that she posed a ‘threat to national security’. She was subsequently ordered to leave the country within fifteen days.

Subsequent appeals against these decisions proved unsuccessful. Only during the preliminary hearing of her case before the District Court of Moscow was the applicant informed of the existence of the FSB report, on the basis of which she had been labelled a threat to national security. However, she was not granted access to this report, on the grounds that this concerned classified information. The absence of the report from the materials available to the District Court did not preclude it from finding the measures taken in respect of the applicant were proportionate, stating that the public interest in upholding the ‘socially meaningful values provided for in the Constitution’ justified the impact which the measures would have on her family life.

While the reason why she would pose a ‘threat to national security’ may not have been clarified in the domestic judgments, certain events leading up to the granting of her second residence permit and thereafter just might be able to. When the applicant was in the midst of the process to obtain her five-year residence permit, she was contacted by a representative of the FSB who asked her to provide them with all sorts of information pertaining to Astreya (which she did), as well as a list of other NGOs who exhibited ‘animosity’ toward Russia (which she explained she was unable to provide since she did not know any such NGOs). She was later again asked to hand over information concerning Astreya and its clients in exchange for a new position and financial compensation, which she also refused. Additionally, between 2019 and 2020, several State interferences with the work of Astreya and its partner organisations occurred, including raids conducted by law-enforcement authorities of NGOs’ offices and their employees’ homes, and confiscations of the organisations’ equipment. Finally, several State-supported media outlets had begun to publish defamatory statements regarding her and Astreya following the revocation of her residence permit, accusing her of having a political agenda and wanting to overthrow those in power. However, the Federal Communications Agency refused to conduct any inquiries into these.

Judgment

After confirming its previous case law in which it had stated that it had jurisdiction to examine cases against Russia despite the latter’s departure from the Council of Europe, the Court noted that the Russian government had failed to cooperate with the Court as requested. More specifically, it had not submitted any documents pertaining to the raids and searches conducted, nor had it disputed the applicant’s account of the events. Additionally, the government had not submitted the FSB report on the basis of which the applicant had been labelled a threat to national security either. The Court accordingly found a violation of Article 38, indicating that it would ‘draw appropriate inferences’ from the government’s failure to submit the requested documents (para. 54).

Next, the Court turned its attention to Article 8. Considering the significant impact of the revocation of the first applicant’s residence permit on the applicants’ family life and on the first and second applicant’s professional lives, the Court noted that the measures interfered with Article 8. It also stated that it would dispense with ruling on the lawfulness of the measures and the legitimacy of the purported aims in light of their manifest lack of necessity in a democratic society (para. 59). The Court denounced the manifest procedural deficiencies which plagued the domestic proceedings. Not only had the applicant never been granted access to the FSB report, but the domestic judgments had also at no point in the proceedings elaborated on the reasons why she was considered a threat to national security. The applicant, therefore, had never had a fair opportunity to challenge the allegations. These ‘gross procedural defects […] went beyond the permissible procedural limitations in cases of expulsion on national security grounds,’ resulting in a violation of Article 8 (para. 61).

Lastly, the Court inquired whether the applicant’s residence permit had been revoked with the ulterior motive of punishing her and her husband for her human rights-related work – and consequently, whether there had been a violation of Article 18 in conjunction with Article 8. Given that the Court had expressed its willingness to accept that the revocation of a residence permit may pursue the legitimate aim of protecting national society while dispensing on considering the legitimacy of this aim in the present case, its review at this stage effectively became a two-tiered one: (a) whether the government had acted out of ulterior motives; and (b) whether these ulterior motives predominated over the asserted aim. The Court answered both questions in the affirmative. In reaching this conclusion, it considered the potential chilling effect of the measures on other human rights defenders in Russia, the State’s failure to respond to the online publications by State-supported media outlets, the accuracy of the applicant’s recollections of the events (coupled with the State’s failure to submit any counterevidence on this point) and the overall hostile context towards civil society in Russia. In addition, the Court took particular notice of statements made by the European External Action Service and the European Union delegation at the Council of Europe. The Court also expressed doubts as to the veracity of the government’s assertions that the revocation had pursued any national security interests – but did not expressly repudiate this aim either. Overall, the Court found it sufficiently established that the domestic authorities had predominantly been led by the hidden motive of punishing Ms Kogan and her husband for their work and preventing them from continuing said work in Russia (para. 77). Russia was ordered to pay the applicants EUR 9,800 each in respect of non-pecuniary damage, as well as EUR 6,525 to cover the applicants’ costs and expenses.

Dispensing with ruling on the legitimate aim requirement: a flawed approach

The Court’s predominance test under Article 18 is a controversial one. More specifically, several critics have pointed towards its inherent risk of normalising bad faith (see here and here). In this judgment, too, Judge Serghides wrote a Concurring Opinion in which he reiterated the critique he previously had raised in his Concurring Opinion in Merabishvili v. Georgia. More specifically, he argues that the very idea that the identification of an ulterior motive might not lead to a violation of Article 18 if it were not the predominant aim pursued contravenes ‘the letter and purpose of Article 18’ (para. 3). Elsewhere I have previously expressed concern regarding the manner in which predominance is currently assessed as well (see here). However, this blogpost does not entail a discussion on the pros and cons of the predominance test. Instead, I argue that the issue, in this case, is not whether or not predominance is a concept to which the Court should adhere, but rather that predominance should not have been assessed, to begin with.

When the Court reviews a case under Article 18, its review inevitably entails two questions: (a) whether the complaint regarding the hidden motive constituted a fundamental aspect of the case; and (b) whether the allegation concerning the hidden motive was proven sufficiently. If both questions are answered in the affirmative, a violation of Article 18 will follow – unless the Court had previously also found that the interference, which was argued to have been actuated by some hidden motive, pursued a legitimate aim as well. In that case, it will only find a violation of Article 18 if this hidden motive was predominant. That is the very basic idea behind the predominance test.

To be or not to be predominant; that is not the question

When we return to the case at hand, the Court commenced its Article 18 reasoning by emphasising that the alleged hidden motive of punishing Ms Kogan and her husband for their work must have been the predominant one. The reason for its insistence on this point is the Court’s previous finding that it would operate on the assumption that the challenged interference could have pursued the legitimate aim of protecting national security. This is not uncommon; the Court often chooses to dispense with ruling on the legitimate aim requirement (as well as on the lawful basis requirement) if it thinks that more salient issues present themselves under the ‘necessary in a democratic society’ requirement (see critically here). This practice does not appear to be met with much resistance among the bench. For instance, in Karuyev v. Russia Judge Pavli even expressed his disappointment that the Court had found a violation of Article 10 on the grounds that there was no clear and foreseeable basis in domestic law for a conviction for spitting on a portrait of Vladimir Putin, instead of omitting this issue and focusing on the lack of necessity of this measure in a democratic society (para. 1). Yet, I would argue that the practice of dispensing with ruling on the legitimate aim question is flawed for the following reasons.

The practical and symbolic value of the legitimate aim requirement

Firstly, on a more general note, one must not lose sight of the role which the legitimate aim requirement plays within the broader framework of the Court’s proportionality analysis. Indeed, deficient reasoning as to the legitimate aim prong makes for a flawed proportionality assessment. The analysis following the identification of the aim pursued and the ascertainment of its legitimacy builds on these conclusions. For instance, an interference can never be proportionate in the abstract; the applicant’s interests must be outweighed by the governmental interests in pursuing that aim. Hence, when it leaves open the question of which aim was pursued (and whether this aim was legitimate), the Court effectively has to guess what interests truly were at play that urged the respondent government to impose restrictions upon the invoked Convention right. Not only will this result in imperfect reasoning, but it also adds to the trivialisation of the legitimate aim test as well.[i]

This trivialisation is all the more regrettable in light of the peculiar nature of the legitimate aim requirement. Unlike the necessity or proportionality requirements, the legitimate aim test is a categorical one; a finding that the aim in question was illegitimate is tantamount to a finding that the interference never could have been acceptable in pursuit of that aim. Conversely, a finding of disproportionality does not preclude the government from still adopting the measure in the future – just in a less restrictive fashion. When a Court strikes down an interference on account of a lack of a legitimate aim, it accordingly sends a strong signal of disapproval to the respondent State. The requirement, therefore, has a strong symbolic value to it as well, which perishes when the Court chooses to omit this step in its review.

Human rights defenders as a threat to national security

Let us now return to the case of Ms Kogan, where the Court chose to dispense with ruling on the legitimate aim requirement as well. It referenced its judgment in Gaspar v. Russia in stating that it had accepted in the past that the revocation of a residence permit might be justified for reasons of national security. Yet, at no point throughout the proceedings did the Russian government succeed at making it at least facially plausible that Ms Kogan had truly posed such a security threat. This is further exacerbated by the fact that the government failed to hand over the FSB report on the basis of which she had been labelled as such. Curiously, only a couple of paragraphs before the Court had promised it would draw inferences from the government’s failure to submit the necessary documents upon finding a violation of Article 38.  Apparently, this promise did not extend to its legitimate aim assessment; the Court’s immediate turn to predominance under Article 18 suggests that it (at least theoretically) accepted that a legitimate aim had constituted the motivation behind the challenged measures.

However, not only were the security threat allegations wholly unsubstantiated, judging by the overwhelming evidence reviewed under the Court’s Article 18 assessment, they also appear to be manifestly untrue. Even the Court itself appeared to realise this when it stated that the manifest procedural defects and the abundance of evidence in favour of the existence of the alleged hidden aim ‘cast serious doubt on the Government’s assertion that the main reason for the revocation of the first applicant’s residence permit was indeed national security interests’ (para. 74). Indeed, the aim of the protection of national security appears to have been nothing but a veil to cover the authorities’ actual, sole intention: punishing the first applicant and her husband, and removing them from the scene of human rights defenders in Russia. The total absence of any visible security concerns, the pressure exerted onto the applicant by FSB officials to hand over all sorts of information, and the raids carried out in the offices and homes of various human rights defenders in Russia, all appear to corroborate the argument that it was precisely the work of the two applicants (which also entailed several collaborations with the Court itself) that constituted the threat according to the Russian authorities. By endorsing the aim of protecting national security itself (even if only in the abstract), the Court consequently appears to accept that the first applicant – at least partially – could have been considered to pose a security threat on account of her admirable work. Surely this was not the Court’s intent – which proves yet again why it is not wise to avoid enquiring into the asserted aims by deliberately leaving the legitimate aim question open.

Conclusion

The Court has clarified on several occasions that retaliatory aims cannot constitute permissible bases for governmental action. Particularly pertaining to human rights defenders and NGOs, the Court notes that measures actuated by retaliatory motives attain significant gravity in light of the important role which these defenders and NGOs play in a democratic society (see also Kavala v. Turkey, para. 231). The Court reiterated this finding in this case too (para. 77). It is precisely because of the importance which the Court attaches to the work of human rights defenders that its conclusions in the present case feel slightly distorted. For the record, I do not wish to argue that the Court erred in finding violations of Articles 8, 18 and 38; I merely wish to suggest that, particularly with respect to Articles 8 and 18, these violations could (or should) have been established on different grounds that would have allowed the Court to really tackle the most pressing of issues under each provision. After all, the presently exhibited vagueness as to the identification and legitimacy of the aims pursued leaves important questions unaddressed and grants the respondent government too much leeway to cover up their true intentions by hiding behind sham purposes. Aims must not remain elusive or conjectural, and neither should the Court’s reasoning on them.

[i] See also Gerhard van der Schyff, Limitation of Rights: A Study of the European Convention and the South African Bill of Rights (Wolf Legal Publishers 2005) 185.