Application no. 50963/99
by Daruish AL-NASHIF and Others
The European Court of Human Rights (Fourth Section), sitting on 25 January 2001 as a Chamber composed of
Mr G. Ress, President,
Mr A. Pastor Ridruejo,
Mr L. Caflisch,
Mr J. Makarczyk,
Mr V. Butkevych,
Mr J. Hedigan,
Mrs S. Botoucharova, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced on 15 September 1999 and registered on 16 September 1999,
Having regard to the partial decision of 16 December 1999,
Having regard to all written submissions of the parties,
Having regard to the parties’ oral submissions at the hearing on 25 January 2001,
Having deliberated, decides as follows:
The first applicant, Mr Daruish Auni Al-Nashif, was born in 1967 in Kuwait. He is a stateless person of Palestinian origin. Following his deportation from Bulgaria in July 1999 he now lives in Syria. The second and the third applicants, Abrar and Auni Al-Nashif, are the first applicant’s children. They were born in Bulgaria in 1993 and 1994 respectively. They are of Bulgarian nationality and lived in the town of Smolyan, Bulgaria, with their mother, Mrs Hetam Ahmed Rashid Saleh, until July 2000.
All applicants are represented before the Court by Mr Y. Grozev and Ms K. Yaneva, lawyers practising in Sofia.
The respondent Government are represented by their agent Ms G. Samaras, Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first applicant’s background, family and his residence status in Bulgaria
The first applicant describes his personal circumstances as follows. His father, who died in 1986 in Kuwait, was a stateless person of Palestinian origin. His mother is a Syrian citizen. Despite the fact that he was born in Kuwait and that his mother is a Syrian citizen, the first applicant cannot acquire Kuwaiti or Syrian nationality because in both countries only offspring of male nationals of those States may obtain Kuwaiti or Syrian citizenship.
The first applicant lived in Kuwait until the age of 25. He obtained there high school education and a college degree in electronics. In 1992 he married Mrs Hetam Saleh. The parties have not stated the nationality of Mrs Saleh, whose parents live in Jordan. It appears undisputed, however, that the second and the third applicants, her children, became Bulgarian nationals pursuant to a provision which bestows Bulgarian citizenship on children born in Bulgaria to stateless parents.
The Government submit that there is no proof of a legally valid marriage between Ms Saleh and the first applicant.
Mr Al-Nashif has two sisters who live in Syria. His mother too lives in Syria, in the city of Hama. He also has a brother who lived in Kuwait at least until 1994 and resides in Bulgaria since 1998, where he married a Bulgarian national.
The first applicant submits that after the Gulf War many Palestinians were expelled from Kuwait as Palestinian leaders had supported the Iraqi invasion in 1990. He left Kuwait with Mrs Saleh on 16 August 1992 and travelled to Syria and then, on 20 September 1992, to Bulgaria. The first applicant submits that he was in search of a country to settle in. He could not stay in Syria as he was unable to provide for the livelihood of his family there. The choice of Bulgaria was made because of the existing job opportunities, the relatively easy procedure for obtaining legal status, and the fact that the family had friends of Palestinian origin living there.
Mr Al-Nashif and Mrs Saleh arrived in Bulgaria on 20 September 1992. The first applicant was in possession of a Syrian identity document for stateless persons, valid until 1993, which he later renewed at the Syrian Embassy in Sofia. In an application form for a residence permit, he indicated Hama, Syria, as his place of residence.
On an unspecified date shortly after his arrival, the first applicant obtained a temporary residence permit. He initially resided and worked in Sofia, where the second and the third applicants were born in 1993 and 1994. Mr Al-Nashif ran together with other persons a beverage production business.
In February 1995 the first applicant obtained a permanent residence permit.
In the end of 1995 he and Mrs Saleh, together with their children moved to the town of Smolyan, a town of about 34,000 inhabitants in Southern Bulgaria. There the first applicant ran a butcher shop and a beverage production unit until his arrest in July 1999. Between November 1998 and April 1999 he also taught Islamic classes.
In February 1995, the fist applicant contracted a Muslim religious marriage with Ms M., a Bulgarian citizen. Under Bulgarian law that marriage has no legal effect.
The first applicant submits that Ms M. lived in Sofia with her mother and that he provided financial support for both of them. He also submits that in the first five or six months of 1996 Ms M. moved to Smolyan. She often joined Mr Al-Nashif during his business trips to towns in Bulgaria.
The first applicant states that he lived “on a permanent basis” with his wife Hetam Saleh and their two children, the second and the third applicants. He submitted copies of two affidavits, made in June 2000 by Ms Saleh and by his sister-in-law, the wife of his brother who resides in Bulgaria since 1998, both confirming that Mr Al-Nashif lived in Smolyan with Ms Saleh and that he was a caring husband and father.
The Government state that Mr Al-Nashif lived together with Ms M. “for many months”.
In Mr Al-Nashif’s submission, Ms M. suffered from a mental disturbance of which he was initially not aware. In December 1996 she was hospitalised in a psychiatric clinic. The first applicant states that he visited her regularly there and continued to see her occasionally after her discharge and until their relationship ended in early 1998. He explains that he cannot present any documentary proof in that respect for moral and legal reasons.
2. The revocation of the first applicant’s residence permit
On an unspecified date in 1999, the Regional Prosecutor’s Office (окръжна прокуратура) in Smolyan received information that the first applicant was teaching religion without authorisation and opened file no. 18/99. Prosecutor Krumov instructed the local police to conduct an inquiry.
The local police in Smolyan, in a report of 18 March 1999 to the Identity Papers and Passport Regime Department (Направление “Документи за самоличност и паспортен режим”) (“the Passport Department”) of the National Police Directorate at the Ministry of the Interior, proposed that the first applicant’s residence permit be revoked.
On 26 March 1999 the Prosecutor’s Office in Smolyan transmitted file no. 18/99 to the local police recommending the fist applicant’s expulsion.
On 19 April 1999 the Passport Department issued an order (“Order no. 63552”) revoking the first applicant’s permanent residence permit. The order stated that it was based on Section 40 § 1(2) and Section 10 § 1(1) of the Aliens Act (Закон за чужденците), which provide for the revocation of the residence permit of a foreigner who “poses a threat to the security or the interests of the Bulgarian State”. No further details were mentioned. The order was transmitted to the Smolyan police with the instruction to inform the first applicant and to allow him 15 days for leaving the country.
Order no. 63552 was served on the first applicant on 27 April 1999. He was not given any additional information.
On 30 April 1999 two national newspapers, Duma and Monitor, published articles explaining that the first applicant did not have permission to teach the Muslim religion, that he had taken part in an unauthorised religious seminar in 1997 and that he was linked to “Muslim Brothers”, a fundamentalist organisation.
In May and June 1999 the local Muslim religious leader in Smolyan and the Chief Mufti of the Bulgarian Muslims filed with the Ministry of the Interior and with other institutions letters of support to the first applicant’s appeal. They confirmed that Mr Al-Nashif had been teaching with their authorisation, and in full conformity with Section 21 § 5 of the Statute of the Muslim religious denomination, which in turn had been approved by the Council of Ministers. The Chief Mufti also stated that the police in Smolyan had made defamatory statements to the press, falsely portraying Mr Al-Nashif as a dangerous terrorist connected with a fundamentalist organisation. The local Muslim religious leader in Smolyan stated, inter alia, that the measures against Mr Al-Nashif constituted “a demonstration of, and incitement to, anti-Islamic and xenophobic tendencies”.
3. The first applicant’s detention and deportation; subsequent developments
On 9 June 1999 the National Police Directorate issued orders nos. 503 and 504 for the first applicant’s deportation, his detention and his exclusion from Bulgarian territory.
Order no. 504 provided that the first applicant was to be deported on the basis of Section 42 of the Aliens Act. It was further ordered that, in accordance with Section 44 § 4 of the Aliens Act, the first applicant was to be placed at the Temporary Adults’ Placement Centre (Дом за временно настаняване на пълнолетни лица) in Sofia. Order no. 504 finally stated that pursuant to Section 47 § 1 of the Aliens Act it was not subject to appeal. Order no. 503 prohibited the first applicant’s re-entry on Bulgarian territory.
The two orders did not state any reasons.
They were served on the first applicant on 10 June 1999 in Smolyan, at the premises of the local police, in the presence of his lawyer. He was not given further details on the reasons underlying the measures against him. He was immediately arrested and transferred to the detention centre in Sofia.
On the same day the Ministry of the Interior issued a press release announcing the orders for the first applicant’s deportation and exclusion. It stated, inter alia:
“In 1995 Mr Al-Nashif undertook steps … with the aim to open an Islamic religious study centre. That provoked an important negative public reaction, reflected in the media, and the interference of the ... State organs prevented the realisation of the project.
In 1997 an Islamic study seminar was held in Narechenski Bani with Mr Al-Nashif’s active participation. Those activities of the organisers, including Mr Al Nahsif, were considered unlawful and were therefore terminated by the police. [The organisers and Mr Al-Nashif] were warned that they cannot engage in such activities without permission and licence as required by law.
In the end of 1998 and the beginning of 1999 it became known that Mr Al-Nashif was teaching the Koran to … minors, organised in groups of 10-15 children, with the financial assistance of the company …[illegible]. An inquiry was undertaken, which disclosed that Mr Al-Nashif performed activities for which he had no permission and qualification. Therefore, and under … the Aliens Act, his residence permit was withdrawn … Orders for his deportation and exclusion were issued … [and] served on 10 June 1999 … Al-Nashif was transferred to the [detention centre] in Sofia and will be deported…”
The conditions at the detention centre, which is located in the proximity of Sofia airport, were equivalent to prison conditions. Inmates were held permanently behind bars and could leave their cells for a daily one-hour walk and also for the time necessary to use the toilet, every morning and evening.
Mr Al-Nashif was detained there for 26 days in complete isolation. Despite numerous requests from his lawyer, human rights groups and representatives of the Muslim community, no visitor was allowed to meet him.
Following the first applicant’s arrest on 10 June 1999 the competent authorities observed that he was not in a possession of a document valid for international travel. The Government submit that he concealed his Syrian identity document. The first applicant states that he sent it to his mother in Syria. On 14 June 1999 the Passport Department wrote to the Bulgarian Foreign Ministry requesting its assistance for the issuance of a laissez-passer to the first applicant from the Syrian Embassy in Sofia. The Syrian Embassy issued that document on 28 June 1999. On 1 July 1999 the Passport Department contacted Balkan Bulgarian Airlines. On 4 July 1999 the first applicant was deported from Bulgaria. He was brought to the airport and put on the first available direct flight to Damascus.
The first applicant submits that he has been unable to find a job in Syria and to continue supporting his family who stayed initially in Bulgaria. His wife, Ms Saleh, had no income in Bulgaria. For these reasons in July 2000 Ms Saleh, together with the second and the third applicants, left Bulgaria. They went initially to Syria, where they stayed for a month with Mr Al-Nashif, but then went to Jordan, to the home of Ms Saleh’s parents, as there was no place for them to stay in Hama, Syria, where Mr Al-Nashif has been living since his deportation. Mr Al-Nashif went to Jordan on a one-month visa and on 5 September 2000 travelled back to Syria. He has no legal possibility to remain in Jordan.
4. The attempts of the first applicant to challenge the measures against him
(a) Appeal against order no. 63552
On 4 May 1999 counsel for Mr Al-Nashif submitted appeals against order no. 63552 (the revocation of residence order) to the Supreme Administrative Court (Върховен административен съд) and to the Ministry of the Interior.
The latter appeal was rejected on 1 June 1999 by the National Police Directorate at the Ministry of the Interior. The decision stated that in accordance with Section 47 § 1 of the Aliens Act, an order concerning a matter of national security was not subject to review.
The appeal to the Supreme Administrative Court was transmitted by decision of the court to the Ministry of the Interior with instructions to complete the case-file. Thereafter it was transmitted to the Sofia City Court (Софийски градски съд), which was competent to deal with it.
On 28 June 1999 the Sofia City Court, sitting in camera, granted Mr Al-Nashif’s lawyer’s request for a stay of execution. The court noted that orders issued under the Aliens Act were not subject to judicial appeal if they directly concerned issues of national security. The court found, however, that the evidence submitted to it by the Ministry of the Interior did not support the allegation that the first applicant posed a threat to national security or to the national interests. In these circumstances the court considered that the appeal could not be declared inadmissible at that stage, the holding of a hearing being necessary. Pending such hearing it was appropriate to stay the execution of order no. 63552 to avoid an infringement of the first applicant’s rights.
On 30 June 1999 the Passport Department filed an objection with the Sofia City Court against its ruling of 28 June 1999 and submitted a “certificate” no.2701/30.6.99 which stated that Mr Al-Nashif “had committed acts against the national security and the interests of the Republic of Bulgaria, consisting of unlawful religious activity on the territory of the country encroaching on the national interests and the rights of the religious, ethnic and minority groups in the conservation of the national and cultural values and traditions”.
On 1 July 1999 the Sofia City Court, sitting in camera, reversed its ruling of 28 June 1999 and rejected the first applicant’s appeal against order no. 63552. It noted that the Passport Department had certified that Mr Al-Nashif had committed acts against the national security. The court also noted that the Passport Department had classified these acts as falling under Section 10 § 1(1) of the Aliens Act. It followed that order no. 63552 concerned issues of national security and was not subject to judicial appeal.
Counsel for the first applicant learned about the rejection of her appeal on 26 July 1999. On 28 July 1999 she appealed to the Supreme Administrative Court. These proceedings ended by a judgment of the Supreme Administrative Court of 4 April 2000, which found that orders issued under section 40 § 1(2) in conjunction with section 10 § 1(1) of the Aliens’ Act were not subject to appeal and needed not be reasoned. They should merely state the legal provision on which they were based.
(b) Appeals against detention
On 17 June 1999 the first applicant’s lawyer appealed to the Sofia City Court against the detention of Mr Al-Nashif. She relied on Article 5 § 4 of the Convention. On an unspecified date the President of the Sofia City Court ruled that the appeal was inadmissible.
On 19 June 1999 counsel for the first applicant complained to the competent prosecution authorities against the detention of Mr Al-Nashif and stated that she had been refused access to her client. On 27 July 1999 the competent prosecution authority dismissed the appeal. It found that the police had acted within their powers.
(c) Appeals against order no. 504
On 18 June 1999 counsel for the first applicant appealed to the Sofia City Court against order no. 504 (the deportation and detention order). Counsel stated, inter alia, that the first applicant’s appeal against the revocation of his residence permit (against order no. 63552) was still pending, and that he never sought to abscond and appeared voluntarily at the Smolyan police station when summoned. She again relied on Article 5 § 4 of the Convention and Article 13 ICCPR and also requested a stay of execution.
These proceedings have not resulted in any decision. On 7 September 1999 the Passport Department filed an answer requesting the rejection of the appeal. There has been no hearing in the case.
(d) Other complaints
On 11 June 1999 the first applicant’s lawyer complained to the Ministry of the Interior, the Chief Public Prosecutor (Главен прокурор) and other institutions. She claimed violations of, inter alia, Article 8 of the Convention and Article 13 of the International Covenant on Civil and Political Rights (ICCPR).
5. Mr Al-Nashif’s religious activities
(a) Undisputed facts
In August 1997 Mr Al-Nashif took part in a religious seminar in Narechenski Bani. The seminar was attended by several Bulgarian Muslim religious leaders of national and regional level, including the person who in November 1997 was elected to the post of, and then registered by the competent Governmental agency as, Chief Mufti of the Bulgarian Muslims. At a certain point during the seminar, the police arrived and took away printed material and videotapes used at the seminar. No relevant criminal proceedings against any participant at the seminar have ever been brought.
In November 1998 the first applicant started teaching religious classes. They took place every Saturday and Sunday between 4 p.m. and 6 p.m. in the building of the District Muslim Organisation in Smolyan, and were attended by Muslim children and occasionally by their parents. The classes were organised together with the board of the Muslim religious community in Smolyan. On 15 September 1998 the board had invited Mr Al-Nashif to teach a course on the Islamic religion to children and their parents. The board’s decision stated that the first applicant was suitable for the job as he knew the Bulgarian language and had a good reputation. On 5 November 1998 the District Mufti Office (районно мюфтийство) issued to the first applicant a certificate stating that he was authorised to preach on the territory of the Smolyan district in accordance, inter alia, with the Statute (Устав) of the Muslim religious denomination in Bulgaria and the decisions of the Supreme Muslim Council (Висш мюсюлмански съвет). The certificate was later confirmed by the Chief Mufti of the Bulgarian Muslims.
(b) Allegations of the respondent Government
(i) Alleged project for the opening of an Islamic study centre in 1995
The Government allege that shortly after his arrival in Smolyan in 1995 the first applicant, together with local Muslims, sought to organise an Islamic study centre, that he rented a house for that purpose, that his plans provoked a negative public reaction and that after having established through an inquiry that the requirements of the Religious Denominations Act had not been met, the competent authorities prevented the realisation of the project. There was allegedly a danger that the Islamic centre would propagate extremist views. Mr Al-Nashif was orally warned against performing unlawful religious activities.
In support of the above statement the Government submit copies of several newspaper articles and four declarations, one of which signed by 65 inhabitants of Smolyan, protesting against the opening of an Islamic centre in town. The Government have not submitted any information pertaining to the alleged inquiry undertaken by the competent authorities or the alleged requirements of the Religious Denominations Act that had not been met.
The first applicant submits that he intended to open a computer training centre, but abandoned his plans after having met a hostile reaction by people who considered that the computer centre would disguise religious courses.
(ii) Alleged aggressive proselytism of Islamic fundamentalism
The Government allege that the first applicant sought to impose fundamentalist Islam on others through the use of force and threats.
In support of that allegation the Government submit a statement by Ms M., the person whom the first applicant married in a Muslim religious ceremony, written by her on 2 September 1996. On that day Mr Al-Nashif locked her up in her room in a hotel where they were staying during a trip to Pleven. Ms M. called the police. She and the first applicant were brought to the police station, where they submitted written explanations and were then released. No charges were brought against Mr Al-Nashif on that occasion. He submitted that he had locked the door as Ms M. had been in a depression and could have hurt herself.
In her statement to the police Ms M. wrote that the first applicant had told her that she should believe in Mohamed or burn in Hell, but she had replied that she loved Jesus Christ. The first applicant had also told her to dress as a Muslim woman. She further stated that she had read in the local press about the threat of fundamentalism in Smolyan. She knew that people with black briefcases full of 100 dollar notes were entering Bulgaria with the purpose to spread Islam, brainwash the Bulgarians and do the “Jihad - death to Christians”. She knew that they were using “bombs, guns, sedatives and other inadmissible means in order to smuggle into the country illegal [copies of the] Koran, drugs, and more”.
(iii) Alleged fundamentalist activities at the Narechenski Bani seminar
The Government state that the seminar was organised under the auspices of the Irshad foundation, which is allegedly known as one of the disguised of the Muslim Brothers, a fundamentalist organisation. The police considered the seminar unlawful and dangerous for national security. The confiscated printed and video material disclosed preaching of “religious and ethnic extremism”. The police put an end to the seminar. Two of the instructors who had participated were deported from Bulgaria. Mr Al-Nashif was allegedly one of the organisers. He and all other participants received oral warnings.
In support of these allegations the Government submit copies of newspaper articles.
The applicants submit a declaration by the Chief Mufti of the Bulgarian Muslims, dated 1 August 2000, stating that the only sponsor of the 1997 seminar was the International Youth Assembly Nedua registered in Saudi Arabia and in many other countries, including Bulgaria. The Chief Mufti further stated that the seminar had been consecrated to traditional religious teaching. The police had come, apparently alerted by an anonymous call. They had taken away material, part of which they had then returned. As the police had not established any wrongdoing, the seminar had continued after an interruption.
(iv) Alleged danger stemming from the Islamic lessons given by the first applicant in November 1998 - April 1999
The Government state that against the background of the first applicant’s religious activities between and 1995 and 1998 the authorities justifiably feared that the classes given by him to children could be dangerous.
In support of this allegation the Government submit copies of newspaper articles and a copy of a one-page report by a police officer in Smolyan, addressed to his superiors. The report, dated 14 January 1999, stated as follows:
“I report hereby that I received the following information through a third person:
…[A] Mr Daruish Auni, Syrian national, preaches to a part of the inhabitants in [a] neighbourhood [in Smolyan].
He disseminates Arab literature and offers aid: money, as well as [sacrificial] meat, Kurban. There exist indications that audio cassettes with a religious content are being distributed and that people listen to them in their homes.”
B. Relevant domestic law and practice
1. The Aliens Act of December 1998
Section 40 § 1(2) in conjunction with section 10 § 1(1) provides that the minister of the Interior or other officials authorised by him shall revoke a foreigner’s residence permit “where by his acts he has endangered the security or the interests of the Bulgarian State or where there exists information that he acts against the security of the country”.
Section 42 provides that the minister of the Interior or other officials authorised by him shall order a foreigner’s deportation where “his presence in the country poses a serious threat to national security or public order”.
Section 44 § 4, insofar as relevant, provides as follows:
“Until [his] … deportation … the foreigner may be placed in a specialised centre at the discretion of the minister of the Interior or other officers authorised by him.”
Section 47 provides as follows:
“(1) Orders issued under Chapter V Part 1 and imposing administrative measures which directly concern the national security shall not be subject to appeal.
(2) These orders shall only state their legal ground.”
2. The Administrative Procedure Act
This law establishes general rules concerning the delivery of, and appeals against, administrative decisions. It is applicable to administrative decisions issued under Chapter V Part 1 of the Aliens Act (see section 46 of the Aliens Act). According to section 1 § 1 of the Administrative Procedure Act, its general rules apply to the extent that they have not been superseded by special provisions of other laws.
According to sections 33 - 35 and 37, all administrative decisions are subject to judicial appeal, except for, inter alia, those “directly concerning the national security and defence”.
3. The Religious Denominations Act of 1949 and the Statute of the Muslim Religious Denomination in Bulgaria
Sections 6 and 30 of the Religious Denominations Act provide, inter alia, that the statute and the by-laws of a religious denomination shall be submitted for approval to the Council of Ministers or to one of the Deputy Prime Ministers. Where they contain provisions which are contrary to law, public order or morals, the Council of Ministers shall require their amendment, or refuse to approve them.
Section 30 also provides that the statute and the by-laws of the religious denomination shall regulate all matters related to its finances and internal self-regulation, insofar as these matters are not governed by the Religious Denominations Act. That Act does not contain provisions regulating the holding of religious classes, except for section 14, which concerns the opening of high schools and institutions of higher education for the training of ministers of the faith.
The Statute of the Muslim religious organisation in Bulgaria, in force at the relevant time, was adopted at a national conference of the Muslim believers held on 23 October 1997. On 28 October 1997 it was approved by a Deputy Prime Minister.
The Statute, in its sections 13 and 21, provides for local Muslim boards (настоятелства) and District Muslim Councils (районни мюсюлмански съвети) which are competent, inter alia, to organise classes for the study of the Koran.
In a judgment of 11 June 1992 the Constitutional Court, while stating that the Religious Denominations Act clearly contained unconstitutional provisions, found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable.
The first applicant complains that his detention was unlawful and not justified under Article 5 § 1 of the Convention. He submits that it lacked legal basis, and that it was unnecessary, prolonged and arbitrary.
The first applicant also complains that Article 5 § 4 of the Convention was violated as Bulgarian law does not provide for a possibility to obtain judicial review of the lawfulness of detention pending deportation. He also complains that he was detained incommunicado. Neither his lawyer nor any other person was allowed to meet him.
Mr Al-Nashif complains, invoking Article 6 §§ 1 and 3(c) of the Convention, that he did not have access to a court in the proceedings concerning his appeals against orders nos. 63552 and 504. These orders were based on the allegation that the first applicant posed a threat to national security and amounted to criminal charges against the first applicant. Therefore Article 6 was applicable.
All three applicants complain under Article 8 of the Convention asserting that the acts of the authorities constituted a violation of their right to respect for their family life.
The first applicant asserts a violation of his freedom of religion as protected by Article 9 of the Convention. He submits that the acts of the authorities aimed at preventing him from teaching religious classes to children in the town of Smolyan, that they were unlawful and not necessary in a democratic society.
The applicants also complain that there has been a violation of Article 13 of the Convention in that they did not have effective remedies in respect of the alleged violations of Articles 8 and 9 of the Convention
The first applicant complains that his deportation and exclusion from Bulgarian territory amounted to an unlawful interference with his right to peaceful enjoyment of his possessions, contrary to Article 1 of Protocol No. 1 to the Convention and that he did not have an effective remedy in this respect.
The application was introduced by five applicants on 15 September 1999 and registered on 16 September 1999. On 16 September 1999 the President of the Fourth Section rejected the applicants’ request for interim measures under Rule 39 of the Rules of Court.
By partial decision of 16 December 1999 the Court adjourned the examination of the complaints of the first three applicants, invited the respondent Government to submit written observations on their admissibility and merits, and declared inadmissible the complaints of the fourth and the fifth applicants.
After a prolongation of the time-limit fixed for that purpose, the Government submitted their observations by letter dated 5 May 2000 and received on 24 May 2000. The applicants replied on 1 August 2000. A copy of their reply was transmitted to the Government on 18 August 2000.
On 30 November 2000 the Court decided to hold a hearing on the admissibility and merits of the application. The parties were informed of that decision and of the date of the hearing by faxed letters of 5 December 2000.
On 24 January 2001 the Government submitted additional material which was exceptionally admitted and transmitted to the applicants’ representatives several hours before the oral hearing.
The oral hearing was held in Strasbourg on 25 January 2001. The Government were represented by their agent, Ms G. Samaras. The applicants were represented by Mr Y. Grozev and Ms K. Yaneva.
On 30 January 2001 the applicants’ representative submitted information on their whereabouts.
1. Representation power and alleged abuse of the right to petition
The Government submitted that counsel for the applicants had not been duly authorised. At the oral hearing, after having consulted the case-file and the authorisation forms signed by the applicants and by Ms Saleh on behalf of her minor children, the Government’s agent did not, however, maintain its objection.
The Government further alleged that the applicants had concealed certain relevant facts in their initial application. In particular, the first applicant had not mentioned his second wife by a religious marriage or his religious activities between 1995 and 1999. Nor did he clarify that the length of his detention pending deportation was the result of him not having presented his Syrian identity document. In the Government’s view, by concealing those facts Mr Al-Nashif sought to mislead the Court and thus abused his right of petition.
The applicants disputed most of the Government’s allegations in respect of Mr Al-Nashif’s religious activities and stated that in any event, and as regards his religious marriage and Syrian identity document, they had considered in good faith those facts as irrelevant. In particular, the first applicant had not been told that his relationship with Ms M. or his participation in a seminar were reasons for his deportation. Furthermore, none of the facts allegedly concealed concerned any offence or any wrongdoing on his part.
Noting the authorisation forms signed by the first applicant and by Ms Saleh on behalf of the second and third applicants, the Court finds that all applicants are validly represented by their counsel.
The Court further considers that an application may only be rejected as abusive under Article 35 § 3 of the Convention if it was knowingly based on untrue facts (see Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000 -; the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions (“Reports”) 1996-IV, pp. 1210 and 1211, §§ 53 and 54; I.S. v. Bulgaria (dec.), no. 32438/96; no. 22497/93, Dec. 20.2.1995, DR 80, p. 138; no. 24760/94, Dec. 27.6.1996, DR 86, pp. 54, 68). Without prejudice to its task in the process of establishing the facts, the Court does not consider that the application was based on untrue facts.
The above objections of the Government are therefore rejected.
2. Alleged unlawful detention
The first applicant complains that his detention was in breach of Article 5 § 1 of the Convention which, insofar as relevant, provides as follows:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition…”.
The Government referred to the limited power of review of the Court under Article 5 § 1(f) of the Convention. They also submitted that the relevant domestic law was clear and that the revocation of Mr Al-Nashif’s residence permit and his deportation had been justified. Furthermore, the Bulgarian authorities were not responsible for the length of the detention.
The first applicant replied that the law concerning detention pending deportation lacked clarity and did not provide any safeguards against abuse, and that the withdrawal of his residence permit and his detention had not been justified.
The Court recalls that Article 5 § 1(f) of the Convention does not demand that the detention of a person against whom action is taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect, Article 5 § 1(f) provides a different level of protection from Article 5 § 1(c). Indeed, all that is required under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1(f), whether the underlying decision to expel can be justified under national or Convention law. The review carried out by the Court is limited to examining whether there is a legal basis for the detention and whether the decision to place a person in detention may or may not be described as arbitrary in the light of the facts of the case.
Deprivation of liberty under Article 5 § 1(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not conducted with due diligence, the detention will cease to be permissible (see the Chahal v. the United Kingdom judgment of 15 November 1996, §§ 112, 113 and 118, Reports 1996-V, and Gonzalez v. Spain (dec.), no. 43544/98, 29 June 1999, unreported).
In the present case it is undisputed that the first applicant was detained pursuant to a decision issued by the competent authority and that action was taken for his deportation. His deprivation of liberty therefore had legal basis and fell under paragraph 1(f) of Article 5 of the Convention.
It has not been alleged that the detention was not intended to secure the execution of the deportation order or that there are other reasons to believe that there has been bad faith. It cannot be considered therefore that the decision to detain Mr Al-Nashif was arbitrary. His allegations in respect of the underlying deportation order cannot be examined under Article 5 § 1(f) of the Convention.
Furthermore, the Court agrees with the Government that the authorities were not responsible for the whole length of the detention. Indeed, the deportation proceedings were conducted speedily.
The Court finds, therefore, that the complaint of the first applicant under Article 5 § 1(f) of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected.
3. Complaints in respect of the right to appeal against detention
The first applicant alleges that he had no right to appeal to a court against his detention and that he was detained incommunicado as neither his lawyer nor anyone else was allowed to meet him. He invokes Articles 5 § 4 and 6 of the Convention.
The Government submitted that detention pending deportation was intended to be so short that no judicial review would be normally called for and that the Bulgarian authorities had not been responsible for the fact that Mr Al-Nashif could not be deported right away upon his arrest.
The first applicant replied that Article 5 § 4 of the Convention guaranteed a right to appeal to a court against any deprivation of liberty, regardless of its grounds. However, his appeal of 17 June 1999, based on the Convention’s direct applicability in Bulgarian law, and the appeal against order no. 504, filed on 18 June 1999 in an attempt to rely on the general rule in Bulgarian law that all administrative decisions are subject to judicial review, were to no avail.
The Court considers that the above complaints fall under Article 5 § 4 of the Convention. Having examined them, the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.
4. Alleged determination of criminal charges without judicial proceedings
The first applicant complains under Article 6 §§ 1 and 3(c) of the Convention that he did not have access to a court and to a lawyer in proceedings - considered by him criminal in nature - which concerned his appeals against orders nos. 63552 and 504.
The Government maintained that Article 6 was not applicable, whereas the applicants replied that criminal charges were at stake.
The Court recalls its recent judgment in the case of Maaouia v. France ([GC], no. 39652/98, ECHR 2000-) where it found that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention.
The Court does not find in the present case any relevant distinguishing feature in that respect. It thus holds that Article 6 is not applicable and that therefore the above complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of its Article 35 § 3.
5. Alleged violations of Articles 8, 9 and 13
All three applicants complain under Article 8 of the Convention that there has been an arbitrary and unlawful interference with their right to respect for their family life. The first applicant complains that there has also been an arbitrary interference with his right to freedom of religion under Article 9 of the Convention. The applicants further raise a complaint under Article 13 in conjunction with Articles 8 and 9 of the Convention, alleging that they did not have effective remedies against the violations of their rights under those provisions.
At the oral hearing before the Court, the Government objected that not all domestic remedies in respect of those complaints had been exhausted. In particular, in his judicial appeals the first applicant had not raised even in substance the grievances concerning his family life or religious freedoms. There had been only one exception when he had mentioned the right to respect for family life - in an appeal of 21 June 1999 - but it had been addressed to a court without competence to examine it. Furthermore, the first applicant had not challenged order no. 503 which prevented him from returning to Bulgaria. In the Government’s opinion the fact that the first applicant had not submitted an appeal against that order had deprived the national courts from examining the alleged violations of his rights. Moreover, the second and third applicants had not instituted proceedings.
The Government further considered that there was no family life, within the meaning of Article 8 of the Convention, between the first applicant and his children, that in any event there had been no interference with such family life or - if the Court established the existence of an interference - it had been lawful and justified. The Government alleged that the authorities had been justified in believing that Mr Al-Nashif’s religious activities had posed a threat to the country’s national security. They also stated that there had been no interference with the first applicant’s right to teach religion and that the complaint under Article 13 was manifestly ill-founded, the applicants not having exhausted all domestic remedies.
The applicants described as groundless the Government’s objection in respect of the exhaustion of all domestic remedies and referred to their complaints under Article 13 of the Convention.
They further made extensive submissions in respect of their complaints under Articles 8, 9 and 13. They stated, inter alia, that there had been a clear interference with their family life which had been effected through the operation of legal provisions and orders which lacked the clarity and foreseeability required by the concept of lawfulness as enshrined in the Convention. No reasons for Mr Al-Nashif’s deportation had been given because the law allowed such an approach. The Aliens Act had been interpreted by the authorities as meaning that the Ministry of the Interior might label someone “threat to national security” and deport him without that person having acted unlawfully or having committed or planned an offence and without examination of evidence.
The Court considers that the Government’s objection that the applicants have not exhausted all domestic remedies in respect of their grievances under Articles 8 and 9 of the Convention is closely related to the merits of their complaints under those provisions and under Article 13 of the Convention.
Furthermore, having examined the applicants’ complaints under Articles 8 and 9 of the Convention and under Article 13 in conjunction with those provisions, the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
The Court thus holds that the Government’s objection as regards the exhaustion of all domestic remedies shall be joined to the merits of the complaints under Articles 8 and 9 of the Convention and under Article 13 taken together with Articles 8 and 9.
The Court does not find any other ground for declaring those complaints inadmissible.
6. Alleged violation of the right to peaceful enjoyment of possessions and lack of remedies in this respect
The first applicant complains under Article 1 of Protocol No. 1 to the Convention that his deportation and exclusion from Bulgarian territory prevented him from running his daily business, that he did not have time to wind up his affairs, and that he did not have an effective remedy in this respect.
The Government submitted that this complaint was manifestly ill-founded. The applicants replied referring, inter alia, to decisions of other international fora and maintained that as a matter of a general international law an alien must be given sufficient time to wind up his affairs before deportation.
The Court considers that Article 1 of Protocol No. 1 to the Convention cannot be seen as embodying a right for an alien to reside on the territory of the State where his business activities are based.
Insofar as the deportation of an alien may raise issues under the general rule of that provision, which enshrines the right to peaceful enjoyment of possessions, the Court notes that the first applicant does not allege that he is prevented from running his affairs through representatives in Bulgaria or that there were particular obstacles to him organising the winding up of his business in the weeks between the service of order no. 63552 and his arrest or after his deportation, through a representative.
The Court thus finds that the complaint under Article 1 of Protocol No. 1 is manifestly ill-founded and, furthermore, that the first applicant did not have an arguable claim of a violation of that provision. Consequently, the Court does not need to examine whether there existed effective domestic remedies in this respect.
It follows that the above complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected.
For these reasons, the Court
unanimously, rejects the Government’s objections as to the validity of the applicants’ representation and the alleged abuse of the right to petition;
unanimously, declares admissible, without prejudging the merits, the first applicant’s complaint under Article 5 § 4 that he was detained incommunicado and did not have a right to appeal to a court against his detention;
unanimously, joins to the merits of the complaints under Articles 8, 9 and 13 of the Convention the Government’s objection as to the exhaustion of all domestic remedies;
by a majority, declares admissible, without prejudging the merits, the complaints of the three applicants that the deportation of Mr Al-Nashif violated their right to respect for their family life (Article 8) and that they did not have an effective remedy in this respect (Article 13) and the complaints of the first applicant that the measures against him were in breach of his right to freedom of religion (Article 9) and that he did not have an effective remedy in this respect (Article 13);
unanimously, declares inadmissible the remainder of the application.
Vincent Berger Georg Ress
AL-NASHIF AND OTHERS v. BULGARIA DECISION
AL-NASHIF AND OTHERS v. BULGARIA DECISION