FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5335/05 
by Anatoliy Vladimirovich PONOMARYOV and Others 
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 18 September 2007 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs M. Tsatsa-Nikolovska
 Mr R. Maruste, 
 Mr M. Villiger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 8 February 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Anatoliy Vladimirovich Ponomaryov, Mr Vitaliy Vladimirovich Ponomaryov and Ms Anastasia Aleskandrovna Tsaneva, are Russian nationals who were born respectively in 1986, 1988 and 1985. The first two applicants live in Pazardzhik, Bulgaria, and the third applicant lives in Ruse, Bulgaria. They are represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  The case of the first and the second applicants (Messrs Ponomaryovi)

(a)  Background

Mr Anatoliy Ponomaryov was born on 15 June 1986 in Kustanay, the Kazakh Soviet Socialist Republic (presently the Republic of Kazakhstan). His brother, Mr Vitaliy Ponomaryov, was born there two years later, on 8 June 1988. In 1990 both moved to Moscow, Russia, with their mother, Mrs Anna Aleksandrovna Prezhdarova, a Russian citizen. In 1992 their mother divorced their father, Mr Vladimir Viktorovich Ponomaryov, also a Russian citizen. The whereabouts of the latter have been unclear; it appears that he might have settled in another country, probably Germany.

Apparently at some point before 1994 the first and the second applicants’ mother married a Bulgarian citizen, Mr Rumen Trifonov Prezhdarov. In 1994 both of them settled in Pazardzhik, Bulgaria, together with the first and the second applicants. Mrs Prezhdarova was granted a permanent residence permit on the basis of her being married to a Bulgarian national. The first and the second applicants were granted permanent residence permits on the basis of their mother’s permit.

The first and the second applicants enrolled in Bulgarian primary and later in secondary schools and apparently speak fluent Bulgarian.

Mrs Prezhdarova has been out of work since 1995.

In July 2003 Mr Anatoliy Ponomaryov and his mother travelled to Russia. On 20 July 2003 they returned to Bulgaria.

(b)  The first and the second applicants’ problems with obtaining permanent residence permits after turning eighteen years of age

After Mr Anatoliy Ponomaryov turned eighteen on 15 June 2004, he applied for a Bulgarian personal identity card. The competent services informed him that to obtain one he had to leave the country, obtain a “D-type” visa (see below, Relevant domestic law) from a Bulgarian embassy abroad (for a fee of 53 euros (EUR) – the amount due under Tariff no. 3 for the fees collected for consular services in the system of the Ministry of Foreign Affairs), then return to Bulgaria, apply for a temporary residence permit (for a fee of 200 Bulgarian levs (BGN) – the amount due under section 10(1) of Tariff no. 4 for the fees gathered in the system of the Ministry of Internal Affairs (see below, Relevant domestic law)), and then apply for a permanent residence permit (for a fee of BGN 1,000 – the amount due under section 12(1) of the above-mentioned Tariff no. 4). All this was necessary because, having turned eighteen, he could no longer have a residence permit on basis of his mother’s residence permit.

On 28 September 2004 the consular department of the Ministry of Foreign Affairs informed Mr Anatoliy Ponomaryov that it did not insist on his leaving the country in order to obtain a “D-type” visa. He could obtain one in Bulgaria, for EUR 53.

In a letter of 7 October 2004 the immigration division of the Regional Directorate of Internal Affairs in Pazardzhik informed Mr Anatoliy Ponomaryov that before turning eighteen he had had the opportunity to apply for a permanent residence permit. However, he had failed to do so. To obtain a permanent residence permit presently, he first had to apply and pay a fee for obtaining a long-term residence permit, and only then apply and pay a fee for a permanent residence permit. His failure to pay these fees would constitute grounds for discontinuing the procedure.

Mr Anatoliy Ponomaryov applied for a permit. However, as he failed to pay the requisite fees, on 22 February 2005 the immigration authorities returned the application to him, thereby discontinuing the procedure.

On 10 and 20 October 2005 the first and the second applicants asked the Commission for remitting uncollectible State debts established by the President of the Republic to waive the payment of the fees. They submitted that they had no property or incomes. In a letter of 31 May 2006 the Commission informed them that their requests had been denied, as their debts towards the State were not uncollectible.

(c)  The proceedings against sections 10 and 12 of Tariff no. 4

In a petition lodged in October 2004 Mr Anatoliy Ponomaryov asked the Supreme Administrative Court to strike down the above-mentioned sections 10 and 12 of Tariff no. 4 (see below, Relevant domestic law). He described his personal situation and argued that the Tariff was discriminatory because according to it aliens of Bulgarian origin had to pay only 0.5 per cent of the fees due by other aliens and because it failed to differentiate between persons in his situation – underage and still in school – and persons who were adult and wealthier.

Later Mr Vitaliy Ponomaryov and Ms Tsaneva joined the petition.

The Supreme Administrative Court held a hearing on 17 December 2004 and in a final judgment of 26 January 2005 dismissed the petition. It noted that every person who was not a Bulgarian citizen was an alien, regardless of other factors. It was therefore immaterial that the applicants had been living in Bulgaria for a long time, had been studying there and were indigent. They were bound to conform to the laws of the land, including the obligation to pay fees for the services they requested. There was no discrimination in the fact that, unlike aliens of Bulgarian origin, they had to pay the full amount of the fees, because the privileged treatment accorded to such aliens was based on the command of section 6(2) of the Bulgarians Living Outside of the Republic of Bulgaria Act of 2000, which was a special piece of legislation (see below, Relevant domestic law). The high amount of the fees was designed to cover the expenses for issuing the residence permits. Moreover, these amounts had not been increased since 1998, despite the dynamic development of the economy, and were payable only once.

(d)  Mr Anatoliy Ponomaryov’s schooling fees and the ensuing proceedings for judicial review

On 9 February 2005 the head of the Regional Education Inspectorate of the Ministry of Education wrote to the headmistress of Mr Anatoliy Ponomaryov’s high school to inquire whether he had paid the schooling fees due by him as an alien without a residence permit and, if not, whether measures had been taken to collect them.

On 26 April 2005 the education inspectorate in Pazardzhik held a meeting with the headmistress of Mr Anatoliy Ponomaryov’s high school. At that meeting, which was also attended by representatives of the immigration authorities, it was discussed whether measures should be taken to enforce paragraph 4(3) of the National Education Act of 1991 (see below, Relevant domestic law) in respect of him.

On 28 April 2005 the headmistress ordered Mr Anatoliy Ponomaryov to pay EUR 800 in schooling fees, failing which he would be barred from attending classes and would not be issued a certificate for having completed the respective school year. She relied on a decision made by the Minister of Education on 20 July 2004, which set the tuition rates for the schooling of aliens in Bulgarian educational institutions under paragraph 4(3) of the additional provisions of the National Education Act of 1991.

Mr Anatoliy Ponomaryov sought judicial review of the headmistress’ order.

In a judgment of 5 July 2005 the Pazardzhik Regional Court partly quashed and partly upheld the order. It found that there was no indication that the first applicant had a permanent residence permit. Therefore, he could continue his studies only if he paid the requisite tuition fees. However, the fact that he had not paid the tuition fees did not mean that he should not be issued a certificate for having completed the respective school year, considering that the amount could still be collected from him. This part of the order was therefore unlawful.

Mr Anatoliy Ponomaryov appealed on points of law to the Supreme Administrative Court. He argued, inter alia, that he did not properly fall within the purview of paragraph 4(3) of the additional provisions of the National Education Act of 1991, as he was not an alien who had specifically come to study in Bulgaria, but had lived in the country for the past twelve years. The headmistress also appealed on points of law.

In a final judgment of 13 June 2006 the Supreme Administrative Court upheld the lower court’s judgment. It fully agreed with its reasoning and added that the fact that in the meantime the first applicant had been granted a permanent residence permit (see below) meant solely that he could attend a Bulgarian school free of charge in the future. However, as at the relevant time he had not had a permanent resident status, he had been obliged to a pay the requisite fee. Concerning the issuing of a certificate for completion of the respective school year, the lower court’s holding was correct, as the first applicant’s failure to pay the fee was a precondition for his attending classes, but could not serve as grounds to refuse to recognise an acquired degree, if the person concerned had already been schooled.

(e)  The proceedings for judicial review of the Minister’s fee-setting decision

In addition, Mr Anatoliy Ponomaryov sought review of the Minister’s decision of 20 July 2004 (see above), arguing, inter alia, that it was discriminatory and contrary to Article 14 of the Convention to require foreign citizens to pay tuition fees for attending Bulgarian schools. In his view, secondary education should be free of charge for everyone.

In a judgment of 10 January 2006 a three-member panel of the Supreme Administrative Court dismissed the application for judicial review. It held, inter alia, that privileges on the basis of nationality were commonplace in many countries. Moreover, Article 14 of the Convention did not prohibit discrimination on citizenship grounds. The differential treatment of individuals on the basis of their citizenship, if provided for by a statute or an international treaty, did not amount to discrimination. On the other hand, foreign citizens who had a permanent residence permit did not have to pay tuition fees. However, the first applicant had not shown that he had such a permit.

The first applicant appealed on points of law, reiterating his arguments.

In a final judgment of 13 June 2006 a five-member panel of the Supreme Administrative Court affirmed, fully agreeing with the lower court’s reasoning.

(f)  Mr Vitaliy Ponomaryov’s schooling fees and the ensuing proceedings for judicial review

In an order of 31 October 2005 the headmistress of Mr Vitaliy Ponomaryov’s high school ordered him to pay EUR 1,300 in schooling fees, failing which he would be barred from attending classes and would not be issued a certificate for having completed the respective school year. She relied on the above-mentioned decision of the Minister of Education.

The second applicant sought judicial review of this order, arguing, inter alia, that it infringed his rights under the Convention.

In a judgment of 4 April 2006 the Pazardzhik Regional Court dismissed the application for judicial review. It held that there was no indication that the second applicant had a permanent residence permit or that a procedure for obtaining such a permit was under way. Therefore, he could continue his studies only if he paid the tuition fees. This did not infringe his right to education; by law, aliens could attend Bulgarian schools, but only if they paid the requisite fees.

The second applicant appealed on points of law to the Supreme Administrative Court. He averred, inter alia, that he had lived in Bulgaria for twelve years.

In a final judgment of 13 December 2006 the Supreme Administrative Court upheld the lower court’s judgment. It held that, as the second applicant had in the meantime been granted a permanent residence permit (see below), he could attend a Bulgarian school free of charge in the future. However, as at the relevant time he had not had a permanent resident status, he had been obliged to a pay the requisite fee.

(g)  The fine imposed on Mr Anatoliy Ponomaryov

On 14 November 2005 the immigration authorities in Pazardzhik charged Mr Anatoliy Ponomaryov with residing in Bulgaria without a valid permit, in breach of section 34 of the Aliens Act of 1998 (see below, Relevant domestic law). On 21 November 2005 they made a penal order against him, finding him guilty of the regulatory offence of remaining in the country after the expiry of his authorised stay, contrary to section 48(1)(3) of the Aliens Act of 1998 (see below, Relevant domestic law). They fined him BGN 500.

The first applicant appealed to the Pazardzhik District Court. He argued, inter alia, that the immigration authorities had not specified when his authorised stay had expired.

After holding a hearing on 9 February 2006, in a judgment of 5 May 2006 the Pazardzhik District Court quashed the fine. It held that the charges against the first applicant had not been particularised, as the penal order had not specified when his authorised stay had expired. It also held that, as the first applicant had tried to regularise his stay in Bulgaria, he could not be guilty of remaining in the country despite the expiry of his authorised stay.

The immigration authorities appealed on points of law to the Pazardzhik Regional Court.

In a final judgment of 19 October 2006 the Pazardzhik Regional Court quashed the lower court’s judgment and upheld the fine. It held that the penal order contained all necessary elements allowing the offence to be specifically identified. It was evident from the documents in the file that the first applicant had entered Bulgaria in 1994, had later left its territory, had returned on 20 July 2003 (after a brief trip to Russia), and had remained in the country without a residence permit after that date. Moreover, on 4 October 2004 he had asked the immigration authorities about the possibilities of extending his residence permit and had been informed that his stay in Bulgaria was unlawful. He had thus been aware of the illegality of his stay. For these reasons, his conduct fell within the ambit of section 48(1)(3) of the Aliens Act of 1998

(h)  The granting of permanent residence permits

On 17 February and 8 March 2006 the immigration division of the Regional Directorate of Internal Affairs in Pazardzhik informed the first and the second applicants that they had been granted permanent residence permits and invited them to show up to collect in person the corresponding documents.

On 11 May 2006 Mr Anatoliy Ponomaryov paid the fee under section 12(1) of Tariff no. 4 (see below, Relevant domestic law) and apparently obtained a document certifying that he had a permanent residence permit. Mr Vitaliy Ponomaryov paid the fee on 28 March 2006. Apparently they raised the money by taking out loans.

The entire amount paid by Mr Anatoliy Ponomaryov for obtaining a permanent residence permit was BGN 1,375.26. The amount paid by Mr Vitaliy Ponomaryov was BGN 1,415.26.

2.  The case of Ms Tsaneva

Ms Tsaneva was born on 6 August 1985 in Mias, the Chelyabinsk region, the Russian Soviet Federative Socialist Republic (presently the Russian Federation).

On an unspecified date in the 1980s or the early 1990s her mother, Mrs Irina Anatolievna Tsaneva, a Russian citizen, divorced her father, Mr Aleksandar Nikolaevich Akimochkin, also a Russian citizen, and married a Bulgarian citizen, Mr Svetlin Tsanev Tsanev. In 1994 they moved to Ruse, Bulgaria, together with Ms Tsaneva. Later the family had another child.

As the third applicant was apparently unable to pay the fees for obtaining a permanent residence permit upon turning eighteen years of age, her stay in Bulgaria after 6 August 2003 was unlawful. It is unclear whether she has obtained a residence permit.

It seems that the third applicant completed her secondary studies in 2004, and had to pay a fee to obtain a diploma. She later wanted to enrol in university, but apparently could not afford to, as the tuition fees for aliens were very high.

B.  Relevant domestic law

1.  The Aliens Act of 1998

Section 9 of this Act (“Закон за чужденците”), as in force at the relevant time, provided for several types of visas for entering the territory of Bulgaria. One of them was the so-called “D-type” or long-term residence visa (section 9(3)(5) of the Act, as in force at the relevant time; now replaced by section 9a(2)(4)). It is a prerequisite for applying for a residence permit (section 15(1) of the Act).

By section 23 of the Act, aliens who reside in Bulgaria for more than ninety days must have either a long-term residence permit (valid for up to one year) or a permanent residence permit.

By section 25(2) of the Act, as in force until 2007, aliens who had married a Bulgarian citizen and had resided in Bulgaria for more than two years were eligible for a permanent residence permit. By section 25(3) of the Act, the minor or underage children of an alien who permanently resides in Bulgaria are also eligible for a permanent residence permit.

Aliens who have entered or have resided in Bulgaria before 27 December 1998 and whose parent has married a Bulgarian citizen may also obtain a permanent residence permit (section 25(8) of the Act).

By section 34 of the Act, aliens have to leave the country before the expiry of their authorised stay. Section 48(1)(3) of the Act makes it a regulatory offence, punishable by a fine ranging from BGN 500 to BGN 5,000, for an alien to remain in the country after the expiry of his authorised stay.

2.  Regulations for the application of the Aliens Act of 1998

Section 12(5) of these Regulations, as amended on 26 February 2004, provides that even if an alien does not have a “D-type” (long-term) visa the immigration authorities may still grant him or her a residence permit, if the State interest requires it or in extraordinary circumstances.

Section 30(1)(2) of the Regulations provides that aliens who apply for permanent residence permits must enclose with their applications a proof that they have paid the requisite processing fee (see below). By section 30(3) of the Regulations, aliens must produce proof that they have paid the main fee (see below) upon receipt of a notice that they have been authorised to reside permanently in Bulgaria.

3.  Tariff no. 4 for the fees gathered by the Ministry of Internal Affairs

Section 10(1) of the Tariff, which was adopted on 26 February 1998 by the Council of Ministers and published on 10 March 1998 in the State Gazette, provides that the fee for a long-term residence permit is BGN 200 (for a permit of up to six months) and BGN 500 (for a permit of up to one year). There is also a processing fee of BGN 5 (section 10(3) of the Tariff).

Section 12(1) of the Tariff provides that the fee for a permanent residence permit is BGN 1,000. It is payable after the issuing of the permit (section 12(3) of the Tariff). There is also a processing fee of BGN 5 (section 12(4) of the Tariff).

By section 18 of the Tariff, as amended in 2000, aliens of Bulgarian origin (defined in paragraph 1(6) of the additional provisions of the Aliens Act of 1998 as persons whose mothers or fathers are Bulgarian nationals) and Bulgarians living abroad pay 0.5 per cent of the fees due under the Tariff.

4.  The National Education Act of 1991

Paragraph 4(1) of the additional provisions of this Act (“Закон за народната просвета”) allows foreign citizens to enrol in Bulgarian schools. Their education is free of charge if (i) they have a permanent residence permit, (ii) they have enrolled under a decision of the Council of Ministers or (iii) under intergovernmental agreements so providing, or (iv) they are children of citizens of a country which is member of the European Union or of the European Economic Area, or Switzerland, and who work in Bulgaria (paragraph 4(2), as amended in 1998 and, as regards (iv), in 2007). Other categories of foreign citizens may also enrol in Bulgarian schools, but they owe tuition fees in an amount set by the Minister of Education. This money is to be used exclusively for the needs of the educational establishments where the persons concerned are being schooled (paragraph 4(3), as amended in 1998).

5. The Bulgarians Living Outside of the Republic of Bulgaria Act of 2000

This Act (“Закон за българите, живеещи извън Република България”) regulates the relations of the Bulgarian State with Bulgarians living out of the country (section 1). They are defined as individuals who have at least one ancestor of Bulgarian origin, have a Bulgarian national consciousness and reside predominantly or permanently on the territory of another country (section 2). Individuals who meet these criteria enjoy a number of privileges, including the right to pay reduced fees for the processing of their immigration papers (section 6(2)) and the right to obtain permanent residence permits under alleviated conditions (section 15(1)).

COMPLAINTS

1.  In their initial letter and in the application form the applicants raised the following complaints:

1.1.  All applicants complained under Article 8 of the Convention that by reason of the high fees, which they could not afford to pay, they could not have obtained permanent residence permits after they had turned eighteen. They submitted that this had amounted to a disproportionate interference with their private and family lives. They also alleged that in fixing the amount of the fees the State had failed to treat them differently from aliens who were adult and had employment and income, in breach of Article 14 of the Convention.

1.2.  All applicants complained under Article 13 of the Convention that they had not had effective remedies against this alleged violation.

1.3.  All applicants complained under Article 14 of the Convention about the different fees for obtaining permanent residence permits due by them and by aliens of Bulgarian origin.

1.4.  All applicants complained under Article 2 of Protocol No. 1 that as a result of not having obtained permanent residence permits they could not have continued their education and received their diplomas, unless they had paid the requisite schooling fees.

1.5.  All applicants complained under Article 1 of Protocol No. 7 that as a result of their inability to obtain residence permits they could be expelled from Bulgaria.

1.6.  All applicants complained under Article 2 of Protocol No. 4 that as a result of not having residence permits they could not move freely on the territory of Bulgaria.

1.7.  All applicants complained under Article 6 of the Convention about the lack of fairness of the proceedings against Tariff no. 4. In particular, they submitted that the Supreme Administrative Court had not given full and proper reasons for its judgment.

2.  In a letter dated and postmarked 3 May 2005 Mr Anatoliy Ponomaryov complains under Article 34 of the Convention that in retaliation for his application to the Court the immigration authorities pressured his school to prevent him from attending classes on account of his failure to pay schooling fees.

3.  In a letter dated 16 September 2005 and postmarked 19 September 2005 the first and the second applicants complained under Article 1 of Protocol No. 1 that they were not receiving a scholarship and under Articles 13 and 14 of the Convention that in case they succeeded in obtaining an award of damages for their problems in attending school, they would not be able to enforce it against the State.

4.  In a letter dated 16 December 2006 and received by the Court on 23 January 2007 the first applicant raised the following complaints:

4.1.  He complained under Article 6 of the Convention that the courts which had reviewed and confirmed the fine imposed on him had not taken into account his arguments. He further alleged that the charges against him had not been particularised.

4.2.  In the same letter Mr Anatoliy Ponomaryov submitted that the fine had amounted to an interference with his rights under Article 8 and that it had been based on a law which was not sufficiently precise. He also relied on Articles 13 and 14 of the Convention and Article 2 of Protocol No. 4.

THE LAW

A.  Complaint under Articles 8 and 14 of the Convention relating to the refusal to grant the applicants permanent residence permits by reason of their inability to pay the requisite fees (complaint no. 1.1)

In respect of their complaint about an alleged interference with their private and family lives on account of the refusal to grant them permanent residence permits due to their failure to pay the requisite fees the applicants relied on Article 8 of the Convention, which reads, as relevant:

“1.  Everyone has the right to respect for his private and family life...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicants further alleged that in fixing the fees the State had failed to differentiate between aliens in their position and aliens who were better off financially. In this connection, they relied on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

B.  Complaint under Article 13 of the Convention about the lack of effective remedies against the violation alleged above (complaint no. 1.2)

In respect of their complaint about the lack of effective remedies against the violation alleged above the applicants relied on Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that the refusal to grant the applicants permanent residence permits was entirely due to their failure to pay the requisite fees, which were fixed in sections 10 and 12 of Tariff no. 4, issued by the Council of Ministers, in line with the policy set out in sections 6(2) and 15 of the Bulgarians Living Outside of the Republic of Bulgaria Act of 2000. According to the Court’s settled case-law, Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention (see, as a recent authority, Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, § 107, 16 December 2004, with further references). There is therefore no need to assess the effectiveness of the proceedings in which the applicants tried to invalidate sections 10 and 12 of Tariff no. 4.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C.  Complaint under Article 14 of the Convention about the different fees for obtaining permanent residence permits due by aliens of Bulgarian origin and other aliens (complaint no. 1.3)

In respect of their complaint that, unlike “ordinary” aliens, aliens of Bulgarian origin are liable to pay markedly lower fees for obtaining residence permits the applicants relied on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court notes, first, that Article 14 of the Convention is applicable only if the facts at issue fall within the ambit of one or more of the other substantive provisions of the Convention and the Protocols (see, as a recent authority, Pla and Puncernau v. Andorra, no. 69498/01, § 54, ECHR 2004-VIII). It is then necessary to verify whether the refusal to grant the applicants permanent residence permits on account of their failure to pay the requisite fees interfered with their rights under Article 8 of the Convention. However, as the Court considers that the complaint is in any event inadmissible for the reasons set out below, it will not express an opinion on this question and will proceed on the assumption that the denial of residence permits did amount to an interference with the applicants’ rights under Article 8 and that Article 14 is therefore applicable.

According to the Court’s case-law, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies (see, as a recent authority, Savoia and Bounegru v. Italy (dec.), no. 8407/05, 11 July 2006, with further references).

The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background (ibid.).

In the instant case the applicants, who were not aliens of Bulgarian origin, had to pay, as all others in their situation, the full amount of the fee for obtaining a permanent residence permit. By contrast, aliens of Bulgarian origin and Bulgarians living abroad have to pay 0.5 per cent of that amount. This difference is based on the Bulgarian State’s policy, stated in sections 6(2) and 15(1) of the Bulgarians Living Outside of the Republic of Bulgaria Act of 2000, of making it easier for persons having particularly strong ties with Bulgaria to settle and remain in the country. It thus pursued a legitimate aim. As regards the proportionality of this measure, the Court observes that the difference in the fees due was considerable. However, there are in general persuasive social reasons for giving special treatment to those who have a special link with a country. The difference of treatment must therefore be regarded as having had an objective and reasonable justification (see, mutatis mutandis, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 41, § 88).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D.  Complaint under Article 2 of Protocol No. 1 (complaint no. 1.4)

In respect of their complaint that they could not pursue their education and receive their diplomas because of the high fees which they had to pay as aliens without permanent residence permits the applicants relied on Article 2 of Protocol No. 1, which provides, as relevant:

“No person shall be denied the right to education...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

E.  Complaint under Article 1 of Protocol No. 7 (complaint no. 1.5)

In respect of their complaint that there is risk that they would be expelled from Bulgaria, the applicants relied on Article 1 of Protocol No. 7, which provides, as relevant:

“1.  An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a)  to submit reasons against his expulsion,

(b)  to have his case reviewed, and

(c)  to be represented for these purposes before the competent authority or a person or persons designated by that authority. ...”

The Court notes that no action has been undertaken to expel the applicants from Bulgaria. There was therefore no room for the application of Article 1 of Protocol No. 7.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

F.  Complaint under Article 2 of Protocol No. 4 (complaint no. 1.6)

In respect of their complaint that as a result of not having residence permits they could not move freely on the territory of Bulgaria the applicants relied on Article 2 of Protocol No. 4, which provides, as relevant:

“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ...”

The Court notes that it has not been shown that, in spite of their not having residence permits, the applicants have tried and have been prevented from moving around Bulgaria.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

G.  Complaint under Article 6 § 1 of the Convention about the proceedings against Tariff no. 4 (complaint no. 1.7)

In respect of their complaint about the fairness of the proceedings against Tariff no. 4 the applicants relied on Article 6 § 1 of the Convention, which provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court notes that in these proceedings the applicants directly challenged the provisions of a piece of subordinate legislation. However, as Article 6 of the Convention does not guarantee a right of access to a court with competence to invalidate or override a law (see Ruiz-Mateos and Others v. Spain, no. 14324/88, Commission decision of 19 April 1991, Decisions and Reports 69, p. 227; and Szyszkiewicz v. Poland (dec.), no. 33576/96, 9 December 1999), by a similar token it does not apply to proceedings in which litigants seek to invalidate primary or secondary legislation, because they are not directly decisive for their civil rights and obligations.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

H.  The remainder of the applicants’ complaints (complaints nos. 2, 3, 4.1 and 4.2)

In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints that the refusal to grant them permanent residence permits after they had reached the age of eighteen, by reason of their inability to pay the requisite fees, interfered with their private and family lives and amounted to discrimination (complaint no. 1.1); and that they could not pursue their education and receive their diplomas because of the fees which they had to pay as aliens without permanent residence permits (complaint no. 1.4);

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

PONOMARYOV AND OTHERS v. BULGARIA DECISION


PONOMARYOV AND OTHERS v. BULGARIA DECISION