Application no. 5335/05
by Anatoliy Vladimirovich PONOMARYOV and Others
The European Court of Human Rights (Fifth Section), sitting on 10 February 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Registrar,
Having regard to the above application lodged on 8 February 2005,
Having regard to the decision to grant priority to the application under Rule 41 of the Rules of Court,
Having regard to the statement of the Government of the Russian Federation that they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the proceedings,
Having deliberated, decides as follows:
The applicants, Mr Anatoliy Vladimirovich Ponomaryov, Mr Vitaliy Vladimirovich Ponomaryov and Ms Anastasia Aleskandrovna Tsaneva, are Russian nationals. The first two applicants, who are brothers, live in Pazardzhik, Bulgaria. The third applicant lives in Ruse, Bulgaria. They are represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.
The Bulgarian Government are represented by Ms M. Dimova, of the Ministry of Justice.
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 Messrs Ponomaryovi
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 also born there two years later, on 8 June 1988. In 1990 both of them moved to Moscow, Russia, with their mother, Mrs Anna Aleksandrovna Prezhdarova, a Russian national. In 1992 their mother divorced their father, Mr Vladimir Viktorovich Ponomaryov, also a Russian national. The whereabouts of the latter remain 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 national, Mr Rumen Trifonov Prezhdarov. In 1994 they settled in Pazardzhik, Bulgaria, together with the first and the second applicants. Mrs Prezhdarova was apparently granted a permanent residence permit on the basis of her being married to a Bulgarian national. The first and the second applicants were apparently granted residence permits on the basis of their mother’s permit.
The first and the second applicants enrolled in a Bulgarian primary school and later in secondary schools and apparently speak fluent Bulgarian.
Mrs Prezhdarova has apparently 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. It is unclear whether Mr Anatoliy Ponomaryov’s stay in the country after that date was based on a valid permit.
(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, in September 2004 he contacted the immigration authorities with a view to regularising his stay in Bulgaria. The competent services informed him that in order to obtain a residence permit 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 charged by the Ministry of Foreign Affairs for consular services), 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 charged by the Ministry of Internal Affairs (see below, Relevant domestic law)), and after that apply for a permanent residence permit (for a fee of BGN 1,000 – the amount due under section 12(1) of Tariff no. 4).
On 28 September 2004 the consular department of the Ministry of Foreign Affairs informed Mr Anatoliy Ponomaryov that it would not insist on his leaving the country in order to obtain a “D-type” visa. He could get 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 told 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. In order now to obtain a permanent residence permit, he would first have to apply and pay a fee to obtain a long-term residence permit, and only then apply and pay a fee for a permanent residence permit. His failure to provide 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 his application without having considered it.
On 10 and 20 October 2005 the first and the second applicants, asserting that they had no property or income, asked the “Commission for remitting uncollectible State debts”, established by the President of the Republic, to waive the fees. In a letter of 31 May 2006 the Commission refused their requests, stating that their debts did not appear to be uncollectible.
(c) The proceedings against sections 10 and 12 of Tariff no. 4
In October 2004 Mr Anatoliy Ponomaryov applied to the Supreme Administrative Court for a declaration annulling the above-mentioned sections 10 and 12 of Tariff no. 4 (see also below, Relevant domestic law). He described his personal situation and argued that the Tariff was discriminatory because aliens of Bulgarian origin had to pay only 0.5 per cent of the fees due by other aliens under it, and because it did not differentiate between persons in his situation – underage and still at school – and persons who were adult and better off financially.
Later Mr Vitaliy Ponomaryov and Ms Tsaneva joined the application.
In a final judgment of 26 January 2005 (реш. № 780 от 26 януари 2005 г. по адм. д. № 9354/2004 г., ВАС, 5-членен с-в) the Supreme Administrative Court dismissed the application. It observed that every person who was not a Bulgarian national was an alien, regardless of other factors. It was therefore of no relevance that the applicants had been living in Bulgaria for a long time, had been studying there and were indigent. They were obliged to comply with the laws of the land, including the obligation to pay fees for the public services which they wished to use. There was no discrimination in the fact that, unlike aliens of Bulgarian origin, they had to pay the full amount of the fees. The privileged treatment accorded to such aliens was based on the express command of section 6(2) of the 2000 Bulgarians Living Outside of the Republic of Bulgaria Act (see below, Relevant domestic law). The fees were designed to cover the costs of issuing the residence permits. Their level had not been increased since 1998 in spite of the dynamic development of the economy, and they 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 secondary school, to inquire whether or not he had paid the school fees which he owed as an alien without a residence permit and, if not, whether or not 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 secondary school. At that meeting, attended by representatives of the immigration authorities, it was discussed whether steps should be taken to enforce paragraph 4(3) of the additional provisions of the 1991 National Education Act (see below, Relevant domestic law) in respect of him.
On 28 April 2005 the headmistress ordered Mr Anatoliy Ponomaryov to pay EUR 800 in school fees, failing which he would be barred from attending classes and would not be issued a certificate for having completed the school year. She relied on a decision of the Minister of Education on 20 July 2004, whereby he set the school fees for aliens in Bulgarian educational institutions pursuant to the above-mentioned paragraph 4(3).
Mr Anatoliy Ponomaryov sought judicial review of the headmistress’s 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. He could therefore pursue his studies only if he paid the requisite fees. However, the fact that he had not paid them did not mean that he should not be issued a certificate for having already completed the school year, seeing that the amount could still be recouped from him. This part of the order was therefore unlawful.
Mr Anatoliy Ponomaryov appealed on points of law. He argued, inter alia, that he did not fall within the ambit of paragraph 4(3), 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 (реш. № 6381 от 13 юни 2006 г. по адм. д. № 10496/2005 г., ВАС, V о.) 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 individual 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 in breach of Article 14 of the Convention to require aliens to pay fees for attending Bulgarian schools. In his view, secondary education was supposed to be free of charge for all.
In a judgment of 10 January 2006 (реш. № 349 от 10 януари 2006 г. по адм. д. № 5034/2005 г., ВАС, V о.) a three-member panel of the Supreme Administrative Court dismissed the application. It stated, 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 such a basis. The differential treatment of individuals on the basis of their nationality, if envisaged by a statute or an international treaty, did not amount to discrimination. Moreover, aliens having permanent residence permits 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 (реш. № 6391 от 13 юни 2006 г. по адм. д. № 2249/2006 г., ВАС, 5-членен с-в) a five-member panel of the Supreme Administrative Court upheld the lower court’s judgment, fully agreeing with its reasoning.
(f) Mr Vitaliy Ponomaryov’s school fees and the ensuing proceedings for judicial review and for recovery of the fees due
In an order of 31 October 2005 the headmistress of Mr Vitaliy Ponomaryov’s secondary school ordered him to pay EUR 1,300 in fees, failing which he would be barred from attending classes and would not be issued a certificate for having completed the school year.
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 his application. It found no indication that the second applicant had a permanent residence permit or that a procedure for obtaining such a permit was underway. He could therefore pursue his studies only if he paid the requisite fee. 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. He argued, inter alia, that he had lived in Bulgaria for twelve years. In a final judgment of 13 December 2006 (реш. № 12503 от 13 декември 2006 г. по адм. д. № 6371/2006 г., ВАС, V о.) the Supreme Administrative Court upheld the lower court’s judgment. It noted that, since 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 the status of a permanent resident, he had been obliged to pay the requisite fee.
On 6 June 2007 Mr Vitaliy Ponomaryov’s secondary school brought a civil action against him, seeking payment of the fees for the 2004-05 and 2005-06 school years. In a judgment of 18 February 2008 the Pazardzhik District Court allowed the claim and ordered the applicant to pay his school the sum of EUR 2,600, plus interest. It found that the applicant owed this amount because at the relevant time he had not had a permanent residence permit entitling him to free schooling in Bulgaria. The applicant appealed to the Pazardzhik Regional Court, and the case is presently pending there.
(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 1998 Aliens Act (see below, Relevant domestic law). On 21 November 2005 they made a penal order against him, finding him guilty of the administrative offence of remaining in the country after the expiry of his authorised stay, contrary to section 48(1)(3) of the 1998 Aliens Act (see below, Relevant domestic law). They fined him BGN 500.
The first applicant appealed to the Pazardzhik District Court. In a judgment of 5 May 2006 that court set aside 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. 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, in 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 act. For these reasons, his conduct had been contrary to section 48(1)(3) of the 1998 Aliens Act.
(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 attend in order to collect in person the corresponding documents.
On 11 May 2006 Messrs Ponomaryovi paid the fee under section 12(1) of Tariff no. 4 (see below, Relevant domestic law) and obtained documents certifying that they had permanent residence permits. The amount paid by Mr Anatoliy Ponomaryov was BGN 1,375.26. The amount paid by Mr Vitaliy Ponomaryov was BGN 1,415.26. Apparently they raised the money by taking out a bank loan.
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 national, divorced her father, Mr Aleksandar Nikolaevich Akimochkin, also a Russian national, and married a Bulgarian national, Mr Svetlin Tsanev Tsanev. In 1994 they moved to Ruse, Bulgaria, together with Ms Tsaneva.
It seems that Ms Tsaneva was unable to pay the fees for obtaining a permanent residence permit after turning eighteen years of age. She submits that in 2004 she was granted a residence permit for six months, for which she had to pay BGN 220 in fees and penalties. It further seems that in November 2004 she was granted a permanent residence permit, but it is unclear whether she finalised the procedure by paying the requisite fees. Ms Tsaneva’s current immigration status in Bulgaria has not been specified.
It seems that Ms Tsaneva completed her secondary studies and obtained her diploma in 2004. She later wanted to enrol in a Bulgarian university, but apparently could not afford to do so, as the tuition for aliens was higher than she and her family could afford. It seems that in December 2004 she enrolled in the Sofia branch of the Moscow State Industrial University.
No further information or documents were provided by the applicant.
B. Relevant domestic law
1. The 1991 Constitution
The relevant provisions of the 1991 Constitution read:
Article 26 § 2
“Aliens residing in the Republic of Bulgaria shall have all rights and obligations flowing from this Constitution except the rights and the obligations in respect of which the Constitution and the laws require Bulgarian nationality.”
“1. Everyone shall have the right to education.
2. School education up to the age of sixteen years is compulsory.
3. Primary and secondary education in State and municipal schools shall be free of charge. Education in higher educational establishments run by the State shall be free of charge under conditions set out in the law. ...”
2. The 1998 Aliens Act
Section 9 of the 1998 Aliens 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), as in force at the relevant time; now replaced by section 9a(2)(4)). Obtaining one was a prerequisite for applying for a residence permit (section 15(1)).
Aliens intending to reside in Bulgaria for more than ninety days must obtain either a long-term or a permanent residence permit (section 23).
Under section 25(2), as in force until 2007, aliens who had married a Bulgarian national and had resided in the country for more than two years were eligible for a permanent residence permit. The underage children of a permanently residing alien are also eligible (section 25(3)), as are aliens who have entered or have resided in Bulgaria before 27 December 1998 and whose parent has married a Bulgarian national (section 25(8)).
Under section 34, aliens must leave the country before the expiry of their authorised stay. Failure to do so is an administrative offence punishable with a fine ranging from BGN 500 to BGN 5,000 (section 48(1)(3)).
3. Regulations for the application of the 1998 Aliens Act
Regulation 12(5) of the Regulations for the application of the 1998 Aliens Act, as amended on 26 February 2004, provides that residence permits may be granted even to aliens not having “D-type” (long-term) visas, if the State interest requires it or in extraordinary circumstances.
Regulation 30(1)(2) provides that aliens who apply for permanent residence permits must enclose with their applications proof that they have paid the requisite processing fee (see below). By regulation 30(3), aliens must show that they have paid the main fee (see below) upon receiving notice that they have been authorised to reside permanently in Bulgaria.
4. Tariff no. 4 for the fees charged by the Ministry of Internal Affairs
This Tariff, issued pursuant to section 1 of the 1951 State Fees Act (Закон за държавните такси), was adopted by the Council of Ministers on 26 February 1998 and published in the State Gazette on 10 March 1998.
Section 10(1) of the Tariff, as in force at the material time, specified that the fee for a long-term residence permit was BGN 2001 (for a permit of up to six months) and BGN 5002 (for a permit of up to one year). There was also a processing fee of BGN 53 (section 10(3) of the Tariff).
Section 12(1) of the Tariff specified that the fee for a permanent residence permit was BGN 1,0004. It was payable after the issuing of the permit (section 12(3) of the Tariff). There was also a processing fee of BGN 55 (section 12(4) of the Tariff).
Under section 18 of the Tariff, as amended in 2000, aliens of Bulgarian origin (defined in paragraph 1(6) of the additional provisions of the 1998 Aliens Act 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.
Section 5 of the 1951 State Fees Act exempts certain categories of persons from paying state fees. These categories, as well as the services in respect of which the exemption applies, are fixed explicitly in the text of the section.
5. The 1991 National Education Act
Paragraph 4(1) of the additional provisions of the 1991 National Education Act (Закон за народната просвета) allows all aliens to enrol in Bulgarian schools. Their education is free of charge if they either (i) have a permanent residence permit (paragraph 4(2), as originally enacted in 1991), or (ii) have been enrolled following a decision of the Council of Ministers or under intergovernmental agreements so providing (the same provision, as amended in 1998), or (iii) are in compulsory school-age (under sixteen), and their parents wok in Bulgaria and are nationals either of a country-member of the European Union or the European Economic Area, or of Switzerland (the same provision, as amended in May 2006, the amendment being intended to implement in Bulgarian law the provisions of Council Directive 77/486/EEC on the education of the children of migrant workers and entering into force on the day of Bulgaria’s accession to the European Union – 1 January 2007). Aliens who do not fall into one of these categories must pay fees at an amount set by the Minister of Education. The proceeds must be used exclusively for the needs of the educational establishments in which those concerned are being schooled (paragraph 4(3), as amended in 1998).
6. The 2000 Bulgarians Living Outside of the Republic of Bulgaria Act
The 2000 Bulgarians Living Outside of the Republic of Bulgaria Act (Закон за българите, живеещи извън Република България) regulates the relations of the Bulgarian State with Bulgarians living outside 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 within the territory of another country (section 2). Individuals meeting these criteria enjoy a number of privileges, including the rights to pay reduced fees for the processing of their immigration papers (section 6(2)) and to obtain permanent residence permits under more favourable conditions (section 15(1)).
B. Relevant international materials
Article 28 § 1 of the United Nations Convention on the Rights of the Child, ratified by Bulgaria on 3 June 1991, reads, in so far as relevant:
“States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means; ...”
1. The applicants complained under Article 8 of the Convention that they had been unable to obtain permanent residence permits after turning eighteen, by reason of the high fees which they could not afford to pay. In their submission, 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.
2. The applicants complained that as a result of not having permanent residence permits they had been required to pay school fees in order to continue their secondary education and receive their diplomas.
1. The Court considers that the applicants’ complaints concerning the difficulties in regularising their immigration status fall to be examined under Article 8 of the Convention, which provides, in so far 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 respondent Government did not submit any observations.
The applicants asserted that they still had the status of victims within the meaning of Article 34 of the Convention, because they had remained without permanent residence permits for a considerable amount of time. During that time, when they were still very young, they had been in constant fear of separation from their family.
As regards the substance of the complaint, the applicants submitted that the interference with their private and family lives, consisting of denying them the status of permanent residents, had been impermissible. This status, which had been bestowed to their mother, should have been available to them as of right. The exorbitant fees to obtain it had placed them in a less favourable position than more affluent individuals. It was, moreover, discriminatory for an individual to lose his right to benefit from his parents’ immigration status merely because he had turned eighteen.
1.1. The Court observes at the outset that despite having been specifically asked to supply further particulars about her immigration status since 1994, the third applicant, Ms Tsaneva, who is legally represented, failed to provide any specific information about her situation, and did not submit documents which would have allowed the Court to properly establish the facts relevant to her complaint. In these circumstances, and in application of Rule 44C § 1 of its Rules, the Court concludes that her complaint has not been sufficiently substantiated.
It follows that Ms Tsaneva’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
1.2. As regards the other two applicants, Messrs Ponomaryovi, the Court observes that under Article 37 § 1 (b) of the Convention it may “at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved...”. To find that this provision applies, the Court must be satisfied that the circumstances complained of no longer obtain and that the effects of a possible violation of the Convention on account of those circumstances have been redressed. In the present case, this entails establishing, firstly, whether the risk of the applicants’ being expelled persists and, secondly, whether the measures taken by the authorities adequately redressed their complaint (see Sisojeva and Others v. Latvia, [GC], no. 60654/00, § 97, ECHR 2007-...; Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007; Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007; S. v. Finland (dec.), no. 48736/06, 26 February 2008; Khirvonen v. Finland (dec.), no. 10939/07, 29 April 2008; and Kordoghliazar v. Romania (dec.), no. 8776/05, 20 May 2008).
With reference to the first question, the Court observes that the first applicant, Mr Anatoliy Ponomaryov, apparently ceased being a legal resident of Bulgaria at the latest on his eighteenth birthday (15 June 2004), after which he could no longer remain in the country on the strength of his mother’s residence permit. His situation was regularised on 11 May 2006, when he obtained a document certifying that he had been granted a permanent residence permit. The second applicant, Mr Vitaliy Ponomaryov, obtained his permanent residence permit on 28 March 2006, before turning eighteen. There is therefore no persisting risk of either of them being expelled. Moreover, the granting of these permits allowed them to remain in Bulgaria and to freely exercise their rights to respect for their private and family lives, as guaranteed by Article 8 and interpreted in the Court’s case-law (see Sisojeva and Others, § 102; Shevanova, § 46; and Kaftailova, § 51, all cited above).
It remains to be determined whether the regularisation of the applicants’ stay was sufficient to redress the effects of the situation of which they complained to the Court. On this point, the Court acknowledges that before the regularisation of his situation the first applicant experienced a period of at least two years of legal uncertainty. However, the same can hardly be said of the second applicant, who obtained his permanent residence permit before turning eighteen and thus did not become an illegal alien at any point. Moreover, the Court cannot overlook the fact that throughout this time no attempt was made to deport either applicant and that they were able to remain in Bulgaria and exercise their Article 8 rights (see Sisojeva and Others, §§ 98 and 99; and Kaftailova, § 53, both cited above). Indeed, at all times the authorities signalled to the applicants that they were willing to regularise their situation and it seems that the only tangible consequences of their not having permanent residence permits were, firstly, the problems with their education and, secondly, the fine imposed on Mr Anatoliy Ponomaryov. However, their problems in relation to the former fall to be examined under Article 2 of Protocol No. 1 (see below), not Article 8 of the Convention. As regards the fine, the Court notes that a complaint under Article 8 in relation to it was declared inadmissible in the partial decision in the present case (see Ponomaryov and Others v. Bulgaria (dec.), no. 5335/05, 18 September 2007).
While the gravamen of the applicants’ complaint was directed against the financial difficulties which they faced when trying to obtain permanent residence permits, Article 8 cannot be construed as guaranteeing, as such, the right to a particular type of residence permit (see Sisojeva and Others, cited above, § 91; Kaftailova, cited above § 51; and M.F.S. v. Bulgaria (dec.), no. 33831/03, 12 February 2008), and the decision whether the individual concerned should be granted one immigration status rather than another is for the domestic authorities alone (see Liu v. Russia, no. 42086/05, § 50, 6 December 2007). The Court therefore considers that, in the circumstances, the eventual regularisation of the applicants’ immigration status constituted adequate and sufficient redress for their complaint.
In view of the foregoing, the Court concludes that both conditions for the application of Article 37 § 1 (b) are met. The matter giving rise to the complaint can therefore be considered to be “resolved” within the meaning of this provision. Moreover, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the complaint under Article 37 § 1 in fine. The application should accordingly, in so far as it relates to the first and the second applicants, be struck out of the list of cases.
2. The Court considers that the complaint that as a result of not having permanent residence permits the applicants had to pay fees for their secondary education falls to be examined under Article 2 of Protocol No. 1 and Article 14 of the Convention. These provisions read, in so far as relevant:
Article 2 of Protocol No. 1 (right to education)
“No person shall be denied the right to education. ...”
Article 14 of the Convention (prohibition of discrimination)
“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 respondent Government did not submit any observations.
The applicants submitted that they had been denied the right to education and discriminated against on the basis of their immigration status and their financial standing. Unlike others, who could benefit from secondary education free of charge, they had been required to pay for it .
The Court observes at the outset that the third applicant, Ms Tsaneva, who is legally represented, failed to provide precise information about her schooling situation, and did not submit documents allowing the Court to establish properly the facts relevant to her complaint. In these circumstances, and in application of Rule 44C § 1 of its Rules, the Court concludes that her complaint has not been sufficiently substantiated. Moreover, the available information tends to suggest that the applicant completed her secondary education in 2004 and was not required to pay fees in relation to attending school or obtaining her diploma.
It follows that Ms Tsaneva’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
As regards the other two applicants, Messrs Ponomaryovi, the Court considers that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court
Decides by a majority to strike the application out of its list of cases, in so far as it relates to the complaint of the first and the second applicants, Messrs Ponomaryovi, about the difficulties in regularising their immigration status in Bulgaria;
Declares unanimously the complaints raised by the third applicant, Ms Tsaneva, inadmissible;
Declares by a majority the remainder of the application admissible, without prejudging the merits of the case.
Claudia Westerdiek Peer
PONOMARYOV AND OTHERS v. BULGARIA DECISION
PONOMARYOV AND OTHERS v. BULGARIA DECISION