FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50963/99
by Daruish AL-NASHIF and Others
against Bulgaria
The European Court of Human Rights (Fourth Section) sitting on 16 December 1999 as a Chamber composed of
MrM. Pellonpää, President,
MrA. Pastor Ridruejo,
MrL. Caflisch,
MrJ. Makarczyk,
MrV. Butkevych,
MrJ. Hedigan,
MrsS. Botoucharova, judges,
andMrV. Berger, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 September 1999 by Daruish Al‑Nashif and Others against Bulgaria and registered on 16 September 1999 under file no. 50963/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Mr Daruish Auni Al-Nashif, was born in 1967 in Kuwait. He describes himself as a stateless person. 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 live at present in the town of Smolyan, Bulgaria, with their mother (the first applicant’s wife), Mrs Hetam Ahmed Rashid Saleh. The fourth and the fifth applicants, Mr Asen Bekyarov and Mr Trendafil Goranov, are Bulgarian nationals born in 1962 and 1956 respectively and residing in Smolyan. All applicants are represented before the Court by Mr Yonko Grozev and Ms Krasimira Yaneva, lawyers practising in Sofia.
A.Particular circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant’s family and his activities in Bulgaria
The first applicant lived in Kuwait until 1992. He arrived in Bulgaria on 20 September 1992 with his wife Hetam Ahmed Rashid Saleh, whom he married in Kuwait. On an unspecified date shortly after his arrival the first applicant obtained a temporary residence permit. He initially resided in Sofia. In February 1995 the first applicant obtained a permanent residence permit. In the end of 1995 the first applicant and his wife, together with their children, the second and the third applicants, moved to the town of Smolyan. There the first applicant ran a butcher’s shop and beverages production unit until his arrest in July 1999. At all relevant times the family members have lived together.
On 15 September 1998 the local board of the Muslim religious community in Smolyan decided to invite the first applicant to teach a course in the Islamic religion to children and their parents. The decision stated that the first applicant was suitable for the job as he knew the Bulgarian language and had a good reputation. The first applicant accepted the offer. 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). This certificate was later confirmed by the Chief Mufti (Главен мюфтия) of the Bulgarian Muslims.
The Islamic religious classes taught by the first applicant commenced in November 1998. They took place every Saturday and Sunday between 4 p.m. and 6 p.m. in the building of the District Muslim Organisation, and were attended by Muslim children and occasionally by their parents. According to the applicants, the classes became popular with both children and their parents. The children of the fourth and of the fifth applicants attended regularly.
The revocation of the first applicant’s residence permit and his ensuing appeals
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, by 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. The first applicant or his counsel have not been shown a copy of this report.
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.
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.
On 4 May 1999 counsel for Mr Al-Nashif submitted appeals against Order no. 63552 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.
In the first weeks of May 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 first applicant’s detention and deportation and his ensuing appeals
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 based on 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. It further mentioned that the first applicant had a passport issued on the same date, 9 June 1999, by the Syrian Embassy in Sofia. It is unclear whether this passport was issued upon the first applicant’s request and whether he had become a Syrian national.
The two orders 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 immediately arrested and transferred to the detention centre in Sofia.
According to the applicants, the conditions at the detention centre, which is located in the proximity of the Sofia airport, are equivalent to prison conditions. Inmates are held permanently behind bars and may leave their cells for a daily 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.
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).
On 17 June 1999 the 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 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.
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 28 June 1999, in the framework of the examination of the first applicant’s appeal against the revocation of his residence permit (against order no. 63552), the Sofia City Court, sitting in camera, granted his 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. The court 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.
On 5 July 1999 the first applicant was deported from Bulgaria. He was brought to the airport and put on a flight to Syria.
Counsel for the first applicant learned about the rejection of her appeal against order no. 63552 on 26 July 1999. On 28 July 1999 she appealed to the Supreme Administrative Court. These proceedings are still pending.
On 27 July 1999 the competent prosecution authority dismissed the appeal of the first applicant’s lawyer of 19 June 1999 concerning the lawfulness of Mr Al-Nashif’s detention. It found that the police had acted within their powers.
The proceedings concerning the first applicant’s appeal of 18 June 1999 against order no. 504 are still pending. On 7 September 1999 the Passport Department filed an answer requesting the rejection of the appeal. There has been no hearing in the case.
B.Relevant domestic law and practice
The Aliens Act of December 1998
Section 10 § 1(1) provides that entry in the country or a visa shall be refused to a foreigner “where by his acts he has endangered the security or the interests of the Bulgarian State or where there exist information that he acts against the security of the country”.
Chapter V Part 1 of the Aliens Act, which comprises of Sections 40 to 47, concerns administrative enforcement measures.
Section 40 § 1(2) provides that the minister of the Interior or other officials authorised by him shall revoke a foreigner’s residence permit where there exist the grounds referred to under Sections 10 and 11.
Section 40 § 2 provides that the order revoking the residence permit shall state the time-limit within which the foreign shall leave the country. The order shall be notified to the foreigner in writing.
Section 41(2) provides that a foreigner may be escorted to the border and deported if he has not left the country before the expiry of his permission to remain in the country, or if he has not left the country within seven days following a notification of a refusal of prolongation of his permission.
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, insofar as relevant, provides as follows:
“...
(2) Orders [issued under Chapter V Part 1] shall not be subject to execution prior to the expiry of the time-limit referred to in Section 41(2) and, in case they have been appealed against, prior to the decision of the competent body, save where immediate execution has been ordered.
...
(4) Until the escorting to the border referred to in Section 41, or the deportation referred to in Section 42, 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.”
The Administrative Procedure Act (Закон за административното производство)
This law establishes general rules concerning the delivery of, and appeals against, administrative decisions. It is applicable in respect of 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.
Section 16 provides that an administrative decision may contain an order for its advance enforcement where this is necessary in order to protect the life or health of others, to prevent economic losses or to safeguard other important public or State interest, as well as in case where there exist a danger that the enforcement of the decision may be prevented or obstructed.
According to Sections 19 and 22 administrative decisions are subject to appeal to the higher administrative authority within a seven days’ time-limit. This time-limit runs as of the date of notification of the administrative decision.
Section 23 provides as follows:
“(1) No administrative decision shall be enforced prior to the expiration of the time-limit for appeal against it, save where the persons concerned have declared in writing that they would not appeal.
(2) A timely appeal shall suspend the execution of the administrative decision.
(3) The preceding paragraphs shall not apply where the law provides for immediate enforcement or where the body which has issued the administrative decision has ordered its advance enforcement.”
According to Sections 33 - 35 and 37, subject to judicial appeal are all administrative decisions, except for, inter alia, those “directly concerning the national security and defence”. An appeal to a court may be submitted within fourteen days of the notification of the decision whereby all administrative remedies have been exhausted or within fourteen days after the expiry of the time-limit for submission of an appeal to the higher administrative authority.
Section 37 § 3 reads as follows:
“The [submission of an] appeal shall have the effect of staying the enforcement of the administrative decision unless the court decides otherwise. In cases where the administrative organ has ordered advance enforcement, the court may stay the execution upon the request of the party concerned.”
Section 49 provides that the administrative authority charged with the execution of an administrative decision shall not proceed to a forceful execution without first having allowed a time-limit within which the decision should be complied with. Failing compliance, the person concerned shall be informed of the date and the manner in which the decision will be enforced.
The Religious Denominations Act (Закон за изповеданията) 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 the law, the public order, or the 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 regulated by the Religious Denominations Act. The Religious Denominations Act does not contain provisions regulating religious classes, except for Section 14 which concerns the opening of high schools and institutions of higher education for the training of religious ministers.
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) who 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.
COMPLAINTS
1.The first applicant complains that his detention was unlawful and not justified under Article 5 § 1 of the Convention. He submits that Bulgarian law lacks the necessary clarity in matters related to detention pursuant to a deportation order and leaves an unfettered discretion to the police. Furthermore, his detention was not justified under paragraph 1(b) of Article 5 of the Convention, which was the only conceivable Convention basis for his detention. This was so because, inter alia, there was no obligation prescribed by law which he had not fulfilled, his teaching having been legal. Moreover, there was hardly any risk that the first applicant would go into hiding. He is married, has two small children and an established business, and was providing for his family. In any event, the authorities could have ordered the first applicant to appear daily at the local police station, as provided for under Section 44 § 3 of the Aliens Act.
2.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 speedy judicial review of the lawfulness of detention under Section 44 § 4 of the Aliens Act. Counsel for the first applicant filed two appeals against his detention. The first appeal, which was lodged on 17 June 1999, relied on the Convention’s direct applicability in Bulgarian law. However, the President of the Sofia City Court ruled that the appeal was inadmissible. The second appeal, filed on 18 June 1999 against order no. 504, was an attempt to rely on the general rule, as provided for in the Administrative Procedure Act, that all administrative decisions are subject to judicial review. However, the appeal has not yet been examined.
3.The first applicant also complains, invoking Article 6 §§ 1 and 3(c) of the Convention, that he did not have access to a court, and that he was not allowed to meet a lawyer or indeed anybody while in detention. He needed to confer with his lawyer for purposes of the proceedings concerning his appeals against orders nos. 63552 and 504. These orders, being based on the allegation that the first applicant posed a threat to national security, amounted to criminal charges against the first applicant. Therefore Article 6 was applicable.
4.The first, the second and the third 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. They submit that their family developed strong links with Bulgaria, whose citizens are the second and third applicants, and where the livelihood of the family was earned. The deportation of the first applicant and the prohibition against his re-entering Bulgaria thus constituted an interference with their right to respect for their family life.
This interference was 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. Sections 10 § 1 and 42 of the Aliens Act are extremely vague. These provisions were interpreted by the authorities as meaning that someone may be a threat to national security without having acted unlawfully or having committed or planned an offence. Such an interpretation was incompatible with the principles of rule of law. It was also against the basic principles of rule of law to accept that a finding that a person threatens the national security may be reached without examination of evidence. Furthermore, if the first applicant was teaching in violation of some legal rules, a fine or another similar measure must be considered the normal reaction. His deportation and the prohibition against his return were disproportionate.
5.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.
6.The first applicant also 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. Thus, being the manager and one of the owners of a limited liability company registered in Bulgaria, the first applicant is prevented from running its daily business, which he used to do.
7.The first applicant also submits that there has been a violation of Article 13 of the Convention in that he did not have an effective remedy in respect of the alleged violations of Articles 8 and 9 of the Convention and of Article 1 of Protocol no. 1.
8.The fourth and the fifth applicants complain, invoking Article 9 of the Convention, that the first applicant’s deportation aimed at putting an end to the religious classes taught by the first applicant to their minor children. The deportation of their children’s teacher was in their view an unlawful and unjustified interference with their Article 9 rights.
PROCEDURE
The application was introduced 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.
THE LAW
1.The first, the second and the third applicants raise complaints under Articles 5, 6, 8, 9 and 13 of the Convention and under Article 1 of Protocol no. 1.
The Court considers that it cannot, on the basis of the file, determine the admissibility of the above complaints and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice thereof to the respondent Government.
2.The fourth and the fifth applicants complain, invoking Article 9 of the Convention, that the deportation of their children’s religious teacher constituted an unlawful and unjustified interference with their right to freedom of religion.
The Court notes that the fourth and the fifth applicants do not claim that the authorities acted to prohibit religious classes for their children and that as a result it would not be possible to find another teacher for them following the deportation of Mr Al Nashif. The Court considers, therefore, that the impugned acts of the authorities cannot be regarded as an interference with the rights of the fourth and the fifth applicants, as protected by Article 9 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
DECIDES TO ADJOURN the examination of the complaints of the first, the second and the third applicants;
DECLARES INADMISSIBLE the remainder of the application.
Vincent BergerMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy