Information Note on the Court’s case-law No. 81
December 2005
Timishev v. Russia - 55762/00
Judgment 13.12.2005 [Section II]
Article 2 of Protocol No. 4
Article 2 para. 1 of Protocol No. 4
Freedom of movement
Applicant refused re-entry into the Republic of Kabardino-Balkaria on the basis of an instruction not to admit anyone of Chechen ethnic origin: violation
Article 14
Discrimination
Racial discrimination flowing from applicant’s refused re-entry into the Republic of Kabardino-Balkaria on the basis of an instruction not to admit anyone of Chechen ethnic origin: violation
Article 2 of Protocol No. 1
Right to education
Elementary schooling interrupted after the children’s Chechen father had been considered no longer resident in the Republic of Kabardino-Balkaria: violation
The applicant is a Russian national of Chechen ethnic origin, who was born in the Chechen Republic. Since 1996 he has been living in Nalchik, in the Kabardino-Balkaria Republic of Russia, as a forced migrant. In 1999 he and his driver were travelling by car from Nazran, in the Ingushetia Republic of Russia, to Nalchik. According to the applicant, their car was stopped at a checkpoint on the administrative border between Ingushetia and Kabardino-Balkaria. Officers from the Kabardino-Balkaria State Inspectorate for Road Safety refused him entry, referring to an oral instruction from the Republic’s Ministry of the Interior not to admit anyone of Chechen ethnic origin. According to the Russian Government, the applicant attempted to jump the queue of cars waiting to pass through the checkpoint and then left, after being refused priority treatment.
The applicant complained to a court about the actions of the police officers and claimed compensation for non-pecuniary damage. His claim was dismissed and he appealed unsuccessfully. Having complained to the Russian Prosecutor General, he was informed that, following an inquiry, the prosecutor’s office had ordered the Ministry of the Interior of Kabardino-Balkaria to rectify the police officers’ actions – which had been in violation of Article 27 of the Russian Constitution – and to take measures to avoid similar violations in the future. The Minister of the Interior of the Kabardino-Balkaria Republic nevertheless informed the Prosecutor General’s Office that the order could not be implemented as the courts had found that no violation had occurred. The Minister also provided a summary of the findings of an internal inquiry, which stated that the officer who had stopped the applicant had received oral instructions not to allow people of Chechen ethnic origin travelling by private cars from the Chechen Republic to enter the Kabardino-Balkaria Republic and that the instructions had come from his shift commander, who claimed to have received the same instruction from the deputy head of the public safety police of the Ministry of the Interior.
In September 2000 the applicant’s nine-year-old son and seven-year-old daughter were refused admission to their school in Nalchik – which they had attended from September 1998 to May 2000 – because the applicant could not produce his migrant’s card, a local document confirming his residence in Nalchik and his status as a forced migrant from Chechnya. The applicant had had to give in his migrant’s card in exchange for compensation, received in December 1999, for property he had lost in the Chechen Republic. The headmaster agreed to admit the children informally, but advised the applicant that the children would be immediately suspended if the education department discovered the arrangement. The applicant complained unsuccessfully about the refusal to admit his children to the school.
Article 2 of Protocol No. 4 – The applicant’s version of events having been corroborated by independent inquiries carried out by the prosecution and police authorities, the Court found that the traffic police at the Urukh checkpoint had prevented the applicant from crossing the administrative border between two Russian regions, Ingushetia and Kabardino-Balkaria. There had therefore been a restriction on the applicant’s right to liberty of movement within Russian territory, within the meaning of Article 2(1) of Protocol No. 4. The inquiries carried out by the prosecutor’s office and by the Kabardino-Balkaria Ministry of the Interior had established that the restriction at issue had been imposed by an oral order from the deputy head of the public safety police of the Kabardino-Balkaria Ministry of the Interior. It appeared that the order had not been properly formalised or recorded in some other traceable way, enabling the Court to carry out an assessment of its contents, scope and legal basis. In any event, in the opinion of the federal prosecutor’s office, the order had amounted to a violation of the constitutional right to liberty of movement enshrined in Article 27 of the Russian Constitution. The Court likewise found that the restriction on the applicant’s liberty of movement had not been in accordance with the law.
Conclusion: violation (unanimously).
Article 14 –The Kabardino-Balkarian senior police officer had ordered traffic police officers not to admit “Chechens”. As a person’s ethnic origin is not listed anywhere in Russian identity documents, the order barred the passage not only of anyone of Chechen ethnicity, but also those who were merely perceived as belonging to that ethnic group. It had not been claimed that representatives of other ethnic groups were subject to similar restrictions. In the Court’s view, that represented a clear inequality of treatment regarding the right to liberty of movement on account of one’s ethnic origin. A differential treatment of people in relevant, similar situations, without an objective and reasonable justification, constituted discrimination. Discrimination on account of one’s actual or perceived ethnicity was a form of racial discrimination. Racial discrimination was a particularly invidious kind of discrimination and, in view of its perilous consequences, required special vigilance and a vigorous reaction on the part of the authorities which had to use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity was not perceived as a threat but as a source of enrichment.
Once the applicant had shown that there had been a difference in treatment, it was for the Government to show that the difference in treatment could be justified. The Government did not offer any justification for the difference in treatment between people of Chechen and non-Chechen ethnic origin in the enjoyment of their right to liberty of movement. In any event, the Court considered that no difference in treatment which was based exclusively or to a decisive extent on a person’s ethnic origin was capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures. In conclusion, since the applicant’s right to liberty of movement had been restricted solely on the ground of his ethnic origin, that difference in treatment constituted racial discrimination within the meaning of Article 14.
Conclusion: violation of Article 14 taken in conjunction with Article 2 of Protocol No. 4 (unanimously).
Article 2 of Protocol No. 1– The applicant’s children had been refused admission to the school which they had attended for the previous two years. The Government had not contested the submission that the true reason for the refusal had been that the applicant had surrendered his migrant’s card and had thereby forfeited his registration as a resident in the town of Nalchik. The Government had confirmed however that Russian law did not allow children’s right to education to be made conditional on the registration of their parents’ residence. The applicant’s children were therefore denied the right to education provided for by domestic law.
Conclusion: violation (unanimously).
Article 41– The Court awarded the applicant EUR 5,000 euros for non-pecuniary damage and a certain amount for costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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