ITEMID: 001-60522
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF AL-NASHIF v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (non-exhaustion of domestic remedies, abuse of right of petition);Violation of Art. 5-4;Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 9 or 13+9;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. The first applicant, Mr Daruish Auni Al-Nashif, a stateless person of Palestinian origin, was born in 1967 in Kuwait. He resided in Bulgaria between September 1992 and July 1999, when he was deported. He now lives in Syria.
The second and third applicants, Abrar and Auni Al-Nashif, are the first applicant's children. They were born in Bulgaria in 1993 and 1994 respectively. They are of Bulgarian nationality and lived in the town of Smolyan, Bulgaria, with their mother, Mrs Hetam Ahmed Rashid Saleh, apparently also a stateless person, until June 2000. Thereafter, Mrs Saleh and the second and third applicants left Bulgaria and settled in Jordan.
10. The first applicant describes his personal circumstances as follows. His father, who died in 1986 in Kuwait, was a stateless person of Palestinian origin. His mother is a Syrian citizen. Despite the fact that he was born in Kuwait and that his mother is a Syrian citizen, the first applicant cannot acquire Kuwaiti or Syrian nationality because in both countries only offspring of male nationals of those States may obtain citizenship.
11. The first applicant lived in Kuwait until the age of 25. He attended high school there and obtained a degree in electronics. In 1992 he married Mrs Hetam Saleh. The parties have not stated the nationality of Mrs Saleh, whose parents live in Jordan. It appears undisputed, however, that the second and third applicants, her children, became Bulgarian nationals pursuant to a provision which confers Bulgarian citizenship on children born in Bulgaria to stateless parents.
12. Mr Al-Nashif has two sisters who live in Syria. His mother also lives in Syria, in the city of Hama. He also has a brother who lived in Kuwait at least until 1994 and has resided in Bulgaria, where he married a Bulgarian national, since 1998.
13. The first applicant submits that after the Gulf War many Palestinians were expelled from Kuwait as Palestinian leaders had supported the Iraqi invasion in 1990. He left Kuwait with his wife, Mrs Saleh, on 16 August 1992 and travelled to Syria and then, on 20 September 1992, to Bulgaria. The first applicant submits that he was in search of a country in which to settle. He could not stay in Syria as he was unable to provide for his family there. The choice of Bulgaria was made because of the existing job opportunities, the relatively easy procedure for obtaining legal status, and the fact that the family had friends of Palestinian origin living there.
14. Mr Al-Nashif and Mrs Saleh arrived in Bulgaria on 20 September 1992. The first applicant was in possession of a Syrian stateless person's identity document, valid until 1993, which he later renewed at the Syrian Embassy in Sofia. In an application form for a residence permit he indicated Hama, Syria, as his place of residence.
15. On an unspecified date shortly after his arrival the first applicant obtained a temporary residence permit. Mr Al-Nashif, together with other persons, ran a beverages production business. He and his wife initially resided in Sofia, where the second and the third applicants were born in 1993 and 1994.
In February 1995 the first applicant obtained a permanent residence permit.
16. In February 1995 the first applicant contracted a Muslim religious marriage with a Ms M., a Bulgarian citizen. Under Bulgarian law that marriage has no legal effect.
Ms M. lived in Sofia with her mother. During an unspecified period of time Mr Al-Nashif supported them financially.
It is undisputed that after the religious marriage with Ms M. the first applicant continued living with Mrs Saleh and their children in Sofia.
17. At the end of 1995 he and Mrs Saleh, together with their children, moved to Smolyan, a town of about 34,000 inhabitants in Southern Bulgaria, some 300 km away from Sofia. There the first applicant ran a butcher's shop and beverages production unit until his deportation in July 1999. Between November 1998 and April 1999 he also taught Islamic classes.
18. At the beginning of 1996 Ms M. followed the first applicant to Smolyan, where she stayed several months in an apartment rented by him. She often joined Mr Al-Nashif during his business trips to towns in Bulgaria.
The first applicant stated that while in Smolyan he had continued living “on a permanent basis” with his wife Hetam Saleh and their two children, the second and the third applicants. He submitted copies of two affidavits, made in June 2000 by his wife, Mrs Saleh, and by his sister-in-law, the wife of his brother, who had resided in Bulgaria since 1998, both confirming that Mr Al-Nashif lived in Smolyan with Mrs Saleh.
In a statement made on 19 January 2001 at the request of the Government for the purposes of the hearing in the present case, Ms M. stated that the first applicant had lived with her in Smolyan.
19. Ms M. apparently suffered from a mental disturbance. In December 1996 she was hospitalised in a psychiatric clinic. Thereafter she did not return to Smolyan and stayed in Sofia.
20. Throughout 1997 the first applicant visited Ms M. in Sofia. Their relationship ended in early 1998.
21. On 14 January 1999 a police officer in Smolyan reported to his superiors (see paragraph 63 below) on Mr Al-Nashif's religious activities.
On an unspecified date in 1999 the Regional Prosecutor's Office (окръжна прокуратура) in Smolyan opened file no. 18/99 which was later transmitted to the police.
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”) of the National Police Directorate at the Ministry of the Interior (“the Passport Department”), proposed that the first applicant's residence permit be revoked.
22. 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” (see paragraph 68 below). 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 to leave the country.
Order no. 63552 was served on the first applicant on 27 April 1999. He was not given any additional information.
23. 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.
24. In May and June 1999 the local Muslim religious leader in Smolyan and the Chief Mufti of the Bulgarian Muslims filed with the Ministry of the Interior and with other institutions letters supporting the first applicant. They confirmed that Mr Al-Nashif had been teaching with their authorisation, and in full conformity with Article 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 AlNashif as a dangerous terrorist connected with a fundamentalist organisation. The local Muslim religious leader in Smolyan stated, inter alia, that the measures against Mr Al-Nashif constituted “a demonstration of, and incitement to, anti-Islamic and xenophobic tendencies”.
25. In May 1999 the first applicant requested and obtained a certificate that he had never been convicted of a criminal offence. He needed the certificate in order to apply for Bulgarian citizenship.
26. 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.
27. 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 Adults' Temporary 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 the decision was not subject to appeal. Order no. 503 prohibited the first applicant's re-entry on Bulgarian territory.
The two orders did not state any reasons.
28. They were served on the first applicant on 10 June 1999 in Smolyan, at the local police station, in the presence of his lawyer. He was not given further details of the reasons underlying the measures against him. He was immediately arrested and transferred to the detention centre in Sofia.
29. On the same day the Ministry of the Interior issued a press release announcing the orders for the first applicant's deportation and exclusion. It stated, inter alia:
“In 1995 Mr Al-Nashif undertook steps ... with a view to opening an Islamic religious study centre. That provoked a significant negative public reaction, reflected in the media, and the interference of the ... State organs prevented the realisation of the project.
In 1997 an Islamic study seminar was held in Narechenski Bani with Mr AlNashif's active participation. Those activities of the organisers, including Mr Al Nahsif, were considered unlawful and were therefore terminated by the police. [The organisers and Mr Al-Nashif] were warned that they could not engage in such activities without permission and licence as required by law.
In the end of 1998 and the beginning of 1999 it became known that Mr Al-Nashif was teaching the Koran to ... minors, organised in groups of 10-15 children, with the financial assistance of the company ...[illegible]. An inquiry was undertaken, which disclosed that Mr Al-Nashif engaged in activities for which he had no permission or qualification. Therefore, and under ... the Aliens Act, his residence permit was withdrawn ... Orders for his deportation and exclusion were issued ... [and] served on 10 June 1999 ... Al-Nashif was transferred to the [detention centre] in Sofia and will be deported...”
30. The conditions at the detention centre, which is located in the proximity of the Sofia airport, were equivalent to prison conditions. Inmates were held permanently behind bars and could leave their cells for a daily one-hour walk and also for the time necessary to use the toilet, every morning and evening.
31. 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.
32. Following the first applicant's arrest on 10 June 1999 the competent authorities observed that he was not in possession of a document valid for international travel. On 14 June 1999 the Passport Department wrote to the Bulgarian Foreign Ministry requesting its assistance in obtaining of a laissez-passer from the Syrian Embassy in Sofia. The Syrian Embassy issued that document on 28 June 1999. On 1 July 1999 the Passport Department contacted Balkan Bulgarian Airlines.
On 4 July 1999 the first applicant was deported from Bulgaria. He was brought to the airport and put on the first available direct flight to Damascus.
33. His wife, Mrs Saleh, and their children initially remained in Bulgaria. In May 2000 the second applicant, who was then seven years' old, completed first grade in the elementary school in Smolyan. The third applicant, who was six years old at that time, attended preparatory school.
34. As Mrs Saleh had no income in Bulgaria and the first applicant was unable to provide financial support from Syria, on 29 June 2000 Mrs Saleh and the second and third applicants left Bulgaria. They went initially to Syria where they stayed for a month with Mr Al-Nashif. As there was allegedly no room for the family there, Mrs Saleh and the children went to Jordan, to the home of Mrs Saleh's parents. Mr Al-Nashif travelled to Jordan on a one-month visa and on 5 September 2000 returned to Syria as he had allegedly no legal right of remaining in Jordan.
35. On 4 May 1999 counsel for Mr Al-Nashif submitted appeals against Order no. 63552 (the revocation of residence order) to the Supreme Administrative Court (Върховен административен съд) and to the Ministry of the Interior.
36. 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.
37. 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.
38. On 28 June 1999 the Sofia City Court, sitting in camera, granted Mr Al-Nashif's lawyer's request for a stay of execution. The court noted that orders issued under the Aliens Act were not subject to judicial review 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.
39. On 30 June 1999 the Passport Department filed an objection with the Sofia City Court against its ruling of 28 June 1999 and submitted “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 in 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”.
40. 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 national security. The court also noted that the Passport Department had classified these acts as falling with the scope of 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 review.
41. Counsel for the first applicant learned about the rejection of Mr AlNashif's appeal on 26 July 1999. On 28 July 1999 she appealed to the Supreme Administrative Court. These proceedings ended by judgment of the Supreme Administrative Court of 4 April 2000, which found that orders issued under Section 40 (1)(2) in conjunction with Section 10 (1)(1) of the Aliens' Act were not subject to appeal and need not be reasoned. They should merely state the legal provision on which they were based.
42. On 17 June 1999 the first applicant's lawyer appealed to the Sofia City Court against his detention. 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.
43. On 19 June 1999 counsel for the first applicant complained to the competent prosecution authorities against the detention of Mr Al-Nashif and stated that she had been refused access to her client. On 27 July 1999 the competent prosecution authority dismissed the appeal. It found that the police had acted within their powers.
44. 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, that he had never sought to abscond and that he had reported voluntarily to the Smolyan police station when summoned. She again relied on Article 5 § 4 of the Convention and Article 13 of the International Covenant on Civil and Political Rights (ICCPR) and also requested a stay of execution.
45. These proceedings have not resulted in any decision. On 7 September 1999 the Passport Department filed an answer requesting the rejection of the appeal. There has been no hearing in the case.
46. 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 alleged violations of, inter alia, Article 8 of the Convention and Article 13 of the ICCPR.
47. In August 1997 Mr Al-Nashif took part in a religious seminar in Narechenski Bani. The seminar was attended by several Bulgarian Muslim religious leaders of national and regional level, including the person who in November 1997 was elected to the post of, and then registered by the competent Governmental agency as, Chief Mufti of the Bulgarian Muslims. At a certain point during the seminar the police arrived, and took away printed material and videotapes used at the seminar. No relevant criminal proceedings against any participant at the seminar have ever been brought.
48. In November 1998 the first applicant started teaching religious classes. They took place every Saturday and Sunday between 4 p.m. and 6 p.m. in the building of the District Muslim Organisation in Smolyan, and were attended by Muslim children and occasionally by their parents. The classes were organised together with the board of the Muslim religious community in Smolyan. On 15 September 1998 the board had invited Mr Al-Nashif to teach a course in the Islamic religion to children and their parents. Its decision stated that the first applicant was suitable for the job as he knew the Bulgarian language and had a good reputation. On 5 November 1998 the District Mufti Office (районно мюфтийство) issued to the first applicant a certificate stating that he was authorised to preach on the territory of the Smolyan district in accordance, inter alia, with the Statute of the Muslim religious denomination in Bulgaria and the decisions of the Supreme Muslim Council (Висш мюсюлмански съвет). The certificate was later confirmed by the Chief Mufti of the Bulgarian Muslims.
49. The Government asserted that shortly after his arrival in Smolyan in 1995 the first applicant, together with local Muslims, had sought to organise an Islamic study centre, that he had rented a house for that purpose, that his plans had provoked a negative public reaction and that after having established through an inquiry that the requirements of the Religious Denominations Act had not been met, the competent authorities had prevented the realisation of the project. There had been allegedly a danger that the Islamic centre would propagate extremist views. Mr Al-Nashif had been orally warned against engaging in unlawful religious activities.
50. In support of the above statement the Government submitted copies of several newspaper articles and four declarations, one of which was signed by 65 inhabitants of Smolyan protesting against the opening of an Islamic centre in town.
The Court notes that the names on the list of those who signed the protest suggest that it was supported exclusively by persons of Bulgarian ethnic origin.
51. The Government have not submitted any information pertaining to the alleged inquiry undertaken by the competent authorities or the requirements of the Religious Denominations Act that had not allegedly been met.
52. The first applicant submitted that he had intended to open a computer training centre, but had abandoned his plans after meeting a hostile reaction from people who considered that the computer centre would be a front for religious courses.
53. The Government alleged that the first applicant had sought to impose fundamentalist Islam on others through the use of force and threats.
54. In support of that allegation the Government submitted two statements by Ms M., the person whom the first applicant had married through a Muslim religious ceremony.
The first statement was written by her on 2 September 1996. On that day Mr Al-Nashif had locked her up in her room in a hotel where they had been staying during a trip to Pleven. Ms M. had called the police. She and the first applicant had been brought to the police station where they had submitted written statements and had been released. No charges had been brought against Mr Al-Nashif on that occasion. He submitted that he had locked the door as Ms M. had been in a depressed state and could have hurt herself.
55. In her statement to the police Ms M. wrote that the first applicant had told her that she should believe in Mohamed or burn in Hell, but she had replied that she loved Jesus Christ. The first applicant had also told her to dress as a Muslim woman. She further stated that she had read in the local press about the threat of fundamentalism in Smolyan. She knew that people with “black briefcases full of 100 dollar notes” were entering Bulgaria with the purpose of spreading Islam, brainwashing Bulgarians and waging “Jihad - death to Christians”. She knew that they were using “bombs, guns, sedatives and other inadmissible means in order to smuggle into the country illegal [copies of the] Koran, drugs, and more”.
56. The Government submitted a second written statement by Ms M., which was made on 19 January 2001 and addressed to the Court, for the purposes of these proceedings. That statement repeated Ms M.'s earlier allegations and added that the first applicant had operated with large amounts of cash, had given charity for the building of mosques and religious schools and had distributed food and clothes. He had allegedly made video tapes recording the results of his activities and had sent them to his benefactors “in the Islamic states”.
57. The Government stated (in submissions to the Court and through the “information note” described below) that Mr Al-Nashif had been a representative of the Islamic foundation Tayba, which had allegedly continued the activities of the “banned” foundations Irshad and Al Wakf Al Islami.
Further, Mr Al-Nashif had registered several commercial firms in Bulgaria and his partners in these firms had included persons who had been co-ordinators of fundamentalist organisations such as Tayba, Irshad and ElManar. Finally, there existed information that Mr Al-Nashif had performed management and co-ordination functions in the “illegitimate” Union of Islamic Organisations, Bulgarian branch.
The Government did not provide further details about those organisations.
58. The first applicant replied that he had never been a representative for the Tayba foundation which, in any event, as of 2001, was still functioning lawfully in Bulgaria. It had been registered in Bulgaria in 1995. By Decision no. 325 of 7 July 1998 the Council of Ministers had authorised the foundation to engage in religious activities.
The Irshad foundation was not a fundamentalist organisation either. It had been registered in Bulgaria in 1991 and as recently as 2001 the competent court had certified that its registration had not been terminated. The former Chief Mufti, whose election to that post had been registered by the Government in 1997, was a member of its managing board.
The El-Manar foundation had indeed been dissolved on 15 February 1996 on the ground that its goals were unlawful. However, its representative had not been among the persons named by the Government as Mr AlNashif's business partners.
The applicants submitted copies of certificates issued by the legal persons' register at the competent court.
59. The Government stated that the seminar had been organised under the auspices of the Irshad foundation, which was allegedly known as one of the disguised creatures of the Muslim Brothers, a fundamentalist organisation. The police had considered the seminar unlawful and dangerous for national security. The printed and video material that had been confiscated had disclosed preaching of “religious and ethnic extremism”. The police had put an end to the seminar. Two of the instructors who had participated had been deported from Bulgaria. Mr AlNashif had allegedly been one of the organisers. He and all other participants had received oral warnings.
60. In support of these allegations the Government submitted copies of newspaper articles.
61. The applicants submitted a declaration by the Chief Mufti of the Bulgarian Muslims, dated 1 August 2000, apparently prepared for the purposes of the present case, stating that the only sponsor of the 1997 seminar had been the International Youth Assembly Nedua, registered in Saudi Arabia and in many other countries, including Bulgaria. The Chief Mufti further stated that the seminar had been devoted to traditional religious teaching. The police had gone there, apparently in response to an anonymous call. They had taken away material, part of which they had then returned. As the police had not established any wrongdoing, the seminar had continued after an interruption.
62. The Government stated that against the background of the first applicant's religious activities between 1995 and 1998 the authorities had justifiably feared that the classes given by him to children could be dangerous.
63. In support of this allegation the Government submitted copies of newspaper articles and a copy of a one-page report by a police officer in Smolyan, addressed to his superiors. The report, dated 14 January 1999, stated as follows:
“I report hereby that I received the following information through a third person:
...[A] Mr Daruish Auni, Syrian national, preaches to some of the inhabitants in [a] neighbourhood [in Smolyan].
He disseminates Arab literature and offers aid: money, as well as [sacrificial] meat, Kurban. There exist indications that audio cassettes with religious content are being distributed and that people listen to them in their homes.”
64. The first applicant categorically denied the allegation that he had offered money or any other incentive to encourage attendance at his religious courses.
65. After the hearing on the admissibility and merits of the case the Government submitted an “information note” issued on 19 January 2001 by the National Security Service, apparently for the purposes of the proceedings in the present case. The note reiterated the allegations submitted by the Government as regards Mr Al-Nashif's religious activities, including Ms M.'s contention that he had been receiving money from abroad “in suitcases full of USD 100 bills”.
66. Article 120 provides:
“(1) The courts shall review the lawfulness of the administration's acts and decisions.
(2) Physical and legal persons shall have the right to appeal against all administrative acts and decisions that affect them, save in the cases expressly specified by Act of Parliament.”
67. This law establishes general rules concerning the delivery of, and appeals against, administrative decisions.
According to Sections 33-35 and 37, all administrative decisions are subject to judicial review except, inter alia, those “directly concerning national security and defence”.
68. Section 40 (1)(2) in conjunction with Section 10 (1)(1) provides that the Minister of the Interior or other officials authorised by him may revoke a foreigner's residence permit “where by his acts he has endangered the security or the interests of the Bulgarian State or where there exists information that he acts against the security of the country”.
Section 42 provides that the Minister of the Interior or other officials authorised by him may order a foreigner's deportation where “his presence in the country poses a serious threat to national security or public order”.
69. Section 44 (4), insofar as relevant, provides as follows:
“Until [his] ... deportation ... the foreigner may be placed in a specialised centre at the discretion of the Minister of the Interior or other officers authorised by him.”
70. Section 47 provided, as in force at the relevant time:
“(1) Orders issued under Chapter V Part 1 imposing administrative measures which directly concern national security shall not be subject to appeal.
(2) These orders shall state only their legal ground.”
71. The Bulgarian courts have differed on the question whether a mere reference to national security in the grounds of an order under the Aliens Act is sufficient to declare an appeal against such an order inadmissible or whether some proof that national security is indeed at stake should be required (see paragraphs 38-41 above and the Supreme Administrative Court's judgment of 26 July 2000 in case 5155-I-2000).
72. In December 2000 Parliament adopted a law on interpretation of Section 47 of the Aliens Act, clarifying that a court examining the admissibility of an appeal against an administrative decision citing as a legal basis Section 10 (1)(1) of the Aliens Act (“directly related to national security”) should automatically declare the appeal inadmissible without collecting evidence. A motion by 56 members of Parliament and by judges of the Supreme Administrative Court to declare that interpretative law, insofar as relevant here, unconstitutional was rejected by the Constitutional Court on 29 May 2001 on formal grounds.
73. On 23 February 2001 the Constitutional Court delivered its judgment in a case brought by 55 members of Parliament who considered that Section 47 (1) of the Aliens Act should be repealed as being unconstitutional and in contravention of the Convention.
74. The Constitutional Court could not reach a majority, an equal number of judges having voted in favour of the application and against it.
According to the Constitutional Court's practice, in such a situation the request for a legal provision to be struck down is considered as dismissed by default.
75. The judges who found that Section 47 (1) was not unconstitutional and did not contravene the Convention considered that the Constitution authorised Parliament to exclude the right to seek judicial review of certain categories of administrative decision provided that a constitutionally guaranteed legitimate aim overrode the interests of the protection of fundamental rights and freedoms. National security was such a legitimate aim. Its protection had priority over the protection of individual rights and freedoms. Section 47 (1) of the Aliens Act took account of the fact that confidential information was at stake in deportation decisions based on national security. The wishes of a foreigner who had imperilled the security or the interests of the Bulgarian State could not prevail over national security considerations. Furthermore, there existed a possibility of filing an administrative appeal to the Minister of the Interior or to the Council of Ministers, which was a sufficient remedy.
As to the Convention, its provisions permitted restrictions on human rights on grounds of national security and did not enshrine a right to a judicial appeal against deportation decisions.
76. The judges who held that Section 47 (1) was unconstitutional considered that the principle of proportionality inherent in the Constitution required that limitations on constitutional rights could not go beyond what was strictly necessary for the achievement of the legitimate aim pursued and that regard should be had to the fundamental importance of the right to judicial remedies enshrined in Article 120 of the Constitution. Depriving aliens of any possibility of obtaining judicial review of a deportation decision was disproportionate. The interests of national security were sufficiently protected as the administration could order immediate execution of a deportation order notwithstanding a pending application for judicial review. Furthermore, it was not true that an administrative appeal was possible.
77. This second group of judges also considered that the impugned provision was incompatible with the Convention as interpreted in the case-law of the European Court of Human Rights.
The unavailability of judicial review could lead to violations of Article 3 of the Convention if an alien was deported to a country where he or she risked inhuman treatment.
The judges further stated, inter alia:
“The Aliens Act allows the confinement [of an alien pending deportation] at the discretion of the Ministry of the Interior, without limitation in time ... Neither that Act nor any other law provides for any possibility of review ... [However,] the Convention, in its Article 5 § 4, requires a remedy ...
Deportation ... may constitute an interference with family life [under Article 8 of the Convention]. Therefore, an assessment must be made as to whether such a measure is necessary in a democratic society in the interests of national security ...
National security is one of the values of a democratic society, as much as fundamental rights and freedoms are. A domestic legal provision would be contrary to the Convention if there were no guarantees against administrative abuse and arbitrariness. These guarantees must be provided for by law. The balance between fundamental rights and the public interest must be assessed in every case by a court or another body independent from the executive.”
78. In April 2001 the Aliens Act was amended. The possibility of filing an administrative appeal to the Minister of the Interior was introduced (Section 46, as amended). A new Section 44 a stated that an alien should not be expelled to a country where his life, liberty or physical integrity were endangered.
The rule providing that decisions citing national security as grounds need not state any reasons and are not amenable to judicial review remains in force (Section 46 (2) and (3)). The law does not require any consideration of the question whether a deportation decision would interfere with the alien's right to family life and, if so, whether a fair balance has been struck between the public interest and the rights of the individual concerned.
79. Sections 6 and 30 of the Religious Denominations Act provide, inter alia, that the statute and rules 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, public order, or morals, the Council of Ministers may require their amendment, or refuse to approve them.
80. Section 30 also provides that the statute and rules of the religious denomination must 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.
81. 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.
82. Sections 13 and 21 of the Statute provide 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.
83. The Government relied in their submissions on the Framework National Security Concept, a declaration adopted by Parliament in April 1998. They referred to the passages in which national security was defined so as to include the following:
“... protection of the fundamental rights and freedoms of Bulgarian citizens, defence of the national borders, territorial integrity and independence, ... and the democratic functioning of public and private institutions so as to ensure that society and the nation shall preserve and enhance their well-being.”
The Framework Concept further pointed to the possible threats to national security and stated, inter alia:
“Economic and social differences in Europe have deepened and new insecurity and risks have thus appeared. Conflicts on an ethnic, religious and social basis have emerged ... Religious and ethnic communities, some of which are in conflict, co-exist in south-eastern Europe. Since the creation of new States certain communities have displayed a tendency towards insularity. That has sharply increased the regional threats to our national security.... Religious and ethnic extremism influences local communities that lack strong democratic traditions...”
VIOLATED_ARTICLES: 13
5
8
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-57651
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF FREDIN v. SWEDEN (No. 1)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings
JUDGES: C. Russo;Gaukur Jörundsson;R. Pekkanen
TEXT: 8. Mr Anders Fredin, an agricultural engineer, and his wife Mrs Maria Fredin own several parcels of land in the municipality of Botkyrka. On the land there is a farm and a gravel pit. The parcel where the gravel pit is located consists of 27 hectares and is called Ström 1:3. It was specifically created in 1969 from parts of the other properties with a view to the exploitation of the pit.
9. When Mr Fredin’s mother bought the land in 1960 the commercial exploitation of the gravel pit had been at a standstill since the middle of the 1950s. In the meantime, gravel had been taken only for use on the farm. The Fredins were eager for exploitation to resume and, on 20 March 1960, they signed a licence agreement with two companies ("the Jehanders"), granting them, for an annual fee, the exclusive right to extract gravel from the pit for fifty years. The Jehanders subsequently acquired several other gravel pits in the vicinity and thus obtained, so the applicants allege, a quasi-monopoly on gravel production in the region.
10. In 1963 a prohibition on the extraction of gravel without a permit was introduced through an amendment to the Nature Protection Act 1952 (naturskyddslagen 1952:688). On 11 December 1963 the County Administrative Board (länsstyrelsen) of Stockholm County granted Mr Fredin’s parents the necessary permit. This provided, inter alia, that exploitation had to be in conformity with a plan drawn up in May 1962; in particular, it had to be carried out in three stages, each of which should not exceed ten years. In addition, restoration works had to be carried out continuously during each stage and financial security lodged to cover the costs thereof.
11. On 4 September 1969 Mr Fredin acquired a fifth of the property by way of a gift from his mother.
12. On 1 July 1973 an amendment to the Nature Conservation Act 1964 (naturvårdslagen 1964:822 - "the 1964 Act") - which had left unaffected the need for a permit - empowered the County Administrative Board to revoke permits that were more than ten years old (see paragraph 35 below).
13. On 31 July 1977 the applicants bought the remainder of the property, which thenceforth belonged as to two-thirds to Mr Fredin and as to one-third to his wife. The County Administrative Board was informed of the change in ownership.
14. Despite a number of requests over the years, the Jehanders had, at the time of the applicants’ purchase, still not put the gravel pit to commercial use. The Fredins accordingly instituted court proceedings for breach of contract, but the dispute was resolved by a friendly settlement according to which the licence agreement was deemed to have terminated with effect from 1 October 1979.
15. On 3 October 1979 the applicants requested that the permit to take gravel should be formally transferred to them. With the consent of Mr Fredin’s parents they began to exploit the pit in 1980, partly through a new licensee. At about this time the County Administrative Board offered to redeem the exploitation permit from the applicants for a sum, according to them, of around 50,000 Swedish kronor. However, the applicants did not accept the offer. As from 1983 they conducted part of the business themselves through Kagghamra Grus AB, a limited liability company they owned.
16. On 30 May 1980 the County Administrative Board granted the applicants an exemption from the general prohibition in the 1964 Act against building near the seashore and allowed them to build a quay with shiploading equipment. The exemption was valid until further notice, but not for longer than the permit to exploit gravel. The Board stated that the "decision [did] not imply that any position [had] been taken as to the possibility of a future reconsideration of the gravel exploitation activities on the property". The applicants built the quay at a cost of 1,000,000 kronor and also invested some 1,250,000 kronor in the gravel exploitation business over the period from 1980 to 1983.
17. On 24 April 1981 the County Administrative Board asked the applicants to lodge a financial security of 40,000 kronor to cover restoration costs, this amount being subsequently increased to 75,000 kronor.
18. After the applicants had provided the security required, the County Administrative Board, by "partial decision" of 14 April 1983, amended its decision of 11 December 1963 (see paragraph 10 above) by transferring the permit to them. The Board added that it planned to issue new directives concerning restoration work and that, in view of the 1973 amendment of the 1964 Act (see paragraph 12 above), it intended to re-examine the permit question in 1983 with a view to a possible termination of the activities.
19. On 25 August 1983 the County Administrative Board notified the applicants that, in the interest of nature conservation, it was contemplating amending the permit so as to provide that exploitation of the gravel pit should cease by 1 June 1984.
20. In a memorandum dated 14 May 1984, the County Administrative Board indicated two possible ways of discontinuing the exploitation. One was to stop extraction as soon as possible because the environment was being damaged and there was already a satisfactory supply of gravel in the region. The other was to allow the exploitation to continue for a couple of years, thereby making it possible to give the area a natural shape.
The memorandum was submitted to the National Environment Protection Board (naturvårdsverket) and to the municipality of Botkyrka. On 18 September 1984 the Board replied that it favoured the first alternative and that it considered that a reasonable exploitation-time had been afforded as the permit had been valid for twenty years. On 1 October the municipality expressed the opinion that a certain closing-down period was preferable as it would facilitate the restoration of the landscape.
21. In a new "partial decision" of 19 December 1984, the County Administrative Board ordered, inter alia, that:
(a) the exploitation of gravel should cease within three years, i.e. by the end of 1987, by which time the area should also be restored;
(b) as from the day of the decision further extraction from certain parts of the pit be prohibited;
(c) before 1 March 1985 the applicants should increase the security to 200,000 kronor, to cover possible restoration costs resulting from the growing activity in the pit; they should also draw up a new work plan, so that the Board could fix the final conditions for the extraction and restoration works.
22. The applicants appealed to the Government, claiming that:
(a) the County Administrative Board’s decision was in part based on insufficient scientific material;
(b) it should not have followed the opinion expressed by the municipality of Botkyrka (see paragraph 20 above), in view of that opinion’s limited scope;
(c) its decision, and also the opinion of the National Environment Protection Board, should have been based on the views of a geological expert;
(d) it had not given the applicants’ interests sufficient consideration and had not granted a reasonable closing-down period;
(e) the order to submit a new extraction plan and to lodge security of 200,000 kronor constituted a financial penalty;
(f) the prohibition on extraction from parts of the pit was unlawful as it amounted to a closing-down of the activities;
(g) pursuant to the 1964 Act, as interpreted in the light of the Environment Protection Act 1969 (miljöskyddslagen 1969:387) and the Water Act 1918 (vattenlagen 1918:533), they had a protected right to exploit gravel for at least ten years from the transfer of the permit on 14 April 1983.
23. On 26 March 1985 the County Administrative Board submitted an opinion on the appeal, stating amongst other things that it had known, from its contacts with the Jehanders (see paragraph 9 above), that no exploitation of gravel was imminent.
24. In a decision of 12 December 1985 the Government (Ministry of Agriculture) dismissed the appeal, stating that they concurred with the County Administrative Board’s assessment. They ordered, however, that the validity of the permit should be extended to 1 June 1988 and that the security should be lodged on 1 March 1986 at the latest.
25. On 9 March 1987 the County Administrative Board adopted a restoration plan for the pit.
26. Before the expiry of the permit the applicants twice requested new permits, but to no avail. The last request was rejected by the Board on 18 May 1987. The applicants’ appeal to the Government was dismissed on 9 June 1988, although the validity of the permit was extended until 1 December 1988.
27. On 1 December 1988 extraction of gravel from the pit ceased. The applicants had by then almost terminated the first of the three exploitation stages provided for in the plan attached to the permit of 11 December 1963 (see paragraph 10 above).
28. On 9 February 1989 the County Administrative Board requested the public prosecutor to institute criminal proceedings against Mr Fredin for non-compliance with the 1964 Act, in that he had not restored the gravel pit as provided for in the permit. These proceedings are still pending and the restoration work has not yet been carried out.
29. On 14 March 1989 the County Administrative Board rejected a request by the applicants for a special extraction permit in order to enable them to comply with the 1987 restoration plan (see paragraph 25 above). Their appeal to the Government was dismissed on 21 June 1989, and their application for judicial review under the new Act on Judicial Review of Certain Administrative Decisions (lag om rättsprövning av vissa förvaltningsbeslut 1988:205), which entered into force on 1 June 1988, was rejected by the Supreme Administrative Court on 13 December 1990. These proceedings are not the object of the present complaint.
30. As regards the impact of the revocation of the permit on the value of their property and of their wholly-owned licensee, Kagghamra Grus AB, the applicants have referred to three certificates.
According to the first, issued by Mr Lars Carlsson, a consultant, on 17 March 1987, it appears from the accounts of the applicants’ company that it would become insolvent without the income from the pit.
The second certificate, drawn up on 1 September 1988 by Mr Nils Olof Rydstern, an economist, states that the applicants’ company would have had an estimated market value of 14-18,000,000 kronor in 1988, had the applicants been able to extract gravel from 1980 onwards without any interference by the authorities. Mr Rydstern points out that this is not the company’s liquidation value.
In the third certificate, dated 14 September 1988, Mr Hans Lagerqvist, a land-surveyor at the Senior Land-Surveying Authority (överlantmäterimyndigheten), notes that, as a result of the revocation of the permit, the gravel pit was considered in 1988 to be worth less than 1,000 kronor for general property-taxation purposes. Mr Lagerqvist’s own assessment, made on the assumption, inter alia, that the extraction of gravel would have continued according to the 1963 permit, concludes that the estate’s market value decreased by 15,500,000 kronor as a consequence of the revocation. Taking into account Mr Rydstern’s valuation, the total loss suffered by the applicants is estimated at approximately 28-31,000,000 kronor.
31. The applicants have also submitted a report by Mr Dick Karlsson, a consultant, according to which, in a large number of revocation cases concerning businesses that had been carried on for several years, the County Administrative Board had not ordered the restoration of the gravel pits at issue. The Board was also said to have given the holders of the permits in question the opportunity of obtaining new ones, should the supply of gravel on the market decrease. Mr Karlsson noted that in these cases the permits had been held by two companies, including one of the Jehanders (see paragraph 9 above). He concluded that the Board’s decision concerning the applicants’ permit was exceptional, in that it terminated an ongoing profitable business.
32. The basic regulations on the protection of nature are laid down in the 1964 Act.
33. According to section 1 of the Act, everyone must show respect and circumspection in his or her dealings with nature. In addition, all necessary measures have to be taken to limit or counteract any damage to nature which is bound to result from any works undertaken or otherwise.
34. Section 3 provides that, in decisions on questions relating to nature conservation, other public and private interests must be duly considered.
35. Section 18 of the Act prohibits, inter alia, extraction of gravel for purposes other than the domestic needs of the landowner without a permit from the County Administrative Board. The section also specifies that:
"The County Administrative Board may require a party applying for an exploitation permit to submit, on pain of the application being rejected, material showing the need for the extraction and a sufficiently detailed plan for the activities. The permit shall be made subject to such conditions as are necessary to limit or counteract the harmful effects of the enterprise on the natural environment. In the absence of special reasons to the contrary, a permit shall be valid only if sufficient financial security is lodged to ensure that the conditions prescribed are actually fulfilled. If the security given proves to be inadequate, the County Administrative Board may order that the permit shall not become effective until additional security has been lodged.
If a prescribed measure is to be taken by someone other than the landowner, the latter must allow it to be carried out.
If ten years have elapsed since an exploitation permit acquired legal force, the County Administrative Board may revoke the permit completely or in part or may make its renewal subject to revised conditions. If it becomes apparent that the conditions laid down do not sufficiently limit or counteract the damaging effects that the activities may have on the natural environment, the County Administrative Board may, before the expiry of the stated period, make the permit subject to such additional conditions as may be necessary."
The last sub-paragraph was added on 1 July 1973. Previously an exploitation permit could not be revoked without compensation being paid to the landowner if the prescribed conditions had been complied with. According to the transitional provisions, the ten-year period was, as regards permits valid on 1 July 1973, to be calculated as from that date. The amendment also repealed certain provisions whereby a landowner could be granted compensation if he was refused a permit.
36. Section 40 (2) of the Act provides that an appeal lies to the Government against a decision taken by the County Administrative Board. At the time of the final decision regarding the revocation question (12 December 1985, see paragraph 24 above), the Government’s decisions were not subject to any judicial review. However, since the entry into force, on 1 June 1988, of the Act on Judicial Review of Certain Administrative Decisions, the lawfulness of some decisions by the Government may be challenged before the Supreme Administrative Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-71627
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TIMISHEV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of P4-2;Violation of Art. 14+P4-2;Violation of P1-2;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicant was born in 1950 and lives in the town of Nalchik, in the Kabardino-Balkar Republic of the Russian Federation. He is a lawyer.
10. The applicant is an ethnic Chechen; he was born in the Chechen Republic and lived there. On 31 December 1994 his property in Grozny was destroyed as a result of a military operation. Since 15 August 1996 the applicant has been living in Nalchik as a forced migrant.
11. In 1997 the applicant applied for registration of his permanent residence in Nalchik. His application was rejected pursuant to the local laws of Kabardino-Balkaria prohibiting former residents of the Chechen Republic from obtaining permanent residence in Kabardino-Balkaria. The refusal of the local authorities was upheld by the Nalchik City Court on 19 September 1997 and by the Supreme Court of the Kabardino-Balkar Republic on 23 October 1997.
12. On 19 June 1999 the applicant and his driver travelled by car from Nazran in the Republic of Ingushetia to Nalchik in the Kabardino-Balkar Republic. The parties submitted different versions of the subsequent events.
13. According to the applicant, at about 3 p.m. their car was stopped at the Urukh checkpoint on the administrative border between Ingushetia and Kabardino-Balkaria. Officers of the Kabardino-Balkar State Inspectorate for Road Safety (Гибдд Мвд Кбр) refused him entry, referring to an oral instruction from the Ministry of the Interior of Kabardino-Balkaria not to admit persons of Chechen ethnic origin. He had had to turn back and make a detour of 300 kilometres to reach Nalchik through a different checkpoint.
According to the Government, the applicant attempted to jump the queue of cars waiting for their turn at the checkpoint, but he was refused priority treatment and had to leave.
14. The applicant complained to a court about the allegedly unlawful actions of the police officers; he also claimed compensation for non-pecuniary damage.
15. On 25 August 1999 the Nalchik City Court dismissed the applicant's claim, finding as follows:
“By an order of the Head of the State Inspectorate for Road Safety of the Kabardino-Balkar Republic (no. 68 of 21 June 1999), because of the complicated operational situation at the [administrative] border with the Chechen Republic ... with a view to preventing and putting an end to the entering into towns and villages of persons having terrorist or antisocial intentions ... the road safety police were ordered to reinforce security measures from 2 p.m. on 19 June 1999 until further notice. The police were also instructed to perform stricter controls of vehicles and passengers at checkpoints.
[Police officers M., Kh. and Me.] testified before the Court that, on that day, the Urukh checkpoint had a long queue of vehicles with freight and passengers waiting for passage and registration. The car in which Mr Timishev was travelling attempted to jump the queue, but was refused priority treatment and signalled to wait its turn. None of the officers refused anyone entry into Kabardino-Balkaria on account of their ethnicity, including Mr Timishev. On that day more than seventy buses of Chechens gained entry. However, Mr Timishev accused the officers of deliberately refusing him entry because he was a Chechen. He showed his advocate's card and said that he worked in Nalchik.
The Court considers that the actions of the police officers complied with the Police Act. Although Mr Timishev produced his advocate's card, it indicated that he was a lawyer in Grozny and not in Nalchik; he did not show his passport or a mission order or migrant's card to the police officer. Mr Timishev did not contest this fact. In the Court's opinion, even if Mr Timishev and his driver had had these documents, they should have waited their turn in accordance with the above-mentioned order.
In these circumstances, the Court has no reason to find, and Mr Timishev did not produce evidence, that his right to liberty of movement within the Russian territory was violated. Moreover, on that day he reached Nalchik through the Nizhniy Kurp checkpoint.”
16. On 21 September 1999 the Supreme Court of the Kabardino-Balkar Republic, on an appeal by the applicant, upheld the judgment of 25 August 1999. The court pointed out that the burden of proof was on the applicant, who had failed to show that he had been denied entry because of his Chechen origin.
17. The applicant also complained to the Russian Ombudsman and to the Prosecutor General of the Russian Federation.
18. On 1 February 2000 a prosecutor from the Principal Directorate for the Northern Caucasus of the Prosecutor General's Office (прокурор отдела Главного Управления Генеральной прокуратуры РФ на Северном Кавказе) informed the applicant that, following an inquiry into the facts, the prosecutor's office had ordered the Ministry of the Interior of Kabardino-Balkaria to remedy the violation of Article 27 of the Russian Constitution (представление об устранении нарушений статьи 27 Конституции РФ) committed by officers of the State Inspectorate for Road Safety, and to take measures to avoid similar violations in the future. The relevant part of the report on the violation, attached to the order and dated 19 August 1999, reads as follows:
“The Prosecutor General's Office has inquired into [the applicant's] complaint about unlawful actions by [police officers] ... It has been established that on 19 June 1999 [the applicant] and his driver V., travelling from the town of Nazran in a VAZ2106 car, were stopped by police officer Kh. at the Urukh checkpoint for an inspection of the car and an identity check; following the identity check they were denied entry into Kabardino-Balkaria.
Junior Sergeant Kh., questioned during the inquiry, explained that at a staff meeting before taking up his duties he had received an oral instruction from the shift commander Warrant Officer M. not to allow persons of Chechen ethnic origin travelling by private car from the Chechen Republic to enter Kabardino-Balkaria. From the explanation given by Warrant Officer M., it follows that he himself had received a similar oral instruction from the operations officer on duty at the Ministry of the Interior of Kabardino-Balkaria ... On the basis of the foregoing, [the applicant and his driver] were refused entry into Kabardino-Balkaria, although they did not engage in any unlawful activity ...
Thus, the actions of [police officers] M. and Kh. ... have grossly violated the constitutional rights of Russian nationals of Chechen ethnic origin, who may move freely within the territory of the Russian Federation ... These encroachments on the rule of law were caused as a result of the irresponsible approach of traffic police officers to their professional duties and poor supervision [of their actions] on the part of the management of the traffic police department of the Ministry of the Interior of Kabardino-Balkaria ...”
19. On 3 March 2000 Lieutenant-General Shogenov, the Minister of the Interior of the Kabardino-Balkar Republic, forwarded a summary of the findings of an internal inquiry to a human rights activist who had lodged complaints on behalf of the applicant. The summary bore no date and was signed by Colonel Temirzhanov, Deputy Head of the Internal Security Department of the Ministry of the Interior, confirmed by Colonel Kerefov, Head of the Internal Security Department, and approved by the Minister of the Interior himself. The summary stated:
“When questioned ... by employees of the prosecutor's office of the Kabardino-Balkar Republic, Kh. [the officer who stopped the applicant] explained that at a staff meeting, before taking up his duties, he had received an oral instruction from the shift commander M. not to allow persons of Chechen ethnic origin travelling by private car from the Chechen Republic to enter the territory of the Kabardino-Balkar Republic. M. justified giving such an instruction by reference to a similar oral instruction that he had received from the Deputy Head of the Public Safety Police of the Ministry of the Interior, Colonel Efendiyev ...
On 25 August 1999 ... the Nalchik City Court decided to dismiss [the applicant's] complaint because the [police] officers, who had initially maintained that they had not let the said persons enter the Kabardino-Balkar Republic, pursuant to an oral instruction by Colonel Efendiyev, had insisted before the court that [the applicant and his driver] had wanted to pass through the checkpoint without waiting in the queue, had been refused and had left ...”
The summary then went on to praise the achievements of local police officers on duty at checkpoints, who had seized large quantities of weapons, drugs, counterfeit currency, and so on, and had detained many fugitives from justice. Colonel Temirzhanov concluded:
“1. Information on the prohibition by officers at the Urukh checkpoint on the entry into the Kabardino-Balkar Republic of [the applicant and his driver] on the ground of their ethnicity ... may be considered untrue on the basis of the legally binding court judgments in the matter.
2. Because of their poor morale and professional qualities, which became apparent when they gave contradictory statements to the Ombudsman, the prosecutor's office and the City and Supreme Courts of the Kabardino-Balkar Republic concerning the circumstances surrounding the prohibition on the entry of [the applicant and his driver], officers M. and Kh. of the State Inspectorate for Road Safety should be subject to disciplinary proceedings. However, having regard to the fact that the [applicant's] complaint was dismissed as unsubstantiated by the Nalchik City Court and the Supreme Court, M. and Kh. are to be discussed at a meeting of the heads of the State Inspectorate for Road Safety and the measures taken shall be reported to the Internal Security Department.”
The summary concluded with a recommendation to avoid similar situations impairing the constitutional rights of citizens in the future.
20. It appears that the summary was prepared in late August to early September 1999 because, on 29 September 1999, Mr Shogenov reported to the Prosecutor General's Office that the order to remedy the violation could not be implemented. He referred to the conclusions of the summary and the court decisions, alleging that the applicant and his driver had attempted “to pass through the checkpoint without waiting their turn in the queue”, and that they had “failed to produce passports, mission orders or migrants' cards”. The Minister concluded as follows:
“Having regard to these court decisions and bearing in mind the specific conditions of service at checkpoints [on the border] adjacent to crime-generating regions that are often under fire, which leaves a certain impact on the regime and nature of the service of police officers ... it has been suggested that these events be discussed at an operational meeting in the division.”
21. Finally, on 12 July 2000 Mr Volodin, head of a department in the office of the Russian Ombudsman, responded thus to the applicant's complaint:
“As follows from the response of the Prosecutor General's Office, the restriction on the constitutional rights of citizens to freedom of movement on the border of the Kabardino-Balkar Republic was imposed in connection with the threat of entry by subversive groups of armed bandits into its territory and was only effective for a short period of time. Under the terms of Article 56 of the Constitution of the Russian Federation, the said restriction was legitimate.”
22. Between September 1998 and May 2000, the applicant's nine-year-old son and seven-year-old daughter attended School no. 8 in Nalchik.
23. On 24 December 1999 the applicant received compensation for the property he had lost in the Chechen Republic. In exchange for compensation, the applicant had to surrender his migrant's card (миграционная карта), a local document confirming his residence in Nalchik and his status as a forced migrant from Chechnya.
24. On 1 September 2000 the applicant's son and daughter went to school, but were refused admission because the applicant could not produce his migrant's card. The headmaster agreed to admit the children informally, but advised the applicant that they would be immediately suspended if the education department discovered this arrangement.
25. On 4 September 2000 the applicant complained to a court about the refusal of the Nalchik Education and Science Department (Департамент образования и науки Администрации г. Нальчик – “the Department”) to admit his children to school. The Department replied that, after 24 December 1999, the applicant had had no lawful grounds for remaining in Nalchik and that his requests amounted to an encroachment on the lawful rights of other children because School no. 8 had been severely overcrowded even without his children.
26. On 1 November 2000 the Nalchik City Court dismissed the applicant's complaint as unsubstantiated. It found as follows:
“[The applicant] and his family members reside in the town of Nalchik without [appropriate registration of their residence]. In these circumstances his requests to have his children admitted to School no. 8 are unsubstantiated ...
According to a certificate produced by the headmaster of School no. 8, on 11 October 2000 the school had 459 pupils, whereas it was designed to accommodate 230 ...”
27. On 21 November 2000, on an appeal by the applicant, the Supreme Court of the Kabardino-Balkar Republic upheld the judgment of 1 November 2000.
28. Article 19 of the Constitution provides for the equality of all before the law and courts of law, and equality of rights and liberties.
29. Article 27 provides that everyone lawfully within the territory of the Russian Federation has the right to move freely and choose his or her place of stay or residence.
30. Article 43 provides that everyone has the right to education. Elementary education in State and municipal educational institutions is accessible to all and free. Parents must ensure that their children receive education.
31. Article 56 provides that, in a state of emergency, rights and freedoms may be restricted for the protection of national security and the constitutional foundations. A state of emergency may only be declared in accordance with a federal constitutional law.
32. Section 11(22) of the Police Act provides that the police may temporarily restrict or prohibit the circulation of vehicles or pedestrians on the streets or roads, or refuse access to specific areas or places, or require people to remain in or leave specific areas or places, for the protection of citizens' health, life or property or for carrying out investigative or search operations.
33. On 4 January 1969 the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination came into force. The relevant part of Article 1 of this convention provides:
“In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
34. On 13 December 2002 the Council of Europe's European Commission against Racism and Intolerance (ECRI) adopted General Policy Recommendation no. 7 on national legislation to combat racism and racial discrimination. It defines “racial discrimination” as follows:
“1. For the purposes of this Recommendation, the following definitions shall apply:
...
(b) 'direct racial discrimination' shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. ...
(c) 'indirect racial discrimination' shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. ...”
VIOLATED_ARTICLES: 14
P4
VIOLATED_PARAGRAPHS: P4-2


ITEMID: 001-60466
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF JOKELA v. FINLAND
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;No violation of Art. 6-1 with regard to witnesses;No violation of Art. 6-1 with regard to reasons for decision;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The first applicant is the widow of the late Mr Timo Jokela (“Mr Jokela”), who died on 19 September 1992. The other applicants are his children and all the applicants are beneficiaries of his estate.
9. At the time of his death Mr Jokela possessed, inter alia, the following properties in the centre of Nakkila municipality: Saha 1:15, Saha I 5:55, Saha I 5:78 and Saha II 3:20. The size of the properties came about 2.9 ha in total. Mr Jokela had purchased a third of the land for 300,000 markkas (FIM) in December 1989. A regional master plan (seutukaava, regionplan) of 1977 had designated part of the land for roadworks. That designation had been maintained in a municipal building plan (rakennuskaava, byggnadsplan) of 1989, whereas construction mainly for industrial purposes had been allowed on the remaining part of the properties.
10. In June 1990 the Turku District Roads Authority requested the partial expropriation of Mr Jokela's properties with a view to constructing an overpass pursuant to a road plan confirmed in February 1990. The overall area to be expropriated covered about half of the properties in question (1.53 ha). The request was referred to a panel composed of a State-appointed land surveyor (“the expert”) and two lay members chosen by the expert from a list drawn up by the municipality (“the trustees”).
11. In the autumn of 1990 the Roads Authority took over those parts of the properties which were to be expropriated. In December 1990 Mr Jokela sold other parts of the properties Saha 1:15 and Saha II 3:20 for FIM 121 per square metre to a well-established service-station company intending to construct a new service station to replace the one situated on adjacent land subject to expropriation.
12. After reaching an agreement with the Roads Authority in March 1991 Mr Jokela received FIM 700,000 in compensation for the removal of the buildings, equipment and vegetation from the expropriated land. The removal took place the same year. The agreement did not concern the compensation to be paid for the land itself and the inconvenience suffered. On these points Mr Jokela and, following his death, the applicants disagreed with the Roads Authority.
13. The matter was then referred to the expert and the trustees who, on 3 June 1993, fixed the market value (käypä arvo, gängse pris) of the land at FIM 7.50 per square metre. They apparently arrived at this amount disregarding three voluntary sales of land in the vicinity, as they considered that the sellers – Mr Jokela and the municipality – had been “in a dominant position” at the time and thus able to dictate the price. Instead, the expert and trustees took into account the prices paid for land within a wider area. The applicants were awarded about FIM 115,000 in compensation for the land and some additional compensation for the inconvenience suffered.
14. The applicants and the Roads Authority appealed to the Land Court (maaoikeus, jorddomstolen) of Southern Finland which, on 27 September 1994, held an oral hearing also attended by the expert. The applicants, represented by counsel, argued that the market value of the expropriated land was between FIM 60 and FIM 112 per square metre. In support of their contention, they submitted various pieces of documentary evidence indicating a current value ranging between FIM 20 and FIM 114 per square metre. The evidence included, inter alia:
(1) an offer of 1990 in which the Nakkila municipality had stated its interest in purchasing 2.7 ha of the land for FIM 105,000 (i.e. FIM 38.50 per square metre);
(2) a decision of the Nakkila Inheritance Tax Board (perintöverolautakunta, arvsskattenämnden) of 27 May 1993 in which the current value of the applicants' properties had been estimated at FIM 600,000 (i.e. FIM 20 per square metre – see paragraph 23 below);
(3) a 1991 estimate by the same expert of the value of adjacent land which had been expropriated, for the purpose of carrying out the same roadworks, setting the price at FIM 44 per square metre (for land used for a service station) and FIM 10 per square metre (for an uncultivated field between two roads);
(4) an offer of 1991 in which the Nakkila municipality had proposed to lease certain land in the vicinity for 10% of its market value estimated at FIM 114 per square metre.
15. The applicants disputed the view of the expert and the trustees that Mr Jokela and the municipality had been able to dictate the prices of the three pieces of land previously sold to the service-station company. The municipality had sold the land at a price of FIM 40 per square metre, presumably below the market level in view of the importance attached to maintaining a service station in the vicinity. Even though Mr Jokela had sold his land at a price exceeding FIM 100 per square metre, that had apparently not been considered excessive by the service-station company which otherwise could have asserted its right to redeem that land.
16. In its own appeal the Roads Authority had argued that the compensation to be awarded to the applicants should be lowered to FIM 5 per square metre. Its representative did not comment either in writing or at the Land Court's hearing on the above evidence adduced by the applicants.
17. In their written submissions to the Land Court the applicants further stated their readiness to examine the executive secretary of Nakkila municipality (V.) as a witness in respect of the contents of the municipality's above-mentioned offer of 1991, “should the Land Court deem [such an examination] necessary”.
18. At the hearing the applicants allegedly also requested that the building inspector of the municipality (S.) be examined as a witness in respect of the status of their land from the point of view of planning. Contrary to the expert and the trustees, S. was allegedly of the opinion that the properties had been reserved for industrial purposes already set out in the regional master plan. According to the applicants, their request that S. be heard was not recorded in the Land Court's minutes. The Government, referring to the same minutes, noted that the applicants' representative had merely referred to having been in contact with S. before the hearing. Following the hearing the Land Court inspected the area in question.
19. In a judgment of 27 September 1994 the Land Court granted the applicants some FIM 4,000 additional compensation for inconvenience and costs but dismissed the remainder of their appeal. It noted that in the regional master plan of 1977 the expropriated land had been designated for roadworks. This designation had been maintained in the municipal building plan adopted in 1989. The Land Court therefore agreed with the assessment of the expert and the trustees as to the market value of the land. It noted, inter alia, the fact that the construction of the overpass had improved the road links connecting those parts of the applicants' properties which had not been expropriated. The Land Court expressly ignored the 1990 purchases of adjacent land for the purpose of constructing a service station near the overpass. As in fact only one plot of land could be sold for such a purpose, the seller had had a monopoly and the price of this land had not evolved freely.
20. The Land Court's judgment did not mention the written evidence adduced by the applicants, nor the fact that they had sought to examine witnesses.
21. On 20 March 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal.
22. In Finland inheritance tax is calculated on the basis of the market value of a property at the time of the death less 20% to 30% (the so-called “safe-assessment margin” – see paragraph 29 below). At the time of Mr Jokela's death, those parts of his properties which were subject to expropriation were still considered part of his possessions. In the inventory of the estate conducted by a member of the Bar and his assistant in February 1993, the total value of the four properties was estimated at FIM 150,000.
23. On 27 May 1993 the Nakkila Inheritance Tax Board fixed the inheritance tax to be imposed on Heidi, Jussi and Petri Jokela in respect of, inter alia, the four properties. Their market value was assessed at a total of FIM 600,000 (i.e. about FIM 20 per square metre). No reasons were given by the Tax Board.
24. The applicants appealed, arguing that the market value of the properties should be reduced to FIM 150,000 at most. On 5 September 1995 the Turku and Pori County Administrative Court (lääninoikeus, länsrätten) declined to examine the first applicant's appeal (as no inheritance tax had been imposed on her) and dismissed the other applicants' appeal in so far as it pertained to the market value of the properties. It noted, in particular, that the size of the properties came to a total of 32,000 sq. m (3.2 ha), a third of which had been purchased by the deceased for FIM 300,000 in December 1989. Even in the light of the elements adduced by the appellants, the market value of the properties had not been assessed too high. The court relied on sections 9 and 10 of the Inheritance and Gift Tax Act (perintö- ja lahjaverolaki, lag om skatt på gåva och arv 370/1948).
25. On 13 May 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the applicants leave to appeal.
26. In Finland the expropriation of real property for public use must be compensated according to its market value, that value being determined in the light of the general price level and the use to which the property was being put at the relevant time.
27. By section 35a of the Public Roads Act (laki yleisistä teistä, lag om allmänna vägar 243/1954) the compensation for expropriation must be determined in accordance with the criteria laid down in the Expropriation of Immovable Property and Special Rights Act (laki kiinteän omaisuuden ja erityisten oikeuksien lunastuksesta, lag om inlösen av fast egendom och särskilda rättigheter 603/1977 – “the Expropriation Act”). Section 67(1) of the Public Roads Act provides that full compensation within the meaning of the Expropriation Act is due for any expropriation, although such compensation may be adjusted according to the benefit to the remaining property which the road construction may produce.
28. Under section 30(1) of the Expropriation Act full compensation, corresponding to the market value, must be determined for the expropriated property. The time of the property transfer is decisive for the determination of this value. If the market value does not reflect the real loss sustained by the owner of the property or any related right, the assessment must be based on returns from the property or investments in it. If the purpose for which the expropriation is carried out has significantly increased or decreased the value of the property, the compensation due must be determined without taking this into account (section 31). In practice, the market value is adjusted to take account of developments other than temporary price fluctuations, up to the end of the expropriation procedure.
29. Section 9 of the Inheritance and Gift Tax Act provides that the assessment of inheritance tax must be based on the value of the property at the time of the death. The value of the property must be assessed in accordance with the provisions applicable to the taxation of income and capital gains (sections 10 and 29). Under the 1992 Capital Gains Tax Act (varallisuusverolaki, förmögenhetsskattelag 1537/1992) the assessment must be based on the market price of the property. In practice, the market value for the purpose of setting inheritance tax is the price which would most probably be paid for the particular property at the relevant location. The market price thus arrived at is normally reduced by 20% to 30% so as to avoid any overvaluation of the property at the time of the death.
30. At the relevant time the competent Tax Commissioner (verojohtaja, skattedirektören) was under a duty to ensure, inter alia, that the value of the property subject to inheritance tax had been correctly assessed in the estate inventory (section 35 of the Inheritance and Gift Tax Act). The tax was to be imposed by the Inheritance Tax Board after careful consideration of the information pertaining to the property, including commonly known facts such as the prevailing price levels in the municipality, and changes in the value of such property in general (section 39 as interpreted in practice). In 1994 the inheritance tax boards were abolished and the imposition of this tax was assigned to the ordinary tax authorities (Law no. 318/1994).
31. Under section 331 of the Partition Act (jakolaki, lag om skifte 604/1951), as in force at the relevant time, proceedings before the land courts were governed by the provisions applicable to the general courts, unless otherwise stated. In accordance with the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) a land court could therefore decide not to admit evidence which was deemed to be irrelevant or had been proposed in order to prove an already established fact or where the evidence could be obtained in a significantly less cumbersome or cheaper manner (Chapter 17, section 7).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1