CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 juin 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s4060989B { margin-left:10.52pt; text-align:justify; padding-left:7.48pt; font-family:serif } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     322   20.6.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF AL-NASHIF AND OTHERS v. BULGARIA   The European Court of Human Rights has today notified in writing a Chamber judgment [1] in the case of Al-Nashif and Others v. Bulgaria (application no. 50963/99). The Court held:   unanimously, that there had been a violation of Article 5 § 4 of the European Convention on Human Rights (right to liberty and security); by four votes to three, that there had been a violation of Article 8 (right to respect for family life); by four votes to three, that there had been a violation of Article 13 (right to an effective remedy); unanimously, that it was not necessary to examine the complaints under Article 9 (freedom of religion) of the Convention taken alone and in conjunction with Article 13.   Under Article 41 (just satisfaction) of the Convention, the Court awarded, by four votes to three, 7,000 euros (EUR) to the first applicant and EUR 5,000 to each of the remaining two applicants for non-pecuniary damage and EUR 6,500 to the three applicants for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicants are: Daruish Al-Nashif, a stateless person of Palestinian origin, born in 1967, who is currently living in Syria following his deportation from Bulgaria; and two of Mr Al-Nashif’s children, Abrar and Auni Al-Nashif, both Bulgarian nationals, born in Bulgaria in 1993 and 1994 respectively, who now live in Jordan with their mother Hetam Saleh, Mr Al-Ashif’s first wife.   Mr Al-Nashif arrived in Bulgaria in 1992 with Ms Saleh, whom he had married in Kuwait. They lived together in Sofia, where Abrar and Auni Al-Nashif were born. Mr Al-Nashif ran a butcher’s shop and beverages production business and was involved in religious activities. In February 1995 he obtained a permanent residence permit. The same month he married his second wife, Ms M, a Bulgarian national, in a religious Muslim ceremony. Under Bulgarian law, the marriage had no legal effect.   He continued to live with his first wife, however, and moved with her to Smolyan, where he continued in the same line of work and also taught Islamic classes. Ms M also lived in Smolyan for a time in a flat rented by Mr Al-Nashif and accompanied him on business trips. They continued to see each other until early 1998.   In 1999 Mr Al-Nashif’s residence permit was withdrawn and a deportation order was issued stating that he posed a threat to national security, without providing reasons. In later submissions the Ministry of the Interior stated that Mr Al-Nashif had engaged in unlawful religious activities which had endangered national interests. Details were not provided. He was detained pending deportation and denied contact with others. Two of his judicial appeals were declared inadmissible and a third appeal had not been examined when he was deported on 5 July 1999. The relevant law provided that national security measures concerning aliens were not subject to appeal. This was confirmed on 4 April 2000 by the Supreme Administrative Court, which also held that such measures need not be reasoned.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 15 September 1999 and declared partly inadmissible on 16 December 1999. A hearing was held on 25 January 2001 where the Court declared the remainder of the application partly admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Georg Ress (German), President , Lucius Caflisch [2] (Swiss), Jerzy Makarczyk (Polish), Ireneu Cabral Barreto (Portuguese), Volodymyr Butkevych (Ukrainian), John Hedigan (Irish), Snejana Botoucharova (Bulgarian), judges , and also Vincent Berger , Section Registrar .     3.     Summary of the judgment [3]   Complaints   The applicants alleged that Mr Al-Nashif was denied the right to appeal to a court against his detention and that he had been detained incommunicado, that his deportation had infringed the right of all three applicants to respect for their family life, that they did not have an effective remedy, that the measures taken against Mr Al-Nashif were in breach of his right to freedom of religion and that he had not had an effective remedy in that respect. They relied, among other things, on Articles 5 § 4, 8, 9 and 13 of the Convention.       Decision of the Court   Article 5 § 4 The Court observed that in Bulgarian law no judicial appeal was possible against detention pending deportation, where the deportation order had been issued on grounds of national security. No court was empowered to enquire into the lawfulness of the detention and the detention order stated no reasons. The decision whether a deportation and detention order should invoke national security - with the automatic consequence of excluding any judicial review of lawfulness - was within the discretion of the Ministry of the Interior. Moreover, Mr Al-Nashif was detained practically incommunicado and was not allowed to meet a lawyer to discuss any possible legal challenge to the measures taken against him.   The Court noted that the situation was incompatible with Article 5 §   4 and its underlying rationale, the protection of individuals against arbitrariness. National authorities could not do away with effective control of lawfulness of detention by the domestic courts on the grounds of national security and terrorism. The Court attached importance to the fact that other countries had found ways of accommodating legitimate national security concerns while according the individual a substantial measure of procedural justice. Mr Al-Nashif, however, was not provided with elementary safeguards and there had, therefore, been a violation of Article 5 § 4.   Article 8 The Court observed that Mr Al-Nashif and Ms Saleh came to Bulgaria from Kuwait as a married couple and had apparently been regarded as such for all purposes. Two children were born to them in 1993 and 1994. Although Mr Al-Nashif had entered into a religious marriage with another woman, it had had no legal effect in Bulgaria. Mr Al-Nashif also lived in Smolyan with his wife, Mrs Saleh, and their two children until his arrest in 1999. There were therefore no exceptional circumstances capable of destroying the family link between the first applicant and his children. Further, Mr Al-Nashif and Ms Saleh did not separate.   It was undisputed that the first applicant was a stateless person and that he and Ms Saleh, who apparently was also a stateless person, were lawfully resident in Bulgaria on the strength of permanent residence permits. The couple had moved to Bulgaria soon after their marriage and had lawfully established their home there. Their children were born in Bulgaria, acquired Bulgarian nationality, and started school there. Therefore, the deportation of Mr Al-Nashif in 1999 interfered with the applicants’ family life.   The Court noted that Mr Al-Nashif’s deportation was ordered under a legal regime that did not provide the necessary safeguards against arbitrariness. The interference with the applicants’ family life was not, therefore, based on legal provisions meeting the Convention requirements of lawfulness. It followed that there had been a violation of Article 8.   Article 13 The Court noted that, while procedural restrictions might be necessary to protect national security and while any independent authority dealing with an appeal against a deportation decision might need to afford a wide margin of appreciation to the executive in matters of national security, that could by no means justify doing away with remedies altogether whenever the executive had chosen to invoke the term “national security”.   Even where an allegation of a threat to national security was made, the guarantee of an effective remedy required as a minimum that the competent independent appeals authority be informed of the reasons for the decision, even if such reasons were not publicly available. The authority had to be competent to reject the executive’s assertion that there was a threat to national security where it found it arbitrary or unreasonable. There had to be some form of adversarial proceedings, if need be through a special representative after a security clearance. Furthermore, the question whether the impugned measure would interfere with the individual’s right to respect for family life and, if so, whether a fair balance had been struck between the public interest involved and the individual’s rights, had to be examined.   As no remedy affording such guarantees of effectiveness was available to the applicants, the Court found that there had been a violation of Article 13.   Article 9 The Court held that it was not necessary to determine whether there had been a violation of Article 9.     Judges Makarczyk, Butkevych and Botoucharova expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Stéphanie Klein (telephone: (0)3 88 41 21 54) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     Judge elected in respect of Liechtenstein. [3] .     This summary by the Registry does not bind the Court.