ECtHR - Al-Nashif v. Bulgaria

The three appellants are a Stateless man with Palestinian origins, born in Kuwait, who moved to Bulgaria, and his two children born in and holding Bulgarian nationality. The first applicant's permanent residence permit was withdrawn because of engagement in alleged religious extremism, and he was detained and subsequently deported to Syria. The Court held that there had been a violation of Article 5 § 4, 8, and 13 as a result of the deportation.

Case name (in original language)
Al-Nashif v. Bulgaria Application No: 50963/99, European Court of Human Rights
Case status
Decided
Case number
[2002] Application no. 50963/99
Citation
Al-Nashif v. Bulgaria Application [2002] Application no.50963/99
Date of decision
State
Court / UN Treaty Body
European Court of Human Rights
Language(s) the decision is available in
English
Applicant's country of birth
Kuwait
Applicant's country of residence
Bulgaria
Relevant Legislative Provisions

Relevant domestic law of Bulgaria includes:

  • Article 120 of the Bulgarian Constitution
  • Sections 33, 34, 35, and 37 of the Administrative Procedure Act
  • Section 40 (1)(2) and Section 10 (1)(1) of the Aliens Act
  • Section 42 of the Aliens Act
  • Section 47 (1) of the Aliens Act

European Convention on Human Rights:

  • Article 5 § 4, 8, and 13
Facts

The appellants are Daruish Al-Nashif, a Kuwait born Stateless person with Palestinian origins, now residing in Syria, following his deportation from Bulgaria; the first applicant’s two children, Abrar and Auni Al-Nashif, both Bulgarian nationals born in Bulgaria, who now live with their mother Hetham Saleh, Mr. Al-Nashif´s first wife in Jordan.

Mr. Al-Nashif arrived in Bulgaria in 1992 with Ms. Saleh, who he had married in Kuwait. They lived together in Bulgaria, where their two children were born. Besides his job as a butcher, Al-Nashif was involved in religious activities - he taught Islamic classes. In 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, but remained married and living with his first wife. Under Bulgarian law, the marriage to Ms. M had no legal effect.

In 1999 Mr. Al-Nashif’s residence permit was withdrawn and orders for his deporation, his detention and his exclusion from Bulgarian territory were issued arguing that he posed a threat to national security, without providing any explanation. Later, the Ministry of the Interior stated that Mr. Al-Nashif had engaged in unlawful religious activities that had endangered national interests, but no details were provided. He was detained pending deportation and denied contact with others. Two of his judicial appeals were declared inadmissible and his third appeal had not been examined by the time 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.

The application was lodged with the European Court of Human Rights on 15 September 1999 and was 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.

Decision & Reasoning

The Court decided that there had been a violation of Article 5 § 4, 8, and 13 of the Convention. 

Article 5 § 4

The Court noted that under Bulgarian law no judicial appeal was possible against detention pending deportation, where the deportation order had been issued on grounds of national security. Consequently, no court had the power to enquire into the lawfulness of the detention and the detention order stated no reasons. Mr. Al-Nashif was thus detained incommunicado and was not allowed to meet a lawyer to discuss any possible legal challenge to the measures taken against him. The Court judged that there was a breach of Article 5 § 4, on the protection of individuals against arbitrariness, as Mr. Al-Nashif was not provided with elementary safeguards in relation to his detention. The Court reiterates that everyone who is deprived of his liberty is entitled to a review of the lawfulness of his detention by a court, regardless of the length of confinement. The Court focused on the fact that other countries had found ways of accommodating legitimate national security concerns while according to the individual with substantial measure of procedural justice.

Article 8

Because Mr. Al-Nashif and Ms. Saleh came to Bulgaria together from Kuwait as a married couple, had kids together and lived together until the day of his arrest, and did not separate following his Islamic marriage to his second wife, the Court consequently considered that there have been no circumstances destroying the family link between Mr. Al-Nashif and his children.

The Court was undisputed in determining Mr. Al-Nashif as a Stateless person, and as he had acquired a permanent residence permit in Bulgaria, he was considered a lawful resident in Bulgaria at the material time. As Mr. Al-Nashif and Ms. Saleh´s children were born in Bulgaria, acquired Bulgarian nationality, and started going to school here, the Court held that the deportation of Mr. Al-Nashif interfered with the applicant’s 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 stated that, while procedural restrictions can be necessary to protect national security, this can never justify denying remedies altogether whenever the executive had chosen to invoke the term "national security".

Even where an allegation of a threat to national security is made, the guarantee of an effective remedy is required as a minimum, and the appeals authority must be informed of the reasons for the decision, even if such reasons are not available to the public. The appeals authority must be allowed to reject the executive’s assertion that there is a threat to national security where it finds it arbitrary or unreasonable. 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 is struck between the public interest involved and the individual's rights must 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.

Outcome

The Court dismissed the objections of the Government and held that there had been a breach of Articles 5 § 4, 8 and 13.

Caselaw cited

Varbanov v. Bulgaria [2000], 31365/96

Jasper v. the United Kingdom [2000], 27052/95

K. and T. v. Finland [GC] [2001], 25702/94

Berrehab v. the Netherlands [1998], 10730/84

Hokkanen v. Finland [1994], 19823/92

Gül v. Switzerland [1996], 23218/94

Cialis v. the Netherlands [2000], 29192/95

Kroon and Others v. the Netherlands [1994], 18535/91

X, Y, and Z v. the United Kingdom [1997], 75/1995/581/667

Boultif v. Switzerland[2000], 54273/00

Amann v. Switzerland [GC] [2000], 27798/95

Rotaru v. Romania [GC] [2000], 28341/95

Hasan and Chaush v. Bulgaria [GC] [2000], 30985/96

Klass and Others v. Germany[1998], 5029/71

P.G. and J.H. v. the United Kingdom [2001], 44787/98

Čonka v. Belgium [2002], 51564/99

Kudła v. Poland [GC] [2000], 30210/96

T.P. and K.M. v. the United Kingdom [GC] [2001], 28945/95

Nikolova v. Bulgaria [GC] [1999], 31195/96

De Wilde, Ooms and Versyp v. Belgium, Application Nos. 2832/66, 2835/66 and 2899/66

Winterwerp v. the Netherlands, Application No. 6301/73

Hewitt and Harman v. the United Kingdom, Application no. 20317/92

Kurt v Turkey, Application no. 24276/94

Chapman v The United Kingdom, Application no. 27238/95

Chahal v. The United Kingdom, Application no. 22414/93, 15 November 1996

Tinnelly v. the United Kingdom 10 July 1998

Shebashov v. Latvia, 9 November 2000, no. 50065/99