CASE OF AL-NASHIF v. BULGARIA
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
Georg Ress
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...”