CASE OF PETROPAVLOVSKIS v. LATVIA
Preliminary objection allowed (Article 35-3 - Ratione materiae)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
6. The applicant was born in 1955 and lives in Riga. 7. Before 29 October 1998, when the Latvian Parliament (Saeima) enacted the Education Law, education in State and municipal schools continued to be conducted in Latvian and Russian, a practice which was inherited from Soviet times. The Education Law, which took effect on 1 June 1999, provided that the only language of instruction in all State and municipal schools in the Republic of Latvia would be the State language, that is, Latvian. It also provided that the language of instruction might be different in private schools, in State and municipal schools implementing national minority curricula and in other educational establishments as provided by law. As regards the State and municipal schools implementing national minority curricula, it was for the Ministry of Education to set out specific subjects to be taught in the State language (section 9(1) and (2)) and the Minister for Education was to ensure that the relevant regulations were submitted to the Cabinet of Ministers by 1 September 1999 (transitional provisions, paragraph 3). It was also established that everyone should learn the State language and take the State language proficiency test in order to obtain primary and secondary education (section 9(3)). 8. Between 2003 and 2004 the applicant was actively involved in protests against the education reform. He was one of the main leaders of a movement named “Headquarters for the Protection of Russian Schools” (“Krievu skolu aizstāvības štābs” in Latvian), which was involved in promoting and advocating protests against the education reform. He participated in meetings and demonstrations against the education reform and made public statements advocating ideas concerning the Russian-speaking community’s rights to education in Russian and the preservation of the State-financed schools with Russian as the sole language of instruction. The Government provided the Court with evidence of media coverage of these protests in the period from 28 June 2003 to 23 September 2005, including news reports by the Latvian news agency LETA and articles in the daily newspapers Diena and Lauku Avīze and in the regional newspaper Novaja Gazeta (in Russian). There were thirteen news reports and articles in total. 9. After several sizable meetings and demonstrations, Parliament adopted amendments to the Education Law on 5 February 2004. The new text provided that from 1 September 2004 all secondary State and municipal schools implementing national minority curricula had to ensure instruction in the State language in not less than 60% of the study curriculum, including foreign languages, in respect of pupils commencing their studies in the tenth grade. These schools also had to ensure that the curriculum relating to minority language, identity and culture was taught in the minority language (transitional provisions, paragraph 3). 10. In November 2003 the applicant applied to the Naturalisation Board (Naturalizācijas Pārvalde) seeking to acquire Latvian citizenship through naturalisation. On 1 December 2003 he passed the naturalisation exams (see paragraph 29 below). 11. The Naturalisation Board examined the documents submitted by the applicant and, finding that he met the requirements of Articles 11 and 12 of the Citizenship Law, included his name in the list of candidates applying for citizenship. The list was attached to the draft decision on granting citizenship and transferred to the Cabinet of Ministers (Ministru kabinets) for the final decision. 12. On 16 November 2004 the Cabinet of Ministers decided to strike the applicant’s name out of the list, thus refusing his application for naturalisation. 13. On 30 November 2004 the Naturalisation Board informed the applicant of the decision of the Cabinet of Ministers. 14. On 7 December 2004 the applicant instituted administrative proceedings against the Cabinet of Ministers. He asked the Administrative District Court (Administratīvā rajona tiesa) to “obligate the Cabinet of Ministers to take a decision on admitting him to Latvian citizenship”. The applicant stated that the decision regarding admission to Latvian citizenship was an administrative act and could not be regarded as a political decision. He considered inter alia that a person fulfilled the obligation of loyalty if he met all the requirements of the Citizenship Law and unless any restrictions stated in the Law could be applied to such person. He considered that the refusal to grant him citizenship was unlawful; in accordance with the principle of equal treatment, his views could not constitute grounds for a refusal. He stated that his name had been struck out of the list owing to his participation in the political party “For Human Rights in United Latvia” (“Par cilvēka tiesībām vienotā Latvijā”, abbreviated to PCTVL) and to his public statements. The PCTVL had nominated him to run for office as mayor of Riga, but the refusal had denied him the right to stand for election in the local municipal elections and had been politically motivated. 15. On 10 December 2004 the applicant gave an interview to a journalist from the daily newspaper Lauku Avīze. His answer to the question whether he hoped to win the case before the domestic and international courts was reportedly as follows: “If I wanted to gain political power, I would have been naturalised a long time ago and would have been elected to [Parliament]. The chances of winning a case in a court in Latvia might be fifty-fifty. But I do not need that. Frankly speaking, we need a broad international scandal. With my case of citizenship we’ve achieved that, and, additionally, [we’ve got] a broad public relations campaign for the PCTVL for free.” 16. In its submissions of 5 January 2005 to the Administrative District Court, the Cabinet of Ministers emphasised that the Minister of Justice had drawn attention to the provisions of the Citizenship Law to the effect that in seeking Latvian citizenship a candidate must demonstrate allegiance to the Republic of Latvia, not only with a promise but also by his actions, and that the applicant’s actions were not compatible with the oath of allegiance to the Republic of Latvia. Having examined the information at its disposal, the Cabinet of Ministers decided that the applicant’s actions at the material time had not demonstrated loyalty to the Republic of Latvia. 17. In its additional submissions of 17 November 2005 to the Administrative District Court, the Cabinet of Ministers argued, inter alia, that its political decision had been based on the applicant’s actions; it was clear that he could not truthfully give a pledge of allegiance. It was evidenced by his own public statements, which indicated that he did not have a genuine link with the Republic of Latvia, that he did not wish to establish such a link and that he had applied for citizenship as part of a political campaign to harm the Republic of Latvia. The Cabinet quoted statements he had made during the interview on 10 December 2004 (see paragraph 15 above). Relying on the principle of “democracy capable of protecting itself”, it argued that national security, protection of others and also the State language were the democratic values which the State purported to protect. The applicant’s public statements revealed that his actions were aimed at destabilising the situation in the country and that his wish to become a citizen had this purpose in mind. His statements and actions showed that he posed a real threat to national security: (i) the applicant was a leader of an organisation whose activities were directed towards disturbing public order and safety; (ii) the organisation’s activities attested to the possibility of using violence; (iii) the applicant’s statements indicated that he was ready to use violence; (iv) the applicant’s actions demonstrated his unwillingness to allow the State authorities to exercise legitimate control over the lawfulness of the organisation’s activities; and (v) the applicant’s genuine aim was not to acquire Latvian citizenship but to conduct an organised campaign directed at triggering a political scandal. 18. On 16 December 2005 the Administrative District Court decided to terminate the proceedings without examining the case on the merits. The court concluded that the decision of the Cabinet of Ministers regarding admission to Latvian citizenship (lēmums par personas uzņemšanu Latvijas pilsonībā) was “a political decision” (see paragraph 33 below) and as such not subject to examination by a court. The applicant appealed, stating, inter alia, that the Citizenship Law could not be used as a political weapon and that a court should have full jurisdiction over such decisions. 19. On 13 February 2006 the Administrative Regional Court (Administratīvā apgabaltiesa) upheld the decision of the Administrative District Court and also considered that the decision of the Cabinet of Ministers was a political decision. The applicant appealed, stating, inter alia, that the granting of citizenship could not be used as a political weapon and that a court should have full jurisdiction over such decisions. 20. On 11 April 2006 the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) upheld the decision of the Administrative Regional Court. The court established that, under the Citizenship Law, the Naturalisation Board should prepare a draft decision as regards the establishment of legal facts. The final decision was taken by the Cabinet of Ministers. The Cabinet took its decision, based on the draft decision prepared by the Naturalisation Board, by a vote. Members of the Cabinet were not required to give reasons for their vote and the Law did not stipulate the details of the decision-making process in this respect. The court stated, inter alia, that: “[8.3] ... the Cabinet of Ministers [has] unrestricted competence as regards granting or refusing citizenship to persons who, as affirmed by the Naturalisation Board, have met the naturalisation criteria. Such unrestricted freedom of action, which is also in stark contrast (krasi kontrastē) with the detailed regulation regarding a decision of the Naturalisation Board, attests that the Cabinet of Ministers in such a case performs not an administrative but rather a constitutional function. Thus, the Cabinet of Ministers cannot be regarded as a public authority for the purposes of administrative procedure. Therefore, the argument stated in the ancillary complaint that the said decision meets all criteria of an administrative act is unfounded. Having regard to the above, the conclusion of [the Administrative Regional Court] that the decision appealed against cannot be regarded as an administrative act, but as a political decision, is correct. ... [10] In the Administrative Department’s view, if a person meets all the requirements for naturalisation and if no restrictions for naturalisation are applicable, [there is] a subjective right only to have a draft decision concerning acquisition of citizenship examined by the Cabinet of Ministers. [11] The fact that the legislation does not set out a procedure for appeal against a decision of the Cabinet of Ministers does not mean that such decision is subject to appeal like an administrative act, in accordance with the Administrative Procedure Law. There is no established practice in Latvia of indicating expressis verbis in a legal act that the relevant decision is not subject to appeal ... [12] ... In the Administrative Department’s view, the laws of Latvia provide for the possibility of monitoring (kontrolēt) decisions taken on naturalisation issues. That is to say, decisions taken by the Naturalisation Board (administrative acts) are subject to appeal before a court, in accordance with the Administrative Procedure Law, whereas if a decision of the Cabinet of Ministers or a part of it is incompatible with the law, a public prosecutor can submit an application for supervisory review (protests) under section 19 of the Law on the Prosecutor’s Office. Therefore, the [applicant’s] reference to [Article 12 of] the European Convention on Nationality is unfounded.” 21. The applicant has not re-applied for Latvian citizenship through naturalisation to date.