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07.07.2008   The European Court of Human Rights has declared Petropavlovski's application admissible

On June 3d 2008, the European Court of Human Rights by a majority concluded that the application by Jurijs Petropavlovskis submitted in October 2006 was admissible. It should be mentioned that only about 10 per cent of applications submitted to the Court are considered admissible, especially when it comes to citizenship issues. The Latvian government insisted that this case was out of the ECHR jurisdiction since it was a domestic citizenship issue. However, the Court has declared the application admissible. Below is the full text of the Court desicion. It can also be downloaded as a .doc file.

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44230/06
by Jurijs PETROPAVLOVSKIS
against Latvia


The European Court of Human Rights (Third Section), sitting on 3 June 2008 as a Chamber composed of:

          Josep Casadevall, President,
          Elisabet Fura-Sandström,
          Boštjan M. Zupančič,
          Alvina Gyulumyan,
          Ineta Ziemele,
          Luis López Guerra,
          Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 10 October 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jurijs Petropavlovskis, is a non-citizen/permanent resident of Latvia who was born in 1955 and lives in Riga. He is represented before the Court by Mr A. Dimitrovs, a lawyer practising in Brussels. The Latvian Government (“the Government”) are represented by their Agent, Mrs I. Reine.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Before 29 October 1998, when the Latvian Parliament (Saeima) enacted the Education Act, education in state and municipal schools was conducted in the Latvian and Russian languages. The Act declared Latvian to be the only language of instruction in all state and municipal schools. It provided gradual transition to Latvian-language instruction in other schools.

Between 2003 and 2004 the applicant was actively involved in protests against these changes. He participated in meetings and demonstrations against them and made public statements advocating ideas concerning the Russian-speaking minority’s rights to education in Russian and the preservation of the state-financed schools with Russian as the language of instruction.

After several sizable meetings and demonstrations, the Parliament adopted amendments to the Education Act on 5 February 2004. It provided that from 1 September 2004 the proportion of Russian and Latvian language instruction in these schools would be 40:60.

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.

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 Act, 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.

On 16 November 2004 the Cabinet of Ministers decided to strike the applicant’s name out of the list, thus refusing to grant to him Latvian citizenship. Allegedly, the Cabinet of Ministers took into account the applicant’s previous political activities.

On 30 November 2004 the Naturalisation Board informed the applicant of the decision of the Cabinet of Ministers.

On 7 December 2004 the applicant initiated administrative proceedings against the Cabinet of Ministers. He asked the Administrative District Court to “obligate the Cabinet of Ministers to take a decision on granting [him] citizenship”. The applicant stated that the decision on granting 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 Act and if the restrictions stated in the Act could not be applied to such person.

In his submissions of 17 November 2005 to the Administrative District Court, a lawyer representing the Cabinet of Ministers submitted, inter alia, that the reasons for the political decision of the Cabinet of Ministers were the statements of the applicant in the media and his actions aimed at destabilising the situation in the country and that his wish to become a citizen had this purpose in mind.

On 16 December 2005 the Administrative District Court decided to terminate the proceedings without examining the case on its merits. The court stated that the decision of the Cabinet of Ministers concerning the granting of citizenship was a political decision and as such not subject to examination by a court. The applicant appealed.

On 13 February 2006 the Administrative Regional Court upheld the decision of the Administrative District Court. 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.

On 11 April 2006 the Administrative Chamber of the Supreme Court upheld the decision of the Administrative Regional Court. The court established that, under the Citizenship Act, the Naturalisation Board prepared 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. A member of the Cabinet was not required to give reasons for his or her vote and the Act did not stipulate the details of the decision-making process in this respect. The court stated, inter alia, that:

 

 “... 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 also grossly contradicts 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 a constitutional function. Thus, the Cabinet of Ministers cannot be regarded as an institution for the purposes of administrative process. 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.

...

The fact that law does not stipulate the order of 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 Law on Administrative Procedure.

...

In the Administrative Chamber’s view, the laws of Latvia provide for a possibility to supervise the decisions taken on naturalisation issues. That is, decisions taken by the Naturalisation Board (administrative acts) are subject to appeal, in accordance with the Law on Administrative Procedure, before courts, whereas against a decision of the Cabinet of Ministers or a part of it, which is contrary to law, a public prosecutor can submit an application for supervisory review (protest) ... .”

B.  Relevant national and international law and practice

1.  The Constitution of Latvia (Satversme)

 

Under Article 100 of the Constitution, everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express one’s views.

Under Article 103, the State protects the freedom of previously announced peaceful meetings, street processions and pickets.

These rights, as provided for by Article 116, may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State, and public safety, welfare and morals.

 

2.  The Citizenship Act (Pilsonības likums)

 

Section 11 of the Citizenship Act lists the restrictions on naturalisation. They provide, inter alia, that persons who, by unconstitutional methods, have acted against the independence of the Republic of Latvia, the democratic parliamentary structure of the State or the existing State authority in Latvia, if such has been established by a judgment of a court, cannot be admitted to citizenship.

The relevant part of section 12 states that a person who has pledged allegiance to the Republic of Latvia, and who is not subject to the naturalisation restrictions specified in section 11, can be admitted to citizenship through naturalisation.

Section 13 stipulates that:

“(1) A person who has rendered special meritorious service for the benefit of Latvia, but who does not have the right to naturalisation in accordance with the general procedures provided for in this Act, may be admitted to Latvian citizenship by a decision of the Saeima which shall be published in the official gazette. The provisions of section 12 (except for paragraph one, clause 7) of this Act shall not apply to a person in regard to his or her admission to citizenship on the basis of special meritorious service for the benefit of Latvia.

(2) A person who wishes to be admitted to the citizenship of Latvia on the basis of special meritorious service for the benefit of Latvia shall submit to the Saeima an application for admission to citizenship. An autobiography of the person concerned and a notice stating that there are no facts which could evidence that any of the restrictions of section 11 of this Act are applicable to this person shall be attached to the application.”

The relevant part of section 17 provides that the Naturalisation Board receives and examines applications for naturalisation. A decision of the Naturalisation Board regarding refusal of naturalisation may be appealed to a court. A decision regarding admission to citizenship is taken by the Cabinet of Ministers.

Under section 18, all persons who are admitted to Latvian citizenship must sign the following pledge regarding allegiance to the Republic of Latvia:

“I, (given name, surname) born (place of birth, date of birth), pledge that I will be loyal only to the Republic of Latvia.

I undertake to comply with the Constitution and laws of the Republic of Latvia in good faith and to use my best endeavours to protect them.

I undertake, without regard to my life, to defend the independence of the State of Latvia and to live and work in good faith, in order to increase the prosperity of the State of Latvia and of the people.”

 

3.  The Law on Administrative Procedure (Administratīvā procesa likums)

 

Pursuant to Article 1 § 3 of the Law on Administrative Procedure, an administrative act is a legal instrument directed externally, which is issued by an institution in an area of public law with regard to an individually indicated person or individually indicated persons, establishing, altering, determining or terminating specific legal relations or determining an actual situation. Administrative acts are also decisions regarding the establishment, alteration or termination of the legal status of, or the disciplinary punishment of employees of or persons specially subordinate to the institution, as well as other decisions if they significantly limit the human rights of the employees of or persons specially subordinate to the institution. Decisions or other types of actions of an institution in the sphere of private law, and internal decisions which affect only the institution itself, bodies subordinate to it or persons specially subordinate to it, are not administrative acts; political decisions (political announcements, declarations, invitations, election of officials, and similar) by the Saeima, the President, the Cabinet [of Ministers] or local government city councils (district and parish councils), as well as decisions regarding criminal proceedings and court adjudications are also not administrative acts.

 

4.  Regulations of the Cabinet of Ministers on the Receiving and Processing of Naturalisation Requests (Naturalizācijas iesniegumu pieņemšanas un izskatīšanas kārtība)

 

Article 32 of these Regulations lays down certain grounds under which the Head of the Naturalisation Board may take a decision to refuse naturalisation. Such a decision has to be taken, for instance, if it has been established by a judgment, which has lawfully entered into force, that a person has intentionally provided false information, or if it has been ascertained after the examination of an application that there is no lawful ground for naturalisation or that such a ground has ceased to exist.

If a person is to be naturalised, an official of the Naturalisation Board, taking into consideration the documents contained in the person’s naturalisation file, prepares a draft decision of the Cabinet of Ministers on granting Latvian citizenship by naturalisation (Article 33). An excerpt of the decree on granting citizenship by naturalisation is served on the person in the Board (Article 34).

 

5.  The European Convention on Citizenship (signed but not ratified

by Latvia)

 

Pursuant to Article 12 of the European Convention on Citizenship, each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality are open to administrative or judicial review in conformity with its internal law. Paragraph 87 of the Explanatory Report on Article 12 of the Convention states:

“In addition, all decisions must be subject to an administrative or judicial review. On the basis of this provision individuals must enjoy a right of appeal against decisions relating to nationality. The procedural aspects of the implementation of this right are left to the internal law of each State Party. It has been considered not to be appropriate in this Convention to provide for an exception wherever decisions relating to naturalisation are taken by act of parliament and are not subject to appeal, as is the case in certain States. The general recognition of the right to appeal has indeed been estimated to be of prominent importance.”

 

6.  The Permanent Court of International Justice (PCIJ)

 

In its advisory opinion Nationality Decrees Issued in Tunis and Morocco (French zone) on 8 November 1921, the PCIJ concluded as follows:

“The words ‘solely within the domestic jurisdiction’ seem rather to contemplate certain matters which, though they may very closely concern the interests of more than one State, are not, in principle, regulated by international law. As regards such matters, each State is sole judge.

The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain.

For the purpose of the present opinion, it is enough to observe that it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States.”[1]

 

7.  The International Court of Justice (ICJ)

 

In the Nottebohm case (Liechtenstein v. Guatemala), the ICJ concluded as follows:

“It is for ... every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. ... This is implied in the wider concept that nationality is within the domestic jurisdiction of the State. ...

Naturalization is not a matter to be taken lightly. ... In order to appraise its international effect, it is impossible to disregard the circumstances in which it was conferred, the serious character which attached to it, the real and effective, and not merely the verbal preference of the individual seeking it for the country which grants it to him.”[2]

COMPLAINTS

1.  The applicant complained under Articles 10 and 11 of the Convention that the allegedly arbitrary denial of Latvian citizenship through the naturalisation procedure was a punitive measure imposed on him because he had imparted ideas and exercised his right to peaceful assembly in order to criticise the Government’s position. He further complained that the afore-mentioned infringements of his rights, contrary to the requirements of Articles 10 § 2 and 11 § 2 of the Convention, were not prescribed by law, did not pursue a legitimate aim and were disproportionate and not necessary in a democratic society.

2.  The applicant finally complained under Article 13 of the Convention that he did not have any effective domestic remedy in respect of his infringed rights. He considered that an application for supervisory review (protest) by a public prosecutor was not an effective remedy since his decision in the instant case would not be subject to appeal.

THE LAW

1.  The Government

The Government submitted that the application was incompatible ratione materiae with the provisions of the Convention. The applicant’s complaint about the interference with his rights under Articles 10 and 11, according to the Government, derived from the allegedly arbitrary refusal to grant him Latvian citizenship through the naturalisation procedure. The Government, citing the jurisprudence of the PCIJ and the ICJ, maintained that questions of attribution and withdrawal of nationality fell within the exclusive competence of States and that there was well-established case-law of the Court stating that the right to citizenship was not among the rights guaranteed by the Convention and its Protocols.

Furthermore, the Government pointed out that the applicant had failed to indicate in which way the refusal to grant Latvian citizenship had interfered with his freedoms under Articles 10 and 11. As to the applicant’s submission that the refusal to grant citizenship amounted to a punitive measure following his criticism of certain policies and decisions of the Latvian Government in the field of minority rights, in the view of the Government it “d[id] not attain the level of severity to be considered as an interference with the rights under Articles 10 and 11”. In this respect the Government distinguished the current application from the case of Ezelin v. France (no. 11800/85, judgment of 26 April 1991), in which the applicant had faced disciplinary sanctions for his participation in a demonstration.

In any event, the Government maintained that the refusal of naturalisation did not have any adverse effect on the applicant and did not prevent his naturalisation in the future. The Government stressed the special character and function of citizenship. The Government argued that for the purposes of granting citizenship, it not only required an interest on the part of an individual but also provided a State with the right to assess whether the individual merited “such a privilege, including verification that the reasons behind such a request [we]re not abusive”.

In view of the preliminary objections advanced by the Government, they “[did] not see a need to provide further comments (including responses to the Court’s questions) concerning exhaustion of domestic remedies, as well as justification of interference at the present stage of the proceedings”.

2.  The applicant

The applicant contested the Government’s presentation of the current state of international law in matters of nationality. Furthermore, he argued that nothing in the case-law of the Court suggested that only an issue under Article 8 might arise in cases of withdrawal or refusal of citizenship. The applicant stressed that an arbitrary denial of citizenship might in certain circumstances raise an issue under Articles 10, 11 and 13.

The applicant disagreed with the Government in their attempt to distinguish his case from the Ezelin case. The applicant submitted that the nature and severity of the sanction imposed were factors to be taken into account when assessing the proportionality of the interference, not the admissibility of the application.

The applicant further submitted that the refusal to grant nationality had the effect of preventing him from standing for municipal elections. According to the Citizenship Act the applicant had to start the naturalisation procedure anew and could only do so after one year. Most importantly, in view of the fact that the applicant had complied with all the requirements spelled out in the Citizenship Act with a view to qualifying for naturalisation and that the Security Police had given its positive opinion, he had not been able to foresee the refusal of his naturalisation request. The Citizenship Act did not contain any provision stipulating that persons criticising the Government’s position on education or ethnic policy were limited in their access to naturalisation. The applicant considered that the refusal to grant him naturalisation was likely to discourage him from making any such criticism in the future.

3.  The Court’s assessment

The Court considers that the objection to the Court’s jurisdiction ratione materiae in the circumstances of the case is very closely linked to the substance of the applicant’s complaint under Articles 10, 11 and 13. It therefore considers it appropriate to join this objection to the merits (see, mutatis mutandis, Markovic and Others v Italy [GC], no. 1398/03, ECHR 2006‑...).

The Court further notes that the application raises issues of fact and law which require an examination of the merits. It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacle to its admissibility exists, it declares the application admissible.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging the merits of the case.

Santiago Quesada                                                                   Josep Casadevall
        Registrar                                                                                President

 











[1] PCIJ, Series B no. 4 (Advisory Opinion of 7 February 1923),  pp. 23-24, available at , http://www.icj-cij.org/pcij/serie_B/B_04/Decrets_de_nationalite_promulgues_en_Tunisie_et_au_Maroc_Avis_consultatif_1.pdf, last viewed on 30 April 2008




[2] Nottebohm Case (second phase), Judgment, ICJ Reports 1955, p. 4; see http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=26&case=18&code=lg&p3=92, last viewed on 30 April 2008.

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