In Russian
SECOND SECTION
CASE OF
TIMISHEV v. RUSSIA
(Applications nos.
55762/00 and 55974/00)
JUDGMENT
STRASBOURG
13 December 2005
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Timishev v.
Russia,
The European Court of Human Rights (Second Section),
sitting as a Chamber composed of:
Mr A.B.
Baka,
President,
Mr I. Cabral-Barreto,
Mr V.
Butkevych,
Mr M.
Ugrekhelidze,
Mr A.
Kovler,
Mrs A.
Mularoni,
Mrs E.
Fura-Sandström,
judges,
and Mrs S.
Dollé,
Section Registrar,
Having deliberated in private on 22 November 2005,
Delivers the following judgment, which was adopted on
that date:
PROCEDURE
1. The case originated in two applications (nos.
55762/00 and 55974/00) against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ilyas
Yakubovich Timishev, on 25 February and 9 March 2000.
2. The Russian Government (“the Government”) were
represented by their Agent, Mr P. Laptev, representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, a violation of
Article 2 of Protocol No. 4, taken alone or in conjunction with Article 14 of
the Convention, in that on 19 June 1999 he had not been permitted to enter
Kabardino-Balkaria because of his Chechen ethnic origin, and a violation of his
children’s right to education under Article 2 of Protocol No. 1.
4. The applications were allocated to the Second Section
of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
5. On 8 July 2003 the Court joined the applications and
adopted a partial inadmissibility decision.
6. By a decision of 30 March 2004 the Court declared the
applications partly admissible.
7. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly composed
Second Section (Rule 52 § 1).
8. The applicant and the Government each filed
observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in 1950 and lives in the town
of Nalchik, in the Kabardino-Balkaria Republic of the Russian Federation. He is
a lawyer.
10. The applicant is an ethnic Chechen; he was born in
the Chechen Republic and lived there. On 31 December 1994 his property in the
town of Grozny was destroyed as a result of a military operation. Since 15
August 1996 the applicant has been living in Nalchik as a forced migrant.
11. In 1997 the applicant applied for registration of
his permanent residence in Nalchik. His application was refused by reference to
the local laws of Kabardino-Balkaria prohibiting former residents of the Chechen
Republic from obtaining permanent residence in Kabardino-Balkaria. The refusal
of the local authorities was upheld by the Nalchik Town Court on 19 September
1997 and by the Supreme Court of the Kabardino-Balkaria Republic on 23 October
1997.
A. Refusal of entry to Kabardino-Balkaria
12. On 19 June 1999 the applicant and his driver
travelled by car from Nazran in the Ingushetia Republic to Nalchik in the
Kabardino-Balkaria Republic. The parties submitted different versions of the
subsequent events.
13. According to the applicant, at about 3 p.m. their
car was stopped at the Urukh checkpoint on the administrative border between
Ingushetia and Kabardino-Balkaria. Officers of the Kabardino-Balkaria State
Inspectorate for Road Safety (ГИБДД
МВД КБР) refused him entry, referring to an oral instruction from the
Ministry of the Interior of Kabardino-Balkaria not to admit persons of Chechen
ethnic origin. He had to turn round and make a detour of 300 kilometres to reach
Nalchik through a different checkpoint.
According to the Government, the applicant attempted to
jump the queue of cars waiting for their turn at the checkpoint, but he was
refused priority treatment and had to leave.
14. The applicant complained to a court about the
allegedly unlawful actions of the police officers; he also claimed compensation
for non-pecuniary damage.
15. On 25 August 1999 the Nalchik Town Court dismissed
the applicant’s claim, finding as follows:
“By an order of the head of the State Inspectorate for
Road Safety of the Kabardino-Balkaria Republic (no. 68 of 21 June 1999), because
of the complicated operational situation at the [administrative] border with the
Chechen Republic... with a view to preventing and putting an end to the
penetration into towns and villages of persons having terrorist or antisocial
aspirations... the road safety police were ordered to reinforce security
measures from 2 p.m. on 19 June 1999 until further notice. The police were also
instructed to perform stricter controls of vehicles and passengers at
checkpoints.
[The police officers M., Kh. and Me.] testified before
the court that, on that day, the Urukh checkpoint had a long queue of vehicles,
cargoes and passengers waiting for passage and registration. The car in which Mr
Timishev was the passenger attempted to jump the
queue, but was refused priority treatment and told to wait for its turn. Not one
single officer refused anyone entry into Kabardino-Balkaria on account of their
ethnicity, including Mr Timishev. On that day more
than seventy buses of Chechens gained entry. However, Mr
Timishev accused them of deliberately refusing him entry because he was a
Chechen. He showed his advocate’s card and said that he worked in Nalchik.
The court considers that the actions of the police
officers complied with the Police Act. Although Mr
Timishev produced his advocate’s card, it indicated that he was a lawyer in
Grozny and not in Nalchik; he did not show his passport or a mission order or
migrant’s card to the police officer. Mr Timishev did
not contest this fact. In the court’s opinion, even if Mr
Timishev and his driver had had these documents, they should have waited for
their turn in accordance with the above-mentioned order.
In these circumstances, the court has no reason to find,
and Mr Timishev did not produce evidence, that his
right to liberty of movement within the Russian territory was violated.
Moreover, on that day he reached Nalchik through the Nizhniy Kurp checkpoint.”
16. On 21 September 1999 the Supreme Court of the
Kabardino-Balkaria Republic, on an appeal by the applicant, upheld the judgment
of 25 August 1999. The court pointed out that the burden of proof was on the
applicant, who had failed to show that he had been denied entry because of his
Chechen origin.
17. The applicant also complained to the Russian
Ombudsman and to the Prosecutor General of the Russian Federation.
18. On 1 February 2000 a prosecutor from the Principal
Directorate for the Northern Caucasus of the Prosecutor General’s Office (прокурор
отдела Главного Управления Генеральной прокуратуры РФ на Северном Кавказе)
informed the applicant that, following an inquiry into the facts, the
prosecutor’s office had ordered the Ministry of the Interior of
Kabardino-Balkaria to rectify the violation of Article 27 of the Russian
Constitution (представление
об устранении нарушений статьи 27 Конституции РФ) committed by officers
of the State Inspectorate for Road Safety, and to take measures to avoid similar
violations in the future. The relevant part of the report on the violation,
attached to the order and dated 19 August 1999, reads as follows:
“The Prosecutor General’s Office has inquired into [the
applicant’s] complaint about unlawful actions by [police officers]... It has
been established that on 19 June 1999 [the applicant] and his driver V.,
travelling from the town of Nazran in a VAZ-2106 car, were stopped by police
officer Kh. at the Urukh checkpoint for an inspection of the car and an identity
check; following the identity check they were denied entry into
Kabardino-Balkaria.
Junior Sergeant Kh., questioned during the inquiry,
explained that at a staff meeting before taking over his duties, he had received
an oral instruction from the shift commander Warrant Officer M. not to allow
persons of Chechen ethnic origin travelling by private car from the Chechen
Republic to enter Kabardino-Balkaria. From the explanation given by Warrant
Officer M., it follows that he himself had received a similar oral instruction
from the operations officer on duty at the Ministry of the Interior of
Kabardino-Balkaria... On the basis of the foregoing, [the applicant and his
driver] were refused entry into Kabardino-Balkaria, although they did not engage
in any unlawful activity...
Thus, the actions of [police officers] M. and Kh... have
grossly violated the constitutional rights of Russian nationals of Chechen
ethnic origin, who may move freely within the territory of the Russian
Federation... These encroachments on the rule of law were caused as a result of
the irresponsible approach of traffic police officers to their professional
duties and poor supervision [of their actions] on the part of the management of
the traffic police department of the Ministry of the Interior of
Kabardino-Balkaria...”
19. On 3 March 2000 Lieutenant-General Shogenov, the
Minister of the Interior of the Kabardino-Balkaria Republic, forwarded a summary
of the findings of an internal inquiry to a human-rights activist who had lodged
complaints on behalf of the applicant. The summary bore no date and was signed
by Colonel Temirzhanov, deputy head of the internal security department of the
Ministry of the Interior, confirmed by Colonel Kerefov, head of the internal
security department, and approved by the Minister of the Interior himself. The
summary stated:
“When questioned... by employees of the prosecutor’s
office of the Kabardino-Balkaria Republic, Kh. [the officer who stopped the
applicant] explained that at a staff meeting, before taking over his duties, he
had received an oral instruction from the shift commander M. not to allow
persons of Chechen ethnic origin travelling by private cars from the Chechen
Republic to enter the territory of the Kabardino-Balkaria Republic. M. justified
giving such an instruction by reference to a similar oral instruction that he
had received from the deputy head of the public safety police of the Ministry of
the Interior, Colonel Efendiyev...
On 25 August 1999 ... the Nalchik Town Court decided to
dismiss [the applicant’s] complaint because the [police] officers, who had
initially maintained that they had not let the said persons enter the
Kabardino-Balkaria Republic, pursuant to an oral instruction by Colonel
Efendiyev, had insisted before the court that [the applicant and his driver] had
wanted to pass through the checkpoint without waiting in the queue, had been
refused and had left...”
The summary then went on to praise the achievements of
local police officers on duty at checkpoints, who had seized large quantities of
weapons, drugs, counterfeit currency, and so on, and had detained many fugitives
from justice. Colonel Temirzhanov concluded:
“1. Information on the prohibition by officers at the
Urukh checkpoint on the entry into the Kabardino-Balkaria Republic of [the
applicant and his driver] on the ground of their ethnicity ... may be considered
untrue on the basis of the legally binding court judgments in the matter.
2. Because of their poor morale and professional
qualities, which became apparent when they gave contradictory statements to the
Ombudsman, the prosecutor’s office and the Town and Supreme Courts of the
Kabardino-Balkaria Republic concerning the circumstances surrounding the
prohibition on the entry of [the applicant and his driver], officers M. and Kh.
of the State Inspectorate for Road Safety should be subject to disciplinary
proceedings. However, having regard to the fact that the [applicant’s] complaint
was dismissed as unsubstantiated by the Nalchik Town Court and the Supreme
Court, M. and Kh. are to be discussed at a meeting of the heads of the State
Inspectorate for Road Safety and the measures taken shall be reported to the
internal security department.”
The summary concluded with a recommendation to avoid
similar situations impairing the constitutional rights of citizens in future.
20. It appears that the summary was prepared in late
August to early September 1999 because, on 29 September 1999, Mr Shogenov
reported to the Prosecutor General’s Office that the order to rectify the
violation could not be implemented. He referred to the conclusions of the
summary and the court decisions, alleging that the applicant and his driver had
attempted “to pass through the checkpoint without waiting their turn in the
queue”, and that they had “failed to produce passports, mission orders or
migrants’ cards”. The Minister concluded as follows:
“Having regard to these court decisions and bearing in
mind the specific conditions of service at checkpoints [on the border] adjacent
to crime-generating regions that are often under fire, which leaves a certain
impact on the regime and nature of the service of police officers... it has been
suggested that these events be discussed at an operational meeting in the
division.”
21. Finally, on 12 July 2000 Mr Volodin, head of a
department in the office of the Russian Ombudsman, responded thus to the
applicant’s complaint:
“As follows from the response of the Prosecutor General’s
Office, the restriction on the constitutional rights of citizens to freedom of
movement on the border of the Kabardino-Balkaria Republic was imposed in
connection with the threat of penetration by subversive groups of armed bandits
into its territory and was only effective for a short period of time. Pursuant
to Article 56 of the Constitution of the Russian Federation, the said
restriction was legitimate.”
B. Refusal of access to school
22. Between September 1998 and May 2000, the applicant’s
nine-year-old son and seven-year-old daughter attended School no. 8 in the town
of Nalchik in Kabardino-Balkaria.
23. On 24 December 1999 the applicant received
compensation for the property he had lost in the Chechen Republic. In exchange
for compensation, the applicant had to surrender his migrant’s card (миграционная
карта), a local document confirming his residence in Nalchik and his
status as a forced migrant from Chechnya.
24. On 1 September 2000
the applicant’s son and daughter went to school, but were refused admission
because the applicant could not produce his migrant’s card. The headmaster
agreed to admit the children informally, but advised the applicant that the
children would be immediately suspended if the education department discovered
this arrangement.
25. On 4 September 2000 the applicant complained to a
court about the refusal of the Nalchik Education and Science Department (Департамент
образования и науки Администрации г. Нальчик – “the Department”) to admit
his children to school. The Department replied that, after 24 December 1999, the
applicant had had no lawful grounds for remaining in Nalchik and that his
requests amounted to an encroachment on the lawful rights of other children
because School no. 8 had been severely overcrowded even without his children.
26. On 1 November 2000 the Nalchik Town Court dismissed
the applicant’s complaint as unsubstantiated. It found as follows:
“[The applicant] and his family members reside in the
town of Nalchik without [appropriate registration of their residence]. In these
circumstances his requests to admit his children to School no. 8 are
unsubstantiated...
According to a certificate produced by the headmaster of
School no. 8, on 11 October 2000 the school had 459 pupils, whereas it was
designed to accommodate 230...”
27. On 21 November 2000, on an appeal by the applicant,
the Supreme Court of the Kabardino-Balkaria Republic upheld the judgment of
1 November 2000.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Russian Federation of 12
December 1993
28. Article 19 provides for the equality of all before
the law and courts of law, and equality of rights and liberties.
29. Article 27 provides that everyone lawfully within
the territory of the Russian Federation has the right to move freely and choose
his or her place of stay or residence.
30. Article 43 provides that everyone has the right to
education. Elementary education in State and municipal educational institutions
is accessible to all and free. Parents must ensure that their children receive
education.
31. Article 56 provides that, in a state of emergency,
rights and freedoms may be restricted for the protection of national security
and the constitutional foundations. A state of emergency may only be declared in
accordance with a federal constitutional law.
B. The Police Act (no. 1026-I of 18 April 1991)
32. Section 11(22) provides that the police may
temporarily restrict or prohibit the circulation of vehicles or pedestrians on
the streets or roads, or refuse access to specific areas or places, or require
people to remain in or leave specific areas or places, for the protection of
citizens’ health, life or property or for carrying out investigative or search
operations.
III. RELEVANT INTERNATIONAL INSTRUMENTS
33. On 4 January 1969 the United Nations’ International
Convention on the Elimination of All Forms of Racial Discrimination entered into
force. The relevant part of Article 1 of this Convention provides:
“In this Convention, the term ‘racial discrimination’
shall mean any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life.”
34. On 13 December 2002 the Council of Europe’s European
Commission against Racism and Intolerance (ECRI) adopted General Policy
Recommendation no. 7 on national legislation to combat racism and racial
discrimination. It defines “racial discrimination” as follows:
“1. For the purposes of this Recommendation, the
following definitions shall apply: ...
(b) ’direct racial discrimination’ shall mean any
differential treatment based on a ground such as race, colour, language,
religion, nationality or national or ethnic origin, which has no objective and
reasonable justification...
(c) ’indirect racial discrimination’ shall mean cases
where an apparently neutral factor such as a provision, criterion or practice
cannot be as easily complied with by, or disadvantages, persons belonging to a
group designated by a ground such as race, colour, language, religion,
nationality or national or ethnic origin, unless this factor has an objective
and reasonable justification...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF
PROTOCOL NO. 4
35. The applicant complained that he had been refused
admission to Kabardino-Balkaria through the Urukh checkpoint. He relied on
Article 2 of Protocol No. 4, the relevant part of which reads as follows:
“1. Everyone lawfully within the territory of a State
shall, within that territory, have the right to liberty of movement and freedom
to choose his residence. ...
3. No restrictions shall be placed on the exercise of
these rights other than such as are in accordance with law and are necessary in
a democratic society in the interests of national security or public safety, for
the maintenance of
ordre public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be
subject, in particular areas, to restrictions imposed in accordance with law and
justified by the public interest in a democratic society.”
A. The parties’ submissions
1. The applicant
36. The applicant submitted that the fact of refusing
him admission to Kabardino-Balkaria had been confirmed in the letter of 1
February 2000 from the Prosecutor General’s Office. The undated summary approved
by the Minister of the Interior of Kabardino-Balkaria (forwarded to the
applicant’s representative on 3 March 2000) also referred to the fact that
rank-and-file police officers had received from their superiors an oral
instruction not to admit Chechens. However, the summary suggested that the
officers be reprimanded not for carrying out unlawful orders but for presenting
contradictory versions of the events to various authorities. The thrust of this
reprimand demonstrated, in the applicant’s opinion, that the Minister was not
concerned about a violation of human rights, but rather about the police
officers’ “inability to lie consistently”.
37. The applicant contended that liberty of movement was
impaired by the indiscriminate checks of all vehicles and passengers organised
by the Russian police on a normal motorway despite the fact that no state of
emergency had been declared. In his opinion, section 11(22) of the Police Act
did not authorise the police to set up barriers on a motorway on the pretext
that “putative criminals might supposedly use the motorway for transit”. The
Government had not identified any actual threat to the health, life or property
of the population or claimed that the police had carried out specific
investigative or search operations at the Urukh checkpoint.
2. The Government
38. Referring to the “complicated operational situation”
in the Southern Federal Region of Russia on or about 19 June 1999, the
Government claimed that police officers had temporarily restricted the
circulation of vehicles and pedestrians, in accordance with section 11(22) of
the Police Act, seeking to avert potential offences and guarantee public safety.
The applicant’s right to liberty of movement had not been impaired because the
police would not have prevented him from entering Kabardino-Balkaria had he
waited his turn in the queue, and because he had eventually gained admission
through a different checkpoint. Finally, they submitted that the letter from the
prosecutor’s office was not admissible in evidence because it had not been
considered by the Russian courts.
B. The Court’s assessment
1. Whether there has been a restriction on the
applicant’s right to liberty of movement
39. The Court observes that it is confronted with a
dispute over the exact sequence of the events on 19 June 1999. It must therefore
reach its decision on the basis of the evidence submitted by the parties. In the
proceedings before it, there are no procedural barriers to the admissibility of
evidence or predetermined formulae for its assessment. It adopts the conclusions
that are, in its view, supported by the free evaluation of all evidence,
including such inferences as may flow from the facts and the parties’
submissions. According to its established case-law, proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact. Moreover, the level of persuasion
necessary for reaching a particular conclusion and, in this connection, the
distribution of the burden of proof, are intrinsically linked to the specificity
of the facts, the nature of the allegation made and the Convention right at
stake (see Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR
2005-...).
40. The applicant maintained that he and his driver,
both being of Chechen ethnic origin, had been denied access to
Kabardino-Balkaria through the Urukh checkpoint because the traffic police had
acted on an oral instruction to refuse entry to Chechens travelling by private
car.
41. The applicant’s submissions were corroborated by the
report on a violation of constitutional rights, enclosed with the prosecutor’s
letter of 1 February 2000, and the summary of the findings of an internal
inquiry, approved by the head and deputy head of the internal security police
department and the Minister of the Interior. It was established that the
instruction in question had originated from the deputy head of the public safety
police of the Kabardino-Balkaria Ministry of the Interior and had been
transmitted down to rank-and-file traffic police officers.
42. The Government insisted that the applicant had
attempted to jump the queue of vehicles but, having been refused priority
treatment, had left the checkpoint of his own will. They prayed in aid the
judgment of the Nalchik Town Court of 25 August 1999, upheld on appeal by the
Supreme Court of Kabardino-Balkaria on 21 September 1999.
43. The Court, however, is not persuaded that the Town
Court’s judgment laid down a reliable factual basis for this assessment because
its findings of fact appear inconsistent and fraught with contradictions. For
example, the Town Court found that reinforced controls of vehicles on 19 June
1999 had been introduced by a police order (no. 68) which had only been issued
two days later, on 21 June 1999. It also found that the applicant had refused to
show his passport or some other identity document. However, if the applicant did
not wait in the queue for his turn and left of his own will, then the failure to
produce documents could not be held against him. Alternatively, if the police
asked for his documents, that suggests, by converse implication, that it was his
turn in the queue or else that he was granted priority treatment. Furthermore,
the Town Court established that the applicant had shown his advocate’s card but
failed to explain the relevance of its finding that the card had been issued in
Grozny rather than in Nalchik (a finding which is, moreover, refuted by a copy
of the card produced by the applicant in evidence). The judgment of the Supreme
Court of Kabardino-Balkaria of 21 September 1999 did nothing to eliminate these
discrepancies.
44. In these circumstances, the Court gives credence to
the applicant’s version of events, which has been corroborated by independent
inquiries carried out by the prosecution and police authorities. It finds that
the traffic police at the Urukh checkpoint prevented the applicant from crossing
the administrative border between two Russian regions, Ingushetia and
Kabardino-Balkaria. There has therefore been a restriction on the applicant’s
right to liberty of movement within the territory of the respondent State,
within the meaning of Article 2 § 1 of Protocol No. 4.
2. Whether the restriction was justified
45. The Court notes that the structure of Article 2 of
Protocol No. 4 is similar to that of Articles 8-11 of the Convention. In order
to be compatible with the guarantees of Article 2 of Protocol No. 4 the impugned
restriction should be “in accordance with the law”, pursue one or more of the
legitimate aims contemplated in paragraph 3 and be “necessary in a democratic
society” (see
Raimondo v.
Italy, judgment of 22 February 1994, Series A no. 281-A, p. 19, §
39) or, where the restriction applies to particular areas only, be “justified by
the public interest in a democratic society” as established in paragraph 4.
46. The Government argued that the restriction was
imposed in accordance with section 11(22) of the Police Act with a view to
deterring criminal offences and guaranteeing public safety. The applicant
retorted that the restriction had been unnecessarily broad and the aim thereby
pursued too abstract.
47. The Court is not required to rule on the general
question whether the political and social situation in Ingushetia or the
Kabardino-Balkaria Republic at the material time called for the introduction of
checkpoints on a federal motorway and thorough identity checks. The issue for
the Court to determine is limited to the specific circumstances of the present
case, namely whether the refusal to let the applicant cross the administrative
border into Kabardino-Balkaria had a lawful basis.
48. The inquiries carried out by the prosecutor’s office
and by the Kabardino-Balkaria Ministry of the Interior established that the
restriction at issue had been imposed by an oral order given by the deputy head
of the public safety police of the Kabardino-Balkaria Ministry of the Interior,
Colonel Efendiyev. It appears that the order was not properly formalised or
recorded in some other traceable way, enabling the Court to carry out an
assessment of its contents, scope and legal basis. Indeed, the reference to
section 11(22) of the Police Act appeared for the first time in the Government’s
submissions in the proceedings before the Court. In any event, in the opinion of
the prosecutor’s office, the order amounted to a violation of the constitutional
right to liberty of movement enshrined in Article 27 of the Russian
Constitution.
49. Accordingly, the Court finds that the restriction on
the applicant’s liberty of movement was not in accordance with the law. This
finding makes it unnecessary to examine whether it was necessary in a democratic
society.
There has therefore been a violation of Article 2 of
Protocol No. 4.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL NO. 4
50. The applicant submitted that the restriction on his
right to liberty of movement had operated against him in a discriminatory manner
because it had been conditional on his ethnic origin. He relied on Article 14 of
the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in
[the] Convention shall be secured without discrimination on any ground such as
sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
A. The parties’ submissions
51. The applicant indicated that he would have had
unhindered passage through the checkpoint had he concealed his Chechen
ethnicity. Thus, on 24 June 1999, that is five days later, he said at the same
checkpoint that he was an Avar
and had no problems passing through. However, on 19 June 1999 he could not have
hidden his ethnicity because his travelling companion spoke Russian with a
Chechen accent and their car had licence plates from the Chechen Republic.
52. The Government rejected the applicant’s complaint
about discrimination as unsubstantiated because the Russian Constitution did not
require citizens to make known their ethnic origin and it was not indicated in a
person’s identity documents.
B. The Court’s assessment
53. The Court reiterates that Article 14 has no
independent existence, but plays an important role by complementing the other
provisions of the Convention and the Protocols, since it protects individuals
placed in similar situations from any discrimination in the enjoyment of the
rights set forth in those other provisions. Where a substantive Article of the
Convention or its Protocols has been invoked both on its own and together with
Article 14 and a separate breach has been found of the substantive Article, it
is not generally necessary for the Court to consider the case under Article 14
also, though the position is otherwise if a clear inequality of treatment in the
enjoyment of the right in question is a fundamental aspect of the case (see
Chassagnou and Others
v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR
1999-III, and Dudgeon
v. the United Kingdom, judgment of 22 October 1981, Series A no. 45,
§ 67).
54. Turning to the circumstances of the present case,
the Court notes that the Kabardino-Balkarian senior police officer ordered
traffic police officers not to admit “Chechens”. As, in the Government’s
submission, a person’s ethnic origin is not listed anywhere in Russian identity
documents, the order barred the passage not only of any person who actually was
of Chechen ethnicity, but also of those who were merely perceived as belonging
to that ethnic group. It has not been claimed that representatives of other
ethnic groups were subject to similar restrictions (see, in particular,
paragraph 51 above). In the Court’s view, this represented a clear inequality of
treatment in the enjoyment of the right to liberty of movement on account of
one’s ethnic origin.
55. Ethnicity and race are related and overlapping
concepts. Whereas the notion of race is rooted in the idea of biological
classification of human beings into subspecies according to morphological
features such as skin colour or facial characteristics, ethnicity has its origin
in the idea of societal groups marked by common nationality, tribal affiliation,
religious faith, shared language, or cultural and traditional origins and
backgrounds.
56. A differential treatment of persons in relevant,
similar situations, without an objective and reasonable justification,
constitutes discrimination (see
Willis v. the United
Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Discrimination on account of
one’s actual or perceived ethnicity is a form of racial discrimination (see the
definitions adopted by the United Nations and the European Commission against
Racism and Intolerance, paragraphs 33 and 34 above). Racial discrimination is a
particularly invidious kind of discrimination and, in view of its perilous
consequences, requires from the authorities special vigilance and a vigorous
reaction. It is for this reason that the authorities must use all available
means to combat racism, thereby reinforcing democracy’s vision of a society in
which diversity is not perceived as a threat but as a source of enrichment (see
Nachova and Others,
cited above, § 145).
57. Once the applicant has shown that there has been a
difference in treatment, it is then for the respondent Government to show that
the difference in treatment could be justified (see, for example,
Chassagnou,
cited above, §§ 91-92). The Court has already established that the Government’s
allegation that the applicant had attempted to obtain priority treatment was not
sustainable on the facts of the case (see paragraphs 42-43 above). Accordingly,
the applicant was in the same situation as other persons wishing to cross the
administrative border into Kabardino-Balkaria.
58. The Government did not offer any justification for
the difference in treatment between persons of Chechen and non-Chechen ethnic
origin in the enjoyment of their right to liberty of movement. In any event, the
Court considers that no difference in treatment which is based exclusively or to
a decisive extent on a person’s ethnic origin is capable of being objectively
justified in a contemporary democratic society built on the principles of
pluralism and respect for different cultures.
59. In conclusion, since the applicant’s right to
liberty of movement was restricted solely on the ground of his ethnic origin,
that difference in treatment constituted racial discrimination within the
meaning of Article 14 of the Convention.
There has therefore been a violation of Article 14 taken
in conjunction with Article 2 of Protocol No. 4.
III. ALLEGED VIOLATION OF ARTICLE 2 OF
PROTOCOL NO. 1
60. The applicant complains under Article 2 of Protocol
No. 1 about the domestic authorities’ refusal to secure his children’s right to
education on the ground that he had no registered residence in Nalchik and did
not have a migrant’s card. The relevant part of Article 2 of Protocol No. 1
reads as follows:
“No person shall be denied the right to education...”
A. The parties’ submissions
61. The applicant pointed out that the refusal to admit
his children to school after the summer break had been founded solely on the
fact that he had had no registered residence and no “migrant’s card”, which only
former Chechen residents were required to have. The argument about the
overcrowding of the school had only surfaced later, after he had complained to a
court.
62. The Government accepted that the right of the
applicant’s children to education had been unlawfully restricted. Under Russian
law, rights and freedoms could not be restricted on account of a person’s
registered place of residence, and the Education Act guaranteed the right to
education irrespective of the place of residence (section 5).
B. The Court’s assessment
63. The Court reiterates that, by binding themselves not
to “deny the right to education” under Article 2 of Protocol No. 1, the
Contracting States guarantee to anyone within their jurisdiction a right of
access to educational institutions existing at a given time and the possibility
of drawing, by official recognition of the studies which he has completed,
profit from the education received (see
Kjeldsen, Busk Madsen
and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, §
52; Belgian
linguistic case (merits), judgment of 23 July 1968, Series A no. 6, pp.
30-32, §§ 3-5).
64. Article 2 of Protocol No. 1 prohibits the denial of
the right to education. This provision has no stated exceptions and its
structure is similar to that of Articles 2 and 3, Article 4 § 1 and Article 7 of
the Convention (“No one shall...”), which together enshrine the most fundamental
values of the democratic societies making up the Council of Europe. In a
democratic society, the right to education, which is indispensable to the
furtherance of human rights, plays such a fundamental role that a restrictive
interpretation of the first sentence of Article 2 of Protocol No. 1 would not be
consistent with the aim or purpose of that provision (see
Leyla Şahin v. Turkey
[GC], no. 44774/98, § 137, ECHR 2005-...). This right is also to be found in
similar terms in other international instruments such as the Universal
Declaration of Human Rights (Article 26), the International Covenant on
Economic, Social and Cultural Rights (Article 13), the International Convention
on the Elimination of All Forms of Racial Discrimination (Article 5(e)(v)), and
the Convention on the Rights of the Child (Article 28). There is no doubt that
the right to education guarantees access to elementary education which is of
primordial importance for a child’s development.
65. The Court observes that the applicant’s children
were refused admission to the school which they had attended for the previous
two years. The Government did not contest the applicant’s submission that the
true reason for the refusal had been that the applicant had surrendered his
migrant’s card and had thereby forfeited his registration as a resident in the
town of Nalchik.
66. As noted above, the Convention and its Protocols do
not tolerate a denial of the right to education. The Government confirmed that
Russian law did not allow the exercise of that right by children to be made
conditional on the registration of their parents’ residence. It follows that the
applicant’s children were denied the right to education provided for by domestic
law. Their exclusion from school was therefore incompatible with the
requirements of Article 2 of Protocol No. 1.
67. There has therefore been a violation of Article 2 of
Protocol No. 1.
IV. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
68. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of
the Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
69. The applicant claimed 300,000 euros (EUR) in
compensation for the non-pecuniary damage incurred through the violation of his
right to liberty of movement and EUR 500,000 in respect of the violation of his
children’s right to education.
70. The Government submitted that the applicant’s claim
in respect of non-pecuniary damage was excessive and unreasonable and that a
token amount would be equitable in the circumstances of the case.
71. The Court considers that the applicant has suffered
non-pecuniary damage – such as distress and frustration resulting from the
actions and decisions of the domestic authorities that have been found to be
incompatible with the Convention and its Protocols – which is not sufficiently
compensated by the finding of violations. However, it considers that the
particular amounts claimed by the applicant are excessive. Making its assessment
on an equitable basis, the Court awards the applicant EUR 5,000 under this head.
B. Costs and expenses
72. Relying on time-sheets, the applicant claimed 90,000
Russian roubles (RUR – approximately EUR 2,600) in compensation for the sixty
days he had spent on litigation before the domestic courts and the preparation
of materials for the Strasbourg proceedings. He further claimed EUR 40 for
postal and secretarial expenses.
73. The Government submitted that the applicant had
failed to substantiate his claim for costs with appropriate documents.
74. The Court observes that the applicant’s claim for
costs also extends to the complaints which have been withdrawn or declared
inadmissible. As to the remaining complaints, it transpires from the applicant’s
submissions that he spent eleven days on the domestic proceedings and ten days
drafting documents in the Strasbourg proceedings. The sum of RUR 1,500
(approximately EUR 44) claimed as the average value of a lawyer’s working day
does not appear excessive. Accordingly, having regard to the materials in its
possession, the Court awards the applicant EUR 950 in respect of costs and
expenses.
C. Default interest
75. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European Central
Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds
that there has been a violation of Article 2 of Protocol No. 4;
2. Holds
that there has been a violation of Article 14, taken in conjunction with Article
2 of Protocol No. 4;
3. Holds
that there has been a violation of Article 2 of Protocol No. 1;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the following amounts, to
be converted into Russian roubles at the rate applicable at the date of
settlement:
(i) EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage;
(ii) EUR 950 (nine hundred and fifty euros) in
respect of costs and expenses;
(iii) any tax that may be chargeable on the above
amounts;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13
December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S.
Dollé A.B.
Baka
Registrar President
