OBEKTIV 1

Emil COHEN

Many have probably forgotten the news about

the busted ·Islamist seminar in Narechen

preaching extreme Islam” from August 1997. The po-

lice raided a gathering of Muslims, dispersed the

people, seized books and videotapes, and in the pres-

ence of the media pronounced the attendees and

the seminar itself ·a manifestation of radical Islam”.

As usual, the event made it in the news and the news-

papers chewed on it for a few days.

Two years later, on July 4 1999, the main orga-

nizer of the seminar, Dariush Al-Nashif, a stateless

person of Palestinian origin, was expelled from Bul-

garia. The respective orders, issued a month earlier,

banned him from entering the country for a period

of 10 years, as ·a person posing a threat to national

security·, and ordered his deportation.

However, three years later, by judgment of June

20 2002, which became final on September 20 2004,

the European Court of Human Rights in Strasbourg

held that by expelling Mr. Al-Nashif Bulgaria had vio-

lated three articles of the European Convention on

Human Rights: Art. 8 proclaiming the right to respect

for private and family life; Art. 5, para. 4, which pro-

vides protection against unlawful detention; and Art.

13, which provides that everyone should have an

effective remedy against violations of their rights by

the state. By the way, this and other applications

before the court resulted in the repeal of the absurd

Art. 47 of the Foreigners in Bulgaria Act, which for-

bade orders for ·administrative measures against

foreigners” (i.e., extradition, ban to enter the coun-

try) to be reviewed by a court. Given the judgment

of the Strasbourg court, it would be logical for some-

body who has been expelled from a country, to want

to be allowed back in. Which is what Mr. Al-Nashif did.

What happened after that? We could call the

events that followed a legal comedy. But in order to

avoid expressions that could appear insulting to some-

one, we’ll call it a ·triumph of legal formalism”. The

author cannot quote the court decisions, as these

have been classified, so the narrative hereafter is

based on what I’ve been told by one of Dariush’s

lawyers, the famous human rights defender Yonko

Grozev.

In March 2006, the Smolyan Regional Court re-

pealed the ban on entering the country. The police

department in the city appealed the decision and a

three-member Supreme Administrative Court (SAC)

panel decided in favour of the police. Naturally,

Supreme Administrative Court disavowsEuropean Court judgment

Dariush’s lawyers appealed to the five-member SAC

panel. Its final decision to leave the ban in force be-

came effective on February 14 2008.

The Supreme Court’s actions are extremely for-

malistic. It admits that in finding violations of the Con-

vention, the European Court of Human Rights

(ECtHR) has reviewed all legal acts of the Bulgarian

authorities pertaining to Mr. Al-Nashif’s expelling in

their entirety, i.e. they were reviewed together. Ob-

viously, the orders to deprive of the right to stay in

Bulgaria, to expell and to ban entry are closely re-

lated and arise from one another. SAC, however,

states that these three acts are different (formally,

this is correct) and that in motivating its decision the

ECtHR has not explicitly referred to the appealed or-

der to ban entry. Therefore, it held the decision of

the Smolyan Regional Court was incorrect and left

the ban in force.

This case could qualify as curiosity but is not. In

fact, by its extremely formalistic actions and using

purely ·procedural tricks”, the SAC has disavowed a

judgment of the European Court of Human Rights -

if not by factual content (the Supreme Court can-

not repeal neither the recognition of the violations of

the Convention, nor the compensation awarded),

then by its spirit, which is worse. The other grounds for

this development are unclear. It could be speculated

that the court didn’t want to make the special ser-

vices unhappy and has demonstrated a perverse

national solidarity with them. The ECtHR can pass all

the judgments it likes, but we are independent - this is

the message that the SAC decisions convey. In other

words, when you have the means of doing it, it’s

possible to send the decisions of the highest judicial

authority in Europe down the drain. Because they

weren’t sufficiently perfect in terms of formalities,

unlike ours.

But this is why the ECtHR judgments are simple,

clear and very detailed. Because they judge, case

by case, the principle issue of how human rights can

become really proper law, and not just political man-

tras. Those who see this as a deficiency, as in our

case, have simply not grown up to the sense of the

Convention.

Let’s hope that this, too, will happen in the

forseeable future. And Mr. Dariush Al-Nashif will wait

one more year. He has already waited nine. And then

we’ll see whether the State Agency on National Se-

curity, which needs to let him enter the country, has

picked up anything from the sense of the Conven-

tion and the Court in Strasbourg.�