The appeal of Mr. Imad Al Husin is partially granted.

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1 1 of 36 25/10/ :39 The Constitutional Court of Bosnia and Herzegovina, sitting, in accordance with Article VI(3)(b) of the Constitution of Bosnia and Herzegovina, Article 16(2) and (4)(4) and (9), Article 59(2)(2), Article 61(1),(2) and (3) and Article 64(1) of the Rules of the Constitutional Court of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina No. 60/05), in Plenary and composed of the following judges: Ms. Seada Palavrić, President Mr. Miodrag Simović, Vice-President Mr. David Feldman, Vice-President Ms. Valerija Galić, Vice-President Mr. Tudor Pantiru Mr. Mato Tadić Ms. Constance Grewe Mr. Krstan Simić Mr. Mirsad Ćeman Having deliberated on the appeal of Mr. Imad Al Husin in Case No. AP 1222/07 at its session held on 4 October 2008, adopted the following The appeal of Mr. Imad Al Husin is partially granted. A violation of Article II(3)(f) of the Constitution of Bosnia

2 2 of 36 25/10/ :39 and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is hereby established. The following verdicts are quashed: - The Verdict of the Court of Bosnia and Herzegovina, No. U-1172/07 of 21 January 2008 and - The Verdict of the Court of Bosnia and Herzegovina, No. Uvl-03/08 of 14 March Both cases shall be referred back to the Court of Bosnia and Herzegovina for a new proceedings in which the Court of Bosnia and Herzegovina shall consider the evidence and establish whether the removal of the appellant from the country would be justified within the meaning of the requirements under Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court of Bosnia and Herzegovina is ordered to inform the Constitutional Court of Bosnia and Herzegovina, within 60 days as from the date of delivery of this Decision, about the measures taken to execute this Decision as required by Article 74(5) of the Rules of the Constitutional Court of Bosnia and Herzegovina. The appeal of Mr. Imad Al Husin is hereby dismissed as ill-founded, which is lodged against the Verdict of the Court of Bosnia and Herzegovina No. U-1172/07 of 21 January 2008 and the Ruling of the Ministry of Security of Bosnia and Herzegovina No. UP-1-08/ /07 of 8 August 2007 in relation to Article II(3)(a) and (b) and Article II(4) of the Constitution of Bosnia and Herzegovina and Articles 2, 3,13 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

3 3 of 36 25/10/ :39 The appeal of Mr. Imad Al Husin is hereby dismissed as ill-founded, which is lodged against the Verdict of the Court of BiH No. U-129/07 of 5 April 2007 and Ruling of the State Commission for Revision of Decisions on Naturalization of Foreign Citizens No. UP /06 of 9 January 2007 issued by the Council of Ministers of Bosnia and Herzegovina in relation to Article I(7)(b) of the Constitution of Bosnia and Herzegovina. The appeal of Mr. Imad Al Husin is hereby rejected as inadmissible, which is lodged against the Verdict of the Court of BiH No. U-129/07 of 5 April 2007 and Ruling of the State Commission for revision of decisions on naturalization of foreign citizens No. UP /06 of 9 January 2007 issued by the Council of Ministers of Bosnia and Herzegovina in relation to Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as being manifestly (prima facie) ill-founded. The appeal of Mr. Imad Al Husin is hereby rejected as inadmissible, which is lodged against the Verdict of the Court of Bosnia and Herzegovina No. U-1172/07 of 21 January 2008 and Ruling of the Ministry of Security of Bosnia and Herzegovina No. UP-1-08/ /07 of 8 August 2007 in relation to Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms for being ratione materiae incompatible with the Constitution of Bosnia and Herzegovina. The appeal of Mr. Imad Al Husin is hereby rejected as inadmissible, which is lodged against the Verdict of the Court of BiH No. U-129/07 of 5 April 2007 and Ruling of the State Commission for Revision of Decisions on Naturalization of Foreign Citizens No. UP /06 of 9 January 2007 issued by the Council of Ministers of Bosnia and Herzegovina in

4 4 of 36 25/10/ :39 relation to Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms for being ratione materiae incompatible with the Constitution of Bosnia and Herzegovina. This Decision shall be published in the Official Gazette of Bosnia and Herzegovina, the Official Gazette of the Federation of Bosnia and Herzegovina, the Official Gazette of the Republika Srpska and the Official Gazette of the Brčko District of Bosnia and Herzegovina. I. Introduction 1. On 30 April 2007, Mr. Imad Al Husin ( the appellant ), represented by Association Vaša prava BiH from Sarajevo and Messrs. Osman Mulahalilović and Faruk Latifović, lawyers practicing in Brčko, lodged an appeal with the Constitutional Court of Bosnia and Herzegovina ( the Constitutional Court ) against the Verdict of the Court of Bosnia and Herzegovina ( the Court of BiH ), No. U-129/07 of 5 April 2007 and the Ruling of the Council of Ministers of Bosnia and Herzegovina the State Commission for Revision of Decisions on Naturalization of Foreign Citizens ( the Commission ) No. UP /06 of 9 January In addition, the appellant submitted a request for an interim measure whereby the Constitutional Court would prohibit appellant s deportation from Bosnia and Herzegovina pending a decision on the appeal. The appeal is registered with the Constitutional Court under number AP 1222/07. On 31 May 2007 and 1, 4 and 6 February 2008, the appellant supplemented his appeal respectively. 2. On 28 January 2008, the appellant lodged an appeal against the Verdict of the Court of BiH No. U-1172/07 of 21 January 2008 and the Ruling of the Ministry of Security of Bosnia and Herzegovina ( the Ministry of Security ), No. UP-1-08/ /07 of 8 August The appellant also requested an interim measure whereby the Constitutional Court would prohibit appellant s deportation from Bosnia and Herzegovina pending a decision on the appeal. The appeal is registered with the Constitutional Court under No. AP 306/08. On 28, 30 and 31 January 2008 and on 1 February 2008, the appellant supplemented his appeal respectively. 3. On 3 March 2008, the appellant lodged an appeal against the Ruling of the Court of BiH No. U-1141/07 of 28 January 2008, the Ruling of the Ministry of Security No. UP /07 of 27 July 2007 and the Ruling of the Department for Foreigners, Field Office in Sarajevo, No UP /07 of 18 May In this appeal, the appellant requested adoption of an interim measure whereby the Constitutional Court would prohibit the appellant s deportation from Bosnia and

5 5 of 36 25/10/ :39 Herzegovina pending a decision on the appeal. The appeal is registered with the Constitutional Court under No. AP 660/ On 28 April 2008, the appellant filed the appeal against the Verdict of Court of BiH, No. Uvl-03/08 of 14 March 2008, whereby the appellant s request had been dismissed for extraordinary review of the Ruling of the Court of BiH, No. U-1141/07 of 21 January In this appeal the appellant again requested adoption of interim measure whereby the Constitutional Court would prohibit the appellant s deportation from Bosnia and Herzegovina pending a decision on the appeal. The appeal was registered under number AP 1254/08. II. Procedure before the Constitutional Court 5. The Constitutional Court took a decision No. AP 1222/07 of 26 June 2007, rejecting the appellant s request for an interim measure. 6. Taking into account that four appeals from the jurisdiction of the Constitutional Court have been submitted to the Constitutional Court with regards to the same facts and legal basis, the Constitutional Court took a decision on merging the cases to conduct single proceedings and take a single decision under case number AP The appeals numbered as AP 1222/07, AP 306/08, AP 660/08 and AP 1254/08 have been merged. 7. On 30 January 2008, the Ministry for Human Rights and Refugees of BiH Council of Ministers - Office for Representation before the European Court of Human Rights, informed the Constitutional Court that, on 22 January 2008, the appellant had filed an appeal against Bosnia and Herzegovina to the European Court of Human Rights, which was registered under No. AP 3727/08 and that on 29 January 2008 and the European Court of Human Rights issued the interim measure suggesting to Bosnia and Herzegovina that the appellant should not be expelled from Bosnia and Herzegovina pending the final decision of the Constitutional Court on the appeal No. AP 1222/07 nor he should be expelled within the period of 7 days from the date of informing the appellant on that decision. A copy of translated letter of the European Court of Human Rights No. ECHR-LE2.G of 29 January 2008 has been attached herewith. 8. In addition, the appellant also submitted the said decision in English. 9. Pursuant to Article 22(1) and (2) of the Rules of the Constitutional Court, on 31 January 2008 the Court of BiH, the Ministry of Security and the Ministry of the Interior of Canton Sarajevo were requested to submit their replies to the appeal. On 29 May 2007, the State Commission was requested to submit a reply to the appeal. 10. The Court of BiH submitted its replies to the appeal on 5 June 2007 and 12 February 2008 and the Ministry of Security did so on 11 February On 15 February 2008, the Ministry of the Interior of Canton Sarajevo submitted its reply, while the State Commission did so on 13 June On 19 February 2008, the Helsinki Committee, as amicus curiae submitted its expert opinion in writing. 12. Pursuant to Article 26(2) of the Rules of the Constitutional Court, the replies to the appeal were

6 6 of 36 25/10/ :39 forwarded to the appellant on 17 March III. Facts of the Case 13. The facts of the case, drawn from the appellant's statements and the documents submitted to the Constitutional Court, may be summarized as follows. 14. The appellant is and at all material times was a national of the Arab Republic of Syria. He came to the territory of the former Yugoslavia and to the (then) Republic of Bosnia-Herzegovina (R BiH) and was granted citizenship of R BiH in March 1992 by the Ruling of the Ministry of the Interior of the Republic of Bosnia and Herzegovina ( the Ministry of the Interior of R BiH ), No. 09/ /92 of 23 March In 1994 the appellant, perhaps anticipating that the grant of citizenship in 1992 had been invalid, applied again for citizenship on different grounds, and was again granted citizenship by another Ruling of the Ministry of the Interior of R BiH, No. 07/ /94 of 22 November During the period of his residence on the territory of the former Yugoslavia the appellant met and married his wife, to whom his child was born, and became part of a family unit consisting also of children from his wife s previous marriage. The facts of the case No. AP 1222/ By the Ruling No. UP /06 of 9 January 2007, the Commission revoked the BiH citizenship of the appellant, granted by both Rulings of the Ministry of the Interior of mentioned in paragraph 13 above. The said Ruling is final in the administrative proceedings and no appeal is admissible. However, according to Article 19 of the Law on Administrative Disputes of BiH, administrative proceedings may be initiated against it by filing a lawsuit with the Court of BiH 16. In the reasoning of the Ruling it is, inter alia, stated that based on the conducted proceedings it has been established that the appellant acquired the R BiH citizenship by means of fraudulent conduct, i.e. through concealment of the relevant facts and therefore the said Ruling was adopted in accordance with Article 23, paragraph 1 and Article 41, paragraph 4, item b) of the Law on Citizenship of Bosnia and Herzegovina. 17. The appellant filed a lawsuit with the Court of BiH against the Ruling of the State Commission No. UP of 9 January for the purpose of annulling the said Ruling of 9 January By its Verdict No. U-129/07 of 5 April 2007, the Court of BiH dismissed the appellant s lawsuit as ill-founded. 18. In the reasoning of its verdict, the Court of BiH stated that the lawfulness of a final administrative act was examined within the scope of the claim in the lawsuit, i.e. only the part wherein the appellant requested the ruling on revocation of citizenship to be annulled, as referred to in Article 35 of the Law on Administrative Disputes of BiH (Official Gazette of BiH No. 19/02). While examining the lawfulness and regularity of the challenged Ruling, the Court of BiH found that the State Commission correctly applied Article 23 in conjunction with Article 41 of the Law on Citizenship of BiH (Official Gazette of BiH, Nos. 13/99, 6/03, 14/03 and 82/05), and reviewed the Ruling of the Ministry of the

7 7 of 36 25/10/ :39 Interior of R BiH No. 07/ /94 of 22 November 1994 based on the data the appellants submitted, as well as the data obtained ex officio. It follows from the Ruling on acquisition of citizenship of 22 November 1994, that the appellant was granted the citizenship of BiH on the basis of citizenship application, statement, a copy of his passport and an excerpt from a register of births. Following the examination of evidences presented in that procedure, it was established that the plaintiff satisfied the requirements under Article 8(1) of the Law on Citizenship of R BiH (Official Gazette of BiH, Nos. 18/92, 11/93, 27/93, 13/94 and 15/94). However, it follows from the citizenship application of 12 October 1994, lodged by the appellant through the Embassy of R BiH in Zagreb that he demanded BiH citizenship based on his marriage with Ms. Zinaida Softić, a citizen of BiH, and based on his participation in the Army of BiH from 15 September 1992 to 1 January In the opinion of the Court of BiH, the facts stated in his citizenship application, which are relevant for the acquisition of citizenship, are not true. Further, it is not true that the appellant, at the time of submitting his application for citizenship, was married to a citizen of BiH, i.e. that he was married to Ms. Zinaida Softić. The appellant entered into marriage with the BiH citizenship only on 14 June 1995, as indicated in the marriage certificate issued by the Municipality of Stari Grad of 9 May 2001 and this certificate was submitted to the Court of BiH as an attachment to the claim. This means, as per the Court of BiH, that at the time of submitting his application on 12 October 1994, the appellant was not married to a BiH citizen, in other words, no marriage contract was concluded although the appellant referred to the above marriage as to a relevant fact. Given that the appellant, while lodging his citizenship application, gave a declaration of loyalty to the Constitution, laws and other regulations of the Republic of Bosnia and Herzegovina, the Court of BiH states that he could have and should have known and must have been aware that the laws in BiH provide that the marriage may be entered into exclusively in accordance with the Family Law of BiH and that marriage entered into in accordance with the Sharia (Islamic law) is not considered as valid and has no legal effect in BiH. This circumstance is relevant for the Court of BiH because the Law on Citizenship of RBiH, which was applicable at the time of his acquisition of citizenship, stipulated that an alien may be granted the citizenship of BiH by naturalization if married to a citizen of BiH. Therefore, the Court of BiH has concluded that the requirement for acquisition of citizenship by naturalization based on the marriage with citizen of BiH was not satisfied and that the appellant gave false information in this regard. 19. Therefore, the Court of BiH is of the opinion that the appellant was unjustifiably challenging the ruling claiming erroneous establishment of facts and misapplication of substantive law since the State Commission made a proper conclusion stating that the appellant failed to give true facts decisive for evaluation of his status. Moreover, the Court of BiH states that neither it is true the appellant s allegation that he was a member of Army of BiH during the period from 15 September 1992 to 1 January 1993 because there are no valid or legally prescribed evidence in the case file, nor did the appellant submit the relevant evidence in the documents attached to the claim. Quite the contrary, it follows from the copy of certificate of the Ministry of Defense - Administration of Defense in Zenica, No /01 of 18 December 2001, that the appellant was a member of military unit Armed Force Zenica during the period from 1 May 1993 to 31 December It is not clear, as per Court of BiH, what was the reason that the appellant, in his application for citizenship from 1994, failed to state that he was a member of the BiH Army as from 1 May 1993, if he ever had this status, but, in his application, he only stated that he was a member of BiH Army form 15 September until 1 January 1993 and failed to prove the related fact in the proceedings. Therefore, the conclusion of the State Commission

8 8 of 36 25/10/ :39 is correct, according to the Court of BiH, that the appellant acquired his citizenship based on false information with regards to his status as a the member of R BiH Armed Force. The Court of BiH pointed out that this information, when it comes to the appellant s status as a member of R BiH Armed Force, was significant only in regards to evaluating the loyalty of the appellant as an alien towards the State of Bosnia and Herzegovina (related to Article 8a of the Law on R BiH). This is due to the reason that the appellant did not acquire the BiH citizenship on the basis of his membership in the R BiH Armed Forces in accordance with Article 9 paragraph 5 of the cited Law, and therefore it is not a decisive fact, in this specific case, from which date the appellant was the member the R BiH Armed Forces. Given that the appellant managed to refute the challenged Ruling only in part relating to the revocation of his citizenship acquired by the Ruling of 22 November 1994, the Court of BiH refrained from making an assessment concerning the acquisition of BiH citizenship in accordance with the Ruling No. 09/ /92 of 23 March The Court of BiH rejected the appellant s request as inadmissible in which he sought issuance of interim measure to prevent his deportation given that the Law on Administrative Disputes of BiH did not provide for the issuance of interim measure. The challenged Ruling only establishes the facts concerning the revocation of citizenship and thus it does not contain a decision on deportation of the appellant from the territory of Bosnia and Herzegovina, in which case that ruling cannot be the subject of enforcement because deportation of aliens from the territory of BiH is to be decided in a separate proceedings and a separate decision is to be adopted by the competent institutions of BiH. Facts of the Case No. AP 306/ The Ministry adopted the Ruling No. UP-1-08/ /07 of 8 August 2007, whereby the appellant s request for asylum was dismissed and the appellant, as a citizen of the Arab Republic Syria born on 8 October 1963 in Mouhassan, Syria, was ordered to leave the territory of Bosnia and Herzegovina within 15 days from the date of the said Ruling taking effect. 22. In the reasoning of the Ruling it is, inter alia, stated that based on the conducted proceedings it was established that the requirements provided for by Article 72 paragraph 1 item a) of the Law on Movement and Stay of Foreigners and Asylum (Official Gazette of BiH, No. 29/03 and 4/04) that the appellant be approved the asylum in BiH have not been met since there are no prerequisites for recognition of the appellant s refugee status, which is referred to in the 1951 Convention on the Status of Refugees and 1967 Protocol on the Status of Refugees. 23. The appellant filed a lawsuit against the Ministry, whereby he initiated an administrative dispute before the Court of BiH for the purpose of annulment of the Ruling of the Ministry No. 1-08/ /07 of 8 August By its Verdict No. U-1172/07 of 21 January 2008, the Court of BiH dismissed the appellant s lawsuit as ill-founded. In the reasoning of its Verdict the Court stated that the Ministry correctly decided when it dismissed the appellant s request for approval of asylum since even according to the opinion of this court the requirements were not met which are referred to under Article 72 of the Law on Movement and Stay of Aliens and Asylum in order to meet the appellant s request. Namely, the Court states that, according to this law provision, the asylum in BIH shall not be approved to the foreigner unless there are conditions for the recognition of the refugee status. Furthermore, according

9 9 of 36 25/10/ :39 to the Convention and Protocol on the Status of Refugees, a refugee status shall be recognized to every person who is outside the country of his/her nationality owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. 24. According to the evidence presented in the proceeding of adoption of the challenged Ruling, the court considers that the Ministry properly established that the appellant had not abandoned the country of his citizenship due to his fear of persecution by the authorities of that country, but that he, after the school demonstrations that took place in 1980 and 1981, enrolled in the Faculty of Biology in Damascus, and after that, in 1982, he came to Belgrade where he enrolled in the Faculty of Medicine. In 1985 he moved to Rijeka in order to continue his studies at the Faculty of Medicine. During 1992 and finally in 1994 or 1995, the appellant came to Bosnia and Herzegovina for the purpose of joining the Army of BiH. Furthermore, taking into account the appellant s statement that during 1986 he visited his country for the first time, and then in 1989, and even in 1991 and 1992 and that he had no problems concerning his stay in the country of his citizenship, the court considers that the conclusion of the Ministry that the appellant did not find himself outside his country of origin due to the fear of persecution was correct since he stated that he had not been a member of any banned political party, religious or national organization in his country nor was he ever arrested in his country or apprehended for a questioning. In view of the aforesaid, the Court is of the opinion that the case at hand does not involve an alien finding himself outside of the country of his citizenship due to a justified fear of persecution or his political view finding that the Ministry properly decided that the requirements prescribed by law were not met for recognition of the appellant's refugee status and approval of the asylum within the meaning of the Law on Movement and Status of Aliens and Asylum accordingly. 25. The Court has also taken into its consideration that the appellant s motive for requesting the asylum because of his political opinion and beliefs is not well-founded because the appellant s fear of persecution only because his political opinion is similar to the objectives of the organization Brothers Muslims is not justified. Therefore, the Court of BiH is of the opinion that there is no threat of prosecution against the appellant for only the members and activist of organization Muslim Brotherhood are being prosecuted in Syria and that the appellant, according to his statement, is not a member of the mentioned organization. The Court has also established that the Ministry, taking into account reports from his country of origin and other reports obtained during the proceedings, made a proper conclusion that the persons who took part in the war of BiH or joined the BiH Army are not persecuted in the country of appellant s origin. The Court found that the Ministry had explained in details the reasons for which it considers that the appellant s fear is not justified due to the fact that he had taken part in the war as a member of the BiH Army and the said reasons have been accepted by the Court in their entirety. Finally, the fact that the appellant avoided military service in his country of origin and that on several occasions he was giving interviews to various media, cannot be views as a valid reason for his fear of persecution in his country of origin, as it was concluded by the Ministry in its Ruling. Therefore, the Court of BiH found that the claim of the appellant is ill-founded where he challenges the regularity and lawfulness of the decision on dismissal of application for asylum because the decision of the Ministry is based on properly established facts, as well as on the proper application of the Convention and Protocol on Refugees. 26. Taking into account the decision of the Ministry in part where the appellant was ordered to leave

10 10 of 36 25/10/ :39 the territory of BiH, the court established that the Ministry explained in details the reasons for which it considers that in this specific case the requirements for application of Article 60 of the Law on Movement and Stay of Aliens and Asylum. Namely, the court established from the Ruling of Ministry No. UP /07 of 27 July 2007, whereby the appellant s stay was not approved for the following reasons that based on the documents, records of authorized law enforcement bodies and operational information from security services it was established that the presence of the appellant in Bosnia and Herzegovina represents a threat to a public order and national security, in which case the court found that the decision was adopted on the basis of proper application of law provisions and required standards regulating the issue of deportation of aliens for the purpose of protection of national security, and all of this applies even in case of existence of the conditions for application of principle of prohibition of return. 27. After referring to Article 8 paragraph 2 of the European Convention, the Court concluded that the complaint of the appellant is unfounded where he complains that his right to family life under Article 8 of the European Convention has been violated since in paragraph 2 of the said Article it is stipulated that the respect for right to private and family life must be in accordance with the interests of state and its national security and therefore the interference of public authorities is necessary in a democratic society, it is in the interest of national security, public security etc. and this interference did not exceed the limits of protection of state interests. This is because the national security of a State has a priority over private and family life of an individual. The Court concluded that in the instant case the appellant s right to family life under Article 8 of the European Convention has not been violated. Moreover, by referring to Article 54 of the Law on Movement and Stay of Aliens and Asylum and given that the appellant came from the Republic of Croatia, the court stated that it is necessary to assess whether, on occasion of deportation the appellant, he will be returned to his country of origin or to the country from which he came to BiH. Facts of the Case No. AP 660/ By the Ministry s Ruling - Department for Foreigners, Sarajevo Field Office, No UP /07 of 18 May 2007 upheld by the Ruling of Ministry No. UP /07 of 27 July 2007, the appellant s request for temporary stay was dismissed. Moreover, by paragraph 2 of the enacting clause of the Ruling the appellant was given a time limit of 15 days as form the date of delivery of final ruling to voluntarily leave the territory of Bosnia and Herzegovina. The appellant filed a lawsuit with the Court of BiH against this Ruling, wherein he suggested that the court modify the challenged Ruling by approving his temporary stay in BiH on the basis of his marriage with the citizen of Bosnia and Herzegovina. 29. By its Ruling No, U-1141/07 of 21 January 2008, the Court of BiH rejected the appellant s claim as inadmissible. In the reasoning of the said Ruling the Court of BiH stated that the lawsuit of the appellant is inadmissible for the reason that the Law on Movement and Stay of Aliens and Asylum, as a special law, clearly stipulates that an alien shall be entitled to court protection, i.e. that he/she shall be entitled to filing a lawsuit against a final administrative act only if the issue is approval of asylum and only in the event that the subject of administrative proceedings was a request for temporary stay for the reasons referred to in Article 35, paragraph 1, item d). i.e. if the temporary stay is requested for humanitarian reasons and the conditions have been met in accordance with Article 60 of the said law, i.e.

11 11 of 36 25/10/ :39 in the event when an alien must be approved a temporary stay because of reasonable doubt that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment if deported. In all other cases relating to taking a decision on the stay of aliens in the territory of BiH no court protection has been envisaged by the said law, i.e. no initiation of administrative dispute against a final administrative act has been envisaged. This is because the right of aliens to stay in a certain county or to be approved the stay falls within the domain of public law of each country. If a state denies such a right to an alien for the reasons prescribed by the law that is to be considered an act of the respective state falling within its public-law domain and it does not enjoy the protection of Article 6 of the European Convention as a civil right or obligation. For the mentioned reason, the Court of BiH concluded that the lawsuit of the appellant is inadmissible since the appellant is not entitled to initiate an administrative dispute against the above referenced Ruling, as stated in the challenged Ruling. Facts of the case No. AP 1254/ The appellant submitted a request for review of the Ruling of Court of BiH No. U-1141/07 of 21 January By its Verdict No. Uvl-03/08 of 14 March 2008, the Court of BiH dismissed the appellant s request for review as ill-founded. In the reasoning of its verdict it is stated that the Appellate Administrative Panel finds that the panel of Court of BiH dealing with administrative disputes, in the procedure of examining the existence of procedural legal prerequisites for taking a decision on merits in the administrative dispute, acted in a proper and legal manner and, by referring to the reasons established in the first instance proceedings, the Panel concludes that in the instant case the lawsuit is not admissible after establishing that the challenged Ruling is correct and lawful and that the request for review is unfounded. Namely, the Appellate Panel of the Court of BiH stated that in the procedure of adoption of the challenged Ruling it was clearly established that the requirements under Article 41, paragraph 1, items d) and f) of the Law on Movement and Stay of Aliens and Asylum have not been met concerning the approval for temporary stay of the appellant and after establishing that the Ministry properly decided when it dismissed the appellant s application for asylum because, in the opinion of the said panel, the requirements under Article 72 of the Law on Movement and Stay of Aliens and Asylum have not been met for the appellants request to be granted. Namely, the court states that according to this law provision an alien shall be approved asylum in BiH provided that the conditions for recognizing the refugee status of an alien have been met. IV. Appeal a) Allegations from the appeal No. 1222/07 (revocation of citizenship) 31. The appellant complains that the verdict of the Court of BiH No. U-129/07 of 5 April 2007 has violated his rights under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( the European Convention ) and Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 paragraph 1 of the European Convention. He points out that he was not given an opportunity to give his opinion about the reasons for which the Court of BiH adopted the challenged verdict since those reasons were not stated in the Ruling of the State Commission and therefore he considers that the

12 12 of 36 25/10/ :39 mentioned verdict was not adopted by an impartial tribunal. Moreover, the appellants alleges that the Court of BiH did not rely on the facts that had been established in the administrative proceedings, but it rather based its decision on the facts that the Ministry was not establishing at all and thus the court undertook the role of the party in accordance with the power of unity principle. For the said reasons, as well as for the fact that he was not given an opportunity to have public hearing before the Court of BiH, the appellant considers that he was denied his right of access to the court. 32. The appellant states the reason why he sought issuance of interim measure referring to the previous case law in similar cases (Farchichi Badreddine and Atmmani), which indicates that, subsequent to the decision revoking citizenship from naturalized citizens, the administrative authorities in BiH have been rendering decisions on deportation. He particularly emphasizes that it is a well known fact that the situation in Syria, when the respect for human rights is concerned, is very difficult and that the death penalty is still in force in Syria. The appellant considers that by his expulsion, due to non-issuance of the requested interim measure, his right to life would be endangered. Also, he points out that in the daily newspaper Avaz of 13 April 2007, the Director of Foreigners Department announced his deportation, which would in this way endanger his right to respect of his family life and right to prohibition of torture. Allegations from the appeal No. AP 306/08 (rejection of asylum application and order to leave Bosnia and Herzegovina) 33. The appellant complains that by the challenged decision his rights safeguarded by Article II (3)(a) (b)(e) and (f) and Article II (4) of the Constitution of Bosnia and Herzegovina have been violated, as well as his rights safeguarded under Articles 2, 3, 6, 8,13 and 14 of the European Convention and right under Article 1 of the Protocol no. 7 to the European Convention. As for the appellants complaint about the violation of his right to a fair trial, the appellant states that the Court of BiH arbitrarily applied the provisions of the Law on Movement and Stay of Foreigners and Asylum since he proved that human rights are violated in Syria even for the reason of being a member of certain social group or for having a political opinion. The appellant states that the Court of BiH failed to take into its consideration the fact that he has been a member of the voluntary unit El-Mujaheed since 1992 and that is why he could be placed in danger of torture and death in Syria if deported. Moreover, the appellant considers that his right to a fair trial has been violated, as well as Article 1 of Protocol no. 7 because he was not allowed to submit reasons against his expulsion, i.e. to state why he constitutes a threat to the public order or national security. The appellant states something quite the contrary since there is no investigation pending against him. Furthermore, as for the violation of Articles 2 and 3 of the European Convention, the appellant states that there is a possibility of pronouncing death penalty against him in Syria, that there is a real risk of him being subjected to torture and inhumane and degrading treatment or punishment, as well as the risk of prosecution in his country of origin due to his political opinion, participation in the Armed Forces of BiH. He claims that BiH has never requested any guarantees from Syria that he would not be subjected to torture unlike the case Chalal vs. the United Kingdom, to which he refers, where the Court of Human Rights prevented the appellant s deportation to India regardless of the given guarantees. 34. Further, as for the alleged violation of his and his family's right to family life, the appellant alleges

13 13 of 36 25/10/ :39 that he entered into marriage with a BiH citizen and that he has three children who were born into this marriage and therefore the challenged verdict leads to the expulsion of his wife and children from BiH although they are the citizens of BiH and this results in their collective punishment. The appellant states that the opinion of the Court of BiH is arbitrary that in the instant case Article 8 of the European Convention has not been violated and he refers to cases Abdellah Berrehab vs. The Kingdom of Netherlands and other cases dealt with by the European Court of Human Rights. Finally, the appellant considers that his rights have been violated because of his dark skin, because he practices the religion of Islam and because he is of Afro-Asian national origin since no other conclusion can be drawn form the presented evidence. He suggests that the appeal be granted and challenged decision quashed. Allegations from appeals No. AP 660/08 and No. AP 1254/08 (refusal of permission for temporary stay in Bosnia and Herzegovina) 35. In his appeals of identical contents, the appellant complains that the challenged decisions are in violation of his rights under Article II(3)(a) of the Constitution of Bosnia and Herzegovina and Article 2 of the European Convention, Article II(3)(b) of the Constitution of Bosnia and Herzegovina and Article 3 of the European Convention and Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention. Moreover, in his both appeals the appellant states that in the said cases the Court of BiH violated Article 9 of the Law on Administrative Disputes of BiH, Article 35, paragraph 1, item d) of the said law in conjunction with Article 60 of the Law on Movement and Stay of Foreigners and Asylum and therefore he deems the challenged decisions to be unlawful. Namely, the appellant alleges that by Article 35 of the Law on Movement and Stay of Foreigners and Asylum the initiation of administrative dispute against an administrative act of the Ministry is not forbidden and that there is no law provision the court refers to in this regard. b) Reply to the appeal 36. In its reply to the appeal, the Commission states that it found a series of irregularities and unlawfulness in granting the BiH citizenship to the appellant and, based on the reasons stated in the challenged Ruling, the Commission unanimously decided to revoke the appellant s BiH citizenship. In addition, the Commission underlines that the relevant ruling was passed in accordance with the Constitution and laws of Bosnia and Herzegovina. The Commission followed the proper procedure and heard the appellant, who also made contacts with the Commission and brought certain documentation relevant for the decision revoking the appellant s citizenship. Given that the appellant has kept his former citizenship, the Commission recalls that the appellant has not become a person without citizenship because of the withdrawal of the appellant s BiH citizenship. The Commission concludes that in the procedure of revision of citizenship it has not violated the appellant s fundamental human rights and it presented its opinion that Article II of the Constitution of Bosnia and Herzegovina Human Rights and Fundamental Freedoms does not encompass the right to citizenship and, consequently, there has been no violation of Article II of the Constitution of Bosnia and Herzegovina. 37. In its reply to the appeal, the Court of BiH recalls the fact that the appellant has failed to file a request for judicial review against the verdict of the said Court or any other extraordinary remedy, as provided for under Article 40 of the Law on Administrative Disputes of BiH; therefore, pursuant to

14 14 of 36 25/10/ :39 Article 16(4)(15) in conjunction with Article 16(1) of the Rules of the Constitutional Court, the appellant s appeal is inadmissible. However, in the event that the Constitutional Court finds the appeal admissible, the Court of BiH will deem the appeal to be ill-founded for the reasons stated in the challenged verdict and therefore this court suggests that the appeal be dismissed in accordance with Article 61(3) of the Rules of the Constitutional Court. 38. In its reply to the appeal, the Ministry emphasizes that given the results of the proceedings the appellant is not placed in danger of being subjected to torture or any other inhuman or degrading treatment or punishment after his deportation to his country of origin. In view of the aforementioned, the Ministry is of the opinion that there are no reasons for granting a temporary stay to appellant because of humanitarian reasons in accordance with Article 35 paragraph 1 item d) of the Law on Movement and Stay of Foreigners and Asylum. Furthermore, the Ministry remains entirely supportive of its statements given in the challenged Ruling since the decisive facts have been fully established, reasoned and the provisions of the substantive law have been applied as well. V. Relevant Law 39. The Law on Movement and Stay of Aliens and Asylum (Official Gazette of Bosnia and Herzegovina, No. 29/03 of 6 October 2003), as relevant reads: Article 34 (General conditions for issuing a residence permit) 1. Temporary residence shall be granted to an alien on the condition that: a) he/she has evidence justifying the existence of the grounds required for granting temporary residence, b) he/she has funds to support himself/herself, including the funds for his/her health care, c) he/she has a medical certificate issued not more than three months following the date of submitting the application, showing that he/she does not suffer from a disease of high risk for the community and/or that he/she is capable for work. 2. Evidence referred to in item a) of this Article shall refer to: a) marriage certificate or other relevant evidence of the marriage concluded, b) work permit issued by the competent employment agency, c) registration with the competent Pension and Invalidity of paragraph 1 Insurance Fund, d) decision on registration of the legal entity into the court registry, accompanied with the evidence of their solvency,

15 15 of 36 25/10/ :39 e) attestation of enrolment into an educational institution for the current year, f) medical report accompanied with the recommendation of a health institution confirming the necessity of a long-term medical treatment in BiH, g) documents on completed education and qualifications acquired, h) other evidence required to support the justified stay of the alien in the country whose validity shall be assessed by the competent organisational unit of the Ministry based on Article 55 of this Law. 2. Evidence referred to in item a) of paragraph 1 of this Article shall refer to: a) marriage certificate or other relevant evidence of the marriage concluded, b) work permit issued by the competent employment agency, c) registration with the competent Pension and Invalidity Insurance Fund, d) decision on registration of the legal entity into the court registry, accompanied with the evidence of their solvency, e) attestation of enrolment into an educational institution for the current year, f) medical report accompanied with the recommendation of a health institution confirming the necessity of a long-term medical treatment in BiH, g) documents on completed education and qualifications acquired, h) other evidence required to support the justified stay of the alien in the country whose validity shall be assessed by the competent organisational unit of the Ministry based on Article 55 of this Law. Article 35 (Temporary residence on humanitarian grounds) 1. Temporary residence on humanitarian grounds shall be exceptionally granted to an alien who does not fulfil the requirements for granting temporary residence prescribed in this Law, as follows: a) to an alien who has been a victim of an organised crime and/or trafficking of human beings, for the purpose of providing protection and assistance for his/her rehabilitation and repatriation into the country of his/her habitual residence, ( ) (d) to an alien with respect to whom it is determined that the requirements referred to in Article 60 of the present Law have been met and to whom asylum has not been granted in accordance with this Law, ( ) Article 41 (Refusal of the application for a residence permit)

16 16 of 36 25/10/ :39 An alien, who fulfils the conditions for granting residence prescribed in the present Law, shall have his/her application for a temporary or permanent residence permit refused if: a) he/she has entered the BiH territory while not complying with the entry requirements set out in this Law, unless there exist reasons for issuance of a residence permit on humanitarian grounds in the sense of Article 35 of this Law, or ( ) (f) his/her presence, based on the information available to the Ministry, constitutes a threat to public order and national security of BiH. Article 43 (Appeal against the decision of the organisational unit of the Ministry) 1. An appeal against the decision upon the application for a residence permit may be filed with the Ministry within 15 days from the date of notification of the decision. 2. An applicant for a residence permit cannot be expelled or forcibly removed from the BiH territory pending the expiration of a deadline for the appeal and/or pending the decision to be taken in the appellate procedure. 3. An alien must remain at the address he/she has registered as his/her residence and every day report to the authority at the territory of which he/she resides pending a final and binding decision to be taken in the appellate procedure. 4. An alien shall be temporarily deprived of his/her passport and provided with an attestation, pending the conclusion of the procedure, unless he/she has voluntarily agreed to leave the country before the completion of the procedure referred to in paragraph 2 of this Article. Article 44 (Appeal against the decision of the Seat Office of the Ministry) 1. No appeal is allowed against the decision of the Ministry on issuing a residence permit on humanitarian grounds in the sense of Article 35 paragraph 1 item d) of this Law. 2. An alien cannot be expelled or forcibly removed from the BiH territory pending a final and binding decision taken in the sense of Article 35 paragraph 1 item d) of this Law.

17 17 of 36 25/10/ :39 Article 60 (Principle of non-refoulement) Aliens shall not be returned or expelled in any manner whatsoever to the frontier of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, regardless of whether or not they have formally been granted asylum. The prohibition of return or expulsion shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment. Aliens may not be sent to a country where they are not protected from being sent to such a territory either. Article 72 Under this Law, asylum shall be granted to: a) an alien who according to the definition stated in Article 1 A (2) of 1951 Convention Relating to the Status of Refugees and Article 1 of 1967 Protocol, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable or, owing to such fear, is unwilling to avail himself to the protection of that country; or b) to an alien who, not having a nationality and being outside the country of his/her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. Article 76 a) Procedure for asylum shall be regulated by a basic organizational unit in charge of asylum issues and this unit shall be in charge of adopting a decision in form of ruling ( ) b) The ruling shall be adopted independently, individually, objectively and impartially after finalisation of a complete interview procedure where all facts relevant for taking the decision shall be established. An applicant must be given the opportunity to present all the circumstances known to him/her, to have access to all available evidence, as well as to suggest presentation of particular evidence. 3. An alien shall be given an opportunity to follow the course of the procedure through an interpreter if he/she does not know the language used during the procedure, as well as to use the services of a legal or another counsellor. The obligation of the conductor of the procedure is to inform the applicant about all the rights and obligations stemming from the Law. ( ) 5) Any decision taken upon validity of the request for asylum must be fully reasoned and shall be communicated to the applicant in person. ( )