BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
C.G. AND OTHERS v. BULGARIA
(Application
no. 1365/07)
JUDGMENT
STRASBOURG
24
April 2008
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 C.G. and Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Rait
Maruste,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro Lefèvre,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 1 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1365/07) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr C.G., Mrs T.H.G. and Ms T.C.G. (“the
applicants”), on 5 December 2006. The first applicant is a
Turkish national born in 1968 and currently living in Turkey. The
second and third applicants, Bulgarian nationals born respectively in
1968 and 1996 and living in Plovdiv, Bulgaria, are his wife and
daughter.
- The
applicants were represented before the Court by Mr M. Ekimdzhiev
and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian
Government (“the Government”) were represented by their
Agent, Ms M. Dimova, of the Ministry of Justice. The Turkish
Government, having been informed on 15 March 2007 of their right to
intervene in the case (Article 36 § 1 of the Convention and Rule
44 § 1 of the Rules of Court), did not avail themselves of that
opportunity.
- The
applicants alleged that the first applicant's expulsion from Bulgaria
amounted to unjustified interference with their right to respect for
their family life, enshrined in Article 8 of the Convention. They
further argued that they had not had any effective domestic remedy in
that respect, contrary to Article 13 of the Convention. Finally, the
first applicant complained that his expulsion had been carried out in
breach of Article 1 of Protocol No. 7.
- On
13 March 2007 the Court decided to give priority to the application
under Rule 41 of the Rules of Court. On the same date it declared the
application partly inadmissible and decided to communicate to the
Government the complaints concerning the interference with the
applicants' family life and the alleged lack of remedies in that
respect, and the first applicant's complaint concerning the
lawfulness of his expulsion. Under the provisions of Article 29 §
3 of the Convention, the Court decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant settled in Bulgaria in 1992. On 9
April 1996 he married the second applicant there. Shortly after the
marriage he was granted a permanent residence permit. Their daughter,
the third applicant, was born in Bulgaria on 24 May 1996. Before 2005
the first applicant worked as a driver for a limited liability
company in Plovdiv.
A. The first applicant's expulsion
- On 8 June 2005 the Regional Director of Internal
Affairs in Plovdiv made an order for the first applicant's expulsion.
He also deprived him of the right to reside in Bulgaria and excluded
him from Bulgarian territory for a period of ten years, “on the
ground that [he] present[ed] a serious threat to national security
and in view of the reasons set out in proposal no. S 6923/
08.06.2005 by the head of the security department of the Plovdiv
Regional Directorate of Internal Affairs”. The Director's
decision relied on section 42(1) and (2) and section 42a(1) of
the 1998 Aliens Act, taken in conjunction with section 10(1)(1) and
(1)(3) (see paragraphs 18 and 20 below). No factual grounds were
given, in accordance with section 46(3) of the Act (see paragraph 23
below). The order further provided that the first applicant was to be
detained until it could be enforced. Finally, it stated that it was
subject to appeal to the Minister of Internal Affairs, but not
subject to judicial review, in line with section 46(2) of the Act,
and that it was immediately enforceable, in accordance with section
44(4) of the Act (see paragraphs 19 and 22 below).
- At 6.30 a.m. on 9 June 2005 the first applicant was
summoned to a police station in Plovdiv, where he was served with the
order and detained with a view to his expulsion. He was deported to
Turkey the same day, without being allowed to get in touch with his
wife and daughter or a lawyer.
B. The proceedings challenging the first applicant's
expulsion
1. The appeal to the Minister of Internal Affairs
- Once in Turkey, the first applicant hired a lawyer in
Bulgaria with the help of his wife – the second applicant –,
and on 16 June 2005 appealed to the Minister of Internal Affairs. He
said that he had had an established family life in Bulgaria for many
years and complained that while being held at the police station on 9
June 2005 he had not been informed why he was considered a threat to
national security. Nor had this become apparent from the decision to
expel him, which had merely referred to the legal grounds on which it
was made. The first applicant further complained that he had not been
apprised of the proposal which served as the basis for the decision.
All of this amounted to a failure to give reasons, in breach of the
rules of administrative procedure.
- In a letter of 30 June 2005 sent to the first
applicant's former address in Bulgaria, the head of the complaints
department of the Ministry of Internal Affairs informed him that the
Minister had dismissed the appeal in a decision of 29 June 2005,
because the impugned order had been made by a competent authority, in
due form, in compliance with the applicable substantive and
procedural rules and in conformity with the aim of the law.
2. The judicial review proceedings
- On 20 July 2005 the first applicant sought judicial
review of the Minister's order by the Supreme Administrative Court.
He argued that no reasons had been given for the order, depriving him
of any protection against arbitrariness because he had been unable to
discover which actions on his part had been deemed a threat to
national security. He also argued that the measures against him had
interfered with his family life. However, the authorities had
disregarded this and had not examined whether a fair balance had been
struck between his rights and the public interest, contrary to
Article 8 of the Convention, which formed part of domestic law. In
that connection he relied on the Court's judgment in the case of
Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002), which
had previously led the Supreme Administrative Court to change its
case law in this sphere (see paragraph 25 below).
- On
10 August 2005 the Supreme Administrative Court informed the first
applicant that the case had been transferred to the Plovdiv Regional
Court.
- A
hearing listed for 9 December 2005 failed to take place because the
Plovdiv Regional Directorate of Internal Affairs had not received a
copy of the application for judicial review.
- The hearing was held on 24 February 2006. The court
admitted in evidence proposal no. S 6923/08.06.2005, which had
served as the basis for the decision against the first applicant. The
first applicant was not allowed to familiarise himself with this
document.
- In a judgment of 8 March 2006 the Plovdiv Regional
Court dismissed the application. To begin with, it held that the bar
to judicial review set out in section 46(2) of the 1998 Aliens Act
(see paragraph 22 below) was contrary to the Convention and was thus
to be disregarded. It relied on Al-Nashif (cited above) and
the relevant case law of the Supreme Administrative Court (see
paragraph 25 below). Examining the application on the merits, the
court held:
“The coercive measures are based ... on the ground
that the [first applicant] represents a serious threat to national
security, for the reasons set out in proposal
no. S 6923/08.06.2005...
In upholding the impugned order, the Minister of
Internal Affairs states that the evidence gathered clearly
establishes that the [first applicant] is a member of a criminal gang
dealing in illicit narcotic drugs; this, on the one hand, constitutes
grounds under section 10(1)(3) of the [1998 Aliens Act], and, on the
other, is a circumstance requiring the administrative authority to
take coercive measures. Under section 42 of the [1998 Aliens Act],
'the expulsion of an alien must be carried out if his or her presence
in the country creates a serious threat to national security or
public order'. On expulsion, the alien must also be deprived of the
right to reside in the Republic of Bulgaria and be banned from
entering it. The imposition of [these measures] is necessary in the
cases set out in section 10 of the [1998 Aliens Act]. The order
refers to the grounds set forth in section 10(1)(3), which [provides
for the mandatory expulsion of] 'an alien who is known to be a member
of a criminal gang or organisation or to be engaged in terrorist
activities, smuggling or unlawful transactions with arms, explosives,
ammunitions, strategic raw materials, goods and technologies with a
possible dual use, or in the unlawful trafficking of intoxicating or
psychotropic substances or precursors or raw materials for their
production'. The order states that there is information to the effect
that the [first applicant] has participated in the unlawful
trafficking of intoxicating and psychotropic substances and
precursors and raw materials for their production. This has been
established from the enclosed secret file (classified in accordance
with section 25 and [Schedule 1], Part 2, point 22 of the [Protection
of Classified Information Act of 2002 – see paragraphs 27 and 28
below]) containing the proposal to impose coercive measures to which
the impugned order refers. According to this proposal, the data come
from secret surveillance measures and information from operative
sources gathered by the National Service for Combating Organised
Crime in April 2005, showing that [the first applicant] has acted as
an intermediary in the supply of narcotic drugs and maintains regular
contacts with Bulgarian citizens who distribute narcotic drugs and
intoxicating substances in the territory of the towns of Plovdiv and
Asenovgrad.
The three measures imposed on the [first applicant] are
based on section 42(2) of the [1998 Aliens Act]. ... According to
section 46(2)(3) of [that Act] taken in conjunction with section
15(3) of the [1979 Administrative Procedure Act], such an order must
refer only to the legal and not the factual grounds for imposition of
the coercive measures. As may be seen from the order, it fully
complies with the requirements of [these provisions].
There is no dispute as to the competence of the
authority which made the order. [The first applicant alleges]
breaches of the rules of procedure, but none has been found by the
court. Section 42 of the [1998 Aliens Act] does not lay down any
special rules of procedure... No procedural violations have been
found in the fact that the proposal for coercive measures was made
secret, as from its last page it may be seen that it was made on 7
June 2005 and was classified on the same day...
[The court will now examine t]he [first applicant]'s
objections concerning the lack of factual grounds for imposition of
the measures. The legal grounds cited in the order require the
existence of information concerning the facts referred to in sections
42 and 42a of the [1998 Aliens Act], taken in conjunction with
section 10(1)(3). Concerning the [first applicant's] objections in
this regard, it must be stressed that the [law refers to] information
relating to such facts rather than proof thereof. The availability of
proof would produce different legal consequences for the [first
applicant].
The impugned order imposes coercive measures which,
according to section 22 of the [Administrative Offences and Penalties
Act 1969], are applied in order to pre empt and put an end to
administrative and other offences, as well as to pre empt and
redress their harmful consequences.
The information was gathered through the use of secret
surveillance measures and through operative sources of the National
Service for Combating Organised Crime, as may be seen from the
proposal cited in the order. According to the definition of the
[Special Surveillance Means Act of 1997],
the measures concerned comprise technical means (electronic and
mechanical devices, as well as substances which are used for
recording the activity of monitored persons and objects) and
operative methods (surveillance, tapping, following, covert entry of
premises, marking and checking of correspondence and computerised
information, which are employed during the use of technical devices)
used for the preparation of physical evidence in the form of
videotapes, audiotapes, photographs and marked objects. Under section
3 of this Act, these may also be used for preventing offences... They
are used against persons who are suspected of preparing or
perpetrating or of having perpetrated serious crimes. The evidence
thus obtained is kept either by the Ministry of Internal Affairs
until the institution of a preliminary investigation, or by the
respective judicial authorities. Any item not used for the
preparation of evidence has to be destroyed.
The nature of the source of information which led to the
issuing of the impugned order makes it impossible to adduce further
evidence relating to the facts. However, this by no means leads to a
finding that the coercive measures were unlawful. Moreover, the
[first applicant] does not dispute the facts; he merely challenges
the use of information concerning them as grounds for the coercive
measures imposed. The [court] finds that the facts set out in the
proposal can serve as the basis for application of sections 42 and
42a of the [1998 Aliens Act taken in conjunction with
section 10(1)(3)]. In view of the foregoing, the [court]
concludes that the impugned order was in accordance with the
requirements of the substantive law.
The [first applicant]'s last objection concerns the
non compliance of the impugned order with the aim of the law. He
relies on his long standing family life in Bulgaria, his
marriage to a Bulgarian citizen and the nine year old child
born from this marriage (all facts which have been acknowledged by
the parties and the court)...
However, all these circumstances have no bearing on the
lawfulness of the order under section 42(1) and (2) of the [1998
Aliens Act], still less on its compliance with the aims of the law,
as the law in question provides for the restriction of certain rights
for the purpose of preventing the commission of offences.
In this context, the [first applicant]'s reliance on
[Al Nashif, cited above] is misplaced, as this case
concerns the right to seek judicial review, which is available to the
[first applicant].”
- On 28 March 2006 the first applicant appealed to the
Supreme Administrative Court. He argued that the police had not
adduced any evidence that he had done anything to put national
security in jeopardy. They had merely presented a document which
recounted information whose source was unknown. The so called
“proposal” contained only general conclusions which were
based on facts not made known to the court. This was problematic, as
the court's task was to guarantee that the executive's discretion had
not been exercised in an arbitrary fashion. Moreover, there were no
objective facts showing that the first applicant had committed any
offence. This had to be proved, not merely alleged. The first
applicant further submitted that the impugned order had seriously
infringed his right to respect for his family life, contrary to
Article 8 of the Convention. He relied extensively on Al-Nashif
(cited above) and Berrehab v. the Netherlands (judgment of 21
June 1988, Series A no. 138), and asserted that the existing legal
framework did not provide sufficient guarantees against
arbitrariness. Moreover, the lower court had not examined the
proportionality of the interference, contrary to the approach of the
European Court of Human Rights in all cases under Article 8 of the
Convention. The impugned order had broken off the long standing
relationships with his wife and daughter. If there was reason to
suspect that he had engaged in unlawful activities, it would have
been more appropriate to prosecute and try him, which would have
entailed the production of serious evidence of his alleged
wrongdoing.
- After holding a hearing on 12 September 2006, the
Supreme Administrative Court upheld the lower court's judgment on 4
October 2006. Its opinion, in its relevant parts, reads as follows:
“... [This court] finds that the conclusions of
the first instance court as to the lawfulness of the impugned
order were correct and well founded.
According to section 42(1) of the [1998 Aliens Act], an
alien's expulsion is necessary if his or her presence in the country
puts national security or public order in serious jeopardy.
Sub section 2 of that section provides that whenever [a person
is expelled] his or her right to reside in the Republic of Bulgaria
is also revoked and he or she is prohibited from entering the
country.
According to section 42a of the same Act, the
prohibition on entering the country is imposed under the
circumstances set out in section 10 [of the Act]. The impugned order
by the director of the Plovdiv Regional Directorate of Internal
Affairs states that the [first applicant's case] falls under points 1
and 3 of section 10 of the [1998 Aliens Act], in that through his
actions he has jeopardised the security and the interests of the
Bulgarian State or is known to have acted against the security
interests of the country, to have been a member of a criminal gang or
organisation or to have engaged in terrorist activities, smuggling or
unlawful transactions with arms, explosives, ammunitions, strategic
raw materials, goods or technologies with a possible dual use, or in
the illicit trafficking of intoxicating or psychotropic substances or
precursors or raw materials for their production.
It has been established in the present case that [the
first applicant] has acted as an intermediary for the supply of
narcotics and maintains regular contacts with Bulgarian citizens who
distribute narcotics and intoxicating substances in the territory of
the towns of Plovdiv and Asenovgrad.
The impugned order was issued on the basis of proposal
no. S–6923/08.06.2005 by the head of Plovdiv Regional Security
Department, which contains data revealing that the presence of the
alien in the [Republic of Bulgaria] puts national security in serious
jeopardy.
The provisions of sections 42 and 42a of the [Aliens
Act] are mandatory. If the conditions referred to in these texts are
in place, the administrative authority is required to use coercion
and order the expulsion of the alien concerned, and at the same time
to withdraw his or her residence permit and prohibit him or her from
entering the Republic of Bulgaria. The administrative authority has
no discretion as to whether or not to make the order. As the law does
not provide for exceptions which might allow [the authority not to
make an order for expulsion], the expulsion is lawful provided the
required conditions are in place.
The impugned order was made in accordance with the
purpose of the law and in accordance with the [applicable]
substantive and procedural rules. The administrative authority
elucidated the relevant facts and specified the legal grounds for
making the order. ...”
C. Subsequent meetings between the first applicant and
the second and third applicants
- After the first applicant's expulsion, the second and
third applicants travelled a few times a year to Turkey to meet him.
On each occasion they remained there for about two or three days.
Between visits they maintained contact by telephone.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 1998 Aliens Act and developments in its
interpretation and application
- Section 42(1) of the 1998 Aliens Act (Закон
за чужденците
в Република
България)
provides that the expulsion of aliens must be carried out when their
presence in the country creates a serious threat to national security
or public order. Section 42(2) states that expulsion is mandatorily
accompanied by withdrawal of the alien's residence permit and the
imposition of a ban on entering the country.
- Section 44(4)(1) and (3) of the Act provides that
expulsion orders and orders withdrawing aliens' residence permits are
immediately enforceable.
- Under section 42a(1) (currently section 42h(1)) of the
Act, a ban on entering the country has to be ordered if the grounds
set forth in section 10 are in place. Section 10(1)(1) and (1)(3) of
the Act, as in force at the relevant time, defined these grounds as
information revealing that (i) “through his or her actions
the alien ha[d] jeopardised the security or the interests of the
Bulgarian State or ha[d] acted against the country's security”,
or (ii) he or she [was] a “member of a criminal gang or
organisation, or [was] engaged in terrorist activities, smuggling or
unlawful transactions with arms, explosives, ammunitions, strategic
raw materials, goods or technologies with a possible dual use, or in
the illicit trafficking of intoxicating and psychotropic substances
or precursors or raw materials for their production”.
- Section 46(1) of the Act provides that orders imposing
coercive measures may be appealed before the Minister of Internal
Affairs or the competent regional court.
- However, under section 46(2) of the Act as in force
until March 2007, orders withdrawing aliens' residence permits and
banning them from entering the country for the reasons set out in
section 10(1)(1), or orders expelling them, were not subject to
judicial review.
- Under section 46(3) of the Act, these orders do not
indicate the factual grounds for imposing the relevant coercive
measure.
- The relevant legal developments in the interpretation
and application of the Act before 2002 are set out in paragraphs
71 78 of the Court's judgment in the case of Al-Nashif,
cited above.
- Following this judgment, the Bulgarian Supreme
Administrative Court changed its case law. In a number of
judgments and decisions delivered between 2003 and 2006
it held, by reference to Al Nashif, that the ban on
judicial review in section 46(2) of the Act was
to be disregarded as it contravened the Convention, and that
expulsion orders relying on national security considerations were
amenable to judicial review (реш.
№ 4332 от 8 май 2003 по
адм. д. № 11004/2002 г.; реш.
№ 4473 от 12 май 2003 г. по
адм. д. № 3408/2003 г.; опр.
№ 706 от 29 януари
2004 г. по адм. д.
№ 11313/2003 г.; опр. № 4883
от 28 май 2004 г. по
адм. д. № 3572/ 2004 г.;
опр. № 8910 от 1 ноември
2004 г. по адм. д. №
7722/2004 г.; опр. № 3146 от
11 април 2005 по адм.
д. № 10378/2004 г.; опр. №
3148 от 11 април 2005 по
адм. д. № 10379/2004 г.; опр.
№ 4675 от 25 май 2005 г. по
адм. д. № 1560/2005 г.; опр.
№ 8131 от 18 юли 2006 г. по
адм. д. № 6837/2006 г.).
26. Subsequently, in April 2007,
section 46(2) of the Act was amended. It now provides that orders
withdrawing aliens' residence permits and banning them from entering
the country for the reasons set out in section 10(1)(1), or orders
for their expulsion, may be challenged before the Supreme
Administrative Court, which rules by means of a final judgment.
B. The
Protection of
Classified Information
Act 2002 (Закон
за защита на
класифицираната
информация)
- According to section 25 of
this Act, the information listed in Schedule No. 1 thereto,
unregulated access to which could jeopardise Bulgarian national
security, defence, foreign policy or constitutional interests, is a
State secret.
- Part 2, point 22 of Schedule No. 1 to the Act provides
that the information in question is that which is “gathered,
checked and analysed by the security services and the law enforcement
agencies concerning persons suspected of subversive, terrorist or
other unlawful activities targeted against the public order,
security, defence, independence, territorial integrity or
international status of the State”.
C. Narcotic drugs offences
- Article 354a § 1 of the Criminal Code of 1968
makes it an offence to produce, process, acquire or possess narcotic
drugs or similar with a view to distributing them, and also to
distribute them. The offence is aggravated if committed by a member
of a criminal gang (Article 354a § 2 (1) of the Code). Article
354b § 1 of the Code makes it an offence to incite or abet
another to use narcotic drugs or similar. It is also an offence to be
a founder member, leader or member of a criminal gang with intent to
commit offences under Articles 354a § 1 or 354b § 1 of the
Code (Article 321 § 3 of the Code).
D. Secret surveillance
- The
law regulating secret surveillance is described in detail in
paragraphs 7 51 of the Court's judgment in the case of
Association for European Integration and Human Rights and
Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007).
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
- The explanatory report to Protocol No. 7 (ETS No. 117)
details the guarantees of Article 1 in the following manner:
“... 15. As a rule, an alien should be
entitled to exercise his rights under sub paragraphs a, b and c
of paragraph 1 before he is expelled. However, paragraph 2 permits
exceptions to be made by providing for cases where the expulsion
before the exercise of these rights is considered necessary in the
interest of public order or when reasons of national security are
invoked. These exceptions are to be applied taking into account the
principle of proportionality as defined in the case law of the
European Court of Human Rights.
The State relying on public order to expel an alien
before the exercise of the aforementioned rights must be able to show
that this exceptional measure was necessary in the particular case or
category of cases. On the other hand, if expulsion is for reasons of
national security, this in itself should be accepted as sufficient
justification. In both cases, however, the person concerned should be
entitled to exercise the rights specified in paragraph 1 after his
expulsion. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8
OF THE CONVENTION
- The
applicants alleged that the first applicant's expulsion had entailed
a violation of their right to respect for their family life. They
relied on Article 8 of the Convention, which provides, in so far as
relevant:
“1. Everyone has the right to respect
for his ... family life, ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.”
A. The parties' submissions
- The
applicants said that they had had a genuine family life in Bulgaria,
which had been disrupted by the first applicant's expulsion. They
conceded that this expulsion had been formally in line with the
applicable provisions of the 1998 Aliens Act, but argued that
domestic law had failed to provide sufficient safeguards against
arbitrary action on ostensible national security grounds. In
particular, while the first applicant had been able to institute
judicial review proceedings against the order for his expulsion, the
courts had not properly scrutinised this decision and had refused to
examine its proportionality. The only piece of evidence used to
justify the conclusion that he was a national security risk had been
a “proposal” containing information allegedly gathered
through secret surveillance. However, the primary material from that
surveillance had not been made available to the courts. The courts
had thus surrendered their function of reviewing the exercise of the
executive's discretion and the lawfulness of its actions, thereby
depriving the applicants of the minimum degree of protection against
arbitrariness.
- The
applicants further argued that the authorities and the courts had
failed to give the slightest consideration to whether it had been
necessary to expel the first applicant and thus destroy their family
life. There were serious arguments militating against this, such as
the applicants' long standing family life, the absence of any
prior criminal convictions on the part of the first applicant and the
fact that he had a permanent job and was a regular taxpayer. If the
authorities had indeed had information that he had engaged in
unlawful drug trafficking, the proportionate response would have been
to charge and try him, not expel him on the basis of an unproven and
anonymous allegation.
- The Government submitted that following the Court's
judgment in the case of Al-Nashif (cited above), the domestic
courts had started examining applications for judicial review of
expulsion orders. In the instant case the Plovdiv Regional Court and
the Supreme Administrative Court had thoroughly assessed the factual
and legal grounds for the orders made against the first applicant.
Their analysis had been fully consistent with the principles of the
Convention, and their judgments fully reasoned. The applicants'
insinuations that these courts had examined the case in a formalistic
fashion were groundless. The national courts' practice had later been
confirmed by the April 2007 amendment to the 1998 Aliens Act.
B. The Court's assessment
1. Admissibility
- The Court considers that this complaint is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
- The
first applicant settled in Bulgaria in 1992. In 1996 he married the
second applicant there. The same year they had a child – the
third applicant. There is no indication that their relationship did
not amount to a genuine family life within the meaning of Article 8 §
1. The second and third applicants are Bulgarian nationals who were
born in Bulgaria and have been living there all their lives. From
1992 until his expulsion in 2005 the first applicant resided lawfully
in Bulgaria, from 1996 onwards on the strength of a permanent
residence permit. In June 2005 his expulsion was ordered by reference
to national security considerations, and he was detained and removed
from Bulgaria by force. After that he was able to see his wife and
daughter only occasionally for brief periods of time (see paragraphs
5, 6, 7 and 17 above). The Court therefore concludes that the
measures taken by the authorities against the first applicant
amounted to interference with the applicants' right to respect for
their family life (see Al Nashif, cited above, §§
112 15; Lupsa v. Romania, no. 10337/04, §§ 24,
26 and 27, ECHR 2006 VII; Musa and Others v. Bulgaria,
no. 61259/00, § 58, 11 January 2007; and Bashir and
Others v. Bulgaria, no. 65028/01, § 37, 14 June 2007).
- Such
interference will constitute a breach of Article 8 unless it is “in
accordance with the law”, pursues a legitimate aim or aims
under paragraph 2, and is “necessary in a democratic society”
for achieving those aims.
- The
Court has consistently held that the first of these requirements does
not merely dictate that the interference should have a basis in
domestic law, but also relates to the quality of that law, requiring
it to be compatible with the rule of law. The phrase thus implies
that domestic law must be accessible and foreseeable, in the sense of
being sufficiently clear in its terms to give individuals an adequate
indication as to the circumstances in which and the conditions on
which the authorities are entitled to resort to measures affecting
their rights under the Convention. The law must moreover afford a
degree of legal protection against arbitrary interference by the
authorities. In matters affecting fundamental rights it would be
contrary to the rule of law for a legal discretion granted to the
executive to be expressed in terms of unfettered power. Consequently,
the law must indicate the scope of any such discretion conferred on
the competent authorities and the manner of its exercise with
sufficient clarity, so as to give the individual adequate protection
against arbitrary interference (see, among many other authorities,
Malone v. the United Kingdom, judgment of 2 August 1984,
Series A no. 82, pp. 31 33, §§ 66 68).
- The
Court is naturally mindful of the fact that in the particular context
of measures concerning national security, the requirement of
foreseeability cannot be the same as in many other fields. In
particular, the requirement of “foreseeability” of the
law does not go so far as to compel States to enact legal provisions
listing in detail all conduct that may prompt a decision to expel an
individual on national security grounds. By the nature of things,
threats to national security may vary in character and may be
unanticipated or difficult to define in advance. However, even where
national security is at stake, the concepts of lawfulness and the
rule of law in a democratic society require that deportation measures
affecting fundamental human rights be subject to some form of
adversarial proceedings before an independent authority or a court
competent to effectively scrutinise the reasons for them and review
the relevant evidence, if need be with appropriate procedural
limitations on the use of classified information. The individual must
be able to challenge the executive's assertion that national security
is at stake. While the executive's assessment of what poses a threat
to national security will naturally be of significant weight, the
independent authority or court must be able to react in cases where
the invocation of this concept has no reasonable basis in the facts
or reveals an interpretation of “national security” that
is unlawful or contrary to common sense and arbitrary (see Al Nashif,
§§ 119 24, and Lupsa, §§ 33 and 34,
both cited above).
- In
Al-Nashif, when examining the legal framework for the
expulsion of aliens from Bulgaria on national security grounds by
reference to the above criteria, the Court found that it fell short
of them. This conclusion was based on several elements: the lack of
any factual grounds given for the expulsion, the lack of any form of
adversarial proceedings and the lack of any possibility of appealing
to an independent authority competent to consider the matter (see
Al-Nashif, §§ 125 29; Musa and Others,
§§ 61 63; and Bashir and Others, §§
41 and 42, all cited above).
- The
present case concerns a situation which unfolded after 2003 when, as
a result of the Court's judgment in Al-Nashif, the Bulgarian
Supreme Administrative Court changed its case law and accepted
that expulsion orders made on national security grounds were amenable
to judicial review notwithstanding the express terms of section 46(2)
of the 1998 Aliens Act (see paragraph 25 above). As a result of this,
the first applicant was able to seek judicial review of the decision
against him. The Court must therefore determine whether the manner in
which the expulsion was ordered, carried out and subsequently
reviewed was in line with the requirements of Article 8 of the
Convention, as set out above.
- The Court first observes that, while the decision to
expel the first applicant stated that the measure was being taken
because he posed a threat to national security, in the ensuing
judicial review proceedings it emerged that the only fact serving as
a basis for this assessment – with which both levels of court
fully agreed – was his alleged involvement in the unlawful
trafficking of narcotic drugs in concert with a number of Bulgarian
nationals (see paragraphs 6, 14 and 16 above). It is true that the
notion of “national security” is not capable of being
comprehensively defined (see Esbester v. the United Kingdom,
no. 18601/91, Commission decision of 2 April 1993, unreported; Hewitt
and Harman v. the United Kingdom, no. 20317/92, Commission
decision of 1 September 1993, unreported; and Christie v. the
United Kingdom, no. 21482/93, Commission decision of 27 June
1994, DR 78 A, p. 119, at p. 134). It may, indeed, be a very
wide one, with a large margin of appreciation left to the executive
to determine what is in the interests of that security. However, that
does not mean that its limits may be stretched beyond its natural
meaning (see, mutatis mutandis, Association for European
Integration and Human Rights and Ekimdzhiev, cited above, §
84). It can hardly be said, on any reasonable definition of the term,
that the acts alleged against the first applicant – as grave as
they may be, regard being had to the devastating effects drugs have
on people's lives – were capable of impinging on the
national security of Bulgaria or could serve as a sound factual basis
for the conclusion that, if not expelled, he would present a national
security risk in the future.
- It
thus seems that the national courts, while ex post facto
accepting for examination the first applicant's application for
judicial review, did not subject the executive's assertion that he
presented a national security risk to meaningful scrutiny (see,
mutatis mutandis, Lupsa, cited above, § 41).
- Under
the quality of law criterion, the requirements of Article 8
with regard to safeguards will depend, to some degree at least, on
the nature and extent of the interference in question (see Al-Nashif,
cited above, § 121, citing P.G. and J.H. v. the United
Kingdom, no. 44787/98, § 46, ECHR 2001 IX). While
actions taken in the interests of national security may, in view of
the sensitivity of the subject matter and the serious potential
consequences for the safety of the community, attract considerably
less in terms of guarantees than might otherwise be the case, an
expulsion designed to forestall lesser evils such as run of the mill
criminal activities may have to be reviewed in proceedings providing
a higher degree of protection of the individual.
- Against
this background, the Court finds it particularly striking that the
decision to expel the first applicant made no mention of the factual
grounds on which it was made. It simply cited the applicable legal
provisions and stated that he “present[ed] a serious threat to
national security”; this conclusion was based on unspecified
information contained in a secret internal document (see paragraph 6
above). Lacking even outline knowledge of the facts which had served
as a basis for this assessment, the first applicant was not able to
present his case adequately in the ensuing appeal to the Minister of
Internal Affairs and in the judicial review proceedings.
- The
Court further notes that, in the judicial review proceedings, the
Plovdiv Regional Court held that once the Ministry of Internal
Affairs had produced a report based on undisclosed secret
surveillance measures asserting that the first applicant had engaged
in criminal activities, no further inquiry into the facts was
possible or necessary (see paragraph 14 above). It thus failed to
examine a critical aspect of the case: whether the authorities were
able to demonstrate the existence of specific facts serving as a
basis for their assessment that the first applicant presented a
national security risk. On appeal, the Supreme Administrative Court
did not gather evidence either and confined its reasoning on this
point to the following brief statement: “It has been
established ... that [the first applicant] has acted as an
intermediary for the supply of narcotics and maintains regular
contacts with Bulgarian citizens who distribute narcotics and
intoxicating substances...” It did not elaborate on the
evidentiary basis for making such a finding and did not deal with the
first applicant's detailed submissions that he had not in fact been
involved in such activities (see paragraphs 15 and 16 above). These
elements lead the Court to conclude that the national courts confined
themselves to a purely formal examination of the decision to expel
the first applicant (see, mutatis mutandis, Lupsa,
cited above, § 41). They refused to examine other pieces of
evidence to confirm or refute the allegations against him, and rested
their rulings solely on uncorroborated information tendered by the
Ministry of Internal Affairs on the basis of the covert monitoring of
the first applicant.
- This
is all the more problematic in view of the fact that the Bulgarian
legal framework for such monitoring does not provide the minimum
guarantees required under Article 8 of the Convention (see
Association for European Integration and Human Rights and
Ekimdzhiev, cited above, §§ 71 94). In
particular, Bulgarian law does not contain sufficient safeguards to
ensure that the authorities deploying special means of surveillance
faithfully reproduce the original data in the written record (ibid.,
§ 85), and does not lay down proper procedures for preserving
the integrity of such data (ibid., § 86). Moreover, in the
instant case, the file contains no information making it possible to
verify whether the secret surveillance measures against the first
applicant were lawfully ordered and executed, nor was this aspect of
the matter considered by the courts in the judicial review
proceedings.
- In
view of the foregoing considerations the Court concludes that,
despite having the formal possibility of seeking judicial review of
the decision to expel him, the first applicant did not enjoy the
minimum degree of protection against arbitrariness on the part of the
authorities. The interference with the applicants' family life was
therefore not in accordance with “a law” satisfying the
requirements of the Convention (see, mutatis mutandis, Lupsa,
cited above, § 42). That being so, the Court is not required to
determine whether this interference pursued a legitimate aim and, if
so, whether it was proportionate to the aim pursued.
- There has therefore been a violation of Article 8 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants alleged that in the judicial review proceedings the courts
had not genuinely examined the truth of the allegations made by the
Ministry of Internal Affairs against the first applicant, and had not
assessed the necessity of his expulsion. They relied on Article 13 of
the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties' submissions
- The
applicants submitted that, although the national courts had agreed to
examine the first applicant's application for judicial review, they
had not in fact considered his arguments relating to the lawfulness
of his expulsion. Both levels of court had held that the assertions
of the Ministry of Internal Affairs were sufficient to show that the
first applicant represented a national security risk. Moreover, the
courts had refused to examine the proportionality of his expulsion.
None of these defects could be remedied by the April 2007 amendment
to the 1998 Aliens Act, firstly because that amendment had come into
force after the first applicant's case had been examined, and
secondly because it did not contain any guarantees that the courts
would not continue to take a formalistic approach. The crux of the
problem was not the availability of proceedings by which to challenge
expulsion orders, but the manner in which the courts scrutinised
their legality in the course of such proceedings. The approach
adopted in the first applicant's case could not provide any
guarantees against arbitrary action and effectively vindicate his
Convention rights.
- The
Government's submissions have been summarised in paragraph 35 above.
B. The Court's assessment
1. Admissibility
- The Court considers that this complaint is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
- Article
13 guarantees the availability at national level of a remedy to
enforce the substance of the Convention rights and freedoms in
whatever form they might happen to be secured in the domestic legal
order. The effect of this Article is thus to require the provision of
a domestic remedy allowing the competent national authority both to
deal with the substance of the relevant Convention complaint and to
grant appropriate relief, although Contracting States are afforded
some discretion as to the manner in which they conform to their
obligations under this provision. In certain circumstances the
aggregate of remedies provided by national law may satisfy the
requirements of Article 13 (see, among many other authorities, Chahal
v. the United Kingdom, judgment of 15 November 1996, Reports
of Judgments and Decisions 1996 V, pp. 1869 70, §
145).
- In
immigration matters, where there is an arguable claim that expulsion
may infringe an alien's right to respect for his or her family life,
Article 13 in conjunction with Article 8 of the Convention
requires that States must make available to the individual concerned
the effective possibility of challenging expulsion or
refusal-of-residence orders and of having the relevant issues
examined with sufficient procedural safeguards and thoroughness by an
appropriate domestic forum offering adequate guarantees of
independence and impartiality (see Al Nashif, cited
above, § 133, with further references).
- If
an expulsion has been ordered by reference to national security
considerations, certain procedural restrictions may be needed to
ensure that no leakage detrimental to national security occurs, and
any independent appeals authority may have to afford a wide margin of
appreciation to the executive. However, these limitations can by no
means justify doing away with remedies altogether whenever the
executive has chosen to invoke the term “national security”.
Even where an allegation of a threat to national security has been
made, the guarantee of an effective remedy requires as a minimum that
the competent appeals authority be informed of the reasons grounding
the expulsion decision, even if such reasons are not publicly
available. The authority must be competent to reject the executive's
assertion that there is a threat to national security where it finds
it arbitrary or unreasonable. There must be some form of adversarial
proceedings, if need be through a special representative following
security clearance. Furthermore, the question whether the impugned
measure would interfere with the individual's right to respect for
his or her family life and, if so, whether a fair balance has been
struck between the public interest involved and the individual's
rights must be examined (ibid., § 137, with a further reference
to Chahal, cited above).
- Having
regard to its conclusion with regard to Article 8 (see paragraph 50
above), the Court finds that the applicants' complaint is arguable.
It must therefore determine whether they had at their disposal a
remedy satisfying the requirements of Article 13.
- As
noted above, following the Court's judgment in Al Nashif,
the Bulgarian Supreme Administrative Court changed its case-law in
2003 and started examining applications for judicial review of
expulsion orders made on national security grounds, despite the
express wording of section 46(2) of the 1998 Aliens Act (see
paragraph 25 above). Indeed, the expulsion order against the first
applicant in the instant case was considered by two levels of court.
The question which the Court must address is thus, unlike in
Al-Nashif, not the mere availability of such proceedings, but
whether they amounted to an “effective remedy” within the
meaning of Article 13. The Court will determine this by verifying
whether the way in which the proceedings were conducted and the
manner in which the courts reviewed the decision of the Ministry of
Internal Affairs complied with the requirements of that provision.
- Firstly,
the Court observes that the domestic courts which dealt with the
decision to expel the first applicant did not properly scrutinise
whether it had been made on genuine national security grounds and
whether the executive was able to demonstrate the factual basis for
its assessment that he presented a risk in that regard. Secondly, the
applicant was initially given no information concerning the facts
which had led the executive to make such an assessment, and was later
not given a fair and reasonable opportunity of refuting those facts
(see paragraphs 6, 13, 14 and 16 above). It follows that these
proceedings cannot be considered as an effective remedy for the
applicants' complaint under Article 8 of the Convention.
- Moreover,
the Court notes that the national courts did not give any
consideration to the question whether the interference with the
applicants' family life was proportionate to the aim sought to be
attained. Instead they held that, having established that the first
applicant's case fell within the purview of sections 42 and 42a of
the 1998 Aliens Act, the authorities had been bound to expel him (see
paragraphs 14 and 16 above).
- However,
according to the Court's established case law, the effective
remedy required by Article 13 is one where the domestic authority
examining the case has to consider the substance of the Convention
complaint. In cases involving Article 8 of the Convention, this means
that this authority has to carry out a balancing exercise and examine
whether the interference with the applicants' rights answered a
pressing social need and was proportionate to the legitimate aims
pursued, that is, whether it amounted to a justifiable limitation of
their rights (see, mutatis mutandis, Smith and Grady v. the
United Kingdom, nos. 33985/96 and 33986/96, §§ 136 38,
ECHR 1999-VI; Peck v. the United Kingdom, no. 44647/98, §§ 105
and 106, ECHR 2003-I; and Hatton and Others v. the United Kingdom
[GC], no. 36022/97, §§ 140 and 141, ECHR 2003 VIII).
The factors which are relevant in this regard have recently been
summarised in paragraphs 57 59 of the Court's judgment in the
case of Üner v. the Netherlands ([GC], no. 46410/99, ECHR
2006 XII).
- As
the approach taken by the national courts in the instant case –
refusing to scrutinise the measures taken against the first applicant
in the light of the kind of factors relied on by the Court in the
context of Article 8 of the Convention – fell short of these
requirements, the Court finds that the judicial review proceedings
did not amount to an avenue whereby the applicants could adequately
vindicate their right to respect for their family life (see, mutatis
mutandis, Peev v. Bulgaria, no. 64209/01, §§ 72
and 73, 26 July 2007). They did not therefore constitute an effective
remedy within the meaning of Article 13 on that account either.
- Having
regard to the extent of the deficiencies outlined above, the Court
finds that the judicial review proceedings in the instant case failed
to satisfy the requirements of Article 13 of the Convention. No other
remedy has been suggested by the Government.
- There
has therefore been a violation of Article 13.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7 TO
THE CONVENTION
- The
fist applicant alleged that he had been expelled without being able
to benefit from the guarantees of Article 1 of Protocol No. 7 to the
Convention, which provides as follows:
“1. An alien lawfully resident in the
territory of a State shall not be expelled therefrom except in
pursuance of a decision reached in accordance with law and shall be
allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes
before the competent authority or a person or persons designated by
that authority.
2. An alien may be expelled before the
exercise of his rights under paragraph 1 (a), (b) and (c) of this
Article, when such expulsion is necessary in the interests of public
order or is grounded on reasons of national security.”
A. The parties' submissions
- The
first applicant submitted that the absence of verifiable information
leading to the conclusion that his expulsion had indeed been based on
national security considerations meant that it had not been “in
accordance with law”. In his view, his case was comparable in
that respect to the case of Lupsa (cited above).
- The
Government's submissions have been summarised in paragraph 35 above.
B. The Court's assessment
1. Admissibility
- The Court considers that this complaint is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
- In
the event of expulsion, in addition to the protection afforded by
Articles 3, 8 and 13 of the Convention, aliens lawfully resident on
the territory of a State which has ratified Protocol No. 7 benefit
from the specific guarantees provided for in its Article 1 (see
Lupsa, cited above, §§ 51 and 52; Kaya v.
Romania, no. 33970/05, §§ 51 and 52, 12 October 2006;
and Bolat v. Russia, no. 14139/03, § 76, ECHR 2006 XI
(extracts)).
- In
Al-Nashif the Court did not examine the case under that
provision, as the events at issue had taken place before its entry
into force in respect of Bulgaria (1 February 2001) (see Al-Nashif,
cited above, § 133 in limine). However, in the present
case the first applicant's expulsion was ordered on 8 June 2005 and
carried out on 9 June 2005. The Court must therefore determine
whether it complied with the various requirements of that Article.
- The
Court notes that the first guarantee afforded to the persons referred
to in this Article is that they shall not be expelled except “in
pursuance of a decision reached in accordance with law”.
- The
Court has already found that the first applicant's expulsion was not
“in accordance with the law” within the meaning of
Article 8 § 2 of the Convention. Seeing that this phrase has a
similar meaning throughout the Convention and its Protocols (see,
mutatis mutandis, Amuur v. France, judgment of 25 June
1996, Reports 1996 III, p. 850, § 50; Steel and
Others v. the United Kingdom, judgment of 23 September 1998,
Reports 1998 VII, p. 2742, § 94; and Hashman and
Harrup v. the United Kingdom [GC], no. 25594/94, § 34
in fine, ECHR 1999 VIII), the Court cannot but conclude
that this expulsion did not conform to the above mentioned
requirement of the first paragraph of Article 1 of Protocol No. 7
(see Lupsa, §§ 56 and 57; and Kaya, §§
56 and 57, both cited above).
- The
Court must also determine whether the measures taken against the
first applicant complied with the other requirements of paragraph 1
of that Article. On this point it observes that the national courts
refused to gather evidence to confirm or dispel the allegations
serving as a basis for the decision to expel him and subjected this
decision to a purely formal examination, with the result that the
first applicant was not able to have his case genuinely heard and
reviewed in the light of reasons militating against his expulsion,
contrary to letter (b) of paragraph 1 (see, mutatis mutandis,
Lupsa, §§ 58 60; and Kaya, §§
58 60, both cited above).
- Finally,
the Court notes that the first applicant's expulsion took place on 9
June 2005, the very day on which he was apprised of the order to this
effect (see paragraph 7 above). This was in line with section 44(4)
of the 1998 Aliens Act, which states that expulsion orders are
immediately enforceable (see paragraph 19 above). The applicant was
thus able to challenge the measures against him only once outside the
territory of Bulgaria.
- The
second paragraph of Article 1 of Protocol No. 7 allows this, but only
as an exception to the general principle enshrined in the first
paragraph – that the persons concerned must be able to
exercise their rights under paragraph 1 before being removed from the
country. This exception is permissible only if the expulsion is
“necessary in the interests of public order” or “grounded
on reasons of national security”.
- The
Court has already found that the first applicant's expulsion was not
based on genuine reasons of national security (see paragraph 43
above). It does not therefore need to additionally determine whether,
if that were the case, his being deprived of the possibility of
exercising his rights under paragraph 1 of Article 1 before his
expulsion was necessary and proportionate. The first limb of the
exception is therefore not applicable.
- As
regards the second limb of the exception, the Court notes that the
explanatory report to Protocol No. 7 says that a “State relying
on public order to expel an alien before the exercise of [his or her
rights under paragraph 1 of Article 1 thereof] must be able to
show that this exceptional measure was necessary in the particular
case or category of cases”. The assessment whether this is
warranted is to be made “taking into account the principle of
proportionality as defined in the [Court's] case law” (see
paragraph 31 above). In the instant case, the Government have not put
forward any arguments capable of convincing the Court that this was
so. Nor is there anything in the file to suggest that it was truly
necessary to expel the first applicant before he was able to
challenge the measure.
- The
Court therefore concludes that the first applicant should have been
given the opportunity to exercise his rights under paragraph 1 of
Article 1 before being expelled from Bulgaria. However, this did not
happen.
- In
sum, the Court finds that the first applicant's expulsion failed to
satisfy the various requirements of Article 1 of Protocol No. 7 to
the Convention. There has therefore been a violation of that
provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicants claimed 60,000 euros (EUR) (EUR 20,000 each) in respect of
the non pecuniary damage arising out of the violation of Article
8 of the Convention. They submitted that their physical separation
had engendered feelings of loneliness and hopelessness. The second
applicant had had to take sedatives for a year after the expulsion of
her husband. The relationship between the first applicant and his
daughter had suffered serious damage as a result of their being
apart. This had been exacerbated by the fact that the third applicant
had epilepsy, which had grown worse as a result of the stress caused
by her father's absence. The option for the whole family to settle in
Turkey was not viable because there, unlike in Bulgaria, the costly
medication needed for the third applicant's epilepsy would not be
provided free of charge. Moreover, neither the second nor the third
applicant spoke Turkish.
- The
applicants also claimed EUR 5,000 in respect of the breach of Article
13 of the Convention. In their submission, the formal manner in which
the courts had reviewed the decision to expel the first applicant had
aroused in them feelings of injustice and had humiliated them. The
first applicant further claimed EUR 10,000 in respect of the breach
of Article 1 of Protocol No. 7, on essentially the same basis.
- The
Government did not comment on the applicants' claims.
- The
Court considers that all three applicants must have endured distress
and frustration resulting from the unlawful and unjustified
disruption of their family life brought about by the first
applicant's expulsion. These were aggravated by the ineffectiveness
of the remedies through which the first applicant tried to challenge
his expulsion, as well as by the lack of appropriate safeguards in
the expulsion procedure. Having regard to the materials in its
possession and ruling on an equitable basis as required by Article 41
of the Convention, the Court decides to award EUR 10,000 to the
first applicant, EUR 6,000 to the second applicant and EUR 6,000
to the third applicant. To those amounts should be added any tax that
may be chargeable.
B. Costs and expenses
- The
applicants sought the reimbursement of EUR 2,730 incurred in lawyers'
fees for the proceedings before the Court. They asked the Court to
order that EUR 700 of that amount be paid directly to them and EUR
2,030 into the bank account of their legal representatives, Mr M.
Ekimdzhiev and Ms K. Boncheva. The applicants further claimed EUR 28
for postage and office expenses, also to be paid into their
representatives' bank account.
- The
Government did not comment on the applicants' claims.
- According
to the Court's case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. In the present case, having regard to
the information in its possession and the above criteria, and noting
that the applicants have been granted EUR 850 in legal aid, the Court
considers it reasonable to award the sum of EUR 1,500, plus any tax
that may be chargeable to the applicants. EUR 700 of this sum is to
be paid directly to the applicants and EUR 800 into the bank account
of their legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva.
C. Default interest
- 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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 7 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, 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 Bulgarian levs at the rate applicable at the date of
settlement:
(i) to
the first applicant, EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable, in respect of non pecuniary damage;
(ii) to
the second applicant, EUR 6,000 (six thousand euros), plus any tax
that may be chargeable, in respect of non pecuniary damage;
(iii) to
the third applicant, EUR 6,000 (six thousand euros), plus any tax
that may be chargeable, in respect of non pecuniary damage;
(iv) to
all three applicants, EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable to the applicants, in respect of
costs and expenses. EUR 700 (seven hundred euros) of this sum is to
be paid directly to the applicants and EUR 800 (eight hundred euros)
into the bank account of their legal representatives, Mr M.
Ekimdzhiev and Ms K. Boncheva;
(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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
