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FOURTH
SECTION
CASE OF M. AND OTHERS v. BULGARIA
(Application
no. 41416/08)
JUDGMENT
STRASBOURG
26 July
2011
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 M. and Others v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41416/08) 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 four individuals – Mr M., a national of
Afghanistan, his wife, Ms P., a national of Armenia, and their two
minor children (“the applicants”) – on 29 August
2008. The President of the Chamber decided not to have the
applicants' names disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicants were represented by Mr Y. Grozev and Ms N. Dobreva,
lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Dimova, of
the Ministry of Justice.
- The
applicants alleged, in particular, that Mr M.'s deportation would
violate Articles 3 and 8, that he had been detained in violation of
Article 5 § 1, that there had been a violation of
his right under Article 5 § 4 to take proceedings concerning the
lawfulness of his detention and that Article 13 had been violated
since the applicants had not had an effective remedy.
- On
1 September 2008 the President of the Fifth Section decided to
indicate to the Bulgarian Government, under Rule 39 of the Rules of
Court, that the first applicant should not be deported to Afghanistan
pending the examination of the case and until further notice. The
President also decided to give notice of the application to the
Government and to grant priority to the application under Rule 41. It
was further decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 1 of the
Convention).
- The
application was later transferred to the Fourth Section of the Court,
following the recomposition of the Court's Sections on 1 February
2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
- The
first applicant, who was born in 1974 and is a citizen of
Afghanistan, left Afghanistan on an unspecified date and entered
Bulgaria in 1998.
- On
an unspecified date the first applicant unsuccessfully sought asylum
in Bulgaria. The terms of his application, the reasons for the
refusal and the relevant dates have not been substantiated by the
first applicant.
- Since
1999 the first applicant has attended the Bulgarian Church of God, a
Baptist Church in Sofia. In 2001 he was baptised.
- The
first applicant has two children born in Bulgaria in 2003 and 2005
(the third and fourth applicants). Their mother (the second
applicant), born in 1982, whom the first applicant married in 2004,
is an Armenian national who has had a permanent residence permit in
Bulgaria since an unspecified date. According to the first and second
applicants, their first child, born in 2003, has no citizenship and
their second child, born in 2005, is a national of Afghanistan.
- In
August 2003 the first applicant submitted a second application for
asylum. By a decision of 17 March 2004 he was granted refugee status
in Bulgaria on the ground that he risked persecution in Afghanistan
on account of his conversion from Islam to Christianity. The short
decision stated in its relevant part that according to information
from the United Nations High Commissioner for Refugees, conversion to
Christianity was “punishable by death in all Afghanistan”.
No further details were stated.
B. The orders of 6 December 2005 and 12 October 2006
- On
6 December 2005 the Director of the National Security Service, at
that time a department of the Ministry of the Interior, issued an
order withdrawing Mr M.'s residence permit, ordering his expulsion
and imposing a ten-year ban on his re-entering Bulgaria on the ground
that he was a “serious threat to national security”.
Factual grounds were not indicated. The Director relied on an
internal document of 24 November 2005 which stated that the first
applicant was involved in trafficking of migrants, mainly citizens of
Afghanistan, through Turkey and Bulgaria to Serbia, Montenegro,
Greece and Hungary. The Director considered that this activity was as
such a threat to national security. Also, it could be used for the
transit of terrorists and thus discredit Bulgaria internationally.
- The
deportation order of 6 December 2005 did not specify the country to
which the first applicant should be deported. It appears that there
was no legal requirement to do so and that in practice deportation
orders did not indicate the country of destination.
- The
order of 6 December 2005 also stated that the first applicant should
be detained pending expulsion.
- On
12 October 2006 another government agency, the Migration Directorate
of the national police, issued an order for the first applicant's
detention pending expulsion. The relationship between that order and
the order of 6 December 2005, which also required Mr M.'s detention,
has not been clarified.
- According
to the order of 12 October 2006, Mr M.'s detention was necessary
since he posed a serious threat to national security, and also in
view of the fact that there was no (direct) transport connection
between Bulgaria and the first applicant's country of origin, which
prevented the immediate execution of the measure against him.
- The
orders of 6 December 2005 and 12 October 2006 were both immediately
enforceable.
- On
18 October 2006 the first applicant was arrested and detained at the
Centre for Interim Detention of Aliens. He remained there until his
release on 3 July 2009 (see paragraph 43 below).
C. Evidence regarding the authorities' efforts to
enforce the deportation order
- The
first applicant has not been deported.
- According
to a statement by the Director of Migration, prepared for the present
proceedings and submitted in 2009, Mr M.'s deportation was impeded by
the fact that he did not have a document valid for international
travel, the “lack of transport connections” and his
refusal to cooperate. The Director further explained, without
providing details, that several possible destinations for his
expulsion had been considered and that unsuccessful attempts had been
made to remove the obstacles to the execution of the deportation
order.
- At
least until April 2007, the first applicant did in fact have a
document valid for international travel. He possessed a special
refugee passport, issued by the Bulgarian authorities on 16 December
2004, which was valid for international travel until 6 April 2007.
The existence of this document, including its number and date of
issue, was mentioned in the deportation and detention order of 6
December 2005. It is unclear whether the first applicant presented
his refugee passport to the authorities or concealed it, as suggested
by the Government.
- In
February 2007 the Migration Directorate of the police wrote to the
Embassy of Afghanistan in Sofia requesting that an identity document
be issued to Mr M. It reiterated the request in September 2008 and
January 2009. By letter of 30 January 2009 the Embassy of
Afghanistan informed the Migration Directorate that it was unable to
issue the first applicant with a passport since he had expressly
stated at a meeting with Embassy representatives that he did not want
to have a passport issued and did not want to return to Afghanistan.
In those circumstances, the Embassy would not participate in the
first applicant's forced expulsion.
- In
a letter of 14 October 2008 to the first applicant's representative,
in reply to his request for release, the Director of the National
Security Agency stated that Mr M.'s detention continued to be
necessary despite the Court's interim measures decision (see
paragraph 4 above). That was so because:
“[I]n accordance with the document from the
[Court], the [first applicant] should not be deported to Afghanistan.
In execution of the expulsion order, he may be deported either to his
country of origin or to a third country, where there is no danger for
his life and health. The fact that the [deportation] order has not
been enforced is the result of the obstinate conduct of [Mr M.]
manifested by his frustrating and hampering his deportation from
Bulgaria.”
D. Proceedings concerning the deportation and detention
order of 6 December 2005
- On
20 October 2006 the first applicant appealed to the Sofia City Court
against the order of 6 December 2005 of the National Security Service
and requested a stay of enforcement pending the determination of his
appeal. In these proceedings he was legally represented.
- He
argued, inter alia, that mere suppositions, not facts, had
served as the basis for the impugned measures, there being no
evidence of unlawful activities and no criminal proceedings having
been brought against him. He also submitted that the expulsion order
was in breach of the prohibition to deport a person to a country
where his life was under threat. The first applicant further argued
that his expulsion interfered with his right to respect for his
family life. He also challenged the order for his detention.
- The
defendant, the National Security Service, submitted a copy of the
internal document of 24 November 2005 which had served as the basis
for the expulsion order (see paragraph 11 above). It also filed
submissions, maintaining, inter alia, that the impugned order
did not contravene section 44a of the Aliens Act.
- On
an unspecified date Mr M.'s representative wrote to the Migration
Directorate insisting that the deportation order should be revoked in
view of Mr M.'s refugee status in Bulgaria.
- By
letter of 1 February 2007 the Director of Migration replied that the
order was lawful. He stated, inter alia:
“In accordance with section 67(3) of the Refugees
and Asylum Act, execution of the [deportation order] should not be
suspended where there are grounds to believe that the alien seeking
or having obtained protection imperils national security.
In accordance with Article 33 of the United Nations
Convention relating to the Status of Refugees, 'no Contracting State
shall expel or return (refouler) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion'.
The benefit of this provision cannot, however, be
claimed by a refugee about whom there are grounds to believe that he
imperils the national security of the country where he is ...”
- In
October 2007, as a result of legislative amendments, the examination
of the first applicant's appeal against the order of 6 December 2005
fell within the competence of the Supreme Administrative Court.
- On
30 October 2007 a three-member panel of the Supreme Administrative
Court refused the first applicant's request for a stay of
enforcement. The court devoted no attention to his allegations about
the risk of ill-treatment in Afghanistan and his request to stay the
execution of the deportation order but stated merely that the alleged
interference with family life did not warrant a stay of enforcement
of the order for his detention. That decision was amenable to appeal
before a five-member panel of the Supreme Administrative Court. It is
unclear whether the first applicant appealed.
- By
a judgment of 9 June 2008 the Supreme Administrative Court dismissed
the first applicant's appeal against his expulsion and detention.
- The
court noted that an internal Ministry of the Interior document dated
24 November 2005 and submitted by the defendant stated that Mr M. had
acted in a way that presented a threat to national security. The
court did not accept the first applicant's arguments that it should
engage in detailed examination of the evidence allegedly supporting
the view of the Ministry that he posed a threat to Bulgaria's
national security. It stated:
“[The document of 24 November 2005] must be
regarded as an official certification which contains data collected
by the National Security Service in the exercise of its functions. It
has been issued in accordance with section 33 of the Protection of
Classified Information Act. It contains evidence and data which have
been assessed by the relevant administrative authority as sufficient
grounds for ordering [Mr M.'s deportation] for having engaged in
unlawful activities threatening national security... It follows that
the impugned order is lawful.”
- The
court rejected the first applicant's argument that the deportation
order should be revoked since he lived in Bulgaria by virtue of his
refugee status. The court stated that the domestic provisions
regulating deportation did not provide for discretion and their
interpretation could not vary on the basis of such factors as
residence status.
- The
court further noted that Mr M. had been granted refugee status on the
basis of his allegation that he had converted from Islam to
Christianity and was afraid of persecution in Afghanistan. The court
observed that there existed evidence of a danger to the first
applicant's health and life in relation to his conversion. It found,
however, that this danger did not stem from the Afghan State and that
the applicant had not provided evidence that the authorities would be
unable to protect him. Therefore, section 44a of the Aliens Act,
which reflected the guarantees of Articles 2, 3 and 5 of the
Convention, did not apply.
- As
regards the order for the first applicant's detention, the Supreme
Administrative Court found that it was not amenable to judicial
review as it concerned a measure undertaken in the execution of the
expulsion order and not a separate administrative decision.
E. Proceedings concerning the detention order of 12
October 2006
- On
26 October 2006 the first applicant appealed to the Sofia City Court
against the detention order of 12 October 2006 issued by the
Migration Directorate.
- In
these proceedings, on 21 December 2006 the Sofia City Court refused
the first applicant's request for a stay of enforcement of the
detention order. It found, inter alia, that there was no
evidence that its immediate enforcement would cause irreparable harm.
The refusal was upheld by the Supreme Administrative Court on 13
March 2007.
- In
the proceedings on the merits, the first applicant argued that his
lengthy detention was unlawful and in breach of Article 5 § 1 of
the Convention and that it disproportionately affected his family
life.
- By
a judgment of 2 April 2009 the Sofia City Court found that the order
of 12 October 2006 for the first applicant's detention had been
signed by an unauthorised official and declared it null and void. The
court held, however, that it did not have the power to order the
first applicant's release. No appeal was lodged against that
judgment. It became final on 2 June 2009.
F. Amendments to the Aliens Act, the first applicant's
release and other relevant developments
- On
15 May 2009 the Aliens Act was amended with the aim of incorporating
into Bulgarian law Directive 2008/115/EC of the European Parliament
and of the Council of 16 December 2008 on common standards and
procedures in Member States for returning illegally staying
third-country nationals.
- Under
the new section 46a of the Aliens Act, the director of the detention
centre for aliens is required to submit to the relevant court a list
of persons who have been detained for more than six months and the
court must decide of its own motion on their continued detention or
release.
- In
accordance with this new procedure, the situation of a number of
aliens, including the first applicant, was reviewed by the Sofia
Administrative Court in a decision of 12 June 2009. The decision was
presented to the first applicant to read but he was not given a copy
of it.
- On
30 June 2009 the Director of the Migration Directorate of the
national police, referring to the decision of the Sofia
Administrative Court of 12 June 2009, issued an order which revoked
the order of 12 October 2006 for the first applicant's detention and
imposed on him the obligation to report daily to the local police
station. The judgment of the Sofia City Court of 2 April 2009 (see
paragraph 38 above) was not mentioned.
- The
order of 30 June 2009 was served on the applicant on 3 July 2009 and
he was released on the same day.
- By
a decision of 5 October 2009 the third and fourth applicants were
granted refugee status in Bulgaria. The grounds for that decision
have not been communicated to the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are set out in detail in the
Court's judgment in the case of Raza v. Bulgaria (no.
31465/08, §§ 30-42, 11 February 2010). The following
additional provisions of domestic law are relevant.
- Under
section 46(3) of the Aliens Act, deportation orders issued on
national security grounds do not indicate the factual grounds for
imposing the measure.
- Under
section 44a of the Aliens Act, deportation orders may not be executed
by way of deportation to a country where there exists a risk to the
person's life or a risk of ill-treatment.
- A
similar prohibition is spelled out in section 4(3) of the Refugees
and Asylum Act, in respect of persons who have obtained protection
under the Act or have entered Bulgaria to seek such protection.
Section 4(4) provides, however, that the right not to be returned to
a country where the person concerned risks ill-treatment or death
cannot be invoked by aliens, including refugees, about whom there are
grounds to believe that they imperil national security. There is no
reported case-law under section 4(4).
- Under
section 67(2) of the Refugees and Asylum Act, where the person to be
deported has been granted refugee status, the deportation decision is
to be annulled. In accordance with section 67(3) of the Act, however,
the above does not apply where there are grounds to believe that the
person concerned imperils national security or that, having been
convicted of a serious criminal offence, he or she may pose a threat
to public order. There is no reported case-law under section 67(3).
- It
follows from sections 42(1), 44(4)(3) and 46(4) of the Aliens Act
that deportation orders issued on national security grounds are
immediately enforceable and that the lodging of a judicial appeal
does not suspend their enforcement. Enforcement may be postponed only
by a decision of the relevant administrative body in the event of
legal or technical obstacles hindering immediate execution (section
44b(1)).
- In
accordance with Article 166 § 2 of the Administrative Procedure
Code, in pending appeal proceedings the interested party may request
a stay of execution of an administrative decision on grounds of,
inter alia, risk of significant or irreparable harm. In some
of its decisions the Supreme Administrative Court has held that this
does not apply with regard to deportation orders issued on national
security grounds. That was so because immediate enforcement was
provided for ex lege, in the Aliens Act, and the courts did
not have the power to impose a stay of enforcement (see опред.
№ 1147.от
27.01.2009г. на ВАС по
адм.д. № 393/2009г., where
a request for a stay of deportation on the ground that the person
concerned was seriously ill was refused).
- In
an interpretative decision of 8 September 2009 the Supreme
Administrative Court revised its approach and stated that Article 166
§ 2 of the Administrative Procedure Code applied even where the
immediate enforceability of administrative decisions was provided for
ex lege, with the exception of instances where the law did not
provide for any judicial review. There is no reported case-law
confirming that the interpretative decision also concerned the stay
of enforcement of deportation orders on national security grounds.
- Under
section 48 of the Regulations for the implementation of the Aliens
Act, in cases where deportation orders are enforced through removal
by air, the person concerned shall be escorted by officers of the
aliens' control services to his country of citizenship or another
country of his choice to which he may be admitted.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
first applicant complained that his detention had been in violation
of Article 5 § 1. This provision reads, in so far as relevant:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law: ...
(f) the lawful arrest or detention ... of a
person against whom action is being taken with a view to deportation
...”
A. Admissibility
- The
Government submitted that the above complaint was manifestly
ill-founded. The first applicant disagreed.
- The
Court considers that the complaint under Article 5 § 1 is not
manifestly ill-founded within the meaning of Article 35 § 3(a)
of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
first applicant submitted that throughout the duration of his
detention the authorities had done “absolutely nothing”
to implement the deportation order, the obstacles to his expulsion
having all been obvious before 12 October 2006, the date of the
detention order. In those circumstances the first applicant submitted
that his detention did not fall under paragraph 1 (f) of Article 5.
It was in any event unnecessarily and excessively lengthy.
- In
the first applicant's view, his detention was furthermore unlawful as
being contrary to domestic and international law, which prohibited
deportation of refugees and, therefore, their detention pending
deportation. Moreover, his continued detention for more than one
month after 2 June 2009, when the judgment declaring null and void
the order of 12 October 2006 had entered into force, had been wholly
unlawful.
- The
first applicant also averred that the relevant domestic law did not
meet the Convention standards of quality of the law since detention
pending deportation was left to the discretion of the police without
regard to the individual's personal and family situation.
- The
Government submitted that the first applicant's detention had been
ordered in accordance with the law with a view to his deportation, in
keeping with all procedural and substantive legal requirements. The
length of the detention had been the result of difficulties in
securing an identity document for Mr M. and the possibility of his
admission to a safe third country. The first applicant had refused to
cooperate in this respect, failing to present his refugee passport
and thus contributing to the length of his detention. The lawfulness
of his detention had been confirmed by the Supreme Administrative
Court.
2. The Court's assessment
- Article
5 § 1 (f), which permits the State to control the liberty of
aliens in the immigration context, does not demand that detention be
reasonably considered necessary, for example, to prevent the
individual from committing an offence or fleeing. Any deprivation of
liberty under the second limb of Article 5 § 1 (f) will be
justified, however, only for as long as deportation or extradition
proceedings are in progress. If such proceedings are not prosecuted
with due diligence, the detention will cease to be permissible under
Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15
November 1996, § 113, Reports of Judgments and Decisions
1996-V; A. and Others v. the United Kingdom [GC], no.
3455/05, § 164, ECHR 2009-...; Tabesh v. Greece, no.
8256/07, §§ 56 and 57, 26 November 2009; and Raza,
cited above, § 72).
- The
deprivation of liberty must also be in conformity with the
substantive and procedural rules of national law and in keeping with
the purpose of protecting the individual from arbitrariness. The
notion of “arbitrariness” in Article 5 § 1 extends
beyond lack of conformity with national law, so that a deprivation of
liberty may be lawful in terms of domestic law but still arbitrary
and thus contrary to the Convention (see Saadi v. the United
Kingdom [GC], no. 13229/03, § 67, ECHR 2008 ...).
To avoid being branded as arbitrary, detention under Article 5 §
1 (f) must be carried out in good faith; it must be closely connected
to the ground of detention relied on by the Government; the place and
conditions of detention should be appropriate; and the length of the
detention should not exceed that reasonably required for the purpose
pursued (see A. and Others v. the United Kingdom, cited above,
§ 164).
- In
the present case, in so far as the first applicant submitted that his
detention had been unlawful since Bulgarian and international law
prohibited deportation of refugees, the Court, while considering that
Mr M.'s refugee status may be relevant in the analysis as to
whether “action [was] taken with a view to deportation”
when he was detained, refers to its established case-law according to
which under Article 5 § 1 (f) it is immaterial whether the
underlying decision to expel can be justified under national or
Convention law (see Chahal, cited above, § 112; Slivenko
v. Latvia [GC], no. 48321/99, § 146, ECHR
2003-X; and Sadaykov v. Bulgaria, no. 75157/01, §
21, 22 May 2008).
- The
Court further notes that by the judgment of the Sofia City Court of 2
April 2009, which became final on 2 June 2009, the order of
12 October 2006 for the first applicant's detention was declared
null and void as it had been issued by an unauthorised official (see
paragraph 38 above). The Court observes, however, that the order of 6
December 2005, which concerned not only the first applicant's
deportation but also his detention pending deportation, was never
revoked (see paragraph 13, 23, 24 and 34 above). It is also
noteworthy that the first applicant never argued that the effect of
the judgment of 2 April 2009 was to deprive his detention of any
legal basis retrospectively (see paragraph 57 above).
- The
Court will therefore proceed on the assumption that Mr M.'s
deprivation of liberty was based on a valid legal act.
- The
salient issue in the present case is whether it can be said that
“action [was] taken with a view to deportation”
throughout the duration of the first applicant's detention and,
consequently, whether it was justified under Article 5 § 1(f).
- The
first applicant was deprived of his liberty for two years and eight
and a half months (18 October 2006 to 3 July 2009).
- As
in the similar recent case of Raza (cited above), where the
Court found a violation of Article 5 § 1, the length of the
first applicant's detention was not related to the proceedings he
instituted against the deportation order since it was immediately
enforceable at any time, regardless of whether judicial proceedings
were pending. This remained valid throughout the relevant period as
the first applicant's request for a stay of execution was refused
(see paragraphs 16, 29, 51 and 52 above). The above distinguishes the
present case from the situation that obtained in, for example, Chahal
(cited above) and Kolompar v. Belgium (24 September 1992, §
40, Series A no. 235-C).
- The
evidence concerning the exact reasons for the fact that the
deportation order has not been enforced is not unequivocal. Its
assessment is further frustrated by the fact that the deportation
order did not specify the destination country, as this was not
required under domestic law. Section 48 of the Regulations to the
Aliens Act does not appear to clarify the matter sufficiently –
it concerns technical issues, such as escorting the deportee, and, in
any event, does not require that the destination country must be
identified in a binding legal act. The Court considers that this
legal regime and practice may be seen as problematic with regard to
the requirement of legal certainty, inherent in all Convention
provisions. Where deprivation of liberty is concerned, legal
certainty must be strictly complied with in respect of each and every
element relevant to the justification of the detention under domestic
and Convention law. In cases of aliens detained with a view to
deportation, lack of clarity as to the destination country could
hamper effective control of the authorities' diligence in handling
the deportation.
- The
Court observes that the only obstacle to immediate deportation
mentioned in the detention order of 12 October 2006 was the absence
of direct flights from Bulgaria to Afghanistan (see paragraph 15
above). Before the Court, the Government referred to difficulties in
providing Mr M. with an identity document and the lack of
cooperation on his part. On the basis of the material submitted to
it, the Court is unable to arrive at safe conclusions on the
questions whether it was possible to deport Mr M. using a refugee
passport, whether he refused to surrender his refugee passport valid
until 6 April 2007 and whether it was possible to issue him with a
new one (see paragraphs 19, 20 and 22 above).
- It
observes, however, that the first applicant's deportation was ordered
on 6 December 2005 and that the first effort on the part of the
Bulgarian authorities to secure an identity document for his
deportation was made in February 2007, when a letter was sent to the
Afghan Embassy (see paragraphs 11-22 above). Furthermore, as the
letter of February 2007 apparently remained unanswered, it cannot be
considered that the Bulgarian authorities pursued the matter with
diligence, seeing that their request was not reiterated until
September 2008, a year and seven months later (see paragraph 21
above). During all that time Mr M. was in detention. Thus, the Court
considers that the respondent Government have failed to establish
that they took active and diligent steps to overcome the alleged
difficulties concerning Mr M.'s identity papers.
- As
to the absence of direct flights to Afghanistan, the Court finds,
similarly, that it has not been shown that any effort was made to
resolve the ensuing difficulty, which, moreover, was apparently known
even before the first applicant's arrest (see paragraph 15 above).
- It
is true that after August 2008, when the Court adopted interim
measures under Rule 39 of the Rules of Court, there was a legal
obstacle to Mr M.'s deportation to Afghanistan. Where there are
obstacles to deportation to a given country but other destinations
are in principle possible, detention pending active efforts by the
authorities to organise removal to a third country may fall within
the scope of Article 5 § 1 (f)
(see Gebremedhin [Gaberamadhien] v. France, no. 25389/05,
§§ 74 and 75, ECHR 2007-V).
- However,
apart from their own statements for the purposes of the proceedings
before the Court, the Government have not provided evidence of any
effort having been made to secure the first applicant's admission to
a third country.
- In
view of the foregoing, the Court concludes that the grounds for Mr
M.'s detention – action taken with a view to his deportation –
did not remain valid for the whole period of his detention and that
the authorities failed to conduct the proceedings with due diligence.
Under Article 5 § 1 (f), the authorities
were not entitled to keep Mr M. in detention where no meaningful
“action with a view to deportation” was under way and
actively pursued.
- The
Court observes, in addition, that although Mr M.'s deprivation of
liberty was based on a valid legal act (see paragraphs 63 and 64
above), the existence of two separate orders for his detention,
issued by two different departments of the Ministry of the Interior,
appears to have been the source of uncertainty. In particular, the
legal significance of the existence of two orders is unclear. Also,
the duplication resulted in a situation where there were two
independent sets of judicial proceedings concerning the lawfulness of
Mr M.'s detention and no clarity as to whether the judicial decision
repealing one of the detention orders actually affected the first
applicant's situation (see paragraphs 13, 14 and 23-28 above).
Moreover, even after 2 June 2009, when the judgment revoking one of
the two orders entered into force, the Director of the Migration
Directorate of the national police continued referring to it as if it
were valid, in disregard of the domestic court's final ruling (see
paragraphs 38 and 42 above). The situation described above was
incompatible with the Contracting States' duty under Article 5 of the
Convention to secure a high level of legal certainty in matters
concerning deprivation of liberty (see Tabesh, cited above, §
52).
- On
the basis of its conclusions in the two preceding paragraphs
(see, for a similar approach, Louled Massoud v. Malta,
no. 24340/08, §§ 66 and 67, 27 July 2010), the
Court finds that there has been a violation of Article 5 § 1 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
first applicant complained that his right to judicial review of the
lawfulness of his detention had been violated. He relied on Article 5
§ 4, which reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Admissibility
- The
Court finds that the complaint under Article 5 § 4 is not
manifestly ill-founded within the meaning of Article 35 § 3(a)
of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
first applicant submitted that in the proceedings against the order
of 6 December 2005 he was denied judicial review of his detention and
that the review provided in the proceedings against the order of
12 October 2006 did not meet the speediness requirement.
- The
Government submitted in reply that the domestic court had provided a
full judicial review of the impugned measures against the first
applicant.
- The
Court observes that, since two different governmental bodies had
issued two separate orders for his detention, in October 2006 the
first applicant sought judicial review of its lawfulness by appealing
in separate proceedings against each of those two orders. In the
first set of proceedings, the Supreme Administrative Court, applying
the same defective approach that was criticised in the case of Raza
(cited above, §§ 41 and 77), refused to examine the appeal.
In the second set of proceedings, it was not until 2 April 2009,
almost two and a half years later, that the first applicant obtained
a judicial decision establishing that one of the orders for his
detention had been signed by an unauthorised officer (see paragraphs
34 and 38 above). It has not been alleged that other avenues to
obtain judicial review of the lawfulness of his detention were open
to Mr M.
- The
situation described above discloses a serious failing on the part of
the respondent State to secure, in the period prior to the
legislative reform of May 2009 (see Raza, cited above,
§ 42), the enjoyment of the Convention right to take proceedings
by which the lawfulness of detention falling under paragraph 1 (f) of
Article 5 is decided speedily by a court. The Court reiterates that
the Convention requirement for an act of deprivation of liberty to be
amenable to independent judicial scrutiny is of fundamental
importance in the context of the underlying purpose of Article 5 of
the Convention to provide safeguards against arbitrariness (see
Al-Nashif and Others v. Bulgaria, no. 50963/99, §
92, 20 June 2002).
- There
has therefore been a violation of Article 5 § 4.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- All
the applicants complained that the deportation order against Mr M.
and his detention were in violation of their right to respect for
their private and family life. They relied on Article 8, which reads,
in so far as relevant:
“1. Everyone has the right to respect
for his private and 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. Admissibility
- The
Government submitted that the first applicant would not be deported
to Afghanistan and that therefore he could not claim to be the victim
of a violation of Article 8. The applicants contended in reply,
inter alia, that their complaint under Article 8 did not
concern the destination of Mr M.'s deportation but the very fact that
the family would be separated if the deportation order was enforced.
- The
Court notes that the order for Mr M.'s deportation is final and
enforceable. The Government have not disputed the applicants'
position that its enforcement would seriously affect their private
and family life even if Mr M. were deported to a country other than
Afghanistan and, moreover, have not provided any convincing argument
that there was a realistic possibility of deporting Mr M. to a third
country where the family could establish a family life (see paragraph
74 above). The Court thus finds that the Government's objection is
unsubstantiated and dismisses it.
- It
further finds that the complaint under Article 8 is not manifestly
ill-founded within the meaning of Article 35 § 3(a) of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicants alleged two separate violations of Article 8. The first
concerned Mr M.'s detention, which in their view interfered in an
arbitrary and disproportionate manner with their right to respect for
their private and family life. The second concerned Mr M.'s
deportation, which was arbitrary. The applicants averred that there
was no evidence of any involvement of Mr M. in organising illegal
border crossings and that in any event such activities could not be
reasonably interpreted as a threat to national security. The
applicants also claimed that domestic law did not require that
evidence of the alleged unlawful activities be presented to and
examined by an independent authority.
- The
Government stated that the factual and legal grounds for Mr M.'s
expulsion had been impartially and thoroughly examined by the Supreme
Administrative Court. That court had delivered well-reasoned
judgments and had had regard to the applicants' Convention rights.
2. The Court's assessment
- As
to the first alleged violation of Article 8, the Court, having found
that Mr M.'s detention was contrary to Article 5 § 1 of the
Convention (see paragraph 77 above), considers that no separate
issue arises under Article 8.
- As
to the second limb of the applicants' complaint, the Court must
examine whether the order for Mr M.'s expulsion, if enforced, would
violate that provision.
- In
the present case the respondent Government have not disputed that the
applicants had established a genuine “family life” in
Bulgaria, within the meaning of Article 8, and that Mr M.'s
deportation, if effected, would constitute interference by the State
authorities with the applicants' right to respect for their family
life. In these circumstances, and having regard to the relevant facts
and the manner in which the Government have argued the case (see
paragraphs 6-11, 86 and 90 above), the Court finds no reason to hold
otherwise (see also Raza, cited above, § 48).
- Such
interference will be in breach of Article 8 of the Convention unless
it can be justified under paragraph 2 of that provision as being
“in accordance with the law”, as pursuing one or
more of the legitimate aims listed therein, and as being “necessary
in a democratic society” in order to achieve the aim or aims
concerned.
- The
first of these requirements, namely that any interference be
“in accordance with the law”, 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 law must, moreover, afford a
degree of legal protection against arbitrary interference by the
authorities (see, among many other authorities, Kaushal and Others
v. Bulgaria, no. 1537/08, § 26, 2 September 2010).
- The
Court observes that in a number of cases against Bulgaria it has
found that deportations ordered on alleged national security grounds
did not meet the Convention standard of lawfulness as the relevant
law, procedures and practice did not offer even a minimum degree of
protection against arbitrariness (see Al-Nashif and Others, cited
above; Musa and Others v. Bulgaria, no. 61259/00, 11
January 2007; Hasan v. Bulgaria, no. 54323/00, 14 June
2007; Bashir and Others v. Bulgaria, no. 65028/01, 14 June
2007; C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008;
Raza, cited above; and Kaushal and Others,
cited above).
- The
last-mentioned three judgments (C.G. and Others, Raza
and Kaushal and Others) concerned the same domestic
legislation and practice as the present case. In particular, in C.G.
and Others the Court found that, first, the domestic courts had
allowed the executive to stretch the notion of national security
beyond its natural meaning, and, secondly, those courts had not
examined whether the executive was able to demonstrate the existence
of specific facts serving as a basis for its assessment that the
applicant presented a national security risk, and instead based its
rulings solely on uncorroborated statements by the Ministry of the
Interior. On that basis, the Court found that the interference with
the applicants' family life was not “in accordance with the
law” (ibid., §§ 42-47 and 49).
- In
the present case the deportation order against Mr M. was based on a
declaratory statement, contained in an internal document of the
National Security Service of the Ministry of the Interior, according
to which he was involved in trafficking of migrants and therefore
represented a national security threat. This document, which has not
been submitted to the Court, apparently did not mention the factual
grounds and the evidence on which the declaration was based. As in
the other similar cases against Bulgaria, it has not been alleged
that Mr M. has ever been charged with related offences. Thus, the
deportation order was issued on the basis of a purely internal
assessment of undisclosed information. Furthermore, just as it did in
the other cases cited above, the Supreme Administrative Court
dismissed the appeal against the deportation order, considering
itself bound by the above-mentioned declaratory statement. The court
held that the governmental agency which had issued the statement had
some sort of certification power, which had to be respected
unconditionally. The court thus refused to inquire whether the
allegations against Mr M. had any objective basis (see paragraphs 11,
24, 25 and 31 above).
- In
the Court's view, the above practice of the Bulgarian Supreme
Administrative Court fails to take into consideration the nature of
the issue before it – an alleged interference by the executive
with a fundamental human right.
- The
Court reiterates that the concepts of lawfulness and the rule of law
in a democratic society require that measures affecting fundamental
human rights must be subject to some form of adversarial proceedings
before an independent body competent to review the reasons for the
decision and relevant evidence, if need be with appropriate
procedural adjustments related to the use of classified information
(see Al-Nashif, cited above, §§ 123-24). The body in
question must also be competent to examine whether the measures taken
pursue a legitimate aim and are proportionate.
- 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 must be able to react
in cases where invoking that 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. Failing
such safeguards, the police or other State authorities would be able
to encroach arbitrarily on rights protected by the Convention
(ibid.).
- In
the present case the Supreme Administrative Court failed to provide
meaningful independent scrutiny of the deportation order against Mr
M. It applied a formalistic approach and left a governmental agency
full and uncontrolled discretion to “certify” blankly,
with reference to little more than its own general statements, that
an alien was a threat to national security and must be deported. As
such “certifications” were based on undisclosed internal
information and were held to be beyond any meaningful judicial
scrutiny, there was no safeguard against arbitrariness.
- Therefore,
the applicants did not enjoy the minimum degree of protection against
arbitrariness inherent in the concept of lawfulness within the
meaning of the Convention. If the deportation order of 6 December
2005 is enforced, the resulting interference with the applicants'
family life would not be “in accordance with the law”, as
required by Article 8 § 2 of the Convention.
- In
view of this conclusion, the Court is not required to examine the
remaining issues, which concern the existence of a legitimate aim and
proportionality.
- It
follows that there would be a violation of Article 8 of the
Convention in the event of the deportation order of 6 December 2005
being enforced.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
first applicant complained that in the event of his deportation to
Afghanistan the Bulgarian authorities would expose him to a high risk
of inhuman treatment and that his life would be in immediate danger.
In his initial application the first applicant relied on Articles 2
and 3 of the Convention. In subsequent submissions he stated that
this complaint concerned Article 3 of the Convention.
- The
Court considers that the above complaint falls to be examined under
Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- The
Government submitted that the first applicant could not claim to be
the victim of the alleged violation of the Convention since the
authorities had never intended and did not intend to deport him to
Afghanistan. The authorities were conscious of the requirements of
the Convention and other international instruments and would not
expose Mr M. to any risk, however slight, of inhuman treatment.
- In
particular, the Government noted that the deportation order against
the first applicant did not specify the country of destination. The
order would be executed only if the Bulgarian authorities succeeded
in obtaining identity papers for him and securing his admission to a
safe third country, taking into account, moreover, Mr M.'s
destination preferences.
- The
first applicant submitted in reply that the understanding that he
would be deported to his country of origin, Afghanistan, was implicit
in all actions by the authorities and in their communications with
him. That was clear in particular from the letter of 1 February 2007
from the Director of Migration (see paragraph 27 above). Also, in the
judicial proceedings the first applicant had built his defence on the
existence of a risk of ill-treatment in Afghanistan and the Supreme
Administrative Court had dealt with those arguments, clearly
interpreting the deportation order to mean that he would be deported
to Afghanistan.
- Moreover,
the statement that the first applicant would be deported to a third
country had been made for the first time before the Court. In
reality, there was nothing under domestic law to prevent the first
applicant's deportation to Afghanistan.
- The
first applicant further submitted that if deported to Afghanistan he
would most likely be subjected to treatment contrary to Article 3 and
his life would be in immediate danger. He referred to reports about
the treatment in Afghanistan of persons who had converted from Islam
to another religion. He also submitted that the danger in question
had been acknowledged by the Bulgarian authorities and that, in
accordance with the Court's case-law, the allegation that he posed a
threat to Bulgaria's national security was irrelevant in the context
of Article 3, which prohibited ill treatment in absolute terms.
B. The Court's assessment
- The
Court considers that the complaint under Article 3 is not manifestly
ill-founded within the meaning of Article 35 § 3(a) of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
- For
the reasons set out below, the Court considers it unnecessary to deal
with the question whether or not the Government's assurances, not
reflected in any binding legal act (compare Boutagni v. France,
no. 42360/08, § 48, 18 November 2010), can be seen as
removing the risk of Mr M. being returned to Afghanistan.
- The
Court refers to its finding above that the enforcement of the
deportation order of 6 December 2005 would violate the applicants'
right under Article 8 to respect for their private and family life on
the particular ground that the order against Mr M. was issued and
reviewed in a manner which did not secure the minimum safeguards
against arbitrariness and it did not, therefore, meet the Convention
standards of lawfulness (see paragraphs 103-105 above).
- There
is no reason to doubt that the respondent Government would comply
with the present judgment and would not act in violation of the
Convention by deporting Mr M. on the basis of a deficient order.
- In
these circumstances, there is no need to examine whether Mr M.'s
deportation would also violate another Convention provision
(see Hilal v. the United Kingdom, no. 45276/99, §
71, ECHR 2001 II; Daoudi v. France, no. 19576/08, §
78, 3 December 2009; and N. v. Finland, no. 38885/02, §
173, 26 July 2005) and it is no longer necessary to maintain the
measures taken under Rule 39 of the Rules of Court. In the event of a
new deportation order being issued against Mr M., it will be open to
him to submit a new application and to request interim measures under
Rule 39 of the Rules of Court (see Boutagni, cited above, §
48).
- The
Court finds, therefore, that it is not necessary to examine the
complaint under Article 3 and discontinues the application of the
measures indicated under Rule 39 of the Rules of Court.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Lastly,
the applicants complained that they did not have an effective remedy
in relation to the alleged violations of their rights under Articles
3 and 8 of the Convention. Article 13 reads:
“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. Admissibility
- The
Court finds that the applicants' complaints under Articles 3 and 8
are arguable and that therefore Article 13 is applicable.
- It
further finds that the complaint under Article 13 is not manifestly
ill-founded within the meaning of Article 35 § 3(a) of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicants alleged that the proceedings available to Mr M. under
Bulgarian law did not secure adequate protection against violations
of Articles 3 and 8. That was so because, inter alia, the
Supreme Administrative Court provided only a limited and formalistic
review of the grounds underlying the deportation order, accepting
without evidence the statements of the National Security Service.
Furthermore, the court had failed to consider the proportionality of
the impugned measure which interfered with all the applicants' family
life.
- The
Government stated that the factual and legal grounds for Mr M.'s
expulsion had been impartially and thoroughly examined by the Supreme
Administrative Court. That court had delivered a well-reasoned
judgment and had had regard to the applicants' Convention rights.
- In
previous similar cases against Bulgaria (see C.G. and Others,
Raza, and Kaushal and Others, all cited above), with
regard to complaints under Article 13 in conjunction with Article 8,
the Court found that proceedings for judicial review of an expulsion
order citing national security grounds were deficient in two
respects. Firstly, they did not involve meaningful scrutiny of the
executive's allegations. Secondly, the courts did not assess whether
the interference with the applicants' rights met a pressing social
need and was proportionate to any legitimate aim pursued
(see C.G. and Others, cited above, §§
59-64).
- In
the present case, similarly, the Court has already found that the
Supreme Administrative Court did not carry out a proper examination
of the executive's assertion that Mr M. presented a national security
risk (see paragraphs 97-104 above). The Court also notes that,
as in the cases cited above, the Supreme Administrative Court devoted
no attention to questions of proportionality, apparently treating
them as irrelevant (see paragraphs 24 and 30-34 above). It
follows that the judicial review proceedings in the present case did
not secure to the applicants the effective domestic remedy which
Article 13 requires in respect of their complaint that Mr M.'s
deportation would interfere arbitrarily and disproportionately with
their private and family life.
- The
failure of the Supreme Administrative Court to carry out a proper
examination of the executive's assertion that Mr M. presented a
national security risk, as established above, also undermined the
effectiveness of this remedy with regard to the requirements of
Article 13 in conjunction with Article 3.
- In
addition, in this context, the Court finds disturbing the approach of
the Supreme Administrative Court on the question whether or not the
alleged risks of ill-treatment and death in the event of Mr M.'s
deportation to Afghanistan rendered the deportation order unlawful.
In particular, while it apparently acknowledged the existence of such
risks, the court placed on the first applicant the burden of proving
that they stemmed from the Afghan authorities and that those
authorities would not guarantee his safety (see paragraph 33
above). This approach appears deficient on two levels. First, it
seems to place excessive reliance on the question whether the
ill treatment risked in the receiving State would emanate from
State or non State sources, whereas, in accordance with the
Court's established case law, this issue, albeit relevant,
cannot be decisive (see, among others, N. v. Finland, no.
38885/02, §§ 163-165, 26 July 2005, and Salah Sheekh
v. the Netherlands, no. 1948/04, §§ 137-149,
ECHR 2007-I). Second, by dealing with such a serious issue summarily
and by placing on the first applicant, without any explanation, the
burden of proving negative facts, such as the lack of State
guarantees in Afghanistan, the court practically deprived Mr M. of a
meaningful examination of his claim under Article 3. The Court
reiterates in this connection that in
view of the importance which it attaches to Article 3 of the
Convention and the irreversible nature of the damage which may result
if the risk of ill-treatment materialises, the effectiveness of a
remedy within the meaning of Article 13 imperatively requires
independent and rigorous scrutiny by a national authority of any
claim that there exist substantial grounds for fearing a real risk of
treatment contrary to Article 3 (see M.S.S.
v. Belgium and Greece [GC], no. 30696/09, §
293, 21 January 2011, with further references).
- Finally,
the Court notes with concern that yet another aspect of the
requirements of Article 13 in conjunction with Article 3 was not
complied with by the Bulgarian authorities. It observes that under
Bulgarian law, whenever the executive chooses to mention national
security as the grounds for a deportation order, appeals against such
an order have no suspensive effect, even if an irreversible risk of
death or ill-treatment in the receiving State is claimed (see
paragraphs 16 and 50 above). Moreover, at least until September 2009,
the Supreme Administrative Court held that under Bulgarian law there
was no possibility of staying the enforcement of a deportation order
issued on national security grounds (see paragraphs 51 and 52 above).
In the present case, it appears that the first applicant's request
for a stay of his deportation pending the judicial review proceedings
was left practically unexamined (see paragraph 29 above). Before the
Court's decision to apply Rule 39 of the Rules of Court, Mr M. could
have been deported to Afghanistan at any moment and without a prior
independent examination of his claim that such deportation would
expose him to a serious risk to his life or physical integrity. While
this did not happen (apparently, partly for reasons beyond the
Bulgarian authorities' control and partly because of delays in their
actions (see paragraphs 69-75 above)), the issue to be examined is
whether or not the available domestic remedies met the requirement of
effectiveness under Article 13 and the Court's case-law. Those
requirements take the form of a guarantee and cannot be deemed to
have been satisfied by a de facto arrangement (see Gebremedhin
[Gaberamadhien], cited above, § 66).
- The
Court reiterates that the notion of an effective remedy under
Article 13 requires that the remedy may prevent the execution of
measures that are contrary to the Convention and whose effects are
potentially irreversible. Consequently, it is inconsistent with
Article 13 for such measures to be executed before the national
authorities have examined whether they are compatible with the
Convention, although Contracting States are afforded some discretion
as to the manner in which they conform to their obligations under
this provision (see Čonka v. Belgium, no. 51564/99,
§ 79, ECHR 2002-I, and Salah Sheekh, cited above, §
153). In the context of deportation, the domestic remedy for
examination of allegations about serious risks of ill-treatment
contrary to Article 3 in the destination country must have automatic
suspensive effect (see Gebremedhin [Gaberamadhien], cited
above, §§ 58 and 66, and M.S.S. v. Belgium and
Greece [GC], cited above, § 293).
As the prohibition provided by Article 3 against torture and inhuman
or degrading treatment is of an absolute character, the activities of
the individual in question, however undesirable or dangerous, cannot
be a material consideration with the consequence that the protection
afforded by Article 3 is broader than that provided for in Articles
32 and 33 of the 1951 United Nations Convention relating to the
Status of Refugees (see Saadi v. Italy [GC], no. 37201/06,
§ 138, ECHR 2008 ...). By choosing to rely on national
security in a deportation order the authorities cannot do away with
effective remedies (see Al-Nashif, cited above, § 137).
- In
the light of the above-cited case-law, the Court considers that where
there is an arguable claim about a substantial risk of death or
ill treatment there can be no justification for a legal regime
under which – as here – suspensive effect is denied as a
matter of principle to appeals against a certain category of
deportation orders. It finds that the Bulgarian law and practice in
relation to stays of enforcement of deportation orders issued on
purported national security grounds are incompatible with Article 13
as they do not guarantee automatic suspension of enforcement and do
not secure a substantive, rigorous and independent examination of
claims under Article 3 of the Convention prior to deportation.
- All
the serious deficiencies noted above lead the Court to the conclusion
that the judicial review performed by the Supreme Administrative
Court in the present case did not constitute an effective remedy
within the meaning of Article 13 in relation to the applicants'
complaints under Articles 3 and 8.
- It
has not been suggested by the Government that any other remedies
existed in Bulgarian law.
- There
has therefore been a violation of Article 13.
VI. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- The
Court finds it appropriate to consider the present case under Article
46 of the Convention, which reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- The
Court reiterates that, in the context of the execution of judgments
in accordance with Article 46 of the Convention, a judgment in which
the Court finds a violation of the Convention or its Protocols
imposes on the respondent State a legal obligation not just to pay
those concerned the sums awarded by way of just satisfaction, but
also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted
in its domestic legal order. Furthermore, it follows from the
Convention, and from Article 1 in particular, that in ratifying the
Convention the Contracting States undertake to ensure that their
domestic legislation is compatible with it (see Maestri v. Italy
[GC], no. 39748/98, § 47, ECHR 2004-I).
- Contracting
States' duty in international law to comply with the requirements of
the Convention may require action to be taken by any State authority,
including the legislature (see, as a recent example,
Viaşu v. Romania, no.
75951/01, 9 December 2008).
- The
Court observes that it has already delivered judgments against
Bulgaria, where violations of Articles 5, 8 and 13 of the Convention,
similar at least to a certain extent to those found in the present
case, have been established (see Al-Nashif and Others, no.
50963/99, 20 June 2002; Musa and Others, no. 61259/00, 11
January 2007; Hasan, no. 54323/00, 14 June 2007; Bashir
and Others, no. 65028/01, 14 June 2007; C.G. and Others,
no. 1365/07, 24 April 2008; Sadaykov, no. 75157/01, 22 May
2008; Raza, no. 31465/08, 11 February 2010; Kaushal and
Others, no. 1537/08, 2 September 2010 and Baltaji, no.
12919/04, 12 July 2011 (not final). A number of other similar
cases against Bulgaria are pending before the Court. In view of the
above, it appears necessary to assist the respondent Government in
the execution of their duty under Article 46 of the Convention in the
present case.
- In
particular, in view of its findings in the present case, the Court
expresses the view that the general measures in execution of this
judgment should include such amendments to the Aliens Act or other
Bulgarian legislation and such change of judicial practice in
Bulgaria so as to ensure that: (i) even where national security is
invoked as grounds of a deportation order, the factual basis and
reasons for the conclusion that the alien must be deported should be
subject to a thorough judicial scrutiny, if need be with appropriate
procedural adjustments related to use of classified information; (ii)
the court examining an appeal against deportation should balance the
legitimate aim pursued by the deportation order against the
fundamental human rights of the affected individuals, including their
right to respect for their family life; (iii) the destination country
should always be indicated in a legally binding act and a change of
destination should be amenable to appeal; (iv) where an arguable
claim about a substantial risk of death or ill treatment in the
destination country is made in an appeal against deportation, that
appeal should have automatic suspensive effect until the examination
of the claim; and (v) claims about serious risk of death or
ill treatment in the destination country should be examined
rigorously by the courts.
VII. 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 120,000 euros (EUR) in respect of non pecuniary
damage for the violations of Article 5 and EUR 6,000 for the
violation of Article 8. They did not formulate claims in relation to
their other complaints.
- The
Government submitted that the finding of a violation would constitute
sufficient just satisfaction. They argued, inter alia, that Mr
M. was responsible for the length of his detention pending
deportation as he had refused to cooperate and had not presented to
the authorities an identity document valid for international travel.
- The
Court considers that the first applicant must have suffered distress
as a result of the fact that his detention pending deportation was
not justified throughout its duration and that he could not obtain a
speedy review of its lawfulness. Making an assessment on an equitable
basis, the Court awards him EUR 12,000 in respect of non-pecuniary
damage for the violations of Article 5 in the present case.
- As
regards Article 8, the Court notes that its conclusion under that
provision does not concern a violation that has already occurred and
considers, therefore, that the finding of a violation constitutes
sufficient just satisfaction (see Daoudi, cited above, §
82, and Raza, cited above, § 88, with further
references).
B. Costs and expenses
- The
applicants also claimed EUR 3,000 for legal fees in the proceedings
before the Court. They submitted a legal fees agreement between them
and their lawyer and a time sheet, according to which their lawyer
had charged them for 37.5 hours of work at the hourly rate of EUR 80.
The applicants requested that any award made in respect of costs and
expenses should be payable directly into the bank account of their
legal representative, Mr Y. Grozev.
- The
Government submitted that the number of hours and the hourly rate
claimed were excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to allow the claim for costs and expenses in
full.
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 application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds that no separate issue arises under
Article 8 in relation to Mr M.'s detention;
- Holds that there would be a violation of the
applicants' rights under Article 8 of the Convention in the event of
the deportation order of 6 December 2005 being enforced;
- Holds that there is no need to examine the
complaint under Article 3 of the Convention;
- Holds that there has been a violation of Article
13 of 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) EUR
12,000 (twelve thousand euros) to the first applicant, plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros) to all the applicants, plus any tax that
may be chargeable to them, in respect of costs and expenses, this sum
being payable directly into the bank account of the applicants' legal
representative, Mr. Y. Grozev;
(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 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
