The
internal document stated that the first applicant was involved in
drug trafficking for the purposes of financing the militant Kurdish
separatist group Kongra-Gel (the former PKK). The order stated that
the first applicant should be detained pending expulsion and that it
was subject to appeal to the Minister of Internal Affairs, but not to
judicial review, and that it was immediately enforceable.
The
first applicant was served with the order on 21 February 2006. On the
same day the head of another government agency, the Migration
Directorate of the national police, made another order for the first
applicant’s detention pending expulsion. The applicant was
arrested and placed in a detention facility in Sofia. Pursuant to an
order of 18 July 2006 he was transferred to another special detention
facility outside the city.
The
first applicant was released on 28 October 2006. It appears from his
submissions that on an unspecified date after his release he was
interviewed at the Iranian embassy about his alleged connections with
a Kurdish separatist organisation.
C. The proceedings challenging the first applicant’s
expulsion
On
9 March 2006 the first applicant sought judicial review of the
expulsion order by the Sofia City Court, claiming that the order was
unlawful and referring to his difficult family situation due to the
complicated pregnancy of his partner, the second applicant.
On
13 March 2006 the first applicant also appealed against the order for
his expulsion to the Minister of Internal Affairs. On 30 March 2006
the appeal was returned to the applicant on the ground that it had
been submitted out of time and that judicial proceedings for the
order’s review were pending.
In
the course of the court proceedings the first applicant provided the
court with a document, issued by the National Investigation Service,
certifying that at that time no criminal proceedings were pending
against him. He also submitted written observations in which he
claimed that he had never been involved in the activities mentioned
in the classified internal document. He also referred to his family
situation, the Convention and the case of Al-Nashif v. Bulgaria
(no. 50963/99, 20 June 2002).
The
defendant, the National Security Service, submitted a copy of the
internal document of 15 December 2005 which had served as the basis
for the expulsion. Despite the first applicant’s request to
this effect, the court did not order the head of the National
Security Service to produce further information or evidence regarding
the reasons for the applicant’s expulsion.
By
a judgment of 26 July 2007 the Sofia City Court dismissed the appeal.
The court found, inter alia, that the document of 15 December
2005 had to be regarded as an official certification that the first
applicant was a threat to national security and that as such it was
binding on the court.
Upon
the first applicant’s appeal, by a final judgment of 28 May
2008 the Supreme Administrative Court upheld the lower court’s
judgment, fully endorsing its conclusions and not engaging in
examination of the evidence allegedly supporting the view of the
authorities that the first applicant posed a threat to the national
security. The court held that the deportation order was lawful and
fully justified by the attached internal document and did not run
counter to the Convention because the applicant had been able to
challenge it before a court. The court further stated that the first
applicant’s rights had been restricted in accordance with the
law and for the protection of the public interest. It also noted that
given the existence of information about the first applicant’s
involvement in drug trafficking for the purpose of financing a
terrorist organisation, the executive authority had rightly decided
that the applicant constituted a threat to national security.
D. The proceedings challenging the first applicant’s
detention
On
an unspecified date in 2006 the first applicant challenged the order
of 21 February 2006 for his placement in a special detention facility
before the Sofia City Court. On 23 June 2006 he requested suspension
of the execution of the detention order.
In
a decision of 16 October 2006 the court granted the request and
suspended the effect of the detention order for the course of the
proceedings. The court stated, in particular, that the authorities
had failed to provide evidence for the necessity of such a measure.
It pointed to the duration of the detention (at that time eight
months) and to the family situation of the first applicant. The
decision became final on an unspecified date as the parties had not
lodged an appeal and the applicant was released on 28 October 2006.
In
a final judgment of 23 February 2009 the Supreme Administrative Court
discontinued the proceedings without examining the appeal on the
merits. It held that the order for the applicant’s placement in
a detention facility was subordinate to the order for his expulsion
and issued within the course of expulsion proceedings. It was not
therefore subject to judicial review by itself.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice has been summarized in the Court’s
recent judgments in the cases of Raza v.
Bulgaria (no. 31465/08, §§ 30-42,
11 February 2010) and M. and Others v. Bulgaria
(no. 41416/08, §§ 45-53, 26 July 2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained that the deportation order against the first
applicant was in violation of their right to respect for their family
life. They relied on Article 8 of the Convention, which reads in so
far as relevant:
“1. Everyone has the right to respect
for his private and family life...
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
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
Government maintained that the factual grounds for the first
applicant’s deportation were based on information lawfully
obtained by the competent administrative body, the National Security
Service. This information was not refuted during judicial review at
two levels of jurisdiction. The balance between the first applicant’s
rights and the public interest had been respected. Furthermore, in
case of expulsion the applicants could settle in the first
applicant’s country of origin or another country of their
choice.
The
applicants contended that the order for the first applicant’s
expulsion was arbitrary and based on unspecified information
contained in a secret internal document. They further stated that
during the proceedings the authorities failed to present any other
information or documents in support of their allegations. Lastly, the
applicants claimed that the domestic courts failed to examine the
credibility of the executive’s assertions and the necessity of
the first applicant’s expulsion.
2. The Court’s assessment
In
the present case the Government have not disputed that the applicants
had established a genuine family life in Bulgaria, within the meaning
of Article 8, and that the first applicant’s deportation, if
effected, would constitute interference by the State authorities with
the applicants’ right to respect for their family life. The
Court finds no reason to hold otherwise.
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 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 M. and
Others, cited above, § 96 with further
references). In particular, in C.G. and Others v. Bulgaria
(no. 1365/07, §§ 42-47, 24 April 2008) 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. In the recent judgment of M. and Others, cited
above, § 102, the Court found that the domestic court 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 considered to
be beyond any meaningful judicial scrutiny, there was no safeguard
against arbitrariness.
29. The
present case is very similar. The deportation order against the first
applicant was based on a declaratory statement, contained in
an internal document of the National Security Service, according to
which he was involved in drug trafficking for the purposes of
financing a terrorist organisation 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 other similar
cases against Bulgaria, it has not been alleged that the first
applicant 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, the domestic
court dismissed the appeal against the deportation order, considering
itself bound by the above mentioned declaratory statement and
failing to examine the existence of a factual basis for the order
(see in this connection M. and Others,
cited above, § 98).
30. In
the Court’s view in the present case the applicants did not
enjoy the minimum degree of protection against arbitrariness inherent
in the concept of lawfulness within the meaning of the Convention.
Thus if the deportation order of 27 December 2005 were to be
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
the light 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 27 December 2005
being enforced.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants further complained that they did not have an effective
remedy in relation to the violation of their rights under Article 8.
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 complaint under Article 8 is 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
Government maintained that both the Sofia City Court and the Supreme
Administrative Court examined the applicants’ appeal against
the expulsion order on the merits.
The
applicants stated that the domestic courts failed to scrutinise the
factual grounds for the first applicant’s expulsion and the
necessity of the measure.
In
several cases against Bulgaria (see C.G. and Others, cited
above, §§ 59-64; Raza, cited above, §§
62-63; and M. and Others, cited above,
§§ 124-125) the Court found that the
proceedings for judicial review of an expulsion order citing national
security grounds were deficient in two respects. First, they did not
involve a meaningful scrutiny of the executive’s allegations.
Secondly, the courts did not assess whether the interference with the
applicants’ rights answered a pressing social need and was
proportionate to any legitimate aim pursued.
In
the present case the Court has already found that the domestic court
did not carry out a proper examination of the executive’s
assertion that the first applicant presented a national security risk
as it did not examine the information and evidence allegedly
supporting the view that the applicant presented a threat to the
national security (see paragraphs 17 and 29 above). Also, it did not
engage in a meaningful analysis of the proportionality of the first
applicant’s expulsion. The Court concludes that the judicial
review proceedings in the present case did not comply with the
requirements of Article 13, for the same reasons as in the
above-mentioned cases. No other remedy has been suggested by the
Government.
There
has therefore been a violation of Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The
first applicant complained under Article 3 of the Convention that his
expulsion to Iran would expose him to the risk of ill-treatment and
even the death penalty for his alleged involvement in drug
trafficking with the aim of financing a terrorist organisation. He
also complained, relying on Article 13, that he did not have any
domestic remedy in this respect. Articles 3 and 13 of the Convention
provide as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“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.”
The
Government stated that pursuant to the domestic legislation (section
44a of the Aliens in the Republic of Bulgaria Act) the applicant
would not be expelled to a country where his life was at risk. In the
Government’s view, the competent authorities checked the
applicability of the said provision as a matter of course.
The
applicant stated that the domestic courts could not examine the
applicability of Article 44a of the Aliens Act as their review was
limited solely to the issue of the lawfulness of the order. He
further claimed that the only procedure where the applicant’s
grievances under Article 3 could be considered was the asylum
procedure. However, possible proceedings
under the Law on Asylum and Refugees were not capable of barring the
expulsion of individuals who were considered a threat to national
security.
The Court reiterates that Contracting States have the
right as a matter of international law and subject to their treaty
obligations, including the Convention, to control the entry,
residence and expulsion of aliens (Üner v. the
Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII).
However, expulsion by a Contracting State may give rise to an issue
under Article 3, and hence engage the responsibility of that State
under the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a
case, Article 3 implies an obligation not to deport the person in
question to that country (Saadi v. Italy [GC], no. 37201/06, §
125, ECHR 2008-...). Having said that, the Court notes that it is in
principle for the applicant to adduce evidence capable of proving
that there are substantial grounds for believing that, if the measure
complained of were to be implemented, he would be exposed to a real
risk of being subjected to treatment contrary to Article 3 (see, for
example, Saadi, cited above, § 129; Auad v.
Bulgaria, no. 46390/10, § 99, 11 October
2011; and Mollazeinal v. Cyprus (dec.), no. 20198/05,
18 June 2009).
Turning to the present case, the Court observes that
the applicant has not submitted any evidence to substantiate his
claims. His allegations before the Court are confined to general
statements. There is no indication that the first applicant is wanted
by the Iranian authorities or that in the past he was persecuted or
investigated in Iran. Apart from his general concerns that the
Iranian authorities would be potentially interested in the
allegations of the Bulgarian officials that he had committed a crime,
if those allegations were to be communicated to them, the applicant
fails to refer to any specific personal circumstances. Quite the
opposite, he denies to belong to the Kurdish minority, to be in any
way involved in the activities of Kongra-Gel or to be engaged in drug
trafficking (see paragraph 14 above).
Moreover, on no occasion the first applicant raised
his grievances under Article 3 before the Bulgarian authorities.
There is no indication that he raised such complaints before the
executive or before the courts which reviewed the deportation order.
47. Having regard to the
foregoing considerations, the Court concludes that the first
applicant has not established that there are substantial grounds for
believing that he would be exposed to a real risk of being
ill-treated contrary to Article 3, if he were to be deported to Iran.
In these circumstances, the first applicant does not have an arguable
claim of a breach of the Convention, requiring a remedy under Article
13 of the Convention (see, for the same approach, Ayatollahi and
Hosseinzadeh v. Turkey (dec.), no. 32971/08, 23 March 2010).
In the light of the above considerations, the Court
considers that those complaints are manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. THE REMAINDER OF THE APPLICANTS’ COMPLAINTS
The
first applicant complained, relying on Article 5 §§ 1 and 4
and Article 6 § 1, that his detention pending deportation was
not justified and that he could not obtain a speedy and effective
judicial review of the lawfulness of his detention. All the
applicants complained that the first applicant’s detention
pending expulsion amounted to unjustified interference with their
rights under Article 8.
The
Court has examined these complaints as submitted by the applicants.
However, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
V. APPLICATION OF ARTICLE 46 AND ARTICLE 41 OF THE
CONVENTION
A. Article 46
52. Article
46 of the Convention provides, in so far as relevant:
