CASE OF GRABCHAK v. BULGARIA

FIFTH SECTION

CASE OF GRABCHAK v. BULGARIA

(Application no. 55950/09)

JUDGMENT

STRASBOURG

1 June 2017

This judgment is final but it may be subject to editorial revision.

In the case of Grabchak v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Nona Tsotsoria, President,
Síofra O’Leary,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 9 May 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 55950/09) 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 a Ukrainian national, Mr Sergey Aleksandrovich Grabchak (“the applicant”), on 18 September 2009.

2. The applicant was represented by Ms N. Dobreva, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.

3. On 14 December 2015 the application was communicated to the Government.

4. On 18 December 2015 the Ukrainian Government was informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. On 11 March 2016 they informed the Court that they would not avail themselves of this possibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1966 and lives in Kiev.

6. The applicant came to Bulgaria in 1995. In 1996 he started a relationship with Ms M., also a Ukrainian national. In 1997 the two of them had a son. In 2003 the applicant was granted permanent resident status.

7. On 6 November 2006 the head of the Ministry of the Interior’s National Security Service issued an order withdrawing the applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his re-entering Bulgaria, on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B4923”.

8. That proposal, drawn up by National Security Service and also dated 6 November 2006, was submitted to the Court. It stated that the applicant had allegedly been involved in acts of extortion, smuggling, arms deals and money laundering, that he operated with large amounts of illegally obtained money, that he had established contacts with Bulgarian officials, including police officers, who had been providing him with illegal services, and that he had been in contact with presumed terrorists. While enumerating the applicant’s presumed illegal activities, the proposal referred to specific dates and names, but to no evidence to support the allegations. Lastly, it was stated that the applicant had left Bulgaria on 29 October 2006.

9. Unaware of the ministerial order of 6 November 2006, on 15 November 2006 the applicant attempted to re-enter the Bulgarian territory but was stopped at the border and not permitted entry. Since then he has been living in Kiev, while Ms M. and his son remained in Bulgaria.

10. Through his lawyer, the applicant submitted an appeal to the Bulgarian Minister of the Interior against the order of 6 November 2006. The appeal was dismissed on 22 December 2006, the Minister pointing out, in particular, that he considered irrelevant the applicant’s argument that he had settled in Bulgaria with his family.

11. After that the applicant applied for judicial review of the order of 6 November 2006. In particular, he pointed out in his application that his family resided in Bulgaria and that their separation had been unjustified.

12. In the course of the judicial proceedings the applicant’s lawyer was shown proposal no. B4923.

13. In a decision of 30 October 2007 the Supreme Administrative Court held that it was competent to examine the application, with reference to the Court’s judgment in the case of Al‑Nashif v. Bulgaria (no. 50963/99, 20 June 2002) and Article 13 of the Convention, even though, at the time the impugned order had been issued, judicial review had not been available under the legislation then applicable (see paragraph 16 below).

14. The judicial proceedings ended on 19 March 2009 with a final judgment of the Supreme Administrative Court, which upheld the order of 6 November 2006. After enumerating the applicant’s alleged unlawful activities described in proposal no. B4923, it stated merely that the impugned order did not breach the law. Furthermore, it dismissed the applicant’s arguments relating to his family and private life, stating:

“any restriction of the rights under the Convention is justified [when based] on national security considerations, in cases where foreign citizens’ behaviour threatens the national security and the public order of the State where they reside.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

15. The relevant domestic law and practice have been summarised in the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, §§ 30-36, 11 February 2010).

16. In particular, section 46(2) of the Aliens Act, as in force until March 2007, provided that orders for the expulsion of aliens on national security grounds were not amenable to judicial review. Following this Court’s judgment in the case of Al‑Nashif (cited above), in which it found the above provision contrary to Article 8 and Article 13 of the Convention, the Supreme Administrative Court changed its case‑law. In a number of judgments and decisions delivered in 2003‑06 it held, by reference to Al‑Nashif, that the ban on judicial review in section 46(2) was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security considerations were amenable to judicial review.

17. In April 2007 section 46(2) of the Act was amended and at present provides that expulsion orders may be challenged before the Supreme Administrative Court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 AND ARTICLE 13 OF THE CONVENTION

18. The applicant complained under Article 8 of the Convention that the measures against him had infringed his rights to family and private life. He also complained under Article 13 of the Convention, taken in conjunction with Article 8, that he had had no effective remedy to protect his rights to family and private life.

19. Article 8 and Article 13 of the Convention read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

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.”

A. Arguments of the parties

1. The Government

20. The Government argued that the application was time-barred, as it had not been submitted within six months of the date on which the order for the applicant’s expulsion was issued (6 November 2006) or of the date on which the applicant had left Bulgaria (29 October 2006). The Government were of the view that the six-month time-limit under Article 35 § 1 of the Convention had started running on one of these dates, because at that time the Aliens Act did not provide expressly for judicial review of expulsion orders based on national security grounds. The Government relied in this regard on the Court’s findings in the case of Danawar v. Bulgaria ((dec.), no. 52843/07, 20 January 2015).

21. The Government argued, next, that the applicant had not enjoyed family life in Bulgaria. They pointed out that he and Ms M. were not married and that they had formally been registered as living at different addresses in Sofia, and considered that that there was “no evidence whatsoever of the actual existence of close personal ties between them”. Moreover, the Government claimed that there was no obstacle to the applicant, Ms M. and their son settling as a family elsewhere.

22. As to the measures taken against the applicant, the Government considered that they had been lawful and justified, in particular because it had been “indisputable” that he had posed a threat to national security, and seeing that “the interests of national security prevailed over the applicant’s personal interests”. The Government were, in addition, of the view that the Supreme Administrative Court had conducted a “thorough and comprehensive” review of the allegations against the applicant, pointing out that he had had the possibility to contest the measures against him in adversarial proceedings and put forward his arguments and any evidence.

2. The applicant

23. The applicant contested the Government’s argument that his complaints were time-barred. He pointed out that, by the end of 2006 when the expulsion order against him had been issued, the Supreme Administrative Court had given numerous decisions accepting for examination applications for judicial review of similar expulsion orders based on national security grounds. This meant that the judicial review that he had sought had been a normal remedy, which he had had to exhaust.

24. The applicant pointed out in addition that he and Ms M. did constitute a family “in the most traditional sense of the word”, that they had a child, and that they had been living together prior to his expulsion from Bulgaria in 2006. To substantiate the latter point, the applicant submitted statements by his son and by two neighbours. The applicant pointed out that his application concerned in addition his right to private life. He had arrived in Bulgaria in 1995, at the age of 29, and had lived in the country for eleven years, establishing social connections and developing his business.

25. The applicant argued that the measures against him did not satisfy the requirement of lawfulness under Article 8 § 2 of the Convention. Lastly, he contended that he had not had at his disposal an effective remedy for his Article 8 complaints, in particular because the Supreme Administrative Court had not verified the executive’s allegations against him, thus rendering the judicial review it had exercised meaningless.

B. The Court’s assessment

1. Admissibility

26. The Court takes note of the Government’s argument that the application is time-barred (see paragraph 20 above). It reiterates in that connection that, in accordance with Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months of the final domestic decision. Normally, that period runs from the final decision in the process of exhaustion of domestic remedies, but where it is clear from the outset that the applicant has no effective remedy, the six-month period runs from the date on which the act complained of took place or the date on which the applicant was directly affected by or became aware of such an act (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002, and Varnava and Others v. Turkey [GC], nos. 16064/90 et al., § 157, ECHR 2009).

27. However, in the present case it cannot be said that the applicant had no domestic remedy at his disposal at the time when the expulsion order against him was issued, in November 2006. Even though judicial review of expulsion orders based on national security grounds was only expressly provided for several months later, in April 2007 (see paragraph 17 above), by the time the order concerning the applicant was issued the Supreme Administrative Court had already accepted that such orders were amenable to judicial review (see paragraph 16 above). The present case should thus be differentiated from Danawar, relied on by the Government (see paragraph 20 above), where the applicant had been expelled on the basis of an order issued in 2000, as indeed at that time it had been clear that he had had no effective remedy at his disposal. In the case at hand, the judicial review of the expulsion order sought by the applicant represented the normal process of exhaustion of domestic remedies, and accordingly the six-month time-limit started running after the end of the judicial-review proceedings on 19 March 2009 (see paragraph 14 above). Thus, the application, submitted on 18 September 2009, was lodged in good time.

28. The Court notes, next, that the application 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.

2. Merits

29. On the merits, the Court notes at the outset that the present application is similar to a number of earlier cases against Bulgaria concerning expulsion of aliens on alleged national security grounds (see, for example, C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008; Kaushal and Others v. Bulgaria, no. 1537/08, 2 September 2010; M. and Others v. Bulgaria, no. 41416/08, 26 July 2011; and Raza, cited above).

(a) Article 8 of the Convention

30. The Government disputed the applicant’s claim that he had enjoyed a genuine “family life” in Bulgaria with Ms M. They pointed out that the applicant and Ms M. were not married and were formally registered as living on different addresses (see paragraph 21 above). The applicant, for his part, claimed that the two of them had de facto been living together prior to his departure from Bulgaria, and constituted a family (see paragraph 24 above).

31. The Court, given the applicant’s claims that he and Ms M. lived together and constituted a genuine family, claims supported by statements of their son and of neighbours (see paragraph 24 above), is not convinced that the mere fact referred to by the Government that the two of them were formally registered at different addresses suffices to disprove these claims. It notes moreover that the applicant and Ms M. had a child together for whom they jointly cared, which shows that they were committed to each other to a degree sufficient to constitute a “family” within the meaning of Article 8 of the Convention. The applicant’s relationship with his son, who was nine years old at the time the applicant left Bulgaria, is also part of the “family life” the applicant enjoyed in Bulgaria prior to his departure (see, for example, Berrehab v. the Netherlands, 21 June 1988, § 21, Series A no. 138).

32. After the impugned order was adopted and the applicant was not permitted to enter Bulgaria, he settled in Ukraine, while Ms M. and his son remained in Bulgaria (see paragraph 9 above). There was thus State interference with the applicant’s right to family life (see Al-Nashif, § 115, cited above, and Lupsa v. Romania, no. 10337/04, §§ 26-7, ECHR 2006‑VII).

33. The applicant also claimed that the measures against him interfered with his right to private life, as he had lived in Bulgaria for eleven years prior to his departure and had developed social and economic connections there (see paragraph 24 above). In addition, in 2003 he was granted permanent resident status (see paragraph 6 above). The Court notes that he was thus a settled migrant and his removal from Bulgaria also amounted to an interference with his right to respect for his private life (see Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008).

34. The interference with the applicant’s rights 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.

35. As to the first of these requirements, namely that the interference should be “in accordance with the law”, the Court observes that, in the previous similar cases against Bulgaria, some of which are cited in paragraph 29 above, it found that the impugned expulsions ordered on alleged national security grounds did not meet Convention standards, as the relevant law, procedures and practice did not offer even a minimum degree of protection against arbitrariness. In particular, in C.G. and Others (cited above, §§ 42‑47), the Court found, first, that the national courts had allowed the executive to stretch the notion of national security beyond its natural meaning and, second, that those courts had not examined whether the executive had been able to demonstrate the existence of specific facts serving as a basis for its assessment that the first applicant presented a national security risk. The Court found, in addition, that the domestic courts had applied a formalistic approach and had left a governmental agency full and uncontrolled discretion to certify, with reference to little more than its own general statements, that an alien was a threat to national security and had to be expelled. As such “certifications” were considered to be beyond any meaningful judicial scrutiny, there was thus no safeguard against arbitrariness (see also Kaushal and Others, §§ 28-32, and M. and Others, § 98, both cited above; also Amie and Others v. Bulgaria, no. 58149/08, § 98, 12 February 2013).

36. The present case is very similar. The order for the applicant’s expulsion was based on declaratory statements that he had been involved in extortion, smuggling, arms deals and other criminal activities, and that he therefore represented a national security threat (see paragraph 8 above). Even though the document containing those statements, proposal no. B4923, referred to some factual grounds, it mentioned no evidence in their support. In addition, it has not been alleged that the applicant was ever charged with related offences by the Bulgarian authorities. Thus, the expulsion order appeared to be based on a purely internal assessment by the Ministry of the Interior, made on the basis of undisclosed evidence.

37. Furthermore, the Supreme Administrative Court dismissed the applicant’s application for judicial review of the expulsion order without engaging in any meaningful scrutiny of the executive’s allegations, stating merely that the impugned order did not breach the law (see paragraph 14 above).

38. Consequently, as in the earlier cases referred to previously, despite having the formal possibility of seeking judicial review of the impugned measures, the applicant did not enjoy the minimum degree of protection against arbitrariness inherent in the concept of lawfulness under the Convention. This entails that the interference with his rights to family and private life was not “in accordance with the law”, as required by Article 8 § 2.

39. In the light of this conclusion, the Court is not required to examine the remaining issues, which concern the existence of one or more legitimate aims and whether the impugned measures were necessary in a democratic society (see M. and Others, § 104, and Kaushal and Others, § 33, both cited above).

40. It follows that there has been a violation of Article 8 of the Convention.

(b) Article 13 of the Convention

41. In the previous similar cases, the Court found with regard to complaints under Article 13 of the Convention in conjunction with Article 8 that the proceedings for judicial review of the expulsion orders concerning the applicants had been deficient in two respects. Firstly, they had not involved meaningful scrutiny of the executive’s allegations. Secondly, the courts had not assessed 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, §§ 59-64, M. and Others, § 125, both cited above; also Madah and Others v. Bulgaria, no. 45237/08, § 39, 10 May 2012).

42. Similarly, in the present case the Court already noted that the Supreme Administrative Court had not carried out a proper examination of the executive’s assertion that the first applicant presented a national security risk (see paragraph 37 above). The Court also observes that the Supreme Administrative Court failed to conduct any meaningful analysis on the question of proportionality, merely stating that any restriction of fundamental rights was acceptable when it was justified on grounds related to national security (see paragraph 14 above). It follows that the judicial review proceedings in the present case did not secure to the applicant the effective domestic remedy which Article 13 requires in respect of his complaints regarding breach of his right to family and private life (see M. and Others, cited above, § 125). No other remedy has been suggested by the Government.

43. There has therefore been a violation of Article 13 of the Convention, taken in conjunction with Article 8.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. 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

45. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage, claiming that the violations of his rights and the separation of his family had caused him “significant emotional distress”.

46. The Government contested the claim, considering it excessive.

47. The Court is of the view that the applicant must have endured distress and frustration resulting from the arbitrary disruption of his family life. These were aggravated by the ineffectiveness of the procedure through which he tried to challenge his expulsion order. Having regard to the materials in its possession and ruling on an equitable basis as required by Article 41 of the Convention, the Court awards the applicant EUR 7,500 under the present head.

B. Costs and expenses

48. The applicant did not make a claim in respect of costs and expenses. Accordingly, the Court considers that there is no call to award him any sum under this head.

C. Default interest

49. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 8;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven hundred five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoNona Tsotsoria
              Deputy RegistrarPresident

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