CASE OF MARZOUKI AND OTHERS v. BULGARIA

FIFTH SECTION

CASE OF MARZOUKI AND OTHERS v. BULGARIA

(Application no. 48636/19)

JUDGMENT
 

STRASBOURG

27 February 2025

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

In the case of Marzouki and Others v. Bulgaria,

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

 Stéphanie Mourou-Vikström, President,
 Gilberto Felici,
 Kateřina Šimáčková, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 48636/19) 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”) on 5 September 2019 by a Tunisian and two Bulgarian nationals, whose relevant details are listed in the appended table (“the applicants”); the applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms D. Kmetova-Mehmed, lawyers practising in Plovdiv;

the decision to give notice of the application to the Bulgarian Government (“the Government”), represented by their Agent, Ms R. Nikolova from the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 30 January 2025,

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

SUBJECT MATTER OF THE CASE

1.  The first applicant (see the appendix) is a Tunisian national, and the second and third applicants – his daughter and the child’s mother – are Bulgarian nationals. The case concerns the first applicant’s removal from Bulgaria where he had had his permanent residence, and his separation from the two other applicants.

2.  In the beginning of 2018, the first applicant travelled to Serbia. Upon his return on 1 February 2018, he was refused entry into Bulgaria, and was given a standard refusal form. Two lines were checked in that document: one of them read “a person for whom an alert has been issued for the purposes of refusing entry”, and the other one referred to a person who “is considered to be a threat to public order, internal security, public health or international relations”.

3.  Through a legal representative the first applicant applied for the judicial review of the above refusal. In the ensuing proceedings the border police explained that it had acted upon a decision of the State Agency for National Security (hereinafter “the SANS”) of 1 February 2018, imposing on the first applicant a five-year entry ban on the ground that he had posed a national security threat. The refusal of entry was upheld in a judgment of the Sofia Region Administrative Court of 29 October 2018, on the ground that the border police had been bound to make it after the decision of the SANS.

4.  The decision of the SANS was served on the first applicant’s representative on 31 July 2018; he had requested a copy after learning about it in the above-mentioned proceedings. The decision did not contain specific reasoning to justify the conclusion that the applicant posed a threat to national security, referring instead of that to a classified document named “Proposal”. That Proposal has been declassified in the meantime and has been submitted by the Government (see below).

5.  After receiving a copy of the SANS decision, the first applicant’s representative applied for judicial review, but the application was declared time-barred by the Supreme Administrative Court in a final decision of 6 March 2019. It was found that the fourteen-day time-limit to contest the decision had started to run on 1 February 2018, when the applicant had been “orally informed” of it; this finding apparently referred to the standard refusal form given to the applicant at the border (see paragraph 2 above). According to the Supreme Administrative Court, the applicant had been validly informed of the SANS decision in that manner, in accordance with Article 61 § 2 of the Code of Administrative Procedure. As worded at the time, that provision allowed oral notification of an administrative decision to the interested parties (see more in paragraph 24 below).

6.  The applicants complained that the removal of the first of them from the territory of Bulgaria had been unjustified and had disrupted their family life together. They complained in addition under Article 13 of the Convention in conjunction with Article 8 of the lack of effective domestic remedies.

THE COURT’S ASSESSMENT

7.  The Government had doubts as to whether the third applicant had validly signed on her own behalf and on behalf of her daughter the authority form submitted with the application form, seeing that the signature seemed different from the one on her identity card. However, the Court accepts in that regard the third applicant’s notarised declaration submitted in response, in the sense that she had indeed signed the authority form.

8.  The Government argued that the applicants had not enjoyed “family life” within the meaning of Article 8. The argument was based on the factual findings in the Proposal referred to in paragraph 4 above. According to that document, after arriving in Bulgaria in 2006 and in order to obtain a residence permit, the first applicant had married another Bulgarian woman, whom he had never divorced, despite the marriage being fictitious. He had never lived with the second and third applicants, and had not been interested in his child, seeing that she was a girl, and he was a conservative Muslim. After the child’s birth in 2010 he had initially refused to recognise her, until the mother had agreed to change her name to a Muslim one. He had never contributed financially to the second applicant’s upbringing. The third applicant had been living with her parents. Her family had a negative opinion of the first applicant and did not wish to communicate with him. At some point the first applicant had become engaged to another woman in Tunisia, whom he had intended to bring to Bulgaria.

9.  In their initial application the applicants stated that the first and third of them had “de facto cohabited”. After the Government made their submissions above, they explained that the first and third applicants had met in 2009, but had separated several months later, when the third applicant had already been pregnant. They had gotten back together in 2012. In their words, they had had “difficult periods of separation”. They had lived together “for 5-6 months” in 2009 and at all times had shared “mutual respect”. The first applicant had attempted to convince his official wife to agree to divorce, but she had asked him to pay 3,000 euros (EUR). The stories about an engagement with another woman in Tunisia had been lies, told to the third applicants by people who did not like him. As to the second applicant, ever since her birth in 2010 the first applicant had been present in her life and had contributed financially to her upbringing. Their father-daughter connection had continued even after his departure from Bulgaria, and the second applicant had visited Tunisia in 2023. In support of the latter statements the applicants submitted photos, showing the first and second applicants together – in Bulgaria before 2018 and in Tunisia in 2023.

10.  The Court has held that the existence or non-existence of “family life” within the meaning of Article 8 of the Convention is a question of fact depending upon the real existence in practice of close personal ties (see, among other authorities, L. v. the Netherlands, no. 45582/99, § 36, ECHR 2004-IV). The notion of “family” in Article 8 concerns marriage-based relationships, and also other de facto “family ties” where the parties are living together outside marriage or where other factors demonstrate that the relationship had sufficient constancy (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017).

11.  In the case at hand, the Court is not satisfied that the first and third applicants had “family life” together, justifying the application of Article 8. It notes the allegations of the SANS cited by the Government (see paragraph 8 above), in particular that the two applicants had not lived together, that the first applicant was officially married to another woman he had never divorced, and that he had been engaged to another woman in Tunisia. Even though it cannot consider these claims sufficiently proven, it also takes note of the applicants’ own explanations. According to them, the first and third applicant had lived together only for “5-6 months” in 2009 and, while allegedly getting back together in 2012, had had “difficult periods of separation”. What they shared was only “mutual respect” (see paragraph 9 above). It is also obvious that, whatever it was, their relationship was not easy, seeing, for instance, their disagreement about the second applicant’s name (see paragraph 8 above). It does not stem from the above considerations that the two applicants had a relationship of a “sufficient constancy” (see paragraph 10 above), that they were together in the beginning of 2018 when the first applicant had to leave Bulgaria, and that his departure led to the separation of a de facto family unit they had created.

12.  However, the Court is satisfied that “family life” existed between the first and second applicants, despite the first and third applicants’ apparent separation. The explanations and the photos submitted by the applicants (see paragraph 9 above) are sufficient to show that by 2018, and after the first applicant’s departure from Bulgaria, there existed a father-daughter bond.

13.  Consequently, the Court concludes that the protection under Article 8, and by extension under Article 13 of the Convention, applied to the relationship between the first and second applicants, who had, and appear to have still, “family life” together, but not to any relationship that might have existed between the first and third applicants at the time of the first applicant’s departure. This means that the third applicant’s complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

14.  The Government argued in addition that the applicants had abused their right to individual application, seeing that in the application form they had submitted untrue information, namely that they had “de facto cohabited” (see paragraph 9 above).

15.  However, the Court does not view the applicants’ statement as an attempt to mislead the Court by presenting false information, but as an exaggeration, part of their argument about the existence of “family life”. Such contentious submissions cannot in themselves be regarded as an abuse of the right of individual application (see Hoti v. Croatia, no. 63311/14, § 92, 26 April 2018, with further references).

16.  Lastly, the Government urged the Court to dismiss the application for non-exhaustion of domestic remedies. They referred, first, to the first applicant’s failure to appeal against the Sofia Region Administrative Court’s judgment of 29 October 2018 (see paragraph 3 above in fine). In that regard the Court agrees with the applicants’ explanations that such an appeal could not represent an effective remedy, after it became clear that the border police had acted pursuant to an order from the SANS and had been bound to issue the disputed refusal of entry.

17.  The Government argued further that the first applicant had failed to duly apply for the judicial review of the SANS decision of 1 February 2018, seeing that his application had been declared time-barred (see paragraph 5 above). That latter objection raises the same issues as the merits of the case, namely whether the applicants were afforded minimum protection from arbitrariness and a fair chance to dispute the allegations of the SANS. Accordingly, the Court joins that objection to the merits.

18.  The Court notes finally that the complaints of the first and second applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

19.  The present application is similar to a number of earlier cases against Bulgaria concerning the 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; Gapaev and Others v. Bulgaria [Committee], no. 41887/09, 1 June 2017; Bou Hassoun and Others v. Bulgaria [Committee], no. 59066/16, 6 October 2020).

20.  In the case, the Government pointed out that the SANS’s Proposal (see paragraph 4 above) described the first applicant as an Islamist extremist, susceptible to committing terrorist acts on the territory of Bulgaria. The applicants considered these allegations completely unsubstantiated.

21.  The Court found above that the first and second applicants had had “family life” in Bulgaria, and finds in addition that the measures leading to their separation represented an interference with their rights under Article 8 of the Convention.

22.  The first requirement of Article 8 § 2 of the Convention is for such interference to be “in accordance with the law”. In the previous similar cases the Court found a violation with regard to that requirement, on the ground that the applicants had not been offered sufficient protection from arbitrariness, since they had not been given a meaningful chance of contesting the security services’ claims that they posed a national security threat. On the same grounds the Court also found a violation of Article 13 of the Convention.

23.  In the previous cases the problem had stemmed from the approach of the national courts, who had accepted unconditionally the services’ allegations about the applicants. In the present case, the question is whether the first applicant was given at all any meaningful chance to have his application for judicial review of the SANS decision of 1 February 2018 examined.

24.  When finding such examination time-barred, the Supreme Administrative Court relied on Article 61 § 2 of the Code of Administrative Procedure (see paragraph 6 above). This provision has in the meantime been repealed, and it is now provided, in Article 18a of the same Code, that oral notification of an administrative decision has to be certified in a written manner, while the addressee is always entitled to ask for a paper copy. The applicants submitted documents showing that the previous provision applied to the first applicant had been criticised by the European Commission as contrary to the principle of good administration.

25.  The Court cannot accept that the standard refusal form given to the first applicant at the border, containing general statements and not mentioning the SANS decision of 1 February 2018 (see paragraph 2 above), could be equated to an effective notification of that decision, allowing the applicant to contest it in a meaningful manner and within the time-limits provided for under domestic law. It is evident that the applicant’s representative was effectively apprised of the impugned decision during the subsequent proceedings against the border police (see paragraph 3 above), and his applying for the decision’s judicial review only after receiving a copy (see paragraphs 4-5 above) is an adequate and reasonable step.

26.  For the reasons above, the Court concludes that the first applicant was not given a fair chance of disputing the allegations made against him and serving as a basis for his removal from Bulgaria. He and his daughter were not therefore offered minimum guarantees against arbitrariness, as required in the Court’s case-law.

27.  On this basis the Court dismisses the Government’s objection for non‑exhaustion of domestic remedies, which it previously joined to the merits (see paragraph 17 above).

28.  The above is sufficient for the Court to find a violation of Article 8 of the Convention, as the interference with the first and second applicants’ right to family life was not “in accordance with the law”. In view of the considerations above the Court also finds a violation of Article 13 taken in conjunction with Article 8.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  The first and second applicants claimed 40,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,940 for the costs and expenses incurred before the Court, namely for legal representation, postage, translation and office expenses.

30.  The Government contested the claims as excessive.

31.  The Court awards each of the first and the second applicants EUR 3,150 in respect of non-pecuniary damage, plus any tax that may be chargeable.

32.  Having regard to the circumstances of the case and its repetitive character, the Court considers it reasonable to award EUR 3,000 covering costs under all heads, plus any tax that may be chargeable to the applicants. As the applicants have requested, EUR 1,200 of this is to be paid to them, and the remaining EUR 1,800 is to be transferred to the bank account of their representatives’ law firm.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the first and second applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 3,150 (three thousand one hundred and fifty euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,000 (three thousand euros) jointly to the two applicants, plus any tax that may be chargeable to them, in respect of costs and expenses, 1,800 (one thousand eight hundred euros) of which is to be paid directly to the law firm of the applicants’ legal representatives;

(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;

Done in English, and notified in writing on 27 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President

APPENDIX

List of applicants:

No.

Applicant’s Name

Year of birth

Nationality

1.

Mohamed Nabil MARZOUKI

1981

Tunisian

2.

Mariam Mohamed Nabil MARZOUKI

2010

Bulgarian

3.

Yana Dimitrova YANKOVA

1976

Bulgarian