C.G. AND OTHERS v. BULGARIA

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1365/07
by C.G. and Others
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 13 March 2007 as a Chamber composed of:

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 5 December 2006,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr C.G., is a Turkish national who was born in 1968. The second and the third applicants, Mrs T.H.G. and Ms T.C.G., Bulgarian nationals born in 1968 and 1996 and living in Plovdiv, Bulgaria, are his wife and daughter.

The applicants are represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

This is the applicants' second application with the Court. Their first application (no. 45654/05), which in part arose out of the same set of events, was declared inadmissible on 31 March 2006.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant moved to Bulgaria in 1992. On 9 April 1996 he married the second applicant there. Their daughter, the third applicant, was born in Bulgaria on 24 May 1996.

1. The first applicant's expulsion

On 8 June 2005 the Regional Director of Internal Affairs in Plovdiv made an order for the first applicant's expulsion. He also deprived him of the right to reside in Bulgaria and excluded him from its territory for a period of ten years, on the ground that he “present[ed] a serious threat to the national security and in view of the reasons set out in Proposal no. S‑6923/ 08.06.2005 of the head of the security department of the Plovdiv Regional Directorate of Internal Affairs”. The order relied on section 42(1) and (2) and section 42a(1) in conjunction with section 10(1)(1) and (1)(3) of the Aliens Act of 1998 (see below, Relevant domestic law and practice). No specific factual grounds were given, in accordance with section 46(3) of the Act. The order further provided that the first applicant was to be detained until it could be enforced. Finally, it stated that it was subject to appeal before the Minister of Internal Affairs, but not subject to judicial review, in line with section 46(2) of the Act, and that it was immediately enforceable, in accordance with section 44(4) of the Act.

At 6.30 a.m. on 9 June 2005 the first applicant was summoned to a police station in Plovdiv, where he was served with the order and detained with a view to his expulsion. He was deported to Turkey the same day, without being allowed to get in touch with his wife and daughter or a lawyer.

2. The proceedings against the first applicant's expulsion

(a) The appeal to the Minister of Internal Affairs

Once in Turkey, the first applicant retained a lawyer in Bulgaria and on 16 June 2005 appealed against the order to the Minister of Internal Affairs. He stated that had had an established family life in Bulgaria for years and averred that during his stay at the police station on 9 June 2005 he had not been informed why he was considered a national‑security threat. Nor had this become apparent from the order, which had merely referred to the legal grounds for its making. The first applicant further complained that he had not been acquainted with the proposal serving as a basis for the order. All of this amounted to lack of reasoning, which had been a breach of the rules of administrative procedure.

In a letter of 30 June 2005, sent to the first applicant's former address in Bulgaria, the head of the complaints department of the Ministry of Internal Affairs informed the first applicant that the Minister had rejected the appeal in a decision of 29 June 2005, because the impugned order had been made by a competent authority, in due form, in compliance with the applicable substantive and procedural rules, and in conformity with the aim of the law.

(b) The judicial review proceedings

On 20 July 2005 the first applicant sought judicial review of the Minister's order by the Supreme Administrative Court. He argued that the order had not been reasoned, which deprived him of any protection against arbitrariness, because he could not find out which of his actions had amounted to a threat to national security. He also argued that the measures against him had interfered with his family life. However, the authorities had disregarded this and had not examined whether a fair balance had been struck between his rights and the public interest, contrary to Article 8 of the Convention, which was part of the domestic law. In this connection, he relied on the Court's judgment in the case of Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002), which had led the Supreme Administrative Court to change its case‑law in this domain (see below, Relevant domestic law and practice).

On 10 August 2005 the Supreme Administrative Court informed the first applicant that the case had been sent to the Plovdiv Regional Court.

A hearing listed for 9 December 2005 failed to take place because the Plovdiv Regional Directorate of Internal Affairs had not received a copy of the application for judicial review.

The hearing was held on 24 February 2006. The court admitted in evidence Proposal no. S‑6923/08.06.2005, which had served as a basis for the order against the first applicant. It seems that the first applicant was not allowed to acquaint himself with this document.

In a judgment of 8 March 2006 the Plovdiv Regional Court dismissed the application. It started by holding that the prohibition on judicial review set out in section 46(2) of the Aliens Act of 1998 (see below, Relevant domestic law and practice) was contrary to the Convention and was thus to be disregarded. It relied on Al-Nashif (cited above) and the relevant case‑law of the Supreme Administrative Court. Examining the application on the merits, the court held:

“The coercive measures are grounded ... on the motive that the [first applicant] is a serious threat to national security, on the basis of the reasons set out in Proposal no. S‑6923/08.06.2005...

To uphold the impugned order, the Minister of Internal Affairs states that the evidence gathered clearly establishes that the [first applicant] is a member of a criminal gang dealing in illicit narcotic drugs, which, on the one hand, constitutes grounds under section 10(1)(3) of the [Aliens Act of 1998], and, on the other, is a prerequisite under which the administrative authority is bound to take coercive measures. By section 42 of the [Aliens Act of 1998], 'the expulsion of an alien is necessary if his or her presence in the country creates a serious threat to national security or public order'. Upon expulsion, the alien must also be deprived of the right to reside in the Republic of Bulgaria and be banned from entering it. The imposition of [these measures] is necessary in the cases set out in section 10 of the [Aliens Act of 1998]. The order points to the ground under section 10(1)(3), according to which 'an alien who is known to be a member of a criminal gang or organisation or to carry out terrorist activities, smuggling or illicit transactions with arms, explosives, ammunitions, strategic raw materials, goods and technologies having a possible double use, as well as illicit traffic of intoxicating or psychotropic substances or precursors, or raw materials for their production', namely that there is information that the [first applicant] has participated in the illicit traffic of intoxicating and psychotropic substances and precursors and raw materials for their production. This has been established from the enclosed secret (pursuant to section 25 and [Schedule 1], part 2, point 22 of the [Protection of Classified Information Act of 2002]) memorandum containing the proposal for the imposition of coercive measures, to which the impugned order refers. According to this proposal, the data comes from secret surveillance measures and operative sources gathered by the National Service for Combating Organised Crime in April 2005 and showing that [the first applicant] has acted as an intermediary in the delivery of narcotic drugs and maintains regular contacts with Bulgarian citizens who distribute narcotic drugs and intoxicating substances on the territory of the towns of Plovdiv and Asenovgrad.

The three measures imposed on the [first applicant] are based on section 42(2) of the [Aliens Act of 1998]. ... According to section 46(2)(3) of [that Act] in conjunction with section 15(3) of the [Administrative Procedure Act of 1979], such an order has to point only to the legal, but not the factual grounds for the imposition of the coercive measures. As may be seen from the order, it fully complies with the requirements of [these provisions].

There is no dispute as to the competence of the authority which has made the order. [The first applicant alleges] breaches of the rules of procedure, but none have been found by the court. Section 42 of the [Aliens Act of 1998] does not enunciate special rules of procedure... No procedural violations have been found in the making of the proposal for coercive measures secret, as from its last page it may be seen that it has been made on 7 June 2005 and has been made secret on the same day...

[The court will now examine t]he [first applicant]'s objections about the lack of factual grounds for the imposition of the measures. The legal grounds cited in the order require the availability of information about the facts set out in section 42 in conjunction with section 42a in conjunction with section 10(1)(3) of the [Aliens Act of 1998]. Concerning the [first applicant's] objections in this regard, it must be stressed that the [law speaks of] information about, not proof of these facts. The availability of proof would lead to different legal consequences for the [first applicant].

The impugned order imposes coercive measures, which, according to section 22 of the [Administrative Offences and Penalties Act of 1969], are used for pre‑empting and putting an end to administrative and other offences, as well as for pre‑empting and wiping out their harmful consequences.

The information has been gathered through the use of secret surveillance measures and through operative sources of the National Service for Combating Organised Crime, as may be seen from the proposal cited in the order. According to the definition of the [Special Surveillance Means Act of 1997], these are technical means (electronic and mechanical devices, as well as substances which are used for recording the activity of controlled persons and objects) and operative methods (surveillance, tapping, following, penetration, marking and checks of correspondence and computerised information, which are employed during the use of technical devices), used for the preparation of physical evidence – videotapes, audiotapes, photographs and marked objects. By section 3 of this Act, these may also be used for preventing offences... They are being used against persons who are suspected to prepare or perpetrate or to have perpetrated serious crimes. The evidence thus obtained is kept by the Ministry of Internal Affairs until the institution of a preliminary investigation or by the respective judicial authorities. An item which is not used for the preparation of evidence has to be destroyed.

The nature of the source of information which has led to the issuing of the impugned order makes it impossible to adduce further evidence relating to the facts. However, this by no means leads to the finding that the coercive measures were unlawful. Moreover, the [first applicant] does not dispute the facts; he only challenges the possibility to use the information about them as grounds for the coercive measures imposed. The [court] finds that the facts set out in the Proposal can serve as a basis for the application of section 42 in conjunction with section 42a in conjunction with section 10(1)(3) of the [Aliens Act of 1998]. In view of the foregoing, the [court] finds that the impugned order was in line with the requirements of the substantive law.

The [first applicant]'s last objection concerns the non-conformity of the impugned order with the aim of the law. He relies on his long-lasting family life in Bulgaria, his marriage to a Bulgarian citizen and the nine-year-old child born from this marriage (all facts which have been acknowledged by the parties and the court)...

However, all these circumstances bear no relation to the lawfulness of the order under section 42(1) and (2) of the [Aliens Act of 1998], and even less so to its conformity with the aims of the law, as this law provides for the restrictions of certain rights for the purpose of preventing the commission of offences.

In this context, the [first applicant]'s reliance on [Al‑Nashif (cited above)] is misplaced, as this case concerns the right to seek judicial review, which here is available to the [first applicant].”

On 28 March 2006 the first applicant appealed to the Supreme Administrative Court. He argued that the police had not adduced any evidence that he had done anything to put national security in jeopardy. It had only presented a document which recounted information whose source was unknown. The so-called proposal contained only general conclusions which were based on facts not made known to the court. This was problematic, as the court's task was to guarantee that the executive's discretion was not exercised in an arbitrary fashion. Moreover, there were no objective facts showing that the first applicant had committed wrongdoing. This had to be proved, not merely alleged. The first applicant further submitted that the impugned order had severely infringed his right to a family life, contrary to Article 8 of the Convention. He extensively relied on Al-Nashif (cited above) and Berrehab v. the Netherlands (judgment of 21 June 1988, Series A no. 138) and averred that the existing legal regime did not provide sufficient guarantees against arbitrariness. Moreover, the lower court had not examined the proportionality of the interference, contrary to the European Court of Human Rights' approach in all cases under Article 8 of the Convention. The impugned order had cut off the long‑lasting relationships with his wife and daughter. If there existed a suspicion that he had engaged in unlawful activities, it would have been more appropriate to prosecute and try him, which would imply the production of serious evidence of his alleged wrongdoing.

After holding a hearing on 12 September 2006, on 4 October 2006 the Supreme Administrative Court upheld the lower court's judgment. Its opinion read, as relevant:

“... [This court] finds that the conclusions of the first‑instance court as to the lawfulness of the impugned order were correct and well‑founded.

According to section 42(1) of the [Aliens Act of 1998], an alien's expulsion is necessary if his or her presence in the country puts national security or public order in serious jeopardy. Subsection 2 of that section provides that whenever [a person is expelled] his or her right to reside in the Republic of Bulgaria is also revoked and he or she is prohibited from entering the country.

By section 42a of the same Act, the prohibition to enter the country is imposed under the preconditions of section 10 [of the Act]. The impugned order of the director of the Plovdiv Regional Directorate of Internal Affairs states that the [first applicant] falls under points 1 and 3 of section 10 of the [Aliens Act of 1998], namely, that through his actions he has jeopardised the security and the interests of Bulgarian State or is known to have acted against the security of the country, or is known to have been a member of a criminal gang or organisation or to have carried out terrorist activities, smuggling or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies having possible a double use, as well as illicit traffic of intoxicating or psychotropic substances or precursors, or raw materials for their production.

It has been established in the case that [the first applicant] has acted as an intermediary for the delivery of narcotics and maintains regular contacts with Bulgarian citizens who distribute narcotics and intoxicating substances on the territory of the towns of Plovdiv and Asenovgrad.

The impugned order has been issued pursuant to proposal no. S–6923/08.06.2005 of the head of Plovdiv Regional Security Department, which contains data that the presence of the alien in the [Republic of Bulgaria] puts the national security in serious jeopardy.

The provisions of sections 42 and 42a of the [Aliens Act of 1998] are imperative. If the prerequisites of these texts are in place, the administrative authority is bound to use coercion and order expulsion and in the same time revoke the residence permit and prohibit the alien from entering the Republic of Bulgaria. The administrative authority has no discretion whether to make or not to make the order. As the law does not allow for exceptions, which may let [the authority not to make an order for expulsion], the expulsion is lawful, given the prerequisites for it.

The impugned order was made in accordance with the purpose of the law and in accordance with the [applicable] substantive and procedural rules. The administrative authority has elucidated the relevant facts and has specified the legal grounds for making the order. ...”

B. Relevant domestic law and practice

1. The Aliens Act of 1998 and the developments in its interpretation and application

By section 42(1) of the Aliens Act of 1998 („Закон за чужденците в Република България“), the expulsion of an alien is necessary when his or her presence in the country creates a serious threat for national security or public order. Subsection 2 of section 42 provides that expulsion is mandatorily accompanied by a revocation of the alien's residence permit and a ban on entering the country.

By section 42a(1) of the Act, a ban on entering the country must be ordered if the grounds under section 10 are in place. Section 10(1)(1) and (1)(3) of the Act define these grounds as respectively (i) the information that “through his or her actions the alien has jeopardised the security or the interests of the Bulgarian State or has acted against the country's security”, or that (ii) he or she is a “member of a criminal gang or organisation, or carries out terrorist activities, smuggling, or illicit transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies having a possible double use, as well as illicit traffic of intoxicating and psychotropic substances and precursors and raw materials for their production”.

Section 46(1) of the Act provides that the orders imposing coercive measures may be appealed before the Minister of Internal Affairs or the competent regional court.

By section 46(2) of the Act, the orders for revoking an alien's residence permit and for banning them from entering the country for the reasons set out in section 10(1)(1), or for their expulsion are not subject to judicial review. By section 46(3) of the Act, these orders do not indicate the factual grounds for imposing the respective coercive measure.

The relevant legal developments in the interpretation and application of the Act before 2002 are set out in paragraphs 71‑78 of the Court's judgment in the case of Al-Nashif (cited above).

Following this judgment, the Bulgarian Supreme Administrative Court changed its case‑law. In a number of judgments and decisions delivered during the period 2003‑06 it held, by reference to Al‑Nashif, that the ban on judicial review in section 46(2) of the Act was to be disregarded, as it contravened the Convention, and that expulsion orders relying on national security considerations were amenable to judicial review (реш. № 4332 от 8 май 2003 по адм. д. № 11004/2002 г.; реш. № 4473 от 12 май 2003 г. по адм. д. № 3408/2003 г.; опр. № 706 от 29 януари 2004 г. по адм. д. № 11313/2003 г.; опр. № 4883 от 28 май 2004 г. по адм. д. № 3572/2004 г.; опр. № 8910 от 1 ноември 2004 г. по адм. д. № 7722/2004 г.; опр. № 3146 от 11 април 2005 по адм. д. № 10378/2004 г.; опр. № 3148 от 11 април 2005 по адм. д. № 10379/2004 г.; опр. № 4675 от 25 май 2005 г. по адм. д. № 1560/2005 г.; опр. № 8131 от 18 юли 2006 г. по адм. д. № 6837/2006 г.).

2. The Protection of Classified Information Act of 2002 („Закон за защита на класифицираната информация“)

By section 25 of that Act, the information listed in Schedule No. 1 thereto, the unregulated access to which could jeopardise the national‑security, the defence, the foreign-policy or the constitutional interests of Bulgaria, is a State secret.

Point 22 of part 2 of Schedule No. 1 to the Act provides that such information is the one “gathered, checked and analysed by the security services and the law-enforcement agencies about persons suspected of subversive, terrorist or other unlawful activities targeted against the public order, the security, the defence, the independence, the territorial integrity or the international status of the State”.

3. Narcotic drugs offences

Article 354a § 1 of the Criminal Code of 1968 makes it an offence to produce, transform, acquire or hold narcotic drugs or their analogues with a view to distributing them, or to distribute them. The offence is aggravated if committed by a member of a criminal gang (Articles 354a § 2 (1) of the Code). Article 354b § 1 of the Code makes it an offence to incite or abet another to use narcotic drugs or their analogues. It is also an offence to be a founder, leader or member of a criminal gang having the intent to commit offences under Articles 354a § 1 or 354b § 1 of the Code (Article 321 § 3 of the Code).

COMPLAINTS

1. All three applicants complain under Article 8 of the Convention that the first applicant's expulsion amounted to an infringement of their right for respect of their family life. Before his sudden expulsion the first applicant had lived in Bulgaria for thirteen years and his wife and daughter were Bulgarian citizens. The authorities did not bother to assess the proportionality of the expulsion, which had a drastic effect on his family life.

2. The applicants complain under Article 13 in conjunction with Article 8 of the Convention that in the judicial review proceedings the courts did not independently examine the truth of the allegations made against the first applicant by the Ministry of Internal Affairs and did not assess the necessity of his expulsion.

3. The fist applicant complains under Article 1 §§ 1 and 2 of Protocol No. 7 that his expulsion was not in accordance with law on account of the vagueness of the reasons given in the expulsion order and the failure of the authorities to provide a genuine factual basis for his expulsion in the judicial review proceedings.

4. The first applicant complains under Article 5 § 1 (f) of the Convention that that his detention on 9 June 2005 was not lawful, as the law concerning expulsion on national-security grounds lacked clarity and did not provide sufficient safeguards against abuse.

5. The first applicant complains under Article 5 § 2 of the Convention that he was not informed of the reasons for his detention, as the order for his expulsion did not point to the factual grounds for deeming that he was a national-security risk

6. The first applicant complains under Article 5 § 4 of the Convention that his detention on 9 June 2005 was not subject to judicial review.

7. The first applicant complains under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation for the alleged breaches of the preceding paragraphs of that Article.

8. The first applicant complains under Article 6 § 1 of the Convention that the judicial review proceedings were unreasonably long. He further complains that he did not have effective access to a court to challenge his expulsion, which in his view amounted to a “criminal charge” within the meaning of this provision, and that the proceedings were not fair, because the Supreme Administrative Court did not independently examine the truth of the allegations made by the Ministry of Internal Affairs and the necessity of his expulsion.

9. The first applicant complains under Article 6 § 2 of the Convention that, having been expelled on the basis of a vague law and in the absence of effective protection against that, he was in fact declared guilty of an offence.

10. The first applicant complains under Article 7 § 1 of the Convention that he was held guilty and subjected to a penalty for a vaguely defined wrongdoing, which was moreover not characterised as a criminal offence by the national law.

11. The first applicant complains under Article 13 in conjunction with Article 6 § 1 of the Convention that he did not have effective remedies against the unreasonable length and the unfairness of the judicial review proceedings.

12. The first applicant complains under Article 13 of the Convention in conjunction with Article 5 §§ 1, 2 and 4, Article 6 § 2 and Article 7 § 1 of the Convention and Article 1 of Protocol No. 7 that he did not have effective remedies against these alleged violations of the Convention and Protocol No. 7.

13. The first applicant complains under Article 8 of the Convention that before being expelled he was subjected to secret surveillance measures. He submits that these measures were not in accordance with the law, within the meaning of paragraph 2 of this Article.

THE LAW

A. Complaints under Articles 8 and 13 of the Convention and under Article 1 of Protocol No. 7 relating to the first applicant's expulsion (complaints nos. 1–3)

The applicants complain under Article 8 of the Convention about the interference with their family life on account of the first applicant's expulsion and under Article 13 of the Convention about the alleged lack of effective remedies in this respect. They also alleged that the expulsion had been made in breach of Article 1 of Protocol No. 7.

These provisions read, as relevant:

Article 8

“1. Everyone has the right to respect for his ... family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

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.”

Article 1 of Protocol No. 7

“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a) to submit reasons against his expulsion,

(b) to have his case reviewed, and

(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”

The Court notes that such complaints were raised in the applicants' first application (no. 45654/05), which was declared inadmissible on 31 March 2006. However, the domestic proceedings directly relating to these complaints ended later, on 4 October 2006, when the Supreme Administrative Court gave a final judgment against the first applicant. This amounts to “relevant new information” which alters the factual basis of the complaints. They are therefore not “substantially the same as a matter that has already been examined by the Court”, within the meaning of Article 35 § 3 of the Convention, and cannot be declared inadmissible on that ground (see A.D. v. the Netherlands, no. 21962/93, Commission decision of 11 January 1994, Decisions and Reports. 76‑A, p. 157, at p. 161).

The Court further considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Complaints under Articles 5, 6, 7 and 13 of the Convention and under Article 1 of Protocol No. 7 relating to the applicant's detention and the proceedings against his expulsion (complaints nos. 4–12)

Article 5 of the Convention provides, as relevant:

“1. 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 or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

4. 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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 6 §§ 1 and 2 of the Convention provide, as relevant:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 7 § 1 of the Convention provides, as relevant:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ...”

The text of Article 13 of the Convention and of Article 1 of Protocol No. 7 has been set out above.

1. The Court notes that the complaints under Article 5 §§ 1, 2, 4 and 5 are identical to those already raised in the applicants' prior application (no. 45654/05), which was declared inadmissible on 31 March 2006. The present application does not contain any “relevant new information” relating to these complaints. They are therefore “substantially the same as a matter that has already been examined by the Court”, within the meaning of Article 35 § 3 of the Convention, and must be rejected in accordance with Article 35 § 4 thereof (see Dinç v. Turkey (dec.), no. 42437/98, 22 November 2001).

2. As regards the complaints under Article 6 §§ 1 and 2 and Article 7 of the Convention, the Court notes that the decisions regarding the entry, stay and deportation of aliens do not concern the determination of their “civil rights or obligations” or of a “criminal charge against them” (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000‑X; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 82, ECHR 2005‑I; and Lupsa v. Romania, no. 10337/04, § 63, 8 June 2006). For the same reason it cannot be said that the impugned measures constituted a “criminal” matter within the meaning of Article 7 § 1. It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. Concerning the complaints under Article 13 of the Convention, the Court notes that above it found that the complaints in respect of which the first applicant alleges to have been deprived of an effective remedy are, save for the one under Article 1 of Protocol No. 7, inadmissible. They are therefore not arguable within the meaning of its case‑law. It follows that Article 13 of the Convention is not applicable, in so far as invoked in conjunction with Articles 5, 6 and 7 thereof. The first applicant's complaints under this provision are accordingly incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. In so far as the first applicant relies on Article 13 in relation with his complaint under Article 1 of Protocol No. 7, the Court notes that this latter provision provides specific procedural guarantees in respect of the expulsion of aliens, which are on top of those under Article 13 of the Convention taken together with Articles 3 and 8 thereof (see Maaouia, § 37; Al-Nashif, § 133; and Lupsa, § 51, all cited above). It follows that there is no need to examine separately the complaint under Article 13 of the Convention in conjunction with Article 1 of Protocol No. 7.

C. Complaint under Article 8 of the Convention about the alleged use of secret surveillance measures against the first applicant (complaint no. 13)

Article 8 of the Convention provides, as relevant:

“1. Everyone has the right to respect for his private ... 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.”

The Court notes that, according to his allegations, the first applicant was subjected to secret surveillance measures before his expulsion on 9 June 2005. He learned about that at the latest between 8 March 2006, when the Plovdiv Regional Court's gave its judgment, in which reference was made to these measures, and 28 March 2006, when the first applicant appealed against this judgment. The proceedings against the expulsion were not a remedy capable of providing redress for the alleged infringement of Article 8 stemming from the use of secret surveillance measures (see, mutatis mutandis, Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000‑V). Assuming the lack of other remedies, the Court considers that the six‑month time‑limit under Article 35 § 1 of the Convention started to run at the latest on 28 March 2006. However, the application was lodged with the Court on 5 December 2006, more than six months after that.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the interference with the applicants' family life (complaint no. 1), the alleged lack of effective remedies in this respect (complaint no. 2), and the lawfulness of the first applicant's expulsion (complaint no. 3);

Declares the remainder of the application inadmissible.

Claudia WesterdiekPeer Lorenzen
RegistrarPresident

Full & Egal Universal Law Academy