FOURTH SECTION
DECISION
Application no. 52843/07
Abdul Madjid Mohamed DANAWAR and others
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 20 January 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 6 November 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr Abdul Madjid Mohamed Danawar, is a Syrian national, born in 1968. The second and third applicants, Mrs Irina Danawar and Ms Eleonora Danawar, are Bulgarian nationals, born respectively in 1973 and 1996. They were represented by Mr Y. Grozev and Mrs N. Dobreva, lawyers practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1) The orders for the first applicant’s expulsion
3. The first applicant settled in Bulgaria in 1990. He graduated and started practising as a doctor. In 1995 the first and second applicants married. Their daughter, the third applicant, was born in 1996. On 1 November 1995 the first applicant was granted permanent residence in Bulgaria.
4. On 11 and 12 August 1999 the authorities, who suspected the first applicant of participating in organised drug trafficking, conducted a search and seizure operation in his flat.
5. On 17 February 2000 the head of the passports department at the National Police Service issued an order depriving the first applicant of the right to reside in Bulgaria. The order relied on the reasons set out in proposal no. 533/10.02.2000, namely that the first applicant had endangered national security and that there was information that he was a member of a criminal group and had committed crimes with intent. No factual grounds were given. The order further stated that it was not subject to judicial review.
6. On 13 March 2000 the director of the District Police Department in Stara Zagora issued an order depriving the first applicant of the right to enter the country for a period of ten years.
7. On 1 November 2000 the first applicant was arrested pursuant to the orders for his expulsion and prohibition on entering the country. On 3 November 2000 the head of the passports department at the National Police Service ordered the first applicant’s expulsion. The order stated that it was not subject to judicial review. Again, no factual grounds were given. The decision also ordered that the applicant’s detention pending removal.
8. In December 2000 the first applicant was deported to Syria.
2) Judicial review proceedings
9. The order of 17 February 2000 depriving the first applicant of his right to reside in the country and the order of 3 November 2000 for his expulsion were never officially served on the applicant. The second applicant obtained a copy of the expulsion order in December 2002.
10. On 26 May 2003 the first and second applicants sought judicial review in the Sofia City Court of the orders depriving the first applicant of his right to reside in the country and for his expulsion, stating that the impugned measures were arbitrary and amounted to unjustified interference with the applicants’ right to respect for their private and family life.
11. In a decision of 23 March 2004 the Supreme Administrative Court discontinued the proceedings in respect of the second applicant finding that none of her rights had been at stake.
12. In a decision of 14 June 2004 the Sofia City Court discontinued the proceedings in respect of the first applicant, finding that the orders had not been subject to judicial review either at the time they had been issued or at the time the first applicant had sought judicial review. On appeal, in a decision of 1 November 2004 the Supreme Administrative Court quashed the lower court’s decision and remitted the case to the Sofia City Court for a fresh examination. The court held that although the Aliens Act provided that expulsion orders issued on national security grounds were not subject to judicial review, following the Court’s judgment in Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002) such appeals had to be examined by the courts.
13. In a judgment of 12 May 2006 the Sofia City Court dismissed the appeal. It held that the application had been submitted in time because there was no indication whatsoever that the orders had been officially served on the first applicant and therefore the time-limit for seeking judicial review had not started to run. As to the merits of the application, the court found, on the basis of the facts established in proposal no. 533/10.02.2000 which stated that since 1996 the first applicant had been involved in heroin trafficking from Bulgaria to Greece, that the orders were lawful. The court also found the first applicant’s statements regarding his marital status and links with the country irrelevant.
14. The first applicant appealed in cassation. In a final judgment of 20 June 2007 the Supreme Administrative Court upheld the Sofia City Court’s judgment.
15. On an unspecified date the applicants sought judicial review of the order of 13 March 2000, which prohibited the first applicant from entering the country for a period of ten years. In a final judgment of 8 October 2009 the Supreme Administrative Court declared the order null and void, holding that at the time at which it was issued the administrative authority did not have power to issue such an order.
3) Further developments
16. Following his expulsion in December 2000, the first applicant settled in Syria. In 2003 the second and third applicants briefly visited him. In August 2005 they moved to Syria in order to permanently settle there. In June 2008 the second and third applicants returned to Bulgaria and in August 2009 they visited Syria on another occasion. In September 2009 the second applicant returned to Bulgaria while the child remained in Syria with her father. On 7 February 2011 the first applicant returned to Bulgaria for a few days.
B. Relevant domestic law and practice
17. Section 42(1) of the Aliens Act 1998 provides for the expulsion of aliens where their presence in the country poses a serious threat to national security or public order. Section 44(4)(3) provides that expulsion orders are immediately enforceable.
18. Section 46(2), as in force until 10 April 2007, provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review. Following the Court’s judgment in Al-Nashif v. Bulgaria (cited above), in which the Court found the above regulatory arrangements contrary to Articles 8 and 13 of the Convention, the Supreme Administrative Court departed from its previous case-law. In a number of judgments and decisions given between 2003 and 2006 it held, with reference to Al-Nashif, that the provision in section 46(2) debarring applicants from seeking judicial review was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security grounds were amenable to judicial review.
19. Section 46(2) was amended with effect from 10 April 2007 and now provides that an expulsion order may be challenged before the Supreme Administrative Court, whose judgment is final.
THE LAW
20. The applicants complained of the expulsion of the first applicant in December 2000, of the inadequate judicial review and the excessive length of the ensuing judicial proceedings. They relied on Articles 8 and 13 of the Convention, which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life ....
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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.”
21. The Government stated that the complaints were out of time because the expulsion had taken place in 2000 whereas the applicants had lodged their application with the Court in 2007. They also stated that the applicants could not be considered victims of the alleged violation of Article 8 because their rights had not been adversely affected as the family had reunited in 2005. The Government further maintained that the applicants had not suffered a significant disadvantage as they had regularly seen each other after the first applicant’s expulsion.
22. The applicants submitted in reply that the impugned orders had not been officially served on them, so they could not have initiated proceedings before 2003 and the proceedings had lasted until 2007. They stated that they continued to be victims of the alleged violation because no national authority had acknowledged either expressly or in substance the alleged violations of the Convention or provided redress. They further stated that the repercussions on their family life were very serious and they had in fact suffered a significant disadvantage.
23. The Court reiterates 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. The purpose of the six-month time-limit is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, among other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I).
24. Normally, the six month period runs from the final decision in the process of exhaustion of domestic remedies. 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 or had knowledge of its adverse effects (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002; Varnava and Others v. Turkey [GC], nos. 16064/90 and others, § 157, ECHR 2009).
25. In the present case, the decisions depriving the first applicant of the right to reside in Bulgaria, ordering his expulsion and banning him from entering the country were not subject to judicial review either at the time they were issued between February and November 2000 or at the time of the first applicant’s expulsion in December 2000. The time-limit set out in Article 35 § 1 of the Convention therefore started to run at the latest when the first applicant was removed from the country in December 2000 and came to an end six months later, in June 2001. The fact that subsequently, almost two years later, the first applicant introduced a legal challenge against the orders does not alter that conclusion.
26. It follows that the application 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,
Declares the application inadmissible.
Done in English and notified in writing on 12 February 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy