Communicated on 14 December 2015
FIFTH SECTION
Application no. 41887/09
Ruslan Eldarovich GAPAEV and others
against Bulgaria
lodged on 11 June 2009
STATEMENT OF FACTS
The applicants, Mr Ruslan Eldarovich Gapaev, Ms Radima Pashaevna Bashtarova, Mr Nuri Ruslanovich Gapaev, Ms Sofiya Ruslanovna Gapaeva and Ms Samira Ruslanovna Gapaeva, are Russian nationals who were born in 1970, 1973, 1999, 2001 and 2007 respectively. At the time of submission of the application the first applicant was detained at a detention facility of the Ministry of the Internal Affairs, and the remaining applicants lived in Sofia. The applicants were represented before the Court by Ms Galya Galabova, lawyer practicing in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first two applicants, a married couple, arrived in Bulgaria in 1997. Their three children, the remaining applicants, were born in Bulgaria in 1999, 2001 and 2007 respectively. All members of the family were granted permanent resident permits. In 2005 the first applicant bought a flat in Sofia, where the family lived.
On 29 May 2008 the head of the Ministry of Internal Affairs’ National Security Service issued an order withdrawing Mr Gapaev’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 were not indicated; it was merely noted that the order was based on “proposal no. B849”.
Although that latter internal document has not been submitted by the applicants, the claims made in it were subsequently summarized by the Supreme Administrative Court in the proceedings described below. The document apparently stated that Mr Gapaev was the leader of an international terrorist group, working towards the aiding and financing of Chechen extremist and separatist organisations. It also claimed that he was being searched on the territory of the Russian Federation, that he had been implicated in extortion, drug trafficking, smuggling and other criminal activities, and that his actions lowered the prestige and the interests of the Bulgarian State.
On an unspecified date Mr Gapaev applied for judicial review of the expulsion order. The case, heard by the Supreme Administrative Court, was classified, and the applicants only submit an excerpt of the judgment given. Apparently, the first applicant was informed of the factual claims made in the proposal referred to above, because he submitted evidence aiming to refute some of them. In particular, he presented certificates issued by the Bulgarian and the Russian authorities stating that he had no convictions in the two countries, and explained that in February 2008 he had travelled to Russia, where, as he claimed, he would have been arrested had he indeed been searched by the authorities.
In a final judgment of 20 December 2008 the Supreme Administrative Court dismissed the application for judicial review. After summarizing the claims made in proposal no. B849, it held that it was bound by them as they were contained in “an official document attesting of facts”. Thus, in its view
“it should be concluded that the presence and the activity of the [first applicant] amount to a serious threat to national security and to the international prestige of the Republic of Bulgaria.”
It is unclear whether, following the proceedings above, the first applicant has actually been expelled. From 10 September 2008 to an unspecified date he was placed in detention pending expulsion.
B. Relevant domestic law and practice
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).
COMPLAINTS
1. The applicants complain under Article 8 of the Convention that the first applicant’s expulsion from Bulgaria, which they consider arbitrary, would disrupt their settled family life there.
2. The applicants also complain, relying on Articles 6 and 13 of the Convention, that they had at their disposal no effective remedy to protect their right to family life. They point out that the Supreme Administrative Court failed to carry out any meaningful review of the executive’s claims that the first applicant was involved in unlawful activities and represented a threat to national security, and that it failed to take into account the expulsion’s consequences for his family.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention, on account of the order for the first applicant’s expulsion (see, for example, Raza v. Bulgaria, no. 31465/08, § 43-56, 11 February 2010, and Amie and Others v. Bulgaria, no. 58149/08, §§ 89-102, 12 February 2013)?
2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention (see, for example, Kaushal and Others v. Bulgaria, no. 1537/08, §§ 35-43, 2 September 2010)?
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