FOURTH SECTION
DECISION
Application no. 28787/11
Eptistam Ahmed KERIM and others
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 27 March 2012 as a Committee composed of:
George Nicolaou, President,
Ledi Bianku,
Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 May 2011,
Having regard to the decision of 7 February 2012 to lift the interim measures under Rule 39 of the Rules of Court;
Having regard to the parties observations;
Having deliberated, decides as follows:
THE FACTS
The applicants are Ms Eptistam Ahmed Kerim (the first applicant), born in 1957, and her two children, Ms Shilan Azad Baqi (the second applicant), born in 1998 and Mr Omar Azad Baqi (the third applicant), born in 1987. They are Iraqi nationals and were represented before the Court by Ms Valeria Ilareva, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 December 2010 the applicants were found hidden in a truck which had entered Bulgaria from Greece. They had lived in Greece illegally for an unspecified period after having arrived there from Iraq through Turkey.
It appears that on 15 and 16 December 2010 the applicants were held in the vicinity of Gotse Deltchev, a town close to the border. They had access to an interpreter. They were then transferred to Sofia and detained at the Centre for Detention of Aliens near Sofia.
They did not appeal against their detention, although they could have done so within the statutory three-day time-limit.
On 16 December 2010 the border police issued orders for the applicants’ removal to Greece, on the grounds that they had illegally entered Bulgaria from Greece. The first and the second applicants appealed. By judgment of 24 February 2011 of the Smolyan Administrative Court the orders were upheld as being lawful.
On or about 16 December 2010 the applicants made a request to the State Agency for Refugees (SAR) for protection under the Asylum and Refugees Act. The SAR did not register the applications for protection and did not process them. On 9 February 2011 each of the applicants, represented by a lawyer, instituted separate proceedings before the Sofia City Administrative Court, seeking orders to compel the SAR to process their applications for special protection.
As regards the third applicant, on 28 February 2011 the Sofia Administrative Court dismissed the claim as time-barred. On appeal, on 26 April 2011 this decision was quashed by the Supreme Administrative Court and the case remitted for examination.
In all three sets of proceedings the SAR did not argue that there were legal grounds to refuse registration, but stated that their intention had been to “process the case as one under the Schengen agreement”, the latter’s entry into force for Bulgaria being imminent, and that a bilateral readmission agreement between Bulgaria and Greece applied.
By judgments of 1 April 2011 (concerning the second applicant) and 21 April 2011 (concerning the first applicant) the Sofia Administrative Court ordered the SAR to register the applications for asylum. These judgments have not become final, as the SAR appealed to the Supreme Administrative Court. The parties have not clarified the developments in the proceedings regarding the third applicant.
On 9 May 2011 the applicants submitted to the Court a request for interim measures under Rule 39 of the Rules of Court, stating that they had been told that on 10 May they would be transported to the Bulgarian-Greek border and removed from Bulgaria. The request was granted on 10 May 2011 and the Bulgarian authorities were invited to suspend the applicants’ removal to Greece until further notice. On the same day the Government’s agent informed the Court that the applicants’ removal had been suspended.
On 9 or 10 May 2011 the applicants were brought to the town of Gotse Deltchev, close to the Bulgarian-Greek border, for a hearing before the local District Court in the criminal proceedings opened against the first and the third applicants for illegal border crossing. The hearing took place on 10 May 2011 and the case was decided on the same day by way of agreement under which the first and the third applicants pleaded guilty and were given suspended sentences of three months’ imprisonment. On 11 May 2011 the applicants were returned to the detention centre near Sofia.
On 18 May 2011 the applicants were escorted to the SAR office to be registered as asylum-seekers. They were released on an unspecified date.
On 5 October 2011, having examined the applicants’ case, the SAR granted them humanitarian status.
COMPLAINTS
1. The applicants complained, referring to the case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, 21 January 2011, that there would be a violation of Article 3 in the event of their removal from Bulgaria to Greece.
2. They also alleged that Article 3 had already been violated by the Bulgarian authorities in that they detained them, made them live in constant fear of removal to Greece and brought them on 10 May 2011 to a town close to the Greek border before suspending their removal at the last minute. The applicants further alleged violations of Article 5 § 1 in that their detention was arbitrary and did not serve a lawful purpose and of Article 5 § 4 in that Bulgarian law provides for a three-day time-limit for the lodging of an appeal against detention in cases such as the applicants’.
THE LAW
1. The applicants complained that there would be a violation of Article 3 in the event of their removal from Bulgaria to Greece.
The Court observes that in October 2011 the applicants were granted humanitarian status in Bulgaria and that, therefore, there is no indication that they are still under threat of removal to Greece.
The matter giving rise to the applicants’ above complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b) of the Convention. No particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination under Article 37 § 1 in fine.
Accordingly, this part of the application should be struck out of the Court’s list of cases.
2. Having examined the applicants’ remaining complaints under Articles 3 and 5, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in so far as it concerns the complaint that the applicants’ removal to Greece, if realised, would be in breach of Article 3 of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy