Information Note on the Court’s case-law No. 143
July 2011
M. and Others v. Bulgaria - 41416/08
Judgment 26.7.2011 [Section IV]
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to amend legislation in order to provide additional safeguards in deportation cases
Facts – In 1998 the first applicant, an Afghan national, arrived in Bulgaria where he converted to Christianity. He married the second applicant and had two children with her (the third and fourth applicants). In March 2004 he was granted refugee status due to his religious conversion. In December 2005 the National Security Service issued orders for the withdrawal of his residence permit, for his expulsion and for his detention pending expulsion. It also banned him from re-entering the country for ten years on alleged national-security grounds contained in an internal document that stated, inter alia, that he had been involved in the trafficking of migrants. The expulsion order did not specify the country to which the first applicant was to be deported. The first applicant challenged the expulsion and detention orders, but the competent court did not question the conclusions in the internal document that he posed a threat to national security and rejected his complaint about possible ill-treatment in Afghanistan on the grounds that he had failed to prove that the authorities would be unable to guarantee his safety. It also ruled that the detention order was not amenable to judicial review since it related to the execution of an expulsion order.
In October 2006 another agency, the Migration Directorate of the National Police, also issued an order for the first applicant’s detention pending expulsion. Both that order and the orders of December 2005 were immediately enforceable. The first applicant was then arrested and detained, but was not deported as the Afghan Embassy refused to issue a travel document in the absence of a request by him. On appeal, the second detention order was ultimately declared null and void by a city court because it had been signed by an unauthorised official. However, the city court did not find itself competent to order the first applicant’s release. He was finally released in July 2009.
Law – Article 5 § 1: The Court reiterated that deprivation of liberty could only be justified under the Convention for as long as deportation or extradition proceedings were in progress. If such proceedings were not conducted with due diligence, the detention would cease to be permissible. The first applicant had been detained for two years and eight and a half months. Although his deportation was ordered in December 2005, the authorities did not attempt to secure a travel document for his deportation until February 2007, when a letter was sent to the Afghan Embassy. Having received no reply, they renewed their request in September 2008, a year and seven months later. In addition, the Government had not provided evidence of any effort having been made to secure the first applicant’s admission to a third country. Accordingly, the grounds for the first applicant’s detention with a view to deportation had not remained valid for the entire period he was detained, as the authorities had failed to act with due diligence. Furthermore, although the first applicant’s deprivation of liberty was based on a valid legal act, the existence of two separate orders for his detention issued by two different authorities appeared to have been a source of uncertainty and the legal significance of the existence of two orders was unclear. Moreover, even after June 2009, when the judgment annulling one of the two orders entered into force, the police had continued referring to it as if it were valid, in disregard of the domestic court’s final ruling.
Conclusion: violation (unanimously).
Article 5 § 4: Since two different authorities had issued orders for his detention, the first applicant had brought two separate sets of proceedings challenging them. In the first, the Supreme Administrative Court had refused to examine his appeal, while in the second it took almost two and a half years for him to obtain a judicial decision establishing that the order concerned was invalid. That situation disclosed a serious failing to secure the first applicant’s right to speedily challenge in court the lawfulness of his detention.
Conclusion: violation (unanimously).
Article 8: The applicants had established a genuine family life in Bulgaria. The initial deportation order against the first applicant was based on a declaratory statement in an internal document of the National Security Service which apparently did not mention the factual grounds or the evidence on which it was based. The Supreme Administrative Court had considered itself bound by the declaratory statement and so had dismissed the appeal against the deportation order. However, such a formalistic approach meant that a governmental agency had been left full and uncontrolled discretion to “certify” blankly, with reference to little more than its own general statements, that an alien was a threat to national security and had to be deported. As such “certifications” were based on undisclosed internal information and were held to be beyond any meaningful judicial scrutiny, the applicants had not enjoyed the minimum degree of protection against arbitrariness required for the interference to be “in accordance with the law”, as required by Article 8 § 2 of the Convention.
Conclusion: deportation would constitute violation (unanimously).
Article 13: The Supreme Administrative Court had not carried out a proper examination of the executive’s assertion that the first applicant presented a national-security risk. The judicial-review proceedings had not, therefore, secured him an effective domestic remedy for his Article 8 complaint. Indeed, the Supreme Administrative Court’s approach was disturbing: while apparently acknowledging that the first applicant risked ill-treatment and death if deported to Afghanistan, it had placed on him the burden of proving that the risk stemmed from the Afghan authorities and that they would not guarantee his safety. That approach seemed to place excessive reliance on the question whether the ill-treatment risked in the receiving State would emanate from State or non-State sources, and by dealing with such a serious issue summarily and requiring the first applicant to prove a negative had practically deprived him of a meaningful examination of his claim under Article 3. Further, under Bulgarian law, appeals against a deportation order had no suspensive effect if the executive chose to rely on national-security grounds, even in cases of irreversible risk of death or ill-treatment in the receiving State and the first applicant’s request for a stay of deportation pending the judicial-review proceedings appeared to have been left unexamined. This ran counter to the notion of an effective remedy under Article 13 which required that the remedy be capable of preventing the execution of measures with potentially irreversible effects.
Conclusion: violation (unanimously).
Article 46: Given that the Court had already delivered similar judgements against Bulgaria and that other like cases were pending before it, it found it necessary to assist the Government in the execution of their duty to enforce the Court’s judgment. In particular, the Court expressed the view that the general measures in execution of this judgment should include amendments to the Aliens Act or other Bulgarian legislation to ensure that: (i) even where national security is invoked as a ground for deportation, the factual basis and reasons for the decision should be subject to thorough judicial scrutiny, if need be with appropriate procedural adjustments related to the use of classified information; (ii) courts examining appeals against deportation should balance the aim pursued by the deportation order against the fundamental human rights of the affected individuals, including the right to respect for their family life; (iii) the destination country should always be indicated in a legally binding act and a change of destination should be amenable to appeal; (iv) claims alleging a risk of death or ill-treatment in the destination country should be austerely examined by courts; and (v) such claims, made in deportation appeals, should have an automatic suspensive effect pending their examination.
Article 41: EUR 12,000 to the first applicant in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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