CEDH · CASELAW;CLIN;ENG — 24 avril 2008

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Bulgaria - 1365/07 Judgment 24.4.2008 [Section V] Article 8 Expulsion Expulsion of an alien on unsubstantiated grounds resulting in separation from his family: violation Article 1 of Protocol No. 7 Article 1 para. 1 of Protocol No. 7 Review of expulsion decision Lack of procedural safeguards in deportation proceedings: violation Article 1 para. 2 of Protocol No. 7 Expulsion before exercising procedural rights Lack of procedural safeguards in deportation proceedings: violation Facts : The first applicant, a Turkish national who settled in Bulgaria in 1992, married a Bulgarian national (the second applicant), with whom he had a daughter (the third applicant). He was granted a permanent residence permit in Bulgaria. In 2005 his residence permit was withdrawn and a deportation order was issued stating that he posed a threat to national security. The decision, relying on the relevant provisions of the Aliens Act, referred to a classified report by Plovdiv Internal Affairs but gave no factual grounds for the deportation. At 6.30 a.m. on 9 June 2005 the first applicant was summoned to a police station, 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 a lawyer or his wife and daughter. His subsequent appeal to the Minister of Internal Affairs was dismissed. In the ensuing judicial review proceedings, the Bulgarian courts rejected the first applicant’s complaints concerning the unlawfulness of his expulsion. Their decisions were based on information contained in the Ministry of Internal Affairs’ report, which stated that, following secret surveillance, it had been established that the first applicant was involved in drug-trafficking. On that basis, the courts refused to make any further enquiries into the facts of the first applicant’s case or examine any other evidence. (Since being deported, the first applicant has seen his wife and daughter a few times a year in Turkey. They have also remained in contact by telephone.) Law : Article 8 – The first applicant was lawfully residing in Bulgaria until his deportation in 2005 and after that date was only able to see his wife and daughter occasionally for brief periods of time. The deportation therefore amounted to an interference with the applicants’ right to respect for their family life. Even where national security was at stake, deportation measures had been subject to some form of adversarial proceedings before an independent authority or court which was competent to effectively scrutinise the reasons for those measures and to review the relevant evidence, if need be with appropriate limitations on the use of classified information. In the present case the decision to deport the first applicant had given no factual grounds and had simply cited the relevant legal provisions concerning serious threats to national security. That conclusion was based on unspecified information contained in a classified report. As the first applicant had not been given even the slightest indication as to why he posed such a threat, he had not been able to present his case adequately in his appeal or in the ensuing judicial review proceedings. Moreover, in those proceedings the Bulgarian courts had subjected the decision on deportation to a purely formal examination, refusing to examine evidence which would confirm or contest the allegations against the first applicant, and had relied solely on uncorroborated information in a classified report drawn up as a result of covert monitoring. Furthermore, Bulgarian law on such monitoring did not provide the minimum guarantees required under Article 8 such as ensuring that the original written record of special surveillance was faithfully reproduced or laying down proper procedures for preserving the integrity of such data. Indeed, in the first applicants’ case, the file contained no information as to whether the secret surveillance measures had been lawfully ordered and executed or whether that aspect had even been considered by the courts. Finally, it had transpired during the judicial review proceedings that the only basis for the assessment that the first applicant posed a threat to national security was his alleged involvement in drug-trafficking. The Court found that the allegations against the first applicant – as grave as they might be – could not reasonably be considered to be capable of threatening Bulgaria’s national security. The Bulgarian courts had not therefore subjected the allegations against the first applicant to any meaningful scrutiny. Despite having had the formal possibility of seeking judicial review of the deportation order, the first applicant had not enjoyed the minimum degree of protection against arbitrariness. The interference with the applicants’ family life had therefore not been “in accordance with the law” within the meaning of Article 8. Conclusion : violation (unanimously). Article 1 of Protocol No. 7 – Aliens lawfully residing on the territory of a State which had ratified Protocol   No. 7 benefited from certain procedural safeguards in the event of their deportation such as knowing the reasons for their expulsion and having their case reviewed. In the present case the Bulgarian courts had refused to gather evidence to confirm the allegations against the first applicant and their decision was formalistic, resulting in him not having been able to have his case heard or reviewed, as required under paragraph 1   (b) of Article 1 of Protocol No. 7. His expulsion had therefore not been “in accordance with the law”. Moreover, as the first applicant was expelled on the very day he received his deportation order, he had only been able to challenge the measures against him once outside Bulgaria. Article 1 of Protocol No. 7 allowed for that situation but only in the event that expulsion was “necessary in the interests of public order” or “grounded on reasons of national security”. The Court had already found that the first applicant’s deportation had not been based on any genuine national security reasons. Furthermore, there was nothing in the case file to suggest, and the Government had not put forward any convincing argument, that it had truly been necessary to deport him immediately in the interests of public order. The Court therefore concluded that the first applicant had not been given the opportunity to exercise his rights before his expulsion from Bulgaria. Conclusion : violation (unanimously). The Court also found a violation of Article 13 of the Convention. Article 41 – The Court made awards in respect of non-pecuniary damage suffered by the applicants (EUR   10,000 for the first applicant, EUR 6,000 for the second and the third applicant).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes