CASE OF SADAYKOV v. BULGARIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
5. The applicant, who was born in Grozny, Chechnya, settled in Varna, Bulgaria, in 1994, after finishing his university studies. Between 24 September 1995 and 3 November 1999 he was prosecuted and tried on charges of attempted murder and illegal possession of explosives, contrary to Articles 116 § 1 (6) and 339 § 1 of the Criminal Code of 1968. In a final judgment of 3 November 1999 he was acquitted of the first charge and found guilty of the second, and sentenced to two years’ imprisonment. As he had already spent a longer period of time in pretrial detention, on 8 November 1999 he was released from prison (for a detailed description of these events, see the admissibility decision Sadaykov v. Bulgaria (dec.), no. 75157/01, 20 March 2007). 6. On 8 November 1999 the applicant was rearrested on his way out of prison. This happened because in a letter of 5 November 1999 the Varna deputy regional prosecutor had informed the Regional Department of the Ministry of Internal Affairs (“the RDMIA”) that during his trial the applicant had threatened prosecutors and judges that he would “deliver justice” after his release. Apart from that, the validity of the applicant’s Russian passport and of his permit to reside in Bulgaria had expired. As a result, on 8 November 1999 the head of the RDMIA ordered that the applicant be brought immediately to the border by force and that he be banned from entering Bulgaria until 1 November 2009. The order was based on sections 41(2) and 10(3) and (6) of the 1998 Aliens Act (see paragraphs 9 and 10 below) and was reasoned as follows: “[the applicant] threatens public order and has been charged under Articles 116 and 339 § 1 of the [1968] Criminal Code”. The order also stated that it was to be enforced immediately and was subject to appeal in accordance with the provisions of the 1979 Administrative Procedure Act (see paragraphs 13 and 14 below). 7. Upon his arrest the applicant was informed about the order: he signed it, and stated in writing that he had familiarised himself with its contents. The applicant alleged that he had not been given a copy of it, whereas the Government averred that he had been provided with one. The applicant also alleged that after his arrest he had not been allowed to contact a lawyer. The Government denied this, stating that the applicant’s brother was apparently well aware of his situation, as on 11 November 1999 he had managed to bring a complaint in this regard to the attention of a nongovernmental organisation, the Human Rights Committee, which had enquired of the Minister of Internal Affairs about the applicant’s case. 8. After his arrest the applicant was brought to a detention facility in Varna, where he was kept until 13 November 1999. On that day he was provided with a provisional passport and escorted to Ruse, on the Danube River, where he was supposed to board a train to Moscow. However, during passport control at the border checkpoint it turned out that since September 1995 the applicant had been under a prohibition order not to leave Bulgaria, which was still in force. He was then taken back to the detention facility in Varna, where he spent three more days, until the prohibition was lifted. On 15 November 1999 he wrote to the head of the RDMIA, asking for his assistance in clearing the obstacles to his leaving Bulgaria. On the same day the authorities bought the applicant a new train ticket to Moscow. On the following day, 16 November 1999, he was deported to the Russian Federation. 9. Under section 41(2) of the 1998 Aliens Act („Закон за чужденците в Република България“), as in force at the relevant time, the Minister of Internal Affairs or an official authorised by him or her could issue an order for the taking of an alien to the border by force in the event that he or she had not left the country after the expiry of his or her residence permit. By section 42a(1) (presently section 42h(1)) of the Act, a ban on entering the country had to be ordered if the grounds under section 10 were met. 10. The ground under section 10(1)(3) of the Act, as in force at the material time, was the existence of information that the alien was a “member of a criminal gang or organisation, or [was] engaged in terrorist activities, smuggling, or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies with a possible dual use, or in the illicit trafficking of intoxicating and psychotropic substances or precursors or raw materials for their production”. The ground under section 10(1)(6) of the Act was that the alien had “committed, on the territory of the Republic of Bulgaria, a wilful offence punishable by more than three years’ imprisonment”. 11. Section 44(3) of the Act, as in force at the relevant time (presently, with slightly modified wording, section 44(5)), provided that if there were impediments to the deported alien’s leaving Bulgaria or entering the destination country, he or she was under a duty to report daily to his or her local police station. Under section 44(4) of the Act, as in force at the material time (presently, with slightly modified wording, section 44(6)), aliens who were being deported could be placed in holding facilities if this was deemed necessary by the Minister of Internal Affairs or officials authorised by him or her. The new subsection 8 of section 44, added in April 2003, explicitly states that the placement of aliens in holding facilities pending their deportation is to be done pursuant to a special order, separate from the one for taking them to the border by force. The order has to moreover specify the need for the placement and its legal grounds. In addition, the new subsection 9, also added in April 2003, provides that the procedure for the temporary placement of aliens in holding facilities is to be laid down in a regulation issued by the Minister of Internal Affairs. The Minister issued such a regulation on 29 January 2004 („Наредба № І-13 от 29 януари 2004 г. за реда за временно настаняване на чужденци, за организацията и дейността на специалните домове за временно настаняване на чужденци“, обн., ДВ, бр. 12 от 13 февруари 2004 г.). 12. Section 49(1) of the regulations for the application of the Act, adopted in May 2000, provides that an alien may be placed in a holding facility until being taken out of the country if this is expressly stated in the order for his or her taking to the border by force or his or her expulsion. Section 49(2) of the Regulations states that the procedure for the placement of aliens in these facilities until their deportation is to be ordained by the Minister of Internal Affairs. 13. Section 46 of the Act, as in force at the relevant time, provided that orders made under sections 40 to 44 thereof could be challenged in accordance with the provisions of the 1979 Administrative Procedure Act, that is, they were subject to an appeal before the higher administrative authority and judicial review. 14. According to the 1979 Administrative Procedure Act, as in force at the relevant time, an administrative appeal had to be made within seven days from the notification of the person concerned of the administrative decision (section 22(1) of the Act). The higher administrative authority had to rule within two weeks (section 29(1) of the Act). If it failed to do so, or if the ruling was negative, the aggrieved person was entitled to lodge an application for judicial review (sections 29(2) and 35(2) of the Act). The aggrieved person could alternatively skip this step and directly seek judicial review of the original decision. However, this was only possible if the timelimit for lodging an administrative appeal – minimum seven days – had already lapsed (section 35(2) of the Act).