ABULAIL AND LUDNEVA v. BULGARIA
Inadmissible
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The first applicant, Mr Semoun Qasem Mohammad Abulail, is a Jordanian national who was born in 1976 and lives in Al Ramtha in Jordan. The second applicant, Ms Tsveta Ivanova Ludneva, is a Bulgarian national who was born in 1951 and lives in Plovdiv, Bulgaria. The two applicants were represented by Ms N. Markova, a lawyer practising in Plovdiv. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva-Chinova, from the Ministry of Justice. 3. In 2000 the first applicant set up a limited liability company in Bulgaria. The second applicant was employed by the company. Between 2000 and 2003 the first applicant visited Bulgaria on several occasions. On 2 July 2003 the two applicants married. After that the first applicant started living permanently in Bulgaria and in 2005 was granted a permanent residence permit. 4. On 25 September 2006 the Director of the National Security Service (“the NSS”), at the time a department of the Ministry of Internal Affairs, issued an order revoking the first applicant’s residence permit, ordering his expulsion and barring him from entering Bulgaria for ten years. The order relied on sections 42 and 44(1) of the Aliens Act of 1998. It indicated that it was based on the reasons set out in a classified document named “proposal” (“предложение”) and bearing the number RB2020001-001-03/Пд/C3533/25.09.2006, and on the fact that the first applicant represented a threat to national security. It was also indicated that the order was subject to immediate execution. 5. After communication of the present application, the Government provided the Court with an excerpt from proposal RB2020001-001-03/Пд/C3533/25.09.2006, which had been declassified on 24 August 2012. The excerpt, in which the names of the other persons are concealed, was shown to the first applicant in the proceedings concerning the judicial review of the order of 25 September 2006 (see below), and was included in the case file. The document refers to “operational intelligence data” showing that the first applicant was involved in drug trafficking. In particular, it is alleged that he was in contact with persons known to be involved in such activities, and used his company’s trucks to transport drugs to Russia and Turkey. It is also stated that in April 2005 a truck belonging to the first applicant’s company was caught in the area of Dobrich carrying 200 kg of amphetamines. 6. The Government submitted an excerpt from another document entitled “information document” (“справка”) bearing the number RB2020001-001-03/Пд/C3532/25.09.2006, also declassified on 24 August 2012, which contained the same statements and alleged, in addition, that the first applicant was involved in “unlawful drug trafficking, under the control of the Syrian secret services, who provide logistical support to the terrorist organisation Hezbollah”. This excerpt was also presented to the first applicant and included in the case file in the judicial-review proceedings he instigated (see below). 7. The first applicant was expelled to Jordan on 26 January 2007. 8. On 19 October 2006 the first applicant filed an administrative appeal against the order of 25 September 2006. On 24 October 2006 the Minister of Internal Affairs dismissed his appeal, finding that the proposal and the information document drawn up by the NSS contained data leading to the conclusion that the first applicant posed a threat to national security. The Minister went on to say that there had been sufficient grounds to justify the order; by law, when issuing such orders the authorities had to refrain from setting out in them the facts justifying their conclusion that the respective person represented a national security risk. 9. In November 2006 the first applicant sought judicial review of the expulsion order by the Sofia City Court. He argued that it was unclear on what factual circumstances the expulsion order had been based and that he had not been given an opportunity “to defend himself against arbitrary action”. The first applicant also sought a stay of the enforcement of the expulsion order pending the outcome of the proceedings. 10. The Sofia City Court accepted the application for judicial review for examination. In decisions issued on 7 December 2006 and 8 February 2007 it refused to stay the enforcement of the expulsion order. 11. Following amendments to the Aliens Act 1998 that made expulsion orders subject to review by the Supreme Administrative Court (“the SAC”), the case was transferred to that court on an unspecified date. In the proceedings before it, the first applicant had legal representation. 12. In his submissions to the SAC the first applicant disputed the allegations ‒ made in the proposal and the information document referred to in paragraphs 5 and 6 above ‒ that he had been involved in drug trafficking. He also disputed the claim that in 2005 in the region of Dobrich the authorities had discovered drugs in a truck belonging to his company. He pointed out that at the time in question he had not sent trucks into that area and argued that if the allegation were true he would have been under investigation. He presented additional documents issued by the prosecution authorities, stating that he had no criminal convictions and that there were no ongoing investigations concerning him in the regions of Dobrich or Plovdiv. The first applicant also contested the allegations that he had worked for the Syrian secret services and Hezbollah, pointing out that he was a Jordanian and a Sunnite, and that Hezbollah was a Shia militant group. He stated that his expulsion had disrupted his commercial activities in Bulgaria. Lastly, he said the following: “[I]t should be noted that my personal rights have been unlawfully encroached upon, which is unjustified. My family has been separated for more than a year.” 13. In a judgment of 9 January 2008, which was final, the SAC found that the order of 25 September 2006 was lawful and disallowed the first applicant’s application for judicial review. Its decisive reasoning was as follows: “The disputed order was made by a competent body, no material breaches of the rules of administrative procedure have been committed, and it does not contradict the applicable law and its intent. The argument raised in the application for judicial review that the disputed administrative act did not contain any reasoning and was not based on the law is ill-founded. The disputed order refers to the legal provisions it is based on and ‒ given that it concerns compulsory measures under section 46(2) of the [Aliens Act] ‒ pursuant to section 46(3) of the same Act it should not disclose the factual grounds justifying it. Moreover, those factual grounds are set out in detail in [proposal RB2020001-001-03/Пд/C3533/25.09.2006] and are indicated in the disputed order as the factual basis, as can be seen from the [excerpt from the document] included in the case file. On the basis of the information contained in the proposal, the administrative body has reached a reasoned conclusion that the [applicant’s] presence in the country amounts to a serious threat to national security, and that the preconditions have been satisfied for the imposition of the compulsory measure ‘expulsion’ [...], together with the compulsory measures ‘revocation of residence permit’ and ‘bar on entering the [Republic of Bulgaria]’ which accompany it on a mandatory basis. [...] As can be seen from the proposal and the information document [RB2020001-001-03/Пд/C3532/25.09.2006], an excerpt of which [...] has also been included in the case file, the operational investigative activities carried out have established the grounds for imposing the compulsory measure ‘extradition’, together with the remaining [compulsory measures taken]. Contrary to the applicant’s arguments, the excerpts presented in the case ‒ prepared in accordance with the [law on classified information] ‒ are official attestation documents, which have binding force for the court as regards the contents of the proposal and the information document, on the basis of which ‒ in accordance with the applicable substantive rules ‒ the disputed order has been made.” 14. With the order of 25 September 2006 the Director of the NSS ordered the first applicant’s detention pending expulsion. On 26 September 2006 the Director of the Plovdiv Regional Police Directorate, relying on section 44(6) and (8) of the Aliens Act, also ordered his detention pending enforcement of the expulsion order. On the same day the first applicant was detained and placed in the Centre for Interim Detention of Aliens (“the CIDA”) in Busmantsi, where he remained until his expulsion on 26 January 2007. 15. The order of 26 September 2006 stated that it was subject to judicial review. It does not appear that the first applicant sought such review. 16. Around 6 p.m. on 30 December 2006 the first applicant was beaten by a codetainee, an Iraqi national, with whom he had been accommodated in the same room in the CIDA. Immediately after the accident the Iraqi was placed in another room. 17. In the early hours of 31 December 2006 the first applicant was transferred to a hospital where it was established that he had a broken nose. On 3 January 2007 he underwent surgery. He was discharged from hospital on 8 January 2007. 18. On 19 January 2007 the first applicant complained to the prosecution authorities and requested them to investigate his beating. On 1 February 2007 a prosecutor from the Sofia District Public Prosecutor’s Office instructed the police to carry out a check-up. After this had been done, in a decision of 27 March 2007 the prosecutor found that the injury suffered by the applicant was considered by the Criminal Code to be one of a minor severity, which meant that its infliction was a privately prosecutable offence. Thus, the prosecutor discontinued the criminal proceedings. 19. The above decision, which was served on the first applicant’s lawyer, was appealable to a higher-ranking prosecutor. The first applicant did not appeal. Nor did he lodge a private criminal complaint against his attacker, who was likewise expelled from Bulgaria on an unspecified date. 20. The relevant domestic law concerning the expulsion of aliens on grounds of national security, as in force at the time, has been set out in detail in the Court’s judgments in the cases of C.G. and Others v. Bulgaria (no. 1365/07, §§ 18-26, 24 April 2008) and Raza v. Bulgaria (no. 31465/08, §§ 3035, 11 February 2010).