DANAWAR v. BULGARIA
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The first applicant, Mr Abdul Madjid Mohamed Danawar, is a Syrian national, born in 1968. The second and third applicants, Mrs Irina Danawar and Ms Eleonora Danawar, are Bulgarian nationals, born respectively in 1973 and 1996. They were represented by Mr Y. Grozev and Mrs N. Dobreva, lawyers practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant settled in Bulgaria in 1990. He graduated and started practising as a doctor. In 1995 the first and second applicants married. Their daughter, the third applicant, was born in 1996. On 1 November 1995 the first applicant was granted permanent residence in Bulgaria. 4. On 11 and 12 August 1999 the authorities, who suspected the first applicant of participating in organised drug trafficking, conducted a search and seizure operation in his flat. 5. On 17 February 2000 the head of the passports department at the National Police Service issued an order depriving the first applicant of the right to reside in Bulgaria. The order relied on the reasons set out in proposal no. 533/10.02.2000, namely that the first applicant had endangered national security and that there was information that he was a member of a criminal group and had committed crimes with intent. No factual grounds were given. The order further stated that it was not subject to judicial review. 6. On 13 March 2000 the director of the District Police Department in Stara Zagora issued an order depriving the first applicant of the right to enter the country for a period of ten years. 7. On 1 November 2000 the first applicant was arrested pursuant to the orders for his expulsion and prohibition on entering the country. On 3 November 2000 the head of the passports department at the National Police Service ordered the first applicant’s expulsion. The order stated that it was not subject to judicial review. Again, no factual grounds were given. The decision also ordered that the applicant’s detention pending removal. 8. In December 2000 the first applicant was deported to Syria. 9. The order of 17 February 2000 depriving the first applicant of his right to reside in the country and the order of 3 November 2000 for his expulsion were never officially served on the applicant. The second applicant obtained a copy of the expulsion order in December 2002. 10. On 26 May 2003 the first and second applicants sought judicial review in the Sofia City Court of the orders depriving the first applicant of his right to reside in the country and for his expulsion, stating that the impugned measures were arbitrary and amounted to unjustified interference with the applicants’ right to respect for their private and family life. 11. In a decision of 23 March 2004 the Supreme Administrative Court discontinued the proceedings in respect of the second applicant finding that none of her rights had been at stake. 12. In a decision of 14 June 2004 the Sofia City Court discontinued the proceedings in respect of the first applicant, finding that the orders had not been subject to judicial review either at the time they had been issued or at the time the first applicant had sought judicial review. On appeal, in a decision of 1 November 2004 the Supreme Administrative Court quashed the lower court’s decision and remitted the case to the Sofia City Court for a fresh examination. The court held that although the Aliens Act provided that expulsion orders issued on national security grounds were not subject to judicial review, following the Court’s judgment in Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002) such appeals had to be examined by the courts. 13. In a judgment of 12 May 2006 the Sofia City Court dismissed the appeal. It held that the application had been submitted in time because there was no indication whatsoever that the orders had been officially served on the first applicant and therefore the time-limit for seeking judicial review had not started to run. As to the merits of the application, the court found, on the basis of the facts established in proposal no. 533/10.02.2000 which stated that since 1996 the first applicant had been involved in heroin trafficking from Bulgaria to Greece, that the orders were lawful. The court also found the first applicant’s statements regarding his marital status and links with the country irrelevant. 14. The first applicant appealed in cassation. In a final judgment of 20 June 2007 the Supreme Administrative Court upheld the Sofia City Court’s judgment. 15. On an unspecified date the applicants sought judicial review of the order of 13 March 2000, which prohibited the first applicant from entering the country for a period of ten years. In a final judgment of 8 October 2009 the Supreme Administrative Court declared the order null and void, holding that at the time at which it was issued the administrative authority did not have power to issue such an order. 16. Following his expulsion in December 2000, the first applicant settled in Syria. In 2003 the second and third applicants briefly visited him. In August 2005 they moved to Syria in order to permanently settle there. In June 2008 the second and third applicants returned to Bulgaria and in August 2009 they visited Syria on another occasion. In September 2009 the second applicant returned to Bulgaria while the child remained in Syria with her father. On 7 February 2011 the first applicant returned to Bulgaria for a few days. 17. Section 42(1) of the Aliens Act 1998 provides for the expulsion of aliens where their presence in the country poses a serious threat to national security or public order. Section 44(4)(3) provides that expulsion orders are immediately enforceable. 18. Section 46(2), as in force until 10 April 2007, provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review. Following the Court’s judgment in Al-Nashif v. Bulgaria (cited above), in which the Court found the above regulatory arrangements contrary to Articles 8 and 13 of the Convention, the Supreme Administrative Court departed from its previous case-law. In a number of judgments and decisions given between 2003 and 2006 it held, with reference to Al-Nashif, that the provision in section 46(2) debarring applicants from seeking judicial review was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security grounds were amenable to judicial review. 19. Section 46(2) was amended with effect from 10 April 2007 and now provides that an expulsion order may be challenged before the Supreme Administrative Court, whose judgment is final.