CASE OF RAZA v. BULGARIA
Violation of Art. 8 (in case of expulsion);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
Georgieva;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
6. The applicants were born in 1969 and 1975 respectively and live in Sofia. 7. Mr Raza left Pakistan in 1998, allegedly to flee from religious persecution. For a short time he remained in Iran and in Turkey, and later that year arrived in Bulgaria. Initially he sought asylum. However, after he married Mrs Raza on 20 February 2000, he withdrew his asylum claim and was granted a temporary residence permit on the strength of his marriage. In 2003 he was granted a permanent residence permit. He learned Bulgarian and started a small business, distributing electronic devices. He has not travelled out of Bulgaria since he first arrived there and has never been charged with any offence. 8. On 6 December 2005 the head of the Ministry of Internal Affairs’ National Security Service made an order for Mr Raza’s expulsion. He also barred him from entering or residing in Bulgaria for a period of ten years, “in view of the reasons set out in proposal no. M2922/24.11.2005 and the fact that his presence in the country present[ed] a serious threat to national security”. The order relied on section 42 of the 1998 Aliens Act. No factual grounds were given, in accordance with section 46(3) of the Act. The order further provided that the first applicant was to be detained until it could be enforced, in line with section 44(6) of the Act. Finally, it stated that it was subject to appeal to the Minister of Internal Affairs, but not subject to judicial review, in keeping with section 46(2)(3) of the Act, and that it was immediately enforceable, in accordance with section 44(4)(3) of the Act (see paragraphs 31, 33 and 38 below). 9. Mr Raza was not served a copy of the order and learnt about it on 18 January 2006, after being placed in detention (see paragraph 10 below). 10. On 30 December 2005 the head of the Ministry of Internal Affairs’ Migration Directorate issued an order under section 44(6) and (8) of the 1998 Aliens Act (see paragraphs 38 and 39 below) to place Mr Raza in a special detention facility pending enforcement of the expulsion order. The order relied on the need to have him sent back to his country of origin. It said that it was subject to appeal before the Minister of Internal Affairs and to judicial review by the Sofia City Court. Mr Raza was arrested on the same day. 11. After it was found that Mr Raza did not have a valid passport, on 24 January 2006 the Ministry of Internal Affairs requested the consular department of the Ministry of Foreign Affairs to contact the closest embassy of Pakistan – the one in Bucharest, Romania – with a view to obtaining a passport or other travel documents. Further requests were made on 1 and 30 March 2006, 10 October 2007 and 3 June 2008, without success. It is unclear whether the consular department of the Ministry of Foreign Affairs forwarded those requests to the Pakistani embassy. 12. On 18 July 2006 the detention facility where Mr Raza was being kept was closed down and he was transferred to another facility. 13. On 11 July 2007 Mr Raza applied for release. On 28 December 2007 the head of the Migration Directorate turned down his request. 14. On 15 July 2008 the head of the Migration Directorate decided to release Mr Raza. He also stayed the enforcement of the order for his expulsion, citing technical difficulties, and placed him under an obligation to report daily to his local police station. 15. On 8 August 2008 Mr Raza asked the head of the National Security Agency to reconsider the order for his expulsion. On 4 September 2008 his request was turned down, on the ground that the order was final. 16. Mr Raza is currently awaiting expulsion, which is apparently being blocked solely by the fact that he does not have the necessary documents to reenter Pakistan. 17. On 4 January 2006 Mr Raza appealed to the Minister of Internal Affairs against the order for his expulsion (see paragraph 8 above). He argued that it was unlawful, because he resided legally in Bulgaria, lived with his wife and had never committed any offence. On 21 February 2006 the Minister rejected the appeal, saying that there existed information that Mr Raza had been involved in human trafficking. He went on to specify that in cases of expulsion on national security or public order grounds it was not open to the administrative authorities to take into account extraneous considerations; if the necessary prerequisites were in place, the authorities were bound to take the measure in question. 18. On an unspecified date in early 2006 Mr Raza sought judicial review of the expulsion order by the Sofia City Court. He additionally asked the court to stay the order’s enforcement. He asserted, inter alia, that he had been married to a Bulgarian national for a number of years and had never engaged in any unlawful activities. He also pointed out that he had never been served a copy of the order for his expulsion and was not aware of the grounds for such a measure. He asked the court to request the immigration authorities to produce the materials which had led to the order. 19. In a decision of 7 December 2006 the court found the application admissible, holding that the bar to judicial review set out in section 46(2) of the 1998 Aliens Act (see paragraph 33 below) was contrary to the Convention and was thus to be disregarded. It relied on this Court’s judgment in the case of AlNashif v. Bulgaria (no. 50963/99, 20 June 2002). It turned down the request for a stay of the order’s enforcement, observing that its immediate enforcement was mandated by statute – section 44(4)(3) of the 1998 Aliens Act (see paragraph 31 below). In those circumstances, the courts were not competent to stay the enforcement, as this would amount to a judicial revision of a statute. In any event, Mr Raza had not put forward any arguments capable of persuading the court that the order should be stayed. 20. Mr Raza did not appeal against the court’s refusal to stay the enforcement of the expulsion order. 21. The court held a nonpublic hearing on 17 May 2007. It admitted in evidence the administrative case file with the materials leading to the expulsion order, allowed Mr Raza to inspect them, and gave him leave to adduce evidence in support of his allegations. 22. In view of amendments to the 1998 Aliens Act making expulsion orders subject to review by the Supreme Administrative Court (see paragraph 35 below), on 6 July 2007 the Sofia City Court transferred the case to the Supreme Administrative Court. 23. The Supreme Administrative Court heard the case on 22 November 2007. Mr Raza, who was legally represented, did not adduce evidence. He argued that the order was unlawful, as it did not specify the grounds for expelling him, and said that he would develop his arguments in pleadings that he would file later. Counsel for the authorities argued that the order was well-founded, as could be seen from the adduced evidence. The public prosecutor, who took part in the proceedings ex officio, argued that since the law specifically provided that no reasons were to be given for expulsion orders, the court was not competent to review the substantive lawfulness of the order, but only whether the procedure had been followed. 24. In a final judgment of 17 January 2008 the Supreme Administrative Court dismissed Mr Raza’s application. According to the applicants, apart from a short declaration that Mr Raza’s expulsion would not breach Article 8 of the Convention, the court did not engage in any analysis of the proportionality of that measure. Nor did it scrutinise the facts underlying the decision to expel Mr Raza, or have before it the full text of the proposal for his expulsion, but merely a short excerpt from it, drawn up by the authorities specifically for the purposes of the judicial review proceedings. 25. The applicants were not able to provide a copy of the Supreme Administrative Court’s judgment because the case is classified and neither they nor their counsel are allowed to make copies of any of the materials in the case file, including that judgment. Despite a specific request by the Court, the Government did not provide a copy of that judgment either, or specify what materials the Supreme Administrative Court had had before it when making it (see paragraph 5 above). 26. On an unspecified date in early 2006 Mr Raza sought judicial review of the order for his placement in a detention facility (see paragraph 10 above). On 22 May 2007 the Sofia City Court allowed his application and quashed the order. It found that the order was subject to review despite the express wording of section 46(2) of the 1998 Aliens Act (see paragraph 33 below) because that provision was contrary to Article 13 of the Convention. It also found that it had been made by a competent authority and in line with the applicable legal provisions. However, it went on to say that Mr Raza’s detention for such a long period had become unjustified, the authorities having been unable to deport him for more than a year. There was no indication that the immigration authorities had taken any measures in that respect except asking for the cooperation of the Ministry of Foreign Affairs. 27. Following an appeal by the Ministry of Internal Affairs, on 6 June 2008 (реш. № 6854 от 6 юни 2008 г. по адм. д. № 9478/2007 г., ВАС, III о.) the Supreme Administrative Court annulled that judgment and discontinued the proceedings. It held that the order for Mr Raza’s placement in a detention facility was subordinate to the order for his expulsion and had been made within the framework of the expulsion proceedings, for the sole reason that the expulsion could not be carried out forthwith. It was therefore not subject to judicial review by itself. 28. On 16 January 2008 the applicants sought judicial review of the decision of 28 December 2007 turning down Mr Raza’s application for release (see paragraph 13 above). On 7 May 2008 the Sofia Administrative Court declared Mrs Raza’s application inadmissible, because she was not directly affected by the order, but found Mr Raza’s application admissible and wellfounded. It noted that the immigration authorities had sent three letters to the consular department of the Ministry of Foreign Affairs with requests for assistance in the process of securing a travel document for Mr Raza, but that no reply had been received. It went on to say that, in view of the difficulties in carrying out the expulsion, the authorities should have reconsidered whether or not Mr Raza’s detention continued to be justified. In situations where they had discretion, the authorities had to assess whether or not the impugned measures interfered disproportionately with the individual’s rights and, whenever possible, opt for the option that was less onerous for the individual, in line with the principle of proportionality. The exercise of such discretion was subject to judicial review. Instead of keeping Mr Raza in custody, the authorities could have placed him under an obligation to report daily to his local police station. In choosing between those alternatives, they had to take account of the length of the detention. If it exceeded six months, it became an arbitrary deprivation of liberty, contrary to Article 5 § 1 (f) of the Convention. The inordinate amount of time spent by Mr Raza in custody, owing to the lack of effective measures for his expulsion, had negated the lawfulness of his deprivation of liberty. As the authorities had not taken those matters into account, they had made an unlawful decision. The court therefore quashed the refusal to release Mr Raza and instructed the authorities to reconsider the matter in line with its reasoning. 29. The Director of the National Police Service appealed. On 26 May 2009 the Supreme Administrative Court declared the appeal inadmissible (опр. № 6873 от 26 май 2009 г. по адм. д. № 10138/ 2008 г., ВАС, III о.). It held that the Director did not have standing to appeal, as the proceedings before the lower court had unfolded between the applicants and the immigration authorities. Moreover, since Mr Raza had meanwhile been released (see paragraph 14 above), the issues raised in the appeal were no longer relevant. 30. Article 27 § 1 of the 1991 Constitution provides that aliens who are lawfully resident in the country cannot be expelled from it except under conditions and in a manner prescribed by law. 31. Section 42(1) of the 1998 Aliens Act provides that an alien must be expelled when his or her presence in the country creates a serious threat to national security or public order. Under section 42(2), expulsion must be accompanied by withdrawal of the alien’s residence permit and the imposition of a ban on entering the country. Expulsion orders are immediately enforceable (section 44(4)(1) and (3)). 32. If deportation cannot be effected immediately or needs to be postponed for legal or technical reasons, the enforcement of the expulsion order may be stayed until the relevant obstacles have been overcome (section 44b(1)). 33. Section 46(2), as in force until March 2007, provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review. Under section 46(3), those orders do not indicate the factual grounds for imposing the measure. 34. Following this Court’s judgment in the case of AlNashif v. Bulgaria (no. 50963/99, 20 June 2002), in which it found the above provisions contrary to Article 8 and Article 13 of the Convention, the Supreme Administrative Court changed its caselaw. In a number of judgments and decisions delivered in 200306 it held, by reference to AlNashif, that the ban on judicial review in section 46(2) was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security considerations were amenable to judicial review (реш. № 4332 от 8 май 2003 по адм. д. № 11004/2002 г.; реш. № 4473 от 12 май 2003 г. по адм. д. № 3408/2003 г.; опр. № 706 от 29 януари 2004 г. по адм. д. № 11313/2003 г.; опр. № 4883 от 28 май 2004 г. по адм. д. № 3572/ 2004 г.; опр. № 8910 от 1 ноември 2004 г. по адм. д. № 7722/2004 г.; опр. № 3146 от 11 април 2005 по адм. д. № 10378/2004 г.; опр. № 3148 от 11 април 2005 по адм. д. № 10379/2004 г.; опр. № 4675 от 25 май 2005 г. по адм. д. № 1560/2005 г.; опр. № 8131 от 18 юли 2006 г. по адм. д. № 6837/2006 г.). 35. In April 2007 section 46(2) was amended and at present provides that expulsion orders may be challenged before the Supreme Administrative Court, whose judgment is final. 36. In May 2009 the Act underwent a reshuffle intended to bring it into line with the requirements of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals. The new version of section 44(2) provides that when ordering expulsion or similar measures the authorities must take into account the length of time an alien has remained in Bulgaria, his or her family status, and the existence of any family, cultural and social ties with the country of origin. It is not yet clear whether those factors should also be considered upon the expulsion of an individual on national security grounds. 37. Section 44(5) of the 1998 Act provides that if there are impediments to a deportee’s leaving Bulgaria or entering the destination country, he or she is placed under an obligation to report daily to his or her local police station. 38. Under section 44(6), as in force until May 2009, aliens could, if necessary, be placed in special detention facilities pending the removal of the obstacles to their deportation. In the reform of May 2009 (see paragraph 36 above) that provision was amended to provide that detention was possible if an alien’s identity was unknown, if he or she hindered the enforcement of the expulsion order, or if he or she presented a risk of absconding. 39. Under section 44(8) (after May 2009 section 44(10)), deportees are placed in detention facilities pursuant to special orders, which have to specify the need for such placement and its legal grounds and be accompanied by copies of the orders under section 44(6). 40. Under the new section 44(8), also added in May 2009, detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee presents a national security or public order risk, detention may be prolonged for a further twelve months. 41. Under section 46(1), as in force at the material time, as a rule, orders under the Act were subject to appeal before the higher administrative authority and to judicial review. While in its earlier caselaw the Supreme Administrative Court consistently found that placement orders under section 44(6) and (8) were amenable to judicial review (реш. № 2048 от 8 март 2005 г. по адм. д. № 7396/2004 г., ВАС, V о.; реш. № 8364 от 27 септември 2005 г. по адм. д. № 4302/2005 г., ВАС, V о.; реш. № 1181 от 1 февруари 2006 г. по адм. д. № 1612/2005 г., ВАС, V о.; реш. № 5262 от 17 май 2006 г. по адм. д. № 9590/2005 г., ВАС, V о.; реш. № 13108 от 27 декември 2006 г. по адм. д. № 7687/2006 г., ВАС, V о.; реш. № 199 от 8 януари 2007 г. по адм. д. № 6122/2006 г., ВАС, V о.; реш. № 9742 от 16 октомври 2007 г. на ВАС по адм. д. № 2996/2007 г., III о.; реш. № 12844 от 17 декември 2007 г. по адм. д. № 4761/2007 г., ВАС, III о.; реш. № 10833 от 6 ноември 2007 г. по адм. д. № 3154/ 2007 г., ВАС, III о.; реш. № 6876 от 9 юни 2008 г. по адм. д. № 10226/2007 г., ВАС, III о.), in a couple of judgments given at about the same time as that in Mr Raza’s case it ruled that such orders were not subject to judicial review because they were subordinate to the expulsion orders (реш. № 8117 от 2 юли 2008 г. по адм. д. № 4959/2007 г., ВАС, III о., реш. № 8750 от 15 юли 2008 г. по адм. д. № 1599/2008 г., ВАС, III о.). In view of those discrepancies, the Chief Prosecutor asked the Plenary Meeting of that court to issue an interpretative decision on the question. However, in view of intervening legislative changes which settled the matter (see paragraph 42 below), on 16 July 2009 the Plenary Meeting decided not to issue such a decision (опр. № 3 от 16 юли 2009 г. по т. д. № 5/2008). 42. In the reform of May 2009 (see paragraph 36 above) a new section 46a was added, making special provision for judicial review of orders for the detention of deportees. Deportees may now seek judicial review of such orders by the competent administrative court within three days of them being issued (subsection 1). The application for judicial review does not stay their enforcement (ibid.). The court must examine the application at a public hearing and rule, by means of a final judgment, not later than one month after the proceedings were instituted (subsection 2). In addition, every six months the head of any facility where deportees are being detained must present to the court a list of all individuals who have remained there for more than six months due to problems with their removal from the country (subsection 3). The court must then rule, on its own motion and by means of a final decision, on their continued detention or release (subsection 4). When the court sets aside the detention order, or orders a deportee’s release, he or she must be set free immediately (subsection 5). The Supreme Administrative Court is already applying those provisions (опр. № 7964 от 16 юни 2009 г. по адм. д. № 7823/2009 г., ВАС, VII о., опр. № 10801 от 18 септември 2009 г. по адм. д. № 9652/2009 г., ВАС, VII о.)