CASE OF KAUSHAL AND OTHERS v. BULGARIA
Violation of Art. 8;Violation of Art. 13;Violation of P7-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The first applicant, Mr Rajesh Kaushal, born in 1967, settled in Bulgaria in 1990. Soon after that he met the second applicant, born in 1974. Their first daughter, the third applicant, was born on 13 November 1992. The first and second applicants married on 17 April 1994. Their second daughter, the fourth applicant, was born on 19 February 1998. On an unspecified date Mr Kaushal was granted a permanent residence permit in Bulgaria. He learned Bulgarian and started his own business. He owns a hotel and a restaurant in Sofia. 6. On 28 November 2005 the head of the Ministry of the Interior's National Security Service ordered the expulsion of Mr Kaushal. He also deprived him of the right to reside in Bulgaria and excluded him from Bulgarian territory for a period of ten years. The order, which was based on sections 42 and 44(1) of the 1998 Aliens Act (see paragraph 17 below), relied on “the reasons set out in proposal no. M-2886/22.11.2005 and the fact that [Mr Kaushal's] presence in the country represent[ed] a serious threat to national security”. No factual grounds were given. It was indicated in the order that it was immediately enforceable, as provided for in section 44(4) of the Aliens Act (see paragraph 17 below). 7. On 28 November 2005 Mr Kaushal was detained. On 1 December 2005 he was deported to India. Subsequently he settled in Thessaloniki, Greece, where his wife and daughters visit him. 8. Once abroad, Mr Kaushal retained a lawyer who lodged with the Sofia City Court an application for judicial review of the expulsion order of 28 November 2005. He argued that no reasons had been given for the order and that the relevant factual circumstances had not been duly established. Furthermore, he pointed out that he had a family in Bulgaria. 9. In the course of the ensuing proceedings the Sofia City Court accepted in evidence the classified proposal referred to in the impugned order (see paragraph 6 above). The proposal apparently stated that Mr Kaushal was suspected of affiliation to extremist groups and trafficking in human beings. It is unclear whether Mr Kaushal's representative was also given an opportunity to familiarise himself with the document. 10. The Sofia City Court gave judgment on 16 December 2006. Relying on the Court's judgment in the case of Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002), it found that the bar to judicial review set out in section 46(2) of the Aliens Act (see paragraph 17 below) was contrary to Article 13 of the Convention and was thus to be disregarded. 11. Examining Mr Kaushal's application on the merits, the Sofia City Court found that the order of 28 November 2005 was lawful as it had been issued by a competent authority and in accordance with the law. Referring to different legal provisions relating to national security, it continued as follows: “As can be seen from the text of proposal no. M-2886/22.11.2005, the measures imposed [on Mr Kaushal] by virtue of the disputed order are aimed at the prevention of unlawful activity, as described in [the provisions on national security], namely affiliation of Rajesh Kaushal to extremist groups and participation in organised trafficking in human beings into countries of the European Union. The data related to these activities have been collected lawfully, by operational means within the competence of the Ministry of the Interior's National Security Service.” 12. Lastly, the Sofia City Court found that it was not necessary to examine Mr Kaushal's arguments relating to his family life in Bulgaria. It held: “In view of the issues raised in the present case, the arguments set out in [Mr Kaushal's] application referring to his lawful residence in the country and his being married to a Bulgarian citizen are irrelevant. The administrative measures [at issue] are not of a punitive character, but aim at the prevention of the alien's unlawful activity described above. Collecting objective data related to unlawful activity suffices to justify the [impugned] order. The administrative body was competent to assess in each specific case the extent to which the country's security was threatened and the effectiveness of the measures to be applied”. 13. On an unspecified date Mr Kaushal appealed against the Sofia City Court's judgment. He argued that he had been unable to understand which actions on his part had been deemed to threaten national security and that the conclusions about his alleged unlawful activity set out in the proposal of 22 November 2005 had no evidentiary value as they needed themselves to be proven. Once again, he pointed out that he had a family in Bulgaria. 14. In a final judgment of 28 June 2007 the Supreme Administrative Court dismissed the appeal and upheld the Sofia City Court's judgment. It found that the data relating to the first applicant's alleged unlawful activity had been collected in accordance with the law and that the impugned expulsion order had been “reasonably related to the facts set out in the proposal”. It held that “the burden to disprove these facts rested on [Mr Kaushal] who has not presented evidence in support of his arguments”. 15. Furthermore, the Supreme Administrative Court found that Mr Kaushal had been able effectively to challenge the impugned order as he had been represented by counsel in the judicial proceedings. The measures against him had been based on grounds of national security, which necessitated “certain restrictions of the possibilities to defend oneself”. 16. The Supreme Administrative Court examined the first applicant's arguments about his right to family life and dismissed them. It noted that the right to family life was protected under Article 8 of the Convention; however, under paragraph 2 of Article 8 it was acceptable to interfere with a person's right to family life in the interests of national security. Furthermore, it held: “The right to respect for one's family life is not an absolute right, which always has to prevail ... The interference with the alien's family life is the result of the coercive administrative measure [which Mr Kaushal] has to endure in case the family does not settle in the country he has chosen to reside in after his expulsion from the Republic of Bulgaria. The coercive administrative measure prevents the person from exercising the unlawful activity which justified its imposition, and the separation itself, if it poses a problem for the family, can be resolved by the spouses”. 17. The relevant domestic law and practice have been summarised in the Court's judgments in the cases of C.G. and Others v. Bulgaria (no. 1365/07, §§ 18-28, 24 April 2008) and Raza v. Bulgaria (no. 31465/08, §§ 30-36, 11 February 2010).