CASE OF GAPAEV AND OTHERS v. BULGARIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)
Nona Tsotsoria;Síofra O’Leary
5. The applicants were born in 1970, 1973, 1999, 2001 and 2007 respectively. The Court has not been informed of their current place of residence. 6. The first and second applicants, a married couple, arrived in Bulgaria in 1997. Their three children, the remaining applicants, were born in that country. All members of the family were granted permanent resident permits. In 2005 the first applicant bought a flat in Sofia, where the family lived. 7. On 29 May 2008 the head of the National Security Service issued an order withdrawing the first applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his reentering Bulgaria, on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B849”. 8. That proposal, drawn up by the National Security Service on 27 May 2008 and initially classified, was declassified on 22 February 2016 and has been submitted by the Government. It stated that, according to intelligence data, the first applicant was the leader of an international terrorist group, working towards the aiding and financing of Chechen extremist and separatist organisations. It also stated that he was being searched on the territory of the Russian Federation and that his actions lowered the prestige and the interests of the Bulgarian State. The document claimed, in addition, that the first applicant had been implicated in extortion, drug trafficking, smuggling, money laundering and other criminal activities. No evidence was provided to substantiate those claims, even though the document referred to some specific facts. It was stated, for example, that in 2006 the applicant and another person had attempted to smuggle into Bulgaria a “highly toxic substance”, and that, also in 2006, he had threatened the seller of an expensive property in Varna forcing him to choose as a buyer a person close to the applicant. 9. On 12 June 2008 the first applicant applied for judicial review of the expulsion order. He disputed the allegation that he represented “a serious threat to national security”. He pointed out that his family was living in Bulgaria and that his children had been born in the country, and claimed that the proposed separation of his family was “unjustified”. 10. During the ensuing proceedings the applicant and his representative were shown proposal no. B849 and they presented evidence seeking to disprove some of the allegations it contained. In particular, the first applicant presented certificates issued by the Bulgarian and the Russian authorities stating that he had no convictions in the two countries and explained that in February 2008 he had travelled to Russia, where, as he claimed, he would have been arrested had he indeed been searched by the authorities of that country. In addition, in his written submissions the first applicant’s representative pointed out that the allegations made in the proposal were not substantiated by any evidence, and that they could not justify a conclusion that the applicant represented a threat to national security. In his oral pleadings he pointed out once again that the first applicant had “created his family” in Bulgaria. 11. In a final judgment of 20 December 2008 the Supreme Administrative Court dismissed the application for judicial review. After summarizing the claims made in proposal no. B849, it held briefly that it was bound by them. Thus, in its view “it should be concluded that the presence and the activity of the [first applicant] amount to a serious threat to national security and to the international prestige of the Republic of Bulgaria.” 12. In a decision of 29 May 2008 the head of the Ministry of Internal Affairs’ Migration Directorate ordered the first applicant’s detention pending expulsion. That decision was quashed in a judgment of the Sofia Administrative Court of 17 July 2008. In another decision dated 28 August 2008 the head of the National Security Service ordered once again the applicant’s detention. That decision was quashed as well, in a judgment of the Supreme Administrative Court of 27 November 2009. The first applicant effectively remained in detention from 10 September 2008 to the date of his expulsion, 3 September 2009. 13. The other applicants remained for several more years in Bulgaria, but left in November 2015.