ECtHR - M. and Others v. Bulgaria, Application No. 41416/08

Facts:

The Applicants are M, a national of Afghanistan, his wife, a national of Armenia, and their two minor children. They live in Bulgaria.

M entered Bulgaria in 1998 and converted to Christianity in 2001. He was granted refugee status in March 2004 on the ground that he faced religious persecution in Afghanistan.

On 6 December 2005, the Director of the National Security Service ordered M’s detention pending expulsion to an unspecified country and a 10 year entry ban on the basis that he was a ‘serious threat to national security’. The order appeared to be based on an internal document stating that he was involved in trafficking of migrants.

On 12 October 2006, the Migration Directorate of the national police, a separate agency, also issued an order for the M’s detention pending expulsion. M’s deportation, though immediately enforceable, was not carried out due to M’s lack of valid travel documents. On 18 October 2006 he was detained in the Centre for Interim Detention of Aliens.

Following three requests in 2007-2009, the Embassy ofAfghanistan in Sofia refused to issue an identity document to M due to his lack of wish to return to Afghanistan.

M’s appeals against the expulsion order were dismissed between October 2006 and June 2008. The Sofia City Court, although it upheld M’s appeal against the detention order due to it being signed by an unauthorised official, did not order M’s release.

The ECtHR issued a Rule 39 Interim Measure on 1 September 2008 requesting Bulgaria to refrain from deporting M to Afghanistan until further notice. M was released on 3 July 2009, but was ordered to report daily to the local police station.

The Applicants complained to the ECtHR alleging violations of Articles 3, 5(1) and (4), 8 and 13 due to M’s unlawful detention, the threat to expel him and the lack of an effective remedy.

Decision & reasoning:

The Court noted that detention pending expulsion is only compatible with Article 5(1) if expulsion proceedings are in process and carried out with due diligence. The Court ruled that M’s detention was not Article 5(1) compliant due to (a) M’s detention for over 2 and 2/3 years, (b) the 14 month delay between the order and the first request for identity documents, (c) the 19 month delay between the first request and the second request, (d) the uncertainty caused by two separate detention orders.

The ECtHR also found a violation of Article 5(4) on the basis of that the Bulgarian courts, having obliged M to pursue two separate proceedings to challenge his two detention orders, did not offer an effective review of his detention. In the first proceedings, the Court refused to examine his appeal. In the second, the upholding of the appeal took 2 and ½ years, and didn’t lead to his release.

Regarding the Applicants’ Article 8 claim arising from the threat of expulsion (the detention-related claim rendered unnecessary by the Article 5 violations), the Court was satisfied that the Applicants had established a genuine family life in Bulgaria. The ECtHR regarded the Bulgarian courts as having given the authorities too much discretion on the ground of national security, having only formalistically examined M’s appeal. Furthermore, no facts of evidence justifying the detention order were provided to the ECtHR. The consequent risk of arbitrariness in the procedure was considered a violation of Article 8.

In considering Article 13, the ECtHR reiterated the same concerns about inadequacy of review as discussed above. In addition, the ECtHR noted that national security deportation appeals in Bulgaria had no suspensive effect. A violation of Article 13 was therefore found.

Due to the ECtHR’s findings on Article 8, which would themselves halt Bulgaria’s deportation of M to Afghanistan, the court did not find it necessary to also examine M’s Article 3 complaint.

The Court also noted that, given a number of past cases finding similar violations by Bulgaria, it was necessary to assist the Bulgarian Government in the execution these judgments. The Court recommended measures including changes to the aliens legislation to improve judicial scrutiny of deportation orders, and ensure that the target country is indicated in a legally-binding act, and give automatic suspensive effect to deportation appeals.

Outcome:

Violations of Article 5(1) and (4), Article 8, and Article 13. The Court also ruled that the Bulgaria should make changes to national laws regarding the deportation of aliens. 12,000 euros awarded in respect of non-pecuniary damage, 3,000 euros for costs and expenses.