ECtHR-C.G. and others v. Bulgaria, Application no. 1365/07, 24 July 2008

Facts:

The case relates to three Turkish nationals-parents and their daughter- who were living in Bulgaria. The first applicant, who was granted a permanent residence permit in 1996, was served with an expulsion order on 8 June 2005 on the ground that he presented a serious threat to national security. One day after that decision, he was summoned to a police station, where he was served with the order and detained with a view to expulsion. He was deported to Turkey the same day, without being allowed to get in touch with his wife and daughter or a lawyer. His appeal was rejected by the minister of Internal Affairs and the judicial review proceedings were dismissed by the Bulgarian courts on the basis that the applicant was involved in drug-trafficking.

The applicants alleged that the first applicant’s expulsion from Bulgaria amounted to unjustified interference with their right to respect for their family life, enshrined in Article 8 of the Convention. They further complained that they had not had any effective domestic remedy in that respect (Article 13). Finally, the first applicant complained that his expulsion had been carried out in breach of Article 1 of Protocol No.7. 

Decision & reasoning:

Turning first to the complaint under Article 8, the Court confirmed that the measures taken by the authorities against the first applicant amounted to interference with the applicants’ right to respect for their family life [37]. However, it noted that such an interference could lead to a violation of Article 8, unless it was "in accordance with the law", implying that the law had to be accessible and foreseeable [38]. Turning to the case at hand, the Court observed that the decision to expel the applicant was based on the argument that he posed a threat to national security because of his involvement in the unlawful trafficking of narcotic drugs in concert with a number of Bulgarian nationals [43].  Further, it highlighted that the conclusion that the applicant “presented a serious threat to national security" was based on unspecified information contained in a secret internal document [146]. What is more, it noted that neither the Regional nor the Supreme Court gathered further evidence on that but confined themselves to a purely formal examination of the decision to expel the first applicant [47].

In view of the above considerations, the Court concluded that the interference with the applicants’ family life was not in accordance with "a law" satisfying the requirements of the Convention and therefore found a violation of Article 8 of the Convention [49-50].

With regards to the alleged violation of Article 13, the Court observed that the domestic courts that dealt with the expulsion decision did not examine whether it had been made on genuine national security grounds and whether the executive was able to demonstrate the factual basis for its assessment that he presented a risk in that regard. In addition, it noted that the applicant was initially given no information on the facts that led to this assessment [60] It added that the national courts did not examine whether the interference with the applicants’ family life was proportionate to the aim sought to be attained [61]. As the Court noted, in cases involving Article 8 of the Convention the domestic authorities have to examine whether the interference with the applicant’s rights was justified and proportionate to the legitimate aims pursued [62]. As the approach taken by the national courts in the present case failed to address these questions, the Court held that the judicial review proceedings were not sufficient for the applicants to vindicate their right to respect for their family life [63]. Therefore, it held that there had been a violation of Article 13 [65]. 

Concerning the complaint under Protocol 7 Article 1 of the Convention, the Court noted that under this provision expulsion should be in accordance with the law, which was not the case in the case of the first applicant, as it already found under Article 8 para 2. Concerning the other requirements of Article 1, the Court observed that the first applicant was not provided with the possibility to have his case reviewed, in violation of letter (b) of paragraph 1 [74]. What is more, the first applicant was able to challenge the measures against him only once outside the territory of Bulgaria [75].

Turning to the second paragraph of Article 1 of Protocol No. 7, the Court reiterated that the first applicant’s expulsion was not based on genuine reasons of national security and therefore did not fall under this provision [77].

Taking into consideration the above mentioned, the Court concluded that the applicant should have been given the opportunity to exercise his rights under paragraph 1 of Article 1 before being expelled from Bulgaria and therefore found a violation of this provision [79-80].

Outcome:

Violation of Article 8

Violation of Article 13

Violation of Article 1 of Protocol No. 7