ECtHR - Djalti v Bulgaria, Application no. 31206/05, 12 March 2013

Facts:

The applicant, Semir Azuz Djalti, is an Algerian national who lived in Sofia, Bulgaria, and who had his asylum application rejected by the National Agency for Refugees and Asylum Seekers and the local Administrative Court in Sofia in February 2014. After the expiration of his temporary residence permit, his removal from Bulgaria was ordered. On 12 February 2004, the applicant was arrested with a view to his removal to Algeria. However due to a lack of valid travel documents, he was placed in a temporary detention centre for adults. On 3 January 2005, the Bulgarian Immigration authorities contacted the Algerian embassy, but the applicant refused to meet any Algerian representatives for fear of reprisals. The applicant was released in October 2005 after the Bulgarian Court annulled the detention order.

The applicant complained before the ECtHR that his detention was unlawful, in violation of Article 5 ECHR. He also complains that his detention conditions amounted to inhuman or degrading treatment contrary to  Article 3 ECHR.

Decision & reasoning:

First, the claimant alleged that there had been a violation of Article 5(1) ECHR due to the prolonged and arbitrary deprivation of his liberty which could not be justified under Article 5(1)(f). The Court recalled its jurisprudence, with references to Chahal v. UK and A and others v. the UK, that detention with a view to expulsion can be lawful under Article 5 (1)(f) as long as they have been undertaken with due diligence. . In the case in question, the Court found that the detention followed a sufficiently clear and foreseeable legal basis under national law.

The Court then considered whether the duration of the applicants’ detention was enforced with a view to obtain its objective (the applicant’s expulsion). The ECtHR concluded that the applicant’s detention for a total of one year and three months with a view to his expulsion was not lawful because he was not provided with the means to appeal against his expulsion at any point during his detention.

Moreover, with regard to Article 5(1) ECHR, the Court found that the Bulgarian authorities did not show sufficient due diligence in communicating with the Algerian authorities in order to take sufficient steps towards the applicant’s expulsion. It is clear to the Court that, although the applicant refused to cooperate with the authorities, the Bulgarian government did not take active steps to contact the Algerian embassy and obtain the necessary documentation for removal. Hence, the Court concluded that the Bulgarian government had a duty to take further steps to implement the applicant’s expulsion in order for the detention to be compatible with Article 5 ECHR.

Secondly, the Court considered whether the Bulgarian government had been in breach of Article 5 (4) ECHR. The Court recalled the duty of the national judiciary to rule on the lawfulness of such detention with promptness and, if the detention is deemed unlawful, to order the individual’s subsequent release. In the case under analysis, a total of 11 months were required for the appeal to be properly considered before the court and, in September 2005, while the detention order was nullified, the immediate release was not granted and the applicant only left the detention centre 14 days after the quashing of the order by the court. For these reasons, the Court declared that there had been a violation of Article 5 (4) ECHR.

Thirdly, the Court considers whether there had been a violation of Article 3 ECHR due to the applicant’s detention conditions in Bulgaria. For that purpose, the ECtHR assessed whether the applicant had exhausted all domestic remedies. It relied upon its jurisprudence with regard to the availability of domestic remedies in Bulgaria to complain against detention conditions, such as Hristov v. Bulgaria and Shishmanov v. Bulgaria , in which the Court found that the remedies provided by Bulgarian law (namely, the State and Local Authority Responsibility for Wrongdoings Act, 1988) could be considered an effective remedy. The Court found that the applicant could access this remedy despite being in a temporary detention centre. Finally, regarding the accessibility of this remedy and the applicant’s lack of knowledge of the language and legislation, the Court stated that this could not prevent him from taking an action under this law, mostly since he had access to a lawyer in order to appeal against the removal order before the domestic court. Therefore, the Court declared that the domestic remedies had not been exhausted.

The Court also found that the applicant’s complaint under Article 5(2) ECHR (that he was not informed of the reasons of his detention in a language he could understand) was not admissible as he had not submitted his complaint within the period of six months, as required by Article 35(1) ECHR.

Outcome:

The ECtHR found a violation of Articles 5(1) and (4) ECHR, but not of Article 3 ECHR.

Observations/comments:

This case summary was written by Tazkia Rahman, GDL student at BPP University. 

Other sources:

CPT report of 15 September 1995