The case originated in an application against the Republic of Bulgaria lodged by a stateless person of Palestinian origin, Mr Ahmed Jamal Auad, on 13 August 2010. He had obtained subsidiary international protection in Bulgaria, but later was served an expulsion order on national security grounds, detained for removal for 18 months and then released back in Bulgaria due to impossibility to implement the expulsion order. The judgment of the Court is particularly important with regard to the obligation of States to identify a destination country in removal orders: "In cases of aliens detained with a view to deportation, lack of clarity as to the destination country could hamper effective control of the authorities’ diligence in handling the deportation." (para.133).
- Articles 3, 5 and 13 of the European Convention on Human Rights
- Recital 16 and Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third‑country nationals
- Law on Foreign Nationals in the Republic of Bulgaria
- Bulgarian Code on Administrative Procedure
- Constitution of the Republic of Bulgaria
"I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1989 in Ain al‑Hilweh, a Palestinian refugee camp located on the outskirts of Saida, Lebanon (see paragraphs 52‑55 below). He currently lives in Sofia, Bulgaria.
A. The applicant’s arrival in Bulgaria and his asylum claim
8. On 24 May 2009 the applicant arrived illegally in Bulgaria and on 7 July 2009 applied for asylum, citing his fear that if he returned to Lebanon he would be killed or ill-treated by members of the Islamic militant group Jund al‑Sham (see paragraphs 59, 60, 62, 78, 80 and 81 below). His identity was established on the basis of a certificate issued on 26 November 2008 by the Palestine Liberation Organisation.
9. The applicant’s story was that he, like his father who had gone missing in 1991, was a member of Fatah (see paragraphs 59 and 60 below). He had been appointed to a salaried position in the movement with the protection of its head of security in Ain al‑Hilweh, colonel Maqdah (see paragraphs 54, 55 and 84 below). His job had consisted in organising rallies in support of various Palestinian organisations, commemorations of the Palestinian revolution and protests against the founding of Israel. In early 2009, a neighbour of his who was a member of Jund al‑Sham had been killed, the killing having been facilitated by information supplied by a friend of the applicant, also a member of Fatah. In reprisal, members of Jund al‑Sham had killed the applicant’s friend. To protect himself, the applicant had moved to his sister’s house, located in a part of the camp which was under the control of Fatah. In July 2009 armed men had fired rounds at his sister’s house, shouting his name. Later on colonel Maqdah had told the applicant that those men had been members of Jund al‑Sham seeking revenge for their associate’s killing, that he was not able to protect him from them, and that he should leave Lebanon.
10. In August 2009 the applicant tried to leave Bulgaria with false documents. He was arrested by the police at the Bulgarian‑Greek border. On 21 August 2009 the Petrich District Court approved a plea bargain whereby the applicant pleaded guilty to offences of illegally crossing the border and trying to deceive a public officer by using an official document issued to another person. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 Bulgarian levs.
11. In a decision of 29 October 2009, the State Refugees Agency refused to grant the applicant refugee status, but granted him humanitarian protection under section 9(1)(3) of the Asylum and Refugees Act of 2002 (see paragraph 29 below). The reasons for the decision described the applicant’s story, as related by him, and continued:
“Bearing in mind the situation in the Palestinian [refugee] camp [Ain al‑Hilweh],which is characterised by serious armed clashes between ‘Fatah’ and militants from ‘Jund al‑Sham’, there are grounds to grant the applicant humanitarian protection, due to the real risk of infringements consisting of personal threats against his life in a situation of internecine armed conflict. Refugee camps in Lebanon have their own system of governance. Camp administrations are not elected by popular vote, but reflect the predominance of one or more groups or formations that constantly vie for territorial control, which often leads to armed clashes. In an interview for the news agency IRIN of April 2008, the head of security of ‘Fatah’ in Lebanon colonel Maqdah said that ‘Fatah’ will take care of security in all Palestinian camps in order to put an end to the spread of radical groups. ...
The applicant states that he has been a member of ‘Fatah’ since 2006, but there are no acts of persecution against him by the authorities or by another political organisation that the State is unable to oppose. He does not point to any of the other relevant grounds under section 8(1) of the Asylum and Refugees Act justifying fear of persecution, such as race, religion, nationality, membership of a particular social group, or political opinion or belief. That leads to the conclusion that there are no grounds to grant asylum under the Asylum and Refugees Act [of 2002]. The [applicant] does not raise grounds justifying the application of section 9(1)(1) or (1)(2) of [the Act].
The evidence in the file points to grounds to grant humanitarian protection. There are indications of circumstances falling within the ambit of section 9(1)(3) of [the Act]. The above‑mentioned circumstances show that there are grounds to take into account [the applicant]’s personal situation in connection with the general social and political situation in the Palestinian camps in Lebanon. The evidence gathered during the proceedings shows that there is a real danger and risk of encroachments upon [the applicant’s] life and person.
Under section 75(2) of the [Act], the [applicant]’s assertions, set out in detail in the record drawn up by the interviewing official, must be presumed to be truthful.
As required by section 58(7) of [the Act], the State National Security Agency was invited to make written comments. Those comments, dated 21 August 2009, contain no objection to granting the [applicant] protection in the Republic of Bulgaria.”
12. The applicant did not seek judicial review of the refusal to grant him refugee status.
13. During that time he was settled, together with other Palestinians, in a housing facility operated by the State Refugees Agency.
B. The order for the applicant’s expulsion and his ensuing detention
14. On 17 November 2009 an agent of the State Agency for National Security proposed to expel the applicant on national security grounds and to place him in detention pending the carrying out of that measure. In support of the proposal he said that the applicant was a member of Usbat al‑Ansar, which he described as a Sunni terrorist organisation acting in close cooperation with Hamas, Jund al‑Sham, Ansar Allah and others (see paragraphs 54, 59‑61 and 78 below). The applicant was alleged to have taken part in “wet jobs” for the organisation and in the assassinations of more than ten members of a Palestinian political party; he was being sought by the Lebanese authorities in connection with that. He was a relative of one of the leaders of Usbat al‑Ansar. The available information showed that the applicant followed strictly the organisation’s ideas and would unhesitatingly follow the orders of its leaders. This had been confirmed by partner security services. It had also been established that the applicant kept contacts with two asylum seekers who were known to adhere to a terrorist organisation active in Ain al‑Hilweh. One of them had been implicated in the killing of a member of a Palestinian political party and kept close contacts with Usbat al‑Ansar and Fatah al‑Islam (see paragraph 65, 72, 74, 78 and 81 below). All of that showed that the applicant by reason of his previous and current activities presented a serious threat to the national security of Bulgaria, and that his presence in the country discredited it as a reliable partner in the fight against international terrorism.
15. On 17 November 2009 the head of the State Agency for National Security made an order for the applicant’s expulsion. He also barred him from entering or residing in Bulgaria for ten years, “in view of the reasons set out in [the above‑mentioned] proposal and the fact that his presence in the country represent[ed] a serious threat to national security”. The order relied on sections 42 and 44(1) of the Aliens Act 1998. No factual grounds were given, in accordance with section 46(3) of the Act (see paragraph 33 below). The order further provided that it was to be brought to the attention of the applicant and was immediately enforceable, as provided by section 44(4)(3) of the Act (see paragraph 34 below).
16. Concurrently with that order the head of the State Agency for National Security made an order for the applicant’s detention pending deportation (see paragraphs 42 and 43 below). He reasoned that the information featuring in the proposal showed that the applicant would try to prevent the enforcement of the expulsion order, and accordingly directed that the detention order should be immediately enforceable. He also instructed the immigration authorities urgently to take all necessary steps to enforce the expulsion order.
17. On 20 November 2009 the applicant was arrested and placed in a special detention facility pending enforcement of the expulsion order. He submits that when brought there he was informed about the two orders against him but was not given copies of them.
18. On 19 May 2011, in view of the impending expiry of the maximum permissible period of detention pending deportation – eighteen months (see paragraph 44 below), the head of the State Agency for National Security made an order for the applicant’s release. The applicant was set free the following day, 20 May 2011. He was placed under the obligation to report daily to his local police station. He submits that he is currently without any identification documents, means of support, or the possibility to work.
C. Judicial review of the applicant’s expulsion
19. On 4 December 2009 the applicant made an application for judicial review of the expulsion order. He also challenged his detention. He argued that the order was unlawful and that he had not engaged in any illegal activities while in Bulgaria.
20. On 23 March 2010 the applicant, having acquainted himself with an excerpt of the proposal for his expulsion and other documents in the file, asked the court to order the authorities to specify – if need be, subject to restrictions resulting from the use of classified information – what was the basis for their belief that he was being sought by the Lebanese authorities “in connection with the killing of members of Palestinian political parties”, as noted in the proposal. He also asked the court to order the authorities to specify whether they had used special means of surveillance to gather information about him; if yes, to order them to produce a copy of the requisite warrant and other documents.
21. The Supreme Administrative Court heard the case on 27 April 2010.
22. In a memorial filed on that date the applicant argued that the data on which the authorities had relied to order his expulsion were incorrect, vague, unverified, internally inconsistent and unreliable. It was not true that he was a member of Usbat al‑Ansar; quite the opposite, he was being sought by terrorist organisations, and had for that reason fled Lebanon. His relative referred to as a terrorist in the proposal was in fact an official of a school administered by the United Nations. There were no concrete elements in support of the assertion that he was being sought by the Lebanese authorities. The Bulgarian authorities had not tried to verify that through official channels, as was possible under the treaty between Bulgaria and Lebanon for mutual cooperation in criminal matters. The lack of concrete information on those issues prevented him from presenting evidence to rebut the allegations against him. He also pointed out that the State Agency for National Security had not objected to his receiving protection in Bulgaria during the asylum proceedings (see paragraph 11 above). Lastly, he drew attention to the fact that he had been granted humanitarian status on the basis of a risk to his life, and argued that his expulsion would breach the principle of “non‑refoulement” and Article 3 of the Convention.
23. In a final judgment of 22 June 2010 (реш. № 8‑10 от 22 юни 2010 г. по адм. д. № С‑4/2010 г., ВАС, VІІ о.), the Supreme Administrative Court upheld the expulsion order in the following terms:
“The order was issued on the basis of the reasons set out in proposal no. T‑6‑5347/17.11.2009 and the factual ground featuring in section 42(1) of the Aliens Act [of 1998 – see paragraph 33 below] – the alien’s presence in the country poses a serious threat for national security.
The proposal for imposing the coercive measure in issue says that [the applicant] was born on 30 November 199 in the refugee camp ‘Ain al‑Hilweh’. He became a member of the terrorist radical Islamic organisation ‘Asbat al‑Ansar’, which is active on the territory of that camp. That organisation works in close cooperation with similar organisations, including ‘Hamas’. The [applicant] was member of a ‘wetwork’ squad that targeted also members of a Palestinian political party. It is not in dispute that the applicant is a relative of [A] who, according to operative information, is one of the leaders of ‘Asbat al‑Ansar’. He follows strictly the organisation’s ideas and would carry out without hesitation the orders of its leaders.
[The applicant] entered the territory of the county in June 2009 and applied for asylum. However, in August that year he tried to leave the country with forged documents, heading towards western Europe. He was arrested by the border police at [a checkpoint at the Bulgarian‑Greek border]. [On] 21 August 2009 the Petrich District Court ... approved a plea bargain whereby [the applicant] pleaded guilty to offences under Articles 279 § 1 and 318 of the Criminal Code[: illegal crossing of the border and trying to deceive a public officer by using an official document issued to another person]. He was sentenced to six months’ imprisonment, suspended for three years, and fined 200 [Bulgarian] levs.
According to operative information, he is in contact with [B] and [C], who are present in the country as asylum seekers. There is information that M.I. is also a member of Jund al‑Sham and has taken part in the assassination of a member of ‘Fatah’ in ‘Ain al‑Hilweh’, in connection with which he is being sought by the Lebanese authorities. [C] is an adherent of the terrorist organisation ‘Asbat al‑Ansar’ and takes part in a human trafficking channel from Lebanon to western Europe that is used by members of Lebanese terrorist organisations. It is known that there are contacts between [D] and individuals who reside in western Europe and who sympathise with ‘Jund al‑Sham’. The proposal makes a reasoned assumption that, due to his earlier and present activities the [applicant] presents a serious threat to the security of the Republic of Bulgaria, within the meaning of section 4 of the State Agency for National Security Act [of 2007], and his presence in the country is liable to discredit our country as a reliable partner in the fight against international terrorism.
The written evidence in the case includes excepts nos. RB 202001‑001‑03‑T6‑3594, ‑95 and ‑96 of 12 April 2010. By decision no. 513 of 29 October 2009, the State Refugees Agency refused to grant [the applicant] refugee status.
The assertions in the application that [the applicant] resides lawfully on the territory of the country have not been proven. The negative assertions in the application that he has not taken part in unlawful activities cannot be regarded as established, because the specialised agency has made findings in that regard.
Under section 46(3) of the Aliens Act [of 1998], expulsion orders do not point to the factual grounds for the imposition of the coercive measure; those grounds are contained in the proposal for its imposition. The proposal shows that there are indications of encroachments on national security, falling within the remit of the State Agency for National Security under section 4(1)(11) and (14) of the State Agency for National Security Act [of 2007]: international terrorism and cross‑border organised crime, which creates a threat for national security. The existence of such indications does not require proof beyond doubt of acts directed against the security of the county. There are sufficient grounds to impose a coercive measure if there are indications which can lead to a reasonable assumption that the applicant’s presence creates a serious threat to national security. The factual data gathered through operative methods and set out in proposal no. RB 202001‑001‑03‑T6‑5347 of 17 November 2009 constitute grounds to make a reasonable assumption that this applicant’s presence does create a serious threat to national security. The existing data about the applicant’s activity on the country’s territory show the existence of the grounds set out in section 42 of the Aliens Act [of 1998 – see paragraph 33 below].
A coercive measure, such as that envisaged by section 42 of the Aliens Act, has a preventive character, it aims to prevent actions directed against the country’s security. For it to be imposed, it is not necessary to carry out a full inquiry into the information that has been gathered or seek proof for it, because this is not a case involving the imposition of an administrative sanction.
The applicant’s statement, made in open court, that he does not wish to be returned to Lebanon, where his life is under threat, is irrelevant for the present proceedings. Under section 42(2) of the Aliens Act, the withdrawal of the right of an alien to reside in the Republic of Bulgaria and the imposition of a ban on entering its territory inevitably flow from the imposition of the coercive measure under subsection 1 – expulsion.
The order complies with the legal requirements. The coercive measure has been imposed by the competent authority under section 44 of the Aliens Act [of 1998], in due form and in compliance with the rules of administrative procedure, the substantive law norms and the aim of the law, and for those reasons the application for judicial review must be rejected as ill‑founded.”
D. Judicial review of the applicant’s detention pending deportation
24. The legal challenge to the applicant’s detention pending deportation (see paragraph 19 above) was transmitted to the Sofia City Administrative Court. In the course of the ensuing proceedings the court was provided with an excerpt of the expulsion proposal. In a final judgment of 9 February 2010 (реш. № 2 от 9 февруари 2010 г. по адм. д. № С‑66/ 2009 г., САС, І о.), it upheld the order for the applicant’s detention, finding that it had been made by a competent authority, in proper form, in line with the applicable substantive and procedural rules, and in conformity with the aim of the law. It went on to say that there was enough evidence that the applicant would try to hinder the enforcement of the order for his expulsion.
25. On an unspecified date in the summer of 2010 the Sofia City Administrative Court, acting of its own motion, as required under new section 46a(4) of the 1998 Aliens Act (see paragraph 45 below), reviewed the applicant’s continued detention (адм. д. № 3872/2010 г., САС). It confirmed it for a further six months.
26. On 7 December 2010, again acting of its own motion, the Sofia City Administrative Court confirmed the applicant’s detention for a maximum of a further six months, until 20 May 2011 (опр. № 4227 от 7 декември 2010 г. по адм. д. № 9061/2010 г., САС, І о.). It noted that the detention had already lasted almost twelve months and by law could be prolonged for a maximum of eighteen months. There existed impediments to the enforcement of the order for the applicant’s expulsion. He did not have the required travel document that would enable him to enter Lebanon. In spite of three requests, the Lebanese embassy had failed to issue such a document. The case thus fell within the ambit of section 44(8) of the Aliens Act 1998 (see paragraph 44 below)."
- Regarding Article 3 ECHR, the applicant alleged that if expelled to Lebanon, he would face a real risk of ill‑treatment or death. As for the Government's reliance on Article 44a of the Law on Foreign Nationals (prohibiting expuslion to a country where there is a risk of prohibited treatment), there existed no mechanism to ensure its effective application. The only opportunity for the applicant to invoke that provision to prevent his expulsion to Lebanon had been in the proceedings for judicial review of the expulsion order. However, the Supreme Administrative Court had held that the point was irrelevant.
- Regarding Article 13 ECHR, the applicant complained under Article 13 in conjunction with Articles 3 and 8 of the Convention that the Supreme Administrative Court had not genuinely scrutinised whether he represented a risk for national security, had refused to examine whether he would risk ill‑treatment or death if expelled to Lebanon, and had not considered whether such expulsion would be proportionate.
- Regarding Article 5(1) ECHR, the applicant submitted that there was no indication that the authorities had been actively pursuing his expulsion or that it was at all possible. The only thing that the authorities had done had been to contact the Lebanese embassy in Sofia with a view to obtaining travel documents for the applicant to allow him to enter Lebanon. They had not tried to contact the embassies of any safe third countries. In the applicant’s view, detention pending deportation should be allowed to reach the maximum eighteen‑month period allowed by law only in exceptional cases.
- Regarding Article 3 ECHR, the Government submitted that the applicant’s fears were groundless in view of the prohibition in section 44a of the Law on Foreign Nationals on the expulsion of aliens to a country where their health or life would be in jeopardy.
- Regarding Article 13 ECHR, the Government submitted that the applicant had been able to challenge the order for his expulsion in judicial review proceedings, in the course of which he had been able to acquaint himself with all documents in the case file and seek to rebut the assertions of the authorities. In judicial review proceedings, the courts reviewed whether the administrative decision had been issued by a competent authority, in due form, and in compliance with the rules of administrative procedure and substantive law. In the applicant’s case, the Supreme Administrative Court had done just that.
- Regarding Article 5(1) ECHR, the Government submitted that the law governing detention pending deportation was fully Convention‑compliant. It also met the requirements of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third‑country nationals. Those standards had been fully observed in the applicant’s case. His placement in the detention facility had been reviewed by an independent body, as the applicant had sought judicial review of the order for his detention by the Sofia Administrative Court. In the course of the proceedings the authorities had produced documents showing the grounds for taking the impugned measure. The applicant, who had been legally represented, had been able to contest the authorities’ assertions. After reviewing the legality of the detention order, the court had rejected his application.
In relation to Articles 3 and 13 ECHR, the Court noted:
"103. Moreover, this evidence cannot be considered in isolation. Instead, it must be assessed against the background of the available information on the situation in Lebanon and that of the Palestinian refugees there. It is true that the situation in the country as a whole does not appear so serious that the return of the applicant there would constitute, in itself, a breach of Article 3 (see paragraph 58 above). However, it cannot be overlooked that the applicant is a stateless Palestinian originating from a refugee camp in Lebanon (see paragraphs 1 and 7 above). There is therefore a likelihood that he would not be allowed to reside in Lebanon proper, but would have to return to the camp from which he fled, Ain al‑Hilweh. The information available on the Palestinian refugee camps in general and Ain al‑Hilweh in particular (see paragraphs 52‑55, 60, 62, 65‑73, 77, 78, 80 and 82‑88 above) shows that they are not under the control of the Lebanese authorities, but of various Palestinian armed factions. They are secluded from the rest of the country, are often surrounded by Lebanese army checkpoints, and have been described in reports as “beyond the [S]tate’s reach”, “de facto sanctuaries for weapons” and “a safe heaven for those who seek to escape the authority of the State”. They continue to be plagued by outbursts of violence and armed clashes between various factions. (...)
106. The Court’s main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he has fled (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 286, 21 January 2011). It is not persuaded that, if and when they proceed with the applicant’s expulsion, the Bulgarian authorities will examine with the necessary rigour whether his return to Lebanon would put him at risk of treatment prohibited under Article 3 (contrast M.H. v. Sweden(dec.), no. 10641/08, §§ 25 and 41, 21 October 2008). The Government did not provide any particulars about the manner in which the immigration authorities apply section 44a when implementing expulsion orders, and did not give any concrete examples. (...)"
In relation to Article 5 (1) ECHR, the Court noted:
"133. The assessment of those points is further frustrated by the fact that neither the expulsion order nor any other binding legal act specified the destination country, as this was not required under domestic law (see paragraphs 39 and 40 above). The Court considers that this may be seen as problematic with regard to the requirement of legal certainty inherent in all Convention provisions. Where deprivation of liberty is concerned, legal certainty must be strictly complied with in respect of each and every element relevant to the justification of the detention under domestic and Convention law. In cases of aliens detained with a view to deportation, lack of clarity as to the destination country could hamper effective control of the authorities’ diligence in handling the deportation."
"FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the applicant’s impending expulsion, the alleged lack of effective remedies in that regard, and his detention pending deportation admissible, and the remainder of the application inadmissible;
2. Holds that, should the order to expel the applicant be implemented, there would be a violation of Article 3 of the Convention;
3. Holds that there has been a violation of Article 13 of the Convention;
4. Holds that there has been a violation of Article 5 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction."
The Court found that, should the order to expel the applicant be implemented, there would be a violation of Article 3 of the Convention;
The Court also found that there has been a violation of Article 13 of the Convention and Article 5 § 1 of the Convention.
- ECJ case C‑357/09, Kadzoev - Advocate General Mazák Opinion
- ECtHR case of C.G. and Others v. Bulgaria (no. 1365/07, 24 April 2008)
- ECtHR case of Raza v. Bulgaria (no. 31465/08, 11 February 2010)