CASE OF C.G. AND OTHERS v. BULGARIA
(Application no. 1365/07)
24 April 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of C.G. and Others v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Isabelle Berro Lefèvre, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 1 April 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The first applicant's expulsion
B. The proceedings challenging the first applicant's expulsion
1. The appeal to the Minister of Internal Affairs
2. The judicial review proceedings
“The coercive measures are based ... on the ground that the [first applicant] represents a serious threat to national security, for the reasons set out in proposal no. S 6923/08.06.2005...
In upholding the impugned order, the Minister of Internal Affairs states that the evidence gathered clearly establishes that the [first applicant] is a member of a criminal gang dealing in illicit narcotic drugs; this, on the one hand, constitutes grounds under section 10(1)(3) of the [1998 Aliens Act], and, on the other, is a circumstance requiring the administrative authority to take coercive measures. Under section 42 of the [1998 Aliens Act], 'the expulsion of an alien must be carried out if his or her presence in the country creates a serious threat to national security or public order'. On expulsion, the alien must also be deprived of the right to reside in the Republic of Bulgaria and be banned from entering it. The imposition of [these measures] is necessary in the cases set out in section 10 of the [1998 Aliens Act]. The order refers to the grounds set forth in section 10(1)(3), which [provides for the mandatory expulsion of] 'an alien who is known to be a member of a criminal gang or organisation or to be engaged in terrorist activities, smuggling or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods and technologies with a possible dual use, or in the unlawful trafficking of intoxicating or psychotropic substances or precursors or raw materials for their production'. The order states that there is information to the effect that the [first applicant] has participated in the unlawful trafficking of intoxicating and psychotropic substances and precursors and raw materials for their production. This has been established from the enclosed secret file (classified in accordance with section 25 and [Schedule 1], Part 2, point 22 of the [Protection of Classified Information Act of 2002 – see paragraphs 27 and 28 below]) containing the proposal to impose coercive measures to which the impugned order refers. According to this proposal, the data come from secret surveillance measures and information from operative sources gathered by the National Service for Combating Organised Crime in April 2005, showing that [the first applicant] has acted as an intermediary in the supply of narcotic drugs and maintains regular contacts with Bulgarian citizens who distribute narcotic drugs and intoxicating substances in the territory of the towns of Plovdiv and Asenovgrad.
The three measures imposed on the [first applicant] are based on section 42(2) of the [1998 Aliens Act]. ... According to section 46(2)(3) of [that Act] taken in conjunction with section 15(3) of the [1979 Administrative Procedure Act], such an order must refer only to the legal and not the factual grounds for imposition of the coercive measures. As may be seen from the order, it fully complies with the requirements of [these provisions].
There is no dispute as to the competence of the authority which made the order. [The first applicant alleges] breaches of the rules of procedure, but none has been found by the court. Section 42 of the [1998 Aliens Act] does not lay down any special rules of procedure... No procedural violations have been found in the fact that the proposal for coercive measures was made secret, as from its last page it may be seen that it was made on 7 June 2005 and was classified on the same day...
[The court will now examine t]he [first applicant]'s objections concerning the lack of factual grounds for imposition of the measures. The legal grounds cited in the order require the existence of information concerning the facts referred to in sections 42 and 42a of the [1998 Aliens Act], taken in conjunction with section 10(1)(3). Concerning the [first applicant's] objections in this regard, it must be stressed that the [law refers to] information relating to such facts rather than proof thereof. The availability of proof would produce different legal consequences for the [first applicant].
The impugned order imposes coercive measures which, according to section 22 of the [Administrative Offences and Penalties Act 1969], are applied in order to pre empt and put an end to administrative and other offences, as well as to pre empt and redress their harmful consequences.
The information was gathered through the use of secret surveillance measures and through operative sources of the National Service for Combating Organised Crime, as may be seen from the proposal cited in the order. According to the definition of the [Special Surveillance Means Act of 1997], the measures concerned comprise technical means (electronic and mechanical devices, as well as substances which are used for recording the activity of monitored persons and objects) and operative methods (surveillance, tapping, following, covert entry of premises, marking and checking of correspondence and computerised information, which are employed during the use of technical devices) used for the preparation of physical evidence in the form of videotapes, audiotapes, photographs and marked objects. Under section 3 of this Act, these may also be used for preventing offences... They are used against persons who are suspected of preparing or perpetrating or of having perpetrated serious crimes. The evidence thus obtained is kept either by the Ministry of Internal Affairs until the institution of a preliminary investigation, or by the respective judicial authorities. Any item not used for the preparation of evidence has to be destroyed.
The nature of the source of information which led to the issuing of the impugned order makes it impossible to adduce further evidence relating to the facts. However, this by no means leads to a finding that the coercive measures were unlawful. Moreover, the [first applicant] does not dispute the facts; he merely challenges the use of information concerning them as grounds for the coercive measures imposed. The [court] finds that the facts set out in the proposal can serve as the basis for application of sections 42 and 42a of the [1998 Aliens Act taken in conjunction with section 10(1)(3)]. In view of the foregoing, the [court] concludes that the impugned order was in accordance with the requirements of the substantive law.
The [first applicant]'s last objection concerns the non compliance of the impugned order with the aim of the law. He relies on his long standing family life in Bulgaria, his marriage to a Bulgarian citizen and the nine year old child born from this marriage (all facts which have been acknowledged by the parties and the court)...
However, all these circumstances have no bearing on the lawfulness of the order under section 42(1) and (2) of the [1998 Aliens Act], still less on its compliance with the aims of the law, as the law in question provides for the restriction of certain rights for the purpose of preventing the commission of offences.
In this context, the [first applicant]'s reliance on [Al Nashif, cited above] is misplaced, as this case concerns the right to seek judicial review, which is available to the [first applicant].”
“... [This court] finds that the conclusions of the first instance court as to the lawfulness of the impugned order were correct and well founded.
According to section 42(1) of the [1998 Aliens Act], an alien's expulsion is necessary if his or her presence in the country puts national security or public order in serious jeopardy. Sub section 2 of that section provides that whenever [a person is expelled] his or her right to reside in the Republic of Bulgaria is also revoked and he or she is prohibited from entering the country.
According to section 42a of the same Act, the prohibition on entering the country is imposed under the circumstances set out in section 10 [of the Act]. The impugned order by the director of the Plovdiv Regional Directorate of Internal Affairs states that the [first applicant's case] falls under points 1 and 3 of section 10 of the [1998 Aliens Act], in that through his actions he has jeopardised the security and the interests of the Bulgarian State or is known to have acted against the security interests of the country, to have been a member of a criminal gang or organisation or to have engaged in terrorist activities, smuggling or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies with a possible dual use, or in the illicit trafficking of intoxicating or psychotropic substances or precursors or raw materials for their production.
It has been established in the present case that [the first applicant] has acted as an intermediary for the supply of narcotics and maintains regular contacts with Bulgarian citizens who distribute narcotics and intoxicating substances in the territory of the towns of Plovdiv and Asenovgrad.
The impugned order was issued on the basis of proposal no. S–6923/08.06.2005 by the head of Plovdiv Regional Security Department, which contains data revealing that the presence of the alien in the [Republic of Bulgaria] puts national security in serious jeopardy.
The provisions of sections 42 and 42a of the [Aliens Act] are mandatory. If the conditions referred to in these texts are in place, the administrative authority is required to use coercion and order the expulsion of the alien concerned, and at the same time to withdraw his or her residence permit and prohibit him or her from entering the Republic of Bulgaria. The administrative authority has no discretion as to whether or not to make the order. As the law does not provide for exceptions which might allow [the authority not to make an order for expulsion], the expulsion is lawful provided the required conditions are in place.
The impugned order was made in accordance with the purpose of the law and in accordance with the [applicable] substantive and procedural rules. The administrative authority elucidated the relevant facts and specified the legal grounds for making the order. ...”
C. Subsequent meetings between the first applicant and the second and third applicants
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 1998 Aliens Act and developments in its interpretation and application
26. Subsequently, in April 2007, section 46(2) of the Act was amended. It now provides that orders withdrawing aliens' residence permits and banning them from entering the country for the reasons set out in section 10(1)(1), or orders for their expulsion, may be challenged before the Supreme Administrative Court, which rules by means of a final judgment.
B. The Protection of Classified Information Act 2002 (Закон за защита на класифицираната информация)
C. Narcotic drugs offences
D. Secret surveillance
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
“... 15. As a rule, an alien should be entitled to exercise his rights under sub paragraphs a, b and c of paragraph 1 before he is expelled. However, paragraph 2 permits exceptions to be made by providing for cases where the expulsion before the exercise of these rights is considered necessary in the interest of public order or when reasons of national security are invoked. These exceptions are to be applied taking into account the principle of proportionality as defined in the case law of the European Court of Human Rights.
The State relying on public order to expel an alien before the exercise of the aforementioned rights must be able to show that this exceptional measure was necessary in the particular case or category of cases. On the other hand, if expulsion is for reasons of national security, this in itself should be accepted as sufficient justification. In both cases, however, the person concerned should be entitled to exercise the rights specified in paragraph 1 after his expulsion. ...”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his ... family life, ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties' submissions
B. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties' submissions
B. The Court's assessment
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7 TO THE CONVENTION
“1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.
2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”
A. The parties' submissions
B. The Court's assessment
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants, 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) to the first applicant, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage;
(ii) to the second applicant, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage;
(iii) to the third applicant, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage;
(iv) to all three applicants, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses. EUR 700 (seven hundred euros) of this sum is to be paid directly to the applicants and EUR 800 (eight hundred euros) into the bank account of their legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva;
(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;
Done in English, and notified in writing on 24 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen