European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF KURILOVICH AND OTHERS v. BULGARIA

 

(Application no. 45158/09)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

1 June 2017

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Kurilovich and Others v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Nona Tsotsoria, President,
          Síofra O’Leary,
          Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 9 May 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 45158/09) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belarusian national, Mr Dmitri Gavrilovich Kurilovich (“the first applicant) and two Bulgarian nationals, Ms Maria Atanasova Kurilovich (“the second applicant”) and Mr Alexandar Dmitriev Kurilovich (“the third applicant) (together “the applicants”), on 2 July 2009.

2.  The applicants were represented by Ms G. Galabova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

3.  On 14 December 2015 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1978, 1980 and 2007 respectively.

5.  The first applicant came to Bulgaria in 1997. In 2001 he was granted long-term resident status, and in 2003 - permanent resident status. In 2005 he married the second applicant, and in 2007 the third applicant, their son, was born.

6.  On 29 May 2008 the head of the National Security Service issued an order withdrawing the first applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his re-entering Bulgaria on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B848”.

7.  That proposal, drawn up by the National Security Service on 27 May 2008 and initially classified, was declassified in 2016 and has been submitted by the Government. It stated that the first applicant was a member of a “Russian criminal group” implicated in money laundering, extortion, smuggling, illegal arms deals and the financing of “terrorist groups” on the territory of the Russian Federation. It said further that the first applicant had lowered Bulgaria’s international reputation, by “implicating the country in the financing of terrorist organisations, transnational criminality, corruption and drug trafficking”. No evidence was provided to substantiate those claims.

8.  On 12 June 2008 the first applicant applied for judicial review of the order of 29 May 2008. He denied the allegations against him and stated that his family resided in Bulgaria and that the measures against him breached his Convention rights. In addition, he presented a certificate that he had no criminal convictions in Bulgaria.

9.  In a final judgment of 8 January 2009 the Supreme Administrative Court dismissed the application for judicial review and held that the 29 May 2008 order was lawful. After summarising the allegations made in proposal no. B848, it held merely that they were sufficient to justify a conclusion that the first applicant represented a threat to national security. Furthermore, it dismissed his arguments relating to his family life, considering that

“any restriction of the rights under the Convention is justified [when based] on national security considerations, in cases where foreign citizens’ behaviour threatens the national security and the public order of the State where they reside.”

10.  The first applicant was expelled on 24 April 2009. It is unclear whether the second and third applicants remained in Bulgaria after that. In 2012 the first and second applicants had another child.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

11.  The relevant domestic law and practice have been summarised in the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, §§ 30-36, 11 February 2010).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 AND ARTICLE 13 OF THE CONVENTION

12.  The applicants complained under Article 8 of the Convention that the first applicant’s expulsion from Bulgaria had disrupted their settled family life. They also complained, relying on Articles 6 and 13 of the Convention, that they had had at their disposal no effective remedy to protect their right to family life.

13.  The Court is of the view that it suffices to examine the complaints under Article 8 and Article 13 of the Convention, which read as follows:

Article 8

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

Article 13

“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.  Arguments of the parties

14.  The Government argued that the second and third applicants could not be considered victims of the alleged violations of the Convention, since the authorities had taken no measures against them. Moreover, there was no obstacle for the applicants settling as a family elsewhere.

15.  The Government claimed in addition that the Bulgarian authorities had “proven” that the first applicant’s expulsion had been justified and that it was “indisputable” that he had posed a threat to national security. They considered that the Supreme Administrative Court had conducted a “thorough and comprehensive” review of the allegations against the first applicant, giving “convincing, albeit laconic”, reasons for its decision to uphold the expulsion order.

16.  The applicants disagreed. They pointed out that they had lived as a family in Bulgaria and that there was no doubt that the first applicant’s expulsion represented an interference with their right to family life. They argued that the measures against the first applicant had been arbitrary, since the allegations against him had remained unproven and had been unsupported by any evidence. Moreover, according to the applicants it was doubtful whether some of the actions alleged on the first applicant could indeed be seen as impinging upon the national security of Bulgaria. Lastly, the Supreme Administrative Court had applied a formalistic approach, failing to verify the executive’s allegations against the first applicant, and had failed to respond in a meaningful manner to his arguments related to his right to family life.

B.  The Court’s assessment

1.  Admissibility

17.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

18.  On the merits, the Court notes at the outset that the present application is similar to a number of earlier cases against Bulgaria concerning expulsion of aliens on alleged national security grounds (see, for example, C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008; Kaushal and Others v. Bulgaria, no. 1537/08, 2 September 2010; M. and Others v. Bulgaria, no. 41416/08, 26 July 2011; and Raza, cited above).

(a)  Article 8 of the Convention

19.  In the present case the respondent Government have not disputed that the applicants had established a genuine “family life” in Bulgaria, within the meaning of Article 8 of the Convention. What they disputed was the existence of an interference with the applicants’ right to respect for their family life, pointing out that the authorities had taken no measures against the second and third applicants and arguing that it had remained possible for the applicants to settle as a family in another country (see paragraph 14 above).

20.  In that regard, the Court observes that the first applicant arrived in Bulgaria in 1997 and was lawfully resident there on the strength of a permanent residence permit. He married a Bulgarian national and had a child with her, also a Bulgarian national (see paragraph 5 above). Prior to the first applicant’s expulsion in 2009 the family had only lived in Bulgaria. Accordingly, the expulsion, which effectively led to the family’s separation, interfered with the applicants’ right to family life (see Al-Nashif v. Bulgaria, no. 50963/99, § 115, 20 June 2002, and Lupsa v. Romania, no. 10337/04, §§ 26-7, ECHR 2006-VII).

21.  That interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that provision as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned.

22.  As to the first of these requirements, namely that the interference should be “in accordance with the law”, the Court observes that in the previous similar cases against Bulgaria, some of which cited in paragraph 18 above, it found that the impugned expulsions ordered on alleged national security grounds did not meet the Convention standards, as the relevant law, procedures and practice did not offer even a minimum degree of protection against arbitrariness. In particular, in C.G. and Others (cited above, §§ 42-47), the Court found, first, that the national courts had allowed the executive to stretch the notion of national security beyond its natural meaning and, second, that those courts had not examined whether the executive had been able to demonstrate the existence of specific facts serving as a basis for its assessment that the first applicant presented a national security risk. The Court found, in addition, that the domestic courts had applied a formalistic approach and had left a governmental agency full and uncontrolled discretion to certify, with reference to little more than its own general statements, that an alien was a threat to national security and had to be expelled. As such “certifications” were considered to be beyond any meaningful judicial scrutiny, there was thus no safeguard against arbitrariness (see also Kaushal and Others, §§ 28-32, and M. and Others, § 98, both cited above; also Amie and Others v. Bulgaria, no. 58149/08, § 98, 12 February 2013).

23.  The present case is very similar. The expulsion order against the first applicant was based on statements declaring him to be a member of an international criminal group, involved in extortion, money laundering, smuggling, drug trafficking and other criminal activities, and therefore representing a national security threat (see paragraph 7 above). However, the document containing these statements, proposal no. B848, referred to no evidence on which those declaratory statements were based. In addition, it has not been alleged that the first applicant was ever charged with related offences by the Bulgarian authorities. Thus, the expulsion order appeared to be based on a purely internal assessment by the National Security Service, made on the basis of undisclosed evidence.

24.  Furthermore, the Supreme Administrative Court dismissed the first applicant’s application for judicial review of the expulsion order without engaging in any meaningful scrutiny of the executive’s allegations, and stating merely that the allegations contained in proposal no. B848 were sufficient to justify a conclusion that he represented a threat to national security (see paragraph 9 above).

25.  Consequently, as in the cases referred to previously, despite the first applicant having the formal possibility of seeking judicial review of the impugned measures, the Court finds that the applicants did not enjoy the minimum degree of protection against arbitrariness inherent in the concept of lawfulness under the Convention. The interference with their right to family life was thus not “in accordance with the law”, as required by Article 8 § 2.

26.  In the light of this conclusion, the Court is not required to examine the remaining issues, which concern the existence of one or more legitimate aims and whether the impugned measures were necessary in a democratic society (see M. and Others, § 104, and Kaushal and Others, § 33, both cited above).

27.  It follows that there has been a violation of Article 8 of the Convention.

(b)  Article 13 of the Convention

28.  In the previous similar cases, the Court found with regard to complaints under Article 13 of the Convention in conjunction with Article 8 that the proceedings for judicial review of the expulsion orders concerning the applicants had been deficient in two respects. Firstly, they had not involved meaningful scrutiny of the executive’s allegations. Secondly, the courts had not assessed whether the interference with the applicants’ rights met a pressing social need and was proportionate to any legitimate aim pursued (see C.G. and Others, §§ 59-64, M. and Others, § 125, both cited above; also Madah and Others v. Bulgaria, no. 45237/08, § 39, 10 May 2012).

29.  Similarly, in the present case the Court already noted that the Supreme Administrative Court had not carried out a proper examination of the executive’s assertion that the first applicant presented a national security risk (see paragraph 24 above). It also observes that the Supreme Administrative Court failed to conduct any meaningful analysis on the question of proportionality, merely stating that any restriction of fundamental rights was acceptable as long as it was justified on grounds related to national security (see paragraph 9 above). It follows that the judicial review proceedings in the present case did not secure to the applicants the effective domestic remedy which Article 13 requires in respect of their complaints regarding breach of their right to family life (see M. and Others, cited above, § 125). No other remedy has been suggested by the Government.

30.  There has therefore been a violation of Article 13 of the Convention, taken in conjunction with Article 8.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.  Article 41 of the Convention provides:

“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.”

A.  Damage

32.  The applicants claimed 20,000 euros (EUR) for each of them, or EUR 60,000 in total, in respect of non-pecuniary damage stemming from the violation of their right to family life, and another EUR 5,000 jointly for the three of them for the breach of Article 13. They pointed out that the separation of their family had caused them distress and had forced on them a change of their lives.

33.  The Government contested the claims, considering them excessive.

34.  The Court is of the view that the applicants must have endured distress and frustration resulting from the arbitrary disruption of their family life. These were aggravated by the ineffectiveness of the procedure through which the first applicant tried to challenge his expulsion order. Having regard to the materials in its possession and ruling on an equitable basis as required by Article 41 of the Convention, the Court awards the first applicant EUR 7,500 and to each of the second and third applicants EUR 3,000 in respect of non-pecuniary damage.

B.  Costs and expenses

35.  The applicants also claimed EUR 1,600 for the fees charged by their lawyer in the proceedings before the Court. In support of this claim they presented a declaration by the lawyer stating that she had received the sum in question. The applicants claimed another 501.6 Bulgarian levs (BGN, the equivalent of EUR 257) for translation, enclosing the necessary receipts. They requested that the latter sum be transferred directly into their lawyer’s bank account.

36.  The Government contested the claims.

37.  Regard being had to the documents in its possession and to its case-law, the Court awards the amounts claimed, totalling EUR 1,857, in full. As requested by the applicants, the EUR 257 paid for translation is to be transferred directly into their representative’s bank account.

C.  Default interest

38.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 8 of the Convention;

 

3.  Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 8;

 

4.  Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i)  EUR 7,500 (seven thousand and five hundred euros) to the first applicant, and EUR 3,000 (three thousand euros) to each of the second and third applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,857 (one thousand eight hundred and fifty-seven euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 257 (two hundred and fifty-seven euros) of which to be paid directly into the bank account of the applicants’ representative;

(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;

 

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 1 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško                                                                       Nona Tsotsoria
Deputy Registrar                                                                       President