CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 février 2013

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page-break-after:avoid } .sE511D6F6 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid } .sD083B52B { width:1.2pt; display:inline-block } .s3E3166BC { width:200.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FOURTH SECTION           CASE OF AMIE AND OTHERS v. BULGARIA   (Application no. 58149/08)             JUDGMENT     STRASBOURG   12 February 2013       FINAL   12/05/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Amie and Others v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President ,   David Thór Björgvinsson,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Vincent A. De Gaetano,   Paul Mahoney, judges , and Lawrence Early, Section Registrar , Having deliberated in private on 22 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 58149/08) 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 four stateless persons, Mr Mahmud Abas Amie, Ms   Rowida Mustafa Kamah, Ms Katia Mahmud Amie and Mr Firas Mahmud Amie, and one Bulgarian national, Mr Abas Mahmud Amie (“the applicants”), on 1 December 2008. 2.     The applicants were represented by Mr H. Georgiev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3.     The applicants alleged, in particular, that the impending expulsion of the first applicant from Bulgaria would unlawfully and unduly interfere with their right to respect for their family life. The first applicant also alleged that his detention pending the enforcement of the order for his expulsion had been unlawful and too lengthy, and that he had been unable to obtain judicial review of that detention. 4.     On 1 September 2010 the Court (Fifth Section) decided to give the Government notice of the application. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5.     Following the re ‑ composition of Court’s sections on 1 February 2011, the application was transferred to the Fourth Section. 6.     On 17 January 2011 the Government requested the Court to restrict public access to the documents in the case file under Rule 33 §§ 1 and 2 of its Rules because they intended to submit three documents – the proposal which had triggered the order for the first applicant’s expulsion, and a decision and a judgment of the Supreme Administrative Court (see paragraphs 12, 16 and 21 below). On 7 February 2011 the President of the Fourth Section acceded to their request, but only in so far as it concerned those three documents. The Government submitted copies of the documents on 20 and 23 June 2011. They did not submit copies of any other classified documents. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7 .     The first applicant was born in 1970 in Lebanon. The second applicant, his wife, was born in 1971 in Kuwait. The third and the fourth applicants, who are children of the first and second applicants, were born in 1991 and 1993 respectively in Lebanon. The fifth applicant, who is also a child of the first and second applicants, was born in 2002 in Bulgaria. All of the applicants currently live in Sofia, Bulgaria. 8 .     All of the applicants, except for the fifth one, who acquired Bulgarian nationality by virtue of being born on Bulgarian soil, are stateless. A.     Background 9 .     On an unspecified date the first, second, third and fourth applicants came to Bulgaria. On 11 September 2001 the first applicant requested asylum. On 20 September 2001 the second, third and fourth applicants also requested asylum. In two decisions of 6 November 2001 the State Refugees Agency granted refugee status to all of them. The applicants did not provide any information about the reasons underlying the Agency’s decisions. 10 .     In 2002 the first and second applicants set up a limited liability company. B.     The order for the first applicant’s expulsion and his first detention 11 .     On 10 February 2006 the head of the Ministry of Internal Affairs’ National Security Service made an order for the first applicant’s expulsion on the ground that he represented a serious threat to national security. He also barred him from residing in Bulgaria and entering its territory for a period of ten years. The order relied on section 42 of the Aliens Act 1998 (see paragraph 36 below). No factual grounds were given. The order went on to say that the first applicant was to be detained until it could be enforced, in line with section 44(6) of the same Act (see paragraph 46 below). Lastly, it stated that it was subject to appeal before the Minister of Internal Affairs, but not subject to judicial review, as provided by section   46(2)(3) of the Act, and that it was immediately enforceable, in accordance with section 44(4)(3) of the Act (see paragraphs 37 and 39 below). 12 .     The order was based on a classified proposal of 27 January 2006. The proposal, an excerpt of which was provided by the Government in the proceedings before the Court, stated that the first applicant had been subjected to surveillance in connection with information that three persons of Arab origin who had no identification documents and had contacts with representatives of Palestinian and Lebanese extremist organisations from southern Lebanon were residing in Burgas. The proposal also stated that in 2002 the first applicant had organised a drug trafficking channel from Brazil through western Europe to Bulgaria. It referred to the interception at Sofia Airport on 12 September 2002 of a shipment which originated from Sao Paulo, was addressed to the applicant, and contained 8.64 kilograms of almost one hundred per cent pure cocaine. A criminal investigation had been opened into this matter. The proposal went on to say that, having failed to complete that transaction, the first applicant had “not given up his attempts to find a quick way of making money”. There existed operative information that in 2005 he had tried to organise the shipment of 300   kilograms of cocaine from Brazil to the Netherlands. It had also been established that he was a member of an international gang engaging in the forgery of securities, frauds, and criminal banking operations. There was information that he had contacts with Bulgarian and foreign nationals residing in Bulgaria, as well as with persons from England, Germany, the Netherlands, Italy, Syria and Lebanon. Also, there existed operative information that on 11 September 2004 he had tried to convince several persons to kill a person residing in Germany. He also maintained regular contacts with persons abroad who were privy to his criminal activities. Lastly, there existed information that on 2 December 2005 he had telephoned the United States embassy in the Hague, making false assertions that a terrorist act had been planned against it, and had given details implicating a cousin of his, in order to frame him and thus exact revenge for the refusal of his cousin’s father to lend him money. All of those incidents showed that it was necessary to expel the first applicant in order to prevent him from carrying out activities that could imperil national security, such as the laundering of money of terrorist organisations, drug trafficking, forgery of securities and money, criminal banking operations involving large amounts, and the organisation and management of an international gang carrying out “wet jobs”. That was also necessary to prevent the establishment in Bulgaria of sleeper terrorist cells. 13 .     The first applicant was presented with the order on 16 March 2006, but was apparently not given a copy of it. The same day the police searched his home and a storage facility where he was working, and detained him in a detention facility in Burgas. C.     The legal challenges to the first applicant’s expulsion and first period of detention 14.     On an unspecified date the first applicant appealed against the expulsion order to the Minister of Internal Affairs. He also requested the suspension of the order’s enforcement. Apparently the appeal was unsuccessful. 15 .     On an unspecified date the first applicant sought judicial review of the order by the Sofia City Court. He also requested the suspension of the order’s enforcement. The case was classified. On 10 May 2006 the court decided to accept the application for examination. It went on to say that it would rule on the request for suspension of the order’s enforcement after it had received a copy of the classified proposal on which it had been based. 16 .     In a decision of 7 June 2006 (опр. от 7 юни 2006 г. по адм.   д.   №   С ‑ 61/2006 г., СГС, ІІІ „д” с ‑ в.) the Sofia City Court decided to suspend the order’s enforcement. The first applicant was released the same day. However, on an appeal by the National Security Service of the Ministry of Internal Affairs, in a final decision 24 July 2006 (опр. № 8 ‑ 82 от 24 юли 2006 г. по адм. д. № ЗС ‑ 250/2006 г., ВАС, V о.) the Supreme Administrative Court quashed that decision. It held that the courts were not entitled to suspend the enforcement of administrative decisions which were immediately enforceable by operation of law, such as the one under consideration. However, the first applicant was not re ‑ arrested. 17 .     In the course of the proceedings the authorities submitted the excerpts of the proposal for the first applicant’s expulsion. They also submitted excerpts of other documents in support of the assertions in the proposal. The applicant was not able to present copies of any of those documents to the Court because they were classified. 18.     In view of amendments to the Aliens Act 1998 making expulsion orders subject to review by the Supreme Administrative Court (see paragraph 41 below), on an unspecified date after 10 April 2007 the Sofia City Court sent the case to the Supreme Administrative Court. 19 .     On 27 February 2008 the first applicant requested the court to direct the authorities to adduce evidence in support of their allegations against him; apparently the court did not accede to his request, but gave him leave to obtain a certificate from the prosecuting authorities in relation to the existence or otherwise of criminal proceedings against him. The applicant obtained two such certificates and presented them to the court. The first one, issued by the Sofia City Prosecutor’s Office, stated that the drugs shipment intercepted at Sofia Airport in 2002 (see paragraph 12 above) had been addressed to a company owned by two individuals different from the first applicant; that after that criminal proceedings had been opened against an unknown perpetrator and had been suspended because the perpetrator’s identity could not be established; and that between 2002 and 2008 that office had not opened criminal proceedings against the first applicant. The second certificate, issued by the Sofia District Prosecutor’s Office, stated that between 2002 and 2008 that office had not opened criminal proceedings against the first applicant. 20 .     In a memorial submitted to the Supreme Administrative Court, the first applicant argued that the expulsion order had been issued in breach of the rules of administrative procedure because he had not been informed of the proceedings or allowed to make objections or representations. Moreover, the order had been served on him without an interpreter and he had not been given a copy of it. The order was also in breach of the substantive law because it was not based on genuine evidence that he represented a national security risk. The case file contained a redacted copy of the proposal on which the order had been based, and excerpts from documents which contained allegations that the first applicant had committed various criminal offences and other breaches of the law. However, some of the allegations lacked detail, and there was no indication that he had been criminally prosecuted in relation to any of them. The certificate issued by the prosecuting authorities showed that there were no pending criminal proceedings against him, and that he had nothing to do with the drugs shipment intercepted at Sofia Airport in 2002. The documents presented by the authorities could in effect be characterised as unsupported assertions. The first applicant went on to point out that he was a refugee and to argue that his expulsion to an Arab country would put his life at risk. Lastly, he stated that he had a wife and children, and maintained that the enforcement of the expulsion order would separate him from them for a long time, in breach of Article 8 of the Convention. 21 .     In a final judgment of 2 June 2008 (реш. № 8 ‑ 9 от 2 юни 2008 г. по адм. д. № ЗС ‑ 162/2007 г., ВАС, ІІІ о.) the Supreme Administrative Court dismissed the applicant’s legal challenge to the expulsion order. It held that the order had been issued by a competent authority and in due form. There had not been any material breaches of the rules of administrative procedure. It was true that the authorities had not notified the first applicant of the proceedings against him and had not given him an opportunity to make objections and representations. However, that omission had not been material, because the first applicant had had the opportunity of putting forward his arguments against expulsion in the judicial review proceedings. The fact that the expulsion order had been served on him without an interpreter was not a problem either, because there existed evidence that he understood and spoke Bulgarian. The court went on to say that on the basis of the materials adduced in the proceedings, which had in effect not been disputed by the first applicant, it considered it established that in 2002 he had taken part in the organisation of a drug trafficking channel from Brazil through western Europe to Bulgaria, and in 2005 a drug trafficking channel from Brazil to the Netherlands; that he was an active member of an international gang engaging in the forgery of securities and financial frauds; that he maintained intensive contacts with persons in and out of the country who carried out criminal and terrorist activities; and that he had given the Embassy of the United States of America in the Hague false information that others would try to organise a terrorist act against it. In those circumstances, the authorities’ conclusion that the first applicant’s continued presence in Bulgaria would pose a threat to national security was correct. His arguments that he had not been convicted of criminal offences were irrelevant, because the measure taken against him was preventive. It was admissible to resort to such a measure if there existed enough information that he might carry out a serious offence. Moreover, there existed information that he had already committed narcotic drugs offences and that he was a member of an international criminal organisation. The arguments that the expulsion order fell foul of the Convention and the 1951 Refugee Convention because it was inadmissible to expel the first applicant to a country where his life and health might be at risk and because the expulsion would separate him from his family were likewise unavailing. The expulsion had been lawfully ordered, and the first applicant had been able to challenge it before an independent and impartial court. The expulsion order did not specify the country to which the first applicant should be removed, and the law did not require that it should spell that out. The arguments on that point were therefore irrelevant. D.     The first applicant’s second period of detention and the related legal challenges 22 .     On 31 July 2008 the head of the Migration Directorate at the Ministry of Internal Affairs issued an order for the applicant’s detention pending the enforcement of the order for his expulsion. He referred to the need to make arrangements for the first applicant’s removal to his country of origin. He went on to say that in view of the grounds for the order and the risk that its enforcement might be hindered, it was immediately enforceable. Lastly, he instructed the competent officials to make arrangements for the first applicant’s expulsion within six months, and to report on their actions. 23.     The first applicant was given a copy of the order on 1 August 2008. He refused to sign it, as was certified by two witnesses. He was arrested the same day and apparently placed in a special detention facility in Sofia. 24.     On 8 August 2008 the first applicant requested the head of the Migration Directorate not to expel him as it would expose his life to risk. He referred to section 44a of the Aliens Act 1998 (see paragraph 43 below) and to his refugee status. On 11 September 2008 the head of the Migration Directorate stated that the actions of the authorities had been lawful and that they had requested the Embassy of Lebanon to issue a travel document for the first applicant. 25 .     On 8 August 2008 the first applicant also sought judicial review of the detention order and its immediate enforcement. In a decision of 21   August 2008 (опр. № 1959 от 21 август 2008 г. по адм.   д.   №   4919/2008 г., АССГ, І о., 6 с ‑ в) the Sofia City Administrative Court refused to deal with the legal challenge to the order itself, and in a decision of 22 August 2008 (опр. от 22 август 2008 г. по адм.   д.   №   4783/2008 г., АССГ, І адм. о., 2 с ‑ в) it refused to deal with the legal challenge to the order’s immediate enforcement. In both of those decisions it held that since the order was subordinate to the expulsion order and had been issued within the framework of the expulsion proceedings, it could not be regarded as an administrative decision subject to judicial review. 26 .     The first applicant appealed against both decisions. In a final decision of 27 November 2008 (опр. № 12873 от 27 ноември 2008 г. по адм. д. № 12213/2008 г., ВАС, ІІІ о.) the Supreme Administrative Court upheld the lower court’s decision relating to the order’s immediate enforcement, fully agreeing with its reasoning. However, in a final decision of 20 December 2008 (опр. № 14332 от 20 декември 2008 г. по адм.   д.   №   14165/2008 г., ВАС, ІІІ о.) it quashed the lower court’s decision relating to the order itself, holding that the order was subject to judicial review, and remitted the case. 27 .     On remittal, in a judgment of 27 February 2009 (реш. № 8 от 27   февруари 2009 г. по адм. д. № 4919/2008 г., АССГ, І о., 6 с ‑ в) the Sofia City Administrative Court examined the application on the merits, but upheld the detention order. It held that the authorities had been entitled to detain the first applicant following the order for his expulsion, and that their discretionary assessment as to whether it was necessary to detain him was not subject to judicial review. It was sufficient that they had referred to the need to make arrangements for his removal. The court went on to say that no evidence had been presented that the first applicant was a refugee or had applied for asylum. 28 .     The first applicant appealed. In a final judgment of 27 November 2009 (реш. № 14330 от 27 ноември 2009 г. по адм. д. № 4856/2009 г., ВАС, ІІІ о.) the Supreme Administrative Court upheld the lower court’s judgment, fully agreeing with its reasoning. 29 .     In the meantime, a parallel application by the first applicant for judicial review of the detention order was declared inadmissible by the Sofia City Administrative Court in a decision of 25 August 2008 (опр.   №   1977 от 25 август 2008 г. по адм. д. № 4784/2008 г., АССГ, І. о., 16   с ‑ в). The first applicant’s appealed. In a final decision of 10 November 2008 (опр. № 11923 от 11 ноември 2008 г. по адм. д. № 13404/2008 г., ВАС, ІІІ о.) the Supreme Administrative Court upheld the lower court’s decision, on the basis that the order was subordinate to the expulsion order, had been issued within the framework of the expulsion proceedings, and could not be regarded as an administrative decision subject to judicial review. 30 .     On 28 January 2010 the Sofia City Administrative Court, acting in the exercise of its powers under the newly enacted section 46a(3) and (4) of the Aliens Act 1998 (see paragraph 51 below), reviewed the first applicant’s detention of its own motion and decided that he should be released, which the authorities did on 1 February 2010. E.     Steps taken by the Bulgarian authorities with a view to removing the first applicant 31 .     The Migration Directorate of the Ministry of Internal Affairs wrote to the Lebanese Embassy in Sofia with requests for it to issue a travel document allowing the first applicant to enter Lebanon on 20 August 2008, 19 December 2008, 23 January 2009 and 13 November 2009. The Lebanese Embassy did not issue such a document. It appears that the Bulgarian authorities also asked the first applicant to specify a safe third country to which he could be removed, but he did not do so. II.     RELEVANT DOMESTIC LAW A.     Asylum and humanitarian protection 32 .     Article 27 of the Constitution of 1991 provides as follows: “1.     Aliens who reside in the country lawfully cannot be removed from it or delivered to another State against their will except under the conditions and in the manner provided for by law. 2.     The Republic of Bulgaria shall grant asylum to aliens persecuted on account of their opinions or activities in support of internationally recognized rights and freedoms. 3.     The conditions and procedure for granting asylum shall be established by law.” 33 .     Section 4(3) of the Asylum and Refugees Act 2002 provides that individuals who have been granted protection under the Act or have entered Bulgaria to seek such protection cannot be returned to the territory of a country where their life or freedom are at risk on account of their race, religion, nationality, membership of a social group, their political opinions or views, or where they may face a risk of torture or other forms of cruel, inhuman or degrading treatment or punishment. However, section 4(4) provides that that benefit may not be claimed by aliens where there are grounds to regard them as a danger to national security. There is no reported case ‑ law under that provision. 34 .     Section 17(2) of the Act, read in conjunction with section 12(1), provides that a person’s refugee status is revoked if: (a) there are serious reasons for considering that he or she has committed a war crime or a crime against peace and humanity, as defined in Bulgarian law or in the international treaties to which Bulgaria is party; (b) there are serious reasons for considering that he or she has committed a serious non ‑ political crime outside the country; (c) there are serious reasons for considering that he or she has committed or incited acts contrary to the purposes and principles of the United Nations. 35 .     Section 67(1) of the Act, which appears to concern the situation of persons who have applied for but have not yet obtained asylum or subsidiary protection, provides that an expulsion order cannot be enforced until the asylum proceedings have been concluded. By section 67(2), the expulsion order is to be revoked if the person concerned has been granted asylum or humanitarian protection. Section 67(3) lays down the proviso that the previous subsections are not applicable to, inter alia , aliens whose presence in the country may be regarded as dangerous for national security. B.     Expulsion of aliens on national security grounds 36 .     Section 42(1) of the Aliens Act 1998 provides that the expulsion of aliens must be carried out when their presence in the country poses a serious threat to national security or public order. Section 42(2) says that expulsion is mandatorily accompanied by withdrawal of the alien’s residence permit and the imposition of a ban on entering the country. Under section 46(3), expulsion orders do not indicate the factual grounds for imposing the measure. 37 .     Section 44(4)(3) provides that expulsion orders are immediately enforceable. 38 .     If removal cannot be effected immediately or needs to be postponed for legal or technical reasons, the enforcement of the expulsion order may be stayed until the relevant obstacles have been overcome (section 44b(1)). 39 .     Section 46(2), as in force until 10 April 2007, provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review. 40 .     Following this Court’s judgment in Al ‑ Nashif v. Bulgaria (no.   50963/99, 20 June 2002), in which it found the above regulatory arrangements contrary to Articles 8 and 13 of the Convention, the Supreme Administrative Court changed its case ‑ law. In a number of judgments and decisions given in 2003 ‑ 06 it held, by reference to Al ‑ Nashif , that the ban on judicial review in section 46(2) was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security grounds were amenable to judicial review (реш. № 4332 от 8 май 2003 по адм.   д.   №   11004/2002   г.; реш. № 4473 от 12 май 2003 г. по адм.   д.   №   3408/2003   г.; опр. № 706 от 29 януари 2004 г. по адм.   д.   №   11313/2003   г.; опр. № 4883 от 28 май 2004 г. по адм.   д.   №   3572/2004   г.; опр. № 8910 от 1 ноември 2004 г. по адм.   д.   №   7722/2004   г.; опр. № 3146 от 11 април 2005 г. по адм.   д.   №   10378/2004   г.; опр. № 3148 от 11 април 2005 г. по адм.   д.   №   10379/2004   г.; опр. № 4675 от 25 май 2005 г. по адм.   д.   №   1560/2005   г.; опр. № 8131 от 18 юли 2006 г. по адм.   д.   №   6837/2006   г.). 41 .     Section 46(2) was amended with effect from 10 April 2007 and now provides that an expulsion order may be challenged before the Supreme Administrative Court, whose judgment is final. Under section 46(4), the lodging of the application for judicial review does not suspend the order’s enforcement. 42 .     In May 2009 the Act underwent a modification intended to bring it into line with the requirements 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 (see paragraph 53 below). The new version of section 44(2) provides that when ordering expulsion or similar measures the authorities must take into account the length of time an alien has remained in Bulgaria, his or her family status, and the existence of any family, cultural and social ties with the country of origin. 43 .     Section 44a of the Aliens Act 1998, added in 2001, provides that an alien whose expulsion has been ordered on national security or public order grounds cannot be expelled to a country where his or her life or freedom would be in danger, or where he or she may face a risk of persecution, torture, or inhuman or degrading treatment. 44 .     If a person who is being removed does not have a document allowing him or her to travel, the immigration authorities have to provide one by contacting the embassy or the consulate of the State whose national he or she is. If that is not possible, such a document should be provided through the consular department of the Ministry of Foreign Affairs (regulation 52(1) of the regulations for the application of the Aliens Act 1998, issued in 2000 and superseded in 2011 by regulation 74(1) of the new regulations for the application of the Act). C.     Detention pending removal 45 .     Section 44(5) of the Aliens Act 1998 provides that if there are obstacles to a deportee’s leaving Bulgaria or entering the destination country, he or she is placed under an obligation to report daily to his or her local police station. 46 .     Under section 44(6), as in force until 19 May 2009, aliens could, if necessary, be placed in special detention facilities pending the removal of the obstacles to their deportation. In the reform of May 2009 (see paragraph   42 above) that subsection was amended to say that detention is possible if an alien’s identity is unknown, if he or she hinders the enforcement of the expulsion order, or if he or she presents a risk of absconding. 47 .     Section 44(9) (now section 44(11)) provides that manner of detention of aliens in special facilities is to be laid down in regulations issued by the Minister of Internal Affairs. The regulations in force at the time of the first applicant’s detention were Regulations No. I ‑ 13 of 29   January 2004 ( Наредба № I ‑ 13 от 29 януари 2004 г. за реда за временно настаняване на чужденци, за организацията и дейността на специалните домове за временно настаняване на чужденци ). Regulation   20(2) of those regulations provided that an alien was to be released from the detention facility if his or her asylum application had been admitted for examination under the general procedure. 48 .     Under the new subsection 44(8), added on 19 May 2009, and intended to reflect Article 15 §§ 1, 5 and 6 of Directive 2008/115/EC (see paragraph 55 below), detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee presents a national security or public order risk, detention may be prolonged for a further twelve months. 49 .     Under section 46(1), as in force at the material time, as a rule, orders under the Act were subject to appeal before the higher administrative authority and to judicial review. While in its earlier case ‑ law the Supreme Administrative Court consistently found that placement orders under section   44(6) were amenable to judicial review (реш. № 2048 от 8 март 2005 г. по адм. д. № 7396/2004 г., ВАС, V о.; реш. № 8364 от 27   септември 2005 г. по адм. д. № 4302/2005 г., ВАС, V о.; реш. № 1181 от 1 февруари 2006 г. по адм. д. № 1612/2005 г., ВАС, V о.; реш.   №   5262 от 17 май 2006 г. по адм. д. № 9590/2005 г., ВАС, V о.; реш. № 13108 от 27 декември 2006 г. по адм. д. № 7687/2006 г., ВАС, V   о.; реш. № 199 от 8 януари 2007 г. по адм. д. № 6122/2006 г., ВАС, V   о.; реш. № 9742 от 16 октомври 2007 г. на ВАС по адм.   д.   №   2996/2007 г., III о.; реш. № 12844 от 17 декември 2007 г. по адм. д. № 4761/2007 г., ВАС, III о.; реш. № 10833 от 6 ноември 2007 г. по адм. д. № 3154/2007 г., ВАС, III о.; реш. № 6876 от 9 юни 2008 г. по адм. д. №   10226/2007 г., ВАС, III о.), in a series of judgments and decisions handed down in 2008 ‑ 09 it ruled that such orders were not subject to judicial review because they were subordinate to the expulsion orders (опр. № 6216 от 27 май 2008 г. по адм. д. № 4899/2008 г., ВАС, III о.; реш. № 8117 от 2 юли 2008 г. по адм. д. № 4959/2007 г., ВАС, III о., реш. № 8750 от 15 юли 2008 г. по адм. д. № 1599/2008 г., ВАС, III о.; реш. № 10755 от 20 октомври 2008 г. по адм. д. № 672/2008 г., ВАС, III   о.; реш. № 895 от 21 януари 2009 г. по адм. д. № 4205/2008 г., ВАС, III о.; опр. № 1814 от 10 февруари 2009 г. по адм. д. № 1282/2009 г., ВАС, III о.; реш. № 2208 от 17 февруари 2009 г. по адм.   д.   №   5470/2008   г., ВАС, III о.). In view of that discrepancy, the Chief Prosecutor asked the Plenary Meeting of that court to issue an interpretative decision on the question. However, in view of an intervening legislative amendment which settled the matter (see paragraph 50 below), on 16 July 2009 the Plenary Meeting decided not to issue such a decision (опр. № 3 от 16 юли 2009 г. по т. д. № 5/2008, ВАС, ОСК). 50 .     In the reform of 19 May 2009 (see paragraph 42 above) a new section   46a was added, making special provision for judicial review of orders for the detention of deportees. Deportees were allowed to seek judicial review of such orders by the competent administrative court within three days of being issued (subsection 1). The application for judicial review does not stay their enforcement (ibid.). The court must examine the application at a public hearing and rule, by means of a final judgment, not later than one month after the proceedings were instituted (subsection 2). With effect from 1 February 2011 subsection 2 was amended further, providing for a right of appeal of the first ‑ instance court’s judgment before the Supreme Administrative Court. 51 .     In addition, under section 46a(3), every six months the head of any facility where deportees are being detained has to present to the territorially competent administrative court a list of all individuals who have remained in the facility for more than six months due to problems with their removal from the country. By subsection 4, the court has to then rule, of its own motion and by means of a decision which was not subject to appeal, on their continued detention or release. That subsection was amended with effect from 1 February 2011 to provide that the matter could be referred to the court also by the detainee, and that the court’s decision could be appealed against. 52 .     In two decisions given in May and July 2010 the Supreme Administrative Court expressly held that this automatic six ‑ month review does not preclude the possibility for detainees to seek release at any point, and to apply for judicial review of any negative decision of the authorities (опр. № 6983 от 27 май 2010 г. по адм. д. № 2724/2010 г., ВАС, VII о.; опр. № 9523 от 8 юли 2010 г. по адм. д. № 5761/2010 г., ВАС, VII о.). III.     RELEVANT EUROPEAN UNION LAW 53 .     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 came into force on 13 January 2009 (Article 22). Under Article 20, the Member States of the European Union were required to transpose the bulk of its provisions in their national laws by 24 December 2009. 54 .     Recital 16 of the Directive reads as follows: “The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.” 55 .     Article 15 of the Directive, which governs detention for the purpose of removal, provides, in so far as relevant: “1.     Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a)     there is a risk of absconding or (b)     the third ‑ country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. ... 4.     When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5.     Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6.     Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a)     a lack of cooperation by the third ‑ country national concerned, or (b)     delays in obtaining the necessary documentation from third countries.” 56 .     On 10 August 2009 the Sofia City Administrative Court made a reference for a preliminary ruling by the European Court of Justice (“the ECJ”), enquiring about the construction to be put on various paragraphs of that Article. 57 .     In his opinion, Advocate General Mazák expressed the view, inter   alia , that it was important to note that the periods laid down in Article   15 §§ 5 and 6 of the Directive defined only the absolute and outside limits of the duration of detention, that it was clear from their wording that any detention prior to removal must be for as short a period as possible and may be maintained only as long as removal arrangements are in progress and executed with due diligence, and that detention must be brought to an end when the conditions for detention no longer exist or when there is no longer any reasonable prospect of removal. He went on to say that those maximum periods of detention were part of a body of rules intended to ensure that detention is proportionate, in other words that its duration is for as short a period as possible and, in any event, not for longer than the six months or the eighteen months provided for. 58 .     In its judgment of 30 November 2009 ( Saïd Shamilovich Kadzoev v.   Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti , case C ‑ 357/09), the ECJ noted, inter alia , that the objective of Article 15 §§ 5 and 6 of the Directive was to guarantee in any event that detention for the purpose of removal does not exceed eighteen months. It ruled that those provisions had to be interpreted as meaning that the maximum duration of detention laid down in them had to include a period of detention completed in connection with a removal procedure commenced before the rules in the Directive became applicable, and also as meaning that the period during which enforcement of a deportation order had been suspended because the person concerned had challenged it by way of judicial review was to be taken into account in calculating the period of detention for the purpose of removal, where the person concerned remained in detention during that procedure. The court also ruled that Article 15 § 4 of the Directive had to be interpreted as meaning that only a real prospect that removal could be carried out successfully, having regard to the periods laid down in Article   15 §§ 5 and 6, corresponded to a reasonable prospect of removal, and that such a reasonable prospect did not exist where it appeared unlikely that the person concerned would be admitted to a third country, having regard to those periods. IV.     RELEVANT INTERNATIONAL LAW 59 .     Bulgaria acceded to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees on 12   May 1993, and they came into force in respect of it on 10 August 1993. It was published in the State Gazette on 15 October 1993, which means that, by virtue of Article 5 § 4 of the 1991 Constitution, it is part of domestic law. 60 .     Article 32 of that Convention, titled “Expulsion”, provides as follows: 1.     The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2.     The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3.     The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.” 61 .     A “Note on Expulsion of Refugees”, published up by the United Nations High Commissioner for Refugees on 24 August 1977 (EC/SCP/3), reads as follows: “ Introduction 1.     A refugee who has been granted the right of lawful residence in a particular State needs the assurance that this right will not be withdrawn, with the result that he again becomes an uprooted person in search of refuge. Such assurance is given in Article 32 of the 1951 Convention and Article I(1) of the 1967 Protocol relating to the Status of Refugees. These provisions, however, also recognize that circumstances may arise in which a State may consider expulsion measures. 2.     Problems connected with the expulsion of refugees include the difficulty in drawing the line between the basic protection of the refugee and the leg