CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 6 octobre 2020

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BULGARIA (Application no. 59066/16)             JUDGMENT   STRASBOURG 6 October 2020   This judgment is final but it may be subject to editorial revision. In the case of Bou Hassoun v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Branko Lubarda, President,   Carlo Ranzoni,   Péter Paczolay, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application (no.   59066/16) 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 Syrian national, Mr Rawad Adnan Bou Hassoun (“the applicant”), on 3   October 2016; the decision to give notice of the application to the Bulgarian Government (“the Government”); the parties’ observations; the decision to reject the Government’s objection to examination of the application by a Committee; Having deliberated in private on 15 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s expulsion on alleged national-security grounds and the separation from his family. The applicant relied on Articles   6 and 8 of the Convention, as well as on Article 1 of Protocol   No.   7. THE FACTS 2.     The applicant was born in 1985. In 2015 he left Bulgaria and moved to Turkey. The applicant was represented by Ms I. Ivanova, a lawyer practising in Sofia. 3.     The Government were represented by their Agent, Mrs R. Nikolova, of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     The applicant arrived in Bulgaria in 2009. In 2013 he was granted asylum. 6 .     According to the applicant, and as indicated in declarations by Ms   G.M. and a neighbour of the applicant’s, in 2010, soon after settling in Bulgaria, he started a relationship with Ms G.M., a Bulgarian national, and the couple lived together. In 2014 they had a son. 7 .     On 22 October 2015 the head of the National Security Service issued an order for the applicant’s expulsion on the grounds that his actions potentially posed a “serious threat to national security”. He also barred the applicant from entering or residing in Bulgaria for five years. The order referred to section 42(1)(2) of the 1998 Aliens Act (hereinafter “the Aliens Act”), taken in conjunction with sections 10(1)(1) and 44(1) (see paragraphs   12-15 below). No factual grounds were given, in accordance with section 46(3) of the Aliens Act. The order was based on the reasons set out in proposal no.   T ‑ 6-15115/22.10.2015 (“the proposal”). The content of the proposal was classified and as such it has not been submitted by the Government. 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 Aliens Act. Finally, the order stated that it was subject to judicial review, in line with section   46(1) and (2) of the Aliens Act. 8.     On 26 October 2015 the applicant applied for judicial review of the expulsion order. In particular, he pointed out in his application that no reasons had been given for the order and that the relevant factual circumstances had not been duly established. Furthermore, he argued that the measures against him breached his Convention rights, claiming that an expulsion to his home country of Syria would expose him to risk, in view of the armed conflict there, and that he would be separated from his family residing in Bulgaria. 9.     In a final judgment of 30 May 2016, the Supreme Administrative Court dismissed the application for judicial review and held that the expulsion order was lawful as it had been issued by a competent authority and in accordance with the law. In particular, it found that the relevant facts had been correctly established in the administrative procedure that had led to the issuing of the order, namely that there were data showing that the applicant had been involved in activities related to the illegal transportation of foreign nationals. It is not apparent from that judgment that the applicant’s lawyer was given the opportunity to become familiar with the material in the case, including the classified content of the proposal (see paragraph 7 above). The court judgment did not contain replies to the applicant’s arguments relating to his family and private life. 10 .     Together with their observations before the Court, the Government submitted a letter sent by the Migration Directorate of the Ministry of Interior dated 3   May 2017 in response to the notification of the present application. According to that letter, on 19 November 2015 the applicant had signed a form for voluntary return, indicating Turkey as a safe third country of return. In addition, on 24 November 2015 he had signed a form renouncing his asylum status. The letter further stated that on 24 November 2015 the applicant had been taken to the Kapitan Andreevo border checkpoint with the assistance of the authorities, in order to be returned to Turkey for the enforcement of the expulsion order. Copies of the forms referred to in that letter have not been submitted to the Court. 11.     On 14 December 2015 the Vice-President of the Republic of Bulgaria withdrew the asylum provided to the applicant. RELEVANT LEGAL FRAMEWORK 12 .     The relevant domestic law and practice have been summarised in the Court’s judgment in Raza v. Bulgaria (no. 31465/08, §§ 30-36, 11 February 2010). 13.     In 2013 an amendment to section 42(1) of the Aliens Act added a sub-paragraph 2, which provides that expulsion is necessary when the grounds under section 10(1), sub-paragraphs 1 to 4, are in place. Section   42(2) provides that the imposition of an involuntary administrative measure on a foreigner also withdraws the foreigner’s right to reside in the Republic of Bulgaria and imposes a ban on entry into and residence on the territories of the member States of the European Union. Pursuant to section   10(1)(1) of the Aliens Act, a foreigner is denied a visa or entry into the country when, by virtue of his or her actions, the foreigner has endangered or may endanger the international relations, safety or interests of the Bulgarian State or when there is intelligence that the person is acting against national security. 14 .     The new version of section 44(2), as amended in 2011, provides that, when imposing compulsory administrative measures, the competent authorities must take into account the length of the foreigner’s stay on the territory of the Republic of Bulgaria, the categories of vulnerable persons, the existence of proceedings under the Asylum and Refugees Act or proceedings to renew a residence or other permit, the family situation, and the existence of family, cultural and social ties with the person’s State of origin. 15 .     Pursuant to section 44(1), sub-paragraph 2, of the Aliens Act, if the factual grounds for imposing a specific compulsory administrative measure contain classified information, they are listed in a separate document prepared by the relevant officials under the 2002 Classified Information Protection Act. THE LAW ALLEGED VIOLATION OF ARTICLES 8 and 13 OF THE CONVENTION 16.     The applicant complained that the expulsion order against him had infringed his right to respect for his private and family life, as provided for in Article 8 of the Convention. He also complained, relying on Article 6 of the Convention, that in the ensuing judicial review proceedings the domestic court had not genuinely examined the truth of the allegations made by the Ministry of Internal Affairs against him, and had not assessed the necessity of his expulsion in view of his family situation. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§   114 and 126, 20 March 2018), finds that the applicant’s complaints concerning the scope of the judicial review proceedings fall to be examined under Article   13 of the Convention, read in conjunction with Article 8. 17.     Articles 8 and 13 of the Convention 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.” Admissibility The parties’ arguments 18 .     The Government contested the existence of the applicant’s genuine “family life” in Bulgaria with Ms G.M. They noted that the applicant had resided on Bulgarian territory for a relatively short period of time, that he and Ms G.M. were not married, and that their son had been only one year old when the applicant had left the territory of the Republic of Bulgaria. 19 .     The applicant averred that he had had a genuine family life in Bulgaria with Ms G.M. and their child. He pointed out that, in addition, his application concerned his right to respect for his private life. To substantiate his claims, the applicant submitted statements by his partner, Ms G.M., and by a neighbour (see paragraph 6 above), as well as his son’s birth certificate. In addition, he submitted a certificate from the Bulgarian registry of companies to support his claim that, together with his father, he was a partner in a company registered in Bulgaria which was the source of his legally earned income. The Court’s assessment 20.     At the outset, the Court notes that the parties disagreed as to the existence of the applicant’s family life in Bulgaria (see paragraphs 18 and 19 above). As the question of applicability is an issue of the Court’s jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits. No such particular reason exists in the present case and the issue of the applicability of Article 8 of the Convention falls therefore to be examined at the admissibility stage (see, mutatis mutandis , Denisov v.   Ukraine [GC], no.   76639/11, § 93, 25 September 2018). 21.     The Court recalls that the notion of “family life” in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto “family ties” where parties are living together outside marriage. Furthermore, a child born of such a relationship is ipso jure part of that “family unit” from the moment of its birth and by the very fact of it (see Kroon and Others v. the Netherlands , 27 October 1994, § 30, Series A no.   297 ‑ C). Turning to the present case, although the exact duration of the applicant’s relationship with Ms G.M. was disputed by the parties, the Court finds it indisputable that the applicant and Ms G.M. had lived together and that they had a child for whom they jointly cared (see paragraph 6 above). Those aspects show that the applicant and his partner were committed to each other to a sufficient degree to constitute a “family” within the meaning of Article 8 of the Convention. Thus, the Court is not convinced that the facts referred to by the Government suffice to disprove the applicant’s claims. The applicant’s relationship with his son, who was one year old at the time the applicant left Bulgaria, is also part of the “family life” the applicant enjoyed in Bulgaria prior to his departure (see, mutatis mutandis , Berrehab v. the Netherlands , 21   June 1988, § 21, Series A no. 138). Therefore, it could be concluded that the applicant had a family life in Bulgaria, under the meaning of Article 8 of the Convention. 22.     The applicant also contended that the measures against him had interfered with his right to respect for his private life (see paragraph 19 above). The Court notes that Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity; hence, the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article   8 (see Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008). It depends on the circumstances of the particular case whether it is appropriate for the Court to focus on the “family life” rather than the “private life” aspect (see Üner v. the Netherlands [GC], no. 46410/99, § 59, ECHR 2006 ‑ XII). The Court takes note of the fact that the applicant arrived in Bulgaria in 2009 and was granted asylum in 2013, and that he was a partner in a company registered in Bulgaria (see paragraphs 5 and 19 above). Nevertheless, unlike in Maslov (cited above, §§ 10-11), where the applicant had lawfully spent all or the major part of his childhood and youth in the host country, in the present case the material before the Court does not permit it to establish whether the applicant was a settled migrant who had developed social and economic connections and whose removal from Bulgaria would also amount to an interference with his right to respect for his private life. The Court will therefore focus on the examination of the possible interference with the applicant’s family life only. 23 .     Accordingly, the facts of the case fall within the ambit of Article 8 in its “family life” aspect and the Court has jurisdiction ratione materiae to examine them. 24.     The Court concludes that the complaint under Article 8 of the Convention is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. 25.     Consequently, the Court considers that the applicant had an arguable complaint for the purposes of Article 13 of the Convention and therefore the latter provision also applies (see Boyle and Rice v. the United Kingdom , 27   April 1988, §§ 52-55, Series A no. 131). The complaint under Article 13, which is strictly linked to that under Article 8, should likewise be declared admissible. Merits The parties’ arguments (a)    The applicant 26 .     The applicant stated that his expulsion had disrupted his family life. He contended that the order for his expulsion, upheld by the Supreme Administrative Court, had not satisfied the requirements of lawfulness under the Convention. In particular, the applicant argued that the National Security Service had failed to demonstrate the existence of concrete and satisfactory evidence that he presented a national-security risk. He noted in that connection that he had had no convictions, that no criminal proceedings had been pending against him and that he had been engaged in lawful business in Bulgaria. In addition, while he had been able to institute judicial review proceedings against the order for his expulsion, the Supreme Administrative Court had not properly scrutinised that decision and had refused to examine its proportionality. The applicant submitted that the court had limited its review exclusively to the classified data gathered in the proposal in a separate administrative procedure and had completely ignored his submissions relating to his private and family life. (b)    The Government 27 .     The Government considered, in the first place, that there had been no interference with the applicant’s rights as de facto he had not been expelled by the authorities, since he had signed a form for his voluntary return to Turkey (see paragraph 10 above). Thus, the compulsory administrative measure of expulsion had not been enforced against him inasmuch as he himself had cooperated with the authorities regarding his voluntary return. 28 .     The Government further argued that should the Court hold that there had been a possible interference with the applicant’s right to respect for his family life, then that interference had in any event pursued a legitimate aim and had been necessary in a democratic society. It had been established that the applicant had posed a threat to national security (see paragraph 9 above). In addition, the Government explained that in the course of the judicial review proceedings the applicant’s procedural representative had been given the opportunity to become familiar with the material in the case, including the classified content of the proposal. Thus, the applicant had had a possibility of contesting the measures against him in adversarial proceedings and putting forward his arguments. The Government relied in this regard on the Court’s findings in Abulail and Ludneva v. Bulgaria ((dec.), no.   21341/07, 13   November 2014). 29 .     Furthermore, the Government argued that the competent authorities had taken into account the applicant’s personal situation in the light of section   44(2) of the Aliens Act (see paragraph 14 above), including from the point of view of the child’s interests. Moreover, the Government argued that there had been no obstacle to the applicant, his partner and their son settling as a family elsewhere. Thus the Government contended that the measure of expulsion imposed on the applicant had been reasonably justified and necessary in a democratic society and had not upset the fair balance to be maintained between the protection of his Convention rights and the achievement of the legitimate aims pursued by the authorities. The Court’s assessment 30 .     The Court notes, at the outset, that the present application is similar to a number of earlier cases against Bulgaria concerning the 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; and Raza v. Bulgaria , no.   31465/08, 11   February 2010; as well as Grabchak v. Bulgaria [Committee], no.   55950/09, 1 June 2017; Kurilovich and Others v. Bulgaria [Committee], no.   45158/09, 1 June 2017; and Gapaev and Others v.   Bulgaria [Committee], no.   41887/09, 1 June 2017). (a)    Article 8 of the Convention 31.     The Court observes that the parties disagreed as to whether there had been interference with the applicant’s right to respect for his family life (see paragraphs 26 and 27 above). It also notes at the outset that the Government submitted a letter by the Migration Directorate which stated that the authorities had accompanied the applicant to the border checkpoint in order to ensure his return to Turkey as part of the enforcement of the order for his expulsion (see paragraph 10 above). The Court is of the view that this represents an express acknowledgment by the authorities of State interference in the implementation of the expulsion order in respect of the applicant. The Court notes that the Government’s assertions that the applicant had signed a form for his voluntary return and had cooperated in the enforcement of the expulsion order are not supported by copies of the relevant documents (see paragraph 10 above). Even if it is accepted that the applicant had provided such cooperation and had chosen a safe third country of return, that circumstance cannot change the fact that, according to the material in the case file and by virtue of the domestic law (see paragraph 12 above), the expulsion order in issue was immediately enforceable, upheld by the final decision of the Supreme Administrative Court of 30 May 2016 and enforced by the competent authorities (see paragraphs   7 and 9 above). In addition, the five-year ban on the applicant’s re-entering Bulgaria was still in force (see paragraph 7 above). In such circumstances, the Court is satisfied that the measures provided for in the enforceable expulsion order, dated 22 October 2015, as well the applicant’s return to the Republic of Turkey on 24 November 2015, are to be regarded as amounting to an interference with his family life (see, mutatis mutandis , Al ‑ Nashif v.   Bulgaria , no. 50963/99, § 115, 20 June 2002; and Lupsa   v.   Romania , no.   10337/04, §§ 26-27, ECHR 2006 ‑ VII). 32.     It remains to be established whether that interference met the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society” (see Al-Nashif , cited above, § 116). 33.     As to the first of these requirements, namely that the interference should be “in accordance with the law”, the Court observes that in previous similar cases against Bulgaria (see paragraph 30 above), it found that the expulsions in question that had been ordered on alleged national-security grounds did not meet 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 v.   Bulgaria (cited above, §§   42-50), the Court found, inter alia , that the domestic 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 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. Since such “certifications” were considered to be beyond any meaningful judicial scrutiny, there was thus no safeguard against arbitrariness (see also Kaushal and Others , §§   28 ‑ 34; and Grabchak , §§   35-40, both cited above). 34.     The present case is very similar. The order for the applicant’s expulsion was based on statements declaring him to be involved in activities related to the illegal transportation of foreign nationals and therefore representing a national-security threat (see paragraph 9 above). The expulsion order appeared to be the result of a purely internal assessment by the National Security Service, made on the basis of undisclosed evidence, contained in a classified proposal. Furthermore, the Supreme Administrative Court dismissed the applicant’s application for judicial review of the expulsion order without engaging in any meaningful scrutiny of the executive’s allegations, stating merely that the order in question did not breach the law as the data gathered in the administrative proceedings, in particular mentioned in the proposal (see paragraph 7 above), were sufficient to justify a conclusion that he represented a threat to national security (see paragraph 9 above). Its formalistic approach meant that it failed to provide any meaningful independent scrutiny of the executive’s allegations. 35.     Consequently, as in the earlier cases referred to previously, despite having the formal possibility of seeking judicial review of the measures in issue, the applicant did not enjoy the minimum degree of protection against arbitrariness inherent in the concept of lawfulness under the Convention. This means that the interference with his right to respect for family and private life was not “in accordance with the law”, as required by Article   8 §   2. 36.     In the light of this conclusion, the Court is not required to examine the remaining issues, namely whether one or more legitimate aims were pursued and whether the measure complained of was necessary in a democratic society (see C.G. and Others v.   Bulgaria , § 49; and Kaushal and   Others , §   33, both cited above). 37 .     There has accordingly been a violation of Article   8 of the Convention. (b)    Article 13 of the Convention 38.     The Court reiterates its findings in the previous similar cases against Bulgaria regarding the deficiencies in the proceedings for judicial review of the expulsion orders. Firstly, the domestic courts had not closely scrutinised the executive’s allegations. Secondly, they had not assessed whether the interference with the applicant’s rights met a pressing social need and was proportionate to any legitimate aim pursued (see C.G. and Others v.   Bulgaria , cited above, §§ 59-64). 39.     Similarly, in the present case the Court has already noted that the Supreme Administrative Court did not carry out a proper examination of the executive’s assertion that the applicant presented a national-security risk (see paragraph 31 above). The Court also notes that, unlike in Abulail and   Ludneva (decision cited above, § 56), referred to by the Government (see paragraph 28 above), in the present case it does not appear from the judgment of the Supreme Administrative Court that the applicant’s lawyer was presented with excerpts of the documents on which the decision for his expulsion was based, nor is it clear whether he was aware of the specific facts alleged against the applicant (see paragraph 9 above). The Court also observes that, as in the cases referred to in paragraph 30 above, the Supreme Administrative Court devoted no attention to questions of proportionality and did not comment on the applicant’s arguments concerning his right to respect for family life (see paragraph 9 above). In this connection, the Court also notes that, unlike the expelled applicant in Abulail and Ludneva (decision cited above, §§ 51-52), in the present case the applicant did not fail to raise at the domestic level his complaint under Article 8, namely that the expulsion would interfere with his right to respect for his family life. It follows that the judicial review proceedings in the present case did not secure to the applicant the effective domestic remedy which Article 13 requires in respect of his complaints regarding the breach of his right to respect for his family and private life (see, mutatis mutandis , C.G. and Others v.   Bulgaria , §   63; and Grabchak , § 42, both cited above). No other remedy has been suggested by the Government. 40 .     There has accordingly been a violation of Article   13 of the Convention. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 7 TO THE CONVENTION 41.     The applicant further complained that he had been expelled from Bulgaria without having been afforded the guarantees of Article 1 of Protocol No. 7 to the Convention, which reads as follows: “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.” 42.     The Government contested that the above-mentioned provision was applicable because the present case did not fall within its scope, as de facto the applicant had not been expelled by the authorities (see paragraph 27 above). 43.     The applicant did not reply to that argument within the time-limits set for this purpose. 44.     The Court observes that the complaint under Article 1 of Protocol   No. 7 to the Convention has the same factual background as the complaints under Articles 8 and 13 of the Convention. Having found that there had been a violation of the applicant’s right to respect for his family life within the meaning of Article 8 of the Convention and that he did not have an effective remedy in that regard contrary to Article 13 of the Convention (see paragraphs 37 and 40 above), the Court considers that it is not necessary to determine whether the same events also contravened Article 1 of Protocol No. 7 to the Convention (see, mutatis mutandis , Al ‑ Nashif , cited above, § 142). 45.     The Court concludes therefore that it is not necessary to examine the admissibility and merits of this complaint separately. APPLICATION OF ARTICLE   41 OF THE CONVENTION 46.     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.” 47.     The applicant did not submit any claim in respect of non-pecuniary damage or costs and expenses in accordance with Rule 60 of the Rules of the Court within the time-limits fixed for such submissions. Nor did he provide any details or documents as to costs and expenses incurred. 48.     The Court therefore makes no award in this regard and does not consider that there are any exceptional circumstances which would require it to make an award in respect of damage (see Nagmetov v. Russia [GC], no.   35589/08, §§ 80-82, 30 March 2017). FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the applicant’s complaints under Articles 8 and 13 of the Convention admissible; Holds that there has been a violation of Article 8 of the Convention; Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 8; Holds that it is not necessary to examine the admissibility and merits of the complaint under Article   1 of Protocol No. 7 to the Convention. Done in English, and notified in writing on 6 October 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Ilse Freiwirth   Branko Lubarda Deputy Registrar   President