MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-13

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-13 C.G. and Others group v. Bulgaria (Application No. 1365/07) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2022)687, DH-DD(2023)70, DH-DD(2024)966, CM/Del/Dec(2021)1398/H46-5

 

Application	Case	Judgment of	Final on	Indicator for the classification
1365/07	C.G. AND OTHERS	24/04/2008	24/07/2008	Complex problem
46390/10	AUAD	11/10/2011	11/10/2012
41416/08	M. AND OTHERS	26/07/2011	26/10/2011
45158/09	KURILOVICH AND OTHERS	01/06/2017	01/06/2017
59066/16	BOU HASSOUN	06/10/2020	06/10/2020

Case description[1]

The C.G. and Others, M. and Others, Kurilovich and Others and Bou Hassoun cases concern shortcomings in the procedure for judicial review of decisions to expel foreign nationals on national security grounds, such as lack of adversarial proceedings and lack of review of the factual elements substantiating the threat to national security or of the proportionality of the expulsion. They also concern the lack of public judicial decisions (violations of Articles 8 and 13).

The Auad and M. and Others cases concern the failure of the courts to examine rigorously the applicants’ claims relating to a risk of death or ill-treatment in the destination countries and the absence of an automatically suspensive remedy (potential violations of Articles 2 and 3 in the Auad case, and violations of Article 13 read in conjunction with Articles 2 or 3 in both cases).

In the C.G. and Others case, the Court also found a violation of the right to procedural safeguards relating to expulsion (Article 1 of Protocol No. 7), since the first applicant was denied, without justification, the possibility to exercise his rights under that provision at domestic level before being expelled, even though according to the conclusion of the Court, the facts alleged against him concerned the protection of public order and not national security.

Finally, certain cases concern violations related to detention pending expulsion and slow and ineffective judicial review over it (violations of Article 5 §§ 1(f) and 4).

Status of execution

The information provided by the authorities in response to the Committee’s previous decisions is summarised below (DH-DD(2022)687, DH-DD(2023)70 and DH-DD(2024)966). Relevant publicly available information is also presented.

Individual measures:

No further individual measure is required in the three older cases of this group.^[2]

The judicial proceedings in the Kurilovich and Otherscase were reopened and in April 2018 the Supreme Administrative Court (“SAC”) quashed the expulsion order on the ground that it did not contain a proportionality assessment, but without genuinely re-examining its factual basis. In parallel, in 2018, Mr Kurilovich, whose spouse and children are Bulgarian nationals, was listed as an undesirable alien until 11 January 2028 and, in consequence is not allowed to re-enter Bulgaria or be granted a visa.^[3] The authorities previously indicated that the inclusion in the list of undesirable foreigners is not subject to separate judicial review, but a refusal to issue a visa and other coercive measures may be appealed, also regarding the reasons for inclusion in the list. On 26 January 2021, the Bulgarian Helsinki Committee (“BHC”)^[4] provided examples of divergent judicial practice in this regard.

At its last examination of this case, in March 2021, the Committee invited the authorities to inform the relevant domestic courts of the specific importance for the first applicant to be able to benefit, if he is refused a visa, from Convention-compliant examination of the reasons for his categorisation as undesirable alien. In response, the authorities recalled that immigration policy is within the State’s discretion and that the inclusion in the list of undesirable foreigners has never been examined by the European Court. The Government further underlined that the Convention does not impose an obligation on the Contracting States to allow foreigners to enter their territory when they reside in another State. Thus, the immigration policy of Contracting States falls outside the material scope of the Convention and is entirely within their margin of appreciation (referring to M.N. and others v. Belgium no. 3599/18, dec., § 124, Abdul Wahab Khan v. the United Kingdom, dec., no. 11987/11, § 108). They concluded that no additional individual measures were necessary.

As concerns the Bou Hassoun case, the Committee invited the authorities to provide information on the outcome of the request for reopening of the proceedings. The domestic proceedings were reopened and on 14 January 2022 the Sofia City Administrative Cour (“SCAC”) confirmed the initial expulsion order. In its judgment, the SCAC analysed the factual statements[5] relating to trafficking of migrants contained in a classified proposal of the National State Security Agency (“NSSA”). It noted that the applicant was given a possibility to disprove the elements mentioned in the classified proposal but failed to do so. It reviewed some personal circumstances of the applicant and his partner and child but pointed out that the rights under Article 8 were not absolute and found that the expulsion had been a proportionate measure because of the serious threat posed by the applicant’s behaviour. The authorities consider that the SCAC thoroughly reviewed the reasons set out by the NSSA, and the proportionality of the expulsion.

In September 2022 the SAC declared further cassation appeal inadmissible, noting also that the ban on entry in Bulgaria has expired. The authorities indicated that they were not aware of any procedural obstacle for the applicant to return to Bulgaria if he wished so.

General measures:

The Committee last examined this group of cases at its 1398th meeting (March 2021) (DH) and its decisions are presented under the respective subjects below.

1)     Judicial review concerning expulsion orders (Articles 8 and 13)

Prior to the last examination of the group, the authorities had indicated that the proportionality of expulsion measures is reviewed by courts, the burden of proof lies with the authorities and judges can request evidence from them.

In some older judgments the SAC verified both the existence of facts related to the specific behaviour of the person concerned and the proportionality of the expulsion. The persons concerned and their lawyers were able to see the whole case file and consult the whole text of the judgment. In 2019, the competence to review expulsion measures was transferred from the SAC to the first- instance administrative courts.

In March 2021, the Committee recalled that earlier reforms have allowed considerable progress to be made in terms of improvement of judicial review, but requested an assessment of the reasons for the violation found in the Bou Hassoun case (that occurred after these reforms) and of the need of any further measures.

Publicly available information shows that in several recent judgments, the administrative courts have held that the administrative authority can provide any type of data indicating the existence of a threat to national security, and not only facts or evidence gathered as part of a particular procedure. Where data exists on conduct likely to cause such a threat, the NSSA’s assessment of the existence of a threat is not subject to review by the courts, but only to a “formal” examination of the consistency between the reasons given and the conclusions drawn, and of the link with the concept of national security.[6] The lawfulness of expulsion was confirmed in cases where orders had been based on data related to organising unlawful crossings of the border or unlawful actions related to obtaining an university degree. 

In several cases, the courts have weighed up the indications of a risk to national security against the foreigner's right to respect for private and family life.[7] In another judgment, a court found that the security considerations must take precedence, without engaging in an in-depth analysis of personal circumstances.[8]

2)     Procedural safeguards concerning expulsion (Article 1 of Protocol No. 7)

In March 2021, the Committee noted with satisfaction the adoption in February 2021 of amendments according to which expulsion orders based on public order considerations are not put into effect before the alien has exercised his or her rights under Article 1 of Protocol No. 7.[9]

While immediate enforcement is not mandatory under the amended legislation, the administrative authority may order immediate enforcement of the expulsion order, under the general rules of Article 60 of the Administrative Procedure Code (APC). If the foreign national does not challenge the enforcement within three days, it takes effect. Thereafter, suspension may only be granted on the basis of new facts (Article 166 § 2 of the APC).[10]   

3)     Assessment of risk of death or ill-treatment in the destination country and remedy in relation to return or expulsion orders (Articles 2, 3 and 13)

Expulsion orders based on national-security grounds are immediately enforceable. The modification of Section 44a of the Aliens Act of March 2013 allowed the courts to assess the risk, but under the above framework, an application for judicial review had no automatic suspensive effect and the destination country was not stated in the expulsion order or other decision amenable to judicial review.

In March 2021, the Committee noted with satisfaction the adoption of provisions requiring that the destination country is indicated in a legally binding act (i.e., in the expulsion order or an amended expulsion order), which is amenable to judicial review. It also welcomed the adoption of provisions[11] on temporary automatic suspensive effect of appeals against expulsion orders based on national-security grounds, containing “substantiated allegations” of important risk of death or ill-treatment in the destination country, which may be prolonged by decision of the domestic courts. It underlined the importance to guarantee solid decision-making procedure and requested information on the domestic practice.

In January 2023, the authorities provided a judgment of the SCAC of 21 March 2022[12] and observed that it appeared that the suspensive effect of an appeal against an expulsion order was prolonged by the reviewing court. It can be recalled that in the reopened proceedings concerning the case O.D., previously examined in this group, the SCAC annulled the expulsion order based on risk for the applicant in the destination country.

4)      Asylum procedures interacting with the remedies concerning expulsion orders

International protection is not granted where there are grounds for believing that the foreign national constitutes a threat to national security or public order (Section 12 of the Refugees and Asylum Act). The coercive measures, such as "return" or "expulsion", shall not be enforced before the end of the asylum proceedings; and are annulled if international protection is granted. Suspension of enforcement is not applied to persons for whom there is a reason to believe that they pose a threat to national security or who pose a threat to society, on account of their conviction of a serious criminal offence (Section 67 of that Act). The SAC has held that the opinion of the NSSA that a foreign national constitutes a threat to national security shall be binding on the administrative authority in asylum proceedings.[13]

5)     Judicial examination of risk in the destination country

The summary below presents publicly available judgments on return orders, as the domestic law prohibition on removing a person to a country where he or she faces grave risk is similar for both expulsion and return measures.

- Judicial review of expulsion orders: In 2023, the Vidin Administrative Court annulled an expulsion order, based on failure to assess risk related to an expulsion to Ukraine due to the ongoing war.[14]  

- Judicial review of return orders: In judgments of 2023, domestic courts considered that a coercive measure, including return order, may be imposed, and confirmed while asylum proceedings are pending.[15] In case of unlawful entry, the administration was obliged to issue a return order. The apparent lack of assessment of risk in Syria in the return order was not seen as ground for unlawfulness, but the risk was nevertheless briefly assessed by the courts and found to be insufficiently substantiated.

Where the appeal proceedings against return orders followed the refusal of an asylum request, some courts did not examine the risk in the destination country, considering that these issues have been resolved in the asylum procedure (including where the foreign national had failed to appeal against the rejection of the asylum claim).[16] In 2023, in a case regarding a Syrian national convicted of a serious crime, whose asylum status had been previously revoked, the SAC examined the person’s fears regarding the obligation to perform military service in Syria but found that there were no personal risk other than that relating to the overall security situation.[17] The 2023 judgment followed a 2021 judgment in which the SAC confirmed the revocation of his refugee status, stating that the revocation was not yet a coercive measure ordering a return to the country of origin, without an examination of risk related to a return in Syria.[18]

In a judgment of September 2024 concerning a minor foreign national, the SAC held that even though the request for international protection was still pending, this did not absolve the authorities from assessing whether a return order entails risk in the destination country. It noted that the absence of such risk is a condition of lawfulness, since the return order must be enforceable.[19]

In another judgment, the SCAC found that even if the request for international protection has been rejected, the return order should be revoked, inter alia because there was no assessment of risk related to the person’s return to Russia.[20]

- Judicial review of procedural safeguards: In several judgments, the courts abolished return orders (or ban on re-entering the country based on expulsion order) for failure to hear the alien, to identify the destination country, to provide translation, to assess proportionality, to check whether the foreign national was notified of the initiation of the proceedings and of the opportunity to submit further objections.[21]  

6)     Legislative proposals and interpretative procedure concerning publicity of judgments

Under the applicable framework, the only mechanism for a judgment to be made public if it contains sensitive information is for the respective judicial panel to take such decision.

In March 2021, the Committee urged again the authorities to introduce rapidly a system of open and closed judgments whereby, in cases where it is impossible to publish the complete judgment because of the risk to national security, the gist of the factual findings and reasoning is nonetheless made public.

In response to this call, the authorities indicated that since the practice of the courts is to keep the judgments secret in most cases, in July 2021 the Minister of Justice initiated a procedure for interpretative decision by the SAC. The SAC was expected to deliberate on this request in September 2024. In parallel, the authorities elaborated a legislative proposal (in a draft new Judiciary Act), which provides that as a rule the judicial acts in cases in which classified information has been appended shall be published in their entirety. When classified information is reproduced in the act, the operative part shall be published, and the reasoning – only in so far as it does not comment on classified information.

7)     Legislation and judicial practice concerning detention pending expulsion (Article 5 §§ 1(f) and 4)

The initial detention period cannot exceed six months. It can be prolonged by a maximum of additional 12 months in exceptional cases. If it is established that, for technical or legal reasons, there is no longer a reasonable possibility of expelling the person concerned, he or she must be released immediately.

In March 2021, the Committee noted with satisfaction the adoption of provisions according to which appeals against a detention order should be decided within seven days at first instance and 14 days by the SAC.

An examination of the recent judicial practice shows that first-instance judicial review often takes less than two weeks but may sometimes require one or two months. By contrast, in most cases the SAC took about a month, and in some cases two months or more, to rule on the appeal, and only in a smaller number of cases, the SAC reached a decision in 14 days or less than a month.

The authorities indicated that the domestic courts regularly assessed the executive authorities’ diligence in handling expulsion when examining the lawfulness of the detention. An examination of the recent judicial practice indicates that courts examine routinely whether there are realistic prospects for the removal of the detained persons.[22] It appears that they most often conclude that even if the detainee's cooperation is necessary to obtain identity documents, his or her repeated refusal to cooperate is not sufficient to conclude that there are no such prospects.

Analysis of the Secretariat

Individual measures

In the Kurilovich case, the re-examination and annulment of the expulsion order after the European Court’s judgment were deprived of any useful effect, because the factual grounds for the first applicant’s expulsion were never reviewed and confirmed in a Convention-compliant procedure (as the reopened proceedings did not address this aspect), but he was listed as undesirable foreigner after the European Court’s judgment. This led to a situation where the applicant is unable to re-enter Bulgaria, while the allegations which led to his expulsion have never been subject to meaningful scrutiny. As the restitutio in integrum required in this case (i.e., meaningful judicial review) was not thoroughly achieved and as it appeared, based on the information provided by the authorities (DH-DD(2019)139), that some additional measures were possible to compensate for the shortcomings of the judicial review in the reopened proceedings, the Committee requested the authorities to draw the courts’ attention on the importance of ensuring meaningful examination of the reasons for his categorisation as undesirable alien, in case he was refused a visa. This request does not imply an indication on allowing the applicant to enter Bulgarian territory and is therefore not beyond the scope of the Committee’s mandate to request that the authorities remedy the violation established in this case. Therefore, information is awaited on conveying the Committee’s previous decision to the competent courts.

As concerns the Bou Hassoun case, it could be noted with interest that in its 2022 judgment in the reopened proceedings the SCAC has addressed to some extent the reasons for the violation found, as it analysed the proportionality of the expulsion. The judgment also refers to some concrete factual information concerning the applicant’s conduct included in a classified proposal of the NSSA. However, as regards its evidentiary basis, the judgment appears based on the same purely internal assessment by the NASS, made on the basis of undisclosed evidence and contained in a classified proposal, which was not provided to the European Court, a situation which was among the reasons, which led to a conclusion of lack of meaningful judicial review. Therefore, while the overall examination by the SCAC appears significantly more thorough than the initial judgment criticised by the European Court, some clarifications appear necessary. 

To allow thorough assessment of whether the allegations against the applicant were subjected to a meaningful scrutiny by the domestic courts in a Convention-compliant manner, the authorities could be invited to provide, on a confidential basis, if necessary, information on the nature of the data or evidence that were considered by the SCAC in the reopened proceedings.[23] This is important also in the light of the more general questions regarding the modalities of the judicial review (see below).

General measures:

The Committee has been closely supervising the issues raised in these cases since 2008 and the measures adopted by the authorities so far have allowed considerable progress which has already been welcomed by the Committee, such as : (i) the improvement of judicial review of expulsion orders and detention pending expulsion; (ii) the conferring of jurisdiction on the courts to consider the risk of death or ill-treatment; (iii) the removal of the automatic immediate enforcement of expulsion orders based on public order grounds; (iv) the creation of a remedy with automatic suspensive effect in the event of allegations of risk to life or limb in the destination country, applicable also in the event of expulsion order based on national security grounds and (v) the introduction of short time-limits for judicial review of detention pending expulsion.

The analysis below focuses on assessing the progress since the Committee’s last examination of this group and identifying the outstanding issues. The advisability of transferring the group under the standard supervision procedure is also examined.

-       Judicial review concerning expulsion orders (Articles 8 and 13)

It is recalled that the European Court’s case-law requires that the domestic courts examine whether the executive had been able to demonstrate the existence of specific facts serving as a basis for its assessment that the foreign national presented a national-security risk. As previously noted, the findings in the Bou Hassoun judgment from 2020 cast doubt on the solidity of the progress made regarding this issue(§§ 33 and 34).

These doubts appear reinforced by recent domestic judgments stating that the administrative authority must provide any type of data indicating threat to national security, and not necessarily facts or evidence; and that the assessment of the NSSA concerning the existence of a threat is not reviewed by courts with a view of assessing the reality of the threat but is only subject to a “formal” examination of its coherence. This raises prima facie questions as to whether such a review is compatible with the Convention requirements. To enable a thorough assessment of this matter, it appears necessary to provide, on confidential basis if necessary, case-law examples or information which demonstrate the type of “data” examined by courts in classified procedures; and to provide an analysis whether the courts’ refusal to review per se the existence of a threat to national security can be reconciled with the Convention requirements of a genuine judicial scrutiny.

As regards the publicity of judicial decisions in classified cases, it is positive that the authorities have asked for an interpretative judgment by the SAC and elaborated legislative proposals. It should be underlined however, that this issue, which is an obstacle for assessing the compliance of the judicial practice with the requirements of the Convention, has been outstanding since 2008 and the measures announced have not yet yielded the expected results.

In view of the above, it appears premature to propose to the Committee to continue its examination of the C.G. and Others case, dealing mainly with the above aspects, under the standard supervision procedure.

-       Assessment of risk of death or ill-treatment in the destination country and suspensive remedy

It is recalled that in 2021, the authorities introduced automatic suspensive effect of the remedy for examining “substantiated allegations” of “important risk” of death or ill-treatment in the destination country.

In response to the request of the Committee to provide examples of domestic practice, the authorities provided two judicial decisions, which do not fully illustrate the courts’ approach under the new rules. In addition, the Secretariat identified one judgment of 2023, where the expulsion order was annulled because of failure to examine the risk in the destination country. The scarcity of the available case-law might be due, at least to some extent, to the absence of publicity of judicial decisions in classified cases. Although judgments from 2024 on return orders set out relevant and positive principles, more examples concerning expulsion are still needed to allow a consolidated assessment of this issue.  

Moreover, the possibility to give, by an administrative decision, immediate effect to expulsion orders based on public order grounds requires explanation on how it is ensured that the person concerned has the possibility to request an examination of allegations of risk of ill-treatment in the destination country within the three days’ time-limit in which he or she can appeal such decision.

In addition, it appears that in most situations, the allegations of risk in the event of deportation are examined either in the asylum proceedings or in those concerning a return or expulsion order. However, as domestic courts appear to consider that asylum must be refused where there is a risk to national security or public order and that return or expulsion can be confirmed before the end of the asylum proceedings, clarifications would be useful on the interaction between the asylum procedure and judicial review of an expulsion order in some situations. In particular, it would be useful to demonstrate that the combination of remedies always ensures robust assessment of allegations of risk in the destination country, including where the return or expulsion order is confirmed before the end of the asylum proceedings, which later on terminate  with refusal of international protection based on exceptions related to national security or public order; or where the risk in a destination country identified in expulsion or return order have not been discussed in previously concluded asylum proceedings.

Bearing in mind that the legislative framework appears satisfactory and there are positive examples of case-law requiring an assessment of the risk to life or limb in the destination country, it is proposed to the Committee to continue the examination of the Auad case, dealing mainly with these aspects, under the standard procedure.

-       Judicial review of detention pending expulsion

Following the legislative reform of 2021 reducing the applicable time-limits, first-instance judicial review of detention orders is often concluded in a timely manner. This being said, delays can still be observed in some first-instance proceedings and there are frequently delays in proceedings before the SAC. Therefore, despite the positive impact of the 2021 reform, it appears necessary for the authorities to provide their assessment of the reasons for the longer processing periods in particular before the SAC and to identify further practical measures to prevent delays.

The reform of 2021, which provided that expulsion orders shall indicate the destination country, has also improved legal certainty for the detained foreign nationals, because the new framework allows a more solid judicial review of the question whether the administration is handling diligently the expulsion procedure for a detention to remain justified. It would nevertheless appear necessary that the authorities provide further information and analysis on how such diligence is ensured by the administrative authorities and the courts under the new framework, where expulsion is blocked by lack of travel documents[24] and in cases where the immediate enforcement of some expulsion orders is removed. Further information and consultations could also help clarify some other aspects identified in the information document CM/Inf/DH(2012)3-rev concerning measures to prevent violations of Article 5 §§ 1(f) and 4 of the Convention.

Taking into account the fact that the legislative framework appears satisfactory and mainly organisational measures appear required, whose adoption should be facilitated by the fact that the disposition time in administrative matters in Bulgaria is much lower than the average in the CoE member States according to CEPEJ data,[25] it is proposed to the Committee to continue the examination of these aspects and the relevant M. and Others precedent case under the standard procedure.

Financing assured: YES