C.G. and Others vs Bulgaria
According to the ECtHR Press release (available at http://hudoc.echr.coe.int/eng-press?i=003-2327920-2491345)
The applicants are: C.G., a Turkish national, born in 1968, and currently living in Turkey following his deportation from Bulgaria; and his wife and daughter, T.H.G. and T.C.G, both Bulgarian nationals, born in Bulgaria in 1968 and 1996 respectively and currently living in Plovdiv (Bulgaria). The case concerned the applicants’ complaint about C.G.’s deportation from Bulgaria to Turkey in June 2005. C.G. settled in Bulgaria in 1992. He married T.H.G. in April 1996 and, shortly afterwards, was granted a permanent residence permit. Before his deportation he worked as driver for a company in Plovdiv. On 8 June 2005 C.G.’s residence permit was withdrawn and a deportation order was issued stating that he posed a threat to national security. The decision, relying on the relevant provisions of the 1998 Aliens Act, referred to a classified report by Plovdiv Internal Affairs but gave no factual grounds for the deportation. At 6.30 a.m. on 9 June 2005 C.G. was summoned to a police station in Plovdiv, where he was served with the order and detained with a view to his expulsion. He was deported to Turkey the same day, without being allowed to make contact with a lawyer or his wife and daughter. C.G.’s appeal to the Minister of Internal Affairs was subsequently dismissed. In the ensuing judicial review proceedings, the Bulgarian courts also rejected C.G.’s applications concerning the unlawfulness of his expulsion. Their decisions were based on information contained in the Ministry of Internal Affairs’ report, which stated that, following secret surveillance, it had been established that C.G. was involved in drug trafficking. On that basis, the courts refused to make any further enquiries into the facts of the applicant’s case or examine any other evidence. Since being deported, C.G. sees his wife and daughter a couple of times a year in Turkey. They keep in contact by telephone.
The applicants complained about C.G.’s deportation to Turkey. They relied on Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens).
Decision of the Court
The Court noted that C.G. had lawfully resided in Bulgaria until his deportation in 2005 and that, after that date, he had only been able to see his wife and daughter occasionally for brief periods of time. The deportation had therefore amounted to interference with the applicants’ right to respect for their family life.
The Court further noted that, even where national security was at stake, deportation measures should be subjected to some form of adversarial proceedings before an independent authority or court which was competent to effectively scrutinise the reasons for those measures and to review the relevant evidence, if need be with appropriate limitations on the use of classified information.
It was particularly striking, however, that the decision to deport C.G. had given no factual grounds and had simply cited the relevant legal provisions concerning serious threats to national security. That conclusion had been based on unspecified information contained in a classified report. As C.G. had not been given even the slightest indication as to why he posed such a threat, he had not been able to present his case adequately in his appeal to the Minister of Internal Affairs or in the ensuing judicial review proceedings.
In the judicial review proceedings the Bulgarian courts’ decision to deport C.G. had been purely formalistic. They had refused to examine evidence which would confirm or contest the allegations against the applicant and had relied solely on uncorroborated information in a classified report drawn up as a result of covert monitoring.
Moreover, Bulgarian law with regard to such monitoring did not provide the minimum guarantees required under Article 8 such as ensuring that the original written record of special surveillance was faithfully reproduced or laying down proper procedures for preserving the integrity of such data. Indeed, in the applicants’ case, the file contained no information as to whether the secret surveillance measures had been lawfully ordered and executed or whether that aspect was even considered by the courts in the judicial review proceedings.
Finally, it had transpired during the judicial review proceedings that the only basis for the assessment that C.G. had posed a threat to national security had been his alleged involvement in drug trafficking. The Court found that the allegations against C.G – as grave as they might be – could not reasonably be considered to be capable of threatening Bulgaria’s national security. The Bulgarian courts had not therefore subjected the allegations against C.G. to meaningful scrutiny.
Accordingly, the Court concluded that, despite having had the formal possibility of seeking judicial review of the deportation order, C.G. had not enjoyed the minimum degree of protection against arbitrariness. The interference with the applicants’ family life had therefore not been in accordance with “the law”, in violation of Article 8.
The Court reiterated that the authorities had not properly scrutinised on what factual basis the decision to deport C.G. had been made or, indeed, whether it had been made for genuine reasons of national security. Furthermore, C.G had initially been given no information as to why the authorities had made such an assessment of him and, subsequently, had not even been given a fair and reasonable opportunity of contesting the allegation against him. Moreover, the national courts had not given any consideration to the question of whether the interference with the applicants’ family life had answered a pressing social need and had been proportionate to the legitimate aims pursued.
The Court therefore found that the judicial review proceedings had not constituted an effective remedy whereby the applicants could adequately argue their right to respect for their family life, in violation of Article 13.
Article 1 of Protocol No. 7
The Court reiterated that aliens, who were lawfully resident on the territory of a State which had ratified Protocol No. 7, benefitted from certain procedural safeguards in the event of their deportation such as knowing the reasons for their expulsion and having their case reviewed.
The Court recalled that C.G.’s expulsion had not been “in accordance with the law”. Furthermore, the Bulgarian courts had refused to gather evidence to confirm the allegations against C.G. and their decision had been formalistic, resulting in C.G. not having been able to have his case heard or reviewed, as required under paragraph 1 (b) of Article 1 of Protocol No. 7.
Moreover, as C.G. had been expelled on the very day he had received his deportation order, he had only been able to challenge the measures against him once outside Bulgaria. Article 1 of Protocol No. 7 allowed for that situation but only in the event that expulsion was “necessary in the interests of public order” or “grounded on reasons of national security”. The Court had already found that C.G.’s deportation had not been based on genuine national security reasons. Furthermore, there was nothing in the case file to suggest, and the Government had not put forward any convincing argument, that it had truly been necessary to deport immediately C.G. in the interests of public order.
The Court therefore concluded that C.G. had not been given the opportunity to exercise his rights before having been expelled from Bulgaria, in violation of Article 1 of Protocol No. 7.
Data protection; Effective remedy; Second Instance determination;
EASO Annual Report on the Situation of Asylum in the EU
Council of Europe,CoE: European Court of Human Rights [ECHR], C.G. and Others vs Bulgaria, 24/07/2008ECtHR rules on effective remedy against deportation order for Turkish national