FOURTH SECTION

Application no. 21341/07 Semoun Qasem Mohammad ABULAIL and Tsveta Ivanova LUDNEVA against Bulgaria lodged on 12 May 2007

STATEMENT OF FACTS

The first applicant, Mr Semoun Qasem Mohammad Abulail , is a Jordanian national who was born in 1976. The second applicant, Ms Tsveta Ivanova Ludneva , is a Bulgarian national who was born in 1951. The first applicant is now living in Jordan and the second applicant is living in Plovdiv , Bulgaria .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background

In 2000 the first applicant set up a limited liability company in Bulgaria . He was the sole owner of its capital. The second applicant was employed by the company. Between 2000 and 2003 the first applicant visited Bulgaria on several occasions. On 2 July 2003 he married the second applicant, and after that started living permanently in Bulgaria . In 2005 he was granted a permanent residence permit.

2. The order for the first applicant ’ s expulsion and his subsequent detention and expulsion

On 25 September 2006 the Director of the National Security Service (“the NSS”) made an order revoking the first applicant ’ s residence permit, ordering his expulsion and barring him from entering Bulgaria for ten years. The order relied on sections 42, 44 and 46 of the Aliens Act 1998. It said that it was based on the reasons set out in proposal no. C ‑ 3533/25.09.2006 and the fact that the first applicant was a threat to national security.

On 26 September 2006 the Director of the Plovdiv Regional Police Directorate, relying on section 44(6) and (8) of the same Act, ordered that the first applicant be put in a detention facility pending the enforcement of the expulsion order. The order stated that it was subject to appeal. The first applicant was detained on the same date. It does not appear that he has sought judicial review of that order. At the latest on 29 September 2006 he was sent to the Centre for Interim Detention of Aliens, where he remained until his expulsion.

On 31 December 2006 the first applicant was admitted to hospital with a broken nose and other injuries, which he had apparently sustained at the hands of a co ‑ detainee. He was discharged from hospital on 8 January 2007. In a letter of 30 January 2007 the NSS informed the first applicant ’ s lawyer that the prosecuting authorities were examining his complaint about the ill ‑ treatment suffered in detention.

The first applicant was expelled on 26 January 2007.

3. The legal challenges to the first applicant ’ s expulsion

On 19 October 2006 the first applicant appealed against the order for his expulsion. On 24 October 2006 the Minister of Internal Affairs dismissed the appeal, saying that the internal documents of the NSS contained information showing that the first applicant was a threat to national security. The Minister went on to say that the order had been sufficiently reasoned; by law, the authorities had to refrain from setting out in the expulsion order the facts grounding their conclusion that person concerned was a national security risk. The Minister also pointed out that in the case of persons posing a threat to national security, the authorities had no discretion and were bound to expel them.

In November 2006 the first applicant sought judicial review of the expulsion order by the Sofia City Court. He also asked the court to stay the order ’ s enforcement pending the outcome of the proceedings. He denied any involvement in criminal activities and said that he was not aware of the grounds for the order. On 7 December 2006 the Director of the NSS refused to examine a request for a stay of the order ’ s enforcement, saying that the matter would be dealt with by the courts.

Following amendments to the Aliens Act 1998 that made expulsion orders subject to review by the Supreme Administrative Court , the case was transferred to that court on an unspecified date in 2007.

In a final judgment of 9 January 2008 ( реш . â„– 3 от 9 януари 2008 г. по адм . д. â„– С ‑ 174/2007 г., ВАС, ІІІ о.), the Supreme Administrative Court dismissed the application. It found that it was admissible, noting that the statutory rules barring the judicial review of expulsion orders ran counter to the Convention. However, it went on to say that it transpired from an excerpt from proposal no. C ‑ 3533/25.09.2006 that the first applicant presented a threat to national security. That proposal was an official document and the court was bound to accept the truthfulness of the averments it contained. The expulsion order was therefore lawful.

B. Relevant domestic law

The relevant domestic law has been set out in detail in the Court ’ s judgments in the cases of Raza v. Bulgaria (no. 31465/08 , § § 30 ‑ 42, 11 February 2010) and M. and Others v. Bulgaria (no. 41416/08 , §§ 45 ‑ 53, 26 July 2011).

COMPLAINTS

1. The first applicant complains under Article 3 of the Convention of the ill-treatment that he suffered in detention.

2. The applicants complain under Article 8 of the Convention that the first applicant ’ s expulsion unduly interfered with their family life. In particular, they complain that the domestic court did not assess all relevant circumstances and that they were unable to challenge effectively the allegation that the first applicant presented a threat to national security.

3. The applicants complain under Article 13 of the Convention that they did not have an effective remedy in that respect.

4. The first applicant complains under Article 5 §§ 1, 4 and 5 of the Convention of his detention pending deportation.

5. The applicants complain under Article 6 § 1 of the Convention of the alleged unfairness of the judicial review proceedings.

6. Lastly, the first applicant complains under Article 1 of Protocol No. 1 that because of his expulsion he was unable to wind down the business of his company before being removed from Bulgaria or run it from abroad.

QUESTIONS TO THE PARTIES

1. Ha ving regard to their positive obligations under Article 3 of the Convention, did the authorities take measures to protect the first applicant from being subjected to inhuman or degrading treatment in relation to the incident which occurred in the Centre for Interim Detention of Aliens in Busmantsi after which he was admitted to hospital on 31 December 2006 ? The parties are requested to specify how the incident occurred and the persons involved, as well as all other relevant information.

2. H aving regard to the procedural protection from inhuman or degrading treatment, was the re an investigation into the above incident? If so, was that investigation compatible with Article 3 of the Convention? The parties are requested to provide information as to the course of the investigation, and copies of the documents in the investigation file.

3. Has there been a breach of the applicants ’ right to respect for their private and family life, contrary to Article 8 of the Convention, on account of the first applicant ’ s expulsion?

4. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention? In particular, did the courts submit to a meaningful scrutiny the grounds invoked by the executive for the first applicant ’ s expulsion and examine whether this expulsion was necessary in a democratic society (see Raza v. Bulgaria , no. 31465/08, §§ 61 ‑ 63, 11 February 2010 ; M. and Others v. Bulgaria , no. 41416/08 , §§ 97 ‑ 105 , 26 July 2011 )?