Information Note on the Court’s case-law 145

October 2011

Auad v. Bulgaria - 46390/10

Judgment 11.10.2011 [Section IV]

Article 3

Expulsion

Order for applicant’s expulsion on national-security grounds without adequate assessment of risk of proscribed treatment in receiving country: deportation would constitute a violation

Article 46

Article 46-2

Execution of judgment

General measures

Respondent State required to take measures to ensure adequate safeguards in cases concerning the deportation of aliens at risk of ill-treatment in the country of destination

Facts – The applicant, a stateless person of Palestinian origin, claimed asylum shortly after arriving in Bulgaria in May 2009. In a decision of October 2009, the State Refugees Agency refused him refugee status, but granted him humanitarian protection on the grounds that there was “a real danger and risk of encroachments upon [the applicant’s] life and person”. However, the following month the head of the State Agency for National Security made an order for the applicant’s expulsion on the grounds that he was a suspected terrorist and that his presence in Bulgaria represented a serious threat to national security. The applicant sought judicial review of the expulsion order but the Supreme Administrative Court refused after finding that the order was valid under the domestic law and that the applicant’s fears for his safety if returned to Lebanon were “irrelevant” once a reasonable assumption that he presented a threat to national security in Bulgaria had been established. The applicant was held in detention pending his expulsion for the maximum period of eighteen months permitted by the domestic law before being released subject to reporting restrictions.

Law – Article 3: A planned expulsion would be in breach of the Convention if substantial grounds were shown for believing that there was a real risk that the person concerned would be subjected in the receiving country to treatment prohibited by Article 3, even where he or she was regarded as presenting a threat to national security. Thus, any national-security considerations in the applicant’s case were irrelevant to the only salient issue: whether his expulsion would give rise to a real risk of proscribed treatment. The Supreme Administrative Court had not attempted to assess the question of risk, which it deemed “irrelevant”, and had instead confined itself to the question of the lawfulness of the expulsion order. Such an approach could not be considered compatible with the need for independent and rigorous scrutiny of the substance of the applicant’s fears, which were plainly arguable in the light of the opinion that had been delivered by the State Refugees Agency. On the basis of that opinion coupled with information on the situation of Palestinian refugees in Lebanon and the applicant’s personal account, the Court found that there was at least prima facie evidence capable of showing substantial grounds for believing the applicant would be exposed to a real risk if expelled there. The burden had therefore been on the State to dispel any doubts, but the Government had not presented any evidence on that issue on the grounds that the question of risk would in any event be examined at the time of expulsion. In the Court’s view, however, this could not be regarded as a binding assurance that the applicant would not be expelled to Lebanon. Indeed, it was unclear whether the Government in fact could bind the authorities responsible for executing the order.

More generally, the Court was not persuaded that effective guarantees existed in Bulgaria against the arbitrary deportation of people at risk of ill-treatment. Since the Aliens Act 1998 and regulations for its application were silent on the question of risk assessment and there were no reported cases on the subject, it was unclear which standards and what information the authorities would use in any determination of the risk faced by the applicant if removed to Lebanon. Nor was there any indication as to whether, in the event of their choosing to send the applicant to a third country, the authorities would properly examine the risk of his onward transmission to Lebanon. Accordingly, in view of the absence of a legal framework providing adequate safeguards there were substantial grounds for believing that the applicant risked a violation of his Article 3 rights.

Conclusion : deportation would constitute a violation (unanimously).

Article 13: The notion of an effective remedy in cases where the applicant had an arguable claim that he would be subjected to proscribed treatment if deported had two components: close, independent and rigorous scrutiny of the claim that substantial grounds for fearing a real risk of proscribed treatment existed, without regard to what the person may have done to warrant expulsion or to any perceived threat to national security; and access to a remedy with automatic suspensive effect. As to the scrutiny requirement, the Supreme Administrative Court had expressly refused to deal with the question of risk on the grounds that it was irrelevant and the Court had already found under Article 3 that there were no adequate guarantees that the risk would be subjected to rigorous scrutiny prior to enforcement of the expulsion order. More importantly, the Government had not pointed to any procedure whereby the applicant would be able to challenge the authorities’ assessment of his claims. As to the second component, the domestic courts did not appear to have any power to suspend the enforcement of expulsion orders issued on national-security grounds, even if an irreversible risk of death or ill treatment in the receiving State was claimed

Conclusion : violation (unanimously).

Article 5 § 1: Although the maximum period (eighteen months) allowed by the domestic law had not been exceeded, the grounds on which the applicant was detained, namely his pending deportation, had not remained valid for the whole period of his detention owing to the authorities’ failure to conduct the proceedings with due diligence. All the authorities had done during this period was to write three times to the Lebanese Embassy with requests for a travel document. There was no indication that they had pursued the matter vigorously or attempted to negotiate an expedited delivery, or of any efforts to secure the applicant’s admission to a third country. It was problematic too that domestic law did not require expulsion orders to specify the destination country as, where deprivation of liberty was concerned, legal certainty was required in respect of each and every element relevant to the justification of the detention and a lack of clarity over the destination country could hamper effective scrutiny of the authorities’ actions. Lastly, the delays could not be explained by the need to wait for the Supreme Administrative Court’s decision as not only did that court refuse to consider whether the applicant would be at risk if returned to Lebanon, the deportation order was in any event immediately enforceable.

Conclusion : violation (unanimously).

Article 46: In view of the grave and irreversible nature of the consequences of the removal of aliens to countries where they might face ill-treatment, and the apparent lack of sufficient safeguards in Bulgarian law in that respect, the Government was required to take measures, including amendments to the Aliens Act 1998 or other Bulgarian legislation and changes of administrative and judicial practice, to ensure that: (a) a mechanism existed requiring the competent authorities to consider rigorously, whenever there was an arguable claim, the risks an alien was likely to face as a result of expulsion on national-security grounds, by reason of the general situation in the destination country and his or her particular circumstances; (b) the destination country was always indicated in a legally binding act and a change of destination was amenable to legal challenge; (c) the mechanism allowed for consideration of the question whether, if sent to a third country, the alien might face a risk of being sent onwards to his or her country of origin without due consideration of the risk of ill treatment; (d) legal challenges had automatic suspensive effect pending the outcome of the examination of any arguable claim of a substantial risk of death or ill-treatment in the destination country; and (e) claims of a serious risk of death or ill-treatment in the destination country were examined rigorously by the courts.

Article 41: EUR 3,500 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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