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FOURTH
SECTION
CASE OF
AUAD v. BULGARIA
(Application
no. 46390/10)
JUDGMENT
STRASBOURG
11 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Auad v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana Mijović,
George Nicolaou,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent A. De
Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 46390/10)
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 stateless
person of Palestinian origin, Mr Ahmed Jamal Auad (“the
applicant”), on 13 August 2010.
- The
applicant was represented by Ms D. Daskalova, a lawyer practising in
Sofia, Bulgaria. The Bulgarian Government (“the Government”)
were represented by their Agents, Ms N. Nikolova and Ms M.
Kotseva, of the Ministry of Justice.
- The
applicant alleged, in particular, that his proposed expulsion to
Lebanon would expose him to a risk of ill treatment or death,
that he did not have an effective remedy in respect of his claim in
that regard, and that his detention pending deportation had been too
lengthy and unjustified.
- On
13 August 2010 the applicant asked the Court to indicate to the
Government, by way of an interim measure, to refrain from removing
him to Lebanon and to release him immediately from his detention
pending deportation. On 17 August 2010 the President of the Fifth
Section of the Court decided, in the circumstances, not to indicate
to the Government the interim measure sought by the applicant.
- On
23 September 2010 the President of the Fifth Section decided to give
priority to the application under Rule 41 of the Rules of Court and
to give notice of it to the Government. It was also decided to rule
on the admissibility and merits of the application at the same time
(Article 29 § 1 of the Convention).
- Following
the re composition of the Court’s sections on 1 February
2011, the application was transferred to the Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1989 in Ain al Hilweh, a
Palestinian refugee camp located on the outskirts of Saida, Lebanon
(see paragraphs 52 55 below). He currently lives in Sofia,
Bulgaria.
A. The applicant’s arrival in Bulgaria and his
asylum claim
- On 24 May 2009 the applicant arrived illegally in
Bulgaria and on 7 July 2009 applied for asylum, citing his fear
that if he returned to Lebanon he would be killed or ill-treated by
members of the Islamic militant group Jund al Sham (see
paragraphs 59, 60, 62, 78, 80 and 81 below). His identity was
established on the basis of a certificate issued on 26 November 2008
by the Palestine Liberation Organisation.
- The applicant’s story was that he, like his
father who had gone missing in 1991, was a member of Fatah (see
paragraphs 59 and 60 below). He had been appointed to a salaried
position in the movement with the protection of its head of security
in Ain al Hilweh, colonel Maqdah (see paragraphs 54, 55 and 84
below). His job had consisted in organising rallies in support of
various Palestinian organisations, commemorations of the Palestinian
revolution and protests against the founding of Israel. In early
2009, a neighbour of his who was a member of Jund al Sham had
been killed, the killing having been facilitated by information
supplied by a friend of the applicant, also a member of Fatah. In
reprisal, members of Jund al Sham had killed the applicant’s
friend. To protect himself, the applicant had moved to his sister’s
house, located in a part of the camp which was under the control of
Fatah. In July 2009 armed men had fired rounds at his sister’s
house, shouting his name. Later on colonel Maqdah had told the
applicant that those men had been members of Jund al Sham
seeking revenge for their associate’s killing, that he was not
able to protect him from them, and that he should leave Lebanon.
- In August 2009 the applicant tried to leave Bulgaria
with false documents. He was arrested by the police at the
Bulgarian Greek border. On 21 August 2009 the Petrich District
Court approved a plea bargain whereby the applicant pleaded guilty to
offences of illegally crossing the border and trying to deceive a
public officer by using an official document issued to another
person. He was sentenced to six months’ imprisonment, suspended
for three years, and fined 200 Bulgarian levs.
- In a decision of 29 October 2009, the State Refugees
Agency refused to grant the applicant refugee status, but granted him
humanitarian protection under section 9(1)(3) of the Asylum and
Refugees Act of 2002 (see paragraph 29 below). The reasons for the
decision described the applicant’s story, as related by him,
and continued:
“Bearing in mind the situation in the Palestinian
[refugee] camp [Ain al Hilweh],which is characterised by serious
armed clashes between ‘Fatah’ and militants from ‘Jund
al Sham’, there are grounds to grant the applicant
humanitarian protection, due to the real risk of infringements
consisting of personal threats against his life in a situation of
internecine armed conflict. Refugee camps in Lebanon have their own
system of governance. Camp administrations are not elected by popular
vote, but reflect the predominance of one or more groups or
formations that constantly vie for territorial control, which often
leads to armed clashes. In an interview for the news agency IRIN of
April 2008, the head of security of ‘Fatah’ in Lebanon
colonel Maqdah said that ‘Fatah’ will take care of
security in all Palestinian camps in order to put an end to the
spread of radical groups. ...
The applicant states that he has been a member of
‘Fatah’ since 2006, but there are no acts of persecution
against him by the authorities or by another political organisation
that the State is unable to oppose. He does not point to any of the
other relevant grounds under section 8(1) of the Asylum and Refugees
Act justifying fear of persecution, such as race, religion,
nationality, membership of a particular social group, or political
opinion or belief. That leads to the conclusion that there are no
grounds to grant asylum under the Asylum and Refugees Act [of 2002].
The [applicant] does not raise grounds justifying the application of
section 9(1)(1) or (1)(2) of [the Act].
The evidence in the file points to grounds to grant
humanitarian protection. There are indications of circumstances
falling within the ambit of section 9(1)(3) of [the Act]. The
above mentioned circumstances show that there are grounds to
take into account [the applicant]’s personal situation in
connection with the general social and political situation in the
Palestinian camps in Lebanon. The evidence gathered during the
proceedings shows that there is a real danger and risk of
encroachments upon [the applicant’s] life and person.
Under section 75(2) of the [Act], the [applicant]’s
assertions, set out in detail in the record drawn up by the
interviewing official, must be presumed to be truthful.
...
As required by section 58(7) of [the Act], the State
National Security Agency was invited to make written comments. Those
comments, dated 21 August 2009, contain no objection to granting the
[applicant] protection in the Republic of Bulgaria.”
- The
applicant did not seek judicial review of the refusal to grant him
refugee status.
- During that time he was settled, together with other
Palestinians, in a housing facility operated by the State Refugees
Agency.
B. The order for the applicant’s expulsion and
his ensuing detention
- On 17 November 2009 an agent of the State Agency for
National Security proposed to expel the applicant on national
security grounds and to place him in detention pending the carrying
out of that measure. In support of the proposal he said that the
applicant was a member of Usbat al Ansar, which he described as
a Sunni terrorist organisation acting in close cooperation with
Hamas, Jund al Sham, Ansar Allah and others (see paragraphs 54,
59 61 and 78 below). The applicant was alleged to have taken
part in “wet jobs” for the organisation and in the
assassinations of more than ten members of a Palestinian political
party; he was being sought by the Lebanese authorities in connection
with that. He was a relative of one of the leaders of Usbat al Ansar.
The available information showed that the applicant followed strictly
the organisation’s ideas and would unhesitatingly follow the
orders of its leaders. This had been confirmed by partner security
services. It had also been established that the applicant kept
contacts with two asylum seekers who were known to adhere to a
terrorist organisation active in Ain al Hilweh. One of them had
been implicated in the killing of a member of a Palestinian political
party and kept close contacts with Usbat al Ansar and Fatah
al Islam (see paragraph 65, 72, 74, 78 and 81 below). All of
that showed that the applicant by reason of his previous and current
activities presented a serious threat to the national security of
Bulgaria, and that his presence in the country discredited it as a
reliable partner in the fight against international terrorism.
- On 17 November 2009 the head of the State Agency for
National Security made an order for the applicant’s expulsion.
He also barred him from entering or residing in Bulgaria for ten
years, “in view of the reasons set out in [the above mentioned]
proposal and the fact that his presence in the country represent[ed]
a serious threat to national security”. The order relied on
sections 42 and 44(1) of the Aliens Act 1998. No factual grounds were
given, in accordance with section 46(3) of the Act (see paragraph 33
below). 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 Act (see paragraph 34
below).
- Concurrently with that order the head of the State
Agency for National Security made an order for the applicant’s
detention pending deportation (see paragraphs 42 and 43 below). He
reasoned that the information featuring in the proposal showed that
the applicant would try to prevent the enforcement of the expulsion
order, and accordingly directed that the detention order should be
immediately enforceable. He also instructed the immigration
authorities urgently to take all necessary steps to enforce the
expulsion order.
- On 20 November 2009 the applicant was arrested and
placed in a special detention facility pending enforcement of the
expulsion order. He submits that when brought there he was informed
about the two orders against him but was not given copies of them.
- On 19 May 2011, in view of the impending expiry of the
maximum permissible period of detention pending deportation –
eighteen months (see paragraph 44 below), the head of the State
Agency for National Security made an order for the applicant’s
release. The applicant was set free the following day, 20 May 2011.
He was placed under the obligation to report daily to his local
police station. He submits that he is currently without any
identification documents, means of support, or the possibility to
work.
C. Judicial review of the applicant’s expulsion
- On 4 December 2009 the applicant made an application
for judicial review of the expulsion order. He also challenged his
detention. He argued that the order was unlawful and that he had not
engaged in any illegal activities while in Bulgaria.
- On 23 March 2010 the applicant, having acquainted
himself with an excerpt of the proposal for his expulsion and other
documents in the file, asked the court to order the authorities to
specify – if need be, subject to restrictions resulting from
the use of classified information – what was the basis for
their belief that he was being sought by the Lebanese authorities “in
connection with the killing of members of Palestinian political
parties”, as noted in the proposal. He also asked the court to
order the authorities to specify whether they had used special means
of surveillance to gather information about him; if yes, to order
them to produce a copy of the requisite warrant and other documents.
- The Supreme Administrative Court heard the case on 27
April 2010.
- In a memorial filed on that date the applicant argued
that the data on which the authorities had relied to order his
expulsion were incorrect, vague, unverified, internally inconsistent
and unreliable. It was not true that he was a member of Usbat
al Ansar; quite the opposite, he was being sought by terrorist
organisations, and had for that reason fled Lebanon. His relative
referred to as a terrorist in the proposal was in fact an official of
a school administered by the United Nations. There were no concrete
elements in support of the assertion that he was being sought by the
Lebanese authorities. The Bulgarian authorities had not tried to
verify that through official channels, as was possible under the
treaty between Bulgaria and Lebanon for mutual cooperation in
criminal matters. The lack of concrete information on those issues
prevented him from presenting evidence to rebut the allegations
against him. He also pointed out that the State Agency for National
Security had not objected to his receiving protection in Bulgaria
during the asylum proceedings (see paragraph 11 above). Lastly, he
drew attention to the fact that he had been granted humanitarian
status on the basis of a risk to his life, and argued that his
expulsion would breach the principle of “non refoulement”
and Article 3 of the Convention.
- In a final judgment of 22 June 2010 (реш.
№ 8 10 от 22 юни 2010 г.
по адм. д. № С 4/2010
г., ВАС, VІІ о.),
the Supreme Administrative Court upheld the expulsion order in the
following terms:
“The order was issued on the basis of the reasons
set out in proposal no. T 6 5347/17.11.2009 and the
factual ground featuring in section 42(1) of the Aliens Act [of 1998
– see paragraph 33 below] – the alien’s presence in
the country poses a serious threat for national security.
The proposal for imposing the coercive measure in issue
says that [the applicant] was born on 30 November 19[8]9 in the
refugee camp ‘Ain al Hilweh’. He became a member of
the terrorist radical Islamic organisation ‘Asbat al Ansar’,
which is active on the territory of that camp. That organisation
works in close cooperation with similar organisations, including
‘Hamas’. The [applicant] was member of a ‘wetwork’
squad that targeted also members of a Palestinian political party. It
is not in dispute that the applicant is a relative of [A] who,
according to operative information, is one of the leaders of ‘Asbat
al Ansar’. He follows strictly the organisation’s
ideas and would carry out without hesitation the orders of its
leaders.
[The applicant] entered the territory of the county in
June 2009 and applied for asylum. However, in August that year he
tried to leave the country with forged documents, heading towards
western Europe. He was arrested by the border police at [a checkpoint
at the Bulgarian Greek border]. [On] 21 August 2009 the Petrich
District Court ... approved a plea bargain whereby [the applicant]
pleaded guilty to offences under Articles 279 § 1 and 318 of the
Criminal Code[: illegal crossing of the border and trying to deceive
a public officer by using an official document issued to another
person]. He was sentenced to six months’ imprisonment,
suspended for three years, and fined 200 [Bulgarian] levs.
According to operative information, he is in contact
with [B] and [C], who are present in the country as asylum seekers.
There is information that M.I. is also a member of Jund al Sham
and has taken part in the assassination of a member of ‘Fatah’
in ‘Ain al Hilweh’, in connection with which he is
being sought by the Lebanese authorities. [C] is an adherent of the
terrorist organisation ‘Asbat al Ansar’ and takes
part in a human trafficking channel from Lebanon to western Europe
that is used by members of Lebanese terrorist organisations. It is
known that there are contacts between [D] and individuals who reside
in western Europe and who sympathise with ‘Jund al Sham’.
The proposal makes a reasoned assumption that, due to his earlier and
present activities the [applicant] presents a serious threat to the
security of the Republic of Bulgaria, within the meaning of section 4
of the State Agency for National Security Act [of 2007], and his
presence in the country is liable to discredit our country as a
reliable partner in the fight against international terrorism.
The written evidence in the case includes excepts nos.
RB 202001 001 03 T6 3594, 95 and 96
of 12 April 2010. By decision no. 513 of 29 October 2009, the State
Refugees Agency refused to grant [the applicant] refugee status.
The assertions in the application that [the applicant]
resides lawfully on the territory of the country have not been
proven. The negative assertions in the application that he has not
taken part in unlawful activities cannot be regarded as established,
because the specialised agency has made findings in that regard.
Under section 46(3) of the Aliens Act [of 1998],
expulsion orders do not point to the factual grounds for the
imposition of the coercive measure; those grounds are contained in
the proposal for its imposition. The proposal shows that there are
indications of encroachments on national security, falling within the
remit of the State Agency for National Security under section
4(1)(11) and (14) of the State Agency for National Security Act [of
2007]: international terrorism and cross border organised crime,
which creates a threat for national security. The existence of such
indications does not require proof beyond doubt of acts directed
against the security of the county. There are sufficient grounds to
impose a coercive measure if there are indications which can lead to
a reasonable assumption that the applicant’s presence creates a
serious threat to national security. The factual data gathered
through operative methods and set out in proposal no. RB
202001 001 03 T6 5347 of 17 November 2009
constitute grounds to make a reasonable assumption that this
applicant’s presence does create a serious threat to national
security. The existing data about the applicant’s activity on
the country’s territory show the existence of the grounds set
out in section 42 of the Aliens Act [of 1998 – see paragraph 33
below].
A coercive measure, such as that envisaged by section 42
of the Aliens Act, has a preventive character, it aims to prevent
actions directed against the country’s security. For it to be
imposed, it is not necessary to carry out a full inquiry into the
information that has been gathered or seek proof for it, because this
is not a case involving the imposition of an administrative sanction.
The applicant’s statement, made in open court,
that he does not wish to be returned to Lebanon, where his life is
under threat, is irrelevant for the present proceedings. Under
section 42(2) of the Aliens Act, the withdrawal of the right of an
alien to reside in the Republic of Bulgaria and the imposition of a
ban on entering its territory inevitably flow from the imposition of
the coercive measure under subsection 1 – expulsion.
The order complies with the legal requirements. The
coercive measure has been imposed by the competent authority under
section 44 of the Aliens Act [of 1998], in due form and in compliance
with the rules of administrative procedure, the substantive law norms
and the aim of the law, and for those reasons the application for
judicial review must be rejected as ill founded.”
D. Judicial review of the applicant’s detention
pending deportation
- The legal challenge to the applicant’s detention
pending deportation (see paragraph 19 above) was transmitted to the
Sofia City Administrative Court. In the course of the ensuing
proceedings the court was provided with an excerpt of the expulsion
proposal. In a final judgment of 9 February 2010 (реш.
№ 2 от 9 февруари
2010 г. по адм. д. №
С 66/ 2009 г., САС,
І о.), it upheld the order for the applicant’s
detention, finding that it had been made by a competent authority, in
proper form, in line with the applicable substantive and procedural
rules, and in conformity with the aim of the law. It went on to say
that there was enough evidence that the applicant would try to hinder
the enforcement of the order for his expulsion.
- On an unspecified date in the summer of 2010 the Sofia
City Administrative Court, acting of its own motion, as required
under new section 46a(4) of the 1998 Aliens Act (see paragraph 45
below), reviewed the applicant’s continued detention (адм.
д. № 3872/2010 г., САС).
It confirmed it for a further six months.
- On 7 December 2010, again acting of its own motion,
the Sofia City Administrative Court confirmed the applicant’s
detention for a maximum of a further six months, until 20 May 2011
(опр. № 4227 от
7 декември 2010 г.
по адм. д. № 9061/2010 г.,
САС, І о.). It noted that the
detention had already lasted almost twelve months and by law could be
prolonged for a maximum of eighteen months. There existed impediments
to the enforcement of the order for the applicant’s expulsion.
He did not have the required travel document that would enable him to
enter Lebanon. In spite of three requests, the Lebanese embassy had
failed to issue such a document. The case thus fell within the ambit
of section 44(8) of the Aliens Act 1998 (see paragraph 44 below).
II. RELEVANT DOMESTIC LAW
A. Asylum and humanitarian protection
- Article 27 of the Constitution of 1991 provides as
follows:
“1. Aliens who reside in the country
lawfully cannot be removed from it or delivered to another State
against their will except under the conditions and in the manner
provided for by law.
2. The Republic of Bulgaria shall grant
asylum to aliens persecuted on account of their opinions or
activities in support of internationally recognized rights and
freedoms.
3. The conditions and procedure for granting
asylum shall be established by law.”
- Bulgaria acceded to the 1951 Convention Relating to
the Status of Refugees and the 1967 Protocol relating to the Status
of Refugees on 12 May 1993, and they came into force in respect
of it on 10 August 1993.
- Section 9(1)(3) of the Asylum and Refugees Act of 2002
provides that individuals forced to leave or stay out of their
country of origin because they faced a real risk of suffering death
or ill treatment as a result of an internal or an international
conflict are to be granted humanitarian protection. Section 9(2)
makes it clear that the risk may stem from the authorities or from
organisations against which the authorities are unable or unwilling
to act. Section 9(5) provides that aliens cannot be granted
humanitarian protection if in part of their country of origin there
is no real risk of serious encroachments and there they can freely
and lastingly enjoy effective protection. Under section 75(2), when
the authorities determine an asylum application they have to take
into account all relevant facts concerning the applicant’s
personal situation, country of origin, or relations with other
countries. The section also provides that when an applicant’s
statement is not supported by evidence, it must be presumed to be
true if the applicant has endeavoured to substantiate his or her
application and has provided a good explanation for the lack of
evidence. Section 58(7) requires the authorities processing asylum
applications to obtain written comments by the State Agency for
National Security.
- Section 4(3) provides that individuals who have been
granted protection under the Act or have entered Bulgaria to seek
such protection cannot be returned to the territory of a country
where their life or freedom are at risk on account of their race,
religion, nationality, membership of a social group, their political
opinions or views, or where they may face a risk of torture or other
forms of cruel, inhuman or degrading treatment or punishment.
However, section 4(4), which reflects a rule laid down in Article 33
§ 2 of the 1951 Convention, provides that that benefit may not
be claimed by aliens where there are grounds to regard them as a
danger to national security. There is no reported case law under
that provision.
- Section 67(1) provides that expulsion orders are not
enforced until the asylum proceedings have been concluded. By section
67(2), expulsion orders are revoked if the person concerned has been
granted asylum or humanitarian protection. However, those two
provisions are not applicable to, inter alia, aliens whose
presence in the country may be regarded as dangerous for its national
security (section 67(3)).
B. Expulsion of aliens on national security grounds
- A detailed description of the evolution of the law
governing expulsion on national security grounds until 2009 can be
found in paragraphs 18 26 of the Court’s judgment in the
case of C.G. and Others v. Bulgaria (no. 1365/07, 24
April 2008) and paragraphs 30 36 of the Court’s judgment
in the case of Raza v. Bulgaria (no. 31465/08, 11 February
2010). The relevant provisions are contained in the Aliens Act 1998,
as amended, and the regulations for its application.
- Section 42(1) of the Act provides that an alien must
be expelled when his or her presence in the country creates a serious
threat to national security or public order. However, expulsion
orders issued on national security grounds do no indicate the factual
grounds for imposing the measure (section 46(3)). Under section
42(2), expulsion must be accompanied by withdrawal of the alien’s
residence permit and the imposition of a ban on entering the country.
- Expulsion orders issued on national security or public
order grounds are immediately enforceable (section 44(4)(3)).
However, if expulsion cannot be effected immediately or needs to be
postponed for legal or technical reasons, the enforcement of the
expulsion order may be suspended until the relevant obstacles have
been overcome (section 44b(1)).
- Expulsion orders may be challenged before the Supreme
Administrative Court, whose judgment is final (section 46(2)). The
lodging of an application for judicial review does not suspend the
enforcement of the order under challenge (section 46(4)).
- Article 166 § 2 of the Code of Administrative
Procedure of 2006 provides that a court examining an application for
judicial review may suspend the enforcement of the administrative
decision under review, even if the administrative authority has
directed that it should be immediately enforceable, if enforcement
might cause the applicant harm that is considerable or hard to
redress. Suspension requests are heard in open court and determined
by means of a ruling that is amenable to appeal (Article 166 § 3).
In a decision of 27 January 2009, the Supreme Administrative Court
held that the enforcement of expulsion orders issued on national
security grounds could not be suspended. If immediate enforcement was
required by statute, it could be suspended by the court only if the
same statute specifically allowed that, whereas section 46(4) of the
Aliens Act 1998 expressly precluded that possibility (опр.
№ 1147 от 27 януари
2009 г. по адм. д. №
393/2009 г., ВАС, петчленен
състав).
- In an interpretative decision of 8 September 2009
(тълк. реш.
№ 5 от 8 септември
2009 г. по тълк. д. №
1/2009 г., ВАС, ОСК),
the Plenary Meeting of the Supreme Administrative Court stated that
Article 166 § 2 applied even where the immediate enforceability
of administrative decisions was required by statute, provided that
the law did not expressly preclude judicial review. The effect of
that ruling on the possibility of suspending the enforcement of
expulsion orders issued on national security grounds is unclear.
- Section 44a of the Aliens Act 1998, added in 2001,
provides that an alien whose expulsion has been ordered on national
security or public order grounds cannot be expelled to a country
where his or her life or freedom would be in danger, or where he or
she may face a risk of persecution, torture, or inhuman or degrading
treatment. In its early case law under that provision, the
Supreme Administrative Court accepted that the State Refugees Agency
could apply it when dealing with asylum requests (реш.
№ 5848 от 17 юни 2002 г. по
адм. д. № 7864/2001 г., ВАС,
ІІІ о.; реш. № 6048
от 24 юни 2002 г. по
адм. д. № 1298/2002 г., ВАС,
ІІІ о.; реш. № 7102
от 16 юли 2002 г. по
адм. д. № 994/2002 г., ВАС,
ІІІ о.; реш. № 9203
от 16 октомври
2002 г. по адм. д. №
4948/2002 г., ВАС, ІІІ о.;
реш. № 10069 от 12 ноември
2002 г. по адм. д. №
996/2002 г., ВАС, ІІІ о.).
However, in a judgment given in 2003 (реш.
№ 1400 от 18 февруари
2003 г. по адм. д. №
8154/2002 г., ВАС, ІІІ
о.), the court held that the Agency had no power to rule
on the application of section 44a and that this matter fell within
the remit of the immigration authorities. In a 2007 judgment
concerning an application for judicial review of a deportation order,
the court examined, albeit briefly, the substance of a claim under
that provision (реш. №
9636 от 15 октомври
2007 г. по адм. д. №
2222/2007 г., ВАС, ІІІ о.).
However, in three 2008 judgments it held that the prohibition
spelled out in section 44a does not concern the lawfulness of an
expulsion order as such, but merely bars its enforcement. While in
two of those cases the court went on to examine, albeit briefly, the
substance of the claim that the person concerned was at risk (реш.
№ 6787 от 5 юни 2008 г. по
адм. д. № 11461/2007 г., ВАС,
ІІІ о.; реш. № 6788
от 5 юни 2008
г. по адм. д. №
11456/2007 г., ВАС, ІІІ
о.), in the third it refused
to do so, saying that solely the authorities in charge of executing
an expulsion order have the power to apply section 44a (реш.
№ 7054 от 12 юни
2008 г. адм. д. № 10332/2007 г.,
ВАС, ІІІ о.). There
are no reported cases concerning the application of section 44a by
the immigration authorities.
- If a deportee does not have a document allowing him or
her to travel, the immigration authorities must provide one by
contacting the embassy or the consulate of the State whose national
he or she is. If that is not possible, such a document should be
provided through the consular department of the Ministry of Foreign
Affairs (regulation 52(1) of the regulations for the application of
the Aliens Act 1998, issued in 2000, and superseded on 5 July 2011 by
regulation 74(1) of the new regulations for the application of the
Act).
- Under regulation 71 of the new regulations for the
application of the Aliens Act 1998 (superseding regulation 48 of the
old regulations), in cases where expulsion orders are enforced
through removal by air, the person concerned is to be escorted by
immigration officers to his or her country of citizenship or another
country of his or her choice to which he or she may be admitted.
C. Detention pending deportation
- A detailed history of the provisions of the Aliens Act
1998 governing detention of deportees may be found in paragraphs
37 42 of Raza (cited above). The current regime is as
follows.
- Section 44(5) provides that if there are impediments
to a deportee’s leaving Bulgaria or entering the destination
country, he or she is placed under an obligation to report daily to
his or her local police station.
- Under section 44(6), it is possible to detain a
deportee in a special detention facility if his or her identity is
unknown, if he or she hampers the enforcement of the expulsion order,
or if he or she presents a risk of absconding. Under section 44(10),
deportees are placed in the detention facilities pursuant to special
orders that have to specify the need for such placement and its legal
grounds and be accompanied by copies of the orders under section
44(6).
- Under section 44(8), which was enacted with a view to
transposing Article 15 §§ 5 and 6 of Directive 2008/115/EC
of the European Parliament and of the Council of 16 December 2008 on
common standards and procedures in Member States for returning
illegally staying third country nationals (see paragraphs 46 48
below), detention may be maintained as long as the conditions laid
down in subsection 6 are in place, but not longer than six months.
Exceptionally, if a deportee refuses to cooperate with the
authorities, or there are delays in the obtaining of the necessary
travel documents, or the deportee represents a national security or
public order risk, detention may be prolonged for a further twelve
months, to a maximum of eighteen months.
- Section 46a provides for judicial review of the orders
for the detention of deportees by the competent administrative
courts. The application must be lodged within three days of their
being issued, and does not stay their enforcement (subsection 1). The
court must examine the application at a public hearing and rule, by
means of a final judgment, not later than one month after the
proceedings were instituted (subsection 2). In addition, every six
months the head of any facility where deportees are being held must
present to the court a list of all individuals who have been there
for more than six months due to problems with their removal from the
country (subsection 3). The court must then rule, on its own motion
and by means of a final decision, on their continued detention or
release (subsection 4). When the court sets aside the detention
order, or orders a deportee’s release, he or she must be set
free immediately (subsection 5).
III. RELEVANT EUROPEAN UNION LAW
- Directive 2008/115/EC of the European Parliament and
of the Council of 16 December 2008 on common standards and procedures
in Member States for returning illegally staying third country
nationals came into force on 13 January 2009 (Article 22). Under
Article 20, the Member States of the European Union were required to
transpose the bulk of its provisions in their national laws by 24
December 2009.
- Recital 16 of the Directive reads as follows:
“The use of detention for the purpose of removal
should be limited and subject to the principle of proportionality
with regard to the means used and objectives pursued. Detention is
justified only to prepare the return or carry out the removal process
and if the application of less coercive measures would not be
sufficient.”
- Article 15 of the Directive, which governs detention
for the purpose of removal, provides, in so far as relevant:
“1. Unless other sufficient but less
coercive measures can be applied effectively in a specific case,
Member States may only keep in detention a third-country national who
is the subject of return procedures in order to prepare the return
and/or carry out the removal process, in particular when:
(a) there is a risk of absconding or
(b) the third country national concerned
avoids or hampers the preparation of return or the removal process.
Any detention shall be for as short a period as possible
and only maintained as long as removal arrangements are in progress
and executed with due diligence.
...
4. When it appears that a reasonable prospect
of removal no longer exists for legal or other considerations or the
conditions laid down in paragraph 1 no longer exist, detention ceases
to be justified and the person concerned shall be released
immediately.
5. Detention shall be maintained for as long
a period as the conditions laid down in paragraph 1 are fulfilled and
it is necessary to ensure successful removal. Each Member State shall
set a limited period of detention, which may not exceed six months.
6. Member States may not extend the period
referred to in paragraph 5 except for a limited period not exceeding
a further twelve months in accordance with national law in cases
where regardless of all their reasonable efforts the removal
operation is likely to last longer owing to:
(a) a lack of cooperation by the
third country national concerned, or
(b) delays in obtaining the necessary
documentation from third countries.”
- On 10 August 2009 the Sofia City Administrative Court
made a reference for a preliminary ruling by the European Court of
Justice (“ECJ”), enquiring about the construction to be
put on various paragraphs of that Article.
- In his opinion, Advocate General Mazák
expressed the view, inter alia, that it was important to note
that the periods laid down in Article 15 §§ 5 and 6 of
the Directive defined only the absolute and outside limits of the
duration of detention, that it was clear from their wording that any
detention prior to removal must be for as short a period as possible
and may be maintained only as long as removal arrangements are in
progress and executed with due diligence, and that detention must be
brought to an end when the conditions for detention no longer exist
or when there is no longer any reasonable prospect of removal. He
went on to say that those maximum periods of detention were part of a
body of rules intended to ensure that detention is proportionate, in
other words that its duration is for as short a period as possible
and, in any event, not for longer than the six months or the eighteen
months provided for.
- In its judgment of 30 November 2009 (Saïd
Shamilovich Kadzoev v. Direktsia ‘Migratsia’ pri
Ministerstvo na vatreshnite raboti, case C 357/09), the ECJ
noted, inter alia, that the objective of Article 15 §§
5 and 6 was to guarantee in any event that detention for the purpose
of removal does not exceed eighteen months. It went on to rule that
those provisions must be interpreted as meaning that the period
during which enforcement of the deportation order has been suspended
because the person concerned has challenged it by way of judicial
review is to be taken into account in calculating the period of
detention for the purpose of removal, where the person concerned
remains in detention during that procedure. The court further ruled
that Article 15 § 4 must be interpreted as meaning that only a
real prospect that removal can be carried out successfully, having
regard to the periods laid down in Article 15 §§ 5 and 6,
corresponds to a reasonable prospect of removal, and that such a
reasonable prospect does not exist where it appears unlikely that the
person concerned will be admitted to a third country, having regard
to those periods.
IV. RELEVANT COUNTRY INFORMATION
A. Background
- There are twelve “official” Palestinian
refugee camps in Lebanon: two in the north of the country, near
Tripoli, five in the centre (four near Beirut and one near Baalbek),
and five in the south (two near Saida and three near Tyre). In
addition, there are dozens of informal gatherings, sometimes referred
to as “unofficial camps”, spread throughout the country.
The majority of Palestinian refugees in Lebanon are those displaced
during the Arab Israeli war of 1948 and their descendants. More
Palestinians arrived in 1967 after the Six Day War, and in the
1970s after they were expelled from Jordan. The refugees fall into
three categories: those registered with the United Nations Relief and
Works Agency for Palestine Refugees in the Near East (“the
UNRWA”) (“registered refugees”), who are also
registered with the Lebanese authorities; refugees registered with
the Lebanese authorities but not with the UNRWA (“non-registered
refugees”); and refugees registered neither with the UNRWA nor
with the Lebanese authorities (“non ID refugees”).
According to the UNRWA, on 30 June 2010 there were 427,057 registered
refugees in Lebanon; 226,767, or 53.1% of them, were living in the
“official” camps. However, according to a report by the
International Crisis Group (see paragraphs 76 and 77 below), many
observers believe that the numbers cited by the UNRWA are inflated
and fail to take account of the impact of the 1975 90 Lebanese
Civil War and subsequent waves of Palestinian departures; according
to their estimates, in 2009 the refugees were between 200,000 and
250,000. There are an estimated 10,000 to 35,000 non registered
refugees and 3,000 to 5,000 non ID refugees. By law, Palestinian
refugees in Lebanon are considered foreigners and are subject to
various restrictions (for details, see Amnesty International: Exiled
and suffering: Palestinian refugees in Lebanon, October 2007).
- Ain al Hilweh (other transliterations from Arabic
include Ain al Helweh, Ein el Hilweh, Ein al Helweh,
and Ayn Hilwa) is one of the two “official” camps located
near Saida (Sidon). It was established at the outskirts of the town
in 1948 to accommodate refugees from northern Palestine. After
displacements resulting from the Lebanese Civil War, it became the
biggest refugee camp there, in terms of both population and area.
According to the UNRWA, it contains more than 47,500 registered
refugees; according to the above mentioned International Crisis
Group report (see paragraphs 76 and 77 below), the number is closer
to 70,000. It covers an area of about two square kilometres, and is
one of the most densely populated camps. Like the other Palestinian
refugee camps in Lebanon, it is not controlled by the Lebanese
authorities, but by local Palestinian factions. The Lebanese Army has
checkpoints at the entrances to the camp.
- In an article published on 7 January 2010 following a
visit by a correspondent to Ain al Hilweh, the Hong Kong based
newspaper Asia Times Online described the camp as divided into two
sections, Upper and Lower streets, which led to a network of arterial
alleyways. Lower Street was regarded as the bastion of the radical
Islamists in the camp. According to a local figure quoted in the
article, there were three broad coalitions inside the camp: the
Tahalof (Cooperative), the Palestinian Liberation Organization, and
Islamic factions. The Tahalof consisted of seven factions, including
the Islamic Resistance Movement (Hamas) and Palestinian Islamic
Jihad. The Palestinian Liberation Organization faction was made up of
five groups and was dominated by Fatah. The Islamic faction comprised
three groups: Asbat al Ansar, Harakat Mujahideen Islamiyah, and
Ansar Allah. The article went on to mention inter Fatah
conflicts inside the camp, saying that they centred on veteran Fatah
leader Mounir Maqdah and his rival Mahmoud Abdul Hameed Al Issa.
Maqdah was described as being regarded as a renegade by some Fatah
leaders, partly because of his close links to Palestinian Islamists.
However, a minority faction in Fatah viewed his links to Islamists as
a vital asset.
B. United Kingdom Government Reports
- The United Kingdom Home Office Country of Origin
Information Report on Lebanon, issued in July 2006, says the
following about Ain al Hilweh:
“6.142 ... ‘There are many
displaced Palestine refugee families in this camp who were forced to
flee from Tripoli and other areas of the country during the
hostilities in the eighties. Ein el Hilweh has endured much
violence, particularly between 1982 1991, which resulted in a
high number of casualties and near total destruction of the camp.
Shelters are small and very close to each other. Some
still have zinc sheet roofing. UNRWA constructed a multi-storey
housing complex in 1993 1994 to accommodate 118 displaced
families mainly from Nabatieh camp, which was destroyed during the
[sic] 1973 by Israeli military action. A number of displaced refugees
continue to live on the edge of the camp in extremely poor
conditions.’ ...
...
6.145 A 2003 paper by Are Knudsen, ‘Islamism
in the Diaspora: Palestinian refugees in Lebanon’, states that
‘Ayn Hilwa, the most conflict ridden camp in the country
is surrounded by barbed wire and legal entry is only possible through
a few checkpoints guarded by the Lebanese army, with secondary
checkpoints manned by armed guards representing the popular
committees.’
6.146 According to Knudsen’s 2003
paper, Ein el Hilweh’s political actors can be divided
into three groups: loyalist, Islamist and oppositional. Knudsen
detailed the different groups as follows:
‘The ‘loyalists’ are secular groups
formed around PLO’s largest faction Fateh and share its secular
ideology and political programme. The ‘Islamists’ are a
heterogeneous mix of Palestinian and Lebanese Islamists with
divergent ideologies and political agendas. While some remain
ideologically opposed to Fateh and its policies vis à vis
Israel (Hamas, Islamic Jihad), others seek to break Fateh’s
political hegemony in Lebanese refugee camps, if necessary by violent
means (Osbat al Ansar). The ‘oppositional’ camp is
likewise a heterogeneous coalition of secular parties, many of them
breakaway factions from Fateh itself, which find a common ground in
their difference with Fateh and the loyalists over their policy of
appeasement vis-à-vis Israel. In the camps there is also a
diverse range of committees and groups whose main function is not
political but bureaucratic. Still, control of the popular committees
and trade union groups does provide political gains and leadership of
them is therefore coveted and sometimes turns violent.’
6.147 The same source also contained a table
listing the various political actors in Ein el Hilweh, which
categorised them into the ‘loyalist’, ‘Islamist’
or ‘oppositional’ groups: [Loyalist, which includes
Fatah; Islamist, which includes the Ansar Group; and Oppositional].
6.148 A June 2003 Middle East Intelligence
Bulletin (MEIB) article recounted, in detail, the various groups and
power struggles within Ein el Hilweh over the last two decades.
The article states that ‘Ain al Hilweh, the largest
Palestinian refugee camp in [then] Syrian occupied Lebanon, has
been linked to virtually every case of al Qaeda activity in
Lebanon, while renegade terrorists residing in the camp have been
tied to the global terror network’s operations in Jordan,
Turkey and elsewhere in the region.’ The article noted that,
despite the status of Ein el Hilweh as a ‘zone of unlaw’
serving Syrian interests, Damascus did not directly control most
operatives within the camp and that the most radical groups were in
fact anti Syrian.
6.149 The article also reported that Ein
el Hilweh was the stronghold of the Fatah movement during the
late 1980s, that the Abu Nidal Organisation [ANO] had been defeated
by Fatah in a bloody three day war for control of the camp in
September 1990 and also recounted the rebellion of Col. Mounir Maqdah
against Yasser Arafat’s command. With Iranian finances and
Hezbollah logistical support, he began training his own militia and
‘By 1995, Maqdah’s dissident faction [the Black September
13 Brigade], backed by pro Syrian leftist groups, had
established dominance over mainstream Fatah forces in the camp, in
part because many of Arafat’s most loyal commanders had been
transferred to the West Bank and Gaza.’ MEIB noted that ‘Hamas
and Islamic Jihad, which had only a limited presence in the camp
until the mid 1990s, coordinated closely with Maqdah and were
allowed to distribute Iranian funds to expand their bases of
support.’
6.150 Esbat al Ansar, the League of
Partisans, has also had a presence in Ein el Hilweh for over two
decades and, ‘In the [sic] late 1998, Esbat al Ansar began
receiving significant funding from al Qaeda, thoroughly
transforming both its infrastructure and its goals. The group’s
military wing, which now paid recruits monthly salaries for the first
time, grew to a force of 150 300 fighters, dozens of whom were
sent to bin Laden’s training camps in Afghanistan.’ Due
to its increased financial resources, the group was able to buy
weapons and also move more freely, as members could now pay the
bribes needed to pass through Lebanese security checkpoints. The
latter benefit meant that ‘It quickly established close links
with radical Islamists in the northern port of Tripoli and the nearby
Badawi and Nahr el Bared refugee camps.’
6.151 Syrian concerns over the rise of
Islamist groups in the camp resulted in the Syrian authorities
allowing Fatah to reassert its authority in the Ein al Hilweh,
which included Mounir Maqdah who had rejoined Fatah in late 1998,
primarily by pouring Palestinian Authority (PA) funds into the camp.
However, with the in absentia conviction of Fatah’s
leader in Lebanon, Sultan Abu al Aynayn [based in Rashidieh
camp], of forming an armed gang and the subsequent arrest of three
senior Fatah officials, Syrian support of Fatah’s authority in
Ein el-Hilweh was again curtailed, seemingly in favour of Esbat
al Ansar.
6.152 MEIB also recounted the presence of
other groups in Ein el Hilweh, such as Jamal Suleiman’s
Fatah’s Martyrs’ Battalion; the Popular Front for the
Liberation of Palestine (PFLP); the 10 to 20 fighters who constituted
the remnants of the Dinniyeh Group – initially a 200 300
strong group of Islamic militants who, in January 2000, had failed in
an attempt to establish an Islamic ‘mini state’ in
north Lebanon – who fled to Ein el Hilweh following the
defeat of the group by 13,000 Lebanese troops; and the Esbat al Ansar
breakaway group – Esbat al Nour – which was led by
the eldest son of the original group’s founder: ‘[Abdullah]
Shreidi attracted only a few dozen of the [Esbat al-Ansar] movement’s
fighters, as well as the Dinniyeh militants for whom he had provided
shelter.’ The article states that ‘Another small, but
important al Qaeda affiliate is Al Haraka al Islamiya
al Mujahida (The Islamic Struggle Movement), led by Sheikh Jamal
Khattab, the imam of Al Nour Mosque in the Safsaf neighbourhood
of Ain al Hilweh.’
6.153 MEIB detailed the fluctuating nature of
power within the camp, reporting on the various outside influences of
the Syrian and Iranian regimes, Hezbollah and Al Qaeda, and also
the political and physical conflicts between the groups inside Ein
el Hilweh.”
- The United Kingdom Border and Immigration Agency
periodically issues Operational Guidance Notes (“OGNs”)
which evaluate the general, political and human rights situation in a
given country and provide guidance on the nature and handling of the
most common types of asylum or subsidiary protection claims by
persons fleeing that country.
- The latest OGN on Lebanon was issued on 10 June 2009.
It noted that Palestinian refugees were not able to obtain Lebanese
citizenship and were not nationals of any other country. Thousands of
Palestinians did not have any form of identification and were not
receiving assistance from UNRWA. Some 20,000 Palestinians were
believed to have been naturalised as Lebanese. However, it appeared
that the status of some of the naturalised Palestinians was not
secure as there were reports that their Lebanese nationality could be
annulled.
- The OGN referred to two immigration tribunal rulings
(KK IH HE (Palestinians – Lebanon – camps) Palestine
CG [2004] UKIAT 00293, and MM and FH (Stateless Palestinians,
KK, IH, HE reaffirmed) Lebanon CG [2008] UKAIT 00014 (4 March
2008)), which found that the general treatment of Palestinians by the
Lebanese authorities and the conditions in the Palestinian refugee
camps in Lebanon were not such as to reach the threshold of severity
that triggers the application of Article 3 of the Convention. On that
basis, the OGN concluded that while the situation for Palestinians in
Lebanon was poor with some differential treatment due to
statelessness, conditions in the camps did not reach the threshold to
establish either persecution or a breach of human rights.
- With regard to claims based on fear of the Lebanese
authorities due to membership of a Palestinian group, the OGN noted
that the Palestinian political scene in Lebanon consisted of three
broad categories. The first was members of the Palestinian Liberation
Organisation, including Fatah, the Popular Front for the Liberation
of Palestine, the Democratic Front for the Liberation of Palestine
and several other less significant factions. The second category
consisted of the Alliance of Palestinian Forces, known as Tahaluf,
founded in 1993 in opposition to the Oslo peace accords. Its members
did not recognise Israel and advocated armed struggle. It had
regrouped into eight factions which enjoyed close relations with
Syria: Hamas, Islamic Jihad, the Popular Front for the Liberation of
Palestine General Command (PFLP GC), Fatah al Intifada,
al Saiqa, the Palestinian Popular Struggle Front, the
Palestinian Liberation Front, and the Palestinian Revolutionary
Communist Party. The third category comprised Jihadi leaning
Islamist forces, an eclectic assortment of movements that espoused
the use of violence rather than a coherent or organised group. It
included Usbat al Ansar, Hizb al Haraka al Islamiyya
al Muhahida, and Ansar Allah, which engaged with the Lebanese
State and Army. More extreme movements rejected any dealing with
Lebanese institutions or Fatah and included Jund al Sham, Usbat
al Nour, and other less significant groups.
- According to the OGN, Fatah generally boasted a
strong, often dominant, presence in the camps in south Lebanon,
including Ain al Hilweh. However, the camp was “a
microcosm of the Palestinian political universe”, with all PLO,
Tahaluf and Jihadi factions being represented and perpetually
competing for influence and power, which resulted in frequent
clashes. Palestinian militant groups continued to capitalise on the
lack of government control within the camps. Some of those groups,
such as Usbat al Ansar and Jund al Sham, had been able to
find safe haven within the camps, most notably in Ain al Hilweh.
In March 2008 heavy clashes had erupted in the camp between Jund
al Sham militants and fighters of Fatah. They had exchanged
rocket fire for four hours until a ceasefire had been agreed
following mediation by another Islamist group. A Fatah leader had
said at least four people had been wounded in the clashes. The Jund
al Sham fighters would leave the camp and Fatah security agents
would take control. The Lebanese army had blocked the entrance to the
camp while allowing civilians to leave. A Palestinian official had
said that the militants of Jund al-Sham had been angered by Fatah’s
seizure of a commander of the group and his handover to the Lebanese
army. The captive had been suspected of links to militant groups
outside Lebanon. On 15 September 2008 a Jund al Sham member had
been killed in further clashes between the group and Fatah. Reports
had said the Lebanese army had taken up positions at the entrance of
the camp just metres away from the fighting.
- On the basis of that information, the OGN concluded
the following:
“In assessing any risk from the Lebanese
authorities to those who claim to have been a member of an armed
Palestinian group, the type of group and level of involvement will
need to be considered. Consideration should also be given to the
reasons for leaving a refugee camp and how the claimant was able to
avoid the authorities when leaving Lebanon. In general, the Lebanese
authorities do not enter Palestinian camps.
Palestinian groups operate autonomously in refugee camps
and in the majority of cases would be able to offer the protection
needed from within these camps. Claimants who have not been directly
involved in criminal or militant acts and who support more moderate
groups, such as Fatah, are unlikely to have come to the attention of
or be of interest to the Lebanese authorities. A grant of asylum or
Humanitarian Protection would not usually be appropriate in such
cases. However, if it is accepted that the claimant has been involved
in armed groups of particular interest to the Lebanese authorities,
such as the Abu Nidal Organisation, Asbat Al Ansar/Al Nur and
Jund al Sham, or can otherwise demonstrate adverse interest and
inability to access protection, it may be appropriate to grant
asylum.
Case owners should note that members of armed
Palestinian groups have been responsible for numerous serious human
rights abuses. If it is accepted that a claimant was an active
operational member or combatant of an armed Palestinian group and the
evidence suggests he/she has been involved in such actions, then case
owners should consider whether one of the Exclusion clauses is
applicable. Case owners should refer such cases to a Senior
Caseworker in the first instance.”
- With regard to claims based on fear of Islamic
Palestinian Groups in the Ain al Hilweh, such as Usbat al-Ansar,
Jund al-Sham, or the Fatah Revolutionary Council (also known as Abu
Nidal Organisation), the OGN observed that although Fatah’s
control was weak, claimants could seek their protection. It went on
to note that the refugee camps were outside the government’s
control, which meant that in those areas the Lebanese authorities
would not be able to offer sufficiency of protection from extremist
Palestinian groups. However, the authorities would be able to offer
protection outside the camps. A further option was internal
relocation. Since the threat was localised in specific camps,
relocation to another camp or elsewhere in Lebanon was feasible and
not unduly harsh. In that respect, the OGN referred to two
immigration tribunal rulings: BS (Palestinian – Lebanon –
relocation) Lebanon [2005] UKIAT 00004, and
MA (Lebanon/Palestine, fear of Fatah, relocation) Palestine
[2004] UKIAT 00112, and reached the following conclusion:
“Within the [A]in [a]l Hilweh camp there have
been in the past, and continue to be, various factions of extremist
Palestinian groups struggling for power leading to occasional
outbreaks of violence. In individual cases consideration needs to be
given as to why the claimant would be of interest to the extremist
Palestinian groups and the level of that interest. The Tribunal have
found that it is not unduly harsh to relocate between camps in
Lebanon. Many of the most extreme groups have limited support in
Lebanon, especially outside the refugee camps. It is therefore
considered that a claimant could find safety in another camp or
elsewhere in Lebanon where the specific extremist Palestinian group
he fears does not have a significant presence. Protection may also be
available to the claimant from other Palestinian groups, particularly
Fatah. Therefore a grant of asylum or Humanitarian Protection would
not usually be appropriate for claims on this basis.”
- With regard to claims based on fear of Palestinian
groups on account of collaboration with their enemies, the OGN
observed that, since the Government of Lebanon did not exercise
control over the Palestinian refugee camps, armed groups could
operate relatively freely there. Therefore, sufficiency of protection
would not generally be available from the Lebanese authorities inside
the camps. For those who feared persecution at the hands of a rival
group, protection inside the refugee camp could be available from
another group. There was no evidence to show that the Lebanese
authorities would be unwilling or unable to offer protection outside
the refugee camps to those fearing Palestinian groups. Another option
was internal relocation. The law provided for freedom of movement,
and the Lebanese authorities generally respected that right, with
some limitations. They maintained security checkpoints, primarily in
military and other restricted areas. There were few police
checkpoints on main roads or in populated areas. The security
services used those checkpoints to conduct warrantless searches for
smuggled goods, weapons, narcotics, and subversive literature. Few
Palestinian groups had influence outside the refugee camps and
relocation to another camp or elsewhere in Lebanon was not likely to
be unduly harsh. In that respect, the OGN referred to the
above mentioned ruling in BS (Palestinian – Lebanon –
relocation) Lebanon [2005] UKIAT 00004, and to the ruling in WD
(Lebanon – Palestinian – ANO – risk) Lebanon CG
[2008] UKAIT 00047, and concluded as follows:
“Consideration needs to be given to the level of
involvement as a collaborator, who the claimant worked for, what
information the claimant was in a position to give and their position
in that group. In the majority of cases within the refugee camps the
Lebanese authorities would not be able to provide sufficiency of
protection. However, few Palestinian groups have influence outside
the refugee camps and the Lebanese authorities would be in a position
to offer sufficiency of protection in the remainder of the country.
However if the claimant is a known Israeli collaborator the Lebanese
authorities might not offer protection. Internal relocation to
another camp away from a particular Palestinian group feared would
not be unduly harsh. Therefore in the majority of cases a grant of
asylum or [h]umanitarian [p]rotection would not usually be
appropriate.”
C. United States’ Government Reports
1. Department of State Country Report on Human Rights
Practices, Lebanon, 2010
- This report, issued on 8 April 2011, noted, inter
alia, the following:
“The law does not specifically prohibit torture or
cruel, inhuman, or degrading treatment or punishment, and there were
reports government officials employed such practices. According to
human rights groups – including Amnesty International (AI), the
Lebanese Association for Education and Training (ALEF), and HRW –
torture was common, and security forces abused detainees. Human
rights organizations reported torture occurred in certain police
stations, the Ministry of Defense (MOD), and the ISF’s
intelligence branch and Drug Repression Bureau detention facilities
in Beirut and Zahle. ...
Former prisoners, detainees, and reputable local human
rights groups reported the methods of torture and abuse applied
included hanging by the wrists tied behind the back, violent
beatings, blows to the soles of the feet, electric shocks, sexual
abuse, immersion in cold water, extended periods of sleep
deprivation, being forced to stand for extended periods, threats of
violence against relatives, deprivation of clothing, withholding of
food, being deprived of toilet facilities, and continuous
blindfolding.
...
The law provides for freedom of movement within the
country, foreign travel, emigration, and repatriation, and the
government generally respected these rights for citizens but placed
limitations on the rights of Palestinian refugees. The government
cooperated with the UN Relief and Works Agency for Palestinian
Refugees (UNRWA), the UNHCR, and other humanitarian organizations in
providing protection and assistance to internally displaced persons,
refugees, returning refugees, asylum seekers, and other persons of
concern.
The government maintained security checkpoints,
primarily in military and other restricted areas. On main roads and
in populated areas, security services used a few police checkpoints
to conduct warrantless searches for smuggled goods, weapons,
narcotics, and subversive literature. Government forces were unable
to enforce the law in the predominantly Hizballah controlled
Beirut southern suburbs and did not typically enter Palestinian
refugee camps.
According to UNRWA, Palestinian refugees registered with
the MOI’s Directorate of Political and Refugee Affairs (DPRA)
may travel from one area of the country to another. However, the DPRA
must approve transfer of registration for refugees who reside in
camps. UNRWA stated the DPRA generally approved such transfers. ...
...
The amount of land allocated to official refugee camps
in the country has only marginally changed since 1948, despite a
four fold increase in the registered refugee population.
Consequently, most Palestinian refugees lived in overpopulated camps
subject to repeated heavy damage during multiple conflicts. Poverty,
drug addiction, prostitution, and crime reportedly prevailed in the
camps, although reliable statistics were not available. In accordance
with a 1969 agreement with the PLO, PLO security committees, not the
government, provide security for refugees in the camps.”
2. Department of State Country Reports on Terrorism
2009
- These reports, issued on 5 August 2010, contained the
following observations in respect of Lebanon:
“While the threat of terrorist activity kept
Lebanese security agencies on high alert throughout the year, 2009
was characterized by increased governmental efforts to disrupt
suspected terrorist cells before they could act. The Lebanese Armed
Forces (LAF), in particular, were credited with capturing wanted
terrorist fugitives and containing sectarian violence.
Several designated terrorist organizations remained
active in Lebanon. HAMAS, The Popular Front for the Liberation of
Palestine (PFLP), the Popular Front for the Liberation of
Palestine General Command (PFLP GC), Fatah al Islam
(FAI), al Qa’ida (AQ), Jund al Sham, the Ziyad
al Jarrah Battalions, and several other splinter groups all
operated within Lebanon’s borders. Hizballah, which is a legal
entity and a major political party, is represented in Lebanon’s
cabinet and parliament.
In 2009, terrorist violence and counterterrorist
activity included the following incidents:
...
– In July, the Lebanese Army arrested
Syrian citizen Mounjed al Fahham at Beirut International
Airport. Investigations revealed that al Fahham intended to
smuggle out of Lebanon FAI spiritual leader Oussama Chehabi, known as
Abou Zahra; FAI leader Abdel Rahman Awad; and Abdel Ghani Jawhar,
wanted for 2008 attacks against LAF soldiers in Tripoli.
– On August 19, an LAF intelligence
unit arrested Lebanese citizen Wissam Tahbish, reported to be a key
member of Jund al Sham. Tahbish was the primary suspect in the
1999 assassination of four Lebanese judges in Sidon.
...
LAF commanders stressed that it has strengthened its
surveillance capabilities over the 12 Palestinian camps and four
Syrian-backed Palestinian military bases within its borders.
Nevertheless, a porous border with Syria, weak internal camp
security, and LAF reluctance to enter the Palestinian refugee camps
all contributed to fears of another confrontation with an armed
group, similar to the 2007 Nahr al Barid conflict. The most
widely predicted venue for such a clash is in Lebanon’s most
populous refugee camp, Ain al-Hilweh, near the southern city of
Sidon. The camp is well known for HAMAS Fatah violence and as a
suspected safe haven for fugitive FAI terrorists.”
D. United Nations Reports
- In his tenth semi annual report on the
implementation of Security Council resolution 1559 (2004), issued on
21 October 2009 (S/2009/542), the Secretary General of the
United Nations said, inter alia, the following:
“33. While the situation in most of the
12 Palestinian refugee camps remains relatively stable, the threat of
internal violence that could potentially spill over into surrounding
areas exists in a number of camps. Indeed, some of the refugee camps,
in particular Ain el Hilweh, continue to provide safe haven for
those who seek to escape the authority of the State. In Ain el Hilweh
camp, several incidents were registered during the reporting period.
On 16 June, two unidentified masked men opened fire at a Fatah
officer, Ahmad Abul Kol. He was shot dead, while another individual
was injured. The incident was followed by continuous shooting in
different areas inside the camp over several days. Other shooting
incidents were reported over the last months.
34. Notwithstanding these incidents, closer
cooperation between Palestinian camp authorities and Lebanese
authorities improved camp security during the reporting period. More
needs to be done to contain potential tension in the camps.
35. The conditions of hardship inside
Palestinian refugee camps are strengthening radical groups and
therefore living conditions of Palestinian refugees in Lebanon should
be improved, in the best interest of the wider security situation in
the country. ... ”
- In his eleventh report on the implementation of
Security Council resolution 1701 (2006), issued on 2 November 2009
(S/2009/566), the Secretary General of the United Nations said,
inter alia, the following:
“42. The security situation in the
UNRWA-administered Palestinian refugee camps remained relatively
calm, with only minor incidents during the reporting period. This
positive development is largely due to increased cooperation and
coordination between Palestinian camp authorities and Lebanese
security agencies. I remain, however, concerned about reports of
threats to the United Nations posed by militant extremist groups
present in Lebanon. Some of those elements have sought shelter in
Palestinian refugee camps, including Ain el Hilweh camp at
Saida, to which Lebanese security agencies do not have access.”
- In his twelfth report on the implementation of
Security Council resolution 1701 (2006), issued on 26 February 2010
(S/2010/105), the Secretary General of the United Nations said,
inter alia, the following:
“38. On 15 February clashes between
members of Fatah and members of radical Islamist movements broke out
in the Palestinian refugee camp of Ain el Hilweh, near Saida.
One person was killed as a result of the fighting before calm was
restored to the camp. This incident disrupted an otherwise generally
calm situation in the camps. Lebanese authorities have continued to
welcome cooperation arrangements with Palestinian authorities on
security issues in the camps. ....”
- In his eleventh semi annual report on the
implementation of Security Council resolution 1559 (2004), issued on
19 April 2010 (S/2010/193), the Secretary General of the United
Nations said, inter alia, the following:
“34. The situation inside the
Palestinian refugee camps remains a source of concern, although it
has been generally calm over the reporting period. On a few
occasions, security incidents were reported, in particular on 15
February, when fighting between members of Fatah and a radical
Islamist movement in Ain al Hilweh resulted in one fatality. The
refugee camps continue to provide a safe haven for those who seek to
escape the State’s authority, such as militants, extremists,
criminals and arms smugglers, in addition to Palestinian armed
factions across all party lines. Internal violence could potentially
spill over into surrounding areas. While security coordination and
cooperation between the Lebanese security agencies and the
Palestinian factions have improved, Lebanese authorities do not
maintain a permanent presence inside the camps ... More needs to be
done to contain potential tension in the camps. ...”
- In his twelfth semi annual report on the
implementation of Security Council resolution 1559 (2004), issued on
18 October 2010 (S/2010/538), the Secretary General of the
United Nations said, inter alia, the following:
“28. While the situation in most of the
12 Palestinian refugee camps remains relatively stable, the threat
that internal violence could spill over into surrounding areas still
exists in a number of camps. Some of the camps continue to provide
safe haven for those who seek to escape the authority of the State.
During the reporting period, security sources registered several
incidents in and around refugee camps involving the use of weapons.
29. Notwithstanding those incidents, closer
cooperation between Palestinian camp authorities and Lebanese
authorities has improved camp security. Meanwhile, Lebanese
authorities do not maintain a permanent presence inside the camps ...
More will need to be done to contain potential tension in the camps.
30. The situation of Palestinian refugees
living in Lebanon remains, by and large, dire. For many years, the
United Nations has urged the Government to improve the conditions in
which Palestinian refugees live in Lebanon, without prejudice to the
eventual resolution of the Palestinian refugee question in the
context of a comprehensive peace agreement in the region, in
particular given the detrimental effects of dismal living conditions
on the wider security situation. ....”
- In his Fourteenth report on the implementation of
Security Council resolution 1701 (2006), issued on 1 November 2010
(S/2010/565), the Secretary General of the United Nations said,
inter alia, the following:
“39. The security situation inside the
Palestinian refugee camps has been generally calm during the
reporting period, with only a few incidents reported, thanks to
increased cooperation on security issues between Palestinian factions
and Lebanese security agencies. On 7 September, tensions rose in Ain
al Hilweh camp when a group believed to have sympathies for
Al Qaida publicly threatened to assassinate a local Fatah leader
responsible for security cooperation with Lebanese authorities.”
- In his fifteenth report on the implementation of
Security Council resolution 1701 (2006), issued on 28 February 2011
(S/2011/91), the Secretary General of the United Nations said,
inter alia, the following:
“33. Lebanese authorities point to the
good cooperation existing between the Lebanese Armed Forces and
Palestinian security officials in the 12 official Palestinian refugee
camps in the country. Only one major incident was reported in the
Palestinian refugee camps in Lebanon during the reporting period.
This involved the assassination in the Ain el Hilweh camp on 25
December 2010 of Ghandi Sahmarani, a member of the disbanded Jund
al Sham group. Following his murder, a bomb was planted in a
building that allegedly belongs to Fatah al Islam in Ain
el Hilweh; the bomb caused only material damage. Lebanese
authorities attributed the assassination to in-fighting between rival
groups in Ain el Hilweh camp.”
- In his thirteenth semi annual report on the
implementation of Security Council resolution 1559 (2004), issued on
19 April 2011 (S/2011/258), the Secretary General of the United
Nations said, inter alia, the following:
“38. The situation in most of the 12
Palestinian refugee camps in Lebanon has remained relatively stable,
although a few shooting incidents and explosions have been registered
in some of the camps, in particular in Ain al Hilweh, where, as
recently as 31 March, clashes erupted between rival groups inside the
camp. The threat of internal violence that could potentially spill
over into surrounding areas still exists in a number of camps, as
some of them continue to provide safe haven for those who seek to
escape the authority of the State.
39. Notwithstanding those incidents, Lebanese
authorities have acknowledged the existence of good cooperation
between the Lebanese Armed Forces and Palestinian security officials
in the camps. However, Lebanese authorities do not maintain a
permanent presence inside the camps, despite the fact that the Cairo
agreement of 1969 — which permitted the presence of Palestinian
armed forces in the refugee camps — was annulled by the
Lebanese Parliament in 1987. More will need to be done to contain
potential tension in the camps.
40. The situation of Palestinian refugees
living in Lebanon remains, by and large, dire. The United Nations
continues to urge the Lebanese authorities to improve the conditions
in which Palestinian refugees live in Lebanon, without prejudice to
the eventual resolution of the Palestinian refugee question in the
context of a comprehensive peace agreement in the region, in
particular given the detrimental effects of dismal living conditions
on the wider security situation.”
E. Non Governmental Organisations’ Reports
1. Amnesty International
- In its 2011 report on Lebanon, Amnesty International
noted, inter alia, the following:
“Palestinian refugees continued to face
discrimination, which impeded their access to work, health, education
and adequate housing. At least 23 recognized Iraqi refugees were
reported to have been deported while scores of other refugees and
asylum seekers were detained in what may amount to arbitrary
detention. At least 19 people were convicted following unfair trials
of collaboration with or spying for Israel; 12 of them were reported
to have been sentenced to death. Reports continued of torture in
detention. ...
...
More than 120 individuals suspected of involvement with
the Fatah al Islam armed group, detained without charge since
2007, continued to await trial before the Judicial Council. Most were
allegedly tortured. ...
...
– The trial began of Maher Sukkar, a
Palestinian refugee, and 10 others before a military court on
security related offences including ‘forming an armed gang
to commit crimes against people and property’. No investigation
was carried out into his allegation that he ‘confessed’
under torture in April while held incommunicado. ...
...
Reports continued of torture and other ill treatment
of detainees and few steps were taken to improve the situation.
However, the authorities did permit a visit of the UN Subcommittee on
Prevention of Torture to the country in May [the report from that
visit, which took place between 24 May and 2 June 2010, is still
confidential], and in November announced that they would criminalize
all forms of torture and ill treatment. Detainees continued to
be held incommunicado, allegations of torture were not investigated
and ‘confessions’ allegedly given under duress were
accepted as evidence in trials. The government failed for a further
year to submit its first report under the UN Convention against
Torture, which Lebanon ratified in 2000. It also failed to establish
an independent body empowered to inspect detention centres, as
required by the Optional Protocol to the Convention against Torture
to which Lebanon became party in 2008.
2. Human Rights Watch
- In its 2011 report on Lebanon, Human Rights Watch said
that a number of detainees, especially suspected spies for Israel and
armed Jihadists, had told the organisation that their interrogators
had tortured them in a number of detention facilities, including the
Ministry of Defence and the Information Branch of the Internal
Security Forces.
2. International Crisis Group: Nurturing Instability:
Lebanon’s Palestinian Refugee Camps (19 February 2009)
- The International Crisis Group is a non governmental
organisation based in Brussels. Its stated aim is to “prevent
and resolve deadly conflict”. It has field representations in,
inter alia, Beirut, Damascus and Jerusalem.
- In a comprehensive report on the Palestinian refugee
camps in Lebanon (Nurturing Instability: Lebanon’s
Palestinian Refugee Camps, issued on 19 February 2009) it
described in detail the main political actors in the camps, the
situation in each of them, the evolution of Lebanese Palestinian
relations since 1948, the status of the refugees, the inter factional
conflicts in the camps, the conflicts within the Palestinian
Liberation Organisation and Fatah, the failures in the management of
the camps, and the spread of jihadism in them. The relevant parts of
the report read as follows:
“A number of analysts argued that power struggles
within Fatah and widespread corruption within the movement are a
reason for growing chaos within the camps. They have undermined the
credibility and effectiveness of important institutions, such as the
Armed Struggle Organisation and contributed to security breakdowns.
Perhaps most important, neither the PLO nor Fatah has been able to
deal effectively with the challenge of jihadi groups that reject the
organisation’s nationalist project, strategy and alliances.
In Ain al-Helweh for example, a conflict between two
Fatah leaders significantly weakened the movement. Crisis Group
interviews, Palestinian officials and residents, Beirut and
Palestinian camps, April-December 2008.
Some observers believe that violent acts in Ain
al-Helweh attributed to jihadis were perpetrated by Fatah members
opposed to [Abbas] Zaki [, a local Fatah leader]. ... This view was
echoed by other Palestinian and Lebanese officials and sheikhs. ...”
- In relation to jihadism in the camps, the report noted
the following:
“By the late 1980s, several converging factors
promoted the rise of a salafist jihadi current in the camps: the
absence of any dominant political force on the Lebanese Palestinian
scene; the camps’ seclusion and isolation from the rest of the
country; deteriorating living conditions; and the wider spread of
Islamism throughout the Middle East. The collapse of the peace
process in the late 1990s intensified the process. Taking advantage
of young refugees’ identity crisis, socioeconomic despair and
leadership vacuum, groups such as Jund al Sham, Usbat al Ansar,
Usbat al Nour, al Haraka al Islamiyya al Mujahida
and, more recently, Fatah al Islam, prospered. This was
particularly true in the North, a traditional Sunni stronghold which
lacks a powerful Lebanese leadership, and in Ain al Helweh,
which – unlike the other camps – is not under any
single faction’s control.
In Ain al Helweh in particular, jihadi groups
presented themselves as alternatives to a PLO leadership viewed by
many as discredited and corrupt and which the Islamists accused of
capitulating to Israel and the West by renouncing Palestinian rights,
notably the right of return.
...
Largely beyond the state’s reach, the camps have
become de facto sanctuaries for weapons but also for Lebanese
and Palestinian fugitives sought by Lebanese authorities, including
very often for minor offences. Caught in the camps and with no
realistic prospect on the outside, they form a sizeable pool of
potential jihadi recruits. Militant groups offer protection, a social
network and, in some cases, a cause in which to believe. A PLO
official remarked: ‘They are trapped in the camps and have no
future outlook. They fear they will live the rest of their lives as
fugitives and thus are easily manipulated’.
...
... the groups have a vested interest in maintaining the
status quo in the camps, avoiding state interference and reaching
tacit understandings with a variety of local actors. In Ain
al Helweh, Usbat al Ansar is now seen by all Palestinian
factions – including Fatah, its traditional foe – as a
full fledged participant in the camp’s security structure.
Likewise, the leader of al Haraka al Islamiyya al Mujahida,
Sheikh Jamal Khattab, helps mediate between major Palestinian
factions and more militant groups in Ain al Helweh.
Ain al Helweh provides a good example of how local
actors seek to avoid clashes with jihadi groups. For Hizbollah, a
confrontation could deepen sectarian tensions, thereby further
exposing it to the charge of being a narrow Shiite group. ... For its
part, Fatah is wary of a confrontation with Usbat al Ansar whose
outcome would not be guaranteed. The Future Movement and in
particular the Hariri family fear that a crisis with jihadi groups
could jeopardise their hegemony over the Sunni community.
During a 2004 crisis, Usbat al Ansar joined in
efforts to force Jund al Sham from one of the camp’s
northern neighbourhoods. ...”
3. United States Committee for Refugees and Immigrants:
World Refugee Survey 2009: Lebanon
- The United States Committee for Refugees and
Immigrants is a non governmental organisation founded in 1911 to
serve refugees and immigrants and defend the rights of refugees,
asylum seekers, and internally displaced persons worldwide. It
publishes annual World Refugee Survey and Refugee Reports.
- In its 2009 country profile on Lebanon, issued on 17
June 2009, it noted, inter alia, the following:
“Clashes between Fatah and the fundamentalist,
reportedly al Qaeda inspired group Jund al Sham in [A]in
[al ]Hilweh camp killed several Palestinians. Fighting killed
three[:] a Jund al Sham leader and two other Palestinians in
July. Three died and three were wounded in a gun battle in
mid September, and about a week later an explosion killed one
and wounded four.”
F. News Reports
- In a news report of 21 March 2008 the BBC described
Jund al Sham (“Soldiers of Greater (or historic) Syria”)
as a radical splinter group formed in 2002. The report said that the
group had been blamed or had claimed responsibility for a number of
bombings and gun battles in Lebanon and Syria. The previous years it
had fought Lebanese troops after joining a revolt by fellow Islamic
militant group Fatah al Islam which was centred on the northern
Palestinian refugee camp of Nahr al Bared.
- On 17 May 2007 the news service IRIN, a non profit
project of the United Nations Office for the Coordination of
Humanitarian Affairs, reported that two Fatah members had been killed
the previous week in clashes with Jund al Sham in Ain al Hilweh.
It said that the group, whose active fighters were believed to number
fewer than fifty out of an estimated membership of up to two hundred
and fifty, had frequently been blamed by the Syrian authorities for a
string of failed attacks in Syria over the previous two years. A
revenge attack on 15 May 2007 by unidentified gunmen in the camp had
wounded two Jund al Sham members.
- On 5 August 2007 IRIN reported that on 4 June 2007
fighters from Jund al Sham, which it described as a loosely knit
“takfiri” group – which Palestinians had said had
no leader and had all but disbanded – had attacked a Lebanese
Army checkpoint outside Ain al Hilweh. The report said that the
group was based in a small stretch of no man’s land
known as Taamir, between the boundary of Ain al Hilweh and one
of the Lebanese Army checkpoints that overlooked the camp. Following
the attack, Ansar Allah, another Palestinian Islamist group, had been
tasked with heading an eighty member security force to control
two of the camp border checkpoints, including the one overlooking the
Jund al Sham stronghold. The other camp border checkpoints, as
well as security inside the camp, had remained the task of Fatah. The
report went on to say that Fatah militants had had regular deadly
clashes with Jund al Sham over the previous six months, and also
faced a challenge from other armed and more radical Palestinian
groups, such as the Popular Front for the Liberation of Palestine
General Command or Usbat al Ansar.
- On 29 April 2008 IRIN reported that on 21 March 2008
heavy clashes had broken out between Fatah and members of Jund
al Sham. The fighting, which had prompted at least one hundred
families to flee the camp, had been triggered after Fatah had seized
a commander of Jund al Sham who had fought the Lebanese Army the
previous summer, and had handed him over to that Army. Fatah’s
security chief in Lebanon, Mounir Maqdah, had told the agency that
while the Jund al Sham commander had been seized without enough
coordination with other factions in Ain al Hilweh, new security
arrangements would ensure that no militants could exist beyond the
reach of the inter factional committees.
- In
a recent incident, on 2 January 2010 a Fatah member was wounded
during a half hour skirmish with members of Jund Al Sham.
However, from reports in the press it appears that after that the
situation in the camp calmed down and that on 4 August 2010 the two
groups’ leaders in Ain al Hilweh made a truce.
- On 25 December 2010 the television network Al Jazeera
reported that a senior Jund al Sham commander, Ghandi Sahmarani,
had been found murdered in Ain el-Hilweh. It said that the death of
Sahmarani “could be a major blow for [Jund al Sham], which
has had several leaders and members either killed or fleeing its
ranks in the past few years”.
- On 3 January 2011 the Lebanese news website NOW
Lebanon reported on the latest developments with Jund al Sham.
The report said, inter alia, that colonel Issa, appointed by
Palestinian President Mahmoud Abbas in May 2010 as the head of the
Fatah security in the camps, had said that Fatah and other factions
present in Ain al Hilweh, mainly Usbat al Ansar, had
reached a peace agreement. After talks, Usbat al-Ansar leaders had
given Issa a free mandate to annihilate the threat he said jihadists
and radicals posed to the camp’s security. Issa was quoted as
saying that “[a]fter some battles with these factions, some
died, many of them were captured and handed over to the Lebanese
authorities, and those that were left fled. These groups took
advantage of the instability in Lebanon and infiltrated the camp, and
when we realized that they were among suspects in explosions taking
place around stores, we started dealing with them with security
means, we captured many of them, went to battle with some, and some,
like I said, fled”. He had also said that some of the jihadists
had left for Europe, adding that “[t]hey were originally in the
‘emergency’ area [at the outskirts of the camp] and
started fleeing bit by bit. Some left to France, some to Belgium,
some to Sofia in Bulgaria”. He had said that in mid December
2010, five of the runaways had been sent back to Lebanon by the
Bulgarian authorities. Among them had been Youssef Kayed, a rogue
former Fatah member who had rebelled against the central command,
Anwar al Sidawi and Imad Karroum, both wanted by the Lebanese
authorities. The report went on to say that according to another
Fatah official in Ain al Hilweh, what was left of the radical
Islamists was no longer a threat without the head of the militant
group. “The phenomenon of Jund al Sham is over in the
camps now and does not constitute a threat anymore,” he had
told NOW.
- In an article of 26 April 2011, titled “Fatah
and Jund al Sham clash in Ain al Hilweh”, the
Lebanese newspaper The Daily Star reported that during the
previous weekend there had been armed clashes, with an exchange of
missiles, between Fatah and members of Jund al Sham. They had
started after two unidentified individuals had refused to obey the
commands of the security forces at a checkpoint. Jund al Sham
militants had joined the conflict after reportedly coming under fire
from Fatah.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged that if expelled to Lebanon, he would face a real
risk of ill treatment or death. He relied on Article 3 of the
Convention, which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government submitted that the applicant’s fears were groundless
in view of the prohibition in section 44a of the Aliens Act 1998 on
the expulsion of aliens to a country where their health or life would
be in jeopardy. The order to expel him had been intended to protect
the national security of Bulgaria. However, its enforcement was
subject to the provisions of section 44a, which coincided with the
principles underlying Articles 2, 3 and 5 of the Convention. The
practice in such cases was for the competent authorities, which
worked in close cooperation with the Ministry of Foreign Affairs and
non governmental organisations, to verify the issue upon
expulsion of their own motion. The Ministry of Foreign Affairs kept
an updated list of safe third countries that could receive
individuals in the applicant’s position. The authorities were
thus complying with the absolute prohibition of Article 3 of the
Convention, and, unlike the situation obtaining in Saadi v. Italy
([GC], no. 37201/06, ECHR 2008 ...), were not seeking to balance
national security considerations against the risk of ill treatment
faced by the applicant. The bar in section 44a applied to all aliens,
including those subject to expulsion orders on national security
grounds.
- The
applicant replied that the Government failed to say anything about
the risk that he faced in Lebanon. As for their reliance on section
44a, there existed no mechanism to ensure its effective application.
The only opportunity for him to invoke that provision to prevent his
expulsion to Lebanon had been in the proceedings for judicial review
of the expulsion order. However, the Supreme Administrative Court had
held that the point was irrelevant. In any event, the only procedure
in which the applicant could prove that he risked death or
ill treatment were asylum proceedings. When examining his asylum
request, the State Refugees Agency had found that risk to be real,
based as it was on the applicant’s personal circumstances and
the general situation in the Palestinian refugee camps in Lebanon. On
that account it had granted him humanitarian protection. The risk
could therefore be regarded as established. However, he could not
benefit from such protection, as he fell within the exclusion clauses
of sections 4(4) and 67(3) of the Asylum and Refugees Act of 2002.
B. The Court’s assessment
1. Admissibility
- Since
the Government appear to contest that the applicant is at risk of
being expelled to a country where he may face treatment contrary to
Article 3, the Court must first examine his victim status. It
notes, firstly, that the order for his expulsion, having been upheld
by the Supreme Administrative Court, is final and enforceable (see,
mutatis mutandis, Shamayev and Others v. Georgia and
Russia, no. 36378/02, § 358, ECHR 2005 III; Abdulazhon
Isakov v. Russia, no. 14049/08, § 100, 8 July 2010; Karimov
v. Russia, no. 54219/08, § 90, 29 July 2010; and Kolesnik
v. Russia, no. 26876/08, § 63, 17 June 2010, and
contrast Vijayanathan and Pusparajah v. France, 27 August
1992, § 46, Series A no. 241 B; Pellumbi v. France
(dec.), no. 65730/01, 18 January 2005; Djemailji v. Switzerland
(dec.), no. 13531/03, 18 January 2005; Etanji v. France
(dec.), no. 60411/00, 1 March 2005; Shamayev and Others,
cited above, §§ 354 55, ECHR 2005 III; and
Nasrulloyev v. Russia, no. 656/06, § 60, 11 October
2007). Secondly, although issued more than a year and a half ago, it
continues to have full legal effect (contrast Benamar and Others
v. France (dec.), no. 42216/98, 14 November 2000). Lastly, there
is no indication that the authorities have suspended its enforcement
(contrast Andrić v. Sweden (dec.), no. 45917/99, 23
February 1999), or that it is possible to challenge its enforcement
(contrast Kalantari v. Germany (striking out), no. 51342/99, §
56, ECHR 2001 X; and Yildiz v. Germany (dec.), no.
40932/02, 13 October 2005). The question whether the bar in
section 44a of the Aliens Act 1998 on the expulsion of aliens to
countries where their life or freedom would be in danger or where
they may face a risk of ill treatment (see paragraph 38 above)
would in fact prevent the applicant’s removal to Lebanon goes
to the merits of the case (see Boutagni v. France,
no. 42360/08, §§ 47 48, 18
November 2010). Nor is it apparent, from the information
available in the case file, that the Lebanese authorities will never
issue travel documents enabling the applicant to re enter
Lebanon.
- In
those circumstances, the Court considers that the applicant may claim
to be a victim within the meaning of Article 34 of the Convention.
- The
Court further considers that the complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
- The
Court wishes to emphasise at the outset that it is acutely conscious
of the difficulties faced by States in protecting their populations
from terrorist violence, which constitutes, in itself, a grave threat
to human rights (see, among other authorities, Lawless v. Ireland
(no. 3), 1 July 1961, §§ 28 30, Series A no. 3;
Ireland v. the United Kingdom, 18 January 1978, Series A no.
25; Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR
2005 IV; Chahal v. the United Kingdom, 15 November 1996,
§ 79, Reports of Judgments and Decisions 1996 V; A.
and Others v. the United Kingdom [GC], no. 3455/05, § 126,
ECHR 2009 ...; and A. v. the Netherlands, no. 4900/06,
§ 143, 20 July 2010). Faced with such a threat, the Court
considers it legitimate for Contracting States to take a firm stand
against those who contribute to terrorist acts, which it cannot
condone in any circumstances (see Daoudi v. France, no.
19576/08, § 65, 3 December 2009, and Boutagni, cited
above, § 45).
- The Court would next reiterate the principles
governing the Contracting States’ responsibility in the event
of expulsion, as established in its case-law and summarised, with
further references, in paragraphs 124 27 of its judgment in the
case of Saadi (cited above):
(a) As
a matter of well established international law, and subject to
their treaty obligations, including those arising from the
Convention, Contracting States have the right to control the entry,
residence and removal of aliens. Neither the Convention nor its
Protocols confer the right to political asylum.
(b) However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a case
that provision implies an obligation not to deport the person in
question to a country where he or she would face such a risk.
(c) In
this type of case the Court is therefore called upon to assess the
situation in the receiving country in the light of the requirements
of Article 3. Nonetheless, there is no question of adjudicating
on or establishing the responsibility of the receiving country,
whether under general international law, under the Convention or
otherwise. In so far as any liability under the Convention is or may
be incurred, it is liability incurred by the Contracting State, by
reason of its having taken action which has as a direct consequence
the exposure of an individual to the risk of proscribed
ill treatment.
(d) Article
3, which prohibits in absolute terms torture and inhuman or degrading
treatment or punishment, enshrines one of the fundamental values of
democratic societies. Unlike most of the substantive clauses of the
Convention and of Protocols Nos. 1 and 4, Article 3 makes no
provision for exceptions and no derogation from it is permissible
under Article 15, even in the event of a public emergency threatening
the life of the nation. As the prohibition of torture and of inhuman
or degrading treatment or punishment is absolute, irrespective of the
victim’s conduct, the nature of any offences allegedly
committed by the applicant is therefore irrelevant.
- In paragraphs 137 39 of the same judgment the
Court went on to reaffirm a principle that it had first articulated
in its judgment in the case of Chahal (cited above, §
81): that it is not possible to weigh the risk of ill treatment
against the reasons put forward for the expulsion in order to
determine whether the responsibility of a State is engaged under
Article 3.
- It should be added that the existence of the
obligation not to expel is not dependent on whether the source of the
risk of the treatment stems from factors which involve the
responsibility, direct or indirect, of the authorities of the
receiving country. Having regard to the absolute character of the
right guaranteed, Article 3 may extend to situations where the danger
emanates from persons or groups of persons who are not public
officials. What is relevant in this context is whether the applicant
is able to obtain protection against and seek redress for the acts
perpetrated against him or her (see H.L.R. v. France, 29 April
1997, § 40, Reports 1997 III; T.I. v. the United
Kingdom (dec.), no. 43844/98, ECHR 2000 III; Headley v.
the United Kingdom (dec.), no. 39642/03, 1 March 2005; N. v.
Finland, no. 38885/02, § 163, 26 July 2005; Salah Sheekh
v. the Netherlands, no. 1948/04, §§ 137 and 147, 11
January 2007; N.A. v. the United Kingdom, no. 25904/07, § 110,
17 July 2008; F.H. v. Sweden, no. 32621/06, § 102, 20
January 2009; and N. v. Sweden, no. 23505/09, §§
55 62, 20 July 2010).
- In Saadi (cited above, §§ 128 33)
the Court also summarised, with further references, the principles
governing the manner of assessing the risk of exposure to treatment
contrary to Article 3:
(a) In
determining whether substantial grounds have been shown for believing
that there is a real risk of treatment incompatible with Article 3,
the Court takes into account all the material placed before it or, if
necessary, material obtained proprio motu. Its examination of
the existence of a real risk must necessarily be a rigorous one.
(b) It
is in principle for the applicant to adduce evidence capable of
proving that there are substantial grounds for believing that, if the
measure complained of were to be implemented, he would be exposed to
a real risk of being subjected to treatment contrary to Article 3.
Where such evidence is adduced, it is for the Government to dispel
any doubts about it.
(c) To
determine whether there is a risk of ill treatment, the Court
must examine the foreseeable consequences of sending the applicant to
the receiving country, bearing in mind the general situation there
and his or her personal circumstances.
(d) To
that end, as regards the general situation in a particular country,
the Court has often attached importance to the information contained
in recent reports from independent international human rights
organisations such as Amnesty International, or governmental sources,
including the United States Department of State. At the same time, it
has held that the mere possibility of ill treatment on account
of an unsettled situation in the receiving country does not in itself
give rise to a breach of Article 3, and that, where the sources
available to it describe a general situation, an applicant’s
specific allegations in a particular case require corroboration by
other evidence.
(e) In
cases where an applicant alleges that he or she is a member of a
group systematically exposed to a practice of ill treatment, the
protection of Article 3 enters into play when the applicant
establishes, where necessary on the basis of the sources mentioned in
the previous subparagraph, that there are serious reasons to believe
in the existence of the practice in question and his or her
membership of the group concerned.
(f) With
regard to the material date, the existence of the risk must be
assessed primarily with reference to those facts which were known or
ought to have been known to the Contracting State at the time of
expulsion. However, if the applicant has not yet been removed when
the Court examines the case, the relevant time will be that of the
Court’s examination. Accordingly, while historical facts are of
interest in so far as they shed light on the current situation and
the way it is likely to develop, the present circumstances are
decisive.
- In paragraphs 140 42 of the same judgment the
Court, in response to arguments by certain governments in relation to
the standard of proof in such matters, reaffirmed that for a planned
expulsion by a Contracting State to be in breach of the Convention,
it is sufficient for substantial grounds to have been shown for
believing that there is a real risk that the person concerned will be
subjected in the receiving country to treatment prohibited by Article
3, even where he or she is regarded as presenting a threat to the
Contracting State’s national security.
- Thus, any considerations in the present case having
to do with the question whether the applicant presents a risk to the
national security of Bulgaria are irrelevant for the Court’s
examination. The salient issue is whether substantial grounds have
been shown for believing that there is a real risk that he will face
ill treatment or death if the order for his expulsion is
implemented (see Ismoilov and Others v. Russia, no. 2947/06, §
126, 24 April 2008). The Court notes in this connection that the
Supreme Administrative Court did not attempt to assess the question
of risk, confining itself to the question of the lawfulness of the
expulsion order. It is a matter of regret that that court found the
applicant’s statement about the risk which he faced if he were
to be returned to Lebanon “irrelevant for the ...
proceedings” (see paragraph 23 above). Not only does the
judgment of the Supreme Administrative Court not assist the Court in
the assessment of the risk, such approach cannot 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 delivered by the State Refugees Agency
(see paragraph 11 above). The Court will revert to this matter in the
context of Articles 13 and 46 (see paragraphs 121 and 139 below). In
the light of the domestic court’s failings, it falls to the
Court to assess the question of risk with reference to the
above mentioned principles.
- When considering that question on 29 October 2009,
the State Refugees Agency was satisfied that there existed
substantial grounds for believing that there was a real risk that the
applicant would face ill treatment or death in Lebanon, and
granted him humanitarian protection, based, firstly, on his
particular circumstances and, secondly, on the general situation in
the Palestinian refugee camps in Lebanon. Its decision mainly relied
on the fact that the applicant had been a member of Fatah and had
been personally engaged in a violent conflict with members of a
militant group (Jund al Sham) operating in the Palestinian
refugee camp (Ain al Hilweh) where he had lived (see paragraph 11
above). Those findings carry significant weight, for two reasons.
First, that Agency is a specialised body with particular expertise in
this domain. Secondly, its officers were able to conduct a personal
interview with the applicant. They had an opportunity to see, hear
and assess his demeanour, and were thus in a position to test the
credibility of his fears and the veracity of his account (see,
mutatis mutandis, Ahmed v. Austria, 17 December 1996, §
42, Reports 1996 VI; Jabari v. Turkey, no.
40035/98, § 41, ECHR 2000 VIII; Abdolkhani and Karimnia
v. Turkey, no. 30471/08, §§ 82 83, 22 September
2009; and R.C. v. Sweden, no. 41827/07, § 52, 9 March
2010).
- Moreover, this evidence cannot be considered in
isolation. Instead, it must be assessed against the background of the
available information on the situation in Lebanon and that of the
Palestinian refugees there. It is true that the situation in the
country as a whole does not appear so serious that the return of the
applicant there would constitute, in itself, a breach of Article 3
(see paragraph 58 above). However, it cannot be overlooked that the
applicant is a stateless Palestinian originating from a refugee camp
in Lebanon (see paragraphs 1 and 7 above). There is therefore a
likelihood that he would not be allowed to reside in Lebanon proper,
but would have to return to the camp from which he fled, Ain
al Hilweh. The information available on the Palestinian refugee
camps in general and Ain al Hilweh in particular (see paragraphs
52 55, 60, 62, 65 73, 77, 78, 80 and 82 88 above)
shows that they are not under the control of the Lebanese
authorities, but of various Palestinian armed factions. They are
secluded from the rest of the country, are often surrounded by
Lebanese army checkpoints, and have been described in reports as
“beyond the [S]tate’s reach”, “de facto
sanctuaries for weapons” and “a safe heaven for those who
seek to escape the authority of the State”. They continue to be
plagued by outbursts of violence and armed clashes between various
factions. Ain al Hilweh, which is very densely populated and not
under the control of any single faction, appears to be one of the
more chaotic and violent camps, where Fatah and various radical
Islamist groups have for decades been engaged in a conflict of
varying degrees of intensity. Since 2007, there has been a string of
violent clashes between Fatah and Jund al Sham, which is
reported to have about fifty armed men at its disposal. Although in
late 2010 the Jund al Sham suffered some setbacks, including the
death of a leader, it reengaged in armed clashes with Fatah in March
and April of this year. In addition, there appear to exist power
struggles within the ranks of Fatah itself. They, together with
corruption within the movement, have apparently contributed to
various security breakdowns. One of those internal divisions is
pitting the applicant’s purported “protector”,
Mounir Maqdah (see paragraph 9 above), against other figures in
Fatah. It is therefore not readily apparent that Fatah, despite its
relative dominance in Ain al Hilweh, would be able to provide
the applicant with effective protection. Nor is it apparent that the
applicant would be able to settle in another Palestinian refugee
camp. Fatah apparently does not have strong positions in the camps in
northern Lebanon, where the radical Islamist groups are more
powerful. Those circumstances, coupled with the applicant’s
personal account, amount to at least prima facie evidence
capable of proving that there are substantial grounds for believing
that he would be exposed to a real risk of being subjected to
treatment contrary to Article 3 if expelled to Lebanon. Having regard
to the information referred to above, the Court is not persuaded that
the situation has evolved to an extent that the findings made by the
State Refugees Agency in October 2009 on the question of risk are no
longer valid. Indeed, as recently as 19 April 2011 the
Secretary General of the United Nations reported on violent
clashes in Ain al Hilweh and estimated that there still existed
a threat of violence inside the Palestinian refugee camps (see
paragraph 73 above). The burden is therefore on the State to dispel
any doubts in that regard.
- However, no evidence has been presented by the
Government in relation to that issue. In that connection, it is
noteworthy that when issuing and reviewing the decision to expel the
applicant, the competent domestic authorities and courts did not try
to make any assessment of that risk. The expulsion order and the
proposal for one to be issued gave no consideration to this matter
(see paragraphs 14 and 15 above). In the ensuing judicial review
proceedings, the Supreme Administrative Court expressly stated that
the applicant’s fear that his life would be at risk in Lebanon
was irrelevant (see paragraph 23 above). The Court is therefore
unable to conclude that the Bulgarian authorities have duly addressed
the applicant’s concerns with regard to Article 3 (see, mutatis
mutandis, Khodzhayev v. Russia, no. 52466/08, §
104, 12 May 2010, and Khaydarov v. Russia, no. 21055/09, §§
112 14, 20 May 2010). Their uncorroborated assertions that he is
not who he says he is, but is a member of a militant Jihadist
organisation who is sought by the Lebanese authorities in connection
with a number of assassinations (see paragraphs 14, 22, 23 and 87
above) show, if anything, that he may be at even greater risk of
ill treatment, by the Lebanese authorities themselves. There are
a number of reports indicating that those authorities are likely to
ill treat persons suspected of involvement with such groups (see
paragraphs 61, 64, 74 and 75 and above). There is no indication that
the Government have sought or obtained any form of assurance on the
part of Lebanon in relation to such matters. In any event, the
existence of assurances does not absolve a Contracting State from its
obligation to consider their practical application (see, among other
authorities, Babar Ahmad and Others v. the United Kingdom
(dec.), nos. 24027/07, 11949/08 and 36742/08, § 106, 6 July
2010).
- In their observations, the Government referred to the
prohibition in section 44a of the Aliens Act 1998 (see paragraph 38
above). They explained that the practice in such cases was for the
authorities to verify the matter when executing the expulsion order,
and that the Ministry of Foreign Affairs kept an updated list of safe
third countries that could receive individuals in the applicant’s
position. However, the Court does not consider that the Government’s
statement can be regarded as a binding assurance that the applicant
will not be expelled to Lebanon, for two reasons. First, in contrast
to the express assurances given by the French Government in Boutagni
(cited above, §§ 20 and 42), in the present case the
Government did not declare that the applicant would not be removed to
Lebanon, but merely said that the point would be examined at the time
of the execution of the expulsion order. Secondly, the Government’s
statement is not based on, or reflected in, a binding legal act
(contrast Boutagni, cited above, §§ 19 20 and
47 48), and it is unclear whether it can of itself bind the
authorities responsible for executing the expulsion order (see,
mutatis mutandis, Shamayev and Others, cited above, §§
344 45).
- The Court’s main concern is whether effective
guarantees exist that protect the applicant against arbitrary
refoulement, be it direct or indirect, to the country from
which he has fled (see M.S.S. v. Belgium and Greece [GC], no.
30696/09, § 286, 21 January 2011). It
is not persuaded that, if and when they proceed with the applicant’s
expulsion, the Bulgarian authorities will examine with the necessary
rigour whether his return to Lebanon would put him at risk of
treatment prohibited under Article 3 (contrast M.H. v. Sweden
(dec.), no. 10641/08, §§ 25 and 41, 21 October 2008). The
Government did not provide any particulars about the manner in which
the immigration authorities apply section 44a when implementing
expulsion orders, and did not give any concrete examples. The Aliens
Act 1998 and the regulations for its application are silent on this
point, and there are no reported cases (see paragraph 38 in fine
above). It is thus unclear by reference to what standards and on the
basis of what information the authorities will make a determination,
if any, of the risk faced by the applicant if removed to Lebanon. Nor
is there any indication as to whether, if the authorities choose to
send the applicant to a third country, they will properly examine
whether he would in turn be sent from there to Lebanon without due
consideration for the risk of ill treatment. The Court
reiterates that under its case law removal to an intermediary
country does not affect the responsibility of the expelling State to
ensure that the applicant is not exposed to treatment contrary to
Article 3 as a result of the decision to expel (see T.I. v. the
United Kingdom, cited above; Salah Sheekh, cited above, §
141; K.R.S. v. the United Kingdom (dec.), no. 32733/08, 2
December 2008; Abdolkhani and Karimnia, cited above, §
88; Babar Ahmad and Others, cited above, §§ 113 16;
and M.S.S. v. Belgium and Greece, cited above,
§§ 338 61).
- The lack of a legal framework providing adequate
safeguards in this domain allows the Court to conclude that there are
substantial grounds for believing that the applicant risks a
violation of his rights under Article 3 (see, mutatis mutandis,
Abdolkhani and Karimnia, cited above, § 89). In this
connection, the Court finds it necessary to reiterate that the grave
and irreversible nature of the potential consequences is such that
the matter calls for rigorous scrutiny.
- In view of those considerations, the Court concludes
that the applicant’s expulsion, if carried out, would be in
breach of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that his
expulsion would be unlawful and disproportionate.
- Article
8 provides, in so far as relevant:
“1. Everyone has the right to respect
for his private and family life ...
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.”
- The Court observes at the outset that, in so far as
the applicant may be taken to rely on Article 8 in relation to any
risk to his physical integrity as a result of his expulsion, the
issue has already been addressed in the Court’s reasoning under
Article 3. In so far as the applicant may be taken to rely on Article
8 in relation to any private or family life in Bulgaria, the Court
notes that he has not alleged that he has a family life or, indeed,
any relatives in Bulgaria. Nor does it appear that he has a private
life in that country. He arrived there on 24 May 2009, tried to leave
in August 2009, and was later settled in a housing facility operated
by the State Refugees Agency. He was granted humanitarian protection
on 29 October 2009, but was arrested with a view to deportation less
than a month after that, on 17 November 2009 (see paragraphs 8 13
and 15 above). He cannot therefore be regarded as a settled migrant
who has developed a private life in Bulgaria (contrast Maslov v.
Austria [GC], no. 1638/03, § 63, 23 June 2008, and Miah
v. the United Kingdom (dec.), no. 53080/07, § 17, 27 April
2010). On the contrary, his stay in Bulgaria has been brief and at
all times precarious (see, mutatis mutandis, N.M. and M.M.
v. the United Kingdom (dec.), nos. 38851/09 and 39128/09, 25
January 2011). Article 8 is not therefore applicable.
- It follows that this complaint is incompatible
ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 (a) and must be rejected in
accordance with Article 35 § 4.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 in conjunction with Articles 3
and 8 of the Convention that the Supreme Administrative Court had not
genuinely scrutinised whether he represented a risk for national
security, had refused to examine whether he would risk ill treatment
or death if expelled to Lebanon, and had not considered whether such
expulsion would be proportionate.
- Article
13 provides as follows:
“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.”
A. The parties’ submissions
- The
Government submitted that the applicant had been able to challenge
the order for his expulsion in judicial review proceedings, in the
course of which he had been able to acquaint himself with all
documents in the case file and seek to rebut the assertions of the
authorities. In judicial review proceedings, the courts reviewed
whether the administrative decision had been issued by a competent
authority, in due form, and in compliance with the rules of
administrative procedure and substantive law. In the applicant’s
case, the Supreme Administrative Court had done just that. It had
examined the arguments of the parties and had given reasons for
finding against the applicant. It is true that the question whether
the applicant faced a risk of ill treatment upon expulsion had
been raised before that court. However, since the proceedings
concerned the lawfulness of the expulsion order, the court had deemed
that question to be irrelevant. Domestic courts could review only
specific administrative decisions. The applicant did not claim that
there existed a tacit or an express refusal to stay the enforcement
of the order for his expulsion by reference to section 44a.
- The
applicant submitted that section 44a did not have direct application.
He had raised the issue of risk in the proceedings for judicial
review of the expulsion order, which was the only available legal
avenue where such issues could be addressed. However, the Supreme
Administrative Court had said that the issue was irrelevant.
B. The Court’s assessment
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- On
the merits, the Court must start by examining which of the
applicant’s substantive complaints in relation to his expulsion
were arguable, because the scope of the obligation under Article 13
varies depending on the nature of the applicant’s complaint
(see, as a recent authority, A. v. the Netherlands, cited
above, § 157).
- Article
8 not being applicable (see paragraphs 111 and 112 above), the
applicant’s claim under Article 13 in conjunction with Article
8 is not arguable. It is, then, not necessary to establish whether
the Supreme Administrative Court subjected the allegation that the
applicant represented a national security risk to a genuine
examination or whether it gave consideration to the question whether
the expulsion amounted to a disproportionate interference with the
applicant’s right to respect for his private or family life
(see, mutatis mutandis, A. v. the Netherlands, cited
above, § 160, and contrast C.G. and Others v. Bulgaria,
§§ 60 64, and Raza, § 63, both cited
above).
- By contrast, the Court’s findings in paragraphs
101 103 above show that the applicant’s claim under
Article 3 was arguable. He was therefore entitled to an effective
remedy in that respect. The notion of an effective remedy in such
circumstances has two components. Firstly, it imperatively requires
close, independent and rigorous scrutiny of the claim that there
exist substantial grounds for fearing a real risk of treatment
contrary to Article 3 (see M.S.S. v. Belgium and Greece, cited
above, § 293, with further references). That scrutiny must be
carried out without regard to what the person may have done to
warrant expulsion or to any perceived threat to the national security
of the expelling State (see Chahal, cited above, 151 in
fine). The second requirement is that the person concerned should
have access to a remedy with automatic suspensive effect (see Čonka
v. Belgium, no. 51564/99, §§ 81 83, ECHR 2002 I,
and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §
66 in fine, ECHR 2007 II; Muminov v. Russia, no.
42502/06, § 101, 11 December 2008; Abdolkhani and Karimnia,
cited above, § 108; and M.S.S. v. Belgium and Greece,
cited above, § 293 in fine).
- Concerning the “scrutiny” requirement,
the Court observes that when examining the applicant’s legal
challenge against the order for his expulsion, the Supreme
Administrative Court expressly refused to deal with the question of
risk, saying that any threat to the applicant in Lebanon was
irrelevant for determining the lawfulness of his expulsion (compare
with Jabari, cited above, § 49). As for the “suspensive
effect” requirement, it should be noted that under Bulgarian
law applications for judicial review of expulsion orders issued on
national security grounds do not have automatic suspensive effect
(see paragraph 35 above). It furthermore appears that the courts have
no power to suspend the enforcement of such orders, even if an
irreversible risk of death or ill treatment in the receiving
State is claimed (see paragraphs 31, 34 and 37 above). The
proceedings for judicial review of the expulsion order against the
applicant cannot therefore be regarded as an effective remedy in
respect of his grievance under Article 3.
- The
Government’s case was that the issue of risk would be examined
upon the enforcement of the expulsion order against the applicant and
that the authorities would not remove him from Bulgaria without
ensuring that this would not fall foul of the prohibition set out in
section 44a of the Aliens Act 1998 (see paragraph 38 above). However,
the Court has already found that there are no guarantees that before
proceeding with the expulsion the authorities would subject the
applicant’s claims under Article 3 of the Convention to
rigorous scrutiny (see paragraphs 105 and 106 above). More
importantly, the Government did not point to any procedure whereby
the applicant would be able to challenge their assessment of those
claims. From the provisions of the Aliens Act 1998 and the
regulations for its application it does not appear that it is
possible to bring a separate legal challenge against the enforcement
of the expulsion order, let alone that there exists an avenue of
redress that meets the two requirements set out in paragraph 120
above. The Court would emphasise in that connection that the
existence of remedies must be sufficiently certain not only in theory
but also in practice, and that it falls to the respondent State to
establish that (see, among other authorities, McFarlane v. Ireland
[GC], no. 31333/06, § 107, ECHR 2010 ...).
- In
the light of the above, the Court concludes that the applicant does
not have an effective remedy in relation to his complaint under
Article 3 of the Convention. There has therefore been a
violation of Article 13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The applicant complained that his detention had
ceased to be justified and had become arbitrary. He relied on Article
5 § 1 (f) of the Convention, which provides as follows:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
A. The parties’ submissions
- The
Government submitted that the law governing detention pending
deportation was fully Convention compliant. It also met the
requirements of Directive 2008/115/EC on common standards and
procedures in Member States for returning illegally staying
third country nationals. Those standards had been fully observed
in the applicant’s case. His placement in the detention
facility had been reviewed by an independent body, as the applicant
had sought judicial review of the order for his detention by the
Sofia Administrative Court. In the course of the proceedings the
authorities had produced documents showing the grounds for taking the
impugned measure. The applicant, who had been legally represented,
had been able to contest the authorities’ assertions. After
reviewing the legality of the detention order, the court had rejected
his application.
- The
applicant submitted that there was no indication that the authorities
had been actively pursuing his expulsion or that it was at all
possible. The only thing that the authorities had done had been to
contact the Lebanese embassy in Sofia with a view to obtaining travel
documents for the applicant to allow him to enter Lebanon. They had
not tried to contact the embassies of any safe third countries. In
the applicant’s view, detention pending deportation should be
allowed to reach the maximum eighteen month period allowed by
law only in exceptional cases.
B. The Court’s assessment
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- On
the merits, the Court reiterates that Article 5 § 1 (f), which
permits the State to control the liberty of aliens in the immigration
context, does not demand that detention be reasonably considered
necessary, for example, to prevent the individual from committing an
offence or fleeing. Any deprivation of liberty under the second limb
of Article 5 § 1 (f) will be justified, however, only for as
long as deportation or extradition proceedings are in progress. If
such proceedings are not prosecuted with due diligence, the detention
will cease to be permissible under that provision (see, among other
authorities, Chahal, § 113; A. and Others v. the
United Kingdom, § 164; Mikolenko v. Estonia, no.
10664/05, § 63, 8 October 2009; and Raza, § 72, all
cited above). In other words, the length of the detention should not
exceed that reasonably required for the purpose pursued (see Saadi
v. the United Kingdom [GC], no. 13229/03, § 74 in fine,
ECHR 2008 ...). Indeed, a similar point was recently made by the
ECJ in relation to Article 15 of Directive 2008/115/EC (see
paragraphs 50 and 51 above). It should, however, be pointed out that
unlike that provision, Article 5 § 1 (f) of the Convention does
not contain maximum time limits; the question whether the length
of deportation proceedings could affect the lawfulness of detention
under this provision thus depends solely on the particular
circumstances of each case (see Osman v. the United Kingdom,
no. 15933/89, Commission decision of 14 January 1991,
unreported, and Gordyeyev v. Poland (dec.), nos. 43369/98 and
51777/99, 3 May 2005).
- In
the instant case, the applicant was detained under a decision issued
by a competent authority in line with the applicable law, and action
was being taken with a view to his deportation. His allegations in
respect of the underlying expulsion order do not call into doubt the
lawfulness of his detention (see Chahal, cited above, §
112; Slivenko v. Latvia [GC], no. 48321/99, § 146,
ECHR 2003 X; and Sadaykov v. Bulgaria, no. 75157/01,
§ 21, 22 May 2008).
- Therefore,
the only issue is whether or not the authorities were sufficiently
diligent in their efforts to deport the applicant. He remained in
custody pending such deportation for exactly eighteen months, between
20 November 2009 and 19 May 2011 (see paragraphs 17 and 18
above).
- In
Raza (cited above, §§ 73 75), Bulgaria was
found in breach of Article 5 § 1 in similar circumstances in
respect of a detention lasting a little more than two and a half
years. In the meantime, following legislative amendments intended to
bring Bulgarian law into line with European Union law, the detention
of deportees was subjected to strict time limits of six, and in
exceptional cases, eighteen months (see paragraph 44 above). As a
result, the applicant spent exactly eighteen months in custody, the
maximum period allowed by law. Contrary to what has been suggested by
the Government, compliance with that time limit, which is in any
event exceptional (see paragraphs 47, 48, 50 and 51 above), cannot
automatically be regarded as bringing the applicant’s detention
into line with Article 5 § 1 (f) of the Convention. As noted
above, the relevant test under that provision is rather whether the
deportation proceedings have been prosecuted with due diligence,
which can only be established on the basis of the particular facts of
the case.
- Here,
it appears that the only steps taken by the authorities during the
eighteen months in issue were to write three times to the Lebanese
embassy in Sofia with requests for the issuing of a travel document
for the applicant (see paragraph 26 above). While the Bulgarian
authorities could not compel the issuing of such a document, there is
no indication that they pursued the matter vigorously or endeavoured
entering into negotiations with the Lebanese authorities with a view
to expediting its delivery (see Raza, cited above, § 73;
Tabesh v .Greece, no. 8256/07, § 56, 26 November 2009;
and Louled Massoud v. Malta, no. 24340/08, § 66, 27 July
2010). Moreover, apart from their own statements for the purposes of
the proceedings before the Court, the Government have not provided
evidence of any effort having been made to secure the applicant’s
admission to a third country. The authorities can thus hardly be
regarded as having taken active and diligent steps with a view to
deporting him. It is true that the applicant’s detention was
subject to periodic judicial review, which provided an important
safeguard (see Dolinskiy v. Estonia (dec.), no. 14160/08,
2 February 2010). However, that cannot be regarded as decisive.
The last such review took place on 7 December 2010 (see paragraph 26
above), whereas the Court has not been informed whether any steps
were taken with a view to removing the applicant from that time until
his release more than five months later, on 19 May 2011 (see, mutatis
mutandis, Mikolenko, cited above, § 64 in fine).
- The
assessment of those points is further frustrated by the fact that
neither the expulsion order nor any other binding legal act specified
the destination country, as this was not required under domestic law
(see paragraphs 39 and 40 above). The Court considers that this may
be seen as problematic with regard to the requirement of legal
certainty inherent in all Convention provisions. Where deprivation of
liberty is concerned, legal certainty must be strictly complied with
in respect of each and every element relevant to the justification of
the detention under domestic and Convention law. In cases of aliens
detained with a view to deportation, lack of clarity as to the
destination country could hamper effective control of the
authorities’ diligence in handling the deportation.
- It
is true the applicant did not spend such a long time in detention as
the applicants in some other cases, such as Chahal (cited
above). However, Mr Chahal’s deportation was blocked,
throughout the entire period under consideration, by the fact that
proceedings were being actively and diligently pursued with a view to
determining whether it would be lawful and compatible with the
Convention to proceed with his deportation (see Chahal, cited
above, §§ 115-17, as well as, mutatis mutandis, Eid
v. Italy (dec.), no. 53490/99, 22 January 2002; Gordyeyev,
cited above; and Bogdanovski v. Italy, no. 72177/01, §§
60 64, 14 December 2006). By contrast, in the present case the
Supreme Administrative Court refused to give any consideration to the
point whether the applicant would be at risk if returned to Lebanon
(see paragraph 23 above). Moreover, under Bulgarian law the order for
the applicant’s expulsion was immediately enforceable at any
time, regardless of whether a legal challenge was pending against it
(see paragraphs 31, 34, 35 and 37 above, as well as Raza,
cited above, § 74). The delay in the present case can thus
hardly be regarded as being due to the need to wait for the Supreme
Administrative Court to determine the legal challenge brought by the
applicant against the order for his expulsion.
- In
view of the foregoing, the Court concludes that the grounds for the
applicant’s detention – action taken with a view to his
deportation – did not remain valid for the whole period of his
deprivation of liberty due to the authorities’ failure to
conduct the proceedings with due diligence. There has therefore been
a violation of Article 5 § 1 of the Convention.
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- The
Court finds it appropriate to consider the present case under Article
46 of the Convention, which provides, in so far as relevant:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution. ...”
- In
the context of the execution of judgments in accordance with that
provision, a judgment in which the Court finds a violation of the
Convention or its Protocols imposes on the respondent State a legal
obligation not just to pay those concerned the sums awarded by way of
just satisfaction, but also to choose, subject to supervision by the
Committee of Ministers, the general and/or, if appropriate,
individual measures to be adopted in its domestic legal order.
Furthermore, it follows from the Convention, and from Article 1 in
particular, that in ratifying the Convention the Contracting States
undertake to ensure that their domestic legislation is compatible
with it (see Maestri v. Italy [GC], no. 39748/98, § 47,
ECHR 2004 I, and, more recently, Paksas v. Lithuania [GC],
no. 34932/04, § 119, 6 January 2011).
The Contracting States’ duty in international law to comply
with the requirements of the Convention may thus require action to be
taken by any State authority, including the legislature (see, by way
of example, Viaşu v. Romania, no. 75951/01, §§ 75 83,
9 December 2008).
- In
the present case, in view of the grave and irreversible nature of the
consequences of the removal of aliens to countries where they may
face ill treatment, and the apparent lack of sufficient
safeguards in Bulgarian law in that respect, it appears necessary to
assist the Government in the execution of their duty under Article 46
§ 1 of the Convention.
- Having regard to its findings under Articles 3, 5 §
1 and 13 of the Convention, the Court is of the view that the general
measures in execution of this judgment should include such amendments
to the Aliens Act 1998 or other Bulgarian legislation, and such
change of administrative and judicial practice in Bulgaria so as to
ensure that: (a) there exists a mechanism requiring the competent
authorities to consider rigorously, whenever there is an arguable
claim in that regard, the risks likely to be faced by an alien as a
result of his or her 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 should
always be indicated in a legally binding act and a change of
destination should be amenable to legal challenge; (c) the
above mentioned mechanism should allow for consideration of the
question whether, if sent to a third country, the person concerned
may face a risk of being sent from that country to the country of
origin without due consideration of the risk of ill treatment;
(d) where an arguable claim about a substantial risk of death or
ill treatment in the destination country is made in a legal
challenge against expulsion, that legal challenge should have
automatic suspensive effect pending the outcome of the examination of
the claim; and (e) claims about serious risk of death or
ill treatment in the destination country should be examined
rigorously by the courts.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage sustained as a result of the alleged breaches of Articles 3
and 13 of the Convention. He submitted that his impending expulsion
to Lebanon, entailing a risk for his life, and the lack of procedural
safeguards in that regard, had caused him stress, fear and a sense of
helplessness. He claimed a further EUR 20,000 in respect of the
alleged breach of Article 5 § 1 of the Convention, emphasising
the excessive duration of his detention in poor conditions. He
claimed EUR 10,000 in respect of an alleged breach of Article 5 §
4 of the Convention, submitting that he suffered frustration on
account of the lack of speedy and effective judicial review of his
detention. Lastly, he claimed EUR 10,000 in respect of the alleged
breaches of Articles 8 and 13 of the Convention, submitting that the
formal manner in which the courts had reviewed the order for his
expulsion and the impossibility for him to lead a normal life in
Bulgaria, even if released from detention, had given rise to feelings
of injustice and humiliation.
- The
Government submitted that the claims were excessive, especially
considering that the events on which they were based were
hypothetical and had not yet occurred. In their view, the amount of
compensation should not exceed the awards made in previous similar
cases against Bulgaria, and should reflect the fact that part of the
applicant’s complaints was rejected by the Court.
- The
Court observes that in the present case an award of just satisfaction
can be based only on the violations of Article 3, Article 5 § 1,
and Article 13 read in conjunction with Article 3. The applicant’s
claims in relation to the alleged breaches of Article 5 § 4,
Article 8, and Article 13 read in conjunction with Article 8 must
therefore be rejected.
- The
Court further observes that no breach of Article 3 has as yet
occurred. In those circumstances, it considers that its finding
regarding Article 3 amounts of itself to sufficient just satisfaction
(see Soering v. the United Kingdom, 7 July 1989, §§
126 27, Series A no. 161; Chahal, cited above, §
158; and Saadi, cited above, § 188). The same is true of
the Court’s related finding regarding Article 13 (see
Gebremedhin [Gaberamadhien], cited above, § 79).
Conversely, the Court considers that the distress suffered by the
applicant as a result of his detention pending deportation cannot
wholly be compensated by the finding of violation (see Quinn v.
France, 22 March 1995, § 64, Series A no. 311, and Raza,
cited above, § 88). Having regard to the awards made in similar
cases, and ruling on an equitable basis, as required under Article
41, the Court awards the applicant EUR 3,500, plus any tax that may
be chargeable.
B. Costs and expenses
- The
applicant sought reimbursement of EUR 1,800 incurred in legal fees
for the proceedings before the Court, and EUR 46 for postage.
- The
Government submitted that the legal fees claimed appeared excessive.
They were several times higher than those usually charged in
Bulgaria.
- According
to the Court’s case law, costs and expenses claimed under
Article 41 must have been actually and necessarily incurred and
reasonable as to quantum. Having regard to the materials in its
possession and the above considerations, and noting that part of the
application was declared inadmissible, the Court finds it reasonable
to award the applicant the sum of EUR 1,200, plus any tax that may be
chargeable to him, to cover costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
applicant’s impending expulsion, the alleged lack of effective
remedies in that regard, and his detention pending deportation
admissible, and the remainder of the application inadmissible;
- Holds that, should the order to expel the
applicant be implemented, there would be a violation of Article 3 of
the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable at the date of
settlement:
(i) EUR
3,500 (three thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
