GAPAEV AND OTHERS v. BULGARIA - 41887/09 (Judgment : Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) Violation of Ar...) [2017] ECHR 495 (01 June 2017)

In the case of Gapaev and Others v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Nona Tsotsoria, President,
          Síofra O’Leary,
          Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 9 May 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 41887/09) 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 five Russian nationals, Mr Ruslan Eldarovich Gapaev (“the first applicant”), Ms Radima Pashaevna Bashtarova (“the second applicant”), Mr Nuri Ruslanovich Gapaev (“the third applicant”), Ms Sofiya Ruslanovna Gapaeva (“the fourth applicant”) and Ms Samira Ruslanovna Gapaeva (“the fifth applicant”) (together “the applicants”), on 11 June 2009.

2. The applicants were represented by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.

3. On 14 December 2015 the application was communicated to the Government.

4. On 18 December 2015 the Russian Government was informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. On 11 March 2016 they informed the Court that they would not avail themselves of this possibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1970, 1973, 1999, 2001 and 2007 respectively. The Court has not been informed of their current place of residence.

6. The first and second applicants, a married couple, arrived in Bulgaria in 1997. Their three children, the remaining applicants, were born in that country. All members of the family were granted permanent resident permits. In 2005 the first applicant bought a flat in Sofia, where the family lived.

7. On 29 May 2008 the head of the National Security Service issued an order withdrawing the first applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his re-entering Bulgaria, on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B849”.

8. That proposal, drawn up by the National Security Service on 27 May 2008 and initially classified, was declassified on 22 February 2016 and has been submitted by the Government. It stated that, according to intelligence data, the first applicant was the leader of an international terrorist group, working towards the aiding and financing of Chechen extremist and separatist organisations. It also stated that he was being searched on the territory of the Russian Federation and that his actions lowered the prestige and the interests of the Bulgarian State. The document claimed, in addition, that the first applicant had been implicated in extortion, drug trafficking, smuggling, money laundering and other criminal activities. No evidence was provided to substantiate those claims, even though the document referred to some specific facts. It was stated, for example, that in 2006 the applicant and another person had attempted to smuggle into Bulgaria a “highly toxic substance”, and that, also in 2006, he had threatened the seller of an expensive property in Varna forcing him to choose as a buyer a person close to the applicant.

9. On 12 June 2008 the first applicant applied for judicial review of the expulsion order. He disputed the allegation that he represented “a serious threat to national security”. He pointed out that his family was living in Bulgaria and that his children had been born in the country, and claimed that the proposed separation of his family was “unjustified”.

10. During the ensuing proceedings the applicant and his representative were shown proposal no. B849 and they presented evidence seeking to disprove some of the allegations it contained. In particular, the first applicant presented certificates issued by the Bulgarian and the Russian authorities stating that he had no convictions in the two countries and explained that in February 2008 he had travelled to Russia, where, as he claimed, he would have been arrested had he indeed been searched by the authorities of that country. In addition, in his written submissions the first applicant’s representative pointed out that the allegations made in the proposal were not substantiated by any evidence, and that they could not justify a conclusion that the applicant represented a threat to national security. In his oral pleadings he pointed out once again that the first applicant had “created his family” in Bulgaria.

11. In a final judgment of 20 December 2008 the Supreme Administrative Court dismissed the application for judicial review. After summarizing the claims made in proposal no. B849, it held briefly that it was bound by them. Thus, in its view

“it should be concluded that the presence and the activity of the [first applicant] amount to a serious threat to national security and to the international prestige of the Republic of Bulgaria.”

12. In a decision of 29 May 2008 the head of the Ministry of Internal Affairs’ Migration Directorate ordered the first applicant’s detention pending expulsion. That decision was quashed in a judgment of the Sofia Administrative Court of 17 July 2008. In another decision dated 28 August 2008 the head of the National Security Service ordered once again the applicant’s detention. That decision was quashed as well, in a judgment of the Supreme Administrative Court of 27 November 2009. The first applicant effectively remained in detention from 10 September 2008 to the date of his expulsion, 3 September 2009.

13. The other applicants remained for several more years in Bulgaria, but left in November 2015.

II. RELEVANT DOMESTIC LAW AND PRACTICE

14. The relevant domestic law and practice have been summarised in the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, §§ 30-36, 11 February 2010).

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 8 AND ARTICLE 13 OF THE CONVENTION

15. The applicants complained under Article 8 of the Convention that the first applicant’s expulsion from Bulgaria had disrupted their settled family life. They also complained, relying on Articles 6 and 13 of the Convention, that they had not had at their disposal any effective remedy to protect their right to family life.

16. The Court is of the view that it suffices to examine the complaints solely under Article 8 and Article 13 of the Convention, which read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

Article 13

“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. Arguments of the parties

1. The Government

17. The Government argued that the application was inadmissible for two reasons. First, as in the case of Abulail and Ludneva v. Bulgaria ((dec.), no. 21341/07, 13 November 2014), the first applicant had not raised in the domestic judicial proceedings a complaint under Article 8 of the Convention. Second, he could have brought a tort action against the State, in view of the fact that the decisions concerning his detention pending expulsion had been quashed.

18. The Government claimed in addition that the second, third, fourth and fifth applicants could not be considered victims of the alleged violations of the Convention, since the authorities had taken no measures against them and they had continued to live in Bulgaria until 2015. Moreover, there was no obstacle for the applicants settling as a family elsewhere, since there was “no real necessity” for their establishing their family life in Bulgaria.

19. As to the measures taken against the first applicant, the Government considered that they had been lawful and justified, in particular because it had been “indisputable” that he had posed a threat to national security, and seeing that “the interests of national security prevailed over the applicants’ personal interests”. The Government were also of the view that the Bulgarian authorities had “proved” the allegation concerning the first applicant’s criminal activities and that the Supreme Administrative Court had conducted a “thorough and comprehensive” review of these allegations. Lastly, the Government pointed out that the first applicant had had the possibility to contest the measures against him in adversarial proceedings and put forward his arguments and any evidence.

2. The applicants

20. The applicants disagreed. In response to the Government’s arguments concerning their complaints’ admissibility (see paragraph 17 above), they pointed out that while in the domestic judicial proceedings the first applicant had not expressly referred to Article 8 of the Convention, he had nevertheless clearly relied on the fact that his family was in Bulgaria. As to the Government’s argument that he could have brought a tort action, this possibly referred to the proceedings relating to his detention prior to expulsion, which was not at issue in the current proceedings.

21. The first and the second applicants pointed out that they had lived as a family in Bulgaria for more than ten years before the first applicant’s expulsion. Their children were born and had spent all their lives in that country.

22. The applicants argued that the first applicant had been expelled from Bulgaria on the basis of general allegations made by the National Security Service, unsupported by any evidence. The failure to mention specific dates, places or facts in proposal no. B849 concerning the first applicant meant that he had been unable to present meaningful evidence to refute the allegations against him. Moreover, according to the applicants some of these allegations, such as the ones concerning extortion, drug trafficking or smuggling, could not justify a conclusion that he represented a threat to national security. In addition, the Supreme Administrative Court had failed to review the executive’s allegations, considering merely that it was bound by them. It failed to assess the proportionality of the measures against the first applicant and to comment on his arguments related to his family life.

B. The Court’s assessment

1. Admissibility

23. The Government put forward two arguments in relation to the application’s admissibility, apparently seeking to rely on non-exhaustion of domestic remedies (see paragraph 17 above).

24. They argued, first, that the first applicant had failed to raise in the domestic judicial proceedings a complaint under Article 8 of the Convention. However, the Court observes that in his application for judicial review the first applicant stated that his family was living in Bulgaria and that the family’s separation would be unjustified. He provided evidence of his family life by presenting his marriage certificate and his children’s birth certificates. In addition, the applicant’s representative pointed out once again in his oral pleadings that the applicant’s family was in Bulgaria (see paragraph 10 above in fine). For the Court, this is sufficient in the circumstances of this case to conclude that the first applicant raised “in substance” before the Supreme Administrative Court a complaint related to his family life (see, mutatis mutandis, among others, Fressoz and Roire v. France [GC], no. 29183/95, §§ 37-39, ECHR 1999-I, and L.L. v. France, no. 7508/02, § 22-23, ECHR 2006-XI). Accordingly, it dismisses the Government’s inadmissibility plea.

25. As to the second argument, namely that the first applicant could have brought a tort action against the State, seeing that the decisions concerning his detention pending expulsion had been quashed (see paragraph 17 above), the Court agrees with the applicants (see paragraph 20 above) that it is unrelated to the Article 8 and Article 13 complaints under examination.

26. Lastly, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

27. On the merits, the Court notes at the outset that the present application is similar to a number of earlier cases against Bulgaria concerning expulsion of aliens on alleged national security grounds (see, for example, C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008; Kaushal and Others v. Bulgaria, no. 1537/08, 2 September 2010; M. and Others v. Bulgaria, no. 41416/08, 26 July 2011; and Raza, cited above).

(a) Article 8 of the Convention

28. In the present case the respondent Government have not disputed that the applicants had established a genuine “family life” in Bulgaria, within the meaning of Article 8 of the Convention. What they disputed was the existence of an interference with the applicants’ right to respect for their family life, on the ground that the authorities had taken no measures against the second, third, fourth and fifth applicants, who had remained in Bulgaria for several years following the first applicant’s removal. The Government argued also that there was no obstacle for the applicants settling as a family in another country (see paragraph 18 above).

29. However, the Court observes that the first and second applicants arrived in Bulgaria in 1997 and were lawfully resident there on the strength of permanent residence permits. They established their home, and their children were born and grew up in that country (see paragraph 6 above). Accordingly, the first applicant’s expulsion in 2009, which effectively led to the family’s separation for several years, interfered with the applicants’ right to family life (see Al-Nashif v. Bulgaria, no. 50963/99, § 115, 20 June 2002, and Lupsa v. Romania, no. 10337/04, §§ 26-7, ECHR 2006-VII).

30. That interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that provision as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned.

31. As to the first of these requirements, namely that the interference should be “in accordance with the law”, the Court observes that in the previous similar cases against Bulgaria, some of which are cited in paragraph 27 above, it found that the impugned expulsions ordered on alleged national security grounds did not meet the Convention standards, as the relevant law, procedures and practice did not offer even a minimum degree of protection against arbitrariness. In particular, in C.G. and Others (cited above, §§ 42-47), the Court found, first, that the national courts had allowed the executive to stretch the notion of national security beyond its natural meaning and, second, that those courts had not examined whether the executive had been able to demonstrate the existence of specific facts serving as a basis for its assessment that the first applicant presented a national security risk. The Court found, in addition, that the domestic courts had applied a formalistic approach and had left a governmental agency full and uncontrolled discretion to certify, with reference to little more than its own general statements, that an alien was a threat to national security and had to be expelled. As such “certifications” were considered to be beyond any meaningful judicial scrutiny, there was thus no safeguard against arbitrariness (see also Kaushal and Others, §§ 28-32, and M. and Others, § 98, both cited above; also Amie and Others v. Bulgaria, no. 58149/08, § 98, 12 February 2013).

32. The present case is very similar. The expulsion order against the first applicant was based on statements declaring him to be the leader of an international terrorist group, involved in extortion, drug trafficking, smuggling and other criminal activities, and therefore representing a national security threat (see paragraph 8 above). The document containing these statements, proposal no. B849, referred to a few factual grounds and no evidence on which those declaratory statements were based. In addition, it has not been alleged that the first applicant was ever charged with related offences by the Bulgarian authorities. Thus, the expulsion order appeared to be based on a purely internal assessment by the National Security Service, made on the basis of undisclosed evidence.

33. Furthermore, the Supreme Administrative Court dismissed the first applicant’s application for judicial review of the expulsion order on the ground that it was bound by the aforementioned declaratory statements (see paragraph 11 above). Its formalistic approach meant that it failed to provide any meaningful independent scrutiny of the executive’s allegations.

34. Consequently, as in the cases referred to previously, despite the first applicant having the formal possibility of seeking judicial review of the impugned order, the Court finds that the applicants did not enjoy the minimum degree of protection against arbitrariness inherent in the concept of lawfulness under the Convention. The interference with their right to family life was thus not “in accordance with the law”, as required by Article 8 § 2.

35. In the light of this conclusion, the Court is not required to examine the remaining issues, which concern the existence of one or more legitimate aims and whether the impugned measures were necessary in a democratic society (see M. and Others, § 104, and Kaushal and Others, § 33, both cited above).

36. It follows that there has been a violation of Article 8 of the Convention.

(b) Article 13 of the Convention

37. In the previous similar cases, the Court found with regard to complaints under Article 13 of the Convention in conjunction with Article 8 that the proceedings for judicial review of the expulsion orders concerning the applicants had been deficient in two respects. Firstly, they had not involved meaningful scrutiny of the executive’s allegations. Secondly, the courts had not assessed whether the interference with the applicants’ rights met a pressing social need and was proportionate to any legitimate aim pursued (see C.G. and Others, §§ 59-64, M. and Others, § 125, both cited above; also Madah and Others v. Bulgaria, no. 45237/08, § 39, 10 May 2012).

38. Similarly, in the present case the Court already noted that the Supreme Administrative Court had not carried out a proper examination of the executive’s assertion that the first applicant presented a national security risk (see paragraph 33 above). The Court also observes that, as in the cases cited above, the Supreme Administrative Court devoted no attention to questions of proportionality and did not comment on the first applicant’s arguments concerning his right to family life, apparently treating these matters as irrelevant. It follows that the judicial review proceedings in the present case did not secure to the applicants the effective domestic remedy which Article 13 requires in respect of their complaint regarding breach of their right to family life (see M. and Others, cited above, § 125). No other remedy has been suggested by the Government.

39. There has therefore been a violation of Article 13 of the Convention, taken in conjunction with Article 8.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. 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

41. The applicants claimed 20,000 euros (EUR) for each of them, or EUR 100,000 in total, in respect of non-pecuniary damage stemming from the violation of their right to family life, and another EUR 5,000 jointly for the five of them for the breach of Article 13. They pointed out that the separation of their family had caused them distress and had forced on them a change of their lives.

42. The Government contested the claims.

43. The Court is of the view that the applicants must have endured distress and frustration resulting from the arbitrary disruption of their family life brought about by the first applicant’s expulsion. These were aggravated by the ineffectiveness of the procedure through which the first applicant tried to challenge his expulsion. Having regard to the materials in its possession and ruling on an equitable basis as required by Article 41 of the Convention, the Court decides to award EUR 7,500 to the first applicant and EUR 3,000 each to the second, third, fourth and fifth applicants in respect of non-pecuniary damage.

B. Costs and expenses

44. The applicants also claimed EUR 3,600 for the fees charged by their lawyers for the proceedings before the Court. In support of this claim they presented a declaration by the lawyer who had prepared their initial application with the Court and an invoice issued by their representatives after the application’s communication. The applicants claimed another 243 Bulgarian levs (the equivalent to EUR 124) for translation, requesting that that sum be transferred directly into their representatives’ bank accounts.

45. The Government contested the claims.

46. Regard being had to the documents in its possession and to its case-law, and in particular to the fact that the present case is repetitive (see paragraph 27 above), the Court considers it appropriate to award the applicants EUR 2,000 for their legal representation. It awards them in addition the EUR 124 paid for translation, to be transferred, as requested by the applicants, directly into their representatives’ bank account.

C. Default interest

47. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention, taken in conjunction with Article 8;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros) to the first applicant, and EUR 3,000 (three thousand euros) each to the second, third, fourth and fifth applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,124 (two thousand one hundred and twenty-four euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 124 (one hundred and twenty-four euros) of which to be paid directly into the bank accounts of the applicants’ representatives;

(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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 1 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Nona Tsotsoria
Deputy Registrar President

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