Zitieren als:
EGMR, Entscheidung vom 24.04.2008 - 1365/07 - M13640
Schlagwörter: Europäische Menschenrechtskonvention, Schutz von Ehe und Familie, Ausweisung, Abschiebung, nationale Sicherheit, Rechtsgrundlage, Rechtssicherheit, Rechtsweggarantie
Normen: EMRK Art. 8; EMRK Art. 13; EMRK Protokoll Nr. 7

37. The first applicant settled in Bulgaria in 1992. In 1996 he married the second applicant there. The same year they had a child – the third applicant. There is no indication that their relationship did not amount to a genuine family life within the meaning of Article 8 § 1. The second and third applicants are Bulgarian nationals who were born in Bulgaria and have been living there all their lives. From 1992 until his expulsion in 2005 the first applicant resided lawfully in Bulgaria, from 1996 onwards on the strength of a permanent residence permit. In June 2005 his expulsion was ordered by reference to national security considerations, and he was detained and removed from Bulgaria by force. After that he was able to see his wife and daughter only occasionally for brief periods of time (see paragraphs 5, 6, 7 and 17 above). The Court therefore concludes that the measures taken by the authorities against the first applicant amounted to interference with the applicants' right to respect for their family life (see Al-Nashif, cited above, §§ 112-15; Lupsa v. Romania, no. 10337/04, §§ 24, 26 and 27, ECHR 2006-VII; Musa and Others v. Bulgaria, no. 61259/00, § 58, 11 January 2007; and Bashir and Others v. Bulgaria, no. 65028/01, § 37, 14 June 2007).

38. Such interference will constitute a breach of Article 8 unless it is "in accordance with the law", pursues a legitimate aim or aims under paragraph 2, and is "necessary in a democratic society" for achieving those aims.

39. The Court has consistently held that the first of these requirements does not merely dictate that the interference should have a basis in domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. The phrase thus implies that domestic law must be accessible and foreseeable, in the sense of being sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention. The law must moreover afford a degree of legal protection against arbitrary interference by the authorities. In matters affecting fundamental rights it would be contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, so as to give the individual adequate protection against arbitrary interference (see, among many other authorities, Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, pp. 31-33, §§ 66-68).

40. The Court is naturally mindful of the fact that in the particular context of measures concerning national security, the requirement of foreseeability cannot be the same as in many other fields. In particular, the requirement of "foreseeability" of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to expel an individual on national security grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance. However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that deportation measures affecting fundamental human rights be subject to some form of adversarial proceedings before an independent authority or a court competent to effectively scrutinise the reasons for them and review the relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive's assertion that national security is at stake. While the executive's assessment of what poses a threat to national security will naturally be of significant weight, the independent authority or court must be able to react in cases where the invocation of this concept has no reasonable basis in the facts or reveals an interpretation of "national security" that is unlawful or contrary to common sense and arbitrary (see Al-Nashif, §§ 119-24, and Lupsa, §§ 33 and 34, both cited above).

55. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. In certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see, among many other authorities, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1869-70, § 145).

56. In immigration matters, where there is an arguable claim that expulsion may infringe an alien's right to respect for his or her family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging expulsion or refusalofresidence orders and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see Al-Nashif, cited above, § 133, with further references).

57. If an expulsion has been ordered by reference to national security considerations, certain procedural restrictions may be needed to ensure that no leakage detrimental to national security occurs, and any independent appeals authority may have to afford a wide margin of appreciation to the executive. However, these limitations can by no means justify doing away with remedies altogether whenever the executive has chosen to invoke the term "national security". Even where an allegation of a threat to national security has been made, the guarantee of an effective remedy requires as a minimum that the competent appeals authority be informed of the reasons grounding the expulsion decision, even if such reasons are not publicly available. The authority must be competent to reject the executive's assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative following security clearance. Furthermore, the question whether the impugned measure would interfere with the individual's right to respect for his or her family life and, if so, whether a fair balance has been struck between the public interest involved and the individual's rights must be examined (ibid., § 137, with a further reference to Chahal, cited above).

58. Having regard to its conclusion with regard to Article 8 (see paragraph 50 above), the Court finds that the applicants' complaint is arguable. It must therefore determine whether they had at their disposal a remedy satisfying the requirements of Article 13.

70. In the event of expulsion, in addition to the protection afforded by Articles 3, 8 and 13 of the Convention, aliens lawfully resident on the territory of a State which has ratified Protocol No. 7 benefit from the specific guarantees provided for in its Article 1 (see Lupsa, cited above, §§ 51 and 52; Kaya v. Romania, no. 33970/05, §§ 51 and 52, 12 October 2006; and Bolat v. Russia, no. 14139/03, § 76, ECHR 2006-XI (extracts)).

71. In Al-Nashif the Court did not examine the case under that provision, as the events at issue had taken place before its entry into force in respect of Bulgaria (1 February 2001) (see Al-Nashif, cited above, § 133 in limine). However, in the present case the first applicant's expulsion was ordered on 8 June 2005 and carried out on 9 June 2005. The Court must therefore determine whether it complied with the various requirements of that Article. 72. The Court notes that the first guarantee afforded to the persons referred to in this Article is that they shall not be expelled except "in pursuance of a decision reached in accordance with law".