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EGMR, Urteil vom 11.02.2010 - 31465/08, Raza v. Bulgaria (engl.) - M17481

Rechtswidrige Abschiebungsandrohung und Abschiebungshaft eines mit einer bulgarischen Frau verheirateten pakistanischen Staatsangehörigen.

1. Eine Abschiebung hätte zur Verletzung von Art. 8 EMRK geführt. Nachvollziehbare Hintergründe für die drohende Abschiebung haben die bulgarischen Behörden nicht mitgeteilt, weshalb die Zweifel des EGMR an dem von den Behörden behaupteten nationalen Sicherheitsrisiko nicht ausgeräumt wurden. Dem Betroffenen wurde kein Minimum an Schutz gegen Willkür durch die Behörden gewährleistet (wie bereits in dem nahezu indentischen Fall C. G. and Others v. Bulgaria, Urteil des EGMR vom 24.4.2008, Nr. 1365/07).

2. Verletzung von Art. 13 EMRK wegen fehlenden effektiven Rechtsschutzes.

3. Verletzung von Art. 5 Abs. 1 EMRK wegen rechtswidriger Dauer der Abschiebungshaft (hier: mehr als zweieinhalb Jahre), da alleiniger Grund für die Haftdauer die fehlende Ausstellung von Heimreisedokumenten durch die pakistanischen Behörden war und nach bulgarischem Recht zudem andere Möglichkeiten zur Sicherstellung einer Abschiebung möglich sind (Meldeauflagen bei örtlicher Polizei).

4. Verletzung von Art. 5 Abs. 4 EMRK, da nicht der erforderliche zügige Rechtsbehelf gegen die Abschiebungshaft in Bulgarien gewährleistet ist ("speedy judicial review"). Das Haftbeschwerdeverfahren dauerte länger als zwei Jahre und endete in einer Annulierung des Haft(entlassungs)beschlusses durch das höchste Verwaltungsgericht. Ein weiteres Verfahren beim Verwaltungsgericht Sofia dauerte fast vier Monate und die Entscheidung wurde rechtskräftig, als der Betroffene bereits entlassen war.

5. Verurteilung Bulgariens zum Ersatz des immateriellen Schadens (5.500,- EUR für die Frustration des Betroffenen hinsichtlich der Haft und der Unmöglichkeit einer zügigen Haftüberprüfung) und zur Erstattung der Verfahrenskosten (1.200,- EUR )

Schlagwörter: Abschiebungsandrohung, Abschiebungshaft, Haftdauer, Rechtsweggarantie, Schutz von Ehe und Familie, Bulgarien, Menschenhandel, Rückführungsrichtlinie, Schmerzensgeld, Schadensersatz
Normen: EMRK Art. 8, EMRK Art. 13, EMRK Art. 5 Abs. 1, EMRK Art. 5 Abs. 4, EMRK Art. 6, EMRK Art. 41


43. The applicants complained under Article 8 of the Convention that the order for Mr Raza's expulsion amounted to an unjustified interference with their right to respect for their family life. [...]

where national security is at stake (see Chahal v. the United Kingdom, 15 November 1996, § 131 in limine, Reports of Judgments and Decisions 1996-V). It may therefore sometimes be necessary to classify some or all of the materials used in proceedings touching upon such matters and even parts of the decisions rendered in them (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 205, 209, 210 and 215, ECHR 2009-...). However, the complete concealment from the public of the entirety of a judicial decision in such proceedings cannot be regarded as warranted. The publicity of judicial decisions aims to ensure scrutiny of the judiciary by the public and constitutes a basic safeguard against arbitrariness. Indeed, even in indisputable national security cases, such as those relating to terrorist activities, the authorities of countries which have already suffered and are currently at risk of terrorist attacks have chosen to keep secret only those parts of their decisions whose disclosure would compromise national security or the safety of others (ibid., §§ 29-69, 93 and 215), thus illustrating that there exist techniques which can accommodate legitimate security concerns without fully negating fundamental procedural guarantees such as the publicity of judicial decisions. Moreover, in the absence of information about the facts under consideration before the national courts and the manner in which they examined the case, the Court is not persuaded that it concerned genuine national security issues. Indeed, the only known allegation against Mr Raza was that "there existed information that [he] had been involved in human trafficking" (see paragraph 17 above). Failing further particulars about the threat to national security which the applicant allegedly posed, the Court is bound to conclude that the situation was identical to that in C.G. and Others, where the Bulgarian authorities had stretched the – admittedly wide – notion of national security beyond its natural meaning (see C.G. and Others, cited above, § 43).

54. The Court further notes the applicants' assertion that when deciding the case the Supreme Administrative Court did not have before it the full text of the proposal for Mr Raza's expulsion, but merely a short excerpt from it, drawn up by the authorities specifically for the purposes of the judicial review proceedings (see paragraph 24 above). As noted above, despite a specific question the Government did not disclose what materials that court had had before it when making its judgment. The Court therefore concludes, on the basis of its inference (see paragraph 52 above), that the Supreme Administrative Court did not have access to the full facts grounding the authorities' assertion that Mr Raza presented a national security risk, which prevented it from conducting a meaningful examination of the case. It is moreover questionable – and by not presenting the requested information the Government failed to dispel the doubts in that respect – whether that court considered itself competent to carry out a proper examination of that assertion, given that in C.G. and Others it had confined itself to a purely formal review of an identical expulsion decision and had rested its ruling solely on uncorroborated information tendered by the Ministry of Internal Affairs (see C.G. and Others, cited above, § 47, and Lupsa v. Romania, no. 10337/04, § 41, ECHR 2006-VII).

55. In view of the above considerations, the Court concludes that Mr Raza, despite having the formal possibility of seeking judicial review of the decision to expel him, did not enjoy the minimum degree of protection against arbitrariness on the part of the authorities. The resulting interference with his right to respect for his family life would therefore not be in accordance with a "law" satisfying the requirements of the Convention (see C.G. and Others, cited above, § 49). In view of that conclusion, the Court is not required to determine whether the order for Mr Raza's expulsion pursued a legitimate aim and whether it was proportionate to the aim pursued.

56. The Court finds that the decision to expel Mr Raza, if put into effect, would violate Article 8 of the Convention.


57. The applicants complained under Article 13 of the Convention that they did not have at their disposal effective domestic remedies in respect of their complaint under Article 8. 58. Article 13 provides:

"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."

59. The parties' observations have been summarised in paragraphs 45 and 46 above.

60. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

61. The Court is furthermore satisfied that the applicants' complaint was arguable and that Article 13 is applicable.

62. In C.G. and Others the Court found that the proceedings for judicial review of an expulsion order citing national security grounds were deficient in two respects. First, they did not involve a meaningful scrutiny of the executive's allegations. Secondly, the courts did not assess whether the interference with the applicants' rights answered a pressing social need and was proportionate to any legitimate aim pursued (see C.G. and Others, cited above, §§ 59-64).

63. In the instant case, the Court already found, on the basis of the inferences which it was entitled to draw from the Government's conduct, that the Supreme Administrative Court was not shown to have carried out a proper examination of the executive's assertion that Mr Raza presented a national security risk. For the same reasons, the Court finds that the Government did not establish that the Supreme Administrative Court engaged in a meaningful analysis of the proportionality of Mr Raza's expulsion. The Court concludes that the judicial review proceedings in the present case did not comply with the requirements of Article 13, for the same reasons as in C.G. and Others. No other remedy has been suggested by the Government.

64. There has therefore been a violation of Article 13 of the Convention.


65. Mr Raza alleged that his detention pending deportation had been in breach of Article 5 § 1 (f) of the Convention on account of its excessive length and because it had been based on legal provisions which failed to provide sufficient safeguards against arbitrariness. 66. He further complained under Article 5 § 4 of the Convention that he had been unable to obtain a speedy judicial review of his detention. [...]

A. Article 5 § 1

71. It is not in dispute that Mr Raza's deprivation of liberty fell within the ambit of Article 5 § 1 (f), as he was detained for the purpose of being deported from Bulgaria.

72. Article 5 § 1 (f) does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing (see, as a recent authority, A. and Others v. the United Kingdom, cited above, § 164 in limine). All that is required under it is that "action is being taken with a view to deportation". It is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law (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). However, any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible (see Chahal, § 113, and A. and Others v. the United Kingdom, § 164 in limine, both cited above). In other words, the length of the detention for this purpose should not exceed that reasonably required (see Saadi v. the United Kingdom [GC], no. 13229/03, § 74 in fine, ECHR 2008-...).

73. In the instant case, Mr Raza remained in custody between 30 December 2005 and 15 July 2008, that is, more than two and a half years (see paragraphs 10 and 14 above). Throughout this period his deportation was apparently blocked solely by the lack of a travel document allowing him to re-enter Pakistan. It is true that the Bulgarian authorities could not compel the issuing of such document, but there is no indication that they pursued the matter vigorously or endeavoured entering into negotiations with the Pakistani authorities with a view to expediting its delivery (see, mutatis mutandis, A. and Others v. the United Kingdom, cited above, § 167). Indeed, both the Sofia City Court and the Sofia Administrative Court, which examined that point in detail, specifically found that the authorities were not doing enough in that respect (see paragraphs 26 and 28 above). Nor does it appear that any consideration was given to the possibility of sending the applicant to another State willing to accept him.

74. It is true Mr Raza did not spend such a long time in detention as the applicants in certain 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, and Bogdanovski v. Italy, no. 72177/01, §§ 60-64, 14 December 2006). By contrast, the delay in the present case was not at all due to the need to wait for the courts to determine the legal challenge brought by Mr Raza against his deportation. Indeed, his request for a stay of the enforcement of the expulsion order was denied as early as 7 December 2006 (see paragraph 19 above), and the Government conceded that the only reason for the delay was the failure to secure the necessary travel documents from the Pakistani authorities (see paragraph 68 above). It should also be observed that after his release on 15 July 2008 Mr Raza was placed under an obligation to report to his local police station at regular intervals (see paragraph 14 above). This shows that the authorities had at their disposal measures other than the applicant's protracted detention to secure the enforcement of the order for his expulsion. Lastly, the Court notes that after the events in issue in the present case Bulgarian law was changed, in line with the recent European Union Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals, and now provides that in situations akin to Mr Raza's, where deportation is blocked by the failure of a third country to deliver the necessary travel documents, detention cannot exceed eighteen months (see paragraphs 36 and 40 above). Mr Raza's detention was markedly longer.

75. In view of the foregoing, the Court concludes that the grounds for Mr Raza's detention – action taken with a view to his deportation – did not remain valid for the whole period of his detention 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.

B. Article 5 § 4

76. Under Article 5 § 4, all persons deprived of their liberty are entitled to a review of the lawfulness of their detention by a court. The Convention requirement that a deprivation of liberty be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 to provide safeguards against arbitrariness (see Chahal, §§ 126-33; Al-Nashif, § 92; and Sadaykov, § 32, all cited above). For this reason, Article 5 § 4 stipulates that a remedy must be made available during a person's detention to allow him or her to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release (see, as a recent authority, Sadaykov, cited above, § 32).

77. In the instant case, Mr Raza was able to challenge the order for his detention and even obtain a ruling that this detention was unlawful. However, that ruling was annulled on appeal, because the Supreme Administrative Court held, in clear deviation from its earlier case-law, that orders for the detention of deportees were not amenable to judicial review (see paragraphs 26, 27 and 41 above). As a result, the applicant was not able to obtain a final and binding judicial determination of the lawfulness of his detention. Moreover, those proceedings, lasting as they did more than two years, were far from speedy.

78. It remains to be ascertained whether the applicant had at his disposal other effective and speedy remedies for challenging the lawfulness of his detention (see Kadem v. Malta, no. 55263/00, § 45, 9 January 2003). On that point, the Court observes that on 16 January 2008 he brought another legal challenge to his deprivation of liberty. However, it took the Sofia Administrative Court almost four months to determine that challenge, and its judgment became final more than a year later, when Mr Raza had already been released (see paragraphs 28 and 29 above). There is nothing to indicate that any challenge brought earlier would have been determined in a speedier fashion.

79. In view of the foregoing, the Court concludes that Mr Raza did not have an opportunity of having the lawfulness of his detention reviewed speedily by a court. There has therefore been a violation of Article 5 § 4 of the Convention. [...]


1. Declares the complaints concerning the interference with the applicants' family life and the alleged lack of effective remedies in that respect, as well as the complaints concerning Mr Raza's detention and the alleged lack of speedy judicial review thereof admissible and the remainder of the

application inadmissible;

2. Holds that, should the decision to expel Mr Raza be implemented, there would be a violation of Article 8;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds that there has been a violation of Article 5 § 1 of the Convention;

5. Holds that there has been a violation of Article 5 § 4 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicants, 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) to Mr Raza, EUR 5,500 (five thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) jointly to both applicants, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to them, 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 [...].