ECtHR - Auad v. Bulgaria, Application No. 46390/10

Article 3

The Court noted that any national-security considerations were irrelevant in the Applicant’s case; the relevant issue was whether his expulsion would give rise to a real risk of ill-treatment. The Supreme Administrative Court had not attempted to assess the question of risk; but instead confined itself to the question of the lawfulness of the expulsion order. Such an approach could not be considered compatible with the need for independent and rigorous scrutiny of the substance of the Applicant’s fears. The Court found that there was at least prima facie evidence capable of showing substantial grounds for believing the Applicant would be exposed to a real risk if expelled there. The burden had therefore been on the State to dispel any doubts, but the Government had not presented any evidence on that issue on the grounds that the question of risk would in any event be examined at the time of expulsion. In the Court’s view, this could not be regarded as a binding assurance that the Applicant would not be expelled to Lebanon.

The Court was also not persuaded that effective guarantees existed in Bulgaria against the arbitrary deportation of people at risk of ill-treatment. Since the Aliens Act 1998 and regulations for its application were silent on the question of risk assessment and there were no reported cases on the subject, it was unclear which standards and what information the authorities would use in any determination of the risk faced by the Applicant if removed to Lebanon. There was also no indication as to whether the authorities would properly examine the risk of his onward transmission to Lebanon. Accordingly, in view of the absence of a legal framework providing adequate safeguards there were substantial grounds for believing that the Applicant risked a violation of his Article 3 rights.

Article 13

The Court found that in cases in which people claimed they risked ill-treatment if expelled, in order for a remedy to be considered effective, there needed to be close, independent and rigorous scrutiny of the claim that substantial grounds for fearing a real risk of proscribed treatment existed, without regard to what the person may have done to warrant expulsion or to any perceived threat to national security; and access to a remedy with automatic suspensive effect.

The Bulgarian courts had explicitly refused to deal with the question of risk and they had no power to suspend the enforcement of expulsion orders and more importantly, the Government had not pointed to any procedure whereby the Applicant would be able to challenge the authorities’ assessment of his claims. Therefore, the Applicant did not have an effective remedy in relation to his complaint related to the risk of ill-treatment, in violation of Article 13.

Article 5

The Court found that the grounds under which the Applicant was detained had not remained valid for the whole period of his detention owing to the authorities’ failure to conduct the proceedings with due diligence. There was no indication that they had pursued the matter vigorously or attempted to negotiate an expedited delivery, or of any efforts to secure the Applicant’s admission to a third country. It also found that the delays could not be explained by the need to wait for the Supreme Administrative Court’s decision as not only did that court refuse to consider whether the Applicant would be at risk if returned to Lebanon, the deportation order was in any event immediately enforceable.

Article 46

In view of the grave and irreversible nature of the consequences of the removal of aliens to countries where they might face ill-treatment, and the apparent lack of sufficient safeguards in Bulgarian law in that respect, the Government was required to take measures to ensure that claims of ill-treatment in the receiving state are rigorously assessed; the destination country should always be indicated in a legally binding act and a change of destination should be amenable to legal challenge; and that there should be an automatic suspension of expulsion orders which are challenged.