ECtHR releases decision in Madah and Others v. Bulgaria (Application No.45237/08) [Articles 3, 8 and 13 ECHR]

Friday, October 4, 2013

The applicants are Mohammad Rasoul Madah, an Iranian national, his partner, Maria Kerkenezova, and their son, Daniel Mohammad Rasoul Madah, both Bulgarian nationals. They were born in 1965, 1973 and 2006 respectively. Granted a permanent residence permit in Bulgaria in 2001, Mohammad Rasoul Madah subsequently met and started living with Ms Kerkenezova, with whom he had a son, the third applicant. In December 2005, the head of the National Security Service at the Ministry of Internal Affairs made an order for the first applicant's expulsion on the ground that he presented a threat to national security, namely an accusation of involvement in drug trafficking for the purpose of financing a Kurdish separatist group. No factual grounds were given. The order relied on a classified internal document of 15 December 2005, which was not served on the applicant. This document, which was also not submitted to the ECtHR, apparently did not mention the factual grounds and the evidence on which the declaration was based. It was not alleged that the first applicant had ever been charged with related offences. Further, the first applicant submitted written observations in which he claimed that he had never been involved in the activities mentioned in the classified internal document. The applicant sought judicial review by the Sofia City Court. The Court did not order the head of the National Security Service to produce further information or evidence regarding the reasons for the applicant's expulsion. On 26 July 2007, the Sofia City Court dismissed the appeal, and found inter alia that the classified internal document had to be regarded as an official certification that the first applicant was a threat to national security and that as such it was binding on the court. Relying in particular on Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy), the applicants complained about the deportation order against Mohammad Rasoul Madah.

The Court ruled:

Article 8:
The Court found a violation of Article 8.
The Court found that the deportation order was issued on the basis of a purely internal assessment of undisclosed information. The Court also found that the domestic court dismissed the appeal against the deportation order, considering itself bound by the declaratory statement and failing to examine the existence of a factual basis for the order. On this basis, the court found that the applicants did not enjoy the minimum degree of protection against arbitrariness inherent in the concept of lawfulness within the meaning of the Convention. If the December 2005 deportation order were to be enforced, the resulting interference with the applicant's family life would be in violation of Article 8 of the Convention.

Article 13:
The Court found a violation of Article 13 in relation to Article 8.
The Court reiterated its finding that the domestic court did not carry out a proper examination of the executive's assertion that the first applicant presented a national security risk as it did not examine the information and evidence allegedly supporting the view that the applicant presented a threat to the national security. Also, the domestic court did not engage in a meaningful analysis of the proportionality of the first applicant's expulsion. On this basis, the Court concluded that the judicial review proceedings did not comply with the requirements of Article 13.

The Court dismissed the rest of the applicant's claim for just satisfaction.

For the full text of the judgment please visit: ECtHR: Madah and Others v. Bulgaria (Application No. 45237/08)

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Burden of proof
Effective remedy (right to)
Family unity (right to)