Last Updated on May 3, 2019 by LawEuro
Communicated on 12 December 2018
FIFTH SECTION
Application no. 46517/18
S.A.
against Bulgaria
lodged on 3 October 2018
STATEMENT OF FACTS
The applicant, Mr S.A., is an Afghan national, who was born in 1975 and is currently detained in Sofia, Bulgaria. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Mr G.I. Voynov and Ms I. Savova, lawyers practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2001 the applicant escaped Afghanistan, Taliban-dominated at the time, and reached Bulgaria. The Bulgarian authorities granted him a humanitarian status in 2004. He fathered a child with a Bulgarian citizen in 2009. An ethnic Tadjik, he was Muslim between birth and 2010, when he converted to Christianity through an official ceremony in Bulgaria.
In 2013 he decided to return to Afghanistan under a programme run by the International Organisation for Migration. He asked for the termination of his humanitarian status in Bulgaria and his request was granted in May 2014. His Bulgarian child and the latter’s mother remained in Bulgaria.
Upon his return to Afghanistan, he started teaching the Persian language in Kabul. Soon after his arrival in Afghanistan, colleagues discovered that he had converted to Christianity and threw his bible in the bin. Thereafter, as the news spread quickly, he was repeatedly subjected to harassment by members of the general public and even by some of his distant relatives. Some people threw stones at him. He had to keep moving between towns for four years in an attempt to escape the harassment, to no avail.
At some point in early 2017 the applicant applied for a visa to see his Bulgarian son who lived in Bulgaria. At the time this was the only lawful way for him to leave Afghanistan in order to seek anew humanitarian protection. At the end of March 2017 he was granted a visa for the duration of three months by the Bulgarian consulate service in Kabul. He travelled to Bulgaria in early April of the same year.
He applied for humanitarian protection in Bulgaria on 26 June 2017. In his application he claimed that he had been persecuted in Afghanistan because of his conversion to Christianity and that he feared for his safety upon return. The State Refugees Agency (the Agency) rejected his application on 30 June 2017. Formally the decision was to declare it inadmissible because it was treated as a “subsequent request” to the proceedings in 2004 and 2014 within the meaning of the law (Asylum and Refugees Act 2002, section 76b) and the officials found that no new information of relevance had been submitted. In practice, the Agency’s reasoning contained some assessment on the merits. In particular, they observed that the problems the applicant claimed to have experienced in Afghanistan could not be accepted as credible, given that he had managed to live in the country for about four years before leaving again. If the issues associated with his new religion had been serious enough, he would not have remained there for so long. In addition, the Afghan authorities had not demonstrated a negative attitude to him despite his conversion to Christianity, given that he had been allowed to leave the country legally and without obstacles. Moreover, the fact that he had a son with a Bulgarian citizen was not a new circumstance capable of affecting his situation. Observing that the applicant had not presented any new circumstances of relevance either for his personal status or for his country of origin, his application was found inadmissible and no proceedings for its examination on the merits were instituted.
The applicant did not bring judicial review proceedings in respect of the above decision. He turned to the Ombudsman instead, without relevant consequences.
Thereafter the applicant overstayed his Bulgarian visa and lived in a shelter (приют) in the countryside. The shelter was run by an orthodox Christian priest and the applicant taught children lodged by the priest in the same shelter.
On 4 May 2018 the applicant was arrested on a train which he had boarded after the police ascertained that his visa had expired. On the same date the head of the migration authorities within the police in Vidin issued two orders in his regard: (1) an order for his removal from the country and prohibition of his entry into the country for the period of one year, and (2) an order for his detention pending removal. On the basis of the second order the applicant was placed in a centre for temporary detention of foreigners in Sofia.
The applicant did not bring judicial review proceedings in respect of the order for his removal.
However, he challenged in court the order for his detention. The Vidin Administrative Court rejected his appeal on 26 June 2018, following which the applicant appealed further before the Supreme Administrative Court (the SAC). The SAC upheld the lower court’s decision in its entirety in a final decision of 26 October 2018.
On 14 May 2018 the applicant applied again before the Agency seeking humanitarian protection. His application was rejected on 30 May 2018 as inadmissible for lack of new evidence. He brought judicial review proceedings with the assistance of the Bulgarian Helsinki Committee. The Administrative Court Sofia City rejected his application in a final decision of 17 July 2018. The court found that the applicant had voluntarily given up his humanitarian status. Also, the available information did not point to a situation of generalised violence on a scale to justify real risk for anyone in the country. In addition, reports by international organisations, including the information provided by the United Nations High Commissioner for Refugees concerning the treatment in Afghanistan of people who had converted to Christianity, did not contain sufficient elements to conclude that the applicant personally risked ill-treatment. Furthermore, the applicant had voluntarily returned to his country in 2013 and had then left freely in 2017 without any obstacles to that by the authorities.
On 1 September 2018 the applicant received, from his close relatives who live in Afghanistan, copies of two documents. The first one was a summons addressed to him and dated 5 May 2017. The summons was signed by the head of security of the police and asked the applicant to report to the police station within a ten-day period, failing which he “would have no right to complain before any State body”. The second document was a separate letter of 10 July 2018 in which the same head of security informed the governor of the region in which the applicant lived that the applicant was wanted in connection with reports that he had converted to Christianity, which represented the crime of apostasy in the country. People were requested to report any information about his whereabouts and he was considered in hiding.
On 3 September 2018 the applicant again applied for humanitarian protection in Bulgaria. In support of his application he submitted the two documents (summons and letter) referred to immediately above. The authorities did not rule on that application. Instead, on 21 September 2018 representatives of the Agency informed him that they will do so within 14 days.
On 23 September 2018 officials from the temporary detention centre for foreigners where the applicant was being kept took him to the embassy of Afghanistan in Bulgaria in order to confirm his identity. There he was allegedly told by the Afghan authorities that his deportation was planned for 9 October 2018 and that the Bulgarian authorities had sought their assistance in the process.
On 3 October 2018 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court, asking the Court to order the Bulgarian authorities not to remove him to Afghanistan.
On 5 October 2018 the applicant was handed a decision, taken by the Agency on 3 October 2018, in which the Agency had dismissed as inadmissible his latest application for humanitarian protection of 3 September 2018. As regards in particular the two new documents submitted by the applicant, the Agency made reference to a letter by the State Agency for National Security addressed to it, which stated that – as of late – it had become a common practice for foreigners whose requests for international protection had been turned down to use falsified pieces of evidence in support of their new applications. The Agency did not examine the specific documents submitted by the applicant but observed instead that the applicant had presented before it generally known information with the sole purpose of having his application granted.
The Court granted the applicant’s request for an interim measure under Rule 39 of the Rule of Court on 8 October 2018.
On 9 October 2018 the applicant challenged the Agency’s latest refusal before the Administrative Court Sofia City. He also asked the court to suspend his removal to Afghanistan given that it would expose him to the risk of inhuman and degrading treatment or punishment. On 11 October 2018 the court rejected his request to suspend his removal, observing that the order for his removal had entered into force. A different formation of the Administrative Court Sofia City scheduled a hearing, for 15 November 2018, on the applicant’s appeal against the latest Agency’s refusal of his request for humanitarian status.
B. Relevant domestic law
According to Article 27 of the Constitution of 1991, Bulgaria is to grant asylum to aliens persecuted on account of their opinions or activities in support of internationally recognized rights and freedoms and the conditions and procedure for that are to be established by law.
Section 4(3) of the Asylum and Refugees Act 2002 provides that individuals who have been granted protection under the Act or have entered Bulgaria to seek such protection cannot be returned to the territory of a country where their life or freedom are at risk on account of their race, religion, nationality, membership of a social group, their political opinions or views, or where they may face a risk of torture or other forms of cruel, inhuman or degrading treatment or punishment.
Section 9(1)(3) of the Asylum and Refugees Act 2002 provides that individuals forced to leave or stay out of their country of origin because they faced a real risk of suffering death or ill‑treatment as a result of an internal or an international conflict are to be granted humanitarian protection. Section 9(2) makes it clear that the risk may stem from the authorities or from organisations against which the authorities are unable or unwilling to act. Section 9(5) provides that aliens may not be granted humanitarian protection if in part of their country of origin there is no real risk of serious encroachments and there they can freely and lastingly enjoy effective protection. Under section 75(2), when the authorities determine an application for international protection they have to take into account all relevant facts concerning the applicant’s personal situation, country of origin, or relations with other countries. The section also provides that when an applicant’s statement is not supported by evidence, it must be presumed to be true if the applicant has endeavoured to substantiate his or her application and has provided a good explanation for the lack of evidence. Section 58(9) requires the authorities processing applications for humanitarian protection to obtain written comments by the State Agency for National Security.
Section 67(1) of the Asylum and Refugees Act 2002 provides that the enforcement of mandatory administrative measures, such as depriving of the right to be in the national territory, return, expulsion, and prohibition of entry into the country, is suspended until the proceedings for international protection have ended with a final decision.
According to section 76(b) of the Asylum and Refugees Act 2002, within a 14-day period counted from the filing of a subsequent application for international protection, the interviewing official decides, solely on the basis of written evidence submitted by the alien and without interviewing him or her, whether to grant leave or not for examination on the merits of the alien’s application for protection.
Section 44a of the Aliens Act 1998prohibits expulsion in cases where an individual is exposed to a risk to his life and freedom, or a risk of persecution or inhuman or degrading treatment.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention about there being a real and significant risk of his life being endangered or of him being subjected to ill-treatment if removed to Afghanistan or to a third country which cannot guarantee that would not have him sent in turn to Afghanistan.
Relying on Article 13, the applicant further complains about the absence of an effective domestic remedy in connection with his complaints above, in view of the fact that none of his applications for international protection had been examined on the merits with the related procedural guarantees stemming from the law, which guarantees included the suspension of the administrative measure ordering his removal from the country.
QUESTIONS TO THE PARTIES
1. In the light of the applicant’s claims and the documents which have been submitted, would the applicant face a risk of being subjected to treatment in breach of Articles 2 and/or 3 of the Convention, if the removal order against him were enforced (see Saadi v. Italy [GC], no. 37201/06, §§ 124‑27, ECHR 2008)?
2. Did the applicant have at his disposal an effective domestic remedy in respect of his complaint under Articles 2 and/or 3, as required by Article 13 of the Convention? In particular, did the proceedings in which the applicant’s applications for international humanitarian protection were rejected represent an effective domestic remedy under Article 13 of the Convention, taken in conjunction with Articles 2 and 3? Did those proceedings have a suspensive effect in respect of administrative orders for his removal from the country?
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