FIFTH SECTION

CASE OF SADAYKOV v. BULGARIA

(Application no. 75157/01)

JUDGMENT

STRASBOURG

22 May 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sadaykov v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
and ClaudiaWesterdiekSection Registrar,
Having deliberated in private on 29 April 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 75157/01) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Muslim Adnanovich Sadaykov, a Russian national born in 1972 and living in Grozny, Chechnya, the Russian Federation (“the applicant”), on 2 May 2000.
2.  The applicant was represented before the Court by Ms Y. Vandova, a lawyer practising in Sofia, Bulgaria. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. The Government of the Russian Federation, having been informed on 27 March 2007 of their right to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not avail themselves of this opportunity.
3.  The applicant alleged, in particular, that his detention pending deportation had been unlawful and that he had not been able to have the matter reviewed by a court.
4.  On 20 March 2007 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the lawfulness of the applicant's detention pending deportation and the lack of judicial review thereof to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant, who was born in Grozny, Chechnya, settled in Varna, Bulgaria, in 1994, after finishing his university studies. Between 24 September 1995 and 3 November 1999 he was prosecuted and tried on charges of attempted murder and illegal possession of explosives, contrary to Articles 116 § 1 (6) and 339 § 1 of the Criminal Code of 1968. In a final judgment of 3 November 1999 he was acquitted of the first charge and found guilty of the second, and sentenced to two years' imprisonment. As he had already spent a longer period of time in pre‑trial detention, on 8 November 1999 he was released from prison (for a detailed description of these events, see the admissibility decision Sadaykov v. Bulgaria (dec.), no. 75157/01, 20 March 2007).
6.  On 8 November 1999 the applicant was re‑arrested on his way out of prison. This happened because in a letter of 5 November 1999 the Varna deputy regional prosecutor had informed the Regional Department of the Ministry of Internal Affairs (“the RDMIA”) that during his trial the applicant had threatened prosecutors and judges that he would “deliver justice” after his release. Apart from that, the validity of the applicant's Russian passport and of his permit to reside in Bulgaria had expired. As a result, on 8 November 1999 the head of the RDMIA ordered that the applicant be brought immediately to the border by force and that he be banned from entering Bulgaria until 1 November 2009. The order was based on sections 41(2) and 10(3) and (6) of the 1998 Aliens Act (see paragraphs 9 and 10 below) and was reasoned as follows: “[the applicant] threatens public order and has been charged under Articles 116 and 339 § 1 of the [1968] Criminal Code”. The order also stated that it was to be enforced immediately and was subject to appeal in accordance with the provisions of the 1979 Administrative Procedure Act (see paragraphs 13 and 14 below).
7.  Upon his arrest the applicant was informed about the order: he signed it, and stated in writing that he had familiarised himself with its contents. The applicant alleged that he had not been given a copy of it, whereas the Government averred that he had been provided with one. The applicant also alleged that after his arrest he had not been allowed to contact a lawyer. The Government denied this, stating that the applicant's brother was apparently well aware of his situation, as on 11 November 1999 he had managed to bring a complaint in this regard to the attention of a non‑governmental organisation, the Human Rights Committee, which had enquired of the Minister of Internal Affairs about the applicant's case.
8.  After his arrest the applicant was brought to a detention facility in Varna, where he was kept until 13 November 1999. On that day he was provided with a provisional passport and escorted to Ruse, on the Danube River, where he was supposed to board a train to Moscow. However, during passport control at the border checkpoint it turned out that since September 1995 the applicant had been under a prohibition order not to leave Bulgaria, which was still in force. He was then taken back to the detention facility in Varna, where he spent three more days, until the prohibition was lifted. On 15 November 1999 he wrote to the head of the RDMIA, asking for his assistance in clearing the obstacles to his leaving Bulgaria. On the same day the authorities bought the applicant a new train ticket to Moscow. On the following day, 16 November 1999, he was deported to the Russian Federation.
II.  RELEVANT DOMESTIC LAW
9.  Under section 41(2) of the 1998 Aliens Act („Закон за чужденците в Република България“), as in force at the relevant time, the Minister of Internal Affairs or an official authorised by him or her could issue an order for the taking of an alien to the border by force in the event that he or she had not left the country after the expiry of his or her residence permit. By section 42a(1) (presently section 42h(1)) of the Act, a ban on entering the country had to be ordered if the grounds under section 10 were met.
10.  The ground under section 10(1)(3) of the Act, as in force at the material time, was the existence of information that the alien was a “member of a criminal gang or organisation, or [was] engaged in terrorist activities, smuggling, or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies with a possible dual use, or in the illicit trafficking of intoxicating and psychotropic substances or precursors or raw materials for their production”. The ground under section 10(1)(6) of the Act was that the alien had “committed, on the territory of the Republic of Bulgaria, a wilful offence punishable by more than three years' imprisonment”.
11.  Section 44(3) of the Act, as in force at the relevant time (presently, with slightly modified wording, section 44(5)), provided that if there were impediments to the deported alien's leaving Bulgaria or entering the destination country, he or she was under a duty to report daily to his or her local police station. Under section 44(4) of the Act, as in force at the material time (presently, with slightly modified wording, section 44(6)), aliens who were being deported could be placed in holding facilities if this was deemed necessary by the Minister of Internal Affairs or officials authorised by him or her. The new subsection 8 of section 44, added in April 2003, explicitly states that the placement of aliens in holding facilities pending their deportation is to be done pursuant to a special order, separate from the one for taking them to the border by force. The order has to moreover specify the need for the placement and its legal grounds. In addition, the new subsection 9, also added in April 2003, provides that the procedure for the temporary placement of aliens in holding facilities is to be laid down in a regulation issued by the Minister of Internal Affairs. The Minister issued such a regulation on 29 January 2004 („Наредба № І-13 от 29 януари 2004 г. за реда за временно настаняване на чужденци, за организацията и дейността на специалните домове за временно настаняване на чужденци“, обн., ДВ, бр. 12 от 13 февруари 2004 г.).
12.  Section 49(1) of the regulations for the application of the Act, adopted in May 2000, provides that an alien may be placed in a holding facility until being taken out of the country if this is expressly stated in the order for his or her taking to the border by force or his or her expulsion. Section 49(2) of the Regulations states that the procedure for the placement of aliens in these facilities until their deportation is to be ordained by the Minister of Internal Affairs.
13.  Section 46 of the Act, as in force at the relevant time, provided that orders made under sections 40 to 44 thereof could be challenged in accordance with the provisions of the 1979 Administrative Procedure Act, that is, they were subject to an appeal before the higher administrative authority and judicial review.
14.  According to the 1979 Administrative Procedure Act, as in force at the relevant time, an administrative appeal had to be made within seven days from the notification of the person concerned of the administrative decision (section 22(1) of the Act). The higher administrative authority had to rule within two weeks (section 29(1) of the Act). If it failed to do so, or if the ruling was negative, the aggrieved person was entitled to lodge an application for judicial review (sections 29(2) and 35(2) of the Act). The aggrieved person could alternatively skip this step and directly seek judicial review of the original decision. However, this was only possible if the time‑limit for lodging an administrative appeal – minimum seven days – had already lapsed (section 35(2) of the Act).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) OF THE CONVENTION
15.  The applicant alleged that his detention pending deportation had been unlawful and had lasted an unreasonably long time. He relied on Article 5 § 1 (f) of the Convention, which reads as follows:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
A.  The parties' submissions
16.  The Government submitted that the applicant had failed to exhaust domestic remedies. Under section 46 of the 1998 Aliens Act, the applicant had had the opportunity of appealing against the order for his deportation to a higher administrative authority, or of seeking its review by the courts. The applicant had done neither, nor had he requested a stay of the execution of the order, despite having been served with it on 8 November 1999. His assertion that after his arrest he had not been allowed to contact a lawyer was not corroborated by a single piece of evidence. His brother was apparently well aware of his situation and had managed to send a complaint to the Human Rights Committee as early as 11 November 1999.
17.  The applicant said that he had indeed been detained as a result of the deportation order, which had been subject to appeal and judicial review. However, this by no means meant his detention had been amenable to judicial review as well. Bulgarian law, as it stood at the relevant time, did not lay down any procedure for reviewing the legality of detention imposed pursuant to a deportation order. Moreover, the available material did not allow the conclusion that he had been given a copy of that order. Nor had the Government shown that he had been allowed to contact a lawyer to challenge it. Also, he had not been aware of the contents of the provisions of the 1998 Aliens Act which regulated the lodging of appeals and applications for judicial review of deportation orders, because at the time when that Act had been promulgated, he had been in pre-trial detention. Having no copy of the order, which had in any case given no reasons, coupled with the practical realities of his situation, made appealing against it a merely theoretical possibility.
B.  The Court's assessment
1.  Admissibility
18.  The Court considers that the question whether the applicant has exhausted domestic remedies in respect of his complaint under Article 5 § 1 (f) about the lawfulness of his detention is closely linked with the merits of his complaint under Article 5 § 4 about the possibility to have this matter reviewed by a court. To avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies in respect of the complaint under Article 5 § 1 (f) should be joined to the merits and reserved for later consideration (see Öcalan v. Turkey[GC], no. 46221/99, § 61 in fine, ECHR 2005‑IV).
19.  The Court further considers that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.
2.  Merits
20.  The Court points out at the outset that, while the Contracting States are entitled to control the entry and residence of non‑nationals on their territory, this right must be exercised in conformity with the provisions of the Convention, including Article 5 (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 96,ECHR 2006‑XI). Paragraph 1 of this Article circumscribes the circumstances in which individuals may be lawfully deprived of their liberty. Seeing that these circumstances constitute exceptions to a most basic guarantee of individual freedom, only a narrow interpretation is consistent with the aim of this provision (see, as recent authorities, Čonka v. Belgium, no. 51564/99, § 42 in limine, ECHR 2002‑I; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 396, ECHR 2005‑III).
21.  The Court is satisfied that the applicant's deprivation of liberty fell within the ambit of Article 5 § 1 (f), as he was arrested and detained for the purpose of being deported from Bulgaria. That provision 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. All that is required under sub‑paragraph (f) is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1862‑63, § 112).
22.  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 under Article 5 § 1 (f) (ibid., p. 1863, § 113). On this point, the Court observes that the authorities were indeed taking steps to take the applicant out of the country throughout the entire period of his deprivation of liberty between 8 and 16 November 1999. It is therefore satisfied that this condition was met as well. It is true that a delay of three days occurred after 13 November 1999, due to certain administrative formalities. However, as these were dealt with quite rapidly, it could be deemed that the deportation proceedings were conducted diligently (see paragraph 8 above).
23.  However, the Court must also examine whether the applicant's detention was “lawful” for the purposes of Article 5 § 1 (f), with particular reference to the safeguards provided by the national system. Where the “lawfulness” of detention is in issue, including whether “a procedure prescribed by law” has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal, p. 1864, § 118; and Čonka, § 39, both cited above; see also Saadi v. the United Kingdom[GC], no. 13229/03, §§ 67‑74, 29 January 2008). Thus, the words “in accordance with a procedure prescribed by law” do not merely refer back to domestic law; they also relate to the quality of this law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness (see Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001‑II, citing Amuur v. France, judgment of 25 June 1996, Reports1996‑III, pp. 850‑51, § 50).
24.  The Court notes that Bulgarian law, as it stood at the relevant time, made a distinction between an order for an alien's deportation and an order for his or her detention pending such deportation. Section 44(4) of the 1998 Aliens Act, in its version applicable at the time of the events at issue in the present case, made it clear that the authorities, having ordered an alien's deportation from Bulgaria, had to additionally assess the need to detain him or her pending such deportation. That position was further elucidated with the adoption in May 2000 of the regulations for the application of the 1998 Aliens Act, whose section 49(1) specifically provides that an alien may be placed in a holding facility until being taken out of the country only if this is expressly stated in the order for his or her taking to the border by force or his or her expulsion (see paragraph 12 above), and with the April 2003 amendment to section 44 of the Act, which provided that detention pending deportation could be imposed only on the basis of an additional order to that effect (see paragraph 11 above).
25.  However, the order against the applicant did not state that he was to be detained prior to deportation. It merely directed that he was to be deported forthwith (see paragraph 6 above). Even if the latter may be taken to imply that he could be subjected to some sort of physical constraint for the purpose of being taken to the border, it can hardly be considered that it additionally authorised his detention for a period which in fact lasted eight days but was apparently not subject to an upper limit (see, mutatis mutandis, Amuur, cited above, p. 852, § 53 in fine). Indeed, such detention was only possible under Bulgarian law if deemed necessary by the authorities, whereas the order against the applicant gave no consideration to this matter (see, mutatis mutandis, Dougoz, cited above, § 56).
26.  Bearing in mind that the exceptions to the right of liberty are to be construed strictly (see paragraph 20 above), the Court finds that the applicant's detention between 8 and 16 November 1999 did not have a sufficient legal basis.
27.  There has therefore been a violation of Article 5 § 1 (f) of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
28.  The applicant complained that he had not been able to have the lawfulness of his deprivation of liberty reviewed by a court. He relied on Articles 5 § 4 and 13 of the Convention, which provide as follows:
Article 5 § 4
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Article 13
“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.”
A.  The parties' submissions
29.  The parties' submissions have been summarised in paragraphs 16 and 17 above.
B.  The Court's assessment
1.  Admissibility
30.  The Court considers that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.
2.  Merits
31.  According to the Court's established case-law, Article 5 § 4 provides a lex specialis in relation to the more general requirements of Article 13. The Court will accordingly examine the applicant's complaint solely in connection with the former provision (see Chahal, p. 1865, § 126; and Mubilanzila Mayeka and Kaniki Mitunga, § 110, both cited above; see also Nasrulloyev v. Russia, no. 656/06, § 79, 11 October 2007).
32.  Under Article 5 § 4, all persons deprived of their liberty are entitled to a review of the lawfulness of their detention by a court, regardless of the length of confinement. 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 Al-Nashif v. Bulgaria, no. 50963/99, § 92, 20 June 2002). For this reason, Article 5 § 4 stipulates that a remedy must be made available during a person's detention to allow that person 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, Nasrulloyev, cited above, § 86).
33.  The Court observes at the outset that the fact that the applicant was released on 16 November 1999 upon being deported to the Russian Federation does not render his complaint devoid of purpose, since his deprivation of liberty lasted eight days (see Čonka, cited above, § 55 in limine).
34.  The Court, having carefully examined the materials in the file, is unable to agree with the applicant when he claims that he was not sufficiently made aware of the contents of the order for his deportation. Nor does the available evidence allow the Court to find that after his arrest he was not permitted to get in touch with a lawyer. The Court is accordingly satisfied that the applicant had the possibility of challenging the order in an administrative appeal or by way of judicial review (see paragraph 13 above). However, as has already been found above, the applicant's detention was not covered by this order. It is therefore not apparent that these avenues of redress were adequate or effective as means for vindicating his right to liberty. It is one thing for applicants to contest the decision to deport them, and quite another to challenge their deprivation of liberty pending deportation (see, mutatis mutandis, Ntumba Kabongo v. Belgium (dec.), no. 52467/99, 2 June 2005). Article 35 § 1 requires applicants to have recourse only to remedies which are sufficient to afford redress in respect of the breaches alleged, and whose existence is sufficiently certain (see Čonka, cited above, § 43). Article 5 § 4 also refers only to domestic remedies which are sufficiently certain (see Sabeur Ben Ali v. Malta, no. 35892/97, § 38 in limine, 29 June 2000; Kadem v. Malta, no. 55263/00, § 41 in fine, 9 January 2003; and Nasrulloyev, cited above, § 86). The Government have not referred to any example a person detained pending deportation having obtained his or her release by contesting the order for his or her deportation. This lack of precedents indicates the uncertainty of this remedy in practice (see, mutatis mutandis, Sakık and Others v. Turkey, judgment of 26 November 1997, Reports of Judgments and Decisions1997‑VII, p. 2625, § 53).
35.  Even assuming, however, that by initiating proceedings against the order for his deportation the applicant would have been able to indirectly provoke a review of the lawfulness of his detention pending deportation, the Court still does not consider that the Government have made out their claim that the procedures which they referred to (see paragraph 16 above) constituted effective remedies for the purposes of Articles 5 § 4 and 35 § 1. It is clear that an appeal to the higher administrative authority – which in the instant case meant the Minister of Internal Affairs or one of his subordinates – would not have satisfied the requirements of Article 5 § 4, which states that proceedings against detention have to be brought before a “court”, a term implying, firstly, independence of the executive and of the parties to the case (see Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 44, § 24 in limine) and, secondly, guarantees of a judicial procedure (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 November 1970, Series A no. 12, pp. 40‑41, § 76; and also, mutatis mutandis, Chahal, cited above, p. 1866, § 130). As regards an application for judicial review, the Court notes that it could only be lodged if the administrative avenues of appeal had already been exhausted or if the time‑limit for their exhaustion had expired (see paragraph 14 above). In these circumstances, and bearing in mind that the applicant was deported eight days after his arrest, the Court does not consider that he had a realistic possibility of using this remedy to obtain a speedy review of his detention pending deportation (see, mutatis mutandis, Čonka, cited above, §§ 45, 46 and 55). It does not seem that the applicant had at his disposal any other avenues of redress, and Bulgarian law does not provide for a general habeas corpus procedure applying to all kinds of deprivation of liberty (see Stoichkov v. Bulgaria, no. 9808/02, § 66, 24 March 2005).
36.  The Court thus finds that it has not been shown that the applicant had a meaningful opportunity of having the lawfulness of his detention pending deportation decided speedily by a court. It therefore dismisses the Government's preliminary objection in respect of Article 5 § 1 (f) of the Convention (see paragraph 16 above) and holds that there has been a violation of Article 5 § 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
38.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage. He submitted that, after having spent many years in pre‑trial detention in a foreign country, he had been unlawfully detained prior to his deportation. The conditions of his detention had been very harsh and he had not been given a practical possibility of challenging its lawfulness.
39.  The Government did not comment on the applicant's claim.
40.  The Court considers that the applicant has sustained non‑pecuniary damage on account of the breaches of Article 5 §§ 1 and 4 found in his case. Ruling in equity, as required under Article 41 of the Convention, it awards him EUR 2,500, plus any tax that may be chargeable.
B.  Costs and expenses
41.  The applicant sought the reimbursement of EUR 3,000 incurred in lawyers' fees for the proceedings before the Court, and of EUR 50 for clerical expenses. He did not submit any documents in support of his claim.
42.  The Government did not comment on the applicant's claim.
43.  According to the Court's case‑law, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. To this end, Rule 60 §§ 2 and 3 of the Rules of Court stipulate that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”. In the present case, noting that the applicant has failed to produce any documents – such as itemised bills or invoices – in support of his claim, the Court does not make any award under this head.
C.  Default interest
44.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the remainder of the application admissible;

2.  Holds that there has been a violation of Article 5 § 1 (f) of the Convention;

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

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement;
(b)  that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President