21 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN BULGARIA
stated that only a substantial breach of the rules of the
administrative procedure is a ground to repeal the
administrative order as unlawful. According to the SAC,
“in the case, not hearing the party in the administrative
procedure prior to issuing the detention order is not a
material breach of administrative procedural rules”. The
case concerned detention of an asylum seeker who while
detained managed to provide proof that he had been
registered as an asylum seeker and, he met the legal
conditions for the less coercive measure of regular
reporting. After several months of detention, he was
released in Bulgaria, but the court did not find his
detention order to be unlawful.
According to the CJEU,85 observance of the rights of the
defence is a fundamental principle of EU law, in which the
right to be heard in all proceedings is inherent. The right
to be heard “must apply in all proceedings which are liable
to culminate in a measure adversely affecting a person”.86
In order for a stateless person to be heard prior to
imposing a detention order on him or her, there must be a
space and means for that. Access to free interpretation
services is important in cases of persons who do not
speak the language of the authorities. More importantly,
however, the authorities should recognise the
significance of taking the time and giving the space to
hear the person. Currently in Bulgaria removal and
detention orders are issued simultaneously, even in cases
of persons who have spent their lifetime in Bulgaria,
simply because these persons were identified as residing
irregularly in the country. Such was the case of Mr. H.,
who had lived in Bulgaria for 24 years when he was issued
a removal order and detained. Although he spoke fluent
Bulgarian, he was not ‘heard’ about the fact that he was
stateless and there was no country to which he could be
removed. It was only from behind the walls of the
detention centre that Mr. H. managed to obtain a
recommendation letter from the mayor of the village
where he had lived, which gave assurance that there was
no risk of his absconding as he was well known by
everybody in the village and had fully integrated there.
One of Mr. H.’s fellow villagers provided all the necessary
documentation required by law in order to ‘guarantee’
him.87 Only after Mr. H. spent four months in detention
and was severely re-traumatised,88 was a less coercive
measure in the form of regular reporting imposed on him.
Although the law formally stipulates that detention is
a measure of last resort that can be imposed only if less
coercive measures could not be applied effectively,
that provision remains only on paper, if the right to be
heard is not respected in practice. Mr. H.’s detention for
four months was arbitrary also because his removal order
did not state a destination country, but he was assigned to
be a citizen of Bosnia and Herzogovina. However, later on
the authorities realised that neither Bosnia and
Herzegovina, nor Serbia recognise Mr. H. as a citizen. A
Migration Directorate official told him that “[we] cannot
find anything about you”. If the authorities had heard Mr.
H. before imposing the removal order on him, they would
have received the necessary information upon which to
act differently and lawfully.
Another issue of concern is hearing of detainees by a
court in Bulgaria. In spite of the increasing recourse to
immigration detention, the number of cases that reach
the court for review of the lawfulness of detention orders
remains insignificant. This is due to a number of factors:
according to Bulgarian law, the term to appeal detention
orders starts from the date of the factual detention of the
person and not from the date of properly notifying
(serving) the detention order. Migrants sign detention
orders without knowing the reasons for being detained
and the remedies against that. The detention orders are
in the Bulgarian language and are rarely translated.
Judicial control of detention orders is not automatic, but
the detainee has to write (in Bulgarian) and submit an
appeal to the court within fourteen days from the start of
detention. Moreover, detainees have to find and engage a
lawyer by themselves. Although in 2013 the Bulgarian
Law on Legal Aid was amended to introduce a right to
legal aid for immigration detainees, access to it has
remained difficult and the new legal provisions have not
been applied in practice. Even if an appeal against a
detention order reaches the court, the Bulgarian law
provides that participation of the detainee in the case “is
not obligatory”.89 With no legal obligation for the
detention authority to escort the detainee to the court
hearing, this often does not happen. Thus, in the case of
the asylum seeker mentioned above in relation to the
Judgment of SAC of 12 May 2016 on the right to be
heard, the detainee was not brought by the Migration
Directorate to the hearing in the court, but the court still
required that the detainee pay the 30 BGN
(approximately 15 Euro) fee for the interpreter to attend
the hearing.90
Unfortunately, both administrative and judicial
authorities in Bulgaria still believe that checks conducted
using the information system of the Ministry of Interior,
which reveal that the foreigner does not have a registered
lawful entry in the country or no residence permit, are
sufficient to issue removal and detention orders against
them. So far the SAC of Bulgaria has not recognised that
failure to hear the person upon issuing a detention order
results it its unlawfulness. Thus, in the Judgment of 12
May 2016 relating to case No.1747/2016, the SAC
With regard to review of the length of detention, the
Bulgarian law requires the director of the detention
centre to inform the Court of the detainee’s case every
six months. The Court then decides whether to prolong
the detention with another six months, whether to
release the detainee or impose an alternative to
detention. The law provides that the decision of the court
is taken in a closed ‘hearing’, that is, without participation
of the detained person.91 This often means that the
decision of the Court is taken solely on the basis of the
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