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