AUAD v. BULGARIA JUDGMENT
41
claim that there existed a tacit or an express refusal to stay the enforcement
of the order for his expulsion by reference to section 44a.
116. The applicant submitted that section 44a did not have direct
application. He had raised the issue of risk in the proceedings for judicial
review of the expulsion order, which was the only available legal avenue
where such issues could be addressed. However, the Supreme
Administrative Court had said that the issue was irrelevant.
B. The Court’s assessment
117. The Court considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared admissible.
118. On the merits, the Court must start by examining which of the
applicant’s substantive complaints in relation to his expulsion were
arguable, because the scope of the obligation under Article 13 varies
depending on the nature of the applicant’s complaint (see, as a recent
authority, A. v. the Netherlands, cited above, § 157).
119. Article 8 not being applicable (see paragraphs 111 and 112 above),
the applicant’s claim under Article 13 in conjunction with Article 8 is not
arguable. It is, then, not necessary to establish whether the Supreme
Administrative Court subjected the allegation that the applicant represented
a national security risk to a genuine examination or whether it gave
consideration to the question whether the expulsion amounted to a
disproportionate interference with the applicant’s right to respect for his
private or family life (see, mutatis mutandis, A. v. the Netherlands, cited
above, § 160, and contrast C.G. and Others v. Bulgaria, §§ 60-64, and Raza,
§ 63, both cited above).
120. By contrast, the Court’s findings in paragraphs 101-103 above
show that the applicant’s claim under Article 3 was arguable. He was
therefore entitled to an effective remedy in that respect. The notion of an
effective remedy in such circumstances has two components. Firstly, it
imperatively requires close, independent and rigorous scrutiny of the claim
that there exist substantial grounds for fearing a real risk of treatment
contrary to Article 3 (see M.S.S. v. Belgium and Greece, cited above, § 293,
with further references). That scrutiny must be carried out without regard to
what the person may have done to warrant expulsion or to any perceived
threat to the national security of the expelling State (see Chahal, cited
above, 151 in fine). The second requirement is that the person concerned
should have access to a remedy with automatic suspensive effect (see Čonka
v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002-I, and Gebremedhin
[Gaberamadhien] v. France, no. 25389/05, § 66 in fine, ECHR 2007-II;
Muminov v. Russia, no. 42502/06, § 101, 11 December 2008; Abdolkhani
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