AUAD v. BULGARIA JUDGMENT
31
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
89. The applicant alleged that if expelled to Lebanon, he would face a
real risk of ill-treatment or death. He relied on Article 3 of the Convention,
which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
A. The parties’ submissions
90. The Government submitted that the applicant’s fears were
groundless in view of the prohibition in section 44a of the Aliens Act 1998
on the expulsion of aliens to a country where their health or life would be in
jeopardy. The order to expel him had been intended to protect the national
security of Bulgaria. However, its enforcement was subject to the provisions
of section 44a, which coincided with the principles underlying Articles 2, 3
and 5 of the Convention. The practice in such cases was for the competent
authorities, which worked in close cooperation with the Ministry of Foreign
Affairs and non-governmental organisations, to verify the issue upon
expulsion of their own motion. The Ministry of Foreign Affairs kept an
updated list of safe third countries that could receive individuals in the
applicant’s position. The authorities were thus complying with the absolute
prohibition of Article 3 of the Convention, and, unlike the situation
obtaining in Saadi v. Italy ([GC], no. 37201/06, ECHR 2008-...), were not
seeking to balance national security considerations against the risk of
ill-treatment faced by the applicant. The bar in section 44a applied to all
aliens, including those subject to expulsion orders on national security
grounds.
91. The applicant replied that the Government failed to say anything
about the risk that he faced in Lebanon. As for their reliance on section 44a,
there existed no mechanism to ensure its effective application. The only
opportunity for him to invoke that provision to prevent his expulsion to
Lebanon had been in the proceedings for judicial review of the expulsion
order. However, the Supreme Administrative Court had held that the point
was irrelevant. In any event, the only procedure in which the applicant could
prove that he risked death or ill-treatment were asylum proceedings. When
examining his asylum request, the State Refugees Agency had found that
risk to be real, based as it was on the applicant’s personal circumstances and
the general situation in the Palestinian refugee camps in Lebanon. On that
account it had granted him humanitarian protection. The risk could therefore
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