AL-NASHIF v. BULGARIA JUDGMENT
29
133. Quite apart from the general procedural guarantees which Article 1
of Protocol No. 7 to the Convention - not in force in respect of Bulgaria at
the relevant time - provides in all cases of expulsion of aliens, where there is
an arguable claim that such an expulsion may infringe the foreigner's right
to respect for family life, Article 13 in conjunction with Article 8 of the
Convention requires that States must make available to the individual
concerned the effective possibility of challenging the deportation or
refusal-of-residence order and of having the relevant issues examined with
sufficient procedural safeguards and thoroughness by an appropriate
domestic forum offering adequate guarantees of independence and
impartiality (no. 13718/89, Commission's decision of 15 July 1988,
unreported, no. 22406/93, Commission's decision of 10 September 1993,
unreported, no. 27794/95, Commission's decision of 14. October 1996,
unreported, and Shebashov v. Latvia (dec.), 9 November 2000,
no. 50065/99, unreported).
134. There is no doubt that the applicants' complaint that the deportation
of Mr Al-Nashif infringed their right to respect for their family life was
arguable. They were entitled, therefore, to an effective complaints procedure
in Bulgarian law.
135. It is undisputed, however, that all appeals filed by the first applicant
were rejected without examination on the basis of the Aliens Act, which –
as construed by the Ministry of the Interior and the Bulgarian courts in the
applicants' case and, later, in an interpretative Act of Parliament (see
paragraphs 70, 72 and 78 above) – provides that deportation decisions citing
“national security” as their ground need not state reasons and are not subject
to appeal. Where an appeal against such an order is submitted to a court, it
is not entitled to enquire whether genuine national security concerns are at
stake and must reject it. In the applicants' case the same approach was
adopted by the Ministry of the Interior, to which Mr Al-Nashif appealed
(see paragraph 36 above).
136. It is true that the scope of the obligation under Article 13 varies
according to the nature of the applicant's complaint under the Convention
(see the above cited Kudła judgment, § 157).
Where national security considerations are involved certain limitations
on the type of remedies available to the individual may be justified. As
regards secret surveillance and the use of secret information for screening
job candidates who would have access to sensitive information, Article 13
requires a remedy “as effective as it can be”, having regard to the fact that it
is inherent in any system of secret surveillance or secret checks that there
would
be
a
restricted
scope
for
recourse
(see
the
Klass and Others v. Germany judgment of 6 September 1978, Series A
no. 28, § 69, and the above cited Leander judgment, § 78). Nevertheless, the
remedy required by Article 13 must be effective in practice as well as in
law. In particular, in the Klass and Leander cases, the applicants had