16
AL-NASHIF v. BULGARIA JUDGMENT
The unavailability of judicial review could lead to violations of Article 3
of the Convention if an alien was deported to a country where he or she
risked inhuman treatment.
The judges further stated, inter alia:
“The Aliens Act allows the confinement [of an alien pending deportation] at the
discretion of the Ministry of the Interior, without limitation in time ... Neither that Act
nor any other law provides for any possibility of review ... [However,] the Convention,
in its Article 5 § 4, requires a remedy ...
Deportation ... may constitute an interference with family life [under Article 8 of the
Convention]. Therefore, an assessment must be made as to whether such a measure is
necessary in a democratic society in the interests of national security ...
National security is one of the values of a democratic society, as much as
fundamental rights and freedoms are. A domestic legal provision would be contrary to
the Convention if there were no guarantees against administrative abuse and
arbitrariness. These guarantees must be provided for by law. The balance between
fundamental rights and the public interest must be assessed in every case by a court or
another body independent from the executive.”
4. The amendments to the Aliens Act of April 2001
78. In April 2001 the Aliens Act was amended. The possibility of filing
an administrative appeal to the Minister of the Interior was introduced
(Section 46, as amended). A new Section 44 a stated that an alien should not
be expelled to a country where his life, liberty or physical integrity were
endangered.
The rule providing that decisions citing national security as grounds need
not state any reasons and are not amenable to judicial review remains in
force (Section 46 (2) and (3)). The law does not require any consideration of
the question whether a deportation decision would interfere with the alien's
right to family life and, if so, whether a fair balance has been struck between
the public interest and the rights of the individual concerned.
D. The Religious Denominations Act of 1949 and the Statute of the
Muslim Religious Denomination in Bulgaria
79. Sections 6 and 30 of the Religious Denominations Act provide, inter
alia, that the statute and rules of a religious denomination shall be submitted
for approval to the Council of Ministers or to one of the Deputy Prime
Ministers. Where they contain provisions which are contrary to the law,
public order, or morals, the Council of Ministers may require their
amendment, or refuse to approve them.
80. Section 30 also provides that the statute and rules of the religious
denomination must regulate all matters related to its finances and internal
self-regulation, insofar as these matters are not regulated by the Religious