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AL-NASHIF v. BULGARIA JUDGMENT
C. The Aliens Act of December 1998 and developments in its
application and interpretation
1. The Aliens Act at the relevant time
68. Section 40 (1)(2) in conjunction with Section 10 (1)(1) provides that
the Minister of the Interior or other officials authorised by him may revoke
a foreigner's residence permit “where by his acts he has endangered the
security or the interests of the Bulgarian State or where there exists
information that he acts against the security of the country”.
Section 42 provides that the Minister of the Interior or other officials
authorised by him may order a foreigner's deportation where “his presence
in the country poses a serious threat to national security or public order”.
69. Section 44 (4), insofar as relevant, provides as follows:
“Until [his] ... deportation ... the foreigner may be placed in a specialised centre at
the discretion of the Minister of the Interior or other officers authorised by him.”
70. Section 47 provided, as in force at the relevant time:
“(1) Orders issued under Chapter V Part 1 imposing administrative measures which
directly concern national security shall not be subject to appeal.
(2) These orders shall state only their legal ground.”
2. Application and interpretation
71. The Bulgarian courts have differed on the question whether a mere
reference to national security in the grounds of an order under the Aliens
Act is sufficient to declare an appeal against such an order inadmissible or
whether some proof that national security is indeed at stake should be
required (see paragraphs 38-41 above and the Supreme Administrative
Court's judgment of 26 July 2000 in case 5155-I-2000).
72. In December 2000 Parliament adopted a law on interpretation of
Section 47 of the Aliens Act, clarifying that a court examining the
admissibility of an appeal against an administrative decision citing as a legal
basis Section 10 (1)(1) of the Aliens Act (“directly related to national
security”) should automatically declare the appeal inadmissible without
collecting evidence. A motion by 56 members of Parliament and by judges
of the Supreme Administrative Court to declare that interpretative law,
insofar as relevant here, unconstitutional was rejected by the Constitutional
Court on 29 May 2001 on formal grounds.