20 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN BULGARIA
In fact, the need to establish one’s identity is a formal
ground for detention under Bulgarian national law.
According to Article 44, paragraph 6 of the LFRB,
detention is imposed when the foreigner “is unidentified,
hampers enforcement of the order or there is a risk of
absconding”. According to a recent analysis of 55 rulings
of the SCAC related to the detention of migrants, “(t)he
most common legal reason for issuing a detention order,
according to the reviewed court decisions, was that the
identity of the foreigner was not established”.79 At the
same time, it is noteworthy that the detention ground
under Article 44, paragraph 6 of the LFRB that the
foreigner is not identified, is not a detention ground
under Article 15, paragraph 1 of the EU Return
Directive and thus contradicts the EU Directive.
Another issue of concern in Bulgaria is that, upon
issuance of removal and detention orders, stateless
immigration detainees are usually ‘assigned’ to a
country of origin from which they have come to
Bulgaria.80 In other words, in their detention and removal
orders they are not identified as stateless. This is the case
both with persons who have recently entered Bulgaria, as
well as with persons who have spent decades in Bulgaria.
The practice of ‘attaching’ stateless persons to some
country can be inferred also from the statistics provided
in Section 2.4. above.
Thus, for example, in the case of Mr. A., who was detained
in Bulgaria from 2005 until 2012, the authorities
continued to refer to him as a citizen of Russia, regardless
of the fact that in a Ruling of June 2009 the Court had
noted that at an unspecified date the Migration
Directorate had received answers by the Ukrainian and
the Russian embassies in Bulgaria stating that Mr. A. was
not a citizen of either of the two countries.
In the case of Mr. H., who has lived in Bulgaria for the last
24 years, the Bulgarian authorities refer to him as a
citizen of Bosnia and Herzegovina, although he left his
country of origin during the Bosnian war and had never
had an identity document. “I have had only a birth
certificate. I have never had any other paper in my life”, he
recalls. Mr. H’s mother, who died when he was four years
old, was of Bulgarian origin. That is why he chose to come
to Bulgaria. Mr. H. speaks fluent Bulgarian and considers
himself a Bulgarian: “I seek a way to stay a Bulgarian
citizen. I have lived here for 24 years. These are not 24
hours or 24 months, but years”. Reminded of his removal
order issued in December 2015, he states: “I am already
old and cannot start my life anew”. His biggest fear is to
be expelled from Bulgaria. Mr. H. had previously been
subjected to multiple detentions of several days, but then
released. In 2015 a removal order was issued against him
and he spent four months at the Bousmantsi immigration
detention centre until he was released. Mr. H. refers to
the four months of his immigration detention as “the most
humiliating punishment” that he has suffered in his life.
It should be noted that unless detention serves a lawful
purpose, it is arbitrary.81 According to Article 5,
paragraph 1, “f” of the ECHR, immigration detention
should solely be for the administrative purposes of
preventing unlawful entry or to enforce removal. The
imposition of detention solely for the purpose of
administrative convenience is not lawful under
international law. In both cases of Mr. A. and Mr. H.
detention did not serve the purpose for which it was
imposed as no removal was possible. If the authorities had
provided space for the stateless persons to be heard
before detaining them, they should not have detained
them in the first place.
Mr. H. shares that he felt like a criminal during his
detention: he was fingerprinted and questioned as though
he had done something wrong. In detention he often had
high blood pressure and started to take medicine to
address heart problems. Mr. H. counted every day that he
spent detention. In his words, “to live in this place means
that you have died and when you come out of here, it is as
though you are born again”.
3.2 DECISION TO DETAIN AND PROCEDURAL
GUARANTEES
With regard to grounds for detention, the LFRB
transposes Article 15 of the EU Return Directive
2008/115/EC.82 According to Article 44, paragraph 6 of
the LFRB, detention is imposed when the foreigner “is
unidentified, hampers enforcement of the order or there
is a risk of absconding”. Furthermore, the Draft Law
Amending and Supplementing the Law on Foreign
Nationals in the Republic of Bulgaria introduces an
additional new type of ‘short-term’ immigration detention
lasting for up to thirty days. It is imposed on persons who
have entered Bulgaria irregularly and its purpose is “to
conduct the initial identification and establishment of
identity and to assess the subsequent administrative
measures that should be imposed or taken”.83 In practice
this type of detention is currently taking place at the socalled ‘Redistribution Centre’ at Elhovo near the
Bulgarian-Turkish border: for example, in 2015 the
number of detained persons there was 15,760.84
By law and in practice, in issuing a detention order the
authorities do not consider the existence of reasonable
prospects to implement the removal order. For example,
in a Judgment of 02 September 2013 in case
No.11595/2012, the SAC of the Republic of Bulgaria
repealed as wrong the decision of the SCAC that had
invoked the test of the reasonable prospect of removal
when reviewing the initial detention order. The Supreme
Court stated that the detention order should be
confirmed as the migrant was undocumented and had
entered the country illegally, which constituted a risk of
absconding.
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