36 | PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION IN BULGARIA 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 Draft Law Amending and Supplementing the Law on Foreign Nationals in the Republic of Bulgaria. The official registration number of the Draft Law is 602 01 23/28.04.2016. Updates on the progress of its readings in the Bulgarian Parliament are available via the following link: http://www.parliament.bg/bg/bills/ID/42119/ (last visited on 15 June 2016). An unofficial English translation of the proposed provisions is included in Annex 1 to this report. The progress of the legislative procedure could be followed on the web site of the Parliament at http://parliament.bg/bg/bills/ID/42238/ (accessed on 28 July 2016) UNHCR, Handbook on Protection of Stateless Persons, 2014 Gyalai, Gábor. “Hungarian Constitutional Court declares that lawful stay requirement in statelessness determination breaches international law”, 2 March 2015. Accessed on 17/6/2016 at http://www.statelessness.eu/blog/hungarian-constitutional-courtdeclares-lawful-stay-requirement-statelessness-determination The Implementing Regulation of the Law (in Bulgarian: Правилник за прилагане) is a sub-law adopted by the Government (unlike the laws that are adopted by the Parliament); it specifies the procedure and conditions for implementation of the provisions in the law. European Court of Human Rights, Judgment on the Case of Auad v. Bulgaria (Application no. 46390/10), 11 October 2011, Paragraph 139 European Court of Human Rights, Judgment on the Case of Amie and Others v. Bulgaria (Application no. 58149/08), 12 February 2013, Paragraph 77 FRONTEX is the European Agency for the Management of Operational Cooperation at the External Borders Study Interview with Mrs. Iliana Savova, Director of the Refugees and Migrants Section at the Bulgarian Helsinki Committee, 26 April 2016 Center for Legal Aid – Voice in Bulgaria, Reasons for Detaining Migrants Easy to Find, Study of Court Decisions Shows, 1 February 2016, Accessed on 17 June 2016 at http://detainedinbg.com/blog/2016/02/01/reasons-for-detainingmigrants-easy-to-find-study-of-court-decisions-shows/ For example, in case No.8986/2009 before the Sofia City Administrative Court (SCAC) the stateless person was regarded as a citizen of Russia; in case No.13868/2010 before the Supreme Administrative Court the stateless person was regarded as a citizen of Bosnia and Herzegovina; in case No. 11929/2015 before the SCAC the stateless person was regarded as a citizen of Afghanistan; etc. European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention: A Regional Toolkit for Practitioners (2015), pp.1415 For a detailed analysis of the transposition of Article 15 of Directive 2008/115/EC in Bulgarian national law, see Ilareva, Valeria, in collaboration with National Judge Nataliya Angelova, Completed Questionnaire for the project Contention National Report – Bulgaria, 2014, Accessed on 17 June 2016 at http://contention.eu/docs/country-reports/BulgariaFinal.pdf Paragraph 40 of the Draft Law introducing new paragraph 13 in Article 44 of the LFRB. Decision No.212104-54 of 21 June 2016 to grant access to public information, Ministry of the Interior of the Republic of Bulgaria CJEU, Judgment of 11 December 2014 in Case C‐249/13, Boudjlida, paragraph 30 CJEU, Judgment of 22 November 2012 in Case C‐277/11, M. M., paragraph 85 This included a notary act for his house; proofs that he had a running company; a declaration certified by a notary and other similar acts Mr. H. suffered severe military violence in the war in Bosnia (19921995), during which his wife and two small children were killed. This is the reason why he left his country in 1992. After this incident Mr. H. shares that “he is no longer alive” and “it would never be the same”. According to an Expert Opinion issued by a psychologist visiting Mr. H. at the Bousmantsi detention centre, he makes every effort to avoid situations that reminds him of his past, because thinking about what happened is too painful and unbearable for him. According to the expert psychological opinion, immigration detention is experienced by Mr. H. as a repeated retraumatisation. Article 46a, paragraph 2 of the LFRB 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 Sofia City Administrative Court, Judgment of 30 November 2015 in case No. 9907/ 2015 Article 46a, paragraph 4 of the LFRB Supreme Administrative Court, Ruling of 27 May 2010 in case No. 2724 / 2010 This is also confirmed by the Analysis of the case law conducted by the Bulgarian Lawyers for Human Rights Foundation in the project ‘Improving the judicial guarantees for lawful detention of immigrants’ (2016), pages 15-16 of the report (not yet published) Bulgarian law does not differentiate between ‘return’ and ‘removal’. According to Article 3 (4) of the EU Return Directive, ‘return decision’ means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return. According to Article 3(5), ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State. The return decisions in Bulgaria always contain ‘orders for removal’, because they are ‘orders for coercive taking to the border’ as they are named. That is, by definition and title, these orders do not envisage a possibility for voluntary return, although formally the law declares that such a period for voluntary return should be granted. In this context, in the established administrative practice in Bulgaria the ‘orders for coercive taking to the border’ are usually accompanied by an order for immigration detention. The same holds true for the other type of ‘return and removal’ orders in Bulgaria, the ‘expulsion’ orders in the terms of the LFRB, which are issued on national security grounds. European Court of Human Rights, Judgment on the Case of Auad v. Bulgaria (Application no. 46390/10), 11 October 2011, paragraph 132 Ibid. This is also confirmed by the Analysis of the case law conducted by the Bulgarian Lawyers for Human Rights Foundation in the project ‘Improving the judicial guarantees for lawful detention of immigrants’ (2016), pages 21-22; 25-31 of the report (not yet published) Sofia City Administrative Court (06 June 2014) case No.1535/2014 Court of Justice of the European Union (05 June 2014) case C-146/14 PPU Paragraph 85 of the judgment Case C‐357/09 PPU View of Advocate General Mazák, 10 November 2009, Case C‐357/09 PPU, Kadzoev, paragraph 95 Analysis of the case law conducted by the Bulgarian Lawyers for Human Rights Foundation in the EPIM-funded project ‘Improving the judicial guarantees for lawful detention of immigrants’ (2016), pages 22-23 of the report (not yet published) This is also confirmed by the Bulgarian Helsinki Committee’s synthesis report in their EPIM-funded project ‘Free to Go: Detention as a last, not a first resort’ (October 2016, Accessed 26 October at available at http://www.bghelsinki.org/media/uploads/documents/ reports/special/2016-10_Detention_mapping_report_2016_EN.pdf) which analysed the administrative practice in the application of immigration detention in Bulgaria. Also, in their case-law analysis, cited above, the Bulgarian Lawyers for Human Rights Foundation noted that “from the reviewed judicial acts it can be concluded that the court rarely discusses the question whether it was possible to impose a less coercive measure. In some of the cases where there is a discussion, the court finds that the issue is part of the administrative discretion of the authorities and therefore not subject to judicial review” (page 10 of the report). Sofia City Administrative Court, Ruling of 8 April 2010 in case No.2425/2010 One of the recommendations, made in the recent study of the Bulgarian Helsinki Committee on the administrative practice of immigration detention in Bulgaria, is introduction of possible new alternatives to detention: see Ibid. European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention: A Regional Toolkit for Practitioners (2015), page 21 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection European Network on Statelessness, Protecting Stateless Persons from Arbitrary Detention: A Regional Toolkit for Practitioners (2015), Section 2.6.