Faramarz is a 51-year-old man. He is the victim of torture in his country of origin[1] and is disabled (he has been diagnosed with Ankylosing spondylitis and has a spinal deformity). He suffers from cumulative stress — accumulated during the years spent in exile He has been outside his country of origin, Iran, for the past 9 years. He was repatriated from Denmark to Bulgaria under the so-called Dublin Regulation[2] on the 20th of January 2016. He was detained and taken to the Busmantsi Detention Centre for Immigrants[3] on the same day. He lodged his first application for protection in Bulgaria in 2007 and was denied. After that Faramarz spent several years in Greece before making his way to Denmark.
According to the medical report prepared by the Medical Institute of the Ministry of Internal Affairs to the Head of the Metropolitan Directorate of Police dated the 23rd of February 2016, the foreign national is diagnosed with health problems and is in poor general condition. . It is further noted that he is currently hospitalised at the Cardiology Department of the hospital in isolation from other patients and advised that a continued detention at the Busmantsi Centre is inappropriate on account of great risk to his health and life.
‘They gave me a prescription for heart medication. It stayed as is for two weeks without anyone buying the medication for me or giving them to me.’
Faramarz was released from Busmantsi on the 1st of March 2016. Length of detention: 1 month and 10 days.
‘On the 23rd of February 2016, the foreign national refuses medication and food. In order to preserve his life and health, the administration of the Busmantsi Detention Centre makes arrangements for his transportation to the Medical Institute of the Ministry of Internal Affairs in Sofia. In the presence of a medical personnel, he refuses hospitalisation and is consequently returned to the Detention Centre on the same day’[4].
Faramarz tells us the following about the day of his arrival to Bulgaria from Denmark:
‘When I arrived (at the airport) no one spoke to me. They just beat me up. There was an ashtray and cigarettes in the room and took one to smoke. The policeman then entered the room, slapped me across both cheek, , and said: ‘This is Bulgaria. Understand?’
He hit me across the hands. The cigarette fell. (…) I didn’t dare say anything after that. I was afraid to speak’.
His detention order has been issued by the Head of the Migration Directorate of the Ministry of Internal Affairs two days before Faramarz stepped on Bulgarian soil, without making arrangements for a hearing. The order is issued on the 18th of January 2016 and Faramarz arrives in Bulgaria on the 20th of January 2016. The sole reason given for the detention is that ‘in light of the circumstances, it is necessary to make arrangements for the transportation and purchasing a ticket for the detainee to his country of origin, which is an obstacle to the immediate enforcement of the coercive administrative measures imposed’. Although the physician who first examined Faramarz on the 20th of January 2016 at the Medical Centre of Busmantsi, correctly diagnoses him with Ankylosing spondylitis and spinal deformity, the detention measures fail to be revoked or altered.
‘When we arrived, they first searched us and even took some things from my luggage. After that they sent me up to my floor without any explanation.
Because of my spinal problem, they made me take off all my clothes to search me. I told them that I had just gone through security and x-ray scans at two airports, but they still made me do it. It reminded me of the Soviet Union type movies and how they would show people being humiliated like that. The whole atmosphere, the way they greeted me, was terrifying. You feel tense and stressed out just looking at them. When you go in there, you feel like there’s no way out. I was praying for a divine miracle to happen. It brought back all those memories (of violence before I first came to Bulgaria). I relived it all again’.
With the assistance of a HEAR project attorney, Faramarz files an appeal against the detention order on immigration grounds within the statutory 14-day period, although he has not receive a copy of the order. This happened because Faramarz refused to sign the template document containing the blanket statement: ‘I was advised of the content of the order in a language that I understand’ in the absence of an interpreter. His refusal was attested by the signatures of two witnesses.
‘Won’t the judge be mad at me, if I told her that my detention is inhumane?’
During the appeal of the detention order, Faramarz, via his legal counsel, learns about another order according to which he was to be transported to the Bulgarian border. That order was issued in 2008, when he was already in Greece. He was never notified of it and his signature does not appear on it. He appeals that order as well. By a judgment dated the 26th of July 2016, the Court[5] grants the appeal filed by Faramarz and revokes the order of his transportation to the border and the prohibition to re-enter the country for the next 10 years, stating the following:
‘These is no evidence justifying the order, said order stating solely the final conclusion, which reproduces the wording of the relevant provision of the law, which is unlawful. In this sense, the Court finds the appeal just and finds a procedural breach in the failure of the administrative body to grant him a hearing pursuant to Article 34 of the Administrative Procedure Code. The administrative body has failed to interview the applicant, which would have allowed it to ascertain whether or not he had sufficient means to support himself. In the absence of such an interview, the conclusion that such funds were unavailable to him is unwarranted’.
With regards to the detention order, by a ruling from the 12th of July 2016, the Third Panel of the Sofia Administrative Court[6] dismisses the appeal. Faramarz the appeals that judgment before the Supreme Administrative Court, stating the Administrative Court failed to take into account the he had not been notified of the initiated procedure for the issuance of a detention order on immigration grounds, which would have allowed him to state his case. Instead, it held that: ‘no evidence was presented that during the administrative procedure that the petitioner has requested any documents which he was refused access to or requested and/or denied making a statement before the competent body; during the administrative procedure, the complainant did not declare a residential address in Bulgaria. Given these circumstances, the conclusion that the complainant could have gone into hiding is justified. It has furthermore been ascertained that no evidence was provided to the competent administrative body that the foreign national belonged to a vulnerable group, which would have justified taking this consideration into account for the purposes of the decision made on the case.’
Faramarz filed a subsequent application for international protection. On 12 February 2016, however, at the Busmantsi Detention Centre he was served with a decision issued by the SAR according to which that application was inadmissible.
‘The interpreter spoke Pashtu and very little Farsi. They told me that the application I had filed 10 years ago was rejected and that the second application for registration as an asylum seeker was irrelevant. I asked them when I had ever been interviewed. I asked how they could know that my application didn’t matter if they hadn’t even spoken with me?’
With the assistance of HEAR Project attorney, Faramarz files an appeal against the decision of the SAR. In the meantime, while Faramarz has gone on hunger strike, the management of the Busmantsi Centre writes a letter to the Head of the Migration Directorate, asking for his release. The second application for subsidiary protection filed by Faramarz is registered on the 1 of March 2016, when he is released and handed over to the SAR.
Commentary:
Faramrz’s detention order is yet another example of imposing immediate detention without considering less restrictive alternatives or granting a hearing to the foreign nationals seeking protection, which would allow for their vulnerabilities (victim of torture and an individual with multiple disabilities) to be identified. The order for his detention has even been issued two days before his arrival in Bulgaria.
Although Faramarz was not served a copy of the detention order (after he refuses to sign it and the content of which was unknown to him), he still successfully appeals the order with legal assistance provided from the HEAR Project. Two lawsuits were strategically filed on his behalf:
The first one, which Faramarz wins , was brought before the Sofia Administrative Court refers to the order for his coercive return. The Court correctly concludes that the failure to grant Faramarz a hearing prior to the issuance of the order (i.e. to verify that he indeed was not in a position to support himself) is a procedural breach. .
The other lawsuit filed against the order for Faramraz’s immigration detention, is dismissed but its’ judgment was then appealed before the Supreme Administrative Court. In its judgment the Sofia Administrative Court misses to take into account that the failure to notify the complainant of the launched procedure for the issuance of an order on his detention means that Faramarz could not effectively defend himself by submitting evidence and making a statement. Furthermore, the right to a hearing is exercisable BEFORE the adoption of the detrimental decision, not after it. In its judgment the Court wrongly holds that the right to a hearing had not been breached as there is evidence of a survey form annexed to the case-file, that the detainee was interviewed immediately after being placed in detention at Busmantsi. The Supreme Administrative Court is expected to rule on the right to a hearing in yet another landmark case.
The image has been used under licence from Shutterstock.com
Snippets from our conversations with Faramarz:
‘I don’t want anything else. I only wish they would let me live here’.
– What does the Centre for Temporary Accommodation of Foreign Nationals mean to you?
– It’s a place where they stoke up hatred in your heart: not only for the police, but for the Bulgarians .It would be much better for Bulgaria if Busmantsi did not exist.
I personally have not witnessed police brutality at the centre, but sometimes when I’ve wanted to have a word with the policemen and asked some of the detainees to come along and help me with the translation, they would always tell me: ‘Don’t do it. The police here treat us poorly, They’ll just start beating us. ’.
If I went to ask to be given a newspaper, for example, they always chased us away as if we had some horrible disease and they had to keep away from us at all costs. They just humiliated us.
– How did you feel when you were released from Busmantsi?
– Like a child that has just crawled out of the womb of its very sick mother. Anything could have happened to the child, it could have been stillborn, but it is now out in the world and free of disease. This is how I felt when I walked out of Busmantsi.
[1] He has relevant opinions issued by expert medical committees in Bulgaria and Greece.
[2] Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
[3] Special Home for the Temporary Accommodation of Foreign Nationals.
[4] Citation from a memo drawn up by the Head of Department Centre for the Temporary Detention of Foreign Nationals to the Head of the Migration Directorate.
[5] Sofia Administrative Court, 47th Panel, Case No 3817/2016.
[6] Case No 1401/2016 on the record of the Administrative Court.