Image used under CC BY-NC-SA 2.0 license. Photograph by Greenmonster.
Musab is a 36-years old single man from Iran. While in solitary confinement[1] at the Busmantsi Detention Centre, he attempted to commit suicide. He was detained pursuant to an order issued by the Head of the State Agency for National Security[2] (SANS) while the general procedure for granting him asylum pursuant to a second application for protection he had submitted to the SAR was ongoing. He has been in Bulgaria since 2011 and the SAR have turned down an application for protection of his once already. In 2011 he spent 4 months at the Lyubimets Refugee Centre and in 2014 he was detained at Busmantsi for approximately 70 days before being released and instructed to report to the police station on a weekly basis in the area where he lived. From the 22nd of May 2015 until the 22nd of December 2015 he was detained there for the third time. Length of detention 7 months.
Musab has sinusitis and suffers from a permanent headache (migraine). He had surgery in 2012-2013 but a further one in required.
‘A surgery is needed, but I can’t have one while I am in Busmantsi’. Each time he talks about his health problems—he mostly has trouble breathing—and has had to be rushed to the doctor’s on several occasions.[3]
Musab is detained when he courteously turns up to an interview in connection with his asylum application filed with the SAR.
‘On the 21st of May 2015, the Farsi interpreter at the SAR called me to invite me to an interview at 9 am on the following day. When I arrived at the SAR, my blue card[4] was taken away from me and I was told that I no longer had a chance in Bulgaria and must choose between being deported or going to Busmantsi. They asked me what I has been doing for 4 years in Bulgaria and why I hadn’t travelled to another country — France. I told them that I didn’t have any money. There was no interpreter. I speak very little Bulgarian’.
He was removed from the SAR Center in Ovcha Kupel and taken to the Detention Centre in Busmantsi. He feels deceived and let down because he thought that he was going to be a refugee status related interviewed but was detained without notice instead. He was living at a rental address at the time because this has been his second application for protection. While he was in detention in Busmantsi, his friend continues to pay the rent. He has a valid tenancy agreement. His residential address had been declared to the SAR and was duly noted on his registration card. His asylum seeker registration card is valid at the time of his detention. . His current second application for asylum is not yet refused.
Musab successfully files appeals both against the order issued by the State Agency for National Security (SANS) for his expulsion and the order issued for his With regards to the expulsion order, the Supreme Administrative Court (SAC) terminates proceedings on account of Musab failing to pay the requisite stamp duty within the seven-day statutory period and does not request for the fee to be waived. According to Musab, he had paid the fee to a personnel at Busmantsi but only the fee relating to the proceedings against his detention is paid, and not for the one against his expulsion from the country.
Concerning the detention order, an official from the Migration Directorate pays the requisite stamp duty on behalf of Musab and submits a receipt at the Court hearing. However, a ruling on the 28th of December 2015, the Court[5] dismisses the filed complaint. According to the ruling, as information and evidence had been gathered by SANS officers (such information is classified under the Protection of Classified Information Act), the foreign national was rightly denied access to review the information and evidence in question, take notes or make copies of it pursuant to Article 34(1) of the APC; and to not be allowed to make a statement under Article 34(3) of the APC. In his cassation appeal against that judgment, Musab argues that this is in violation of Article 39a of the Protection of Classified Information Act as it is a breach in his right to defend himself before the Court. Regardless, based on judgement taken in Case N C 23/2016, the SAC still accept the previous decision made.
During his detention at the Busmantsi Centre Musab receives the harshest punishment — being placed in isolation under special security measures. The special room was colloquially referred to by staff as the isolator. The first he is places in it, Musab stays there from the 29th of June until the 10th of July 2015. The punishment was imposed because of a memo detailing a disobedience of the internal rules by a foreign national, drawn up by an employee of the Security Department. The Head of the Centre determined that Musab be placed in isolation without allowing the three affected foreign nationals to be interrogated. According to the memo, speaking in ‘Arabic’, Musab and another detainee were convinced “in Arabic” to disobey an order for relocation and spoke in a loud voice. All three were placed in isolation with Musab spending 12 days in solitary confinement. Musab did not receive a written order relating to the punishment. Likewise, he was not given the option to defend himself neither before nor after the punishment was imposed. He only learns of the reasons for the punishment from his HEAR Project attorney and from the court evidence presented in the lawsuit for an extension of his detention by a further six months. In the decision, the Head of the Migration Directorate notes that Musab had frequently violated the in-house disciplinary rules.
In connection to the allegations set out in the memo drawn up by the security officer, Musab states that he does speak any Arabic. As is stated in his registration card he speaks Farsi, English,Turkish and Bulgarian.
On the 10th of July 2015 an inspector-psychologist reports to the Head of the Busmantsi Detention Centre that she had a discussion with Musab, while he was in solitary confinement and that the foreign national was: ‘feeling genuinely sorry for what happened. He was profusely apologetic and wrote a statement that he would not break in-house rules again’. The psychologist recommended that Musab be removed from solitary confinement.
On the 22nd of October 2015, Musab is placed in solitary confinement again. Later that day, according to the records of the Busmantsi Detention Centre, he attempted to commit suicide by poison. When asked why he had tried to kill himself, he replied that his punishment was unfair. To the question whether he had been given a hearing, he replied: ‘Yes, they are listening – they are wiretapping my telephone’.
After the initial six-month detention period ends in 2015, the Head of the Migration Directorate petitions the Court to extend the detention by a further six months. The following is stated in the petition of the Migration Directorate: ‘The Migration Directorate of the MIA finds that there is a reasonable possibility for the removal of the Iranian national from Bulgaria, following the issuance of a laissez passer by the Islamic Republic of Iran’. It is not stated, however, whether such a request had already been extended to the Iranian Embassy. The letter prepared by the Migration Directorate puts forth two main reasons for seeking deportation: (1) Musab is categorically refusing to assist the authorities in their efforts to return him to his country of origin; and (2) Multiple violations of in-house disciplinary rules which the detainee has broken. The Migration Directorate filed the request without giving Musab a hearing before that.
The court summons Musab and allows him to make a statement. He is represented by a HEAR Project attorney. The court hearing is scheduled for the 11th of December 2015 and by a Ruling dated the 14th of December 2015, the Court[6] substitutes detention with a requirement for Musab to report to the local police station on a weekly basis.
Musab stated the following before the court:
‘I have been in Bulgaria for four years. I really cannot understand why a full one out of these four years I have had to spend in prison’.
The Court’s reasons to end Musab’s detention are as follows: ‘In a statement made before the court the individual stated that he wishes to remain in Bulgaria as evidenced by the application for asylum protection submitted in accordance with the Asylum Act…There is evidence submitted that he is financially secure and has accommodation and has presented a tenancy agreement’. The court bases its conclusions on the Conka v. Belgium judgment, placing the burden of proof on the Migration Directorate, by which it asks the latter to present evidence showing the risk of the individual to go into hiding. The court also considers the principle of proportionality. It also highlights the requirement for the need for reasonable efforts on the part of the administrative body to prepare the detention exit. In the case at hand, the foreign national has conclusively proven that he is eligible for a less restrictive alternative to detention. On the other hand, the Head of the Migration Directorate ‘has failed to present any evidence that it is currently in the process of identifying the foreign national, which would explain the fact that he has not been issued with an identity document that would enable him to travel to his country of origin. Given that the competent body has failed to act in the matter during the detention, which lasted for more than 12 months[7], and obtain the necessary information, then the extended detention is unjustified vis-à-vis the efforts made by the same body and disproportionate to the goal vis-à-vis the unnecessary restriction of the rights of foreign national’. The practice of Less restrictive measures than the continued detention of the foreign national can be used.’.
On the 22nd of December 2015, in the run-up to Christmas, Musab is released after a 7-month detention in 2015. The release is based on Court judgment dated the 14th of December 2015 by which detention is replaced by a less restrictive measure—weekly visits to the local police station. Although the SAR provided assisted in the detention of Musab and his whereabouts (residential address) were known to the Agency on an ex officio basis, on the 24th of November 2015, Musab’s lawyer files an application to the SAR notifying it that Musab’s current address was at the Busmantsi Detention Centre. On the 29th of December 2015, Musab personally notifies the SAR that he had moved back to the previously rented accommodation.
Commentary:
At the Busmantsi Detention Centre Musab is placed in solitary confinement on two occasions. On the second one he attempts suicide on the first day of the punishment. He knew he was could not defend himself and time spent in solitary confinement was unbearable. The first time he spent 12 days in isolation before being released. The second time he finds the experience unbearable. He was neither granted a hearing nor was he served with an order he could appeal. For convicts serving a prison sentence, the disciplinary punishment of being placed in solitary confinement (isolation) for 14 days is governed by law[8] and a procedure must be conducted, which includes a hearing held for the delinquent prisoner[9]. No such safeguards against arbitrary punishment for breaches of discipline are in place for foreign nationals placed in detention on administrative grounds. Pursuant to Judgment No 164 from the 7th of January 2016 in Case No 973/2015[10] on the record of the SAC, the Court repealed the provision for disciplinary punishments laid down in Article 14(3) of Regulation Iz-1201 of the 1st of June 2010 presenting the rules and provisions regarding the internal order at centres for the temporary detention of foreign nationals and the functioning of such centres, issued by the Minister of Internal Affairs[11], as being unlawful.
The placing Musab in detention is a violation of Article 5 of the ECHR: his residential address was known and has been registered by the authorities and a strategy of abusing the trust of an asylum seeker (misleading him) was used, which is completely inadmissible[12].
The Court judgment providing for the substitution of detention with a less restrictive alternative conforms to the highest international and European legal standards: the Court has correctly placed the burden of proof with respect to the due care necessary to ensure the expulsion order on the administrative body and applying the principle of proportionality, taking into account the aim of the immigration detention.
Commentary on the psychological intervention[13]
- The language used in the records of the Busmantsi Detention Centre
The case-file on Musab compiled by the Busmantsi Detention Centre contains a report drawn up by the in-house psychologist as well. It should be noted that the psychologist in question holds the rank of an inspector. This might be construed as an indication of his police functions taking precedence over those of a psychologist. The meeting that takes place between a detainee in solitary confinement and the inspector is described as a ‘discussion’. The literal meaning of the word would indicate this to be a conversational exchange between two or more individuals. However, the word is also a remnant from the language used by the institutions of the once totalitarian state. It has been borrowed from Soviet practices. The discussions in question were used by officers as an instrument to monitor and reinforce ‘ideologically correct thinking among their peers’. It is interesting to note that this dry institutional language is all-pervasive at the Detention Centre.
As a result of the ‘discussion’ Musab is said to have expressed ‘genuine regret’, apologised and stated that there would be no further breaches of in-house rules. We could not establish whether Mr. Musab had indeed spoken these words during the discussion or whether the wording is just standard, administrative jargon used to describe the outcome of the visits of the in-house psychologist of detainees placed in solitary confinement
In other words, we do not learn anything new or useful about Mr. Musab and his true attitude towards the punishment, unlike the wealth of information this practice reveals about the functioning of the institution and the herd mentality of its staff.
- The role of the psychologist at the Busmantsi Detention Centre
The documented discussion between the in-house psychologist and Mr. Musab is described in moralistic categories, pointing to a strict and rigid patriarchal upbringing typical of the communist era. A breach of discipline carries a punishment for the mistake made, those who impose the punishment are the right party who know what they are doing and why; and the punished person is only to state their deepest regret and beg for forgiveness.
This indicates that the psychologist is experiencing difficulties carving out their specific, professional role within the institution and takes a pedagogic and ideological stance.
- Why is it necessary for the in-house psychologist at Busmantsi to have discussions with a detainee for the punishment to be lifted?
Normal logical dictates that a punishment for a disciplinary infraction is imposed for behaviours that violate the in-house rules which all detainees must follow. The party imposing the punishment is also the party responsible for lifting it.
This begs the question what role an in-house psychologist plays in the disciplinary practice at the Detention Centre? It is possible to speculate, but a definitive answer would require the gathering of additional information.
- Where verbal communication fails punishments are imposed
When placed in solitary confinement for the second time, Mr. Musab attempts to commit suicide. This is a serious act that points the need for Mr. Musab required care, including counselling. There is no indication that Mr. Musab had any discussions with an external visiting specialist following the attempt to take his own life. This is the clearest evidence of misguided practice—where a psychologist or therapist is truly needed, no counselling or other mental support is provided.
[1] Special Home for the Temporary Accommodation of Foreign Nationals.
[2] State Agency for National Security.
[3] Memo drawn up by a psychologist at the Lyubimets Detention Centre on 16 September 2011.
[4] The blue card is the colloquial name of the card issued to individuals seeking international protection.
[5] Sofia Administrative Court, Panel 20, Case No 7592/2015
[6] Sofia Administrative Court, Panel 44, Case 11493/2015
[7] The total period of detention, including on previous occasions.
[8] Article 100 et seq. of the Law on the enforcement of punishments and detention
[9] Article 105 of the Law on the enforcement of punishments and detention
[10] Published in the State Gazette (SG) No 20 of 15 March 2016.
[11] Article 14(3) of the Regulation (repealed) stipulated as follows: ‘A foreign national responsible for a serious breach or disruption of in-house rules, shall be placed in solitary confinement under special security measures, for a period that does not exceed 15 days’.
[12] Judgment of 5 February 2002 in the Case Conka v. Belgium, complaint No 51564/99, paragraph 42
[13] The commentary was drawn up by the psychologist Mimosa Dimitrova, Head of the Torture Victims Assistance Centre (TVAC)