Table of contents

I. INTRODUCTION

II. ESSENCE OF THE RIGHT TO BE HEARD IN THE CONTEXT OF IMMIGRATION DETENTION

III. STAGES IN THE APPLICATION OF THE RIGHT TO BE HEARD

1. Right to be heard prior to the initial decision on immigration detention

1.1 Procedural guarantees to effectively hear the immigrant during the issuance of an immigration detention order

(а) The right to translation and interpretation

(b) Notification of the commencement of administrative procedure for the issuance of a detention order and of the right to be heard

(c) Right to assistance by a lawyer or another defender

(d) Right to have access to the file

(e) Providing the migrant with a possibility to make a statement

(f) Clarifying all relevant facts and taking into account the statement made by the immigrant

(g) Additional procedural guarantees for vulnerable persons

1.2 Substantive law content of the right to be heard. In respect of what should the immigrant be heard?

(а) Hearing on essential personal data, notably, age, names and citizenship

(b) Hearing on whether a return order shall be issued or the immigrant makes an application for international protection

(c) Hearing on granting a time period for voluntary departure

(d) Hearing on the proportionality of detention

2. The right to be heard as a remedy after the issuance of an immigration detention order. The right to appeal and to a speedy and fair judicial review

(а) The right to information

(b) The right to access to legal counsel

(c) The right to speedy judicial review

(d) The right to a fair trial

3. The right to be heard during immigration detention

3.1 Conditions of detention

– The right to be heard in the context of disciplinary punishments

3.2 The right to be heard in the context of proper preparation or enforcement of removal

3.3 Review of detention at regular intervals

4. Right to be heard upon extension of the length of immigration detention

4.1 Right to be heard by the administrative body prior to the decision to extend detention

4.2 Right to be heard by a court of law in the context of judicial review

IV. SELECTED BIBLIOGRAPHY

V. RELEVANT CASE-LAW

List of abbreviations

APC — Bulgarian Administrative Procedure Code

APIA — Access to Public Information Act

BPD — Border Police Department

The Charter — Charter of Fundamental Rights of the European Union

CJEU —Court of Justice of the European Union

Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted

Directive 2013/32/EU of the European parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection

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

DGBP — Directorate-General ‘Border Police’

ECHR — European Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR — European Court of Human Rights

EU — European Union

FNBA – Foreign Nationals in Bulgaria Act

ICCPR — International Covenant on Civil and Political Rights

LAA — Legal Aid Act

MIAA — Ministry of Internal Affairs Act

Ordinance on SCTAF — Ordinance No Іz-1201 of 1 June 2010 laying down the rules and procedure for the temporary accommodation of foreign nationals and the organisation and operation of the Special Centres for the Temporary Accommodation of Foreign Nationals

PCIA — Protection of Classified Information Act

RC — Redistribution Centre

Return Directive — Directive 2008/115/ЕC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals

RDBP — Regional Directorate ‘Border Police’

RRC of the SAR — Registration and Reception Centre of the State Agency for Refugees

SAC — Bulgarian Supreme Administrative Court

SANS — State Agency for National Security

SCAC — Sofia City Administrative Court

SCDIA — Sofia City Directorate of Internal Affairs

SCTAF — Special Centre for the Temporary Accommodation of Foreign Nationals

TC — Transit Centre

I. INTRODUCTION

This Handbook is based on recognised standards and settled case-law on the right to be heard according to international law (including the European Convention for the Protection of Human Rights and Fundamental Freedoms), European Union law and Bulgarian law. It takes into account the evidence gathered under the HEAR[1] Project in respect of the legal, psychological and social aspects of the application of the right to be heard of detained immigrants. The Handbook discusses the essential features of the right to be heard in the case of detention on immigration grounds and puts forth an algorithm for the steps to be taken to ensure that it is effectively exercised. The Handbook is intended for all ‘listeners’ in the context of the process of detention on immigration grounds: officials from various administrative bodies, judges, lawyers and other defenders, as well as everyone interested in ensuring respect for the right to be heard as an element of the right to defence.

The notion ‘right to be heard’ is used in a broad sense and encompasses both the administrative and court proceedings relating to imposing, reviewing and extending the period of detention on immigration grounds. It is further discussed as a procedural safeguard in the context of administrative proceedings and as an effective remedy in the context of judicial review.

In line with Article 15 of the Return Directive of the European Union the term ‘immigration detention’ is used throughout the Handbook, in place of the equivalent term ‘coercive accommodation’ used in Bulgarian law.

 

 II. ESSENTIAL FEATURES OF THE RIGHT TO BE HEARD IN THE CONTEXT OF IMMIGRATION DETENTION

  1. The right to be heard guarantees every person the opportunity to make known his views effectively during a procedure on the adoption of a decision liable to affect his/her interests adversely[2]. The addressee of an adverse decision must be given the opportunity to make his/her views known before a decision is taken. The purpose of this rule is to enable the competent authority to duly take into account all relevant information. The individual concerned shall be able to correct errors or to submit information relating to personal circumstances that will argue in favour of the adoption or non-adoption of the decision, or in favour of it having a specific content[3].
  2. The right to be heard forms an integral part of the right to defence[4]. Respect for the right of defence is a fundamental principle of European Union law.[5] The ‘Audi alteram partem’ principle (‘Hear the other party’ from Latin) has been one of the fundamental tenets of law and justice since ancient times.
  3. The right to be heard, as inherent element of the right to defence, is protected at the highest constitutional level in both EU and national law. More specifically, it is enshrined in Articles 41, 47 and 48 of the Charter of Fundamental Rights of the European Union. According to Article 56 of the Bulgarian Constitution ‘Everyone, whose rights or legitimate interests are violated or jeopardized, has the right to defence. Appearing before any institution of State, every citizen may be accompanied by a defender[6]. The right to be heard must be respected even when no requirement to do so is expressly stipulated by law.[7]
  4. The obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his or her application is being rejected is a corollary of the principle of respect for the rights of the defence and in particular, the right to be heard.[8] For example, according to Article 15(2) of the Return Directive ‘detention shall be ordered in writing with reasons being given in fact and in law’. The European Court of Human Rights held that a decision on detention must contain elaborate reasoning and that this is one of the criteria for its lawfulness[9].
  5. The right to be heard is in principle not absolute and is subject to certain limitations. In order to be deemed lawful, any such limitations must correspond to objectives of general interest pursued by the measure in question and must not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference[10], which infringes upon the very substance of the rights guaranteed[11]. Every decision by the public authorities based on such limitations must strictly comply with all the statutory conditions circumscribing those limitations[12].
  6. As a matter of principle, when Member States adopt decisions on matters governed by European Union law the consequences of infringement of the right to be heard are to be appraised in line of the principles of equivalence and effectiveness[13]. The principle of equivalence means that, within the remit of its procedural autonomy, each Member State may decide on the means of exercise of the rights to defence and to be heard under conditions that are equivalent to those available in similar situations governed by domestic law. The principle of effectiveness means that domestic procedural law must not make it impossible or excessively difficult to enforce rights derived from EU law. According to Recital 2 of the Return Directive, its goal is to establish an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity[14].
  7. When the decision taken by the public authorities concerns immigration detention, proper account must be taken of the fact that the right to liberty is one of the most fundamental human rights and that, as such, it requires effective protection[15]. Measures, which entail depriving irregularly staying third-country nationals of their liberty, clearly affect them adversely[16]. Although it is not a criminal-law penalty, immigration detention entails deprivation of liberty and that is why it is designed to be a measure of last resort only [17].
  8. The ‘materiality’ threshold for procedural irregularity, when a fundamental human right such as the right to liberty is affected, is lower, thereby rendering the administrative decision unlawful. In connection with this, the Advocate General Wathelet in Case G. & N.R., С-383/13 PPU, pointed out that the reasoning of the Court in the area of competition law[18], according to which a procedural irregularity will lead to annulment of all or part of a decision, only if it is established that the content of the contested decision could have been different if that irregularity had not occurred, cannot be applied by analogy with regard to measures as detention that have such a restrictive effect on personal liberty.
  9. The conclusion of the Advocate General in the Case G. & N.R., С-383/13 PPU is in line with the interpretation of the right to liberty and security enshrined in Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) given by the European Court of Human Rights. According to Article 5(1)(f) of the ECHR no one shall be deprived of his liberty, save ‘in accordance with a procedure prescribed by law’ and in cases such as ‘the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. According to Article 52(3) of the Charter on Fundamental Rights of the European Union, in so far as this Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the said Convention. The Union law may provide more extensive protection, but cannot descend below the established threshold of guarantees for the rights, protected by ECHR. This fully applies to the right to liberty and security enshrined in Article 6 of the Charter of Fundamental Rights of the European Union.
  10. For a decision to be deemed lawful, including imposed in accordance with a procedure prescribed by law, the European Court of Human Rights primarily requires any arrest or detention to have a legal basis in domestic law. However, this is not the decisive element in determining the lawfulness of a decision. ‘In addition any deprivation of liberty should be in keeping with the purpose of Article 5(1), namely to protect the individual from arbitrariness[19]. In other words, immigration detention may appear ‘legal’ according to national law, but still be deemed arbitrary and, therefore, unlawful, according to the ECHR.
  11. The prohibition of arbitrary detention is expressly stipulated in Article 9 the International Covenant on Civil and Political Rights (ICCPR)[20]. In its General Comment on Article 9 of the ICCPR, the Human Rights Committee notes that an arrest or detention may be authorized by domestic law and nonetheless be arbitrary. ‘The notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality[21].

 

 

III. STAGES IN THE APPLICATION OF THE RIGHT TO BE HEARD

1. Right to be heard prior to the adoption of the initial decision on immigration detention

Proceedings before an administrative body

  1. Everyone has a right to a ‘prior hearing’ before the adoption of a decision as to whether to be detained or not[22]. The right to be heard is therefore a procedural guarantee for the lawfulness of the administrative decision that is issued.
  2. According to Article 41(1) and (2) of the Charter on Fundamental Human Rights of the European Union “the right to good administration” includes: (а) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions. The right to good administration means that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time.
  3. Although Article 41 of the Charter applies to the ‘institutions, bodies, offices and agencies of the Union’ and does not—in and of itself—cause obligations to arise for EU Member States, the Court of Justice of the European Union emphasises that the right to be heard and the right to good administration are inherent in respect for the rights of the defence and that the legal grounds for their observance derive from a general principle of EU law.[23]
  4. The right to a “preliminary hearing” in a pre-litigation administrative context should be distinguished from the right to be heard in the context of court proceedings. That distinction is clear from the provisions of Articles 41 and 47 of the Charter of the Fundamental Human Rights of the European Union. The system of rights to defense guaranteed by the Charter requires that the rights in question be exercised separately and consecutively in the context of the different proceedings. The mere fact that judicial review is available at a later stage does not in itself remedy the infringement of the right to be heard in the meaning of Article 41 of the Charter committed during the issuing of the decision by the administrative authorities[24].
  5. The procedure leading up to the adoption of a decision on detention is conducted before an administrative body[25] that is competent to issue an order on detention on immigration grounds or apply a less coercive measure. The right to be heard is a procedural safeguard put in place to ensure, in particular, that detention will satisfy the test of necessity and proportionality and that it will be applied as a measure of last resort[26].Back to table of contents

1.1 Procedural safeguards to effectively hear the immigrant during the issuance of an immigration detention order

  1. The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure[27]. The order on immigration detention is based on consideration of the personal conduct of the foreign national. At the same time, during the administrative decision-making procedure migrants are typically in a position of dependence and subordination[28]. Having failed to make special arrangements for the interested immigrant to be heard, the administrative body may not justifiably claim that it has carefully and impartially appraised all circumstances of the case in a manner that would allow it to produce an elaborate reasoning in the decision to be issued.
  2. The European Court of Human Rights asserts the principle of good faith communication between the authorities and immigrants, irrespective of whether the foreign national is lawfully present in the country or not. The authorities must not intentionally mislead immigrants in order to detain them to facilitate the effectiveness of a planned operation for their removal. Such conduct on the part of administrative bodies would not be compatible with Article 5 ECHR[29].
  3. European Union law does not contain a prescribed set of procedural guarantees for the effective exercise of the right to be heard in the context of detention on immigration grounds. The CJEU held that when EU law does not specify any conditions for observance of the right to be heard, then such conditions are governed by national law[30]. The rules laid down in national law should not be less favourable than those that would apply in similar domestic proceedings (principle of equivalence) and they should do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the EU legal order (principle of effectiveness).[31]
  4. In Bulgarian administrative procedural law the general procedural guarantees for the effective exercise of the right to be heard are stipulated in Articles 14, 26, 28, 34 and 35 of APC. These provisions concern the appointment of an interpreter; the obligation to notify the commencement of an administrative process; the assistance and information to be provided by administrative bodies; the involvement of the parties in the proceedings; and the ascertainment of all relevant facts and circumstances of the case. Certain special laws, notably the Child Protection Act, contain additional procedural guarantees for vulnerable persons.
  5. In the context of the administrative procedure for the issuance of an immigration detention order, the procedural guarantees to effectively hear the interested immigrant are as follows: appointment of an interpreter from a language that the foreign national understands; notifying the person of the commencement of the administrative procedure for the issuance of a detention order and of the right to be heard; opportunity to use assistance provided by a defender or legal counsel; opportunity to examine the documents contained in the case-file; opportunity to give an opinion on collected evidence and make written requests and objections; obligation of the administrative body to correctly establish the facts and circumstances of the case and to examne the explanations and objections made by the interested foreign national. This ensures compliance with the requirement stipulated in the Return Directive for decisions to be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay[32].

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(а) Right to translation and interpretation

  1. EU law contains clear provisions that require an interpreter to be present during the hearing of a third-country national in the context of his/her return as an irregularly staying immigrant[33] or access to the asylum procedure[34]. As the administrative legal status of the foreign national (whether he/she is staying irregularly or is seeking asylum) is relevant to the issuance of an immigration detention order, the cited provisions on providing a language interpreter are relevant to the hearing conducted in the context of detention on immigration grounds. It should be added that according to established administrative practice in Bulgaria the immigration detention order is served at the same time as the orders on removal and ban on re-entering the country.
  2. The national legislations of EU Member States often contain provisions on the appointment of interpreters that are more favourable than the minimum standard laid down in the Return Directive[35]. According to Article 14(2) of the APC, a person who does not speak Bulgarian may use his/her native language or another language indicated by them. An interpreter is appointed in such cases[36]. As the administrative procedure for the issuance of an immigration detention order is initiated by the administrative body, and not by the foreign national, the costs incurred for language interpretation are to be covered by the administrative body[37].
  3. In Bulgaria, the issuance of an immigration detention order is often preceded by an order on 24-hour police arrest pursuant to Article 72(1)(4) of the Ministry of Internal Affairs Act (MIAA) with the purpose of establishing the identity of the person concerned. The written arrest order should contain an express mention of the right of the person to a language interpreter, where he/she does not understand Bulgarian[38]. With the assistance of an interpreter, the arrested person should be informed of the grounds for his/her arrest and the liability under law, and his rights and the procedure to be followed should be explained to him/her in a language that he/she understands[39].

(b) Informing the person of the commencement of proceedings to issue an immigration detention order and of the right to be heard

  1. The obligation of the administrative body to notify the interested immigrant of the commencement of a procedure for the issuance of an immigration detention order is a necessary precondition for the exercise of the right to be heard during the administrative procedure[40]. In order to be able to take part in the administrative process, the foreign national should be notified of its commencement and advised of his/her right to be heard. A failure to do this would mean that his/her right to defence has been restricted, because he/she has not been given an opportunity to properly organise it[41]. It is not sufficient for the administrative body to prepare a notification letter, unless action is taken to ensure that the notice is served on the party for whom it is intended[42].

(c) Right to assistance from of a lawyer or another defender

  1. According to Article 56 of the Bulgarian Constitution, everyone, whose rights or legitimate interests are violated or jeopardized, has the right to appear together with a defender before any institution of State[43]. Although the Return Directive does not expressly provide for a right to legal aid during the administrative phase of the process before taking the decision, the Court of Justice of the European Union notes that the irregularly staying third-country national can always engage a lawyer at his own account to assist him/her during the hearing before the competent national bodies[44]. Where this is possible, legal assistance can also be provided by lawyers working at non-governmental organisations active in this area.
  2. Where an individual has been arrested for up to 24 hours by the police pursuant to Article 72(1) of the MIAA, the individual in question has the right to free legal assistance, if they satisfy certain eligibility criteria[45]. Immediately after arrest, the person must be advised of his/her rights, including the right to an attorney from the time of arrest. Each detainee must complete a statement, in two counterparts, acknowledging that they have been informed of their rights and stating whether or no they intend to exercise their rights. Legal assistance can be provided by an attorney specified by the detainee, with any fees to be covered by him/her, or by a counsel appointed in accordance with the Legal Aid Act (LAA) [46]. Where a detainee expressly states his/her wish to be defended by an attorney appointed pursuant to the LAA the police officer on duty must immediately notify the attorney in question or a representative of the local Bar Association by telephone. [47] In view of the fact that in cases of irregularly staying immigrants the 24-hour period of arrest overlaps with the administrative procedure for the issuance of an immigration detention order for up to six months, foreign nationals should be advised of and provided with an opportunity to exercise their right to legal counsel during the arrest.

(d) Right of access to the documents contained in the case-file

  1. The interested foreign national should be given the opportunity to state his/her informed view. For this purpose, he/she must firstly be given access to the documents contained in the case-file relevant to their case[48]. The right to access to documents is inherent in the right of defence as a fundamental principle of EU law[49]. The ECtHR again links that access to the effectiveness of subsequent remedies, noting that “equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention”[50].
  2. Both European Union[51] and Bulgarian[52] law allow certain restrictions on the right to consult the file on account of legitimate reasons envisaged by law. However, any such restrictions must be applied proportionally and approached individually[53]. The decisions taken under the Return Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay[54]. In the decision the administrative body must state the reasons for the exception from the right to be heard that it has applied[55].
  3. Access to the documents contained in the file may be restricted, but not fully prohibited. This applies even in cases of classified information. According to Article 39a of the Protection of Classified Information Act (PCIA), when exercising their constitutional right to defence individuals shall be granted access to all levels of classified information for the time necessary for the exercise of their right to defence and in line with the ‘need-to-know’ principle[56].

(e) Providing the immigrant with an opportunity to make a statement

  1. According to the general procedural rules in Bulgaria, the administrative body has an obligation to provide the foreign national with an opportunity to express his/her views on the evidence gathered in the case within a time period that may not exceed 7 days. The immigrant may make written requests and objections[57]. If the procedural guarantees enumerated above (right to language interpretation, right to legal counsel, right to be notified of the commencement of proceedings, and right to access the file) are present, the immigrant shall be capable of making his/her views known effectively. The points mentioned in the previous paragraph about permissible restrictions of this procedural guarantee and the conditions for its application also apply here.

(f) Obligation of the decision-maker to clarify and take into account all relevant facts in the case and to consider the explanations and objections of the interested person

  1. The administrative body should establish the relevant facts and circumstances of the case and take into account the explanations and objections made by the foreign national[58]. The right to be heard requires government bodies to give proper attention to the views expressed by the immigrant and take due care in objectively examining all relevant facts and circumstances of the case in order to be able to elaborately reason their decision[59]. The elaborate reasoning of immigration detention orders that properly corresponds to the individual case at hand is a criterion for their lawfulness.

(g) Additional procedural guarantees for vulnerable persons

  1. Both European Union[60] and Bulgarian[61] law require the authorities to take into consideration the special needs of vulnerable persons such as children, unaccompanied minors, persons with disabilities, elderly persons, pregnant women, single parents with children, and victims of torture, rape or other serious forms of mental, physical or sexual violence[62]. The possibility for vulnerable persons to make their views known effectively may require additional guarantees, which cannot be applied if a person has not been identified as belonging to a vulnerable group[63].
  2. Both law[64] and practice[65] recognise the need for early identification of vulnerability, as a prerequisite for taking into account the special situation of these persons. On the one hand, the right to be heard is the most effective guarantee for the early identification of a vulnerability. On the other hand, during the hearing indications might appear that additional guarantees and conditions are necessary in order to ensure that the person is effectively heard.
  3. Thus, for example, when an unaccompanied minor declares their age, the administrative body should, inter alia, make arrangements for the appointment of a legal representative and ensure that legal assistance is provided to the child[66]. The infringement of the obligation of the administrative body to give the child a hearing during the decision-making process, if the child is 10-years old or older, is a material breach of the administrative procedure and means that the decision taken in the case is unlawful[67].
  4. According to Article 10(1) of the Return Directive before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child. In Bulgaria this means that the bodies competent to issue return orders must notify the case to the Social Assistance Directorate pursuant to Article 15(7) of the Child Protection Act [68].
  5. If a decision is taken on the return of an unaccompanied child, detention, even for the shortest period, may be incompatible with human dignity.[69] Bulgarian law prohibits detention of unaccompanied minors on immigration grounds[70]. However, a failure to identify a person as an unaccompanied minor or ‘attaching’ the child to an adult on paper, despite the adult not actually accompanying the child, in practice disengages the authorities from their obligation to respect the special rights and guarantees for unaccompanied children laid down by law and exposes these children to a great risk.[71]
  6. The ECtHR has held that immigration detention of accompanied children (which is permissible under Bulgarian law) may also constitute a violation of the prohibition of inhumane and degrading treatment stipulated in Article 3 of the ECHR. The Court has emphasized the extreme vulnerability of children, which should be a primary consideration that takes precedence over the status of an irregular immigrant.[72]                                                                  

1.2. Substantive law content of the right to be heard. In respect of what should the immigrant be heard?

  1. Immigration detention should serve a lawful purpose. According to the Return Directive, detention may be ordered for the purpose of removal, i.e. solely “in order to prepare the return and/or carry out the removal process”[73]. The administrative body should correctly put down the main personal identification data of the immigrant and hear him/her in respect of the legality of their stay and the eventual issuance of a return order, including whether the individual seeks asylum, granting a period for voluntary departure and the existence of individual grounds for imposing detention as a measure of last resort in accordance with the proportionality principle.

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(a) Hearing to establish the basic personal data, notably, age, names and citizenship

  1. The arrangements for the removal of a foreign national include obtaining a travel document issued in the name of the person concerned. This means that the authorities must firstly ensure that the orders on return and detention contain correct personal identification data, such as citizenship (if any), and the names and date of birth of the immigrant. If the essential personal data are noted incorrectly, the removal cannot be effected and the detention would not serve a lawful aim.

(b) Hearing in respect of the return order

  1. Prior to the issuance of a return order, which in turn is a ground for immigration detention, the foreign national must be heard in respect of the legality of their stay, the potential applicability of the non-refoulement principle (existence of pending asylum proceedings or proceedings for renewal or grant of residence or stay), the child’s best interests, family life, the length of stay in the host country, belonging to a vulnerable group, health condition, existence of family, cultural and social ties with the country of origin, existence of a residence permit issued by another EU Member State and the conditions of potential return[74].
  2. If the immigrant has entered the country (irregularly) in order to seek asylum, he/she should not be issued a return order. [75] Article 8 of Directive 2013/32/EU obliges Member States, where there are indications that the immigrant may wish to make an application for international protection, to provide him/her with information on the possibility to do so. In detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure. The immigrant has the status of an asylum seeker from the date of submitting an application for protection.[76] The ECtHR notes that if European Union and international law explicitly authorise the entry or stay of immigrants pending an asylum application, an ensuing detention for the purpose of preventing an unauthorised entry may raise an issue as to the lawfulness of detention under Article 5(1)(f) of the Convention[77].

(c) Hearing on granting a time period for voluntary departure

  1. During the initial stage of the return procedure preference it to be given to voluntary implementation of the return obligation in line with Article 7(1) of Directive 2008/115, according to which the return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days[78].
  2. There are permissible exceptions from the rule that the immigrant shall be given a time period to voluntarily comply with the return decision, which shall be justified by the administrative body as to the reasons why no such period is granted or the granted period is shorter than seven days[79]. In connection with this, the CJEU notes that the Member State cannot refrain automatically – by legislative means or in practice – from granting a voluntary departure period in all cases. “The correct exercise of the option to that effect provided for in Article 7(4) of Directive 2008/115 requires that there must be a case-by-case assessment of whether the refusal to grant such a period is compatible with that person’s fundamental rights.”[80]
  3. Only if no voluntary departure period has been granted in accordance with reasons provided in law or if the obligation to return has not been complied with within the period for voluntary departure, may a Member State, which has issued a return decision against an irregularly staying third-country national, carry out the removal by taking all necessary measures including, where appropriate, coercive measures such as immigration detention, in a proportionate manner and with due respect for fundamental human rights[81]

(d) Hearing on the proportionality of detention

46. According to Article 15(1) of the Return Directive, immigration detention may be imposed only upon the cumulative presence of the following individual grounds related to the principle of proportionality: there is a risk of absconding or the third-country national avoids or hampers the preparation of return or the removal process and less coercive measures cannot be applied effectively in the specific case [82]

47. The CJEU underlines the need for gradation of the measures taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for voluntary departure, to measures which restrict that liberty the most, namely detention; the principle of proportionality must be observed throughout each of those stages[83]. This means that prior to imposing the heaviest measure (detention), the administrative body should hear the immigrant regarding the feasibility of alternatives to detention[84]. In Bulgaria, such an alternative is the obligation to report to the local police station on a weekly basis pursuant to Article 44(5) of the Foreign Nationals in the Republic of Bulgaria Act.



2. The right to be heard as a remedy after the issuance of an immigration detention order. The right to appeal and to a speedy and fair judicial review.

48. Access to justice is a fundamental tenet of the State of the rule of law. The Return Directive provides that when detention has been ordered by administrative authorities, Member States shall: (а) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; or (b) grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings.

49. Automatic judicial review guarantees that the lawfulness of the detention of each immigrant is subject to review by an independent authority.

50. Access to justice conditioned on the submission of an appeal by the detained immigrant within a certain preclusive time period[85] requires Member States to ensure certain procedural guarantees for the exercise of the right to make an appeal. These procedural guarantees include the right to information (without delay and in a language that the detainee understands) and the right to access to legal counsel. The ECtHR consistently recalls that “the existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness” [86].

(а) Right to information

  1. A detained person has the right to be informed of the reasons for his/her detention and the rights in relation with the detention order, including the right to file a complaint[87]. The ECtHR reiterates that Article 5(2) ECHR “contains the elementary safeguard that any person arrested should know why he or she is being deprived of liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of Article 5 § 2 any person arrested must be told, in simple, non-technical language that can be easily understood, the essential legal and factual grounds for the arrest, so as to be able, if he or she sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4.”[88] Article 15(2) of the Return Directive provides that Member States shall immediately inform the third-country national about the possibility of contesting the detention.
  2. The authorities must provide that information immediately[89] and in a language that the detained person understands. In the case Conka v. Belgium the ECtHR dismissed the government’s objection that the applicant had not exhausted all available domestic remedies for appeal, finding that such remedies were inaccessible. The facts of the case showed that the information about the possibility to contest the decision was printed in tiny characters in a language that the applicants did not understand; that only one interpreter had been provided for a large group of people; that these circumstances meant that the applicants had little prospect of being able to contact a lawyer in a timely manner. The Court concluded that ‘the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective’[90].

(b) Right to access to legal counsel

  1. In view of the fact that the immigrant is detained, does not know the official language (in the typical case) and has no knowledge of the legal system of the detaining State, effective access to justice requires that also legal assistance for exercising the right to appeal is ensured[91]. Providing legal assistance during the administrative process means that the foreign national is better informed and is one of the preconditions for the effective exercise of the right to file a complaint. Thus in the Case Conka v. Belgium the Court held that the accessibility of the remedies was undoubtedly affected by the government failing to provide any form of legal assistance to the detained immigrants both at the police station and at the immigration detention centre[92].

(c) Right to speedy judicial review

  1. According to Article 5(4) of the ECHR and Article 9(3) of the ICCPR, a detained person is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily (ECHR)[93] and without delay (ICCPR) by a court and his/her release ordered immediately[94], if the detention is unlawful. EU law contains identical requirements.[95] The guarantees for the exercise of the right to speedy judicial review are of key importance, because this is the remedy in case of arbitrary detention (for example, in breach of the right to be heard).

(d) Right to a fair trial

  1. The requirement for a speedy trial should not detract from the requirement for a fair trial. When applying the Return Directive, Member States shall observe Article 47 of the Charter of Fundamental Rights of the European Union, according to which everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. The right of the detained person to be heard by the court is an essential feature of fair and equitable trial.
  2. With regard to the effectiveness of the judicial remedy, the procedural guarantees for the exercise of the right to be heard in the administrative procedure apply mutatis mutandi in the procedure before the court[96]. During the court trial the immigrant has the following rights: right to a language interpreter; right to be notified of the scheduled time of the court hearing and of the right to be heard; right to assistance by a legal counsel; right to access to one’s file[97]; right to make one’s views known and to have all relevant facts and circumstances be properly analysed and taken into consideration by the deciding court.                                                                                                                                             

3. The right to be heard during immigration detention

3.1. Conditions of detention

  1. Conditions of detention of immigrants play a key role regarding the exercise of the right to be heard during detention. These conditions shall be humane and afford the necessary respect for human dignity inherent to every human being. Where they fall below the requisite standards, conditions of detention amount to degrading treatment[98], which hampers the possibility to grant an effective hearing.
  2. Administrative detention on immigration grounds shall not create an impression of a carceral environment. Accommodation must be adequately furnished, clean and in a good state of repair. Organised activities should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation[99].
  3. The staff at detention centres should be provided with training that would equip them with interpersonal communication skills, familiarise them with the different cultures of the detainees and enable them to recognise different vulnerabilities. There should also be staff and interpreters available who speak the main languages spoken by the detainees[100].
  4. Detainees should be systematically provided with information which explains the rules applied in the facility and the procedure applicable to them and sets out their rights and obligations. This information should be available in the languages most commonly used by those concerned and, if necessary, recourse should be made to the services of an interpreter[101].
  5. National authorities should ensure that the persons detained in these facilities have access to lawyers (including a possibility to consult lawyers in private), doctors, non-governmental and governmental organisations and members of their families. Detainees shall be able to communicate with the outside world, in accordance with the relevant national regulations[102].
  6. Member States shall provide for an effective forced-return monitoring system, including regular monitoring of detention facilities by recognised independent monitors[103]. According to Bulgarian law[104] the Ombudsman and representatives of national and international non-governmental organisations monitor the enforcement of return orders. When conducting a monitoring exercise observers should not only have visual contact with the foreign nationals to be removed, but also the possibility to hear them.
  7. The authorities shall put in place an effective mechanism for hearing complaints by detainees against alleged instances of ill-treatment or failure to protect them from violence by other detainees. Complainants and witnesses shall be protected against any subsequent ill-treatment or intimidation. The competent bodies shall effectively investigate the complaints.[105]

The right to be heard in disciplinary proceedings

  1. The conduct that constitutes a breach of disciplinary rules, the description and length of disciplinary punishments and the procedure for their enforcement, as well as the bodies competent to impose such punishments, must be defined by law[106]. Detainees are entitled to be heard prior to any disciplinary punishments being imposed[107]. They have the right to obtain a written act setting out the factual and legal grounds for the disciplinary punishments and contest it before an independent (judicial) body.

3.2 Hearing in the context of proper preparation or enforcement of removal

  1. According to Article 15(1) of the Return Directive, “Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process”[108]. The ECtHR also requires any actions relating to removal to be carried out with due diligence[109]. During the entire period of detention, the authorities must “actively and continuously, on an ongoing basis” take steps to obtain valid travel documents from the respective Embassy[110]. The ECtHR requires that the authorities take “vigorous action”[111].
  2. A condition for the efficiency of the actions taken to obtain travel documents is the correct identification of the country of destination of the removal[112]. If the country in question is not identified or has been identified incorrectly, the removal is doomed to failure[113]. Hearing the immigrant in determining the country of destination plays a key role. The breach of the right to be heard in this context amounts to a failure to properly execute return procedures, which in turn renders the detention unlawful. The immigrant is not only an object of return, but he/she can be an active subject in this process.

3.3. Review of detention at regular intervals

  1. The Return Directive provides that ‘in every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio’[114]. Detention shall only last as long as long as the conditions for its imposition are fulfilled in accordance with Article 15(1) and it is necessary to ensure successful removal.[115] When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in Article 15(1) no longer exist, detention ceases to be justified and the person concerned shall be released immediately [116] .
  2. Hearing the detained immigrant in the context of detention review is a prerequisite for the effectiveness and lawfulness of the review. In many cases the refusal of the detained foreign national to sign voluntary return documents entails the refusal of the diplomatic mission of the respective country of origin to issue travel (entry) documents. In such cases the authorities must assess whether the possibility for removal is reasonable and realistic, and not abstract and theoretical[117]. If the removal is practically impossible, detention is no longer justified as it is not an end in itself, but shall serve its lawful purpose, removal.[118]
  3. The reasons for imposing detention may cease to exist on account of a possibility to apply a less coercive measure, an alternative to detention. Where there are indications that this is the case, the authorities shall give the interested immigrant a hearing and prioritise the less coercive measure, if applicable.[119]
  4. A frequently encountered legal barrier for the enforcement of removal is the submission of an application for international protection by the immigrant. In this case the return process is ceased by law and detention for the purpose of removal is no longer justified. If the authorities find it necessary to detain the applicant for international protection, such detention may be lawful solely if based on a separate order issued pursuant to grounds stipulated in refugee law[120]. It should also be recalled that an immigrant becomes an applicant for international protection from the time of lodging the asylum application[121]. Detention for the purpose of removal should be discontinued from this point onwards.
  5. As the ECtHR held in Suso Musa[122] and M.[123], immigration detention of asylum seekers cannot be justified for the purpose “to prevent effecting an unauthorised entry into the country” under Article 5(1)(f) either, if the national legislation (of the Member State’s own motion or pursuant to European Union law) explicitly authorises asylum seekers to stay on the territory of the host country during the examination of their application for international protection.[124]
  6. When detention for the purpose of removal continues to take place during the procedure for examining the application for international protection, this is not only unlawful in and of itself, but also affects the lawfulness of the decision on the asylum application.[125] The fairness of the procedure on examining the asylum application while the applicant is in immigration detention is strongly undermined[126] and the stakes are too high: the assessment[127] of the risk of persecution or serious harm and the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the European Union.[128]

4. Right to be heard upon extension of the length of immigration detention

73. According to the Return Directive, every Member State may determine the maximum period of detention, which may not exceed six months. By way of exception, Member States may extend the six-month period of detention by an additional twelve months. Article 15(6) of the Return Directive envisages two alternative substantive law conditions for extending detention, in cases where regardless of all reasonable efforts by the authorities the removal operation is likely to last longer owing to: (а) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries. The authorities shall grant the immigrant a hearing prior to assessing the existence of any of these two substantive law conditions for continuing the period of detention.

74. In its Judgment in Case Djalti v. Bulgaria, the ECtHR held that the lack of cooperation from the detained immigrant did not discharge the state authorities of the obligation to prepare his removal with due care and that, if the government failed to actively take steps to this end, the conduct of the detained foreign national does not justify extended detention: ‘taking into account the passivity of the Bulgarian authorities, the conduct of the applicant does not appear to be the main reason for the accumulated delay in carrying out the coercive removal’[129]. EU law concurs, with Article 15(1), (4) and (6) of the Return Directive requiring the government authorities to properly executive return procedures with ‘due diligence’ and to exert all reasonable efforts in this regard. Where there is no reasonable prospect of removal of the immigrant, detention must be immediately discontinued.

75. In its judgment in Mahdi C-146/14, the CJEU firstly recalls that there must be a reasonable prospect for removal, having regard to the periods laid down in the Return Directive.[130] The second requirement under Article 15(4) of Directive 2008/115 entails re-examining the substantive conditions set out in Article 15(1) of the Return Directive which have formed the basis for the initial decision to detain the third-country national concerned.[131] Thus, for example, if in the specific case other sufficient but less coercive measures than detention can be applied effectively, they should replace detention. Thirdly, Article 15(6) of the Return Directive requires that, before it considers whether the two substantive law conditions for continuing the period of detention are present, the authority concerned should be able to demonstrate that the removal operation is lasting longer than anticipated, despite all its reasonable efforts. That, for example, means that the competent authorities should have sought, and should still actively be seeking, to secure the issue of identity documents for the immigrant[132]. Lastly, the decision-making body shall establish whether there is ‘a lack of cooperation by the detainee concerned’ or ‘delays in obtaining the necessary documentation from third countries’.

76. With regard to the hypothesis ‘a lack of cooperation by the detainee concerned’, the CJEU notes that its application requires a detailed examination of the factual matters and the conduct of the immigrant relating to the whole of the initial detention period. The question to be answered is whether it is likely that the removal operation lasts longer than anticipated namely because of this lack of cooperation[133]. An issue that should also be taken into consideration is whether during the initial detention period the authorities have created the necessary conditions for proper communication with the immigrant in order to be able to receive his cooperation.

4.1 Right to be heard by the administrative body prior to the decision to extend detention

  1. It should be underlined that in deciding on extension of ongoing detention there is nothing to prevent the authorities from giving the person concerned an effective prior hearing with a view to adopting the measure extending his/her detention. The hearing is not difficult to carry out, because there is no urgency – the immigrant is already being held in detention and therefore presents no risk of absconding.[134] In order to be able to hear the detained immigrant, the officers in power must provide conditions and space, in which the detainee can speak. Since, in the case at hand, the ‘interlocutor’ is detained, the conduction of this conversation depends mainly on the arrangements created by the authorities.
  2. Similar to the decision on initial detention, the hearing of the concerned immigrant is a precondition for making an elaborately reasoned decision. The decision-making authority shall approach each case on its own individual merits. Taking into account the evidence gathered in the HEAR Project[135] on the practical application of the right to be heard in conditions of immigration detention, we concur with the view of the Advocate General in Case C‑383/13 that a confirmed infringement of the right to be heard at the time of extending immigration detention under Article 15 (6) of the Return Directive can in no circumstances be regarded as a ‘minor’ or ‘limited’ infringement of that right [136].

4.2 Right to be heard by a court of law in the context of judicial review

  1. A safeguard for hearing the detained immigrant by the Court is the possibility to communicate with him/her, both during the court hearing and during the phases of summoning of the person concerned and notifying the judgment. Taking into account the conditions of detention, courts should pay due attention to the actual receipt of the summonses and other communications by the concerned immigrant in a language that he/she understands[137].
  2. In accordance with the requirements for effectiveness of remedies under Article 5(4) of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union, court proceedings shall be adversarial and ensure equality of the parties. To that end, the immigrant detained shall be heard directly by the court, with the assistance of an interpreter and legal aid by a counsel.[138] The procedural guarantees for the right to be heard in the administrative procedure yet again apply mutatis mutandi to the hearing by the court.[139]
  3. The rigorousness of the lawfulness review, exercised by the court, shall increase naturally in proportion to the length of detention. The longer an individual has been deprived of his/her fundamental right to liberty, the more solid the basis for this decision must be. Over time, the burden of proof placed on the detaining authority to demonstrate that the detention is in line with the legitimate aim of effective return increases. In this regard the right to be heard plays an extremely important role in establishing all relevant facts.
  4. In conclusion, it is noteworthy that not only national authorities are obliged to respect the rights of the defence and the right to be heard when they implement EU law, but also that, in order for these rights not to remain a dead letter or a pure formality, the persons concerned are entitled to rely on them directly before the national jurisdictions. [140]                                                                                                                                             

IV. SELECTED BIBLIOGRAPHY

In Bulgarian:

Bulgarian Lawyers for Human Rights, Analysis of the case-law of the Sofia City Administrative Court, the Haskovo Administrative Court and the Supreme Administrative Court on judicial review of detention orders issued against foreign nationals and the extension of the period of their detention beyond six months, 2016

Ilareva, Valeria, Immigration Detention in International Law and Practice (In search of solutions to the challenges faced in Bulgaria), Human Rights Magazine, issue 1/2008

Ilareva, Valeria (ed.) et al., Collection on Refugee Law, 2015,  http://refugees.farbg.eu/sbornik-po-bejansko-pravo/

In English:

Barna Maria, Gábor Gyulai, with contributions from project partners, Access of Torture Survivor and Traumatised Asylum-Seekers to Rights and Care in Detention. From Torture to Detention, 2016

Centre for Legal Aid – Voice in Bulgaria, Reasons for Detaining Migrants Easy to Find, Study of Court Decisions Shows, 1 February 2016, http://detainedinbg.com

Costello, Cathryn, The Human Rights of Migrants and Refugees in European Law, Oxford University Press, 2015

De Bruycker, Philippe, and Sergo Mananashvili, “Audi alteram partem in immigration detention procedures, between the CJEU, the ECtHR and Member States: G & R“, Common Market Law Review 52 (2015): 569–590

EASO, Tool for Identification of Persons with Special Needs, 2016 https://ipsn.easo.europa.eu/

ECRE, The Legality of Examining Asylum Claims in Detention from the Perspective of Procedural Rights and Their Effectiveness, 2015

FRA, Alternatives to detention for asylum seekers and people in return procedures, 2015

Ilareva, Valeria, Solitary Confinement of Immigration Detainees, Silesian Journal of Legal Studies, Vol.2/2010, pp.45-57

Ilareva, Valeria, Undocumented Immigrants and Their Access to Fundamental Human Rights, Scholars’ Press, 2013

Ilareva, Valeria, Detention of asylum seekers: interaction between the Return and Reception Conditions Directives in Bulgaria, Odysseus Network Blog, November 2015

Ilareva, Valeria, Analysis of the legal and administrative barriers to the functioning of the Coordination mechanism for interaction between institutions and organisations responsible for guaranteeing the rights of unaccompanied foreign minors in the Republic of Bulgaria, including individuals seeking protection or those to whom protection has been granted, UNICEF, 2016

International Detention Coalition, There are alternatives, 2015

Jesuit Refugee Service Europe, Becoming vulnerable in detention. Civil Society Report on the Detention of Vulnerable Asylum Seekers and Irregular Migrants in the European Union (The DEVAS Project), 2010

Moraru, Madalina; Renaudiere, Geraldine, European synthesis report on the judicial implementation of chapter III of the return directive procedural safeguards, 2016

Odysseus Academic Network, MADE REAL – Training Tool on Alternatives to Detention, 2015

 

V. RELEVANT CASE-LAW

European Court of Human Rights

Judgment of 22 March 1995 in the Case Quinn v. France, Application 18580/91

Judgment of 25 June 1996 in the Case Amuur v. France, Application 19776/92

Judgment of 15 November 1996 in the Case Chahal v. the United Kingdom, Application 22414/93

Judgment of 6 March2001 in the Case Dougoz v. Greece, Application No.40907/98

Judgment of 5 February 2002 in the Case Conka v. Belgium, Application 51564/99

Judgment of 8 February 2005 in the Case Bordovskiy v. Russia, Application 49491//99

Judgment of 29 January 2008 in the Case Saadi v. the United Kingdom, Application 13229/03

Judgment of 22 September 2009 in the Case Abdolkhani and Karimnia v. Turkey, Application 30471/08

Judgment of 19 January 2010 in the Case Muskhadzhiyeva and Others v. Belgium, Application 41442/07

Judgment of 11 February 2010 in the Case Раза срещу България, Application № 31465/08

Judgment of 21 January 2011 in the Case M.S.S. v. Belgium and Greece, Application 30696/09

Judgment of 5 April 2011 in the Case Rahimi v. Greece, Application 8687/08

Judgment of 7 June 2011 in the Case R.U. v. Greece, Application 2237/08

Judgment of 26 July 2011 in the Case M. and Others v. Bulgaria, Application 41416/08

Judgment of 20 September 2011 in the Case Lokpo et Touré v. Hungary, Application 10816/10

Judgment of 11 October 2011 in the Case Awad v. Bulgaria, Application 46390/10

Judgment of 19 January 2012 in the Case Popov v. France, Application 39472/07, 39474/07

Judgment of 12 February 2013 in the Case Amie and Others v. Bulgaria, Application № 58149/08

Judgment of 12 March2013 in the Case Djalti v. Bulgaria, Application 31206/05

Judgment of 13 June 2013 in the Case A.F. v. Greece, Application 53709/11

Judgment of 23 July 2013 in the Case M.A. v Cyprus, Application 41872/10

Judgment of 23 July 2013 in the Case Suso Musa v. Malta, Application 42337/12

Judgment of 17 December 2013 in the Case Černák v. Slovakia, Application 36997/08

Judgment of 17 July 2014 in the Case Kim v. Russia, Application 44260/13

Judgment of 11 December 2014 in the Case Mohamad v. Greece, Application 70586/11

Judgment of 15 January 2015 in the Case Mahammad and Others v. Greece, Application 48352/12

Judgment of 19 May 2016 in the Case J.N. v. the United Kingdom, Application 37289/12

Judgment of 5 July 2016 in the Case O.M. v. Hungary, Application 9912/15

Judgment of 12 July 2016 in the Case A.B. and Others v. France, Application 11593/12

 

Court of Justice of the European Union

Judgment of 10 July 1980 in the Case Distillers Company/Commission (30/78)

Judgment of 21 November 1991 in Case Technische Universität München, C‑269/90

Judgment of 15 June 2006 in the Case Dokter and Others, C‑28/05

Judgment of 3 September 2008 in joined Cases Kadi I, C‑402/05 P and C‑415/05 P

Judgment of 18 December 2008 in the Case Sopropé, C-349/07

Judgment of 30 November 2009 in the Case Kadzoev, C‑357/09 PPU

Judgment of 28 April 2011 in the Case El Dridi, С-61/11 PPU

Judgment of 19 May 2011 in the Case Iaia and Others, С-452/09, paragraph 16

Judgment of 21 December 2011 in the Case France/People’s Mujahidin Organization of Iran, C‑27/09 P

Judgment of 22 November 2012 in Case М., С-277/11

Judgment of the Court (Grand Chamber) of 4 June 2013 in Case ZZ, C-300/11

Judgment of 10 September 2013 in Case M.G. и N.R., C‑383/13 PPU

Judgment of 5 June 2014 in the Case Mahdi, C-146/14 PPU

Judgment of 17 July 2014 in joined cases YS and Others, C‑141/12 и С‑372/12

Judgment of 5 November 2014 in the Case Mukarubega, С-166/13

Judgment of 11 December 2014 in the Case Boudjlida, С-249/13

Judgment of 11 June 2015 in the Case Zh. and O., C-554/13

Judgment of 17 March2016 in the Case Bensada Benallal, C-161/15

 

Bulgarian case-law

Supreme Administrative Court

Judgment of 5 August 2011 of the SAC in Case No 13868/2010

Ruling of 9 November 2011 of the SAC in Case No 13731/2011

Judgment of 27 April 2012 of the SAC in Case No5255/2011

Judgment of 02 July 2014 of the SAC in Case No358/2014

Judgment of 5 August 2014 of the SAC in Case No16862/2013

Judgment of 14 July 2015 of the SAC in Case No15154/2014

Judgment of 23 November 2015 of the SAC in Case No15238/2014

Ruling of 01 December 2015 of the SAC in Case No 12205/2015

Sofia City Administrative Court

Judgment of 29 September 2008, Second panel, Case 2054/2008

Judgment of 12 March2012, Twelfth Panel, Case 6758/2009

Judgment of 7 January 2013, Tenth Panel, Case 6638/2012

Judgment of 30 April 2013, Forty-fourth Panel, Case 3502/2013

Judgment of 8 October 2014, Twenty-eight Panel, Case 5670/2014

Judgment of 2 December 2015, Fourth Panel, Case 8571/2015

Ruling of 14 December 2015, Forty-fourth Panel, Case 11493/2015

Judgment of 28 December 2015, Eleventh Panel, Case 10640/2015

Judgment of 19 January 2016, Fifteenth Panel, Case 10635/2015

Ruling of 26 February 2016, Fifteenth Panel, Case 176/2016

Judgment of 26 July 2016, Forty-seventh Panel, Case 3817/2016

Burgas Administrative Court

Judgment of 17 May 2013 of the Burgas Administrative Court, Case 1428/2012

[1] Project HEAR: Hearing Entails Awareness and Rights, http://hear.farbg.eu, is implemented by the Foundation for Access to Rights (FAR), a non-governmental organisation in Bulgaria. Within the framework of the project, the senior FAR lawyer conducted 30 in-depth interviews with detained immigrants in Bulgaria and documented the practices relating to the application of the right to be heard in the context of detention on immigration grounds.

[2] View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the Court of Justice of the European Union, paragraph 44

[3] CJEU Judgment of 18 December 2008 in Sopropé, C-349/07, paragraph 49; CJEU Judgment of 5 November 2014 in Mukarubega, С-166/13, paragraphs 46-48

[4] Unlike in Bulgarian, in English the right of defence is used in the plural (‘rights of the defence’). See, for example, Case С-383/13 PPU before the European Court of Justice

[5] CJEU Judgment of 10 September 2013 in Case M.G. и N.R., C‑383/13 PPU, paragraph 32; View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the CJEU, paragraph 44; CJEU Judgment of 11 December 2014 in Case Boudjlida, С-249/13, paragraphs 32-34

[6] In its Judgment of 5 August 2014 in Case 16862/2013 the Bulgarian Supreme Administrative Court held that the right to be heard is one of the forms of the constitutional right to defence enshrined in Article 56 of the Constitution.

[7] CJEU Judgment of 22 November 2012 in Case М., С-277/11, paragraph 86; CJEU, M.G. и N.R., C-383/13, paragraph 32

[8] СJEU, М., C-277/11, paragraph 88;

[9] ECHR Judgment of 20 September 2011 in Case Lokpo et Touré v. Hungary, Application 10816/10, paragraphs 24 and the case-law cited therein.

[10] CJEU Judgment of 15 June 2006 in Case Dokter and Others, C‑28/05, paragraph 75. The case concerns the highly infectious Foot-and Mouth Disease and the need to combat it effectively; CJEU Judgment of 21 December 2011г. in Case France/People’s Mujahidin Organization of Iran, C‑27/09 P, paragraphs 61—67. The case concerns the initial decisions to freeze the assets of persons and entities linked to terrorist networks; Judgment of 3 September 2008 in cases Kadi I, C‑402/05 P and C‑415/05 P. The case concerns the initial decisions to freeze the assets of persons and entities linked to terrorist networks.

[11] CJEU, M.G. и N.R., C‑383/13 PPU, paragraph 33

[12] CJEU, ZZ, C-300/11, paragraph 51; CJEU, Zh. and O., C-554/13, paragraph 69; View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the Court of the European Union, paragraph 55

[13] CJEU, M.G. и N.R., C‑383/13 PPU, paragraphs 35-36

[14] CJEU Judgment of 28 April 2011 in Case El Dridi С-61/11 PPU, paragraph 31; CJEU, Mukarubega, С-166/13, paragraph 39

[15] Article 6 of the Charter of Fundamental Rights of the European Union; Article 5 of the European Convention for the Protection of Humna Rights and Fundamental Freedoms

[16] View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the Court of the European Union, paragraph 53

[17] View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the Court of the European Union, paragraph 54

[18] CJEU Judgment of 10 July 1980 in Case Distillers Company/Commission (30/78)

[19] Judgment of the European Court of Humna Rights of 25 June 1996 in Case Amuur v. France, Application Nо 19776/92, paragraph 50; ECHR Judgment of 29 January 2008 in Case Saadi v. the United Kingdom, Application 13229/03, paragraph 67; ECHR Judgment of 23 July 2013, M.A. v Cyprus, Application 41872/10, paragraph 197; ECHR Judgment of 5 July 2016 in Case O.M. v. Hungary, Application 9912/15, paragraph 41 and the case-law cited therein

[20] Article 9, paragraph 1 of the ICCPR stipulates as follows: ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law’.

[21] UN Human Rights Committee, General Comment 35: Article 9 (Liberty and security of person), CCPR/C/GC/35, 16 December 2014, paragraph 14

[22] See, for example, CJEU, M.G. и N.R., С-383/13, paragraph 32; CJEU, Boudjlida, С-249/13, paragraph 36

[23] CJEU Judgments in joined Cases YS and Others, С-141/12 and С-372/12, paragraph 68; Mukarubega, С-166/13, paragraphs 44-45; Boudjlida, С-249/13, paragraphs 32-34. In connection with respect for the fundamental rights provided for in the Charter as general principles of European Union law, see also Judgment of 30 April 2013 on the record of the Sofia City Administrative Court, Forty-fourth Panel, Case No 3502/2013, pages 11 and 12

[24] View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the Court of the European Union, paragraphs 46-48

[25] According to Article 15(2) of Directive 2008/115/EC detention is ordered by the administrative or judicial authorities. In Bulgaria, detention is ordered by the administrative authorities.

[26] Article 15(1) of Directive 2008/115/EC provides that Member States may detain third country nationals, only if in the specific case there is a risk of absconding or the third-country national concerned avoids or hampers the preparation of return or the removal process (test of necessity) and no other sufficient but less coercive measures can be applied effectively (test of proportionality).

[27] CJEU, Boudjlida, С-249/13, paragraph 36

[28] In Bulgaria, prior to the issuance of an immigration detention order foreign nationals have already been detained for 24 hours pursuant to the Ministry of Internal Affairs Act (MIAA) (according to Article 72(1)(4) of the MIAA the police may detain a person for up to 24 hours in order to establish their identity).

[29] ECHR Judgment of 5 February 2002г. in Case Conka v. Belgium, Application 51564/99, paragraph 42. Concerning practices in Bulgaria, see Case-study 9 (Musab).

[30] CJEU, Sopropé, C-349/07. In the case at hand the dispute concerns the time period to be given to the interested person in order to make a statement.

[31] CJEU Judgment of 19 May 2011 in the case Iaia and Others, С-452/09, paragraph 16

[32] Recital 6 of the Preamble of the Return Directive. In this sense, see Judgment of the Supreme Administrative Court of 5 August 2011 in Case No 13868/2010

[33] Article 12(2) of the Return Directive requires as a minimum standard from Member States to provide, upon request, a written or oral translation of the main elements of decisions related to return, including information on the available legal remedies, in a language the third-country national understands or may reasonably be presumed to understand. Paragraph 3 of the same provision allows, by way of exception, the use of “a standard form”, which main elements are explained in generalised information sheets in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned.

[34] Recital 28 of Directive 2013/32/EU stipulates as follows: ‘In order to facilitate access to the examination procedure at border crossing points and in detention facilities, information should be made available on the possibility to apply for international protection. Basic communication necessary to enable the competent authorities to understand if persons declare their wish to apply for international protection should be ensured through interpretation arrangements’. In this sense, see also Article 8 of the Directive.

[35] Moraru, Madalina; Renaudiere, Geraldine, European synthesis report on the judicial implementation of chapter III of the return directive procedural safeguards, 2016, http://hdl.handle.net/1814/42184, pp.23-25

[36] In Ruling of 9 November 2011 in Case № 13731/2011, SAC stated that laying the signature by an immigrant under a blanket check “I am familiar with this order in a language that I speak” without establishing that at the time of service of the act this language was Bulgarian is not a necessary and sufficient proof of notification of the order to the addressee in a language he/she knows. SAC took into account that the order did not state the language, in which its contents was brought to the attention of the foreign citizen, and there was no evidence of presence of an interpreter pursuant to Art. 14, para. 2 and par. 3 of APC.

[37] Per argumentum Article 14(4) of the Administrative Procedure Code (APC).

[38] Article 74(2)(6)(f) of the MIAA.

[39] Regulation No 8121z-78 of 24 January 2015 laying down the rules and procedure for detention, furnishing the premises intended for accommodation of detainees and the internal order at such centres, Article 16

[40] Article 26 of the APC

[41] Judgment of 29 September 2008 in Case 2054/2008, Second Panel of the Sofia City Administrative Court, page 3; Judgment of 8 October 2014 in Case 5670/2014, Twenty-Eight Panel of the Sofia City Administrative Court, page 3; Judgment of 5 August 2014 in Case 16862/2013, Supreme Administrative Court

[42] Judgment of 7 January 2013 in Case 6638/2012, the Tenth Panel of the Sofia City Administrative Court, page 2

[43] Article 26, paragraph 2 of the Bulgarian Constitution confers these rights to all foreign nationals staying in Bulgaria

[44] CJEU, Boudjlida, C-249/13, paragraph 65

[45] Article 21(4) of the Legal Aid Act

[46] Instruction No 8121z-78 of 24 January 2015 laying down the rules and procedure for arrest, furnishing the premises intended for accommodation of arrested persons and the internal order at such centres, Article 15.

[47] Ibid, Article 15, paragraph 7

[48] Article 34, paragraph 1 of the APC. According to the provision the person is also entitled to make notes and obtain excerpts or – where there is a technical possibility to do so – obtain copies.

[49] CJEU, M.G. и N.R., C‑383/13 PPU, paragraph 32

[50] ECtHR Judgment of 25 March 1999 in Case Nikolova v. Bulgaria, Application 31195/96, paragraph 58

[51] Article 12(1) of the Return Directive allows for the information on reasons in fact to be limited, in particular “in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences”.

[52] Article 34 (4) of the APC

[53] With regard to the application of the concept of ‘risk to public policy’, the CJEU states: “When it relies on general practice or any assumption in order to determine such a risk, without properly taking into account the national’s personal conduct and the risk that that conduct poses to public policy, a Member State fails to have regard to the requirements relating to an individual examination of the case concerned and to the principle of proportionality.” (CJEU, Zh. and O., C-554/13, paragraph 50)

[54] Recital 6 of the Preamble to the Return Directive.

[55] Judgment of 12 March 2012 in Case 6758/2009, the Twelfth Panel of the Sofia City Administrative Court, page 5; Judgment of 17 May 2013 in Case 1428/2012, the Burgas Administrative Court; Judgment of 14 July 2015 in Case 15154/2014 of SAC; Judgment of 27 April 2012 in Case 5255/2011 of SAC

[56] According to Article 3, paragraph 2 of the Protection of Classified Information Act the ‘need-to-know’ principle entails limiting access only to certain types of classified information.

[57] Article 34, paragraph 3 of the APC.

[58] Article 35 of the APC.

[59] CJEU, М., C-277/11, paragraph 88; CJEU Judgment of 21 November 1991, Judgment in Case Technische Universität München, C‑269/90, paragraph 14; CJEU, Sopropé, C-349/07, paragraph 50

[60] Article 14(1)(d) and Article 16(3) of the Return Directive; Article 21 of Directive 2013/33/ЕU

[61] Article 44, paragraph 2 of the Foreign Nationals in Bulgaria Act

[62] The legal definition of ‘vulnerable persons’ is laid down in Article 3, paragraph 9 of the Return Directive and §1(4)(b) of the Supplementary provisions of the Foreign Nationals in Bulgaria Act

[63] See, for example, EASO, Tool for Identification of Persons with Special Needs, https://ipsn.easo.europa.eu/

[64] For example, Article 22 of Directive 2013/33/EU

[65] See, for example, Barna Maria, Gábor Gyulai, with contributions from project partners, Access of Torture Survivor and Traumatised Asylum-Seekers to Rights and Care in Detention. From Torture to Detention, 2016; Jesuit Refugee Service Europe, Becoming vulnerable in detention. Civil Society Report on the Detention of Vulnerable Asylum Seekers and Irregular Migrants in the European Union (The DEVAS Project), 2010

[66] Article 15 of the Child Protection Act envisaged the following guarantees for child participation in procedures:

“(1) All cases of administrative or judicial proceedings affecting the rights and interests of a child should provide for an obligatory hearing of the child, provided he or she has reached the age of 10, unless that proves harmful to his or her interests.

(2) In cases where the child has not reached the age of 10, he or she may be given a hearing depending on the level of his or her development. The decision to hear the child shall be substantiated.

(3) Before the child is given a hearing, the court or the administrative body shall:

  1. provide the child with the necessary information, which would help him or her form his or her opinion;
  2. inform the child about the possible consequences of his or her desire, of the opinion supported by him or her, as well as about all the decisions made by the judicial or administrative body.

(4) The hearing and the consultation of a child shall by all means take place in appropriate surroundings and in the presence of a social worker from the Social Assistance Directorate at the current address of the child and when there is necessity – in the presence of another appropriate specialist.

(5) The court or the administrative body shall order that the hearing of the child shall take place also in the presence of a parent, guardian or other close to the child person, with the exception when this is not in the child’s best interest.

(6) In every legal case the court or the administrative body shall notify the Social Assistance Directorate at the current address of the child.  The Social Assistance Directorate shall send a representative of its own to the case, who shall express a viewpoint, and if it becomes impossible, he/she shall present a report.

(7) The Social Assistance Directorate may represent the child in cases provided for by law.

(8) The child has a right to legal aid and appeal in all proceedings, affecting his or her rights or interests.”

[67] See, for example, Judgment of 23 November 2015 in Case 15238/2014 before the Supreme Administrative Court; Judgment of 28 December 2015 in Case 10640/2015, the Eleventh Panel of the Sofia City Administrative Court; Judgment of 19 January 2016 in Case 10635/2015, the Fifteenth Panel of the Sofia City Administrative Court; Judgment of 2 February 2014 in Case 358/2014 before the Supreme Administrative Court; Judgment of 29 September 2008 in Case 2054/2008, the Second Panel of the Sofia City Administrative Court.

[68] Ilareva, Valeria, An Analysis of legal and administrative barriers to the operation of a Coordination mechanism ensuring interaction among institutions and organisations involved in guaranteeing the rights of unaccompanied minor aliens staying in the Republic of Bulgaria, UNICEF, 2016

[69] ECtHR Judgment of 5 April 2011 in Case Rahimi v. Greece, Application 8687/08 – the case concerns the detention of a child that lasted 2 days; see, also, ECtHR Judgment of 11 December 2014 in Case Mohamad v. Greece, Application 70586/11, in which the Court held that the extension of detention on immigration grounds after the eighteenth birthday of the child was arbitrary.

[70] Article 44, paragraph 9 of the Foreigners in the Republic of Bulgaria Act stipulates as follows: “By way of exception, if the circumstances set out in paragraph (6) for accompanied minors or underage individuals are present, an order for their coercive accommodation in a special centre for up to three months shall be issued. At the special centres referred to in paragraph (7), separate rooms for the accommodation of minor and underage aliens shall be provided that are appropriate for their needs and requirements. Detention of unaccompanied minors shall be prohibited. The body which issued the return decision shall notify the “Social Assistance” Directorate, which has an obligation to take the measures envisaged in the Child Protection Act”.

[71] See, for example, the individual case studies under the HEAR project (Unaccompanied children from Pakistan and Unaccompanied children from Afghanistan), http://hear.farbg.eu/evidence-collection/case-studies/

[72] ECtHR Judgment of 19 January 2010 in Case Muskhadzhiyeva and Others v. Belgium, Application 41442/07; ECtHR Judgment of 19 January 2012 in Case Popov v. France, Application 39472/07, 39474/07; ECtHR Judgment of 12 July 2016 in Case A.B. and Others v. France, Application 11593/12

[73] Article 15, paragraph 1 of the Return Directive

[74] CJEU, Boudjlida, C-249/13, paragraph 68; Article 44, paragraph 2 of the Foreign Nationals in the Republic of Bulgaria Act

[75] The non-refoulement (prohibition of return) principle

[76] Article 3, paragraph 1 of Directive 2013/32/EU

[77] ECtHR Judgment of 7 June 2011 in Case R.U. v. Greece, Application 2237/08; ECtHR Judgment of 23 July 2013 in Case Suso Musa v. Malta, Application 42337/12, paragraph 97

[78] Article 39b of the Foreign Nationals in the Republic of Bulgaria Act contains the same obligation to grant a period for voluntary departure.

[79] According to Article 7, paragraph 4 of the Return Directive ‘If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days’.

[80] CJEU, Zh. and O., C-554/13, paragraph 70

[81] CJEU, 28 April 2011, El Dridi С-61/11 PPU, paragraphs 36-38

[82] Ilareva, Valeria, Immigration detention in international law and practice (In search for solutions to the challenges faced in Bulgaria), Human Rights Magazine, issue 1/2008, pages 14-18 (in Bulgarian language)

[83] CJEU, 28 April 2011, El Dridi С-61/11 PPU, paragraph 41

[84] International Detention Coalition, There are Alternatives, 2015; Odysseus Academic Network, MADE REAL – Training Tool on Alternatives to Detention, 2015

[85] According to Article 46а, paragraph 1 of the Foreign Nationals in the Republic of Bulgaria Act detention orders may be challenged within a time period of 14 days as from the time of placement in detention in accordance with the general procedure envisaged in the APC.

[86] ECtHR Judgment of 16 September 1996 in Case Akdivar and Others v. Turkey, Application 21893/93, paragraph 66

[87] Article 5, paragraph 2 of the ECHR stipulates as follows: ‘Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him’.

[88] ECHR Judgment of 22 September 2009 in Case Abdolkhani and Karimnia v. Turkey, Application 30471/08, paragraph 136

[89] Article 9, paragraph 2 of the ICCPR creates an obligation for information to be provided ‘at the time of arrest’.

[90] ECHR, Conka v. Belgium, Application 51564/99, paragraph 46

[91] According to Article 22(1)(9) of the Legal Aid Act, legal assistance for the preparation of documents necessary to file a lawsuit shall be provided to foreign nationals, subject to return orders and foreign nationals who have been detained on immigration grounds, who do not have funds to cover the corresponding expenses and wish to use such aid.

[92] ECtHR, Conka v. Belgium, Application 51564/99, paragraphs 43 and 44; In this sense, see the Judgment in Case Boudjlida, C-249/13, paragraph 59: “It follows from the foregoing that the right to be heard before the adoption of a return decision must allow the competent national authority to investigate the matter in such a way as be able to adopt a decision in full knowledge of the facts and to state reasons for that decision adequately, so that, where appropriate, the person concerned can duly exercise his right to bring legal proceedings”.

[93] With regard to violation of the requirement for speediness under Article 5, paragraph 4 of the ECHR, see ECtHR Judgment of 26 July 2011 in Case M. and Others v. Bulgaria, Application 41416/08; ECtHR Judgment of 12 February 2013 in Case Amie and Others v. Bulgaria, Application No 58149/08; ECtHR, Suso Musa v. Malta, Application 42337/12.

[94] Committee of Ministers of the Council of Europe, Twenty Guidelines on Forced Return, 4 May 2005, guiding principles 9 & 1

[95] Article 15, paragraph 2 of the Return Directive

[96] See paragraphs 17-38 of the Handbook.

[97] In its Judgment of 4 June 2013 in Case C-300/11 – ZZ, the CJEU notes in connection with Article 47 of the Charter that “it should be taken into account that, whilst Article 52(1) of the Charter admittedly allows limitations on the exercise of the rights enshrined by the Charter, it nevertheless lays down that any limitation must in particular respect the essence of the fundamental right in question and requires, in addition, that, subject to the principle of proportionality, the limitation must be necessary and genuinely meet objectives of general interest recognised by the European Union” (paragraph 51).

[98] ECtHR Judgment of 6 March 2001 in Case Dougoz v. Greece, Application No 40907/98, paragraphs 46 and 48; In its Judgment of 15 January 2015 in Case Mahammad and Others v. Greece, Application 48352/12, the ECtHR held that Article 5, paragraph 4 of the ECHR places an obligation on State parties to the Convention to put in place effective remedies, including against the conditions of detention (paragraphs 67 and 68).

[99] Committee of Ministers of the Council of Europe, Twenty Guidelines on Forced Return, 4 May 2005, Guideline 10.2 (the Guidelines of the Committee of Ministers are expressly mentioned in the Return Directive)

[100] Ibid, Guideline 10.3.

[101] Ibid, Guideline 10.7.

[102] Ibid, Guideline 10.5 and Comment 4.

[103] Ibid, Guideline 10.5; Article 8, paragraph 6 of the Return Directive.

[104] Article 39а, paragraph 2 of the Foreign Nationals in the Republic of Bulgaria Act.

[105] Committee of Ministers of the Council of Europe, Twenty Guidelines on Forced Return, 4 May 2005, Guideline 10.6. According to Articles 13 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, each State Party shall ensure that any individual who alleges he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. The ECHR interprets Article 3 of the Convention in the same vein.

[106] By its Judgment No 164 of 7 January 2016 in Case No 973/2015 the SAC revoked the provisions on disciplinary punishments laid down in Article 14, paragraph 3 of the Ordinance on SCTAF, issued by the Minister of Internal Affairs. The Court noted that the Foreign Nationals in the Republic of Bulgaria Act does not envisage any disciplinary sanctions. Statutory provisions governing these relations in an act of law are to be adopted by the Parliament. The sub-law (the ordinance) may subsequently develop the provisions into greater detail, but it cannot introduce them for the first time. For this reason, the Court repealed the provisions in the Ordinance on account of being contrary to the provisions and the aim of substantive law.

[107] This is in line with the settled case-law of Bulgarian supreme courts, for example, Judgment of the Supreme Court of Cassation in Case No 1738/1997 D (in connection with the hearing of a worker prior to imposing a disciplinary punishment) and Judgment of the Supreme Administrative Court in Case No 2028/2012 (in connection with the hearing of a magistrate prior to imposing a disciplinary punishment).

[108] See, also, CJEU, 28 April 2011, El Dridi С-61/11 PPU, paragraph 43

[109] See, for example, ECtHR Judgment of 22 March 1995 in Case Quinn v. France, Application 18580/91, paragraph 48; ECtHR Judgment of 8 February 2005 in Case Bordovskiy v. Russia, Application 49491//99, paragraph 50; ECtHR Judgment of 15 November 1996 in Case Chahal v. the United Kingdom, Application 22414/93, paragraph 113; ECtHR Judgment of 19 May 2016 in Case J.N. v. the United Kingdom, Application 37289/12, paragraph 107

[110] View of the Advocate General M. Szpunar in Case Mahdi C‑146/14 PPU before the CJEU, submitted on 14 May 2014, paragraph 89

[111] In its Judgment of 11 October 2011 in Case Auad v. Bulgaria, the ECtHR established that over a period of 18 months the Bulgarian authorities have merely sent three letters to the Embassy of the third country in question, requesting the issuance  of a travel document for the detainee. The ECtHR held that this is a violation of the right to liberty. According to the Court, these letters were insufficient to demonstrate that the Bulgarian authorities have taken active and vigorous steps to carry out the removal (paragraph 132 of the Judgment). In this sense, see also ECtHR Judgment of 11 February 2010 in Case Raza v. Bulgaria, Application No 31465/08, paragraph 73.

[112] In its Judgment in Case Auad v. Bulgaria the ECtHR pointed out that, in view of the requirements for legal certainty, “the destination country should always be indicated in a legally binding act and a change of destination should be amenable to legal challenge” (paragraphs 133 and 139).

[113] See, for example, ECtHR Judgment of 17 July 2014 on the immigration detention of stateless persons in Case Kim v. Russia, Application 44260/13

[114] Article 15, paragraph 3 of the Return Directive. According to Article 44, paragraph 8 of the Foreign Nationals in the Republic of Bulgaria Act immigration detention shall be discontinued from the time the reasons for the detention have ceased to exist. The reasons for detention shall be subject to monthly review by the Head of the Migration Directorate.

[115] Article 15, paragraph 5 of the Return Directive.

[116] Article 15, paragraph 4 of the Return Directive. See, in this sense, Article 44, paragraph 8 of the Foreign Nationals in the Republic of Bulgaria Act.

[117] CJEU, Judgment of 30 November 2009 in Case Kadzoev, C‑357/09 PPU, paragraphs 65-67

[118] ECtHR, Judgment of 12 May 2013 in Case Amie and Others v. Bulgaria, Application № 58149/08, paragraph 76; Judgment of 8 October 2009 in Case Mikolenko v. Estonia, Application № 10664/05, paragraphs 63 et seq.

[119] FRA, Alternatives to detention for asylum seekers and people in return procedures, 2015

[120] Article 8 of Directive 2013/33/ЕU. In this sense, in its Judgment in Case Kadzoev, C‑357/09 PPU, the CJEU held that ‘Detention for the purpose of removal governed by Directive 2008/115 and detention of an asylum seeker in particular under Directives 2003/9 and 2005/85 and the applicable national provisions thus fall under different legal rules’ (paragraph 45).

[121] Article 3, paragraph 1 of Directive 2013/32/ЕС.

[122] Judgment of 23 July 2013 in Case Suso Musa v. Malta, Application 42337/12, paragraph 97

[123] Judgment of 5 July 2016 in Case O.M. v. Hungary, Application 9912/15, paragraph 47

[124] See, for example, Article 29(1) of the Bulgarian Asylum and Refugees Act, according to which the foreign national is entitled to remain in Bulgaria for the duration of asylum proceedings.

[125] ECtHR Judgment of 21 January 2011 in Case M.S.S. v. Belgium and Greece, Application 30696/09 (violation of Article 13 in conjunction with Article 3 of the ECHR on account of flaws in the asylum procedure); ECtHR Judgment of 7 June 2011 in Case R.U. v. Greece, Application 2237/08 (the case concerns the detention of a Kurdish asylum seeker from Turkey and the manner of conduct of the asylum procedure); ECtHR Judgment of 13 June 2013 in Case A.F. v. Greece, Application 53709/11 (the case concerns an asylum seeker from Iran who was detained while the authorities refused to register his application for political asylum).

[126] See Section 3.3 of the Analytical Report on the application of the right of detained immigrants to be heard in Bulgaria

[127] According to Article 4 of Directive 2011/95/ЕU, ‘Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.’ Article 10(3) of Directive 2013/32/ЕU envisages special procedural guarantees that ensure that ‘decisions by the determining authority on applications for international protection are taken after an appropriate examination’.

[128] In this connection, see the arguments and case-law of the ECRE, The Legality of Examining Asylum Claims in Detention from the Perspective of Procedural Rights and Their Effectiveness, 2015; Detention Action, The Legal Challenge: http://detentionaction.org.uk/campaigns/end-the-fast-track-to-despair/legal-challenge

[129] ECtHR Judgment of 12 March 2013 in Case Djalti v. Bulgaria, Application 31206/05, paragraph 53

[130] Judgment of 5 June 2014 in Case Mahdi, C-146/14 PPU, paragraph 60

[131] Ibid, paragraph 61

[132] Ibid, paragraph 83

[133] Ibid, paragraphs 84 and 85

[134] View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the CJEU, paragraph 76

[135] http://hear.farbg.eu

[136] Ibid, paragraph 55. The Judgment in Case C‑383/13 PPU is cited by the academic community as “a good example of a contradiction between the case law of Luxembourg and Strasbourg” (De Bruycker, Philippe, and Sergo Mananashvili, “Audi alteram partem in immigration detention procedures, between the CJEU, the ECtHR and Member States: G & R“, Common Market Law Review 52 (2015): 588)

[137] In its Ruling of 1 December 2015 in Case No 12205/2015, the Bulgarian Supreme Administrative Court held that the notice of service of the judgment is part of the court proceedings, meaning that the foreign national shall be able to get acquainted with the content of the papers in question in a language that he or she understands. The case concerned the notification of the court judgment on the extension of the period of detention by six months. The immigrant had refused to sign for the receipt, because he did not know what the papers were about. As a result, he missed the deadline for appeal. The SAC held that the notice of service did not conform to procedural rules and that the appeal was admissible on those grounds.

[138] See, for example, ECtHR Judgment of 17 December 2013 in Case Černák v. Slovakia, Application 36997/08. In connection with this, the Bulgarian Supreme Administrative Court has left without application Article 46а (4) of the Foreign Nationals in the Republic of Bulgaria Act, according to which the case is to be decided in “a closed hearing” without the participation of the concerned immigrant. SAC invokes directly Article 47 of the Charter and states that the failure to ensure the participation of the person in court raises a question as to the effectiveness of the remedy (Ruling of 27 May 2010 in Case 2724/2010 on the record of the Supreme Administrative Court).

[139] See paragraph 56 above.

[140] View of the Advocate General M. Wathelet, submitted on 23 August 2013 in Case C‑383/13 PPU before the CJEU, paragraph 52.