ECHR judgment of 20 February 2020 in the case "M.A. and Others v. Bulgaria" (application no. 5115/18).
In 2018, the applicants received assistance in preparing their application. The application was subsequently communicated to Bulgaria.
The case successfully addressed an application about the lack of effective guarantees against the expulsion of the complainants to China, where they could be arbitrarily deprived of their liberty, tortured and killed. In case of expulsion, the case will violate the requirements of Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants, five Muslim Uyghurs from Xinjiang Uygur Autonomous Region of China (hereinafter - XUAR), left their country of origin, where they were suspected of terrorism. The applicants were detained in Bulgaria after they illegally crossed the border between Bulgaria and Turkey. They were subsequently denied asylum and decisions were made to repatriate and expel them for reasons of national security. At the moment, the removal of the applicants is only hindered by the European Court's instruction on the application of interim measures under Rule 39 of the Rules of the Court.
QUESTIONS OF LAW
Compliance with Articles 2 and 3 of the Convention. According to the Government, the applicants did not prove that they were forced to leave China because of their ethnic or religious persecution. The applicants received their education and led an ordinary life before breaking the law. Chinese authorities have taken counter-terrorism measures in response to violence by Uyghur separatists. However, in the subsequent proceedings, which had a direct bearing on the applicants' expulsion, the Supreme Administrative Court did not consider their allegations that they might have been subjected to ill-treatment if removed.
Relevant information about the current situation in the XUAR indicates that the Chinese authorities are holding hundreds of thousands or even millions of Uyghurs in "re-education camps", in which cases of ill-treatment, torture and death of prisoners were recorded. This was the case for many Uyghurs who returned to China after leaving the country or who were forced to repatriate. The need to combat terrorism and extremism was cited as justification for the repression of the Uighurs by the Chinese authorities. Suspicions of separatism or a security threat could lead to lengthy prison sentences or the death penalty without due process. According to the Government, before the applicants arrived in Bulgaria, they received training from the East Turkestan Islamic Movement, a separatist organization operating in western China and considered terrorist.
The United Nations, the European Union, the People's Republic of China, the US State Department, the Republic of Kazakhstan, the Kyrgyz Republic, the Islamic Republic of Afghanistan recognize this movement as a terrorist organization.
In view of the above, as well as the general information about the situation in XUAR and the individual circumstances of the applicants (they were suspected of terrorism and escape from China), there were strong reasons to believe that the applicants would be at a real risk of arbitrary deprivation of liberty, torture and even death if returned to country of origin.
Thus, the Court should have checked whether there were effective safeguards to protect the applicants from arbitrary forced return, direct or indirect, to China by the Bulgarian authorities. The country of destination was not indicated in the initial decisions to repatriate or remove the applicants. In the opinion of the Supreme Administrative Court, the determination of such a country and an assessment of any risks that the applicants might face if they were returned to China should have taken place in the process of enforcing the expulsion orders. However, this approach did not provide any assurance that the Bulgarian authorities would consider with the necessary care the risk that the applicants would face if they were returned to the country from which they had fled. It was unclear with reference to what standards and on the basis of what information the authorities of the respondent State would assess the relevant risks, if they did so at all. Lastly, there was no indication as to whether the Bulgarian authorities, if they decided to expel the applicants to a third country, would properly consider whether the applicants would in turn be returned from there to China without a proper assessment of the risk of ill-treatment and even the threat of death. In general, there were no effective guarantees that they would not be returned to China during the enforcement of the repatriation and expulsion orders.
In case of expulsion of the applicants in the case, there will be violations of the requirements of Articles 2 and 3 of the Convention (adopted unanimously).
Application of Article 41 of the Convention. The Court held that there was no reason to award the applicants any just satisfaction as they did not submit a claim.