The ECHR ruling of July 20, 2021 in the case "D. v. Bulgaria" (complaint No. 29447/17)
In 2017, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to Bulgaria.
The case is appealing against the expulsion to his homeland of a Turkish journalist without a preliminary assessment of the risks to which he was exposed, who expressed to the Bulgarian border guard his fears about ill-treatment in connection with the attempted coup in Turkey. There was a violation of the requirements of article 3 of the Convention in the case.
THE CIRCUMSTANCES OF THE CASE
The applicant is a journalist and former employee of a daily newspaper published in Turkey. He illegally entered the territory of Bulgaria and was detained on October 14, 2016 by the border guards of that country. The applicant claimed that, as a result of his expulsion by the Bulgarian authorities to Turkey, he was at risk of ill-treatment in connection with his personal situation, viewed in the context of the conditions prevailing in Turkey after the coup attempt, in particular as a result of measures taken against journalists due to the state of emergency.
LEGAL ISSUES
Regarding compliance with article 3 of the Convention, as well as article 13 of the Convention, taken in conjunction with article 3 of the Convention. Bulgarian legislation explicitly provides that the State authorities responsible for border control are obliged to accept asylum applications submitted at the border. If the border guards find out that the detained person wants to apply for international protection, they must inform this person about the relevant procedures, as well as translate this information into the desired language. The application and all documents drawn up during the detention of a person must be sent by any available means of communication directly to the State Agency for Refugees. Bulgarian legislation does not allow border guards to refuse a request for protection or decide whether these requests should be considered on their merits. Such decisions can only be made by the State Agency for Refugees.
(a) Whether the applicant has brought to the attention of the Bulgarian authorities his concerns about ill-treatment in violation of the requirements of article 3 of the Convention in the event of his expulsion to Turkey. The applicant was part of a group of persons intending to travel through Bulgaria to Germany. Accordingly, the applicant did not initially plan to apply for asylum in Bulgaria. However, he apparently changed his mind when, after being detained at the Bulgarian border and placed in custody at the police department at the border, he announced that he wanted to apply to the Bulgarian authorities for protection. The applicant claimed that he subsequently verbally repeated his intention every time new police officers spoke to him, as well as upon arrival at the foreigners' accommodation center. According to him, he filed his petition in the form of a document and handed it over to the border guards, but a copy of the document was not returned to him. The Bulgarian authorities refuted all the above-mentioned allegations of the applicant.
In the present case, it was not necessary to attach decisive importance to the absence of an explicit request for protection addressed to the relevant Bulgarian authorities in the records of the applicant's testimony given by him to the Bulgarian authorities, given that an interpreter was not present during these conversations to ensure that all the applicant's statements were correctly recorded. During the applicant's detention, several documents were drawn up for a fairly short period of time, and the Court does not consider that the applicant understood the contents of these documents or that he was given time to familiarize himself with them, even with the help of staff who spoke Turkish or English. The assistance of an interpreter in such circumstances would be essential, in particular to enable the applicant to understand the contents of the documents he was asked to sign, as well as to record all the applicant's statements reported to the Bulgarian authorities. Moreover, the inspection carried out by the appointed commission of the Bulgarian Ministry of Internal Affairs apparently did not reveal evidence confirming the explanations of the police officers involved in the applicant's expulsion. Thus, the expulsion was carried out in an extremely short time in violation of the requirements of Bulgarian legislation. However, the European Court did not consider it necessary to establish whether there was a written document in which the applicant would have directly applied for protection. The applicant may have been in a stressful state when he voiced his explanations to the Bulgarian authorities, as he had previously spent many hours in the trailer of a truck. In any case, the documents submitted by the Bulgarian authorities were sufficient for the following arguments.
The applicant's testimony, dated October 14, 2016 and written in Bulgarian, contained the following explanations: "I worked as a journalist in Bozova. After the coup attempt in the country, I was fired from the newspaper. I changed my place of residence and found out that the police were looking for me at my previous address." Regardless of whether the applicant filed an official request for protection, and taking into account the language barrier, as well as the absence of a lawyer during the events in question, the question arises whether the Bulgarian authorities could have interpreted the information as reflecting the applicant's concerns, which the applicant, according to him, notified the Bulgarian authorities. The desire to seek protection did not necessarily have to be expressed in any specific form. The decisive factor was the fear expressed in connection with the return to the country of citizenship. Similarly, the Committee of Ministers of the Council of Europe recommended that border guards of member States be trained to identify and understand asylum applications in cases where the applicant is unable to clearly state his intention.
Consequently, although the applicant's explanations set out in the documents submitted by him did not contain the word "asylum", they stated that he was a Turkish citizen who was fired from his job in the context of the state of emergency in the country imposed after the attempted coup, and it was also clear from them that the applicant was afraid that his Turkish law enforcement officers are looking for him.
Moreover, the Turkish Consul explicitly stated that the applicant and other Turkish citizens who followed him were suspected of involvement in the attempted coup in that country. Press releases and opinions by international observers, including comments by the United Nations Commissioner for Human Rights, issued three months before the events of the applicant's case, expressed serious doubts about the implementation of measures taken in connection with the state of emergency, including measures against journalists. Various reports have criticized the use of violence, repression against journalists, as well as their arbitrary detention. However, during the detention and subsequent expulsion of the applicant and the Turkish citizens who followed him, the Bulgarian authorities did not make any efforts to examine the applicant's personal circumstances, as stated by him on October 14, 2016, taking into account the situation described above.
In this regard, the recording of the applicant's explanations dated October 14, 2016, examined in the light of the other aspects of the case mentioned above, was sufficient within the meaning of article 3 of the Convention to conclude that the applicant had essentially expressed his concerns to the Bulgarian border guard officers before he was returned to Turkey.
(b) Whether the Bulgarian authorities have properly considered the applicant's concerns that, if deported to Turkey, he may be subjected to ill-treatment. Neither the employees of the Bulgarian Border Guard Service, who took the above-mentioned explanations from the applicant and recorded them in Bulgarian before reporting the applicant's case to their management, nor the director of the regional department of the Border guard service, who applied a violent measure - "forced return to the border of the Republic of Bulgaria", neither the National Center for Combating Illegal Migration, nor the Director of the Migration Service of the Ministry of Internal Affairs of Bulgaria, who issued the decision on the applicant's expulsion, established that the applicant's explanations were his request for protection. No procedures have been initiated in the authorities responsible for providing international protection.
Considering that, as indicated above, the Bulgarian authorities had sufficient information that indicated that the applicant could indeed be afraid of being in a situation contrary to the requirements of Article 3 of the Convention, the European Court is surprised by the apparent lack of consideration of the applicant's personal circumstances.
However, with regard to procedural guarantees, it should be recognized that the applicant was not provided with an interpreter (neither for oral conversation nor for translation of documents), and also that he was not informed about his rights as an asylum seeker and about the relevant procedures. In this regard, the European Court was unable to conclude that in the present case the Bulgarian authorities fulfilled the obligation required of them to cooperate in the framework of protection procedures.
The applicant was not provided with access to a lawyer or a representative of a specialized organization who would help him assess whether his personal situation allowed him to qualify for international protection. It also followed from the case file that the Commissioner for Human Rights in Bulgaria was not consulted in order to supervise the expulsion of these foreign citizens in violation of a direct requirement of the law. Moreover, the Bulgarian authorities committed other violations during the proceedings in the applicant's case. For example, they drafted two versions of the applicant's notification of his rights, and the decision on his admission to the accommodation center for foreigners was issued late and sent to this center by e-mail at a time when the applicant was already being transported to the Bulgarian border. The Bulgarian authorities did not explain why the relevant decree contained a note stating that the applicant refused to sign it, while contrary to the explanations provided, it was clear that this document could not physically be provided to the applicant for signature. In the opinion of the European Court, in addition to the fact that the expulsion was contrary to the requirements of Bulgarian law, the violations revealed testified to the excessive haste of the applicant's expulsion. As a result of such haste and non-compliance with the requirements of the relevant procedures, which, nevertheless, were created to protect persons from rapid expulsion without considering their individual circumstances, the applicant was in fact deprived of the opportunity to obtain an assessment of the risk of treatment that he could presumably face upon return to Turkey.
Similarly, the expulsion order was executed immediately, without giving the applicant the opportunity to understand its contents, as a result of which the applicant was deprived of the opportunity provided to him by Bulgarian law to apply to the court for the suspension of the execution of the expulsion order. Consequently, the haste to execute the expulsion order - within 24 hours of the applicant's detention at the border between Bulgaria and Romania - led to the fact that the available remedies became ineffective in practice and therefore inaccessible to the applicant.
Thus, the applicant was deported to Turkey, his country of origin, from which he had fled, without a preliminary assessment of the risks that threatened him from the point of view of article 3 of the Convention, and, accordingly, without examining his application for international protection.
In the light of the above, the applicant could not be considered responsible for not using the procedures provided for by Bulgarian law. Despite the fact that the applicant expressed concerns about the likelihood of ill-treatment if he returned to Turkey, the Bulgarian authorities did not consider his application for international protection.
RESOLUTION
In the case, there was a violation of article 3 of the Convention, as well as article 13 of the Convention, taken in conjunction with article 3 of the Convention (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 15,000 euros in compensation for non-pecuniary damage.