Right to asylum, freedom of movement
In 2009, the BHC continued its monitoring and advocacy activities with regard to the right to asylum and international protection for persons fleeing from persecution on the basis of their race, religion, nationality, affiliation with a specific social group or political conviction.
The right to asylum and protection in Bulgaria is regulated by Article 27, paras. 2 and 3 of the Constitution, the 1951 UN Convention relating to the Status of Refugees and the 1967 UN Protocol Relating to the Status of Refugees, as well as by the special Asylum and Refugees Act (ARA). Under the national regulations, Bulgaria provides four forms of protection to foreigners who have fallen victims to persecution and violation of their basic rights: asylum, refugee status, humanitarian status and temporary protection.
The right to asylum is a statute regulated by Article 27, para. 2 in conjunction with Article 98, item 10 of the Constitution. Under these provisions, and under Article 7, para. 2 of ARA, it may be granted by the President of the Republic. The approach of the Asylum Board in the presidential administration, under which foreigners filing asylum applications are required to submit certified official documents issued by their countries of origin, in violation of all international standards for protection on in contradiction with the explicit legal prohibition in Article 63, para. 4 of ARA, was sustained. Given this extremely unlawful and inadequate approach of the president, comparable with the approach of an immigration body, as well as that since it was established with the 1991 Constitution this institution has never granted asylum, the existing constitutional opportunity to exercise the right of asylum in Bulgaria is considered formalistic and void of meaning.
Refugee status and humanitarian status are the forms of protection granted by a specialised administrative body, the State Agency for Refugees (SAR) of the Council of Ministers on the grounds of Article 27, para. 3 of the Constitution, Article 1A of the Convention on the Status of Refugees in conjunction with Article 8 of the ARA and Articles 2 and 3 of the European Convention on Human Rights in conjunction with Article 9 of the ARA. The difference between the two statuses is defined not only by the reasons for their granting, but also by the rights the foreigners with the respective status have. According to Article 32 of the ARA, a foreigner who has been granted refugee status has the rights and the obligations of a Bulgarian citizen, with several explicit exceptions. Under Article 36 of ARA, foreigners who have been granted humanitarian status have the rights and obligations of permanently resident foreigners.
In 2009, this difference continued to be the reason behind the relatively low share of refugee status awards – 5.5% of all 835 protection applications filed, although there is an insignificant increase in its share compared to 2008 when only 3.6% of the applicants were granted such status. With regard to granting subsidiary protection (humanitarian status), however, the trend is reversed. Its share was 26% of all protection applications during the year, a reduction in comparison to the 35% recognition rate in 2008. Thus, the ration between the increase and the reduction of the recognition rating resulted in a total annual decrease from 39% in 2008 to 31% in 2009.
On the other hand, there is a slight improvement with regard to asylum seekers’ right to access to territory and procedure. In 2009, the number of persons who were admitted in Bulgaria to file a protection application grew up to 832, a 12% increase over 2008 when their number was 746. Nevertheless, it should be noted that a series of legislative, institutional and practical barriers continued to impede the exercising of the right to access to territory, and especially to status granting procedures.
The border transit centre built by the Council of Ministers’ State Agency for Refugees in the village of Pastrogor did not open in 2009. Thus, the asylum seekers who had filed their applications at the border were not granted immediate access to registration, identification and accommodation. With a non-functioning border transit centre, the capacity of accommodating asylum seekers at the two existing registration and admission centres (RAC) was severely restricted, resulting in the transportation of asylum seekers from the border and their involuntary accommodation at the special home for temporary accommodation of foreigners in Busmantsi, together with the other illegal immigrants. The duration of their detention at the institution, until their release and accommodation at RAC, varied between three weeks and six months, in violation of their right to liberty, the international standards on protection and the recommendations of the UN High Commissioner for Refugees. One such case constituted a blatant violation of the principle of non-refoulement under Article 33, para. 1 of the 1951 Convention on the Status of Refugees and Article 67 of the Asylum and Refugees Act. The asylum seeker, Turkish citizen Veisel Aktash, was deported by the Ministry of Interior Migration Directorate back to his country of origin, in contradiction with Bulgaria’s international obligations in the field of asylum and refugees and the EU’s acquis communautaire.
Freedom of movement, enshrined in Article 13 of the Universal Declaration on Human Rights, Article 12 of the International Covenant on Civil and Political Rights and Article 2 of Protocol 4 to the European Convention on Human Rights, is every person’s right to move freely and to choose a domicile within the boundaries of any country, as well as the right to leave that country and to freely return to it. In Bulgaria’s national legislation, this right is guaranteed in Article 35 in relation with Article 27, para. 1 and Article 26, para. 2 of the Constitution.
Significant progress was achieved in 2009 with regard to the defence of the right to freedom of movement of third country citizens by the transposition of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals. For the first time the national legislation introduces a deadline for the detention of illegally staying migrants at the special homes for accommodation of foreigners (SHAF), which are in essence administrative detention centres.
According to Article 44, para. 8 of the Foreigners in the Republic of Bulgaria Act (FRBA), detention may not exceed six months; by exception, should the person refuse to cooperate with the competent authorities or there should there be a delay in obtaining the necessary documents, it may be extended by 12 months to a total of 18 months.
It should be noted, however, that several major deviations from the European standards were allowed in the transposition of the directive in the law. In violation of the directive, Article 44, para 8 of FRBA provides an opportunity to extend the detention by 12 months also for foreigners ordered to be deported as a threat to national security. Article 46a, para. 4 of FRBA gives courts the competence to “extend” the stay after the expiration of these deadlines, a direct violation of the final deadlines for the detention established by the directive.
Also, the law provides that the judicial control on administrative detention for the purposes of deportation or expulsion is compulsory only after the expiration of the deadlines under the directive. Thus, judicial control on the deprivation of liberty by an administrative measure imposed by a police order is not automatic and immediate, but is delayed in time by six months. Combined with the delayed ruling of the courts and the lack of obligation for the personal appearance of the detainee in court, this may lead to severe violations of the provisions of Article 5, item 4 of the European Convention on Human Rights on the timely appearance in court in case of deprivation of liberty. This approach to third country citizens is very discriminatory and inconsistent with both the due applicable human rights protection standards and with the already adopted in the national legislation and practice mechanisms for identical protection for the defendants in penal proceedings (Articles 63-65 of the Code of Criminal Procedure).
In July 2009, the ECtHR ruled on Ignatov v. Bulgaria. The court found a violation of the right to freedom of movement inconsistent with Article 2 of Protocol 4 to the European Convention on Human Rights. The applicant was imposed a measure, which prevented him from getting an international passport and travelling abroad due to incomplete civil proceedings initiated by a bank when he defaulted on a loan. Although the applicant repaid the loan several weeks after the prohibition was imposed, the measure remained in force two years after that. The ECtHR held that the prohibition to travel was extended unreasonably after the grounds for the measure have been eliminated.
