ECtHR released decision in Rahmani and Dineva v. Bulgaria (Application no. 20116/08) [Articles 5,8 ECHR]

Friday, October 4, 2013

The applicants, Ahmed Rahmani, an Algerian national, and Dimka Dineva, a Bulgarian national, were born in 1964 and 1959 respectively and live in Stara Zagora (Bulgaria). A married couple, they complain about Mr Rahmani's detention pending execution of the removal order issued against him on the ground that he was unlawfully present in the country. They allege that the detention was in breach of Article 8 (right to respect for private and family life) and of Article 5 (right to liberty and security), in that it had been excessively long (Article 5 § 1 (f)) and that there had been no effective remedy available in order to challenge its lawfulness (Article 5 § 4). Under Article 8, the applicants also complain that the decision to deport Mr Rahmani had interfered with their private and family life.

The Court ruled:

Article 5 § 4:
The Court found a violation of Article 5 § 4 because at the time that the first applicant was placed in detention, domestic legislation did not provide a means of legal recourse or habeas corpus to challenge the lawfulness of his detention. The Bulgarian government amended its legislation in 2009 providing a means for taking such proceedings, but these had no impact on the situation of the applicant.

Article 8:
The Court found that execution of the removal order issued against the first applicant would not constitute a violation of Article 8 of the Convention.  The Court first found that the applicants' living arrangement constituted family life for purposes of Article 8(1) of the Convention, and that execution of the removal order would constitute an interference with applicants' right to respect for family life.  The couple had been living together since their marriage in 2002. However, the Court also found that execution of the deportation order would be permissible under Article 8(2). The deportation order was issued in accordance with Bulgarian law. The Court also found that it pursued legitimate objectives under Article 8(2), namely public safety and the prevention of disorder or crime. The Court also considered that the measure was proportional, listing several factors drawn from prior jurisprudence. Among other factors, the Court found relevant that the first applicant found himself in this predicament due in part to his own lack of diligence.  The Court also found that the execution of the deportation order would neither make it impossible for the couple to have a family life in Bulgaria, nor necessarily cause a prolonged separation of the couple because it appeared the first applicant could apply for a new entry visa and then a residence permit on the basis of his marriage to a Bulgarian national.

For the full text of the judgment (only available in French) please visit: ECtHR: Rahmani and Dineva v. Bulgaria (Application No. 20116/08)

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Effective remedy (right to)
Family unity (right to)