Between August 17, 2015 and August 16, 2016, the Center for Legal Aid – Voice in Bulgaria (CLA) completed the project “Who Gets Detained? Increasing the Transparency and Accountability of Bulgaria’s Detention Practices of Asylum Seekers and Migrants”.* Through an in-depth examination of the topic, the project aimed to facilitate the establishment of fair and transparent procedures based on the European and international legal principles of proportionality and individual assessment. The project was funded by European Programme for Integration and Migration (EPIM), a collaborative initiative by the Network of European Foundations (NEF).
Since 2013, Bulgaria, as an external border of the EU, has experienced an unprecedented for its history number of migrants passing through its territory, primarily asylum seekers and refugees. The majority of the arriving migrants are subjected to administrative detention, where the decisions made by the administrative bodies appear to be dictated by policy rather than by individual and objective assessment.
To assess to what extent Bulgaria’s practices are in line with the international and European legal principles, and to provide recommendations on how they can be made more transparent, the project adopted a mixed methodology, with elements of both quantitative and qualitative research. This included researching the legal framework, relevant statistics and current practices, as well as the jurisprudence pertaining to the detention of migrants. The project’s team also conducted fieldwork, including interviews with foreigners currently held at Special Homes for the Temporary Accommodation of Foreigners (SHTAF) run by the Ministry of Interior, as well as foreigners who had been detained in the past. Interviews were conducted also with officials from the Ministry of Interior who are involved in the decision-making regarding the detention of foreign nationals.
Based on the foregoing research, the Report concludes that the findings confirm the initial hypothesis regarding the existence of a rather routine practice of detention. Most detention orders stem from policies for “dealing” with the increased migration flows rather than from an individual assessment in each case.
For its part, the law of the European Union mandates that any detention must be necessary in the particular case, proportionate to the legitimated goal intended, and reasonable in light of the concrete circumstances. Despite the fact that Bulgarian national law does not require almost any considerations of necessity and reasonableness of the detention, the Bulgarian authorities are obligated to follow international law, which is superior to any national law that contradicts it. Thus, the national legal framework, which to a large extent incorporates the requirements of the international and European laws, establishes three alternative reasons for the application of administrative detention in the case of an already issued a deportation order: a non-established identity, obstructing of the execution of the removal order, or risk of absconding.
The Report’s findings reveal that the initial administrative detention orders are almost entirely based on the first of the three reasons: the foreigner’s non-established identity. A basic factor in the application of this condition is that the detainee lacks personal identity documents. The interviews with government officials clarify that the lack of personal identity documents is even seen as a factor encompassing the other two reasons for detention, as well.
While under Bulgarian law, a non-established identity is one of the reasons for detention (but with the underlying goal of ensuring the foreigner’s deportation while waiting for his or her personal documents to be issued), the officials view the practice more as an immigration detention – a measure imposed due simply to the fact that the individual lacks identity documents and/or a permission to enter or reside in Bulgaria, which gives rise to the desire to exercise control over his or her movement.
As far as the lack of identity documents is seen as sufficient to justify a finding of non-established identity, the detention in SHTAF is a mass, non-individualized practice, and an individual assessment by the official issuing the order is not required. It is also troubling that in some cases the authorities use administrative detention against persons suspected of committing a crime (and not with the goal of ensuring their deportation), instead of following the procedures outlined in the Criminal Code, which imposes a significantly higher burden of proof of the suspect’s guilt and ensures much better procedural safeguards of his or her rights. The improper use of administrative detention for the purpose of crime prevention is often discriminatorily based on the detainee’s country of origin.
According to the reviewed cases from the Administrative Court – Sofia City, the second most common reason for issuing an order for detention in SHTAF is the foreigner being a flight risk. A frequent factual basis for such a finding is the foreigner having committed a criminal offense and served a prison sentence. In all cases, the crime in question is a repeated attempt to illegally cross the border (while trying to leave Bulgaria). On the other hand, in the case law of Haskovo Administrative Court, the most common factors leading to a finding of a flight risk are the lack of personal identity documents and lack of evidence of an address where the foreigner resides and means of support. Another common factor taken as an indicator of flight risk is a foreigner’s expressed intent to continue his or her journey to another European country, or even the mention of the presence of family members there.
None of the seventy-one interviewed detainees received an explanation of the specific reasons for their detention during the initial arrest, of the rules in the detention centre, or about the length of the detention. Where a translator had been present (usually during the arrest), his or her role was formal and he or she did not explain the contents of the documents that the detainee was made to sign. There is no evidence of interviews being conducted with the foreigners at the time of their arrest, aside from the basic questions pertaining to personal data and the documents checks. In general, access to legal aid during the period of appeal is difficult and information about the possibility to appeal is not effectively provided to the detainees in a language they understand.
With regard to the conditions of detention, almost all of the interviewed detainees complained about the complete lack of information and the resulting state of uncertainty in which they were kept. They also complained that there was no predictability about what awaited them, especially in terms of their length of stay in SHTAF. Among the basic complaints are also the lack of interpreters and inadequate opportunities for communication with the SHTAF staff, difficult access to medical care, and lack of information about their rights and the SHTAF rules. Some detainees were complaining about the insufficient amount of food they received, as well as the insufficient access to hot water and the locking of rooms at night without access to toilets. Several interviewees informed us of verbal and physical threats against the detainees by SHTAF staff.
On the basis of the findings and their analysis, the project’s team put forward the following recommendations:
- Adopting clear written guidelines for assessing the different legal bases for detention, which would help to establish an objective process for making detention decisions, in accordance with the requirements for proportionality, necessity and individualized approach.
- Providing regular legal aid to foreigners during their arrest and the entire period of their stay in SHTAF.
- Organizing regular informational sessions in the closed centres regarding the rights and obligations of the foreign nationals during the time of their detention and after their potential release.
- Providing interpreters in the closed centres and at the border and their training on the specifics of their work as intermediaries between the foreign nationals and the state officials, and on the terminology and the legal consequences of the translated procedures and documents.
- Creating alternative, open-type, centres to accommodate unaccompanied minors who are subject to deportation, and providing legal aid and assistance of a social worker in the process of making decisions regarding their detention.
- Advocating for legislative change to create applicable alternatives to detention that can help avoid its use for general regulation of the migration flows into the country.
- Adopting short-term immigration detention measures (a maximum of 5-7 days) for foreign nationals without documents, who have entered the country in an irregular manner, in order to conduct an assessment of the need to detain them longer or to accord alternative measures, and to be able to inform them effectively of their situation, options and rights.
- In the longer term, adopting of regularization measures for undocumented foreign nationals who meet set criteria and who cannot be removed from the country.
*The project has been supported by the European Programme for Integration and Migration (EPIM), a collaborative initiative of the Network of European Foundations”. The sole responsibility for the content lies with the author(s) and the content may not necessarily reflect the positions of NEF, EPIM, or the Partner Foundations.