ECHR ruling of October 15, 2020 in the case "Muhammad and Muhammad v. Romania"" (aplication No. 80982/12).
In 2012, the applicants were assisted in preparing the aplication. Subsequently, the aplication was communicated to Romania.
An aplication against the expulsion of persons for reasons of national security, issued by a court decision on the basis of secret information not disclosed to the applicants and in the absence of appropriate balancing guarantees, was successfully considered in the case. The case involved a violation of the requirements of article 1 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicants, citizens of Pakistan who lived in Romania on student visas, were expelled from the country for reasons related to State security. The corresponding decision was based on documents that had a security classification. The applicants did not have access to the documents mentioned, nor were they given any special information about the facts and grounds for the decision to expel them.
Regarding compliance with article 1 of Protocol No. 7 to the Convention. General principles. (a) Whether the rights referred to by the applicants were protected by article 1 of Protocol No. 7 to the Convention, and if so, to what extent. Paragraph 1 of article 1 of Protocol No. 7 to the Convention requires, in principle, firstly, that aliens subject to expulsion should be notified of relevant facts that led the competent authorities of the State concerned to believe that these persons pose a threat to State security, and, secondly, that foreigners should be given access to the contents of documents and information in the case materials referred to by the competent authorities when making a decision on expulsion. The specified access should be made preferably in writing and in any case in such a way as to provide effective protection without prejudice to the ability to restrict the mentioned information, if necessary.
(b) Permissible restrictions on the procedural rights of foreigners (hereinafter referred to as the procedural rights of foreigners). Despite the significance of the arguments on combating terrorism, any restrictions on the rights in question should not negate the procedural protection guaranteed by article 1 of Protocol No. 7 to the Convention by violating the very essence of the provisions of this article. Even if restrictions are applied, the alien must be given an effective opportunity to argue against his expulsion and receive protection from arbitrariness.
(c) Criteria that should be taken into account when determining whether the restriction of the procedural rights of foreigners meets the requirements of article 1 of Protocol No. 7 to the Convention. The case-law on the application of articles 5 and 6 of the Convention provides useful guidance on the methodology for assessing the restriction of the rights guaranteed by article 1 of Protocol No. 7 to the Convention, even though the level of procedural guarantees provided by this article does not necessarily have to be the same.
First of all, it should be clarified whether the restrictions on the procedural rights of foreigners were properly recognized as justified by the competent independent State authorities in the light of the special circumstances of a particular case. If so, the European Court should consider whether the difficulties encountered by the alien as a result of these restrictions were sufficiently compensated by balancing factors, in particular, procedural guarantees that ensure the essence of the applicable Convention rights. Consequently, in the context of article 1 of Protocol No. 7 to the Convention, only those restrictions are permissible that, in the circumstances of each particular case, are properly justified and sufficiently balanced by the relevant guarantees. In its assessment, the European Court takes into account the circumstances of a particular case, taking into account the proceedings in the case as a whole.
(i) Whether the restriction of the" procedural rights " of foreigners has been properly justified. Although there may be properly justified reasons for the application of restrictions, such as the protection of State security, the assessment by public authorities of the need to apply restrictions should be accompanied by guarantees against arbitrariness. The relevant recommendations include the need to comply with the conditions under which the decision to apply the restriction would be properly justified and, in particular, if the specified reasons are not communicated to the interested parties, so that the procedure for applying these restrictions could be subjected to proper verification.
The first criterion in this regard is the question of whether an independent public authority (judicial or other) has considered the need to restrict the procedural rights of an alien. In this case, the importance is attached to the limits of the competence of this body, in particular, whether it has the right to consider the need to preserve the confidentiality of information with a security stamp.
Then the European Court must consider the powers of the said State authority, depending on its conclusions in a particular case regarding the need to restrict the procedural rights of an alien. If the state authority determines that the requirement to ensure state security did not justify the contested restriction, it should be found out whether the foreigner had the right to apply to the body authorized to deal with state security issues with a request to consider the issue of secrecy of documents or whether he could remove the secrecy label by his decision so that the document could be presented to the foreigner or that at least the foreigner could be notified of the contents of the documents. For comparison: if the contested restriction is recognized as justified by the requirements of state security, it should be established whether the state authorities have properly analyzed the interests affected in the case when formulating this conclusion, and whether they have compared them.
However, if the State authorities do not consider or consider insufficiently or do not justify the need to apply restrictions on the procedural rights of an alien, this fact in itself is not sufficient to conclude that article 1 of Protocol No. 7 to the Convention has been violated. It should also be determined whether balancing measures were applied in the case, and, if so, whether they were sufficient to correct the restrictions on the procedural rights of the alien in order to preserve the essence of these rights. The less thorough the investigation of the issue is conducted at the domestic level, the more strictly the European Court assesses the balancing factors. Therefore, too superficial consideration of the issue requires the use of enhanced balancing factors.
The European Court has also developed two guiding principles for its assessment: firstly, the smaller the amount of information available to a foreigner, the more important the guarantees become, and secondly, if the circumstances of the case indicate a particularly significant deterioration in the situation of the foreigner, the balancing guarantees should be strengthened accordingly.
(ii) Whether the restrictions on the" procedural rights " of foreigners were adequately compensated by the presence of balancing factors. Since there is no consensus in Europe on the type and limits of the mentioned factors, States should be given some discretion in this aspect. In this case, it is necessary to take into account the following non-exhaustive list of factors:
(1) the relation of the information provided to the alien about the reasons for his expulsion and access to the contents of the documents that became the basis for his expulsion. It should be established whether the State authorities, to the extent consistent with the preservation of the secrecy of the investigation and with the proper conduct of the investigation, notified the interested alien during the proceedings about the essence of the charge against him or her. Another important question is, in a particular case, which State authority, judicial or other independent body, determines, after examining all the evidence marked with secrecy, what factual information can be reported to a foreigner without violating the requirements of State security, provided that this information is reported at that stage of the proceedings when the foreigner still has the opportunity to effectively appeal against it.
(2) Informing the foreigner about the procedure for considering the case and the State mechanism provided for compensating for the restriction of his or her rights (the rights of the foreigner). It should be checked whether the State authorities have provided the necessary information to the foreigner at least at key stages of the proceedings in the case. Such information will be especially useful if the interests of the foreigner are not represented by a lawyer and if the lack of relevant information may lead to the inability of the foreigner to exercise the rights granted to him by the legislation of the relevant State. This factor becomes even more important in cases where the law requires that the case be considered without delay.
(3) Whether any person represented the interests of the alien. First, the legislation should provide an effective opportunity to represent the interests of a lawyer. The possibility for a foreigner to obtain representation of his interests by a lawyer or even a special lawyer who has the appropriate permission to work with secret documents contained in the case materials that are not available to the foreigner himself is an essential balancing factor. Secondly, the European Court should consider whether an alien could in practice gain effective access to the representation of his interests during the proceedings under consideration. Third, the rights that a foreigner could use in a particular case are an additional significant guarantee, for example, the degree of access of a representative of a foreigner to documents on the case, including secret documents, and whether or not the communication of a representative with a foreigner was restricted as soon as access to secret documents was allowed.
(4) Whether independent State authorities participated in the case. It is necessary to take into account the following aspects, even though compliance with the requirements of Article 1 of Protocol No. 7 to the Convention does not necessarily require that these questions are given comprehensive and affirmative answers:
- whether other, one or more, independent State authorities, administrative or judicial, participated in the case for the purpose of either directly applying the expulsion measure, or considering the legality of such a measure or even the essence of this measure, and if this state authority was a court, then whether the question of its place in the hierarchy of the state legal system should be considered. In this regard, judicial consideration of the issue of expulsion will, in principle, have a greater balancing value than the administrative form of verification;
- whether the applicant had the opportunity to appeal, effectively and before the competent State authority, the charges brought against him;
- whether an independent public authority had the right to effectively consider the grounds for the application or decision on expulsion, depending on the circumstances and the evidence presented, and, if so, whether it exercised this right appropriately in a particular case. In particular, whether this State authority had access to the entire volume of case materials collected by the relevant State authority in the field of security, including documents marked with secrecy, and whether it had the right to verify the authenticity of documents from the case materials, as well as the reliability and accuracy of secret information provided in support of the application or decision on the expulsion of an alien, depending on the circumstances of the case. In this regard, there is no presumption that the reasons referred to by the competent State authorities in the form of protection of State security exist and are valid: an independent State authority should be able to verify the facts in the light of all the evidence presented to it;
- whether the independent public authority called upon to review the decision on expulsion had the power to cancel or change this decision if it finds, in the light of the case materials, that the reference to State security was devoid of any reasonable and adequate factual grounds;
- whether the need for expulsion was sufficiently justified, taking into account the circumstances of the specific case and the reasons given by an independent state authority for its decision, and whether the nature and degree of verification applied by the state authority corresponded at least in essence to the arguments given in the said decision.
Application of the above principles in the present case. There was a serious restriction on the applicants ' right to be informed about the actual circumstances that caused their expulsion from the country and about the contents of the relevant documents. However, the Romanian courts did not consider the need for such a restriction and did not clarify issues related to State security, since Romanian legislation did not allow the courts to consider such issues on their own initiative. The fact that the press release issued by the Romanian State Security Department contained more factual information than was communicated to the applicants during the examination of their case contradicted the alleged need to restrict the applicants ' access to relevant information. Consequently, the European Court had to carefully consider the balancing factors that existed in the case. The applicants received only general information about the legal qualification of the charges against them, while it was impossible to draw a conclusion from the case file about the nature of the applicants ' special actions that allegedly jeopardized the State security of Romania. The mere enumeration of the names of the legal acts referred to by the Romanian authorities could not even be considered sufficient to a minima extent to form adequate information about the applicants ' accusation. Moreover, a press release could not be considered an appropriate way of providing information with such a level of detail and accuracy that would correspond to the special issues under discussion and the limits of the applicants ' procedural rights. In addition, the applicants were not notified about the key points of the proceedings in their cases or about the opportunity to get acquainted with secret documents from the materials of their cases with the help of a lawyer with the appropriate specialization. Since the applicants 'lawyers did not have permission to work with secret documents, their mere presence in the Romanian courts without any opportunity to clarify the charges against their clients could not ensure effective protection of the applicants' rights. In conclusion, it remains unclear whether the Romanian courts had valid access to all secret documents or whether they checked the reliability and accuracy of the accompanying facts: the nature and scope of the verification were not based, at least in essence, on the arguments following from the decisions of the courts. Consequently, the mere fact that the decision on expulsion was taken by independent high-level judicial authorities in the absence of an opportunity to establish that they actually used the powers granted to them by Romanian law was not sufficient to balance the restrictions faced by the applicants in the exercise of their procedural rights.
As a result, and taking into account the proceedings in the case as a whole, as well as the discretion granted to the authorities, the restrictions applied to the applicants were not compensated when considering the case by the Romanian authorities in such a way as to preserve the essence of the rights guaranteed by Article 1 of Protocol No. 7 to the Convention.
The case involved a violation of the requirements of Article 1 of Protocol No. 7 to the Convention (adopted by four votes in favor, with three against).
In the application of article 41 of the Convention. The European Court awarded each of the applicants 10,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.