By Bahija Aarrass (Assistant professor of administrative and migration law at the Open University Netherlands)
In the judgment in the case of Muhammad and Muhammad v. Romania, the Grand Chamber of the European Court of Human Rights held that there had been a violation of Article 1 of Protocol No. 7 of the ECHR, which provides for procedural safeguards relating to the expulsion of aliens. The case concerned proceedings as a result of which the applicants, Pakistani nationals living lawfully in Romania as students, were declared undesirable and deported on the basis of national security reasons. They allegedly engaged in activities in support of a fundamentalist Islamist group linked ideologically to al-Qaeda. The Court has previously dealt with numerous cases concerning expulsion of aliens because of vague ‘national security reasons’. But this is the first judgment of the Grand Chamber in which this provision has been dealt with substantively. It resulted in an elaborate judgment laying down several principles for the assessment of national procedures relating to the expulsion of aliens.
Facts of the case
The applicants, Adeel Muhammad and Ramzan Muhammad, born in 1993 and 1982, are Pakistani nationals who lived in Pakistan and Dubai (United Arab Emirates) respectively. Adeel Muhammad arrived in Romania in September 2012 on a student visa after obtaining an Erasmus scholarship and took up his studies in the economic sciences faculty of the University in Sibiu. Ramzan Muhammad entered Romania on 17 February 2009 on a long-stay student visa. He attended the same university where he also was granted a scholarship. His wife joined him in Romania in April 2012.
On 4 December 2012 the Bucharest Court of Appeal received an application of the public prosecutor’s office to declare the two applicants undesirable in Romania. The application was supported by classified documents of the Romanian Intelligence Service (“the SRI”) and stated that, according to that information, there were serious indications that the applicants intended to engage in activities capable of endangering national security.
The court of first instance (Court of Appeal) declared the applicants to be undesirable persons in Romania for a 15-year period and ordered that they be placed in administrative custody pending deportation. The applicants were present at a hearing of this court which took place on 5 December 2012, assisted by an Urdu interpreter. The applicants indicated that they did not understand the reasons why they had been summoned, as the initiating application merely contained references to legal provisions. The Court of Appeal however replied that the documents in the file were classified and that only the judge was authorised to consult them. The applicants complained that they had been wrongly suspected and asked to be assisted by an officially assigned defense counsel. This request for legal assistance was rejected by the Court of Appeal because it should have been submitted before the opening of the proceedings.
The next day (6 December 2012) there was a press release issued by the SRI which gave details and examples of the activities of which the applicants were accused, in support of an Islamist group ideologically affiliated to al-Qaeda. The information in the press release was reported in certain newspapers, indicating the applicants’ names and the details of their university studies,
The applicants appealed to the High Court of Cassation and Justice but their appeals were dismissed. The High Court concluded from the classified documents that the court in first instance had rightly taken account of the indications that the applicants had intended to engage in activities capable of endangering national security. It further observed that, pursuant to the law, where a decision to declare an alien undesirable was based on reasons of national security, the data and information, together with the factual grounds underlying the judges’ opinion, could not be mentioned in the judgment. They had been in a position to know, with the help of an interpreter, the reason why they had been summoned to court in the expulsion proceedings. The High Court deemed that the rights secured by Article 1 of Protocol No. 7 ECHR were upheld in the judicial proceedings since the appellants had the genuine possibility of being present both before the first-instance court and the appeal court, assisted by lawyers of their choosing; they were able to submit reasons against their expulsion; their case was examined directly and effectively by an independent and impartial tribunal; and they were represented by lawyers of their choosing.
The applicants left Romania on 27 December 2012.
Applicability of article 1 Protocol nr. 7
The applicants invoked both Article 1 of Protocol No. 7 as well as article 13 ECHR on the right to effective remedies, but the Court chose to assess solely the first. The Court found a violation of this provision, which provides in the first paragraph that
“An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law (..)”.
In addition the first paragraph provides for three specific procedural safeguards: aliens must be able to submit reasons against their expulsion (a), to have their case reviewed (b) and, lastly, to be represented for these purposes before the competent authority (c). The second paragraph of Article 1 of Protocol No. 7 provides for an exception, enabling States to expel an alien who is lawfully resident on its territory even before he or she has exercised the rights afforded under Article 1, paragraph 1, in cases where such expulsion is necessary in the interests of public order or for reasons of national security.
A quick assessment of the term ‘lawful resident’ by the European Court of Human Rights leads to the conclusion that the applicants, as they had obtained student visa, were lawfully resident in Romania and therefore article 1 of Protocol Nr. 7 was applicable to their expulsion. The second paragraph of article 1 Protocol Nr. 7 was not applicable in the case and was not included in the assessment.
After a presentation of the case law on Article 1 of Protocol No. 7, from which it transpires that the Court has always sought to ensure that an expulsion decision was not arbitrary and that the alien was able to exercise effectively the rights enumerated in the first paragraph, the Court sets out a number of criteria for establishing whether the procedural rights, when expelling aliens, are infringed. These criteria are categorized in three questions: the Grand Chamber seeks to ascertain whether and to what extent the rights asserted by the applicants are protected by that provision (1), the possibility of restricting them (2), and the criteria to be taken into account in determining the compatibility of a limitation of those rights with Article 1 of Protocol No. 7 (3). These will be discussed consecutively.
The right to be informed and the right to access to (secret) information
As to the first question the Court concluded that the right to be informed of the reasons for their expulsion and the right to have access to the documents in the case file are secured by the provision. Although these rights are not expressly mentioned in the text of Article 1 of Protocol No. 7, the Court concludes that applicants can in principle invoke these rights. The Court finds in particular that Article 1, paragraph 1 of Protocol No. 7 requires in principle that
“the aliens concerned be informed of the relevant factual elements which have led the competent domestic authorities to consider that they represent a threat to national security and that they be given access to the content of the documents and the information in the case file on which those authorities relied when deciding on their expulsion”.
In the Court’s opinion, an alien cannot meaningfully challenge the authorities’ allegations to the effect that national security is at stake, or reasonably submit reasons against his expulsion without being aware of the relevant factual elements which have led the domestic authorities to believe that the alien represents a threat to national security.
The Court establishes in this regard that in the course of the national proceedings no information as to the factual reasons for the expulsion was provided to the applicants. The applicants were provided with an interpreter at first instance and a lawyer at the higher instance but in both instances they were informed that the documents in the file were confidential and that only the court had access to them by virtue of the authorisation given to the judge.
Significant limitations on the rights under article 1 Protocol Nr. 7
As to the limitation possibilities, the Court states that the rights to information and access to information are not absolute. The Court reiterates that, as is the case in certain criminal proceedings, administrative expulsion proceedings may also be characterised by the presence of competing interests – such as national security or the requisite secrecy of police investigation methods – which must be weighed in the balance against the rights of the alien. The Court takes into account that it has previously accepted limitations of an applicant’s rights to access the file and to be informed of the accusations in cases concerning expulsion proceedings where national security was invoked. Nevertheless, any limitations of the rights in question must not negate the procedural protection guaranteed by Article 1 of Protocol No. 7 by impairing the very essence of the safeguards enshrined in this provision. Thus, only limitations which are duly justified and sufficiently counterbalanced will be permissible in the context of Article 1 of Protocol No. 7.
The Court notes in this regard that domestic regulations in Romania precluded the disclosure of classified information to persons who did not hold a certificate authorising them to access this type of document. The Court further establishes that, from the outset of the proceedings, in applying the relevant legal provisions, the domestic courts found that the applicants were not entitled to access the documents in the file as they were classified. The Court qualifies this a significant limitation of the applicants’ right to be informed of the factual elements and the content of the documents underlying both the application for their expulsion submitted by the public prosecutor’s office and the domestic courts’ decision to order their removal from Romania.
Compliance with article 1 protocol nr. 7 in the present case: counterbalancing safeguards
The third question, whether the limitations to the aforementioned procedural rights of the applicants, were compatible with article 1 Protocol Nr. 7, leads to an elaborate answer of the Court, divided in two sub questions: whether the limitation on the aliens’ procedural rights was duly justified and, subsequently, whether those limitations were sufficiently counterbalanced, in particular by procedural safeguards, such as to preserve the very essence of the relevant rights. For this it takes the case law on limitation possibilities under other procedural rights in the ECHR (in particular articles 5 and 6 ECHR) as an inspiration.
With regard to the first sub question, the Court considers that, in the absence of any examination by the domestic courts hearing the case of the need to limit the applicants’ procedural rights, the limitation does not seem duly justified. The Court takes into account the fact that the press release published by the SRI on the day after the Court of Appeal’s judgment contained more detailed factual information than that provided to the applicants, which contradicts the need to deprive the applicants of specific information as to the factual reasons submitted in support of their expulsion. This in itself does not lead to the conclusion that the provision is violated. It does mean, however, that the Court imposes a strict scrutiny in order to establish whether the counterbalancing factors put in place were capable of effectively mitigating the limitations of the applicants’ procedural rights in the present case. The strict scrutiny is expressed by several criteria which are set out by the Court as follows:
– The relevance of the information disclosed to the alien and the access provided to the content of the documents relied upon
– Disclosure to the alien of information as to the conduct of the proceedings and the domestic mechanisms in place to counterbalance the limitation of his or her rights
-Whether the alien was represented
-Whether an independent authority was involved in the proceedings
The Court finds, firstly, that the applicants received only very general information about the legal characterisation of the accusations against them, while none of their specific acts which allegedly endangered national security could be seen from the file. The Court further considers that they were not provided with any information about the key stages in the proceedings or about the possibility of accessing classified documents in the file through a lawyer holding the required certificate. As a consequence, although they were represented by a lawyer at the High Court, these lawyers were not able to provide them with the necessary defence rights. As to the extent of the scrutiny exercised by an independent authority, the Court takes the view that the mere fact that the expulsion decision was taken by independent judicial authorities at a high level, without it being possible to establish that they actually used the powers vested in them under Romanian law, does not suffice to counterbalance the limitations that the applicants sustained in the exercise of their procedural rights.
This judgment has importance for several reasons. First of all it is the first judgment in which the Grand Chamber found a violation of article 1 of Protocol Nr. 7. In the only other judgment of the Grand Chamber on this provision, the Court did not make a substantial assessment because it had not been established that expulsion of Georgian nationals lawfully resident in the territory of the Russian Federation had taken place. As a consequence, the Grand Chamber did not get to a substantial assessment of this provision. In the case of Muhammad and Muhammad v. Romania the Chamber had relinquished jurisdiction to the Grand Chamber without giving judgment itself. This also indicates that there were issues of interpretation of this provision which needed to be addressed. In that regard it is relevant that Court judgments on this provision are relatively scarce, since article 1 of Protocol nr. 7 was addressed in only 16 cases (of which 14 led to a violation). Thus, this issue was until now not much addressed in the case law of the Court.
Secondly, the judgment lays down the criteria to be taken into account in order to determine whether limitations imposed on the procedural rights when expelling aliens are compatible with Article 1 of Protocol No. 7. Procedural rights of aliens are especially of relevance because of the effects expulsion has. In this case the Court stated that the applicants’ expulsion had the effect of making it impossible for them to continue their university studies and of severing any social ties that they had established in Romania. Next to setting out these criteria, the importance of this judgment lies in the fact that it is made very clear that setting up a national procedure based on secret information in which procedural rights are merely formally provided for, does not suffice. The Court gives substantive meaning to these rights by emphasising that an alien cannot meaningfully challenge the authorities’ allegations to the effect that national security is at stake, or reasonably submit reasons against his expulsion without being aware of the relevant factual elements which have led the domestic authorities to believe that the alien represents a threat to national security.
In previous case law, where national authorities did not provide any reasons for expulsion and a review by an independent authority was nearly absent, the Court concluded that article 1 Protocol 7 ECHR was violated. In this case, Romanian law provided for the expulsion and the review was conducted by the highest domestic court in Romania, the independence of which the Court did not seem to doubt. The Court thus could have maintained, if article 1 Protocol 7 was interpreted in a strict sense, that the procedural guarantees were met, since this provision requires that the expulsion is lawful and that a review by an independent authority takes place. Nonetheless, the Court shows with this judgment that the guarantees are not merely a procedural exercise but should comprise of a substantive review, since setting up a judicial procedure in which the underlying reasons for the expulsion remain entirely unassessed, does not suffice.
The importance of procedural rights of aliens enshrined in article 1 Protocol Nr. 7 is furthermore enhanced by the fact that the core procedural rights with regard to a fair trial in the ECHR are not applicable to migration issues. Article 6 ECHR would seemingly be the logical core provision to invoke in this regard, since it provides for procedural safeguards such as the right to defense and the right to adversarial proceedings. However, since article 6 ECHR is not applicable to proceedings concerning entry and expulsion of aliens, the procedural safeguards of this provision are not applicable. This is because, according to the Court, such proceedings do not pertain to the determination of a civil right or obligation, or of a criminal charge, for the purposes of Article 6, which is an established line of reasoning since Maaouia v. France.
Article 13 ECHR provides for procedural guarantees as well. Relying on this provision, the Court has previously considered, for instance in Al-Nashif v. Bulgaria, that in cases of expulsion of aliens on grounds of national security the right to an effective remedy requires as a minimum that the reasons underlying the deportation decision, even if they are not publicly available, must be made available to an independent authority. In addition, there must be some form of adversarial proceedings, if need be through a special representative after a security clearance. These guarantees are comparable to the standard set in this case, although the criteria which are laid down by the Grand Chamber, clearly provide for a more extensive concretization. Although article 13 ECHR was invoked in this case, the Court did not assess this provision, without giving any reasoning. Presumably the provision was not applicable, since it requires an arguable claim that another right in the Convention has been infringed. In that regard it is noteworthy that the applicants invoked other provisions (article 5 and article 8 ECHR) at an earlier stage, but these were declared inadmissible.
This explains the focus of the Court on article 1 Protocol nr. 7 ECHR in this case. An important remark is that this provision should be considered as containing “minimum” procedural safeguards in the event of expulsion, whereas article 6 ECHR contains several specific rights. Interestingly, this did not prevent the Court from including case law on article 6 ECHR in the interpretation of the safeguards provided for in article 1 Protocol Nr. 7 ECHR. The Court expressly notes that this case law provides useful indications as the methodology to be followed in assessing limitations of the rights guaranteed by Article 1 of Protocol No. This leads to the consideration that, in line with the precedent of Regner v. the Czech Republic, the very essence of the rights secured to the alien by Article 1 of Protocol No. 7 must be preserved. The ‘very essence’ criterium is usually used with regard to limitations to the right to a fair trial in article 6 ECHR, in particular the implied right of access to court.
This results in a somewhat contradictory outcome in this case, since case law on Article 6 ECHR in criminal cases shows that the entitlement to disclosure of relevant (secret) evidence is not an absolute right, for example when use is made of a special counsel scheme. This is also observed by the dissenting judges, who contend that this leads to a higher degree of protection afforded under Article 1 of Protocol No. 7 compared to Article 6 and that this is in contrast with the minimum procedural safeguards-principle which was intended by the states with the first provision.
Apparently, the aspect of how to address limitation possibilities to procedural rights in article 1 of Protocol Nr. 7 is not the only point that caused discord in this case. Almost half of the lengthy judgment comprises of individual opinions of several judges (out of the 17 judges seven judges concurred in four different opinions and three judges added a joint dissenting opinion). These opinions provide very insightful readings for understanding the different (academic) positions of these judges on several doctrinal issues concerning judicial reasoning of the ECHR, for example on proportionality analysis, the concept of the essence of human rights and the absoluteness of rights. It seems as if the members of the Grand Chamber saw the opportunity with this judgment to address some issues that transcend procedural rights of migrants. Issues that go the heart of the judicial role of the ECHR and whether it should or should not ascribe to itself a more leading role in setting the position with regard to judicial assessment of human rights provisions. This might be the first phase in paving the way for upcoming case law in which the Court will break ground on these issues, particularly in taking a clearer stand on the concept of the essence of human rights.