ECtHR: National security based expulsion of Pakistani nationals from Romania violates Article 1(1) of Protocol No. 7

Thursday, October 15, 2020

On 15 October 2020, the Grand Chamber of the ECtHR published its judgment in the case of Muhammad and Muhammad v Romania (Application no. 80982/12). 
Both applicants, born in Pakistan and UAE respectively, were lawfully present in Romania on student visas. In 2012, the Romanian Intelligence Service (“the SRI”) asked the public prosecutor’s office to begin proceedings to assess whether the applicants should be declared undesirable and provided them with classified documents that allegedly contained indications that the applicants intended to engage in activities capable of endangering national security. A first instance Court received authorisation to access sensitive documents and subsequently issued a decision declaring the applicants to be undesirable. The High Court upheld this decision.  The applicants left Romania on 27 December 2017 in compliance with the respective deportation orders. 
Relying on Article 1 § 1 of Protocol No. 7 ECHR, the applicants complained that they had not been afforded due procedural safeguards and had not been able to defend themselves effectively. 
The ECtHR found that the applicants’ right to be informed of;  the substance and factual elements of the accusations made against them, the content of the documents underlying the expulsion decision and the request for access to the classified material were all severely limited and such limitations were not duly justified. The Court indicated that domestic law was unclear on the question whether the protection of national security imposed non-disclosure of the file in a given court case. Nor did the domestic courts assess whether the authorities had rightfully restricted the applicants’ procedural rights by not disclosing the confidential documents to them. Similarly, the reasoning for withholding the classified documentation was not explained to the applicants. In the Court’s view, these points were compounded by the press release published by the SRI containing details of the case, contradicting the argument that no concrete information could be shared with the applicants of the facts supporting their expulsion. 
Finally, the ECtHR assessed the existence of appropriate and adequate safeguards compensating for procedural limitations. The Court, referring to case-law, set out an enumerated non-exhaustive list of aspects that should be taken in to account in this type of assessment (paras 147 – 157). The Court found that no specific information was provided to the applicants by an independent authority, that the applicants were not informed of the conduct of the domestic proceedings,  the rights they enjoyed arising from this procedure and that the applicants’ representation could not be sufficiently effective in order to counterbalance the procedural limitations. Additionally, although the case was examined by an independent judicial authority, the Court did not find that this safeguard could sufficiently compensate for the limitations of procedural rights if the nature and degree of scrutiny afforded by the said independent authority did not permeate the reasoning of their decisions. 
The ECtHR found that the limitations imposed on the applicants’ enjoyment of their rights under Article 1 of Protocol No. 7 were not counterbalanced in domestic proceedings such as to preserve the essence of their rights and accordingly, there was a violation of Article 1 Protocol No. 7 ECHR. The judgment is accompanied by the concurring opinions of seven judges and the joint dissenting opinion of three judges.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Procedural guarantees