First ECtHR Grand Chamber judgment on Article 1 of Protocol No. 7 on procedural safeguards on the expulsion of aliens
For the first time, the European Court of Human Rights has laid down substantial principles for the assessment of national procedures relating to the expulsion of aliens under Article 1 of Protocol No. 7 of the European Convention on Human Rights in the case of Muhammad and Muhammad v Romania.
The applicants in the case were Pakistani nationals who were residing lawfully in Romania as students. However, they were declared ‘undesirable’ and were deported on the basis of national security reasons due to their alleged involvement in a fundamentalist Islamic group linked to al-Qaeda.
The applicants invoked Article 1 of Protocol No. 7, which provides for procedural safeguards relating to the expulsion of aliens, along with Article 13 on the right to effective remedies. The three specific procedural safeguards provided in Article 1 of Protocol No. 7 state: (a) aliens must be able to submit reasons against their expulsion, (b) to have their case reviewed and, (c) to be represented for these purposes before the competent authority. The Protocol does allow for an alien who is lawfully resident in the state to be expelled before he has exercised these rights where necessary in the interests of public order or for reasons of national security.
The Court set out a number of criteria for establishing whether the procedural rights, when expelling aliens, are infringed.
Although not expressly provided for in the Protocol, he first such right was the right to be informed of the reasons for expulsion and the right to have access to the documents. In the Court’s view, 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 found that the applicants were not provided with any information as to the factual reasons for their expulsion. The applicants were told that the documents held against them were confidential and they needed judicial authorisation to access them.
However, the Court went on to state that such rights are not absolute and limitations will apply when the Courts try to balance competing interests such as national security or the requisite secrecy of police investigations against the alien’s rights. Nevertheless, any limitation must not negate the procedural protection guaranteed by Article 1 of Protocol No.7 by impairing the very essence of the safeguards enshrined in the provision.
In terms of the case at hand, the Court held that the domestic regulations in Romania precluded the disclosure of classified information to persons who did not hold a certificate authorising them to access them and, in the Court’s view, created a limitation on the applicants’ rights to access information.
However, the Court considered that the limitation was not duly justified considering that the effect of not being provided with such information meant that not even their lawyer could defend them adequately.
To read the full judgement, click here.