02 Apr Violation of procedural rights in the procedure of expulsion of aliens

In the case of Hassine v. Romania (application no. 36328/13, 09.03.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens) of the European Convention on Human Rights. 

The case concerned administrative proceedings following which the applicant was expelled from Romania on national-security grounds. The applicant arrived in Romania in 2007 and married a Romanian national, with whom he had a child. He obtained a residence permit “on family grounds”, which was valid until 2015. The Court of Appeal declared the applicant an undesirable person in Romania for a five-year period and ordered his placement in administrative detention pending his removal from the country. The applicant was arrested on 9 November 2012 and taken to the Arad administrative detention centre. On 5 December 2012 he was removed from Romania and sent back to Tunisia.

The Court observed that the legal provisions in force prohibited the disclosure of information classified as secret to persons who did not hold a certificate authorising them to access documents of that kind. Under the relevant provisions, as noted by the High Court, the applicant had not been entitled to consult the documents in the case file that had been classified as secret. This had resulted in a substantial limitation of the applicant’s rights under Article 1 of Protocol No. 7.

The Court noted that the national courts had held at the outset that the applicant was not entitled to access the case file, without themselves having examined the necessity of restricting his procedural rights. During the proceedings the applicant had received only very general information about the legal characterisation of the accusations against him, while no specific actions on his part capable of endangering national security were apparent from the file.

The Court also noted that the applicant had been represented before the High Court by a lawyer of his own choosing who had been unable to access the classified documents in the case file. Given the very limited and general information available to the applicant, he could only base his defence on suppositions, without being able specifically to challenge an accusation of conduct allegedly endangering national security.

As to the extent of the scrutiny performed, the Court took the view that the mere fact that the expulsion decision had been taken by independent judicial authorities at a high level did not suffice to counterbalance the limitations that the applicant had sustained in the exercise of his procedural rights. The Court considered that the limitations imposed on the applicant’s enjoyment of his rights under Article 1 of Protocol No. 7 had not been counterbalanced in the domestic proceedings in such a way as to preserve the very essence of those rights. There had therefore been a violation of Article 1 of Protocol No. 7 to the Convention.

References from the official website of the European Court of Human Rights