Prohibition of access to basic documents of the case file that had been classified as classified resulting in the deportation of a foreigner. Failure to protect the procedural rights of the applicant
JUDGMENT
Hassine v. Romania 09.03.2021 (app. no. 36328/13)
SUMMARY
Deportation of an alien. Access to critical documents. Procedural guarantees.
The case concerned administrative proceedings following which the applicant was expelled from
Romania on national-security grounds.
The Court held that substantial limitations had been imposed on the applicant’s procedural rights
without the need for those limitations having been examined and duly justified by an independent
authority at national level. The applicant had not been provided with any information about the
specific conduct on his part that was capable of endangering national security, or about the key
stages in the proceedings. 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.
PROVISION
Article 1 of the 7th Additional Protocol
PRINCIPAL FACTS
The applicant, Amine Hassine, is a Tunisian national who was born in 1982. He stated that he was
living in Cluj-Napoca (Romania).
Mr Hassine arrived in Romania in 2007 and settled in Cluj-Napoca. In 2009 he married a Romanian
national, with whom he had a child. He obtained a residence permit “on family grounds”, which was
valid until 2015.
On 6 November 2012 the public prosecutor’s office at the Bucharest Court of Appeal applied to that
court asking it to declare Mr Hassine an “undesirable person” and to prohibit him from residing in
Romania for five years. The public prosecutor’s office stated that, according to the information it had
received from the Romanian intelligence services, which was classified as secret, there were strong
indications that the applicant was engaged in activities capable of endangering national security. In
support of the application the prosecutor sent a document to the Court of Appeal that was classified
as secret. In a judgment of 9 November 2012 the Court of Appeal declared Mr Hassine an
undesirable person in Romania for a five-year period and ordered his placement in administrative
detention pending his removal from the country. On the evening of 9 November 2012 Mr Hassine
was arrested and taken to the Arad administrative detention centre. On 5 December 2012 he was
removed from Romania and sent back to Tunisia.
On 20 November 2012 the applicant’s lawyer lodged an appeal with the High Court of Cassation and
Justice (“the High Court”) against the Court of Appeal judgment of 9 November 2012. As he did not
hold an ORNISS certificate – issued by the Office of the national register for State secret information and authorising the holder to access documents classified as secret – the lawyer was unable to consult the classified documents in the case file.
In a judgment of 12 December 2012 the High Court dismissed Mr Hassine’s appeal. It held that the
Court of Appeal had correctly ruled that the procedure for summoning the parties had been carried
out in the proper manner and that the first-instance court had rejected the request for adjournment
properly and giving reasons. The proceedings had been conducted with due respect for the
adversarial principle, and the measure declaring Mr Hassine an undesirable person on
national-security grounds had been taken after verification of compliance with the statutory
procedures, and had struck a fair balance between the need to take measures to prevent terrorism
and the obligation to respect human rights.
The High Court found that the Court of Appeal had carried out an effective examination of the public
prosecutor’s application and the documents in the case file classified as secret. The applicant had
had access to a court and had been afforded the relevant procedural safeguards. The High Court
observed that in its Grand Chamber judgment in Maaouia v. France, the Court had ruled that
decisions regarding the entry, stay and deportation of aliens did not concern the determination of
civil rights or obligations or of a criminal charge, within the meaning of Article 6 § 1 of the
Convention. The High Court noted that under Article 1 § 2 of Protocol No. 7 to the Convention an
alien could be expelled where the expulsion was based on reasons of public order or national
security.
Relying on Article 5 §§ 1 and 4 (right to liberty and security/right to a speedy review of the
lawfulness of detention), the applicant alleged that his placement in administrative detention with a
view to his expulsion amounted to an unlawful deprivation of liberty and that he had had no
effective remedy in that regard. Relying on Article 1 of Protocol No. 7 (procedural safeguards relating
to expulsion of aliens), the applicant complained that he had not been afforded any safeguards
against arbitrariness. Lastly, he alleged that the measure taken against him had breached his right to
respect for his private and family life under Article 8.
THE DECISION OF THE COURT…
Article 5 §§ 1 and 4
The applicant had been deprived of his liberty for a short period prior to his removal from the
country. Although he had been represented by a lawyer, he had not contested the administrative
detention measure as such in the High Court, but had merely challenged the declaration that he was an undesirable person. The Court therefore found that the applicant had had available to him a remedy by which to complain of the measure, which he had not exercised.
The complaint under Article 5 § 4 was manifestly ill-founded and had to be rejected. The complaint
under Article 5 § 1 had to be rejected for failure to exhaust domestic remedies.
Article 1 of Protocol No. 7
The Court observed that under Article 85 § 5 of Emergency Ordinance no. 194/2002 on the status of
aliens in Romania, as in force at the relevant time, the data and information, together with the
factual grounds underlying the judges’ opinion, could not be mentioned in the judgment. 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 therefore had to assess the necessity
of the restrictions imposed on the applicant’s procedural rights and the measures taken by the
national authorities to counterbalance those restrictions.
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. Hence, the applicant had been summoned to appear in the proceedings and the
application initiating the proceedings had been attached to the summons. Only the numbers of the
legal provisions which, according to the public prosecutor’s office, governed the applicant’s alleged
conduct were referred to in that document, without any mention of the conduct itself. In its
judgment the Court of Appeal had reproduced the parts of Law no. 51/1991 which it considered
relevant, thus circumscribing the legal framework of the accusations against the applicant, namely
an intention to commit acts of terrorism and the aiding and abetting of such acts by any means. No
additional information had been provided to the applicant’s lawyer.
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 very short interval before the Court of Appeal had resumed the
hearing after rejecting the applicant’s request for an adjournment – despite the fact that he lived in
a town some distance away from the Court of Appeal – and the decision to examine the case in the
applicant’s absence, had had the effect of negating the procedural safeguards to which he had been
entitled before that court.
Lastly, the Court 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. The public prosecutor’s office had produced a classified document
before the Court of Appeal. Both that court and the High Court stated that they had based their
decisions on that document, but had nevertheless given very general responses in dismissing the
applicant’s pleas that he had not acted to the detriment of national security. In other words, there
was nothing in the file to suggest that the national courts had actually verified the credibility and
veracity of the information submitted by the public prosecutor’s office.
The Court therefore held that substantial limitations had been imposed on the applicant’s
procedural rights without the need for those limitations having been examined and duly justified by
an independent authority at national level. The applicant had not been provided with any
information about the specific conduct on his part that was capable of endangering national security
or about the key stages in the proceedings. 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.
Article 8
In view of its findings under Article 1 of Protocol No. 7 to the Convention, the Court held that it was
unnecessary to examine the complaint under Article 8 of the Convention.
Just satisfaction (Article 41)
The Court held that Romania was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 2,300 in respect of costs and expenses.
Separate opinion
Judge Motoc expressed a separate opinion which is annexed to the judgment.
