Muhammad and Muhammad v. Romania, No. 80982/12, ECtHR (Grand Chamber), 15 October 2020

Terrorism. Expulsion of aliens on national security grounds. Use of classified information. Procedural safeguards.

Art. 1 Protocol No. 7 to the ECHR

1. In order to determine the compatibility of aliens expulsion with art. 1 Protocol No. 7 ECHR (procedural safeguards relating to the expulsion of aliens), the case law under arts. 5 and 6 ECHR provide useful guidance. In particular, it is necessary to determine whether the limitations of the alien’s procedural rights are justified by the competent independent authority in the light of the particular circumstances of the case. If so, the Court has to examine whether the difficulties resulting from these limitations for the alien concerned were sufficiently compensated for by counterbalancing factors, in particular by procedural safeguards, such as to preserve the very essence of the relevant rights.

2. In cases of aliens' expulsion, the more the information available to the alien is limited, the more the safeguards are important; moreover, where the circumstances of a case reveal particularly significant repercussions for the alien’s situation, the counterbalancing safeguards must be strengthened accordingly.

3. In the balancing effort between national security needs (resulting in non-disclosure of evidence) and procedural rights of the individual, the following points have to be considered: i) whether the alien has been informed at least of the substance of the allegations against him/her; ii) whether the determination of which evidence to disclose is up to a judicial or independent authority; iii) whether the alien was represented in the proceeding. 

4. In the case at stake, the Romanian court had not exercised a strict scrutiny over the above mentioned principles. The Court found a violation of art. 1 Protocol no. 7 to the ECHR. 
 

The Helsinki Foundation for Human Rights based in Poland and the Association for Legal Intervention, together with Amnesty International and the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism had been given leave to intervene in the written procedure and submitted observations.