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Strasbourg reiterates importance of access to justice in national security deportation cases

Strasbourg reiterates importance of access to justice in national security deportation cases

Imagine being accused of a crime. Now imagine you’re not told what that crime is. Then imagine a whole trial taking place without you being told what you’ve done and without you seeing any documents to prove it. Every time the top-secret evidence about you comes up, you and your lawyer are told to leave the room. Then imagine a court finding against you and deporting you from a country where you’ve spent several years. Imagine all of that happening right here in the UK.

If this sounds like Kafka, you are not wrong. It is also how our justice system commonly decides immigration and nationality cases that have a national security element to them. In the UK, we call it the Special Immigration Appeals Commission, introduced in 1997 as a replacement for the ‘Three Wise Men’ system which had been found to be unlawful under the European Convention on Human Rights in the Chahal case and under EU law in the Shingara and Radiom case.

Courts or tribunals like this are common in other countries too and just because things are bad here does not mean they aren’t even worse elsewhere. The case of Muhammad and Muhammad v Romania (application no. 80982/12) is about how the Romanian justice system got the process badly wrong during the deportation of two Pakistani students accused of having terrorist links. Adeel Muhammad and Ramzan Muhammad were seemingly typical students until around December 2012, when the Romanian Intelligence Service got involved. The Muhammads were none the wiser until they were summoned by police to appear in the Bucharest Court of Appeal the following day. That same day, without being shown any evidence, they were both found to be “undesirable persons” and their deportation was ordered.

Two days later, a news article was published explaining that the students were accused of being linked to Al-Qaeda and their names and details of their universities were disclosed to the public.

That same month, in December 2012, they lodged their claims with the European Court of Human Rights. A little under seven years later, the court agreed that the Muhammads had been dealt with unfairly.

The main line of attack was that if the details of the case were so top-secret, why were they published in the newspaper after the Muhammads were found liable to deportation? Further, at no point had the Muhammads been told that they could have obtained legal assistance from lawyers who had special certificates to let them access the classified documents. Their then lawyers had not held such a certificate, so were effectively sitting blind. All of this basically hamstrung them into making very general submissions about their lives in Romania but without actually knowing what they were being accused of:

The Court reiterates that in the present case the applicants sustained significant limitations in the exercise of their right to be informed of the factual elements underlying the decision to deport them and their right to have access to the content of the documents and the information relied upon by the competent authority which made that decision… It does not appear from the file that the need for such limitations was examined and identified as duly justified by an independent authority at domestic level. The Court is therefore required to exercise strict scrutiny of the measures put in place in the proceedings against the applicants in order to counterbalance the effects of those limitations, for the purposes of preserving the very essence of their rights under Article 1 § 1 of Protocol No. 7…

Paragraph 203

The Muhammads were not told about any specific acts which allegedly endangered national security, or any information about the key stages in the proceedings, or about the possibility of accessing classified documents in the file through a lawyer with the required authorisation. These failings were not remedied by the fact the deportation decision was taken by independent judicial authorities at a high level.

The consecutive failures in the Romanian system led to a finding that the Muhammads’ rights under Article 1 of Protocol 7 were breached:

An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a) to submit reasons against his expulsion,

(b) to have his case reviewed, and

(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

The court was kind enough to order Romania to pay each of the students €10,000. But is that really enough for being stuck in litigation for seven years, being deported from a country where you were studying and facing the stigma of being accused of being a terrorist all that time?

The striking thing seems to be the complete absence of equivalent procedural rules like we now have in our Special Immigration Appeals Commission. In cases where the evidence is top-secret, surely it would be all the more important to make sure there are very strict protocols in place to make sure people are notified of their rights to have lawyers access the classified information? Particularly given these students were only told the night before that they needed to pitch up at court the next morning. What kind of system of justice is that? How could that possibly be fair?

In the UK at least, we now have the system of ‘special advocates’ who are specially appointed and vetted lawyers who represent the interests of the person unable to see the sensitive information about their case. That added layer of protection seemed to be ignored or, at the very least, understated in the Romanian system.

Finally, I know I have harped on about this again and again but the length of time that it takes the European Court of Human Rights to decided these cases is absolutely appalling. Thankfully, this case had some sort of happy ending and justice for those involved but so many of these cases are dragged out unnecessarily and people are left in limbo for years. This is a real barrier to access to justice.

Bilaal is an Associate in the commercial dispute resolution department of a leading international law firm.

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