CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 15 octobre 2020

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page-break-after:avoid; font-size:14pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sC266F526 { font-family:Arial; font-size:8pt; vertical-align:super; color:#222222 } .sD19654AD { width:7.01pt; font:7pt 'Times New Roman'; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .sF8D072D8 { font-family:Arial; font-size:10pt; background-color:#ffffff } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s391E78BA { font-family:Arial; background-color:#ffffff } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   GRAND CHAMBER CASE OF MUHAMMAD AND MUHAMMAD v. ROMANIA (Application no. 80982/12)     JUDGMENT   Art 1 P7 • Procedural safeguards relating to expulsion of aliens • Expulsion on national security grounds decided by court on the basis of classified information not disclosed to applicants, without sufficient counterbalancing safeguards • Right to be informed of the relevant factual elements underlying the expulsion decision • Right of access to the content of the documents and the information relied upon by the competent national authority • Requirement that limitations on these rights are duly justified by competent independent authority and sufficiently compensated for by counterbalancing factors, including procedural safeguards • Strict scrutiny of counterbalancing factors, in absence of stringent domestic examination of the need for significant limitation of the applicants’ rights • Inadequate information disclosed to applicants on grounds for expulsion, conduct of proceedings and their rights • Ineffective defence by lawyers without access to case file information • Involvement of highest judicial authority a significant safeguard, but insufficient in absence of information on nature and degree of scrutiny applied   STRASBOURG 15 October 2020     This judgment is final.   In the case of Muhammad and Muhammad v. Romania, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President,   Linos-Alexandre Sicilianos,   Jon Fridrik Kjølbro,   Ksenija Turković,   Angelika Nußberger,   Paul Lemmens,   Ganna Yudkivska,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Iulia Antoanella Motoc,   Carlo Ranzoni,   Pauliine Koskelo,   Georgios A. Serghides,   Marko Bošnjak,   Jovan Ilievski,   Péter Paczolay,   María Elósegui, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 25   September 2019 and 18 June 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 80982/12) against Romania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two   Pakistani nationals, Mr Adeel Muhammad and Mr Ramzan Muhammad (“the applicants”), on 19 December 2012. 2.     The applicants, who had been granted legal aid, were represented by Ms E. Crângariu and Ms F. Dumitru, lawyers practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms S.-M. Teodoroiu, of the Ministry of Foreign Affairs. 3.     The applicants complained that they had been deported from Romania to Pakistan, allegedly in breach of their rights under Article 13 of the Convention and Article 1 of Protocol No. 7 to the Convention. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). On 10   July 2015 the Government were given notice of the complaint under Article 1 of Protocol No. 7 and the applicants’ complaints under Articles 5 and 8 of the Convention were declared inadmissible pursuant to Rule   54   §   3. The application was subsequently allocated to the Court’s Fourth Section. On 26 February 2019 a Chamber of that Section composed of Ganna Yudkivska, President, Paulo Pinto de Albuquerque, Faris Vehabović, Iulia Antoanella Motoc, Carlo Ranzoni, Marko Bošnjak and Péter Paczolay, judges, together with Marialena Tsirli, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected thereto (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24. 6.     The applicants and the Government each filed written observations on the admissibility and the merits of the case. 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 , which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3), also submitted observations. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 25 September 2019 (Rules 71 and 59 § 3). There appeared before the Court: (a)     for the Government Ms   S.-M. Teodoroiu , Ministry of Foreign Affairs,   Agent , Ms   O. Ezer , diplomatic adviser,   Ministry of Foreign Affairs, Ms   S.D. Popa , deputy to the Permanent Representative   of Romania to the Council of Europe, Ms   D.A. Stănișor , judge at the High Court   of Cassation and Justice, Ms   I. Măiereanu , judge at the High Court   of Cassation and Justice, Mr   O. Spînu , judge at the Bucharest Court of Appeal,   Advisers ; (b)     for the applicants Ms   E. Crângariu , lawyer, Ms   F. Dumitru , lawyer,   Counsel .   The Court heard addresses by Ms Teodoroiu, Ms Crângariu and Ms   Dumitru, followed by their answers to questions from judges. As authorised by the President of the Grand Chamber, the Government submitted in writing additional answers to some of the questions put by judges during the hearing. Those answers were notified to the applicants, who submitted observations in that connection. THE FACTS   BACKGROUND TO THE CASE 8.     Adeel Muhammad was born in 1993 and lives in Tehsil Karor (Pakistan). Ramzan Muhammad was born in 1982 and lives in Dubai (United Arab Emirates). 9.     Adeel Muhammad (“the first applicant”) entered Romania in September 2012, on a student visa he had obtained on 7 September 2012 and which was valid until 2015. He received an “Erasmus Mundus” scholarship and studied in the economic sciences faculty of Lucian Blaga University in Sibiu. 10.     Ramzan Muhammad (“the second applicant”) entered Romania on 17 February 2009 on a long-stay student visa. He completed his first year of preparatory studies in Piteşti before being transferred to Lucian Blaga University in Sibiu on being granted an “Erasmus Mundus” scholarship. His wife arrived in Romania on 14   April 2012, having obtained a long-stay visa for family reunification purposes. THE APPLICATION OF THE PUBLIC PROSECUTOR’S OFFICE FOR THE APPLICANTS TO BE DECLARED UNDESIRABLE PERSONS 11.     In a note of 4 December 2012 the Romanian Intelligence Service ( Serviciul român de informaţii – “the SRI”) asked the public prosecutor’s office at the Bucharest Court of Appeal (the “public prosecutor’s office”) to apply to the appropriate court to assess whether the applicants should be declared “undesirable persons” in Romania for a fifteen-year period. In support of its request, the SRI provided classified documents at the “secret” ( strict secret ) level (see paragraph 51 below). 12.     On 4 December 2012 the public prosecutor’s office submitted an application ( rezoluție ) to the Administrative Division of that court (the “Court of Appeal”) asking it to declare the two applicants undesirable in Romania. The application stated that, according to the “secret” classified intelligence transmitted to the public prosecutor by the SRI, there were serious indications that the applicants intended to engage in activities capable of endangering national security within the meaning of Article   85   §   1 of Emergency Ordinance ( ordonanţei de urgenţă a Guvernului – “OUG”) no.   194/2002 on the status of aliens in Romania (“OUG no.   194/2002”) in conjunction with section 3 points (i) and (l) of Law no.   51/1991 on national security (“Law no.   51/1991”) and section 44 of Law no.   535/2004 on the prevention and countering of terrorism (“Law no.   535/2004”). The public prosecutor’s office also stated that the safeguards provided for under Article 1 of Protocol No.   7 to the Convention would not be breached by the measure, given that an alien could be expelled before exercising the rights enumerated in paragraph 1 (a)-(c) of that Article where such expulsion was necessary in the interests of public order or for national security reasons. The public prosecutor’s office based its application on Article 85 § 2 and Article 97 § 3 of OUG no.   194/2002. 13 .     In support of its application, the public prosecutor’s office submitted to the Court of Appeal the “secret” classified documents it had received from the SRI, indicating that those documents could be used in compliance with the provisions of Government Order no. 585/2002 on the approval of national standards for the protection of classified information in Romania (“Government Order no.   585/2002”). The president of the Administrative Division of the Court of Appeal was informed that the public prosecutor’s office had filed a “document” classified as “secret” with the classified information department at the Court of Appeal so that it could be studied by the judge who would be examining the applicants’ case. 14 .     According to the Government’s observations, the classified document transmitted by the SRI to the public prosecutor’s office gave details and examples of the activities of the two applicants in support of a fundamentalist Islamist group linked ideologically to al-Qaeda, showing their connections with various terrorist entities and their training. It also contained specific data and information concerning the two applicants’ involvement in activities which endangered national security, as collected by the SRI using its technical intelligence gathering resources. 15 .     Also on 4 December 2012, after 5.20 p.m., the Sibiu police summoned the applicants to appear the next day, at 9 a.m., in the Court of Appeal, in connection with proceedings for the purpose of examining the application of the public prosecutor’s office. The summonses were not accompanied by any documents. 16.     On 5 December 2012, after travelling overnight by bus the applicants reached Bucharest at 5 a.m. They arrived at the Court of Appeal at the time indicated. THE FIRST-INSTANCE PROCEEDINGS BEFORE THE COURT OF APPEAL 17.     In an interlocutory judgment of 5 December 2012, the bench to which the case had first been allocated relinquished it, on the grounds that the judge did not have the authorisation required by Law no. 182/2002 on the protection of secret information (“Law no.   182/2002”) to have access to the classified document adduced by the public prosecutor’s office. The Inspectorate General for Immigration (the “IGI”) was joined as a party to the proceedings, being the competent authority for the execution of the Court of Appeal’s decision. 18 .     The case was allocated to a different bench, which had been issued by the Office of the national register for State secret information (the “ORNISS”) with authorisation to access documents corresponding to the level of classification of the information in question. 19 .     A hearing took place on 5 December 2012 during which the applicants were present, assisted by an Urdu interpreter. 20 .     The Court of Appeal allowed the applicants the time necessary to apprise themselves, through the interpreter, of the application by which the case had been referred to the court. It was noted in that document that there were strong indications that the applicants had planned to carry out activities capable of endangering national security and falling within the scope of Article 85 § 1 of OUG no.   194/2002, in conjunction with section 3 points (i) and (l) of Law no.   51/1991 and section 44 of Law no. 535/2004. It was also mentioned that the data and intelligence underlying the initiating application had been forwarded to the Court of Appeal. 21 .     The applicants indicated orally to the Court of Appeal that they did not understand the reasons why they had been summoned, bearing in mind that the initiating application merely contained references to legal provisions. The Court of Appeal replied that the documents in the file were classified and that only the judge was authorised to consult them. 22 .     As the applicants stated that they had no preliminary requests, the Court of Appeal called on the parties to submit evidence. The public prosecutor’s office requested the admission in evidence of the classified documents that it had filed with the classified information department of the Court of Appeal (see paragraph 13 above). The applicants indicated that they had no evidence to adduce and they asked the Court of Appeal to scrutinise the case documents strictly, given that, in their submission, they had done nothing to endanger national security. The IGI representative asked that the classified documents submitted to the Court of Appeal be admitted in evidence. 23 .     Referring to Article 167 of the Code of Civil Procedure, the Court of Appeal decided that the classified documents should be admitted in evidence, indicating that such evidence was conclusive, pertinent and useful for the resolution of the case. It then opened the proceedings on the merits of the case. 24.     The public prosecutor’s office asked the court to declare the applicants undesirable persons and order their expulsion from Romania, submitting that it was apparent from the classified documents that they had engaged in activities capable of endangering national security. 25.     The applicants replied that they had done nothing illegal, that they were merely students and that the first applicant had arrived in Romania only two months earlier. They complained that they had been wrongly suspected and asked to be assisted by officially assigned defence counsel. 26.     After submitting the applicants’ request for legal assistance to adversarial debate, the Court of Appeal rejected it as out of time, on the ground that such a request should have been submitted before the opening of the proceedings on the merits of the case (see paragraph 23 above). 27 .     In a judgment of the same date, delivered in private, the Court of Appeal declared the applicants undesirable for a fifteen-year period and ordered that they be placed in administrative custody ( luare în custodie publică ) pending their deportation. 28 .     The Court of Appeal’s reasoning was as follows: “... Ramzan Muhammad and Adeel Muhammad, Pakistani nationals, are in Romania on student visas, both having ‘Erasmus Mundus’ scholarships to study in the economic sciences faculty of Lucian Blaga University in Sibiu. After examining the information transmitted by the SRI, classified for State secrecy purposes at the ‘secret’ level, the Court [of Appeal] regards it as proof that the aliens [in question] are engaging in activities capable of endangering national security. Account should be taken of the provisions of section 3 points (i) and (l) of Law no.   51/1991 [on national security] under which the following acts represent threats for the national security of Romania: (i) terrorist acts, and any planning or suspicion [ sic ] related thereto, by any means whatsoever; ... (l)   the creation or constitution of an organisation or group, or the fact of belonging to one or supporting one by any means, in pursuit of any of the activities listed in points (a) to (k) ..., and the covert pursuit of such activities by lawfully established organisations or groups. The Court [of Appeal] also takes into consideration section 44 of Law no.   535/2004 [on the prevention and countering of terrorism], which provides that foreign nationals or stateless persons concerning whom there are data or serious indications that they intend to engage in terrorist activities or to promote terrorism are to be declared undesirable in Romania and that their leave to remain may be curtailed, if they have not been prohibited from leaving the country, in accordance with the law on immigration status in Romania. The Court [of Appeal] also has regard to the fact that Romania, as a member of the United Nations, has undertaken to deny leave to remain to anyone who finances, prepare or commits terrorist acts, or who supports such acts. The measure ordered [in the present case] does not breach Article 8 of the [European] Convention [on Human Rights] given that, even if this measure constitutes an interference with [the right to] private and family life [of those concerned] it is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society. The measure is indeed provided for by Article 85 of OUG no. 194/2002, which authorises the ordering of an alien’s removal or exclusion from the country, [namely by a] normative instrument published in the Official Gazette, which thus satisfies the condition of accessibility of the law. Similarly, procedural safeguards are upheld for an alien who is declared undesirable, as the measure is ordered by a tribunal within the meaning of Article 6 of the ECHR, ensuring due respect for the adversarial principle and for defence rights. A measure declaring aliens undesirable pursues a legitimate aim, namely the prevention of serious acts that are capable of endangering the national security of the Romanian State. As to the need to adopt such a measure in respect of aliens, it is justified by the nature and seriousness of the activities carried out [by them], in respect of which it should be verified that the measure is proportionate to the aim pursued. Having regard to these considerations and in the light of the provisions of Article   85   § 5 of OUG no.   194/2002 to the effect that, where an alien is declared undesirable for national security reasons, the judgment does not mention the data or intelligence underlying its decision, the Court [of Appeal] grants the application and declares [the applicants] undesirable in Romania, on national security grounds, for a fifteen-year period. In the meantime, the placement of the aliens in administrative detention is hereby ordered, in accordance with Article 97 § 3 of OUG no.   194/2002, pending their deportation, [without this detention exceeding] eighteen months.” 29.     Also on 5 December 2012 the applicants were informed, by a letter from the IGI of Bucharest in Romanian and English, that they had been declared undesirable persons and that they would be removed from Romania under escort. They were placed in the Otopeni immigration holding facility pending their deportation. THE SRI PRESS RELEASE 30 .     On 6 December 2012 the SRI published a press release, which read as follows: “In the context of the measures taken by the Romanian authorities responsible for the prevention and countering of terrorism, which formed the basis of decision no.   6906 of Bucharest Court of Appeal of 5 December 2012, in which the foreign nationals R.M. and A.M. [the applicants, whose names were not disclosed] were declared undesirable for a period of fifteen years, the SRI is authorised to communicate as follows: On the basis of the intelligence gathered through the National System for the Prevention and Countering of Terrorism (the ‘SNPCT’), the SRI, in cooperation with the other institutions [operating within the framework of that] System, undertook complex investigations to obtain information on activities conducted in preparation for a terrorist attack on Romanian soil, during the period of the end-of-year festivities, by an extremist entity ideologically affiliated to al-Qaeda. For that purpose, the competent bodies monitored the activities of the entity’s members in our country, [these individuals] being regarded as ‘support points’, who were acting by way of conspiracy under external coordination. It was established that they were supposed to provide support for the whole operation to be carried out. It should be noted that one of those individuals [who were] implicated had the necessary knowledge to make improvised explosive devices. Similarly, according to the information obtained [by the competent bodies], in order to implement the action thus planned, there was an attempt [by the extremist entity] to co-opt certain individuals who were known to support Jihadi groups and who were supposed to act in collaboration with the ‘support points’ in Romania. The relevant data and information obtained in this case were transmitted, in accordance with the law, to the public prosecutor’s office at the Bucharest Court of Appeal, which supported, in the proceedings before that court, the SRI’s proposal to declare undesirable the foreign nationals R.M. and A.M., on the grounds of their involvement in activities capable of seriously endangering national security in the counterterrorism field. Following the decision of the Bucharest Court of Appeal, the two foreign nationals were arrested and placed in administrative detention pending their deportation. In its capacity as national authority for counterterrorism, the SRI, together with the other institutions of the SNPCT, prioritises the prevention of any terrorist risk and threat.” 31 .     Two articles were published in the newspaper Adevărul reporting the information in the SRI’s press release, but without citing it as the source of that information, while indicating the applicants’ names and the details of their university studies in Romania. At an unknown date the applicants became aware of the content of the press release. APPEAL PROCEEDINGS IN THE HIGH COURT OF CASSATION AND JUSTICE 32.     The applicants, who in the meantime had retained two lawyers to represent them in the proceedings, appealed to the High Court of Cassation and Justice (the “High Court”) against the Court of Appeal’s judgment of 5   December 2012 (see paragraphs 27-28 above). Those lawyers did not hold an ORNISS certificate and thus did not have access to the classified documents in the file (see paragraph 54 below). 33 .     In their grounds of appeal the applicants complained that they had not been informed by the Court of Appeal of the procedure to be followed and more specifically of the conditions in which they could have sought legal assistance. They further submitted that, in breach of Article 85 § 4 of OUG no. 194/2002, the Court of Appeal had not informed them of the facts “underlying the proposal” to have them declared undesirable, merely referring to the “secret” level of classification of the documents in the file. They submitted that there was no mention in the file of classified documents at any level of classification and in their view, even assuming that it did contain classified documents, the Court of Appeal had a legal obligation to inform them of the case against them. That failure to inform them of the precise accusations against them had deprived them of the possibility of defending themselves and had thus breached their right to a fair hearing and to an effective remedy. 34.     The applicants further complained that, even though they themselves had been denied access to the case against them on the ground that the documents in the file were classified as “secret”, the day after the judgment of the Court of Appeal the SRI had published a press release, relayed by the media, in which the accusations against them were set out. 35 .     They alleged that the Court of Appeal could have informed them of the specific acts they were said to have committed without disclosing secret intelligence, concerning for example the SRI’s investigative methods, the names of the SRI’s officers who had monitored them or the evidence gathered. The Court of Appeal had explained its decision by the “activities” in which they had allegedly “engaged” and the nature of those activities, thus implying in their view that they were accused of performing specific acts and not merely an intention to perform activities undermining national security. In the absence of such disclosure, it had been impossible for them to submit evidence in their defence. 36.     They added, lastly, that the second applicant had previously been persecuted by agents of the SRI and that, for this reason, on 19 November 2012, they had already submitted a request to the University to have their situation clarified and if possible to be transferred to another country participating in the “Erasmus Mundus” scholarship scheme. 37 .     A hearing took place on 20 December 2012 before the High Court. The applicants, who were present at the hearing, assisted by their two lawyers and an interpreter, sought permission to produce documents attesting to their conduct at the university and their integration into university life. 38 .     The applicants also asked the High Court to contact bank T. to obtain a bank statement showing their financial situation and to admit it in evidence. They adduced a note issued by bank T. dated 18 December 2012, which stated that, pursuant to Articles 111-113 of Government Ordinance no. 99/2006 on credit institutions and the sufficiency of equity capital, which guaranteed the secrecy of data, the bank could not disclose their account statements to a third party but could make them available to the High Court, if need be. They argued that, given that neither they nor their lawyers, who did not have the requisite authorisation, had access to the classified evidence in the file, the bank statement would enable them to counter the accusations made against them in the SRI press release and to show that they had not financed terrorist activities (see paragraph 30 above). 39 .     The public prosecutor’s office and the Romanian Immigration Office (the “ORI”), which had been joined as parties to the proceedings, opposed that request, submitting that the bank statement could not provide any relevant or useful evidence in the case. The ORI explained that only the classified documents were pertinent to the case, as the proceedings concerned the information contained therein, and not any information subsequently published in the press. The public prosecutor responsible for the case expressed the view that the requested evidence would not be relevant or useful for the examination of the case. 40 .     Referring to Article 305 of the Code of Civil Procedure, the High Court admitted evidence of the applicants’ conduct at university and rejected the applicants’ request to obtain the bank documents. It then put the case to adversarial debate. 41.     On the merits of the case, the applicants submitted that they were mere students and had not committed terrorist acts. They reiterated that the Court of Appeal had not communicated the facts underlying the public prosecutor’s application, in breach of the relevant provisions of OUG no.   194/2002. In spite of the “secret” classification of the evidence in the file, the day after the first-instance judgment had been delivered the accusations against them had been published in the SRI press release (see paragraph 30 above). They had not been informed of their right to be assisted by a lawyer or of the accusations against them. They had not been afforded the procedural safeguards of a fair trial as the proceedings had been a mere formality. 42 .     In a final judgment of 20 December 2012 the High Court dismissed the applicants’ appeal. After summing up the decision of the Court of Appeal, the High Court found that it could be seen from the classified documents available to it that the court below had rightly taken account of the existence of indications that the applicants had intended to engage in activities capable of endangering national security. It further observed that, pursuant to Article   85 § 5 of OUG no. 194/2002, where a decision to declare an alien undesirable was based on reasons of national security, the data and information, together with the factual grounds ( motivele de fapt ) underlying the judges’ opinion, could not be mentioned in the judgment. It added as follows: “The applicants’ arguments about their good conduct at university cannot prosper and fail to rebut the conviction of the court, based as it is on the classified documents containing information which is necessary and sufficient to prove the existence of strong indications that they intended to engage in activities that were capable of endangering national security.” 43 .     The High Court then analysed the applicants’ ground of appeal based on the alleged breach of their fundamental rights and procedural safeguards during the first-instance proceedings. It found as follows: “The measures of expulsion, administrative detention and removal under escort of aliens who have been declared undesirable in Romania are legitimate, being governed in domestic law by the provisions of Chapter V (‘Rules governing the removal of aliens from Romania’) of OUG no. 194/2002; [they] are necessary and proportionate to the aim pursued in so far as the court [ instanța de judecată ] has found that the evidence gathered proves that there are strong indications [ indicii temeinice ] that the persons concerned intend to engage in activities that are capable of endangering national security.” 44 .     The High Court further noted that the provisions of Article 1 of Protocol No. 7 to the Convention were applicable to the case. The applicants were legally in Romania when the expulsion procedure was initiated but that the provisions of paragraph 2 of that Article were not applicable to them, given that they had not been expelled before the exercise of their rights. After referring to the Court’s findings in Ahmed v.   Romania (no.   34621/03, 13 July 2010), Kaya v. Romania (no.   33970/05, 12 October 2006), and Lupsa v. Romania (no.   10337/04, ECHR   2006 ‑ VII), where a breach of Article 1 of Protocol No. 7 to the Convention had been found because the competent authorities had not notified the aliens concerned of the document initiating the proceedings or of the slightest information as to the accusations against them, the High Court found that the circumstances of the present case were different. 45 .     The High Court noted that, in the present case, the applicants had been notified of the public prosecutor’s initiating application and had been allotted the necessary time, with the assistance of an interpreter, to study its content and the supporting documents in the file. They had thus been in a position to know the reason why they had been summoned to court in the exclusion and expulsion proceedings. It gave the following reasoning: “It is true that the documents classified as ‘secret’ in the file, [which] were available to the court [which examined the case], were not disclosed to the appellants. The lack of direct and specific disclosure of the information contained in the documents classified as a State secret [ secret de Stat ] at the level ‘secret’ [ strict secret ] submitted by the SRI is consistent with the statutory obligation, binding on the court, under the provisions of Article 85 § 5 of Ordinance no.   194/2002 ... and especially the provisions of Law no. 182/2002 on the protection of classified information [citation of sections 2(2), 15 (f) and 39(1) and (2) of the Law]. Under those provisions, the court, having taken note of the information contained in the classified documents in the case file, is bound by a duty not to disclose that information. Compliance with the safeguard imposed by Article 1 of Protocol No. 7 to the Convention, [namely that of] ensuring the protection of the person (being deported) against any arbitrary interference by the authorities with his or her Convention rights (see ECtHR, Ahmed case, cited above, § 52), is secured in the present case by the fact that both the first-instance court and the appellate court had the possibility of examining the validity of the existence of the indications [that those concerned] ‘intended to engage in activities capable of endangering national security’ (within the meaning of Article 85 § 1 of OUG no.   194/2002); the case has thus been examined at two levels of jurisdiction before an ‘independent and impartial tribunal’ within the meaning of Article   6   § 1 of the Convention. If it were considered that the need to inform the deportee of the grounds for his deportation entailed, unequivocally, the direct, effective, concrete and timely presentation of the indications ... this would be tantamount – in the High Court’s opinion and in relation to its obligation not to disclose or encourage the disclosure of information which could cause serious harm to national security – to calling into question the very notion of national security together with all the measures aimed at protecting information falling within this concept. The [High Court] notes that [in the present case] the rights secured by Article 1 of Protocol No.   7 to the Convention were upheld in the judicial proceedings: [the appellants] had the genuine possibility of being present both before the first-instance court and the appeal court, assisted by lawyers of their choosing; [they were able to submit] reasons against their expulsion; their case was examined directly and effectively by an independent and impartial tribunal; [and] they were represented by lawyers of their choosing. Having regard to the arguments set out above, the High Court takes the view that there has not been – contrary to the grounds of appeal – any breach of the right to an effective remedy or the right of access to a court, as guaranteed by Article 6 of the Convention, nor has there been any disregard of the non-discrimination principle guaranteed by Article 14 of the Convention and Article 1 of Protocol No. 12, as prohibited by Article 18 § 1 of the Constitution. The fact that, after the delivery of the Court of Appeal’s judgment, the press and broadcasting media revealed information on which the expulsion decision was based does not lead to the conclusion that the right of access to a court or the right to a fair hearing have been breached. For the same reasons as those given above, the [appellants’] argument that their right of access to a court was only nominally respected cannot prosper. The [appellants’] argument as to the protection of individuals under Article 3 of the Convention is also ill-founded since the risk of being subjected to inhuman or degrading treatment in the country of destination has not been proved by documents emanating from State authorities [ statale ]; [the appellants] merely adduced a report by the Romanian National Council for Refugees drawn up on the basis of certain ‘public information, selected and translated following an on-line search’. Also ill-founded is the argument raised by [the appellant] Muhammad Ramzan under Article 8 of the Convention on the basis of the presence in Romania of his wife, who is nine months’ pregnant and is dependent on his doctoral grant. Even though his deportation constitutes an interference with the exercise of his right to respect for his family life, the [High Court] takes the view that, for the reasons given above, this interference meets the requirements of Article 8 § 2 of the Convention, being in accordance with the law and necessary in the interest of national security. As to the upholding of the [appellants’] defence rights before the Court of Appeal, the High Court notes that [they] had the possibility of submitting arguments against their expulsion and were able to express themselves in their mother tongue, through an interpreter. Moreover, it should be noted that, pursuant to the law [ în mod legal ] the Court of Appeal had declared out of time their request for assistance by officially assigned counsel, on the ground that this request had been submitted once the merits of the case had been put to adversarial debate, not at the earlier stage of the proceedings. In addition, before the appellate court, they have been assisted by lawyers of their choosing and have been able to submit all their arguments in their defence. Consequently, it cannot be admitted that there has been a breach of the right to a fair trial, as protected by Article 21 § 3 of the Constitution and by Article 6 § 1 of the Convention. The [appellants’] arguments to the effect that the Court of Appeal had written [that they had] ‘engaged in activities’ [ desfășurarea de activități ], whereas the public prosecutor’s application had referred to an ‘intention to engage in certain activities’, and had erroneously cited the text of section 3 point (i) of Law no. 51/1991, are not capable of negating the lawfulness and validity of the decision delivered. Having regard to the foregoing, ... the High Court dismisses the appeal as unfounded ...” 46.     The applicants left Romania on 27 December 2012. Relevant legal framework and practice DOMESTIC LAW AND PRACTICE Domestic law The Constitution 47.     The relevant provisions of the Constitution read as follows: Article 18 Foreign nationals and stateless persons “(1)     Foreign nationals and stateless persons who live in Romania enjoy the general protection of individuals and property, as secured by the Constitution and other laws.” Article 21 Free access to the courts “(3)     Parties have the right to a fair hearing and to the settlement of their disputes within a reasonable time ...” Article 24 Defence rights “(1)     Defence rights are guaranteed. (2)     Throughout the proceedings, the parties have the right to be assisted by counsel, whether of their own choosing or officially assigned.” Article 31 The right to information “(3)     The right to information shall not compromise measures for protection ... of national security.” Code of Civil Procedure 48 .     The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: Article 129 “(2)     The court informs the parties of their rights and obligations depending on their capacity in the proceedings ...” Article 167 “(1)     Evidence can only be admitted if the court [ instanța ] is of the view that it is capable of contributing to the manifestation of the truth [ că ele pot să aducă dezlegarea pricinii ] ... (2)     It will be added to the file before the opening of the proceedings on the merits. (3)     Evidence for and against will be gathered, as far as possible, at the same time. ...” Article 305 “No new evidence may be presented for the purposes of an appeal [ recurs ], except for the written documents which may be adduced until the close of the proceedings.” Law no. 51/1991 on national security 49.     The relevant provisions of Law no. 51/1991 on national security read as follows: Section 3 “The following shall constitute threats to the national security of Romania: (a)     plans and activities seeking to abolish or undermine the sovereignty, unity, independence or indivisibility of the Romanian State; (b)     activities whose direct or indirect aim is to trigger a war against the State or a civil war, to facilitate foreign military occupation or servitude towards a foreign power or to help a foreign power or organisation achieve such aims; (c)     treason committed by aiding enemies; (d)     armed or violent acts which seek to weaken the power of the State; (e)     espionage, the transmission of State secrets to a foreign power or organisation or to their agents, the illegal possession of State secrets with a view to their transmission to a foreign power or organisation or to the agents thereof ...; (f)     the acts of undermining, sabotaging or any other act which seeks to destroy by force the democratic institutions of the State or which seriously breaches the fundamental rights and freedoms of Romanian citizens or which may interfere with the defence capacity or other similar interests of the State, and any destruction or damage ... of the infrastructures necessary for the proper functioning of social and economic life or for national defence purposes; (g)     acts through which harm is caused to life, to physical integrity or to the health of individuals who perform significant State duties ...; (h)     t