Legal summary
December 2022
S.L. v. Romania (dec.) - 52693/12
Decision 29.11.2022 [Section IV]
Article 8
Expulsion
Failure by lawyer to obtain a certificate granting access to the secret documents underlying the exclusion measure issued against the applicant on the grounds of national security: inadmissible
Facts – In 2003 the applicant, a Tunisian national, settled in Romania, where he obtained the qualifications to practise as a doctor. In July 2010 he married a Romanian national and, as a family member of a citizen of the European Union, obtained a residence permit, valid for 5 years from September 2010.
In August 2011, when returning with his wife from a trip to Tunisia, the applicant was refused entry to Romania by the Romanian border police. The standard report indicated that this decision was in accordance with the Government Emergency Ordinance on the rules governing aliens in Romania, on the grounds that his name had been entered on the national register for persons to be refused entry. The document did not contain any precisions as to the factual reasons for this inclusion or the duration of the measure. The applicant was subsequently informed that he was forbidden from entering Romania (on the basis of an exclusion order) for a 15-year period.
In August 2011 the applicant, who was represented by a lawyer, lodged an administrative appeal with the court of appeal against the General Inspectorate of Border Police, seeking to have the exclusion order set aside and his name removed from the list of persons banned from entering Romania. In February 2012 the court of appeal dismissed the applicant’s appeal. Pointing out that it had examined the documents in the file, including “those classified as secret”, it stated that the exclusion order complied with the appliable legal provisions and, in the light of the documents in the file, had been justified by objective circumstances.
The applicant’s lawyer was unable to consult the documents classified as secret, since he did not hold a certificate issued by the Office of the national register for State secret information (the “ORNISS”), which was necessary to obtain access to such documents; he took no steps to obtain such authorisation.
Before the Court, the applicant alleged that he had been denied adversarial proceedings before the court of appeal, which would have enabled him to challenge the measures taken against him, since neither he nor his lawyer had been able to consult the classified documents in the file.
Law – Article 8:
The applicant had only been informed in a very general manner about the offence of which he was suspected. Although the domestic law provided general indications as to the facts used to justify the measure taken against the applicant - namely, an alert for his participation in the financing of, support for or commission of terrorist acts -, it was nonetheless the case that he had not been informed of any fact giving rise to a tangible suspicion.
Furthermore, the court of appeal had held that, given the secret nature of the documents in the file, the law imposed a restriction on the applicant’s procedural rights, which was justified by the public interest in protecting classified information.
In this context, the procedural safeguards imposed by Article 8 of the Convention did not guarantee an alien an absolute right to be informed of the reasons underlying the exclusion order or to have access to classified information and documents in his case (see I.R. and G.T. v. the United Kingdom (dec.)). However, there had to be a review, by the independent authority, to verify the absence of arbitrariness in assessing the threat to national security and the proportionality of the measure, combined with some form of adversarial proceedings, where appropriate through a special representative who had received security clearance.
The applicant had been able to challenge the exclusion order before the court of appeal, which enjoyed the requisite independence within the meaning of the Convention institutions’ case-law. That court had had access to all the documents in the case file, including the classified documents setting out the factual reasons underlying the measure. It had taken into account, albeit in a very succinct manner, the applicant’s allegations of an interference with his right to respect for his private and family life, and it had held that there was no violation of Article 8 and that the evidence showed that the measure had been necessary and proportionate. It therefore appeared that the court of appeal had weighed up the interests at stake.
With regard to the possibility provided for under domestic law of some form of adversarial proceedings, a person suspected of terrorist acts, such as the applicant in the present case, was not entitled to consult the classified documents on which an exclusion order was based. However, under the law in force, persons holding an ORNISS certificate were entitled to consult information that was classified as secret. The law permitted lawyers to obtain such a certificate and laid down a special procedure for that purpose. After obtaining the certificate, a lawyer could consult the classified documents in the case file of the person he or she was representing, without, however, being able to disclose to the latter the information classified as “secret”, and could prepare his or her client’s defence. Accordingly, the alien concerned, represented by a lawyer who had been issued with the ORNISS certificate, could have a “form of adversarial proceedings” before the court of appeal and could defend himself, through his or her lawyer, in respect of the suspicions in question.
In the present case, the applicant had voluntarily appointed a lawyer to defend his interests. However, after discovering that the decision taken against his client had been based on classified documents, the lawyer had not asked the court of appeal to adjourn the proceedings so that he could take the necessary steps to obtain an ORNISS certificate.
The law had not imposed a time-limit on the court of appeal for ruling on the applicant’s appeal against the exclusion order. The proceedings brought by the applicant had lasted more than six months (from August 2011 to February 2012), and several adjournments had been granted. In view of the length of application procedure for an ORNISS certificate, approximately sixty working days according to the law, the applicant’s lawyer could legitimately have requested an adjournment for the purpose of complying with the procedure to obtain such a certificate. Furthermore, it was clear from the domestic case-law, albeit subsequent to the facts of the present case, that the domestic courts grant such adjournments in those circumstances.
Lastly, it would be useful if the domestic authorities provided the persons concerned with minimum but sufficient information about the possibilities of access to confidential information available under domestic law, in particular where the person was not represented and the proceedings were conducted expeditiously (see Muhammad and Muhammad v. Romania [GC]). However, where, as in the present case, the individual concerned had instructed a lawyer to represent him from the beginning of proceedings which were not subject to short time-limits, it was not unreasonable to expect that legal professional to be aware of the applicable legal provisions and to inform his client of the safeguards provided for by domestic law. Admittedly, the applicant had not been physically present at the hearings on account of the order prohibiting his entry into Romania. However, that factor alone was not such as to raise doubts on the part of the court of appeal with regard to the effectiveness of the defence, provided by counsel who had been instructed by his client.
Thus, while the applicant had been unable to enjoy some form of adversarial proceedings, this failure arose from the manner in which his representative had decided to conduct his defence, and not from an absence of procedural safeguards available under domestic law. The applicant had not made full use of these safeguards.
Conclusion: inadmissible (manifestly ill-founded).
(See also I.R. and G.T. v. the United Kingdom (dec.), 14876/12 and 63339/12, 28 January 2014, Legal summary; Muhammad and Muhammad v. Romania [GC], 80982/12, 15 October 2020, Legal summary)
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This summary by the Registry does not bind the Court.
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