Abstract
The key question tackled in this paper is how States as Parties to the ECHR can use and protect security-sensitive information (secret evidence) in expulsion proceedings. The purpose of this paper is to explore to what extent States may be justified to refuse to disclose to a non-citizen evidence related to State security which constitutes grounds for an expulsion decision, and not violate aliens’ procedural rights. Apart from the procedural mechanisms analysed in the paper, the major problems regarding the use of secret evidence in immigration cases are addressed. The views expressed in this article are solely those of the author.
Keywords
‘The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights’.
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1. Introduction
Though in principle a domestic issue, the expulsion of non-citizens has been influenced significantly by international human rights law. As a result, States Parties to the European Convention on Human Rights (ECHR, Convention) no longer enjoy absolute and uncontrolled discretion in immigration policy and have to exercise it consistently with the obligations expressed in the Convention. The ECHR requires that State Parties tailor their immigration laws to respect human rights.
However, it should be emphasised that the European Convention on Human Rights does not provide non-citizens with the right to enter, remain and reside. In principle, these issues are within the competence of States Parties of the Council of Europe. It is the sovereign prerogative of States to regulate the presence of non-citizens in their territory, including their expulsion. 3 The European Commission of Human Rights has observed that ‘a state which signs and ratifies the ECHR must be understood as agreeing to restrict the free exercise of its right under general international law, including the right to control the entry and expulsion of foreigners to the extent and within the limits of the obligations which it has accepted under that Convention’. 4
The use of secret evidence that cannot be disclosed in expulsion proceedings is one of the most difficult issues that arises in migration law. As J. Ramji-Nogales stresses, the tension between national security interests and the due process rights of non-citizens has become one of the most pressing problems facing Western governments. 5 Since the September 11th terrorist attacks, various States have refused to disclose the full extent of the evidence submitted in support of expulsion decisions against non-citizens made on the grounds of national security. The European Court of Human Rights (ECtHR, Court) recognised that ‘the use of confidential material may be unavoidable where national security is at stake’. 6 Nevertheless, ‘security considerations are not a magic spell that let all legal restrictions disappear’. 7 Without a doubt, in such circumstances a non-citizen should be given due notice of the hearing as well as adequate notice of the evidence against him or her, as otherwise he or she will not have a chance to exercise his or her right to a defence in expulsion proceedings. The exercise of the right to a defence is possible when a non-citizen receives sufficient evidence and information to know the substance of the allegations against him or her and to be able to respond. Therefore, the key question is how States Parties to the ECHR can use and protect security-sensitive information (that is secret evidence) in expulsion proceedings in a manner that would still assure procedural fairness to non-citizens.
This article aims to identify whether the ECHR includes procedural mechanisms which on the one hand accommodate legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of expulsion decision, and on the other hand accommodate the need to ensure sufficient compliance with the non-citizen’s procedural rights, such as the right to be heard and the right to a defence. From the normative perspective this article intends to build a more complete analytical framework how to strike a proper balance between due process rights of aliens and secret evidence. Regarding the methodology of this research, the author draws on examples of the case-law of the European Court on Human Rights 8 to illustrate possible mechanism for enforcing this balance. First, this article will discuss the key provisions regarding the access to secret evidence in expulsion proceedings that have been adopted under the ECHR. Next, the problems posed by the use of secret evidence in expulsion proceedings will be addressed. Subsequently the author of this paper will try to show that the principle of proportionality might solve the dilemma between national security interests and the due process rights of non-citizens. Finally the standard developed by the ECtHR concerning national security issues and classified information infringing alien’s procedural rights in expulsion proceedings will be analysed.
2. The scope of Article 1 of Protocol No. 7 to the ECHR
Article 1 of Protocol No. 7 to the ECHR introduces procedural guarantees relating to expulsion of non-citizens. According to this provision: 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: to submit reasons against his expulsion, to have his case reviewed, and to be represented for these purposes before the competent authority or a person or persons designated by that authority. An alien may be expelled before the exercise of his rights under paragraph 1. a, b and c of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.
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It should be stressed – as noted in the Explanatory Report on Protocol No. 7 – that ‘an alien lawfully in the territory of a Member State of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him or her’, including those provided by Articles 3 (prohibition of inhuman or degrading treatment) and 8 of the Convention (the right to respect private and family life), in connection with Article 13 (the right to an effective remedy before a national authority). 10
Article 1 of Protocol No. 7 requires that expulsion must be decided in accordance with domestic law. This provision imposes an obligation on States Parties to have a law that regulates the matter of expulsion and expects them to follow it strictly. 11 However, it does not define whether an expulsion decision must have a judicial or quasi-judicial character. The Explanatory Report on Protocol No. 7 solely provides that the domestic law of the State concerned should indicate a competent authority in cases concerning the expulsion of aliens as well as the provisions of substantive law and the relevant procedural rules. 12 Nevertheless, a closer look at the European Convention on Human Rights and the case law of ECtHR shows that an expulsion decision reached by a court is not required in expulsion proceedings as such proceedings are not covered by the scope of the right to a fair trial under Article 6 of the Convention. The European Court of Human Rights acknowledged that decisions regarding the entry, stay and deportation of aliens do not include the determination of their civil rights and obligations or a criminal charge against them, within the meaning of Article 6(1) of the Convention and therefore Article 6(1) of the ECHR is not applicable in these cases. 13 The Court recognised that by adopting Article 1 of Protocol No. 7, States Parties ‘clearly intimated their intention not to include proceedings for the expulsion of aliens within the scope of Article 6(1) of the Convention’. 14 The formulation of Article 1 of Protocol No. 7 may be construed as concerning procedural guarantees in administrative proceedings. Unlike Article 6 of the Convention 15 , Article 1 of Protocol No. 7 does not include any requirements as to the form and scope of the case review, in particular when considering the principles of impartiality, fairness and equality of arms, or a right to a fair hearing. The Explanatory Report clearly shows that Article 1 of Protocol No. 7 was added to the Convention to afford minimum guarantees to aliens in the event of expulsion from the territory of a State Party 16 and does not affect the adopted interpretation of Article 6 of the ECHR. 17 Thus, ‘the Convention imposes less exacting procedural standards in immigration cases than in criminal ones, as well as allows a higher margin of appreciation in national security matters, the state retains more discretion to fashion special immigration procedures for protecting security-sensitive evidence’. 18
Specifically, Article 1 of Protocol No. 7 provides non-citizens residing lawfully in the territory of a State Party with a right to submit reasons against expulsion and to have their cases reviewed by a competent authority. These safeguards reflect a principle of fundamental justice known as audi alteram partem 19 that is ‘not the formality, but the essence of justice’. 20 It gives an alien the opportunity to respond to the evidence justifying his or her expulsion and as a result to defend himself or herself in the proceedings. The Explanatory Report on Protocol No. 7 specifies that an alien may exercise the right to submit his or her reasons against expulsion even before being able to have the case reviewed. 21
However, it should not be forgotten that the procedural guarantees discussed here are not absolute rights. Notably, where the non-citizen’s presence impacts national security or public order, such person may be expelled before the exercise of his or her rights under Article 1 of Protocol No. 7. In other words, where the State establishes that ‘expulsion is necessary in the interests of public order or is grounded in reasons of national security’, these specific procedural rights may be limited.
Despite the fact that Article 1 provides minimum procedural guarantees to non-citizens, it simultaneously establishes two crucial rules that aim to balance due process rights and national security interests in decisions to expel non-citizens lawfully present. First, most non-citizens lawfully present must be allowed to see all of the evidence used against them in expulsion proceedings and second, in order to withhold evidence against non-citizens lawfully present, the State must establish that interests of public order or reasons of national security apply. A State must present a convincing argument that it is necessary to withhold evidence in order to protect the society against terrorist activity and thus to maintain the confidentiality of certain national security information, for example: the identity of its agents, sources and methods of gathering intelligence and its analysis, and so on. However, even in circumstances where there are reasons expressed in paragraph 2 of Article 1, an expulsion decision must be taken in accordance with law. Hence, it should be emphasised that a non-citizen being expelled on grounds of Article 1(2) may invoke procedural guarantees enshrined in Article 1(1) only after his or her expulsion from the territory of a State. 22 The Explanatory Report on Protocol No. 7 makes it clear that to consider an expulsion necessary in the interest of public order or for reasons of national security, the principle of proportionality as defined in the case law of the ECtHR must be taken into account. 23 It should be stressed that the State’s commitment to national security cannot be divorced from its commitment to the rule of law, of which procedural fairness and other rights are a part. The balance of security and procedural rights of non-citizens is not a ‘“zero-sum game”, but is instead a more complex process of seeking solutions and a suitable state of being that defends the dignity of the individual within a democracy’s overarching value system’. 24
3. The secret evidence dilemma
Keeping the grounds for expulsion decisions secret as well as using secret evidence in expulsion proceedings raises a number of problems. As J. Ramji-Nogales indicates: ‘The very nature of secret evidence eliminates the adversarial system’s traditional test of evidentiary reliability and accuracy: confrontation. Moreover, the broad discretion awarded to the government in [immigration cases] combined with a strong political incentive to appear effective in combating terrorism seem to have inspired government lawyers to present evidence without first testing it for accuracy and reliability’.
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On the other hand, the use of secret evidence in expulsion proceedings may sometimes be necessary for reasons of State security, particularly in cases involving terrorism. The devastating impact of acts of terrorism requires that public authorities need to develop all conceivable means of prevention. Thus, States have not only the legitimate right but also a duty to ensure national security and protect the rights of those under their jurisdiction. 26 There are vital national security interests that need secrecy as well as protection. Disclosing sensitive classified information about intelligence sources and methods may threaten the lives of government informers and intelligent agents and their families as well as may jeopardise their work (as intelligence agents), the international sources of intelligence information gathering, and crucial security information that may prevent terrorist attacks. 27 Consider an expulsion hearing for an alien suspected of terrorism in which key information against him or her comes from a high profile informant inside the terrorist organization or from a foreign intelligence service whose government cannot unveil its political alliance with a given State to combat terrorism. Disclosing this information to the alien who is subject to expulsion may have a strong adverse impact on ongoing intelligence operations and cooperation. 28
Nevertheless, many scholars have also emphasised the misuse of secret evidence in expulsion proceedings and its lack of reliability.
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As J. Ramji-Nogales explains: ‘The misuse of secret evidence – the presentation of unreliable and inaccurate information, often without an adequate showing of the risk of revealing this information to the non-citizen – has serious ramifications. (…) First, on an individual level, the government’s failure to test its evidence led to grave injustice, namely the detention of innocent men and, in some cases, the separation of families for many years. Second, on a societal level, the misuse of secret evidence decreases the legitimacy of immigration proceedings and actually increases the risk of terrorism by alienating immigrant communities. Finally, on a global level, the misuse of secret evidence in immigration court contributes to the imbalance between national security interests and due process rights (…)’.
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In turn, K. Roach presents the view that ‘The information that is not disclosed may involve many of the hallmarks of miscarriages of justice such as improper procedures for eyewitness identification, unreliable statements from in-custody and at-jeopardy informants, and confessions made after the application of extreme interrogation techniques’. 32
Moreover, the British non-governmental organization Justice noted that: ‘intelligence material may contain second- or third-hand hearsay, information from unidentified informants, information received from foreign intelligence liaisons, data-mining and intercepted communications, not to mention the hypotheses, predictions and conjecture of the intelligence services themselves’. 33 The use of intelligence material as evidence – particularly where based on foreign intelligence gathering – was similarly criticised by the Special Rapporteur on human rights and counter-terrorism M. Scheinin, who said that ‘sanctions against a person should not be based on foreign intelligence, unless the affected party can effectively challenge the credibility, accuracy and reliability of the information and there are credible grounds to believe that the information is accurate and reliable’. 34 The main argument that secret evidence may not be credible hinges on the fact ‘it is the product of the security and intelligence services who, despite their expertise in intelligence, have no background in evidence-gathering and for whom the prosecution of suspected terrorists is much less of a priority than the disruption of their activities’. 35
In summary, the issue of using secret evidence in expulsion proceedings is a complex one and may constitute a potential threat to a fair trial. It should be stressed that the right to a defence is one of the essential elements of the rule of law. As such any means of preventing terrorism must take account of the demands of the rule of law in a democratic society.
4. The relevance of the principle of proportionality for the alien’s right to access the case file and evidence
The use of secret evidence in expulsion proceedings presents a dilemma of how to strike the proper balance between national security interests and the due process rights of non-citizens. From a constitutional perspective, the core issue is the relation between the State’s legitimate interest to ensure national security and its domestic and international duty to protect human rights. The emerging complexity of balancing those two countervailing interests in a constitutional democracy was described perfectly in the landmark judgment of the Supreme Court of Canada in Charkaoui. The judgment states that: ‘One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance’.
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a rational connection between the legitimate aim and the means utilised by the law to attain it (suitability); the aim cannot be achieved by means that are less restrictive of the right (necessity)
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; there must be a proportionate balance between the social benefit of realizing the legitimate aim, and the harm caused to the right (proportionality stricto sensu).
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Moreover, the principle of proportionality requires that the limitations on rights must be explicitly ‘prescribed by law’.
As has been noted, the right to access the case file and evidence is not an absolute right. The State Party to the ECHR is permitted to limit this right if the limitations correspond to an objective of general interest, and that they do not constitute, with regard to the objective pursued, a disproportionate interference of the aforementioned right. In the ongoing fight against terrorism, a State has a legitimate interest in maintaining the confidentiality of certain national security information. In the interest of national security, it may be necessary to expel an alien who is deemed to pose a threat. At the same time, security concerns may preclude disclosure of the evidence on which the expulsion decision is based. For instance, if secret evidence or documents in expulsion proceedings reveal substantial security details, the provision of this information to terrorists can put any State at a disadvantage and make all of its citizens less safe. Moreover, disclosing secret evidence might also inform terrorist organisations as to how much a given State knows about their operations, providing organisations with the opportunity to change their plans and practices to prevent a government from protecting its society. Therefore, the protection of national security and related intelligence sources undoubtedly constitutes a legitimate aim. The non-disclosure of evidence during expulsion proceedings is rationally connected to this aim. The facts on this point are undisputed. Nevertheless, a State must always find the proportionate means for balancing alien’s rights and public interests.
When domestic law limits the duty to disclosure, the requirements of fundamental justice may still be met, as D. Barak-Erez, M. C. Waxman indicate ‘by telling [the adversely affected person] the substance of the case he has to meet, without disclosing the precise evidence or the sources of information’. 45 However, the greatest problem in practice is the scope and the accuracy of the evidence on which an expulsion decision will be made, particularly when national security is at stake. If a non-citizen does not have access to incriminating documents justifying an expulsion decision taken against them, they cannot effectively present their case and rebut the findings made by the competent body. The inability of the non-citizen to rebut secret evidence in expulsion proceedings means that the court cannot fully assess its probative value and cannot be satisfied that the information provided by the government is sufficient, accurate or reliable. Not granting an alien access to any secret evidence gathered during expulsion proceedings goes beyond what is strictly necessary and, therefore, is incompatible with the principle of proportionality.
A State Party to the ECHR has the discretion to balance national security against procedural fairness in determining how much information can be disclosed to an alien who is subject to expulsion. Nevertheless, it is obvious that reliance on interests of national security by a State is not sufficient to justify not informing an alien about the grounds for an expulsion decision. A State has to be prepared to justify that such policy is rationally connected to the prevention of terrorism. It must therefore provide proof that legitimate security concerns about the nature and sources of intelligence information taken into account in the adoption of the expulsion decision militate in favour of a non-disclosure of the evidence. In such circumstances, an alien has to be provided with a summary of information that enables him or her to be reasonably informed of the circumstances giving rise to the expulsion decision without disclosing the national security information. In the absence of such proof, the domestic court must uphold the principle that an alien must be informed of the grounds and evidence justifying his or her expulsion.
As K. Roach indicates, the principle of proportionality ‘addresses whether rights violations will actually increase security and whether less drastic measures can be used to prevent terrorism. In addition, a proportionality analysis can consider the distributional consequences of violating the rights of minorities in an attempt to increase security’.
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He further explains that the principle of proportionality: ‘[…] accepts that the need to prevent terrorism is an important objective and that the importance of the objective may increase with the frequency and lethality of terrorist attacks. At the same time, however, a proportionality analysis insists that counter-terrorism strategies must be legally authorised and subject to judicial application of principles of rationality, least drastic or restrictive means, and an overall balance between effectiveness in preventing terrorism and infringement on rights and freedoms’.
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5. The approach of the ECtHR to secret evidence in expulsion proceedings
Bearing in mind that the expulsion decision is - in principle - administrative in nature, attention should be drawn to Recommendation (2004) 20 of the Committee of Ministers to Member States on the judicial review of administrative acts. 48 According to Article 4(c) of the Recommendation, an administrative body should make available to the court all documents and information relevant to the case unless national law provides for exceptions in important cases. The recommendation, invoking the jurisprudence of the European Court of Human Rights, is reminiscent of the obligation to disclose all relevant administrative files and facts on which the administrative act is based as a requirement for a fair trial. 49 Additionally the Recommendation suggests that ‘in certain circumstances it should be possible to apply special protective measures to sensitive documents (for instance, where national security is at stake)’. 50 However, it does not specify these measures what may raise serious concerns, with a view to providing a wide margin of discretion of members of the Council of Europe regarding entry and expulsion of their territory. Nevertheless, the case law of the European Court of Human Rights concerning the use of secret evidence in expulsion proceedings can give some guidance on how procedural rights of non-citizens and national security interests (including the fight against terrorism) can be reconciled. 51
The use of secret evidence was a key issue in the landmark judgment Chahal v. The United Kingdom. 52 The Court found, inter alia, that procedural rights in the expulsion proceedings were inadequate. Because the decision to expel Mr. Chahal was based on grounds of national security, he had recourse only to a special advisory panel. In the hearing before that panel, the applicant was denied both legal representation and full access to the reasons of his expulsion decision. Moreover, he was not informed of the panel’s non-binding advice to Home Secretary either. 53 The European Commission of Human Rights recognised that: ‘States enjoy a wide margin of appreciation under the Convention where matters of national security are in issue, but was not satisfied that the grave recourse of deportation was in all the circumstances necessary and proportionate’. 54
On the issue of using secret evidence the ECtHR stressed that it: ‘recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved’.
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‘Under the Canadian Immigration Act 1976 (as amended by the Immigration Act 1988), a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarizing, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of the security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State’s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant’.
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Nevertheless, the institution of special advocates requires some further clarifications, as it may provide for maintenance of confidential State security data and the alien’s due process rights. The role of a special advocate is to protect the interests of a foreign national in immigration proceedings when information or other evidence is heard, in the absence of the person concerned and their counsel. 60 Special advocates have the required government security clearance that enables them to access confidential information. This person is provided with a copy of all information that is provided to the judge but is not disclosed to the foreign national and his or her counsel. One of the main goals of a special advocate is to challenge the reliability of charges against the alien as well as arguments forwarded by proper bodies to keep certain information confidential. He or she also participates in the proceedings held in camera during which they may cross-examine witnesses, and are present when evidence is verified. However, special advocates are unable to communicate with the affected alien after having received classified information unless they gain special permission from the court. 61 Therefore, in light of the principle of proportionality the special advocates could perform a crucial role in counterbalancing the lack of full disclosure and the lack of full, open adversarial hearing in expulsion procedure by testing the secret evidence.
In the Al-Nashif v. Bulgaria case, concerning the expulsion of a non-citizen on national security grounds, the Court referred to the Chahal judgment and the institution of special advocates. Nevertheless, ‘[w]ithout expressing in the present context an opinion on the conformity of the above system with the Convention’, the Court reiterated ‘that, as in the case of Chahal, there are means which can be employed, which both accommodate legitimate national security concerns and yet accord the individual a substantial measure of procedural justice’.
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Moreover, the Court presented the view that: ‘Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information’.
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‘While procedural restrictions may be necessary to ensure that no leakage detrimental to national security would occur and while any independent authority dealing with an appeal against a deportation decision may need to afford a wide margin of appreciation to the executive in matters of national security, that can by no means justify doing away with remedies altogether whenever the executive has chosen to invoke the term national security’.
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‘[…] be able to have the [expulsion measure] scrutinised by an independent and impartial body competent to review all the relevant questions of fact and law, in order to determine the lawfulness of the measure and censure a possible abuse by the authorities. Before that review body the person concerned must have the benefit of adversarial proceedings in order to present his point of view and refute the arguments of the authorities’.
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In C.G. and others v. Bulgaria, the expulsion was carried out on the day the order was issued. The expulsion decision was based on unspecified information contained in a secret internal document
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, meaning that the applicant was not able to challenge it.
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In fact, he could not have his case adequately heard and reviewed. As such, the Court found a violation of Article 1 of Protocol No. 7 because the domestic courts refused to gather evidence to confirm or dispel the allegations serving as a basis for the decision to expel the applicant and subjected this decision to a purely formal examination. Furthermore, the Strasbourg Court stressed that: ‘[…] the notion of “national security” is not capable of being comprehensively defined […] It may, indeed, be a very wide one, with a large margin of appreciation left to the executive to determine what is in the interests of that security’.
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In Kaushal and Other v. Bulgaria, the European Court of Human Rights stated that the decision to expel Mr Kaushal made no mention of the factual grounds on which it was made. 76 It simply referred to the legal provisions in force and stated that his presence in Bulgaria represented a ‘serious threat to national security’. 77 That conclusion was based on unspecified information contained in a secret internal document. In the European Court’s opinion the applicant was not able to present his case adequately and review in the light of possible arguments militating against his expulsion.
In turn, in Gelerie v. Romania, the non-citizen who was a political refugee residing in Romania for many years and married to a Romanian with whom he had a child, was not given reasons for the expulsion order. 78 He was simply declared persona non grata by the prosecutor at the Bucharest Court of Appeal and banned from entering Romania for ten years. His appeal was dismissed. The Romanian court found that the evidence supporting a decision to declare an alien persona non grata on the grounds of national security could not, in any circumstances, be communicated to the alien: it was secret. The ECtHR pointed out that the domestic Bucharest Court of Appeal had conducted a purely formal examination of the expulsion decision. Furthermore, the Court of Appeal had no information concerning Mr Geleri’s alleged offences and was unable to decide whether he indeed posed any danger to national security or public order. The ECtHR stressed that the domestic authorities had not provided the non-citizen with the least indication of the offences he was found guilty of, which led to him being regarded as a threat to national security. Therefore, the Court found violation of Article 1 of Protocol No. 7.
Without a doubt, the jurisprudence of the ECtHR gives guidance on how to resolve tensions between national security concerns and the due process rights of aliens. Generally, the Court systematically enhanced protection of the access to the case file and evidence in expulsion proceedings. The ECtHR cases discussed here illustrate that a State relying on public order or national security issues to expel an alien before the exercise of his or her rights under paragraph 1 of Article 1 of Protocol No. 7 must be able to show that this measure is necessary in the particular case.
The ECtHR has often reiterated that an alien being expelled on national security grounds must be given an opportunity to have that decision effectively scrutinised by an impartial, independent authority or a court competent to review the relevant evidence, with appropriate procedural limitations on the use of classified information. 79 Before that body, an alien must be provided with some form of adversarial proceedings in order to present his or her view and rebut the arguments forwarded by the authorities. 80 In other words, the alien must be informed of a core of information sufficient to provide him or her with the opportunity to question the charges against him or her.
Since the Chahal case, the ECtHR has accepted that: ‘there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice’. 81 Therefore, the expulsion proceedings can take place with the appointment of “special advocates” that have access to secret evidence and represent the interests of the alien who is excluded from hearing evidence in a closed hearing. Nevertheless, the reference – made by the ECtHR in the Chahal case – ‘to foreign law, from outside of the Council of Europe, was no more than obiter dicta, as it only demonstrated that other, less rights-restrictive procedures were available, not that the Convention required member states to adopt a special advocate regime’. 82
6. Conclusions
Any State Party to the ECHR has a legitimate interest in protecting its national security and having a balanced immigration policy according to the principle of proportionality. Using secret evidence in expulsion proceedings raises an authentic conflict between the due process rights of aliens and national security. This is a reality of our modern world.
Despite the fact that the European Convention uses much lower standards of proof in immigration law as compared to criminal and civil law, the European Court of Human Rights has established some rules on how access to secret evidence in expulsion proceedings could be reconciled with legitimate State security considerations. The ECtHR cases discussed here show that the violation of Article 1 of Protocol No. 7 to the ECHR stems from the fact that the non-disclosure to the applicants of the allegations against them had not been counterbalanced either by a rigorous independent judicial review of the genuineness of the threat to national security or by the introduction of adversarial proceedings. Even if the government claims that national security interests keep courts from disclosing the evidence to the alien, the European Court of Human Rights requires that the evidence has to be scrutinised by the adversarial proceedings in order to uncover and deter improper surveillance practices as well as to ensure the reliability of this evidence, rather than having the authorities issue expulsion decisions based on information from prejudiced sources, mistranslations, and hearsay. Full disclosure of secret evidence in expulsion proceedings is not obligatory, but the affected alien must be informed of a core of information sufficient to challenge the allegations against him or her in expulsion proceedings. In other words, if Article 1 of Protocol No. 7 is to be satisfied, either an alien must be given the necessary information, or a substantial substitute for that information must be found. The European Court of Human Rights mentions in this regard the solution of appointing special advocates as they may provide for a fair balance between the interests connected with the due process rights of aliens, on the one hand, and with national security, on the other. However, the balance between these two values will vary from case to case.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.