Communicated on 13 May 2018

FOURTH SECTION

Application no. 75953/16 D and Others against Romania lodged on 30 November 2016

STATEMENT OF FACTS

The first applicant, D., is an Iraqi national born in 1975. The second applicant is a Romanian national born in 1980. She is the former wife of the first applicant. The other three applicants are the first and the second applicant ’ s children. They are Romanian nationals and were born in 2000, 2004 and 2007 respectively.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background information

The applicant entered the Romanian territory in 1994. He extended his stay for business purposes until 22 February 1997.

On 10 November 1997 Germany granted him a refugee status. He came back to Romania and got marrie d to the second applicant on 22 January 1998. The couple divorced on 26 June 2009.

On 9 November 1998 the first applicant ’ s travelling documents issued by the German authorities expired. Therefore he asked the Romanian authorities to issue him with new documents.

Accordingly, in July 1999 and April 2002 respectively the Romanian authorities issued travelling documents for th e first applicant based on 1951 Geneva Convention. In May 2003 they refused to issue him with new documents. However, the first applicant continued living in Romania until 2006.

By a decision delivered by the Bucharest Court of Appeal on 26 July 2006 the first applicant ’ s stay in Romania was considered as undesirable and he was banned from entering the Romanian territory for a 15 ‑ year period on the ground that he was a “serious threat to national security”. He had been taken in public cus tody and expelled to Irak on 28 July 2006. However, in March 2007 he re-entered Romania under another identity (by using fake documents).

2. The criminal proceedings against the first applicant

On an unspecified date in 2007 a criminal investigation was instituted against the first applicant and several other individuals, including his two brothers, for involvement in trafficking of migrants coming from Iraq.

On 28 January 2008 the first applicant was charged with aiding and abetting the entry into Romanian territory of about 250 Iraqi citizens in breach of the immigration legislation and criminal conspiracy. The third charge against the applicant concerned falsification of a large number of documents for setting sham commercial companies which could justify the presence in Romania for alleged business purposes of the Iraqi citizens he had helped to enter Romania.

On 30 July 2010 his file was severed and part of the file concerning the aiding and abetting of five Iraqi nationals, alleged members of groups affiliated to Al-Qaeda, involved in terrorist activities, was referred to the Anti ‑ terrorist Department.

On 29 December 2011 the first applicant was formally charged with aiding the entrance in Romania of five Iraqi nationals, known as having supported or perpetrated terrorist acts, contrary t o Article 33 § 1 lit (c) of Law no. 535/2004 and the file was registered with the Bucharest Court of Appeal.

By a judgment of 9 October 2014 the Bucharest Court of Appeal convicted him as charged and sentenced him to seven years ’ imprisonment. As a secondary penalty the court banned the first applicant ’ s presence in Romania for a period of five years and ordered that after serving his sentence he was to be deported.

The court noted that the first applicant had used three different names and identity information in order to avoid his deportation from Romania.

The evidence against the first applicant included intercepts of telephone communications, witness statements, numerous documents that had been seized during searches representing forged documents for setting up commercial companies.

Most of the statements consisted in translations of official records of interviews witnesses, conducted in Sweden, Hungary, Bulgaria, Iraq and Jordan by way of letters rogatory .

The court held that the evidence in the file proved that the first applicant had been engaged in a conspiracy to aid entering into the Romanian territory of five Iraqi citizens about whom he knew that they were affiliated to Al ‑ Qaeda and that they had been involved in terrorist activity in Iraq. They could not be heard directly by the Romanian authorities as they had left Romania for other countries of the European Union or had returned to Iraq. M. gave a statement in 2008 under protected identity and then left Romania.

The first applicant had acknowledged that he had been involved in trafficking of migrants from Iraq but he had denied that he had been aware that some of them had been involved in terrorist activities.

The court found that the first applicant had known that the Iraqi nationals he had helped to enter the Romanian territory had committed terrorist offences in Iraq. It argued that at the time of events, in 2006, the first applicant ’ s mother and brothers had been living in Iraq in the region where most of the terrorist acts had been committed by the Iraqi nationals helped by the first applicant to enter Romania. Moreover, most of them were first applicant ’ s cousins. The court also noted, without providing any other explanations, that the first applicant ’ s recorded phone conversations proved that he had been in contact with individuals, whom according to existent evidence in the file, were members of terrorist organisations.

The court also based its decision on the file containing classified information to which the defence had not have any access in spite of their repeated requests in this respect.

The court refused to order any disclosure of the classified information holding that according to the Court ’ s case-law the right to disclosure is not absolute and accordingly an exception from the principle of adversarial proceedings could be allowed when grounds concerning national security request so.

The first applicant appealed.

He firstly claimed that there was no evidence in the file proving that he knew or even more that that the five individuals he had helped entering the Romanian territory had been involved in any terrorist activities. He requested the appellate court to send a letter to the Romanian Intelligence Service and ask whether the five Iraqi nationals were considered terrorists.

Moreover, the first applicant submitted that the interests of justice required that the classified information, not disclosed to the defence should have been made available as the defence was disadvantaged in presenting its case to the court of first instance.

The first applicant further contended that witness M., who had been helped by him to enter Romanian territory and gave evidence during the pre ‑ trial stage, had not been heard by the court of first instance. His statement given before the prosecutor had been read out in open court on 17 June 2013, at a hearing at which the first applicant ’ s lawyer had not been present. As the court of first instance could not ensure the witness ’ s presence at the hearing as it appeared that he had left Romania for Iraq, where he could not be found because of the special circumstances existent there, the first applicant had asked on 2 December 2013 to have his statement read out again in open court in the presence of his lawyer. The court dismissed this request without providing any reasons.

The first applicant also challenged the statements given against him by witness M.W. After stating before the prosecutor on 20 December 2010 that the first applicant had been aware that the five Iraqi nationals had been members of groups affiliated to Al-Qaeda on 19 June 2013, in the presence of the first applicant, he completely changed his statement. After the hearing, he had submitted a written statement in which he contended that he had changed his initial statement just because he had been threatened by Iraqi nationals living in Bucharest.

The first applicant contended that his deportation to Iraq would put in danger his life and would infringe his right to family life. He pointed out that his partner and his children are Romanian nationals of Orthodox origin and therefore they could not follow him to Iraq.

On 4 November 2014 the file with classified documents had been submitted to the Registry of the High Court of Cassation and Justice with a special mention that the documents could be examined only by the panel of judges in charge with the first applicant ’ s file.

The first applicant asked to have access to the classified information in the file and the hearing of all five Iraqi nationals aided by him to enter the Romanian territory erroneously considered to be terrorists.

On 26 January 2016 the High Court of Cassation and Justice partly allowed his appeal. It upheld the judgment of the court of first instance as regards the assessment of evidence and reasoning but reduced his sentence to five years and six months on account that the first applicant had cooperated with the competent authorities to punish three individuals for corruption offences. It maintained the secondary penalty concerning the applicant ’ s ban on the Romanian territory for a five-year period and his immediate deportation to Iraq after serving his sentence.

As regards the first applicant ’ s complaints concerning the interference with his family life the court of last resort noted that the couple had got divorced and that the custody of the three children had been awarded to the mother.

The court also argued that the first applicant had failed to prove that his individual circumstances justified the conclusion that he would face death or a risk of ill-treatment if extradited to Iraq.

3. The order for the first applicant ’ s deportation and his appeals against its enforcement

On 12 September 2017 the first applicant was released from prison on probation. The prosecutor ordered him to be immediately deported to Irak .

The first applicant lodged a complaint against his expulsion with the Bucharest Court of Appeal, claiming that he feared that his life would be in danger if deported to Irak . He argued that the region Al Qaim , where he would be deported, was in the middle of armed conflict between ISIS and the Iraqi authorities.

His complaint was dismissed on 11 September 2017.

The first applicant appealed. His appeal (without suspensive effect according to the Romanian law) was dismissed by the High Court of Cassation and Justice on 10 November 2017.

The first applicant could not be expelled immediately (within 24 hours, as intended by the Romanian authorities and according to Romanian law concerning the regime of aliens in Romania), because he did not have a valid passport. Therefore, on 13 September 2017 the prosecutor issued an order to take him in custody for a period of 30 days (until 11 October 2017) with a view to his expulsion to Irak . The first applicant was taken to a temporary holding center in Otopeni .

He challenged the prosecutor ’ s order to take him in custody with the Bucharest Court of Appeal on 18 September 2017. His complaint was dismissed by a final decision of the Bucharest Court of Appeal delivered on 2 October 2017.

According to the information provided by the first applicant and the Government, the Romanian General Inspectorate for Refugees had asked the Bucharest Court of Appeal to extend the first applicant ’ s temporary detention (pending deportation) in Otopeni holding centre for another five months. It had contended that the first applicant could not be expelled without travelling documents. It had also referred to the interim rule granted by the Court. By a decision of 10 October 2017 the Bucharest Court of Appeal granted the request and the first applicant ’ s detention in Otopeni holding centre was extended for another five months.

B. Relevant domestic law

1. Law no. 535/2004 on preventing and combating terrorism

According to Article 33 § 2 (a) the acts of supporting the entrance/exit in/from the country or supporting the access to the target area of a person known as having supported/perpetrated or planning to support/perpetrate a terrorist act are assimilated to the terrorist acts.

Such acts are punished by imprisonment from 5 to 10 years and the interdiction of certain rights.

2. Legislation concerning classified information

(a) Law no. 182/2002 on the protection of classified information

Documents are classified according to legal provisions regarding classified information protection, namely Law no. 182/2002 on the protection of classified information, as further amended and modified.

According to Article 15 (b) of the law, classified information encompasses any data of national security interest, which must be protected given its degree of importance and the consequences that might arise following its unauthorized disclosure or dissemination.

The Romanian National Registry Office for Classified Information (“ ORNISS ”) also coordinates and oversees the issuance of security clearances to specific individuals for access to classified documents (Article 141 and 199).

(b) The National Standards for the Protection of Classified Information

The National Standards on the Protection of Classified Information were approved by Government Decision no. 585 of 13 June 2002.

A classified document can be declassified under the limitative and express provisions of Article 20 of the National Standards for the Protection of Classified Information if:

a) the classification period has expired;

b) its disclosure shall not endanger national security and defense, public order or the interests of private or public legal persons holding it;

c) the classification level has been assigned by an unauthorized person.

In case none of these conditions is fulfilled, the request shall be rejected.

Classified documents may only be accessed by specifically authorized individuals, in limited conditions and in the secure location where the documents are stored and, in the case of state secret documents, subject to the approval of the Romanian Intelligence Service (“ RIS ”).

Pursuant to Article 3, both ORNISS and RIS are involved in the coordination and control of the protection of classified information and the declassification of state secret documents.

3. The Romanian Code of Criminal Procedure (“the CCP”)

Provisions concerning the access to classified information

Article 352 § 1 of the CCP, as amended on 1 February 2014, provides that the court may allow the defendant ’ s lawyer to access classified information provided that such information is essential in deciding the case.

According to Article 352 § 12 of the CCP the court cannot disclose such information if the issuing authority does not allow the defendant ’ s lawyer access to it. In such a case, however, the court cannot convict, withdraw or postpone punishment based on classified information not disclosed to the defendant ’ s lawyer.

4. Criminal Code

Article 66 § 1 (c) provides that the courts could apply as secondary penalty a ban on the presence of an alien on the Romanian territory up to five years following his conviction.

According to Article 66 § 4 , the second penalty of banning an alien on the Romanian territory followed by his expulsion cannot be applied in case that there are justified fears that his life is in danger or that he will be subjected to tortures, inhuman or degrading treatments.

5. Government Emergency Ordinance no. 194 of 12 December 2002 on the rules governing aliens in Romania

Government Emergency Ordinance no. 194 of 12 December 2002 on the rules governing aliens in Romania was published in the Official Gazette of 27 December 2002.

The relevant provisions read as follows :

Article 83

“(1) A declaration that an alien is undesirable is an administrative measure taken against a person who has previously engaged, is currently engaged, or in respect of whom there is sufficient intelligence that he has the intention of engaging in activities capable of endangering national security or public order.

(2) On a proposal of the Aliens Authority or another institution having appropriate powers in the sphere of public order and national security and being in possession of sufficient intelligence of the kind referred to above, the measure envisaged in the preceding sub-section shall be taken by a prosecutor designated from among the members of the public prosecutor ’ s office at the Bucharest Court of Appeal.

(3) After receiving the proposal, the prosecutor shall give his reasoned decision within five days and, if he accepts the proposal, shall send the order declaring the alien undesirable to the Aliens Authority for enforcement. If the order is based on reasons of national security, those reasons shall not be mentioned in it.

(4) The alien ’ s right of residence shall cease automatically on the date of the order.

(5) The alien can be declared undesirable for a period of five to fifteen years ...

...”

Article 84

“(1) The order declaring an alien undesirable shall be served on the person concerned by the Aliens Authority in accordance with the pr ocedure provided for in Article 81.

(2) Communication of the data and information justifying a declaration that an alien is undesirable for reasons related to national security shall be authorised only on the terms and to the persons expressly mentioned in the legislation on activities relating to national security and the protection of secret information. Such information cannot be communicated in any form, whether direct or indirect, to the alien who has been declared undesirable.”

Section 85

“(1) An application for judicial review of an order declaring an alien ’ s presence undesirable may be lodged with the Bucharest Court of Appeal by the party concerned within five days of the date of service of the order. The court ’ s judgment shall be final.

(2) Such an application shall not stay enforcement of the order ...”

4. Guidelines of the Committee of Ministers of the Council of Europe

On 11 July 2002, at the 804th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted guidelines on human rights and the fight against terrorism. Point IV of the guidelines, entitled “Absolute prohibition of torture”, reads as follows:

“The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.”

According to point XII § 2 of this document,

“It is the duty of a State that has received a request for asylum to ensure that the possible return ( ‘ refoulement ’ ) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.”

5. Reports on Iraq

According to a report prepared by Amnesty International concerning the situation in Iraq for 2016/2017

“Torture and other ill-treatment remained rife in prisons, detention centres controlled by the Ministries of the Interior and Defence , and militia ‑ controlled facilities. The most frequently reported methods of torture used against detainees were beatings on the head and body with metal rods and cables, suspension in stress positions by the arms or legs, electric shocks and threats of rape of female relatives. Torture appeared to be carried out to extract “confessions”, obtain information and punish detainees. Several detainees died in custody as a result of torture.

In October, Tribal Mobilization fighters subjected villagers from south of Mosul, suspected of links to IS, to beatings with metal cables, public humiliation and use of electric ‑ shock weapons.”

“The criminal justice system remained deeply flawed and trials were systematically unfair. Defendants, in particular terrorism suspects, were routinely denied the rights to adequate defence , to not incriminate oneself or confess guilt and to cross ‑ examine prosecution witnesses. Courts continued to admit into evidence torture ‑ tainted “confessions” without ordering investigations into defendants ’ claims or referring them for forensic examination. Some of those convicted after unfair trials were sentenced to death.”

COMPLAINTS

1. The first applicant alleges that his removal to Iraq would entail a violation of Articles 2 and 3 of the Convention.

In this respect, he maintains that, if deported to Iraq, he would face a real risk of being sentenced to death or subjected to torture or inhuman treatment on account of the fact that he was convicted of terrorist related activity in Romania. In addition, the first applicant relies on general violence in Iraq and particularly in the region Al- Qaim where he had been born.

2. Relying on Article 8 of the Convention the applicants allege that the first applicant ’ s deportation to Iraq would separate them and infringe their right to family life.

The first applicant also claims that his mother and brothers live in Romania and that he does not have any family left in Iraq. Moreover, he built all his life in Romania where he is living since 1994.

3. The first applicant r aised a complaint under Article 13 of the Convention, contending that he was confronted with a risk of expulsion without any serious examination of his complaints under Articles 2 and 3 of the Convention or access to an effective remedy (his appeals do not have a suspensive effect and therefore he could be expelled anytime).

4. The first applicant complains under Article 6 of the Convention that the criminal proceedings against him were not fair. In particular he complains that his conviction was based on classified information made available to the courts by the Romanian Intelligence Service to which he and his lawyer had no access and on evidence obtained from witnesses at the pre-trial stage or by way of rogatory letters whom he could not cross ‑ examine in open court. He also complains about the length of the criminal proceedings against him.

QUESTIONS to the parties

1 . Can the first applicant be regarded, in the light of the currently available information about the general situation in Iraq and about his personal circumstances, as being at real risk of ill ‑ treatment or death if expelled to Iraq (see Saadi v. Italy [GC], no. 37201/06, §§ 124 ‑ 27, ECHR 2008)?

2 . Did the first applicant have at his disposal an effective domestic remedy for his allegations that he would be exposed to a real risk of treatment in violation of Articles 2 and 3 of the Convention if he was to be expelled to Iraq, as required by Article 13 of the Convention? In particular, did the Romanian authorities scrutinise whether there were substantial grounds for fearing a real risk of death or ill ‑ treatment under Articles 2 and 3 before taking the decision to expel him (see Chahal v. the United Kingdom , 15 November 1996, § 151, Reports of Judgments and Decisions 1996 ‑ V)? Lastly, do the administrative remedies provided by the Romanian law, suspend the enforcement of the expulsion order in general (see Jabari v. Turkey , no. 40035/98, § 50, ECHR 2000 ‑ VIII)?

3 . Has there been an interference with the applicants ’ right to respect for their family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2, also having regard to what would be in the best interest of the applicant children?

In the alternative, does Article 8 of the Convention impose a positive obligation on the Romanian authorities to allow the first applicant to reside in Romania? If so, has this positive obligation been met?

4 . Did the prosecution disclose all material evidence to the defence prior to the first applicant ’ s trial? In particular was there evidence which was not disclosed to the defence on grounds of national security? If there was not full disclosure of the evidence against the first applicant, did this deprive him of a fair trial in breach of Article 6 § 1 of the Convention?

5 . Did the first applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 d) of the Convention? In particular, was the overall fairness of the proceedings impaired by the fact of not giving the first applicant the opportunity to confront in open court the witnesses whose statements had been relied upon in convicting him?

6 . Was the length of the criminal proceedings against the first applicant in breach of the “reasonable t ime” requirement of Article 6 § 1 of the Convention?