CONCURRING OPINION OF JUDGE ELÓSEGUI

1. I would like to begin by indicating that I am completely in agreement with the conclusion of the Grand Chamber’s judgment in the present case. The aim of this concurring opinion is merely to emphasise, as Judge Pinto de Albuquerque does in his concurring opinion as well, that the judgment could have been improved by making a clearer distinction between the test as to the essence of a right and the proportionality test (assessment of the counterbalancing factors). The two tests are totally different, as the UNCHR, the Inter-American Court and Commission of Human Rights, the German Federal Constitutional Court (BVerfG) and many other constitutional courts have explained. I would refer in this connection to Robert Alexy’s work A Theory of Constitutional Rights [116] .

2. The question that is addressed in Muhammad and Muhammad v. Romania is a crucial one at the present time, because of the danger of justifying a violation of the essence of fundamental rights by the excuse of terrorism prevention [117] . It is becoming quite common among jurists and academics to justify the use of torture in order to obtain information in the context of terrorism [118] . The European Court of Human Rights has been very clear in condemning the use of torture, considering it to constitute a violation of Article 3 of the Convention [119] .

3. The present case concerns the applicants’ allegation that, during the proceedings leading to their expulsion from Romania on the grounds of having links with terrorist activities, they were not informed of the specific accusations against them, an omission which in their view fell short of the procedural safeguards required by Article 1 of Protocol No. 7 to the Convention.

4. The main question before the Grand Chamber was that of the minimum level of procedural safeguards that should be afforded to the alien under Article 1 § 1 of Protocol No. 7 in the context of administrative expulsion proceedings where the alien’s right to be informed of the reasons underlying the expulsion and the right of access to the file were restricted on national security grounds.

5. After a presentation of the case-law on Article 1 § 1 of Protocol No. 7, the Grand Chamber seeks to ascertain whether and to what extent the rights asserted by the applicants are protected by that Article (paragraphs 125-129). To do so it takes as its starting point the text of Article 1 § 1 of Protocol No. 7 and the relevant case-law of the Court in such matters. The judgment concludes that Article 1 § 1 of Protocol No. 7 requires in principle that the aliens concerned be informed of the relevant factual elements which have led the competent domestic authorities to consider that they represent a threat to national security and that they be given access to the content of the documents in the case file on which those authorities relied when deciding on their expulsion.

6. The judgment then seeks to establish a definition of the threshold that should be met in order to ensure that there is no breach of Article 1 of Protocol No. 7 even in cases where there is a limitation of the procedural rights guaranteed under that Article. In line with the precedent of Regner v. the Czech Republic ([GC], no. 35289/11, § 148, 19 September 2017), the Court takes the view that the very essence of the rights secured to the alien by Article 1 of Protocol No. 7 must be preserved.

7. The judgment also lays down the criteria to be taken into account in order to determine whether limitations imposed on the procedural rights are compatible with Article 1 of Protocol No. 7. The Court ascertains whether the limitations were necessary and whether the preservation of the very essence of the rights in question called for counterbalancing measures and, if so, which ones.

8. Two points should be highlighted. (1) Should the national authorities have failed to examine – or have insufficiently examined – the need for limitations on the alien’s procedural rights, this will not suffice in itself to entail a violation of Article 1 § 1 of Protocol No. 7. In any event, the Court has considered whether any counterbalancing measures were applied in the case at hand. As regards the examination by the national authorities of the need to impose such limitations, the less stringent the examination, the stricter the Court’s scrutiny of the counterbalancing factors will have to be. (2) Compliance with Article 1 § 1 of Protocol No. 7 does not necessarily mean that all the counterbalancing factors listed in the judgment should be put in place cumulatively. The list only contains examples of factors that would be capable of appropriately counterbalancing a limitation of procedural rights and it should also be borne in mind that the assessment of the nature and scope of those factors may vary depending on the circumstances of a given case (paragraph 150).

9. Lastly, in applying the above-mentioned criteria, the judgment seeks to establish whether, in the present case, the very essence of the applicants’ rights under Article 1 of Protocol No. 7 has been preserved (paragraphs 158-206). After the analysis, it proposes the conclusion that there has been a violation of Article 1 of Protocol No. 7.

10. As Judge Pinto de Albuquerque deals in his opinion with the principle of the essence of rights, I would like to focus my own opinion on the proportionality test.

11. Starting from the idea that some rights can legitimately be restricted to guarantee the harmonious coexistence of all concurrent rights and interests, this opinion assumes that the principle of proportionality provides an argumentative structure by which to verify the legitimacy of the permitted restrictions of fundamental rights.

12. In different publications I have referred to the main current positions that have been developed in academia, especially in Europe, on the principle of proportionality, concluding that it is a tool which assists judges in structuring an orderly reasoning for the resolution of a case. I have affirmed that Robert Alexy’s theory is useful when studying the manner in which the courts really argue [120] . I also agree with Carlos Bernal’s thesis when he states that in the weighting exercise it is not possible to exclude the subjective assessments of the judge. But this is compatible with rationality if the judge applies and justifies each step of the proportionality test. Undoubtedly this idea can be inserted into a theoretical framework that starts from the theses of Robert Alexy and his disciples (Borowski [121] , Bernal Pulido, Klatt [122] , Möller), among whom I have the honour of finding myself. Professor Alexy participated in a seminar organised at the European Court of Human Rights in April 2019 and presented an analysis of the principle of proportionality as applied in the case of Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015), the subject of an article to be published in the near future by Springer [123] . Among other disciples, for the purposes of this concurring opinion, I would highlight the publications of Professor Laura Clérico [124] . Other authors who have contributed with their writings to this position are several Belgian professors, including Eva Brems, Sébastien Van Drooghenbroeck, and Françoise Tulkens, former judge of the Court. Further essential readings include the works of Barak [125] , Bomhoff [126] , Cohen-Eliya [127] , Porat and Ducoulombier.

13. In relation to the principle that the restriction must be prescribed by law and must have a legitimate aim, the Court confines itself to verifying that the restrictive measure is intended to protect rights or interests that fall within its established criteria in order to authorise the restrictions.

14. In relation to the analysis of suitability, the Court carries out this test based on the necessity of the measure adopted, but not in a direct manner, as it is integrated into the examination of whether the end is legitimate or not. The Court first verifies whether the measure has been prescribed by law and, secondly, whether the purpose is legitimate. It does not apply an analysis of suitability in the manner proposed by the proportionality test according to German constitutional legal doctrine. In fact, it simply verifies that the restrictive measure has a normative origin without stopping to assess or express detailed justifications about the causal connection between measure and purpose. In other words, it does not verify whether the restrictive measure serves to promote the purpose pursued. The Court focuses on assessing the interference caused by the restriction. It is at this stage that the Court performs the weighting exercise.

15. In relation to the possible need for the measure, or for alternative means that are less restrictive, in general the Court does not engage in this type of reflection or does not always apply the test of the least restrictive measure. Its supervision is focused on examining whether the national authorities have complied with the permitted parameters to restrict fundamental rights as established by the Court itself. This examination is left to the domestic courts, respecting the margin of appreciation of the States. Therefore, in principle, the Court does not usually conduct a separate examination as to whether or not there are less harmful alternative measures, but includes this factor at the stage where it determines whether such interference with a Convention right is necessary in a democratic society.

16. The key point is that the Court does not perform an analysis of proportionality stricto sensu with the three typical steps established in German constitutional legal doctrine. For my part, in relation to the Voynov v. Russia judgment [128] , I drafted a concurring opinion precisely in an attempt to apply the principle of proportionality stricto sensu , attributing weight to the rights at stake and considering whether there was a less burdensome alternative for the plaintiff which would meet the objective pursued by the Government. In my reasoning, I applied Professor Alexy’s formula to some extent [129] .

17. Certainly, there is no detailed analysis, on the part of the Court, of the third step of the proportionality test in the strict sense. One of the main reasons is that the Court analyses whether the domestic courts have performed the balancing exercise properly. In principle, if they have not done so, the Court tries to indicate this, especially by referring to the criteria or principles that it has established in its leading cases, but does not substitute its own assessment for theirs. Undoubtedly, in the Court the idea of respecting the margin of appreciation of States has been enhanced, especially since the April 2012 Brighton Declaration on reforming the Convention system.

18. On the other hand, for the Court, its own judicial precedents acquire significant weight when applied to the specific case before it. This has led to the elaboration of principles that are established as results-based rules. Thus the Court carries out its proportionality test in the light of the general principles that it has established throughout its case-law.