JOINT DISSENTING OPINION OF JUDGES YUDKIVSKA, MOTOC AND PACZOLAY

(Translation)

We are unable to support the majority in the present case on account of two essential considerations: in our view, the majority’s judgment departs substantially from the Regner v. the Czech Republic ([GC], no. 35289/11, 19 September 2017) judgment, tending rather to follow the joint partly dissenting opinion of Judges Raimondi, Sicilianos, Spano, Ravarani and Pastor Vilanova annexed thereto, and it fails to take account of the possibility under Romanian law for lawyers who hold an ORNISS certificate to access sensitive information in the case file. Our main objection here relates to the higher degree of protection afforded under Article 1 of Protocol No. 7 compared to Article 6 – a situation that we find paradoxical. The preamble to the Explanatory Report on Protocol No. 7 expressly states that in adopting Article 1 of that Protocol the States were agreeing to “minimum” procedural safeguards.

By way of reminder, the Regner judgment (cited above) concerned an administrative decision which terminated the security clearance that the applicant had needed as a prerequisite for high-level duties in the Ministry of Defence. Relying on Article 6 § 1 (right to a fair hearing) of the Convention, the applicant in that case complained that he had not been given access to decisive evidence, described as confidential information, during the proceedings in which he challenged the withdrawal of his security clearance. In its judgment the Court noted that those proceedings had been subjected to two limitations in relation to the ordinary rules guaranteeing a fair hearing: first, the classified documents and information had not been available either to him or to his lawyer; and secondly, since the withdrawal decision had been based on this written evidence, the grounds underlying the decision had not been disclosed to him.

In order to determine whether the essence of the applicant’s right to a fair hearing had been impaired in that case, the Court took the view that it had to consider the proceedings as a whole and ascertain whether the limitations on the principles of adversarial proceedings and equality of arms, as applicable in civil procedure, had been sufficiently counterbalanced by other procedural safeguards. After examining the matter, the Court found, having regard to the proceedings as a whole, to the nature of the dispute and to the margin of appreciation afforded to the national authorities, that the restrictions curtailing the applicant’s enjoyment of his rights, afforded to him in accordance with the principles of adversarial proceedings and equality of arms, had been sufficiently offset such that the fair balance between the parties was not affected to such an extent as to impair the very essence of the applicant’s right to a fair trial ( Regner , cited above, § 161).

The case of Muhammad and Muhammad v. Romania clearly presents factual similarities with the Regner case: they both concern contentious administrative proceedings in which the litigants sustained a restriction of their procedural rights by being deprived of access to documents in the file. In both these cases the documents underlying the decisions of the national authorities were classified and the lawyers representing the applicants did not have access to them either. The domestic courts, by contrast, did have access to the entire content of the files, including the classified evidence.

While in Regner the Court examined the applicant’s complaint under Article 6 of the Convention, it was called upon in the present case to examine similar allegations under Article 1 of Protocol No. 7. The Court notes from the outset that Article 6 of the Convention is not applicable (see paragraph 115). It further refers to the Explanatory Report, which expressly points out that in adopting Article 1 of Protocol No. 7 the States agreed to “minimum” procedural safeguards in expulsion cases (see paragraph 117).

Given that the Convention Articles respectively applicable to each of these cases both guarantee procedural rights but different ones, and especially in view of the fact that Article 1 of Protocol No. 7 guarantees “minimum” procedural safeguards, the respective procedural rights afforded to litigants by these two Articles should not carry the same weight. It is also quite natural that the procedural safeguards afforded under Article 1 of Protocol No. 7 should be less extensive than those provided for by Article 6 of the Convention.

Moreover, in the present judgment the Court is clearly aware of the distinction to be made between the respective scope of the rights guaranteed by these two Articles, and thus does not transpose to Article 1 of Protocol No. 7 the Article 6 rights. Accordingly, after recapitulating its case-law under Article 1 of Protocol No. 7, the Court circumscribes the scope of the rights guaranteed by that provision. While Article 6 of the Convention secures in principle the right to be informed of all the accusations and to have access to all the documents in the file, Article 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 and the information in the case file on which those authorities relied when deciding on their expulsion” (see paragraph 129).

In its examination of the possible limitations on the aliens’ procedural rights and their compatibility with Article 1 of Protocol No. 7, the Court indicates that it is guided by the methodology used in previous cases to assess restrictions of procedural rights protected by the Convention, and more particularly those enshrined in Articles 5 and 6 (see paragraph 135).

We find it somewhat doubtful, however, that the assimilation of the safeguards under Article 1 of Protocol No. 7 with those of Articles 6 and 5 reflects the nature of the rights respectively at stake in these provisions: the safeguards applicable to detention and to criminal proceedings do not necessarily have to be identical when it comes to the mere return of an individual, without risk, to his or her country of origin.

The Court subsequently develops reasoning that it seeks to render compatible with the Regner judgment. Thus, in ruling on the compatibility with the Convention of the limitations imposed in the present case on the applicants’ rights, the Court adopts the same criterion as that which it has applied under Article 6 of the Convention, namely that: “any limitations of the rights in question must not negate the procedural protection guaranteed by Article 1 of Protocol No. 7 by impairing the very essence of the safeguards enshrined in this provision (see, mutatis mutandis , Regner , cited above, § 148)” (see paragraph 133). It similarly finds that any difficulties resulting from these limitations for the alien concerned must be sufficiently compensated for (ibid. and Regner , cited above, § 148). As indicated in the Regner judgment (cited above, § 161) under Article 6, the compatibility of limitations with Article 1 of Protocol No. 7 must be examined in the light of the proceedings as a whole (see paragraph 157).

Whilst it is pertinent to take account of the Court’s case-law in adopting the methodology to be followed when assessing limitations of procedural rights, it can nevertheless be said that, on closer examination, the enumeration of the criteria to be considered when analysing the compatibility of the limitations in the present case seems to be based on a transposition of those that were adopted by the Court in Regner and even to extend the Contracting States’ obligations in the present field.

Accordingly, as regards the condition that a limitation must be duly justified, it is noteworthy that the Court looks at the powers of the domestic courts in relation to the classification of documents. Whilst in the Regner judgment the Court found it sufficient that the Czech courts had the power to assess whether the non-disclosure of classified documents was justified and to order the disclosure of those which did not warrant classification, it seems to consider it necessary in the present case to examine, first, whether an independent authority “is entitled to review the need to maintain the confidentiality of the classified information”; and, secondly, where that independent authority found that the protection of national security did preclude the disclosure to the alien of the content of the classified documents, the Court will determine whether, in reaching that conclusion, the authority duly identified the interests at stake and weighed up the national security interests against the alien’s interests (see paragraphs 141 and 143). This means that a competent authority not only has to review the need to classify certain documents, but must also provide a degree of justification for such a need, after weighing up the interests at stake. Such a requirement goes beyond the powers of the domestic courts that were deemed sufficient by the Court in the Regner case.

As regards the factors that are capable of sufficiently compensating for the restrictions of the procedural rights of the aliens concerned, the Court draws up a non-exhaustive list and identifies their content.

The first counterbalancing factor relates to the relevance of the information disclosed to aliens as to the reasons for their expulsion. Although the Court recognises that the extent of that information must be assessed on a case-by-case basis, it nevertheless considers it necessary to ascertain “whether the national authorities have, to the extent compatible with maintaining the confidentiality and proper conduct of investigations, informed the alien concerned, in the proceedings, of the substance of the accusations against him or her” (see paragraph 151); whilst in Regner the Court found that “Czech law could have made provision, to the extent compatible with maintaining the confidentiality and proper conduct of investigations regarding an individual, for him to be informed, at the very least summarily, in the proceedings, of the substance of the accusations against him” (see Regner , cited above, § 153).

A clear discrepancy can be seen here, between the two cases, as regards the content of the information that must be disclosed to those concerned, according to the Court. The fact that the Court has omitted the expression “at the very least summarily” in the present judgment reflects its view that the person concerned should be informed, under Article 1 of Protocol No. 7, of the substance of the accusations against him or her, but it does not considered it sufficient in this instance to provide the information summarily. It can thus be inferred that the Muhammad and Muhammad judgment imposes a discrete requirement in relation to that laid down in Regner . Can this be seen as an implicit reinforcement of the procedural safeguards that have to be afforded under Article 1 of Protocol No. 7 – an Article supposed to provide for “minimum” guarantees – over and above those required by Article 6 of the Convention?

It can thus be observed that the majority in the present case have developed procedural safeguards that not only were never intended by the “forefathers” of the Convention, they are not the subject of a European consensus either. In this connection it should be noted that the “founding States” of the Convention – the United Kingdom and the Netherlands, together with Germany, have never ratified Protocol No. 7, and that Switzerland has ratified it with a clear reservation: “When expulsion takes place in pursuance of a decision of the Federal Council ... on the grounds of a threat to the internal or external security of Switzerland, the person concerned does not enjoy the rights listed in paragraph 1 even after the execution of the expulsion”.

As regards the representation of the aliens concerned, the Court did not examine in the Regner judgment whether the applicant’s lawyer could have had access to the classified documents and, if so, under what conditions. In this connection it can be seen in the present case that the Romanian judicial system enabled aliens to be assisted by a lawyer holding an ORNISS certificate allowing access to classified documents. Such a safeguard may effectively compensate for the limitation of the alien’s right of access to documents in the file. The applicants were represented throughout the appeal proceedings in question by two lawyers who could – and indeed should – have informed them of the possibility of representation by a lawyer with an ORNISS certificate, and even have helped them to find such a lawyer through the Bar.

Lastly, as to the counterbalancing factor consisting of the intervention in the proceedings of an independent authority, it should be noted that in Muhammad and Muhammad the Court defines it by taking account of the elements that it previously deemed relevant and sufficient in the Regner judgment in order to compensate for the limitation of the applicant’s procedural rights: the competent authority must enjoy independence; it must have access to the classified documents underlying the expulsion request; it must be able to rule on the merits of the decision, or at least its legality, and find against any arbitrary decision; it must duly exercise its power of scrutiny in such proceedings and provide reasoning to justify its decision in the light of the concrete circumstances of the case.

A parallel reading of the present judgment and the Regner judgment thus reveals that after declaring that the safeguards afforded by Article 6 of the Convention could not be transposed to Article 1 of Protocol No. 7, the Court has nevertheless in the present case followed a line of reasoning which is based on the elements that it took into consideration in Regner .

Moreover, as indicated above, the Court lays down in the present judgment a requirement that is even more stringent in terms of the information to be provided to those concerned.

Even though the Court points out that compliance with Article 1 § 1 of Protocol No. 7 does not necessarily require that all the enumerated factors should be put in place cumulatively (see paragraph 157), it can nevertheless be said that the “minimum” safeguards afforded by this provision appear to be similar to those afforded by Article 6 of the Convention for the same type of limitation of procedural rights.

The aspects highlighted above lead us to conclude that in the present case the Court has departed from its own recent case-law, as set out in its Regner judgment, or that it has sought indirectly to circumvent the findings that it made in that judgment.

[1] Gatto v. Italy (dec.), no. 19424/08, § 18, 8 March 2016, referring to judgment no. 231 of 1975 of the Italian Constitutional Court, which used the concept of “substance” of the defence right.

[2] Kimlya and Others v. Russia , no. 76836/01, § 59, 1 October 2009, referring to the Russian Constitutional Court decision no. 16-P of 23 November 1999, and Zinovchik v. Russia , no. 27217/06, § 34, 9 February 2016, referring to Russian Constitutional Court decisions no. 43-O of 14 January 2003 and no. 231-O of 20 June 2006.

[3] See judgment of the Court of Justice of the European Union (CJEU) of 9 November 2010, Volker und Markus Schecke and Eifert (C-92/09 and C-93/09), § 65; CJEU judgment of 28 November 2013, Council of the European Union v. Manufacturing Support & Procurement Kala Naft Co. (C-348/12 P), §§ 65-73; judgment of the General Court of 2 April 2014, Ben Ali v. Council (T-133/12), §§ 76 and 80; CJEU judgment of 8 April 2014, Digital Rights Ireland Ltd. and Seitlinger and Others (joined cases C-293/12 and C-594/12), § 39; CJEU judgment of 27 May 2014, Spasic (C-129/14 PPU), §§ 55, 57-59, 62-65, 68, 73, 74; and CJEU judgment of 6 October 2015, Schrems v. Data Protection Commissioner (C-362/14), §§ 94 and 95.

[4] CJEU, Schrems, cited above.

[5] CJEU judgment of 8 April 2014, Digital Rights Ireland Ltd. and Seitlinger and Others, cited above.

[6] CJEU judgment of 21 December 2016, Tele2 Sverige AB and Tom Watson and Others (joined cases C-203/15 et C-698/15).

[7] European Committee on Social Rights, among others, Confederation of Swedish Enterprise v. Sweden , complaint no. 12/2002, § 30, 22 May 2003; Centrale générale des services publics (CGSP) v. Belgium , complaint no. 25/2004, § 41, 9 May 2005, Federation of Finnish Enterprises v. Finland , complaint no. 35/2006, §§ 29-30, 16 October 2007; European Confederation of Police (EuroCOP) v. Ireland , complaint no. 83/2012, § 212, 2 December 2013; European Council of Police Trade Unions (CESP) v. France , complaint no. 101/2013, § 134, 27 January 2016; Bedriftsforbundet v. Norway , complaint no. 103/2013, § 76, 17 May 2016; and Confederazione Generale Italiana del Lavoro (CGIL) v. Italy , complaint no. 140/2016, § 144, 22 January 2019.

[8] As an introduction to the scholarly discussion on this topic within the European Convention on Human Rights, see F. Sudre, “Droits intangibles et/ou droits fondamentaux : y a-t-il des droits prééminents dans la Convention européenne des droits de l’homme ?”, in Liber Amicorum Marc-André Eissen , Brussels, Bruylant, 1995, pp. 381-398; O. de Frouville, L’intangibilité des droits de l’homme en droit international. Régime conventionnel des droits de l’Homme et droits des traités , Paris, Pedone, 2004; M. Afroukh, La hiérarchie des droits et libertés dans la jurisprudence de la Cour européenne des droits de l’homme , Brussels, Bruylant, 2011; Blanc-Fily, Les valeurs dans la jurisprudence de la Cour européenne des droits de l’homme. Essai critique sur l’interprétation axiologique du juge européen , Brussels, Bruylant, 2016; O. Rouziere-Beaulieu, “La protection de la substance du droit par la Cour Européenne des Droits de l’Homme”, Thèse de doctorat , University of Montpellier, 2017; and S. Van Droogenbroeck and C. Rizcallah, “The ECHR and the Essence of Fundamental Rights: Searching for Sugar in Hot Milk?”, in German Law Journal , 2019, vol. 20, pp. 904–923.

[9] Koen Lenaerts, “Limits on Limitations: The Essence of Fundamental Rights in the EU”, in German Law Journal , 2019, vol. 20, Special Issue 6, p. 779.

[10] Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium , nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, Law part, § 5, 23 July 1968.

[11] The first reference to the essence of Article 5 is Winterwerp v. the Netherlands , no. 6301/73, § 60, 24 October 1979, reiterated by the new Court in Freimanis and Lidums v. Latvia , no. 73443/01 and 74860/01, § 96, 9 February 2006, and Koutalidis v. Greece , no. 18785/13, § 40, 27 November 2014, and by the Grand Chamber in Medvedyev and Others v. France [GC], no. 3394/03, § 100, ECHR 2010, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC] , no. 47848/08, § 113, ECHR 2014.

[12] The first reference to the essence of Article 6 is in Golder v. the United Kingdom , 21 February 1975, § 38, Series A no. 18, followed by Philis v. Greece (no. 1) , 27 August 1991, § 65, Series A no. 209, and Fayed v. the United Kingdom , no. 17101/90, § 65, 21 September 1994, and many other cases (see footnote 78).

[13] The first reference to the essence of Article 8 is Phinikaridou v. Cyprus, no. 23890/02, § 65, 20 December 2007, restated in Backlund v. Finland , no. 36498/05, § 56, 6 July 2010, Schüth v. Germany , no. 1620/03, § 71, 23 September 2010, and finally by the Grand Chamber in Fernández Martínez v. Spain [GC] , no. 56030/07, § 132, ECHR 2014.

[14] The first reference to the essence of Article 9 is in Hasan and Chaush v. Bulgaria [GC] , no. 30985/96, § 62, ECHR 2000 ‑ XI, developed more recently in Sinan Isik v. Turkey , no. 21924/05, § 42, 2 February 2010.

[15] The first reference to the essence of Article 10 is in Barthold v. Germany , no. 8734/79, § 53, 25 March 1985, followed by the new Court in Appleby and Others v. the United Kingdom, no. 44306/98, § 47, 6 May 2003.

[16] The first reference to the essence of Article 11 is in Young, James and Webster v. the United Kingdom , 13 August 1981, §§ 52, 55 and 57, Series A no. 44, developed by the new Court in Wilson, National Union of Journalists and Others v. the United Kingdom , no. 30668/96, 30671/96 and 30678/96, § 46, ECHR 2002 ‑ V, and Association Rhino and Others v. Switzerland , no. 48848/07, § 66, 11 October 2011.

[17] The first reference to the essence of Article 12 is in Rees v. the United Kingdom , 17 October 1986, § 50, Series A no. 106, reiterated by the new Court in I v. the United Kingdom [GC] , no. 25680/94, § 79, 11 July 2002.

[18] The first reference to the essence of Article 34 is in Cruz Varas and Others v. Sweden, 20 March 1991,§ 99, Series A no. 201, followed by the new Court in Tanrıkulu v. Turkey [GC], no. 23763/94, § 132, ECHR 1999 ‑ IV.

[19] The first reference to the essence of Article 1 of Protocol No. 1 is in Sporrong and Lönnroth v. Sweden , 23 September 1982, §§ 60 and 63, Series A no. 52, restated in Matos e Silva, Lda., and Others v. Portugal , no. 15777/89, § 79, 16 September 1996.

[20] The first reference to the essence of Article 2 of Protocol No. 1 is in Cyprus v. Turkey [GC], no. 25781/94, § 278, ECHR 2001 ‑ IV, confirmed in Leyla Sahin v. Turkey [GC] , no. 44774/98, § 154, ECHR 2005 ‑ XI.

[21] The first reference to the essence of Article 3 of Protocol No. 1 is in Mathieu-Mohin and Clerfayt v. Belgium , 2 March 1987, § 52, Series A no. 113, reiterated by the new Court in Matthews v. the United Kingdom [GC], no. 24833/94, §§ 63 and 65, ECHR 1999 ‑ I.

[22] The first reference to the essence of Article 2 of Protocol No. 7 is in Haser v. Switzerland (dec.) , no. 33050/96, 27 April 2000, repeated in Krombach v. France , no. 29731/96, § 96, 13 February 2001.

[23] Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium , cited above, Law part, § 5.

[24] Young, James and Webster , cited above, §§ 52, 55 and 57.

[25] T.P. and K.M. v. the United Kingdom [GC] , no. 28945/95, § 98, ECHR 2001 ‑ V (extracts).

[26] Winterwerp , cited above, § 60, and Brogan and Others v. the United Kingdom, 29 November 1988, §§ 59 and 62, Series A no. 145 ‑ B.

[27] Görgülü v. Germany , no. 74969/01, § 59, 26 February 2004; Vasilakis v. Greece , no. 25145/05, § 43, 17 January 2008; and Garib v. the Netherlands [GC] , no. 43494/09, § 141, 6 November 2017.

[28] Hasan and Chaush, cited above, § 62, and Schüth , cited above, § 71.

[29] National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France , nos. 48151/11 and 77769/13, § 186, 18 January 2018.

[30] Losonci Rose and Rose v. Switzerland , no. 664/06, §§ 51 and 52, 9 November 2010 (author’s translation of noyau dur ).

[31] Platakou v. Greece , no. 38460/97, § 49, 11 January 2001; Nedzela v. France , no. 73695/01, § 58, 27 July 2006; Phinikaridou , cited above, §§ 65 and 66; Association Rhino and Others , cited above, § 66; and Wallishauser v. Austria , no. 156/04, § 72, 17 July 2012.

[32] Young, James and Webster , cited above, § 57.

[33] Matos e Silva, Lda., and Others , cited above, § 79.

[34] Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 102, 26 March 2020.

[35] Sporrong and Lönnroth , cited above, §§ 60 and 63.

[36] National Union of Rail, Maritime and Transport Workers v. the United Kingdom , no. 31045/10, § 87, ECHR 2014, and Tek Gida Is Sendikasi v. Turkey , no. 35009/05, § 36, 4 April 2017.

[37] Regner v. the Czech Republic [GC], no. 35289/11, 19 September 2017. See also paragraph 8 of the opinion of Judge Wojtyczek in Naït-Liman v. Switzerland [GC] , no. 51357/07, 15 March 2018 .

[38] § 126 of the present judgment.

[39] § 130 of the present judgment.

[40] § 139 of the present judgment.

[41] § 133 of the present judgment. Hence, there is no autonomous place in this two-stage adjudicatory method for the determination of the “very essence” of the right. This two-stage method is reiterated in paragraph 137 of the present judgment.

[42] §§ 147-157 of the present judgment.

[43] § 150 of the present judgment.

[44] § 157 of the present judgment.

[45] § 144 of the present judgment (my italics).

[46] § 145 of the present judgment (my italics).

[47] § 203 of the present judgment (my italics).

[48] Opinion of Judge Costa in Prince Hans-Adam II of Liechtenstein v. Germany , no. 42527/98, ECHR 2001 ‑ VIII, and along the same lines, opinion of Judge Ress, joined by Judge Zupančič, in the same case; opinion of Judges Russo and Spielmann in Lithgow and Others v. the United Kingdom , 8 July 1986, Series A no. 102; opinions of Judges Jambrek, Martens and Matscher in Gustafsson v. Sweden (revision), 30 July 1998, Reports of Judgments and Decisions 1998 ‑ VI; opinion of Judge Bonello, joined by Judges Zupančič and Gyulumyan, in Kart v. Turkey [GC] , no. 8917/05, ECHR 2009; and opinion of Judge Serghides in Regner , cited above, § 44.

[49] Opinion of Judge Sajó in Regner , cited above, §§ 5 and 15. See also Van Droogenbroeck, La proportionalité dans le droit de la Convention européenne des droits de l’homme. Prendre l’ídée simple au sérieux , Brussels, Bruylant, 2001, pp. 406 ff., and Muzny, La technique de proportionalité et le juge de la Convention européenne des droits de l’homme. Essai sur un instrument nécessaire dans une société démocratique , Aix-en-Provence, Presses universitaires, 2005, pp. 293 ff.

[50] § 144 of the present judgment.

[51] § 145 of the present judgment.

[52] § 153 of the present judgment.

[53] Van Der Schyff, Limitation of Rights: a study of the European Convention on Human Rights and the South African Bill of Rights , Nijmegen, Wolf, 2005, p. 166.

[54] § 145 of the present judgment.

[55] Within a “certain margin of appreciation” (§ 149 of the present judgment), whatever that may mean.

[56] § 132 of the present judgment.

[57] § 137 of the present judgment.

[58] § 150 of the present judgment.

[59] § 157 of the present judgment.

[60] In paragraph 150 of the present judgment, the majority cite both Ibrahim and Others v. the United Kingdom [GC] , nos. 50541/08 and 3 others, § 274, 13 September 2016, and Beuze v. Belgium [GC], No. 71409/10, § 150, 9 November 2018. In paragraph 153 of the present judgment, the majority again cite these authorities and in paragraph 168 of the judgment they cite other leading judgments delivered in criminal cases, reinforcing the overall impression that the majority now assimilate expulsion proceedings with criminal procedure. Would this mean that the majority are ready to overturn the unfortunate paragraph 38 of Maaouia v. France ([GC], no. 39652/98, 5 October 2000), in the near future, in spite of the pious statement to the contrary in paragraph 115 of the present judgment? For my part, I have already expressed my opinion that Maaouia was a wrongful decision which was not entirely cured by Article 1 of Protocol No. 7 (see my opinions in Hirsi Jamaa and Others v. Italy [GC] , no. 27765/09, ECHR 2012, opinion footnote 49, and De Souza Ribeiro v. France [GC] , no. 22689/07, ECHR 2012, opinion footnote 38).

[61] § 157 of the present judgment.

[62] § 149 of the present judgment.

[63] I discussed this feature of Strasbourg case-law in my opinion appended to Hutchinson v. the United Kingdom [GC], no. 57592/08, 17 January 2017, and particularly in §§ 38-40 of that opinion.

[64] § 115 of the present judgment.

[65] § 149 of the present judgment.

[66] See my opinions in Murtazaliyeva v. Russia [GC] , no. 36658 / 05, 18 December 2018, and Farrugia v. Malta, no. 63041/13, 4 June 2019.

[67] To a casuistic reading of the Convention I oppose a principled interpretation; see my opinion in Centre for Legal Resources on behalf of Valentin Câmpeanu , cited above .

[68] Retained in the crucial paragraphs 133 and 157 of the present judgment.

[69] This is also the methodological perspective of the CJEU (see Koen Laenarts, cited above, p. 787: “that court will first examine whether the measure in question respects the essence of the fundamental rights at stake and will only carry out a proportionality assessment if the answer to that first question is in the affirmative.”)

[70] See my opinion in Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, 19 December 2017, at § 71.

[71] As do Article 30 the Universal Declaration on Human Rights and Article 29 (a) of the American Convention on Human Rights.

[72] The point has been made by Judge Van Dijk in paragraph 8 of his opinion in Sheffield and Horsham v. the United Kingdom , 30 July 1998, Reports 1998 ‑ V; by Judges Pejchal, Dedov, Ravarani, Eicke and Paczolay in paragraphs 7-19 of their joint separate opinion in Navalnyy v. Russia , nos. 29580/12 and others, 15 November 2018; and by Judge Serghides in paragraphs 44 and 50 of his opinion in Regner , cited above; also by Frouville, cited above, pp. 236-237; Rouziere-Beaulieu, cited above, p. 92; and S. Van Droogenbroeck and C. Rizcallah, cited above, p. 908.

[73] Opinion of Judge De Meyer, § 2, in Tinnelly & Sons Ltd. and Others v. the United Kingdom and McElduff and Others v. the United Kingdom , 10 July 1998, Reports 1998 ‑ IV, and opinion of Judge Van Dijk, § 8, in Sheffield and Horsham , cited above.

[74] Golder , cited above, § 36.

[75] See Golder , cited above, § 38.

[76] See Heaney and McGuinness v. Ireland , no. 34720/97, § 58, ECHR 2000 ‑ XII, and Serves v. France , 20 October 1997,§ 47, Reports 1997 ‑ VI.

[77] See Matelly v. France , no. 10609/10, § 57, 2 October 2014; Regner , cited above, § 148; and Ognevenko v. Russia , no. 44873/09, § 59, 20 November 2018.

[78] See Ashingdane v. the United Kingdom , 28 May 1985, § 57, Series A no. 93 (my italics). See also Lithgow and Others , cited above, § 194; Mathieu-Mohin and Clerfayt, cited above, § 52; Fayed , cited above, § 65; Bellet v. France , ,4 December 1995, § 31, Series A no. 333 ‑ B; Stubbings and Others v. the United Kingdom , 22 October 1996, § 50, 52 and 56, Reports 1996 ‑ IV; Tinnelly & Sons Ltd. and Others , and McElduff and Others, cited above, § 72; T.P. and K.M. v. the United Kingdom , cited above, § 98; Z and Others v. the United Kingdom [GC] , no. 29392/95, § 93, ECHR 2001; R.P. and Others v. the United Kingdom , no. 38245/08, § 64, 9 October 2012; Al-Dulimi and Montana Management Inc. v. Switzerland [GC] , no. 5809/08, § 129, 21 June 2016; Lupeni Greek Catholic Parish and Others v. Romania [GC] , no. 76943/11, § 89, 29 November 2016; Naït-Liman , cited above, §§ 114-15; Zubac v. Croatia [GC] , no. 40160/12, § 78, 5 April 2018; and Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 195, 25 June 2019.

[79] See my separate opinions appended to Mouvement raëlien suisse v. Switzerland [GC] , no. 16354/06, ECHR 2012, Konstantin Markin v. Russia [GC] , no. 30078/06, ECHR 2012, and Lopes de Sousa Fernandes , cited above.

[80] Usually, the Court associates the violation of the essence of the Convention right with a total deprivation of the possibility of exercising it, i.e., its destruction ( Heaney and McGuinness , cited above, § 55; Allan v. the United Kingdom , no. 48539/99, § 44, ECHR 2002 ‑ IX: Appleby and Others , cited above, § 47; Aziz v. Cyprus , no. 69949/01, §§ 29 and 30, 22 June 2004; Jalloh v. Germany [GC] , no. 54810/00, § 101, ECHR 2006 ‑ IX; Othman (Abu Qatada) v. the United Kingdom , no. 8139/09, § 260, ECHR 2012; R.P. and Others v. the United Kingdom , cited above, § 65; Al-Dulimi and Montana Management Inc., cited above, § 129; Magyar Helsinki Bizottság v. Hungary [GC] , no. 18030/11, § 155, 8 November 2016; Lupeni Greek Catholic Parish and Others, cited above, § 99; and Al Nashiri v. Romania , no. 33234/12, § 717, 31 May 2018). Occasionally the Court also refers to the actions of the national authorities as constituting a negation of the very essence of the right (e.g. in Tanrıkulu, cited above, § 132, and in Brogan and Others , cited above, § 59).

[81] See the partly dissenting opinion in Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015, on the impact of structural errors on the fairness of criminal proceedings.

[82] In Brogan and Others , cited above, § 61, the Court acknowledged that “[t]he investigation of terrorist offences undoubtedly presents the authorities with special problems”, but that assertion did not refrain it from concluding that “[t]o attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word ‘promptly’. An interpretation to this effect would import into Article 5 para. 3 a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision.” Even clearer, in Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A no. 182: “the exigencies of dealing with terrorist crime cannot justify stretching the notion of ‘reasonableness’ to the point where the essence of the safeguard secured by Article 5 § 1 (c) is impaired.” This is exactly the same stance as that of the European Court of Justice in the Schrems judgment, cited above (to quote Koen Lenaerts, cited above, p. 782: “First, it makes clear that a measure that compromises the essence of a fundamental right may not be justified on any ground, not even where the national security of a third country is at stake.”)

[83] Baka v. Hungary [GC], no. 20261/12, §§ 120 and 121, 23 June 2016.

[84] Nonetheless, the Court’s case-law is not always coherent. In Károly Nagy v. Hungary , an absolute prohibition of access to a court was not considered an attack on the essence of the Article 6 right ( Károly Nagy v. Hungary [GC], no. 56665/09,14 September 2017). This inconsistency led me to dissent from the majority judgment in that case.

[85] Mathieu-Mohin and Clerfayt , cited above, § 52; Matthews , cited above, §§ 63 and 65, 18 February 1999; and Aziz , cited above, § 30.

[86] § 148 of the present judgment.

[87] § 149 of the present judgment.

[88] §§ 71-78 of the present judgment.

[89] S.J. v. Belgium [GC] , no. 70055/10, ECHR 2015, on the expulsion of a terminally ill alien; De Souza Ribeiro , cited above, on the expulsion of an undocumented alien; Hirsi Jamaa and Others , cited above, on the collective refoulement of asylum seekers on the high seas; Zakharchuk v. Russia , no. 2967/12, 17 December 2019, on the expulsion of a young alien convicted of grievous bodily harm; M. A. v. Lithuania , no. 59793/17, 11 December 2018, on refoulement of asylum seeker at the land border; Vasquez v. Switzerland , no. 1785/08, 26 November 2013, on the administrative expulsion of an alien convicted of a sexual offence, although the criminal court had suspended the expulsion penalty; Kissiwa Koffi v. Switzerland, no. 38005/07, 15 November 2012, on the expulsion of an alien convicted of drug trafficking; and Shala v. Switzerland , no. 52873/09, 15 November 2012, on the expulsion of an alien convicted of several minor offences.

[90] For a formulation of this requirement in the field of expulsion proceedings on State security grounds, see Ljatifi v. “the Former Yugoslav Republic of Macedonia” , no. 19017/16, § 35, 17 May 2018; CJEU judgment of 4 June 2013, ZZ v. Secretary of State for the Home Department (C-300/11), § 65; United Nations Human Rights Committee, Ahani v. Canada , communication no. 1051/2002, §§ 10.5-10.8; and United Nations Committee against Torture, Bachan Singh Sogi v. Canada , communication no. 297/2006, §§ 10.4-10.5.

[91] C.G. and Others v. Bulgaria , no. 1365/07, § 74, 24 April 2008.

[92] Lupsa v. Romania , no. 10337/04, § 59, ECHR 2006 ‑ VII.

[93] Kaya v. Romania , no. 33970/05, § 59, 12 October 2006 (“ les autorités n’ont fourni au requérant le moindre indice concernant les faits qui lui étaient reprochés ”).

[94] Ahmed v. Romania , no. 34621/03, § 53, 13 July 2010 (“ aucune référence aux faits reprochés, ayant un caractère purement formel ”).

[95] Geleri v. Romania , no. 33118/05, § 46, 15 February 2011. This is not an exclusive problem of Romania. See for example Baltaji v. Bulgaria , no. 12914/04, § 58, 12 July 2011, in which the Court concluded that an appeal had been “ purement formel ” because the appellant had not been made aware of the factual reasons for his expulsion.

[96] Thus it is simply not correct to state that the Court, in its previous case-law, did not address “the question whether it was also necessary for those grounds to be disclosed to the person concerned”, as the majority state in paragraph 127 of the present judgment. All the previous case-law concerning Romania cited above required disclosure of the factual grounds to the person concerned and, consequently, the Court found a violation of Article 1 of Protocol No. 7 where the Romanian authorities, including the national courts, had not disclosed the factual grounds for the expulsion decision to the applicant.

[97] §§ 162 and 163 of the present judgment.

[98] § 164 of the present judgment.

[99] § 165 of the present judgment.

[100] § 164 of the present judgment.

[101] See Malone v. the United Kingdom , 2 August 1984, § 67, Series A no. 82.

[102] Jonas Christoffersen, in Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden, 2009, p. 137), observes that “[i]n order to understand the proportionality principle, the crucial question is how the very essence is delimited, and how the means of delimitation interact with the other elements inherent in the proportionality assessment”. There is no such delimitation of the concept of essence or demonstration of the said interaction in the present judgment.

[103] Heaney and McGuinness, cited above, § 58: “The Court, accordingly, finds that the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants’ rights to silence and against self-incrimination guaranteed by Article 6 § 1 of the Convention.”

[104] On this provision in general, see, inter alia, Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, 4 th edn., Oxford, 2018, pp. 957-959; William A. Schabas, The European Convention on Human Rights – A commentary , Oxford, 2015, pp. 1125-1133; Kees Flinterman, “Procedural Safeguards Relating to Expulsion of Aliens” (chapter 25), in Pieter van Dijk, Fried van Hoof, Arjen van Rijn and Leo Zwaak (eds), Theory and Practice of the European Convention on Human Rights , Cambridge-Antwerp-Portland, 2018, pp. 965-969; and Juan Fernando Durán Alba, “Guarantees against Expulsion of Aliens under Article 1 of Protocol No. 7”, in Javier Garcia Roca and Pablo Santolaya (eds), Europe of Rights: A Compendium on the European Convention of Human Rights, Leiden-Boston, 2012, pp. 635-640.

[105] The remaining four Articles of the Protocol are not substantive in nature.

[106] William A. Schabas, cited above, at p. 1125 argues that the Preamble to Protocol No. 7, which “is succinct and quite perfunctory”, “does not contribute in any significant way to its interpretation”. He adds that “[i]t does not seem that [this Preamble] has ever been cited in case law of the Convention organs” (ibid). The point made in this opinion, however, shows that the Preamble may contribute to the interpretation of the Protocol and this opinion enables that Preamble at last to be cited in the case-law of the Court, albeit in a separate opinion.

[107] “These exceptions are to be applied taking into account the principle of proportionality as defined in the case-law of the [Court].” See paragraph 15 of the Explanatory Report to Protocol No. 7 (Strasbourg, 22.XI.1984).

[108] See on this point Harris, O’Boyle and Warbrick, cited above , at p. 958; Schabas, cited above, at pp. 1127, 1132; and Flinterman, cited above, at pp. 965, 968-9.

[109] See, for instance, Johnston and Others v. Ireland, 18 December 1986, §§ 57-58, Series A no. 112. For more on this principle, see, inter alia, John G. Merrills, The Development of International Law by the European Court of Human Rights, 2 nd edn., Manchester, 1993, at pp. 72 et seq. ; Bernadette Rainey, Elizabeth Wicks, and Clare Ovey (eds), Jacobs, White, and Ovey: The European Convention on Human Rights, 7 th edn., Oxford, 2017, at 69 et seq. ; Daniel Rietiker, “‘The Principle of Effectiveness’ in the Recent Jurisprudence of the European Court of Human rights: its Different Dimensions and its Consistency with Public International Law – no Need for the Concept of Treaty Sui Generis” , Nordic Journal of International Law, 2010, 79, 245 at pp. 271 et seq. ; Céline Brawmann and August Reinisch, “Effet Utile”, in Joseph Klingler, Yuri Parkhomenko and Constantinos Salonidis (eds), Between the Lines of the Vienna Convention? – Canons and Other Principles of Interpretation in Public International Law, Alphen aan den Rijn, 2019, at 47 et seq.

[110] See paragraph 20 of the partly dissenting opinion of Judge Serghides in Regner v. the Czech Republic [GC], no. 35289/11, 19 September 2017.

[111] On the capacity of the principle of effectiveness, not only as a method of interpretation but also as a norm of international law, see Georgios A. Serghides, “The Principle of Effectiveness in the European Convention on Human Rights, in Particular its Relationship to the Other Convention Principles”, Hague Yearbook of International Law , 2017, vol. 30, pp. 1 et seq .; paragraphs 15 and 22 of the concurring opinion of Judge Serghides in S.M. v. Croatia [GC], no. 60561/14, 25 June 2020; paragraph 19 of the concurring opinion of Judge Serghides in Obote v. Russia, no. 58954/09, 19 November 2019; paragraphs 8-12 of the dissenting opinion of Judge Serghides in Rashkin v. Russia , no. 69575/10, 7 July 2020 (not yet final); and paragraph 6 of the concurring opinion of Judge Serghides in OOO Regnum v. Russia , no. 22649/08, 8 September 2020 (not yet final).

[112] See Georgios A. Serghides, “The Principle of Effectiveness ...”, cited above , at pp. 5-6.

[113] In general on this principle, see, inter alia, Xavier Souvignet, La prééminence du droit dans le droit de la Convention européenne des droits de l’homme, Brussels, 2012.

[114] See Ingo Venzke, How Interpretation Makes International Law: on Semantic Change and Normative Twists, Oxford, 2012.

[115] Ibid., at p. 7.

[116] Robert Alexy, A Theory of Constitutional Rights , Julian Rivers translation, Oxford: Oxford University Press, first published 1985 (second edn. 2002).

[117] See Richard Posner, “Torture, Terrorism and Interrogation”, in Sanford Levinson (ed.), Torture. A Collection , Oxford, 2004, pp. 291-298.

[118] Elaine Scarry, “Five errors in the Reasoning of Alan Dershowitz”, in Sanford Levinson (ed.), cited above, pp. 281-290. Against torture, see Aksoy v. Turkey , no. 21987/93, 18 December 1996.

[119] See Al Nashiri v. Romania , no. 33234/12, 31 May 2018; Al Nashiri v. Poland , no. 28761/11, 24 July 2014; and Abu Zubaydah v. Lithuania , no. 46454/11, 31 May 2018.

[120] Robert Alexy, “On Balancing and Subsumption. A Structural Comparison”, Ratio Juris, 10, 2003, 433-449. Robert Alexy, “Kollision und Abwägung als Grundprobleme der Grundrechtsdogmatik”, World Constitutional Law Review , 6, 2002, 9-26. Robert Alexy, “Die Abwägung in der Rechtsanwendung”, Jahresbericht des Institutes für Rechtswissenschaften an der Meeij Gakuin Universität , 2002, 17, 69-83. María Elósegui (coordinator), “El principio de proporcionalidad de Alexy y los acomodamientos razonables en el caso del TEDH Eweida y otros c. Reino Unido / Das Verhältnismässigen anpassungen in der Entscheidung des Europäischen Gerichtshofs für Menschenrechte (EGMR) im Fall Eweida und Andere gegen das Vereinigte Königreich” , Los principios y la interpretación judicial de los Derechos Fundamentales. Homenaje a Robert Alexy en su 70 Aniversario , Zaragoza, Giménez Abad Foundation, Alexander von Humboldt Stiftung and Marcial Pons, 2016. Alejandra Flores, María Elósegui and Enrique Uribe (eds), El neoconstitucionalismo en la teoría de la argumentación de Robert Alexy. Homenaje en su 70 Aniversario , Mexico, Editorial Porrúa and Autonomous University of the State of Mexico, 2015.

[121] Martin Borowski, Grundrechte als Prinzipien , 2nd edn., Baden-Baden: Nomos, 2007.

[122] Matthias Klatt and Moritz Meister share the same opinion in their work, The Constitutional Structure of Proportionality , Oxford University Press, 2012, at p.9: “Alexy’s analysis of the proportionality test is as neatly in accordance with the jurisprudence of the ECtHR as possible”.

[123] Robert Alexy, “The Responsibility of Internet Portal Providers for Readers’ Comments. Argumentation and Balancing in the Case of Delfi A.S. v. Estonia ”, in María Elósegui, Alina Miron and Iulia Motoc (eds), The Rule of Law in Europe . Recent Challenges and Judicial Responses , Springer, 2021 (forthcoming).

[124] Laura Clérico, El Examen de Proporcionalidad en el Derecho Constitucional , Buenos Aires: Eudeba, 2009.

[125] Aharon Barak, Proportionality: Constitutional Rights and their Limitations , Cambridge University Press, 2012.

[126] Jacco Bomhoff, Balancing Constitutional Rights: The Origins and Meaning of Postwar Legal Discourse (Cambridge Studies in Constitutional Law), Cambridge University Press, 2015.

[127] Moshe Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture , Cambridge University Press, 2013

[128] Voynov v. Russia (no. 39747/10, 3 July 2018); concurring opinion of Judge Elósegui.

[129] Robert Alexy, “Die Gewichtsformel”, in J. Jickeli, P. Kreutz and D. Reuter (eds), Gedächtnisschrift für Jürgen Sonnenschein , Berlin: De Gruyter, 2003.