SECOND SECTION DECISION
Application no. 53/12 Amer Ihsan Niamik SAEED
against Denmark
The European Court of Human Rights (Second Section), sitting on 24 June 2014 as a Chamber composed of:
Guido Raimondi, President, Işıl Karakaş,
András Sajó, Nebojša Vučinić, Egidijus Kūris, Robert Spano,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 22 December 2011, Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Amer Ihsan Niamik Saeed, is an Iraqi national, who was born in 1967 and lives in Birkerød. He is represented before the Court by Mr Gunnar Homann, a lawyer practising in Copenhagen.
A. The circumstances of the case
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. The applicant and his brother entered Denmark in December 2001 and requested asylum. The applicant was granted asylum in February 2003.
3. On 21 December 2007, pursuant to section 45 b, subsection 1, of the Aliens Act, on the basis of a recommendation from the Minister for Justice, who had received information from the Secret Service, PET (Politiets
Efterretningstjeneste), the then Minister for Refugee, Immigration and Integration Affairs (henceforth “the Minister for Integration”), deemed that the applicant was a danger to national security. By virtue of section 45 b, subsection 2, of the Aliens Act, the Minister for Integration decided that the information included in the assessment could not, for security reasons, be disclosed to the applicant or to the then Aliens Service (Udlændingeservice), which had to make a further decision in the case (so-called “closed material”).
4. Before the Aliens Service, the applicant stated that he was an ethnic Turkmen. He was married to an Iraqi national, who had returned to Iraq in 2005. They had divorced in 2008. He spoke Turkmen and Arabic and very little Danish. He had never worked in Denmark. He received public welfare and financial help from his brother, who had also been granted asylum in Denmark. His parents and six siblings lived in Iraq. He also had a brother in Sweden. He had regular telephone contact with his family.
5. On 9 January 2008, the Aliens Service decided to revoke the applicant’s residence permit, to deport him with a permanent ban on his return, and to confiscate his Danish alien’s passport.
6. On 27 March 2008, relying on, among other things, Articles 8 and 13 of the Convention and Article 1 of Protocol No. 7 to the Convention, the applicant appealed against the Aliens Service’s decision to the then Ministry for Refugee, Immigration and Integration Affairs (hereafter the “Ministry of Integration”). The latter upheld the decision on 6 May 2008.
7. The applicant also appealed against the decision to the Refugee Appeals Board (Flygtningenævnet) which by decision of 1 April 2008 found, by virtue of section 31, subsection 1, of the Aliens Act, that there were impediments to the implementation of the deportation order in that the applicant could not be returned to Iraq or to a country where he was not protected against refoulement to Iraq. The said provision set out that “an alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country”. Consequently, the applicant remains in Denmark on a so-called “tolerated stay” (tålt ophold).
8. On 18 March 2009 the applicant initiated proceedings before the City Court of Copenhagen against the Ministry of Integration, requesting the revocation of the decision by the Minister for Integration of 21 December 2007 deeming him a danger to national security, and the decision by the Ministry of 6 May 2008 to deport him with a permanent ban on his return and the confiscation of his alien’s passport. In the alternative, he claimed that the decision of 6 May 2008 should not have been taken without the basis for the decision being disclosed to him.
9. On 16 June 2009 the City Court of Copenhagen referred the case to the High Court of Eastern Denmark (Østre Landsret, hereafter “the High
Court”). Due to the decision by the Refugee Appeal Board that the applicant could not be returned to Iraq or a country where he was not protected against refoulement to Iraq, the proceedings before the High Court did not concern the actual deportation of the applicant. The court focused on whether the applicant could be deemed a danger to national security, and whether the deportation order had been justified.
10. The procedure before the High Court was covered by Chapter VII b of the Aliens Act concerning decisions on administrative deportation and so on, inserted by Act no. 487 of 12 June 2009, in force as of 1 July 2009.
Consequently, the High Court assigned counsel for the applicant. The court also assigned a special advocate to safeguard the applicant’s interests and exercise a party’s rights on the applicant’s behalf with regard to the closed material falling within section 45 b, subsection 2, of the Aliens Act. The special advocate would be notified of all court hearings in the case and was entitled to attend them and he should be given a copy of all the material included in the case before the High Court. The special advocate was not allowed to discuss the closed material with the applicant or the applicant’s counsel and he could not speak at hearings where the applicant or his counsel were present. However, the applicant and his counsel could communicate in writing with the special advocate about the case at any time. The High Court could decide on its own initiative or upon request from the special advocate that closed material should be transmitted to the applicant and his counsel if the decision of the Minister for Justice under section 45 b, section 2, was not justified by security reasons. The part of the hearing concerning the closed material would be held behind closed doors.
That part of the hearing would be attended by the special advocate, but not by the applicant and his counsel. The High Court would decide how hearings held wholly or partly behind closed doors would be conducted. The High Court would adopt a decision once the parties and the special advocate had had an opportunity to make a statement.
11. Before the High Court, various written material was submitted, including a report of 17 September 2009 by PET. It stated that PET, during its regular survellance of militant Islamic persons and networks, had become aware of persons in Denmark with a central role in a network that sent terrorists to Iraq to carry out terrorist activities, notably suicide bomb attacks against coalition troops. The surveillance had shown that the network cooperated with groups and persons in, inter alia, Morocco, Saudi Arabia, Syria and Sweden. During its observation of the network between 2005 and 2007, PET had obtained information that from 2006 to 2007 the applicant had had a central role in this network, which included another known member, MH, who was an Iraqi national living in Denmark.
Due to the secret investigation carried out by PET and the material obtained from various foreign secret services and other protected sources, part of PET’s investigation material could not be disclosed (so-called closed
material). However, the so-called open material was rather vast and consisted, among other things, of numerous extracts obtained by communication interception, observation of suspected members’ travel activities, reports by foreign police authorities on arrests of suspected members, and convictions abroad of some of the members concerned. Based on this material, PET had made a summary, stating that in their view, between 2006 and 2007, the applicant had constantly been in contact with MH and groups in Morocco. They had used a special code language, which in PET’s view concerned recruitment of terrorists, notably from Ceuta (a Spanish enclave bordering Morocco) or Saudi Arabia, to be sent to Syria, from where they entered Iraq. PET had observed that the applicant had been to Ceuta in December 2006 on a false Spanish passport. PET estimated that from July to December 2006 the network had sent around thirty terrorists to Iraq, mainly from Morocco. They also had information that a number of those persons had been killed in action. In May 2007, MH had entered Syria and been arrested, whereupon the applicant had taken over the coordinating role in Denmark, but he had suspended his activities shortly thereafter.
12. A general report by PET on code language generally used by militant extremists was also submitted before the High Court. It stated that it had been known since 2002 that words generally related to weddings were an integral part of the communication used by terrorists. Thus, for example, a wedding stood for a terrorist attack and a bridegroom referred to a suicide bomber. Moreover, words like “shirt” meant terrorist, “carton” meant suicide bomber, “to be ill” meant to be imprisoned, “hospital” meant prison, and “cloudy” meant to be surveyed. Moreover, in order to avoid interception of mails, so-called draft mails were regularly used, where the receiver knew the access code, and thus was able to read the draft mail by logging on to the sender’s e-mail account, and delete the draft afterwards.
That method was used, inter alia, by the perpetrators behind the terrorist attack in Madrid on 11 March 2004.
13. Moreover, a report by PET of 17 June 2010 was submitted concerning four meetings which had taken place between 15 and 29 May 2007 between the applicant and PET. The applicant had explained that the aim of his visit to Ceuta in December 2006 had been to find a wife.
He had been shown photographs of various persons who were known officially to be of special interest to PET, but the applicant had not contributed any valuable information. He received 5,000 Danish kroner for his participation in these interviews.
14. Before the High Court, an article from The Daily Telegraph of 25 November 2006 was also submitted, stating that the American intelligence service had assessed that the Moroccan town Touan, situated less than 30 miles from the Spanish enclave of Ceuta, had turned into one of the world’s largest Jihad recruiting areas. In the previous eight months, a group of young men from the same mosque had left their home to become
suicide bombers in Iraq and a further twenty-one men had left the area to seek the death of martyrs.
15. The applicant was heard. He maintained that he had nothing to do with terrorist activities. He explained, among other things, that he had never had a job in Denmark. Sometimes, he helped out in a kebab restaurant. In 2005, he had met a man with the initials MH in a Turkmen club in Copenhagen. MH ran a mobile telephone shop. They started working in co-operation: MH had money and the applicant had contacts. The applicant helped MH with trading products with persons in, inter alia, Saudi Arabia, Syria, Turkey and Morocco. He had made some contact via the internet.
Confronted with telephone conversations between him and others of 3, 27, 29 and 30 July; 5, 14 and 30 August; 4, 17, 22, 23 September; 26 and 29 December 2006 which had been intercepted, and various internet chat exchanges, he explained that the conversations had nothing to do with recruiting terrorists, but rather concerned trade in different goods from MH’s mobile telephone shop or, for example, jackets. It had been the applicant’s task to find out where the goods were. As to the use in several conversations of words such as: “bridegrooms” or “new bridegrooms”, “we have girls willing to marry”, “either he will marry or he will become ill”,
“booklets”, “the two articles”, “they must be ready in a couple of days”,
“they will be told when they can leave”, “the men”, “brothers”, “cartons”,
“cloudy”, “surveillance” and “illness”, they had nothing to do with recruitment of terrorists. The word “bridegroom” was used a lot in Turkmen for persons who are nicely dressed, but also referred to persons who received products. “Cartons” meant goods but could also refer to persons.
He was also in contact with some Moroccan women, who wished to marry.
At some time they had changed from using the telephone to using Hotmail when doing business, because MH also sold illegal goods.
16. The applicant submitted, among other things, that even if the disputed procedure and decisions were in compliance with sections 25 and 45 b of the Aliens Act, the procedure had been in breach of the guarantees enshrined in Article 8 as to legality, proportionality and lack of arbitrariness, Article 13 as to an effective remedy, and Article 1 of Protocol No. 7 to the Convention as to discovery. He contended that the Ministry of Integration had failed to prove that he was a central person in an international network and a danger to Danish national security.
17. By judgment of 9 December 2010, the High Court unanimously found against the applicant. At the outset, it found that the open material provided such detailed and sufficient information about the allegations against the applicant that it enabled him to address the danger assessment and the open material submitted against him, and in addition give adequate instructions to his special advocate as to the closed material. In this respect the High Court considered that the proceedings leading to the disputed decisions, and the review proceedings before the High Court, complied with
the provisions of the Convention relied on and notably the principles set out in A. and Others v. the United Kingdom ([GC], no. 3455/05, § 220, ECHR 2009). Finally, based on the open material, the High Court found it established that the applicant was a threat to national security, a finding that had been further strengthened by the closed material, to which the special advocate had had full access. Conclusively, the High Court found that the deportation order had been justified and proportionate.
18. The applicant appealed against the judgment to the Supreme Court (Højesteret), before which the procedure was also conducted in an open and a closed part by virtue of section 45 g, section 1, of the Aliens Act. The parties agreed that the review did not concern the deportation of the applicant as such. The parties referred to their previous submissions. In addition, the special advocate submitted that a number of documents should be excluded from the case, as it could not be ruled out with the requisite certainty that the information in those documents had been obtained by the use of torture. In reply, the Ministry of Integration pointed out that the special advocate had failed to submit any concrete information to support such an allegation.
19. By judgment of 24 June 2011 the Supreme Court unanimously found against the applicant with the following reasoning:
The danger assessment and deportation (the applicant’s principal claim)
The Minister for Integration decided on 21 December 2007, based on a recommendation by the Minister for Justice, that [the applicant] must be deemed a danger to national security pursuant to the then section 45 b, section 1, of the Aliens Act. Thereafter, on 9 January 2008, the Aliens Service decided that [the applicant]
shall be deported with a permanent ban on his entry, and that his alien’s passport shall be revoked. That decision was upheld by the Ministry for Integration on 6 May 2008.
The decision by the Minister for Integration that [the applicant] must be deemed a danger to the security of the State, is based on accusations against him, which PET in its report of 17 September 2009 – submitted as open material – summarised as follows: From the spring of 2006 [the applicant] was a central person in an international network, which coordinated the installation of terrorists in Iraq. Besides [the applicant] the network consisted of the Iraqi national MH and a number of Iraqi, Moroccan and Swedish nationals. In the period from July to December 2006 the network sent out approximately thirty terrorists to Iraq. A number of those persons died subsequently in connection with actions in Iraq. After the arrest of MH in May 2007, [the applicant] took over the coordinating role in Denmark and decided temporarily to stay the sending out of terrorists. In the said report PET has described in more detail the basis for those accusations against [the applicant].
[The applicant] has claimed that the danger to national security referred to in section 25 (i) of the Aliens Act must concern the Danish State. Thus even if the disputed network had assisted with the installation of persons in Iraq, it could not be concluded that he can be deemed a danger to Danish national security.
The Supreme Court notes in this respect that according to the preparatory notes to section 25 (i) of the Aliens Act, the considerations regarding the security of the State relate in particular to those interests covered by chapters 12 and 13 of the Penal Code,
and that a provision on deportation in order to protect the security of the State must be viewed as a necessary part of the countries’ preparedness measures when combating international terrorist activities (Folketingstidende 2001/02, L32, tillæg A, p. 772).
In the light thereof, the Supreme Court finds that persons in Denmark who are engaged in a network which assists with the installation of terrorists in Iraq, must be deemed a danger to the security of the Danish State under section 25 (i) of the Aliens Act.
Due to security reasons, the basis for the danger assessment was not disclosed to [the applicant] in connection with the decision thereon by the Minister for Integration or the deportation order by the Ministry, which is in compliance with the rules in force at the time and today as to discovery and reasoning under section 45 b, subsections 1 and 2 of the Aliens Act.
In this case the procedure before the courts is covered by Act no. 487 of 12 June 2009 on the amendment of the Aliens Act, which was inserted in Chapter VII b of the Aliens Act. The Act provides for the possibility to divide the proceedings in an open and a closed part. The confidential material, which has formed the basis for the danger assessment, but which for security reasons cannot be disclosed to the alien, may be submitted under the closed part of the proceedings. Under the open part the alien is assisted by appointed counsel. In order to safeguard the applicant’s interests under the closed part of the proceedings, a special advocate will be appointed, who exercises party rights on behalf of the applicant under this part of the case. The special advocate is not allowed to discuss the closed material available to him with the alien or his counsel, but the alien and his counsel can always make written observations to the special advocate about the case.
The purpose of this special procedure before the courts is to create a balance between, on the one hand, the need for confidentiality of information for security reasons and, on the other hand, the need to secure that there is a real possibility of taking care of the alien’s interests in an efficient manner. Thus, pursuant to the preparatory notes to the Act, the alien must have “access to sufficient information about the accusations against him to enable him to give effective instructions to his special advocate”. In the preparatory notes it is specifically mentioned that there may be cases, “where an administrative deportation order and a possible deprivation of liberty cannot be upheld, because the accusations disclosed in the open material are of such a general character, that the alien is not in a position to give effective instructions to his counsel or his special advocate”, and that the courts cannot uphold a deportation order solely by referring to accusations of a general character or to the closed material in the case.
In its decision of 18 August 2010 (published in the Danish Weekly Law Reports, Ugeskrift for Retsvæsen, 2010, page 2910), the Supreme Court concluded that the rules set out in Chapter VII b of the Aliens Act must be considered compatible with the Convention on Human Rights, and that it cannot be considered in breach of the Convention that those rules apply to cases that have already been initiated.
The Supreme Court finds that the lack of disclosure to [the applicant] of the basis for the administrative danger assessment and the administrative deportation order is not in breach of the Convention or Article 1 of Protocol No. 7 to the Convention. However, the subsequent review by the courts of the danger assessment and the deportation order must live up to the requirements as to discovery etc., set out in the Aliens Act on court proceedings.
The question is thus, what has been submitted as material in the case to illustrate whether [the applicant] must be deemed a danger to national security, and whether the accusations against him have been sufficiently and factually substantiated in a way which respects the legal requirements regarding discovery, etc.
The accusations on which the Minister for Integration based the decision that [the applicant] must be deemed a danger to national security were based, are in the Supreme Court’s view sufficiently and factually substantiated by the material submitted during the open part of the procedure. In this regard, the Supreme Court has notably accorded weight to the contents of the intercepted telephone conversations, in which, among other things, a code language is used. The Supreme Court has also accorded weight to the contents of the e-mails (draft e-mails) and to the contents of [the applicant’s] chat on the Internet. Furthermore, the Supreme Court has accorded weight to the persons involved in, or mentioned during, the intercepted telephone conversations or in the said e-mails (draft e-mails) and chat on the net. Finally, the Supreme Court has accorded weight to the fact that [the applicant] has provided an entirely unreliable explanation of what the telephone conversations and the internet communication concerned.
In the Supreme Court’s opinion, the open material suffices in itself to carry the decision by the Minister for Integration that [the applicant] must be deemed a danger to national security, and no material has been submitted during the closed part which weakens this finding. It should be mentioned in this respect, that during the open part, there has been such specific, concrete and precise information about the basis for the accusations, that [the applicant] has had a real possibility of taking care of his interests in an efficient manner, also during the closed part of the case, including by giving concrete instructions to the special advocate.
Since the open material is sufficient to uphold the danger assessment, it is unnecessary to take a stand on the allegation submitted by the special advocate that there might be information obtained by the use of torture among the closed material submitted to support the danger assessment.
Hereafter, the Supreme Court has found no reason to revoke the decision by the Minister for Integration, that [the applicant] must be deemed a danger to national security.
Accordingly, the Ministry for Refugee, Immigration and Integration Affairs was entitled to deport the applicant with a permanent ban on his return by virtue of section 25(i) of the Aliens Act, compared with section 32, subsection 4, and the Supreme Court endorses that there are no considerations as set out in section 26, subsection 1, which could lead to the annulment of the deportation.
In conclusion, the Supreme Court confirms that the Ministry for Refugee, Immigration and Integration Affairs is acquitted in relation to [the applicant’s]
principal claim.
The claim in the alternative
[The applicant’s] claim in the alternative aims to conclude that the decision of 6 May 2008 by the Ministry for Refugee, Immigration and Integration Affairs to deport him with a permanent ban on his return, and to confiscate his alien’s passport, should not have been taken, when the basis for the decision was not disclosed to him.
In support of that claim, [the applicant] has submitted that the administrative deportation order was such a serious interference with his personal freedom, that it should not have been taken without disclosure being secured.
On this basis, the Supreme Court takes a separate stand on this claim, as it cannot be viewed alone as an argument in support of his principal claim.
Nevertheless, referring to the Supreme Court’s finding above as to danger assessment and deportation, [the applicant] did not have a right to disclosure in respect of the administrative decisions thereon.
Thus, the Supreme Court confirms that claim in the alternative submitted by the Ministry for Refugee, Immigration and Integration Affairs for acquittal.
B. Relevant domestic law and practice
20. The relevant provisions of the Aliens Act (Udlændingeloven), Consolidation Act no. 785 of 10 August 2009 provided:
Section 25 An alien may be expelled if:
(i) the alien must be deemed a danger to national security; or
(ii) the alien must be deemed a serious threat to public order, safety or health.
Section 26
(1) In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of:
(i) the alien’s ties with Danish society;
(ii) the alien’s age, health, and other personal circumstances;
(iii) the alien’s ties with persons living in Denmark;
(iv) the consequences of the expulsion for the alien’s close relatives living in Denmark, including in relation to regard for family unity;
(v) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and
(vi) the risk that, in cases other than those mentioned in section 7(1) and (2) or section 8(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.
(2) An alien must be expelled under section 22(1)(iv) to (viii) and section 25 unless the circumstances mentioned in subsection (1) make it conclusively inappropriate.
Section 31
(1) An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country.
(2) An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such a country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in
respect of a particularly dangerous crime, the alien must be deemed a danger to society, but see subsection (1).
Part VII a
Exchange of information between the immigration authorities and the intelligence services and the public prosecutor, etc.
Section 45a
(1) Without the alien’s consent, the Danish Immigration Service, the Ministry of Refugee, Immigration and Integration Affairs, the Refugee Appeals Board and the regional state administrations, see section 46c, may transmit information from a case under this Act to the intelligence services to the extent such transmission may be of importance to the handling of security tasks by the intelligence services.
(2) Without the alien’s consent, the intelligence services may transmit information on an alien to the Danish Immigration Service, the Ministry of Refugee, Immigration and Integration Affairs, the Refugee Appeals Board and the regional state administrations, see section 46c, to the extent that such transmission may be of importance to the examination of a case under this Act by these authorities.
(3) Without the alien’s consent, the intelligence services may mutually exchange information as mentioned in subsections (1) and (2).
Section 45b
(1) For the purpose of the examination of a case under this Act, the Minister for Integration assesses on the basis of a recommendation from the Minister for Justice whether the alien must be deemed a danger to national security. This assessment forms the basis of the determination of the case.
(2) The Minister for Justice may decide that the information included in the assessment under subsection (1) may not, for security reasons, be transmitted to the alien assessed. Furthermore, the Minister for Justice may decide that for security reasons information as mentioned in the first sentence hereof may not be transmitted to the immigration authority having to make a decision in the case.
Part VII b
Court proceedings in certain decisions on administrative expulsion, etc.
Section 45d
(1) The rules of this Part apply to court proceedings in cases relating to:
(i) the review of a danger assessment under section 45b or a decision on expulsion under section 25(i);
(ii) the deprivation of liberty of an alien under section 36 for the purpose of ensuring the possibility of expulsion under section 25(i);
(iii) an application for a residence permit under section 7 or 8(1) or (2) from an alien expelled under section 25(i).
(iv) a decision on the return under section 31 of an alien who has previously held a residence permit under section 7 or 8(1) or (2) and has been expelled under section 25(i); and
(v) a decision under section 32b when the alien has been expelled under section 25(i).
(2) Cases falling within this Part must be brought before the Copenhagen City Court by the Minister for Justice or the person so authorised by the Minister. For determining the case, 3 judges will sit. The court may decide that 1 judge only will sit for the hearing of a case on deprivation of liberty under section 36, see subsection (1)(ii). The Minister for Justice or the person so authorised by the Minister may allow persons employed with the National Security Service to appear in his place as process agents.
(3) Bringing a case before the court suspends enforcement of any decision when the alien is staying in Denmark. Bringing the case before the court does not prevent enforcement and continued deprivation of liberty under section 36, see subsection (1)(ii), unless so decided by the court.
(4) Sections 37a to 37e apply correspondingly in cases on deprivation of liberty under section 36, see subsection (1)(ii).
Section 45e
(1) Parties to the case are deemed to be the alien and the person bringing the case before the court under section 45d(2).
(2) The court shall assign counsel to act for the alien. The court shall also assign a special advocate to safeguard the alien’s interests and exercise a party’s rights on the alien’s behalf with regard to information falling within section 45b(2). Concerning legal fees and compensation for outlay to counsel and the special advocate, the same rules apply as in cases where free legal aid has been granted, see Part XXXI of the Administration of Justice Act.
(3) The special advocate under subsection (2) must be notified of all court hearings in the case and is entitled to attend them. The special advocate must be made aware of and be given a copy of the material included in the case before the court. The Minister for Justice or the person so authorised by the Minister may decide that a copy will not be given to the special advocate for security reasons. Upon request from the special advocate, such matter must be brought before the court by the person who brought the case before the court under section 45d(2).
(4) The court shall decide how an alien who resides abroad and is subject to an entry prohibition, see section 32, see section 25(i), will be given an opportunity to make a statement to the court.
Section 45f
(1) Information falling within section 45b(2) will be transmitted to the special advocate assigned under section 45e(2). When such information has been transmitted to the special advocate, he may not discuss the case with the alien or the alien’s counsel and may not speak at hearings at which the alien or his counsel is present. The alien and his counsel may make written communications to the special advocate about the case at any time.
(2) The court may decide on its own initiative or upon request from the special advocate assigned under section 45e(2) that information applied by the Minister for
Justice in his assessment under section 45b(1) will be transmitted to the alien and his counsel if the decision of the Minister for Justice under section 45b(2) is not justified by security reasons. The decision is made by order after the special advocate and the person who brought the case before the court under section 45d(2) have had an opportunity to make a statement. The order may be appealed against by the persons mentioned in the second sentence hereof. Appeal against a decision to transmit information suspends enforcement of the decision.
(3) If the court has made a decision under subsection (2), first sentence, the Minister for Justice or the person so authorised by the Minister may decide that the information in question will not be included in the case before the court.
(4) A judge may not sit in the case if he has made a decision under subsection (2), first sentence, or has otherwise had access to information falling within such decision and the Minister for Justice or the person so authorised by the Minister has decided under subsection (3) that the information in question will not be included in the case before the court.
Section 45g
(1) The part of a hearing which concerns or during which information falling within section 45b(2) and not falling within section 45f(2) is produced or considered must be held behind closed doors. This part of a hearing will be attended by the special advocate assigned under section 45e(2), but not by the alien and his counsel.
(2) The court decides how hearings held wholly or partly behind closed doors under subsection (1) are to be conducted.
Section 45h
(1) The court makes its decision after the parties and the special advocate assigned under section 45e(2) have had an opportunity to make a statement.
(2) The court’s decision on deprivation of liberty, see section 45d(1)(ii), is made by order. Section 37(3) to (5) applies correspondingly.
(3) The court’s decision on expulsion, residence permit and return, see section 45d(1)(i) and (iii) to (v), is made by judgment. If the court decides to uphold the decision on expulsion or to refuse a residence permit under section 7 or 8(1) or (2), or that return will not be contrary to section 31, the decision must stipulate a time-limit for departure according to which the alien is ordered to leave Denmark immediately.
(4) For the purpose of the court’s decision under section 45d(1)(iii) to (v), the court requests the Refugee Appeals Board to issue an opinion after the parties and the special advocate assigned under section 45e(2) have had an opportunity to make a statement.
21. Part VII b, above, concerning “Court proceedings in certain decisions on administrative expulsion, etc.” was inserted by Act no. 209 of 28 April 2009 specifically to create a new model for the procedure and court review in cases concerning administrative deportation of aliens deemed a danger to national security, which would comply with the principles and requirements set out in A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 93 and 215, ECHR 2009). As to the background and content of the bill, the preparatory works read, inter alia:
...
“The bill proposes to create a new model for the procedure and court review in cases concerning administrative deportation of aliens deemed a danger to national security.
The proposed model entails that the Minister of Justice, on the basis of a recommendation by PET, makes an assessment of whether an alien must be deemed a danger to national security, and that thereafter the Ministry for Integration takes a decision on deportation on the basis of the danger assessment made by the Minister of Justice. The proposed model also entails a special access to court review of the danger assessment and the deportation decision, where the evidence will be divided into open and closed material, and where, in a court hearing held behind closed doors, there will be an opportunity to submit the confidential material relied on in the danger assessment made by the Minister of Justice, and where the aliens’ interests will be safeguarded by a special advocate. It is a condition, though, that the alien has access to sufficient information about the accusations against him, enabling him to give effective instructions to the special advocate. Finally, the proposed model entails that the power to deal with asylum legal questions relating to the possibility of deportation in this kind of case, is transferred from the aliens authorities to the courts.”
...
“With [this new model] the Government have attempted to achieve a joint overall solution for court review in this kind of case. [As mentioned below] the Court of Human Rights has, in a judgment of 19 February 2009 in the case A. and Others v.
United Kingdom, approved a solution concerning court review of the legality of deprivation of liberty, where the evidence is divided into open and closed material, and a special advocate is appointed for the deportee. However, according to the Court it is a condition that the deportee, via the open material, has access to sufficient information about the accusations against him, so that he is capable of giving effective instructions to the special advocate. It should be noted in this connection, that also in cases being dealt with under the new proposed rules, there might be incidents where the courts will find that the administrative deportation and a possible deprivation of liberty cannot be upheld, because the submitted accusations in the open material are of such a general character that the alien at issue is not capable of giving effective instructions to his counsel or the special advocate.”
...
“In a series of cases, the Court has further pronounced on the demands which it requires of a court review regarding an administrative deportation and, in that connection, the underlying actual danger assessment. The relevant provisions are Article 8 ..., Article 13 ... and Article 1 of Protocol No. 7...
In Al-Nashif v. Bulgaria, judgment of 20 June 2002, concerning the question of court review of an administrative deportation in such cases, the Court stated that there must be 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 due to the classified information. In the same judgment, as to the interpretation of Article 13, the Court stated that the guarantee of an effective remedy under the said provision requires that the competent independent appeals authority must be informed of the reasons justifying the deportation decision, even if such reasons are not publicly available. In this connection the Court emphasised that the appeal authority must be competent to reject the executive’s assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative after security clearance. Furthermore, the question of whether
the impugned measure would interfere with the individual’s right to respect for family life and, if so, whether a fair balance is struck between the public interest involved and the individual’s rights, must be examined. The Court has repeated those statements in subsequent judgments about administrative deportation of aliens deemed a danger to national security, most recently in C.G and Others v. Bulgaria, judgment of 24 April 2008.
The Court’s judgments on the interpretation of Article 1 of Protocol No. 7 in cases concerning deportation of such aliens have not resulted in further demands being required of the court review of the administrative deportation decision than already follow from the Court’s jurisprudence under Articles 8 and 13.
Pursuant to the bill, the proposed court control of the deportation decision by the Ministry for Integration may result in the annulment of the deportation, for example because the danger assessment is not found sufficiently reasoned, or - even if the danger assessment is found to be reasoned - because the deportation does not to a sufficient degree respect the relevant person’s right to family life under Article 8. The procedural limitation, that the interest of the alien is safeguarded by a special advocate, including through the latter’s access to the closed material and during a court hearing behind closed doors, is necessitated by the classified character of PET’s material. It is the opinion of the Ministry for Integration that the proposed solution hereafter lives up to the requirement under Articles 8 and 13 regarding “some form of adversarial proceedings, if need be through a special representative after security clearance” as established by the Court in the aforementioned case-law on deportation of aliens, deemed a danger to national security.
Against this background it is the view of the Ministry for Integration that the proposal to introduce a strengthened court review of both the Minister of Justice’s assessment of whether the alien must be deemed a danger to national security, and the Ministry for Integration’s decision on deportation will comply with Article 8 and 13 of the Convention, and Article 1 of Protocol No. 7.”
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22. Article 63 of the Constitution read as follows:
The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority. However, anyone wishing to raise such matters cannot avoid temporarily complying with orders issued by the public authorities by bringing them before the courts.
COMPLAINTS
23. The applicant complained that the procedure before the domestic authorities leading to him being deemed a danger to national security, and to a deportation order being issued against him, was in violation of Articles 8 and 13, and of Article 1 of Protocol No. 7 to the Convention.
THE LAW
24. Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
25. Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
26. Article 1 of Protocol No. 7 provides:
“1. 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:
(a) to submit reasons against his expulsion, (b) to have his case reviewed, and
(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.
2. 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.”
A. The applicant’s submissions
27. Before the High Court, the applicant submitted that even if the disputed procedure and decisions were in compliance with the relevant provisions of the Aliens Act, the procedure before the Minister and the Ministry of Immigration had been in breach of the guarantees enshrined in Article 8 as to legality, proportionality and lack of arbitrariness, Article 13 as to an effective remedy, and Article 1 of Protocol No. 7 to the Convention as to discovery. Before the Supreme Court he added that a number of documents should be excluded from the case, as it could not be ruled out with the requisite certainty that the information in those documents had been obtained by the use of torture.
28. In the application form submitted to the Court, the applicant complained that he was not able to safeguard his interests on the basis of the open material; that there was no proof that he was a danger to national security; and that it could not be ruled out that some of the closed material might have been obtained by the use of torture. In summary he complained
“that the insufficient discovery amounted to a breach of Articles 8 and 13, and Article 1 of Protocol No. 7”.
B. The Court’s assessment
1. The scope of the complaints
29. The Court points out that in April 2008 the Refugee Appeals Board decided that the applicant could not be returned to Iraq or to a country where he was not protected against refoulement to Iraq. Thereafter, he remained in Denmark on a so-called “tolerated stay”. There is no risk that the deportation order will be implemented in the near future and the domestic courts were not requested to review the deportation as such.
Instead, the High Court and the Supreme Court were requested to review the procedure followed by the Minister and the Ministry of Integration in making the danger assessment and in issuing the deportation order. The courts were also requested to examine the applicant’s claim that before the courts, he was not able to safeguard his interests on the basis of the open material, and in addition the Supreme Court was requested to examine the allegation that it could not be ruled out that some of the closed material might have been obtained by the use of torture.
30. In these circumstances, the Court considers it appropriate to examine the nature and extent of the procedural safeguards available to the applicant during the impugned proceedings and their compatibility with Article 8 of the Convention only. Thus, the Court finds it unnecessary to examine the issues separately under Article 13 of the Convention and Article 1 of Protocol No. 7 to the Convention.
2. The existence of an interference with respect for private or family life
31. The applicant in the present case has been staying in Denmark since December 2001. He was granted asylum in February 2003 and had his everyday life in Denmark for a number of years, when the deportation order was adopted in May 2008. The applicant’s brother was also living in Denmark. The applicant’s wife had left Denmark in 2005. The deportation order implied revocation of the applicant’s residence permit, deportation with a permanent ban on his return, and confiscation of the applicant’s alien’s passport. Even though the deportation order has not been enforced due to the decision of the Refugee Appeals Board, it has had significant implications for the everyday life of the applicant, who has remained in Denmark on a so-called “tolerated stay”. Accordingly, the deportation order, based on an assessment that he was deemed a danger to national security, interfered with his private life in Denmark.
32. Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society”.
3. General principles concerning procedural safeguards under Article 8 in national security deportation cases.
33. Procedural safeguards are an integral feature of the lawfulness of deportation and exclusion decisions under Article 8 of the Convention (see Al-Nashif, cited above, C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008; Kaushal and Others v. Bulgaria, no. 1537/08, 2 September 2010; Raza v. Bulgaria, no. 31465/08, 11 February 2010; M. and Others v.
Bulgaria, no. 41416/08, 26 July 2011; Madah and Others v. Bulgaria, no.
45237/08, 10 May 2012; and Amie and Others v. Bulgaria, no. 58149/08, 12 February 2013). It is clear from this case-law that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require measures affecting fundamental human rights to 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” (Al-Nashif, cited above, § 123; see also C.G and Others, cited above, § 40; and Amie and Others, cited above, § 92). In the context of such proceedings, the executive’s assertion that national security is at stake must be open to challenge. While the executive’s assessment of what poses a threat to national security will naturally carry significant weight, the independent authority must be able to react in cases where the assessment has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or contrary to common sense and arbitrary (see Al-Nashif, cited above, § 124; and C.G and Others, cited above, § 40).
34. The use of confidential material in the proceedings may be unavoidable where national security is at stake (see Chahal v. the United Kingdom, 15 November 1996, § 131, Reports of Judgments and Decisions 1996-V and Raza v. Bulgaria, cited above, § 53). It may therefore sometimes be necessary to classify some or all of the materials used in proceedings touching upon matters of national security and even parts of the decisions rendered in them. However, the complete concealment from the public of the entirety of a judicial decision in such proceedings cannot be regarded as warranted. The publicity of judicial decisions aims to ensure scrutiny of the judiciary by the public and constitutes a basic safeguard against arbitrariness (see Raza, cited above, § 53). Even in indisputable national security cases, such as those relating to terrorist activities, the authorities of countries which have suffered and remain at risk of terrorist
attacks have chosen to keep secret only those parts of their decisions whose disclosure would compromise national security or the safety of others (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 93 and 215, ECHR 2009). This demonstrates that there are techniques which can accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice (see Chahal, cited above, § 131; and Raza, cited above,
§ 53).
35. The said principles were reconfirmed in a recent case, I.R. and G.T.
v. the United Kingdom ((dec.), nos. 14876/12 and 63339/12, 28 January 2014 concerning the procedure in the United Kingdom, under which the Secretary of State may cancel an alien’s leave to remain in the United Kingdom on the ground that the alien’s presence would not be conducive to the public good for reasons of national security. Appeal against such a decision lies to the Special Immigration Appeals Commission (SIAC) before which part of the proceedings takes place in the absence of the alien and his legal representative, but in the presence of a special advocate who is appointed to represent his interests in so-called “closed procedure”. The Court stated (see paragraphs 60 and 61) that the procedural guarantees inherent in Article 8 of the Convention will vary depending on the context of the case in question and in some circumstances may not be as demanding as those which apply under Articles 5 and 6. The Court must examine the entirety of the system put in place by the Contracting Party in order to assess whether the procedural guarantees required by Article 8 have been respected in the particular circumstances of the case. A procedural defect present in one respect might well be offset by a procedural safeguard present in another.
4. Application of the principles to the present case
36. In the present case the applicant had a review of the disputed decisions by the Minister and the Ministry of Integration by both the High Court and the Supreme Court. It is not in dispute that both courts were fully independent (see, A. and Others, cited above, § 219) and that they had full jurisdiction to determine whether the disputed decisions were compatible with Article 8 of the Convention. Both courts were presented with all the evidence in the case, open material as well as closed material, and they were able to form their own independent views as to whether the Minister and the Ministry of Integration had reached the correct decisions (see F.A.K. v. the Netherlands (dec.), no. 30112/09, § 82, 23 October 2012; and compare and contrast Liu v. Russia (no. 2), no. 29157/09, §§ 88-89 and 91, 26 July 2011).
They were thus competent to examine and, if necessary, to reject the assertion by the Minister that the applicant posed a threat to national security, and to quash the deportation order issued by the Ministry.
37. The procedure before the courts was covered by Chapter VII b of the Aliens Act and entailed procedural limitations in that the closed material was never disclosed to the applicant and his counsel. In order to counterbalance this limitation, the courts assigned a special advocate to safeguard the applicant’s interests and exercise a party’s rights on the applicant’s behalf with regard to the closed material. The special advocate was notified of all court hearings in the case and was entitled to attend them and he was given a copy of all the material included in the case before the courts. The special advocate was not allowed to discuss the closed material with the applicant or the applicant’s counsel and he could not speak at hearings at which the applicant or his counsel were present. However, the applicant and his counsel could make written communications to the special advocate about the case at any time. The courts could decide on their own initiative or upon request from the special advocate that closed material should be transmitted to the applicant and his counsel if the decision by the Minister for Justice under section 45b, section 2, was not justified by security reasons. The part of the hearing which concerned the closed material would be held behind closed doors. That part of the hearing would be attended by the special advocate, but not by the applicant and his counsel. The courts adopted a decision after the parties and the special advocate had had an opportunity to make a statement. The Court notes in this regard that the Danish Aliens Act was amended by Act no. 209 of 28 April 2009 specifically to create a new model for the procedure and court review in cases concerning administrative deportations of aliens deemed a danger to national security, which would comply with the principles and requirements which were approved in principle by the Grand Chamber in A. and Others, cited above.
38. Finally, there are no elements in the case indicating that the legislation or the courts have allowed the Minister for Integration to adopt an interpretation of “national security” which is unlawful, contrary to common sense or arbitrary (compare and contrast C.G. and Others, cited above, § 43; and Raza, cited above, § 53).
39. Turning to the concrete circumstances of the applicant’s case, the Court notes that counsel and a special advocate were to assigned him. The applicant was heard and able to give his view on the open material in the case, which was rather vast and consisted, among other things, of various extracts of interceptions of communication (for example, of telephone conversations between the applicant and others of 3, 27, 29 and 30 July; 5, 14 and 30 August; 4, 17, 22, 23 September; 26 and 29 December 2006), observations of suspected network members’ travel activity, reports by foreign police authorities on arrests of suspected members, and convictions abroad of some of the members concerned. Moreover, PET had made quite a detailed summary in an “open” report of 17 September 2009 stating that in their view, between 2006 and 2007, the applicant had had a central role in a
network recruiting terrorists, notably from Ceuta, to be sent to Iraq to take part in terrorist acts against coalition troops.
40. In its judgment of 9 December 2010, the High Court found that the open material provided such detailed and sufficient information about the allegations against the applicant that it had enabled him to address the danger assessment and the open material submitted against him, and in addition give adequate instructions to his special advocate as to the closed material. Finally, based on the open material, the High Court found it established that the applicant was deemed a threat to national security, a finding that had been further strengthened by the closed material, to which the special advocate had had full access. Conclusively, the High Court found that the deportation order had been justified and proportionate.
41. Likewise, in its judgment of 24 June 2011, the Supreme Court found that the accusations, on which the Minister for Integration based his decision, were sufficiently and factually substantiated by the material submitted during the open part of the procedure. The Supreme Court accorded weight to the contents of the intercepted telephone conversations and draft e-mails, the persons involved, and the applicant’s explanation of what the telephone conversations and the internet communication concerned (which the Supreme Court found entirely unreliable). In the Supreme Court’s opinion, the open material sufficed in itself to justify the decision by the Minister for Integration that the applicant must be deemed a danger to national security. They stated that during the open part there had been such specific, concrete and precise information about the basis for the accusations that the applicant could take care of his interests in an efficient manner, also during the closed part of the case, including by giving concrete instructions to the special advocate. Finally, in this light, the Supreme Court found it unnecessary to take a stand on the allegation submitted by the special advocate that there might be information among the closed material which had been obtained by the use of torture.
42. Taking all these circumstances into account, the Court is satisfied that the procedure before the courts under Chapter VII b of the Aliens Act fulfilled the requirement that there was “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”. Moreover, it notes that in the present case the danger assessment was sufficiently and factually substantiated by the open material, which consisted of specific, concrete and precise information, to which the applicant had full access.
Finally, on the basis of the open material, the Court finds no reason to doubt that the applicant could take care of his interests in an efficient manner, also during the closed part of the case. Accordingly, there were sufficient procedural guarantees during the proceedings before the domestic
authorities to ensure that the applicant’s right to respect for his private and family life was respected.
43. Finally, in so far as the applicant also complained before the Court that there might have been information among the closed material which had been obtained by the use of torture, so far the Court has dealt with such complaints under Article 6 of the Convention (see for example, Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 258-287, ECHR 2012 (extracts) and El Haski v. Belgium, no. 649/08, §§ 81-99, 25 September 2012). Nevertheless, even assuming that Article 8 does apply, in its procedural aspect, to the question at issue, the Courts considers this complaint manifestly ill-founded for the following reasons.
44. The Court notes that the applicant was represented by a special advocate who had access to all the material in the case and who submitted before the Supreme Court that a number of documents should be excluded from the case, as it could not be ruled out with the requisite certainty that the information in those documents had been obtained by the use of torture.
In reply, the Ministry of Integration pointed out that the special advocate had failed to submit any concrete information to support such an allegation.
His complaint was considered by the Supreme Court, which set out set out (see paragraph 19 above):
“In the Supreme Court’s opinion, the open material suffices in itself to carry the decision by the Minister for Integration that [the applicant] must be deemed a danger to national security, and no material has been submitted during the closed part which weakens this finding. It should be mentioned in this respect, that during the open part, there has been such specific, concrete and precise information about the basis for the accusations, that [the applicant] has had a real possibility of taking care of his interests in an efficient manner, also during the closed part of the case, including by giving concrete instructions to the special advocate. Since the open material is sufficient to uphold the danger assessment, it is unnecessary to take a stand on the allegation submitted by the special advocate that there might be information obtained by the use of torture among the closed material submitted to support the danger assessment.”
45. Accordingly, it follows from the reasoning of the Supreme Court that the contested allegedly illegally obtained evidence in the closed part of the proceedings was not used as evidence against the applicant in the civil proceedings.
46. Consequently, the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority Declares the application inadmissible.
Stanley Naismith Guido Raimondi
Registrar President
