30
AL-NASHIF v. BULGARIA JUDGMENT
possibilities of recourse with certain procedural guarantees and independent
review. In the case of Amann v. Switzerland ([GC], no. 27798/95, ECHR
2000-II) the applicant could appeal to a court. In those cases no violation of
Article 13 of the Convention was found.
No appeal was available to the applicant in Rotaru v. Romania ([GC],
no. 28341/95, ECHR 2000-V) – a case that also concerned the storage and
use of secret information – and the Court found a violation of Article 13 of
the Convention (see also Hewitt and Harman v. the United Kingdom,
no. 12175/86, Commission report of 9 May1989).
137. The Court considers that in cases of the expulsion of aliens on
grounds of national security – as here – reconciling the interest of
preserving sensitive information with the individual's right to an effective
remedy is obviously less difficult than in the above-mentioned cases where
the system of secret surveillance or secret checks could only function if the
individual remained unaware of the measures affecting him.
While procedural restrictions may be necessary to ensure that no leakage
detrimental to national security would occur and while any independent
authority dealing with an appeal against a deportation decision may need to
afford a wide margin of appreciation to the executive in matters of national
security, that can by no means justify doing away with remedies altogether
whenever the executive has chosen to invoke the term “national security”
(see the above cited Chahal judgment and paragraph 96 above on possible
ways of reconciling the relevant interests involved).
Even where an allegation of a threat to national security is made, the
guarantee of an effective remedy requires as a minimum that the competent
independent appeals authority must be informed of the reasons grounding
the deportation decision, even if such reasons are not publicly available. The
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 a security clearance. Furthermore, the question 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.
138. As no remedy affording such guarantees of effectiveness was
available to the applicants, the Court finds that there has been a violation of
Article 13 of the Convention.
V. ALLEGED VIOLATIONS OF ARTICLE 9 AND OF ARTICLE 13 IN
CONJUNCTION WITH ARTICLE 9 OF THE CONVENTION
139. The first applicant complained that his deportation had been a
reaction to and a punishment for his lawful religious activities and had
therefore constituted an unjustified interference with his rights under