European Court of Human Rights

 

FIRST SECTION

CASE OF TRAPITSYNA AND ISAEVA v. HUNGARY

(Application no. 5488/22)

 

 

JUDGMENT

 

STRASBOURG

19 September 2024

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Trapitsyna and Isaeva v. Hungary,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Ivana Jelić, President,
          Krzysztof Wojtyczek,
          Lətif Hüseynov,
          Péter Paczolay,
          Gilberto Felici,
          Erik Wennerström,
          Raffaele Sabato, judges,
and Ilse Freiwirth, Section Registrar,

Having regard to:

the application (no. 5488/22) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two Russian nationals, Ms Elena Trapitsyna and Ms Szofia Isaeva ("the applicants"), on 14 January 2022;

the decision to give notice to the Hungarian Government ("the Government") of the complaint concerning Article 8 of the Convention and to declare inadmissible the remainder of the application;

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the Hungarian Helsinki Committee which was granted leave to intervene by the President of the Section;

Having deliberated in private on 3 September 2024,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the decision to expel the first applicant from Hungary on national security grounds, without reasons being given, and the ensuing revocation of the applicants' immigration and settlement permits. The applicants complained of a violation of Article 8 of the Convention.

THE FACTS

2.  The applicants were born in 1965 and 2008 respectively and live in Vienna, Austria. They were represented by Ms K. Katona, a lawyer practising in Budapest.

3.  The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice.

4.  The facts of the case may be summarised as follows.

I.        background

5.  The first applicant, Ms Trapitsyna, is a Russian national, and the second applicant is her daughter, Ms Isaeva, who is also a Russian citizen.

6.  The first applicant arrived in Hungary in 1995. She was granted a residence permit (tartózkodási engedélyi), which was extended on 20 July 2000 until 4 August 2001. Her application for an immigration permit (bevándorlási engedély) was dismissed on 16 October 2001. According to an opinion issued by the National Security Office on 15 February 2001, the first applicant's presence in Hungary did not jeopardise national security interests.

7.  On 10 February 2003 the first applicant was finally issued with an immigration permit, the validity of which was extended in 2019 until 26 March 2024.

8.  On 13 October 2015 the Budapest Court of Appeal convicted the first applicant of fraud and forgery of private documents.

9.  The first applicant is married to an Azerbaijani citizen. In 2008 their daughter, the second applicant, was born. At an undetermined time, the couple separated, as the first applicant's husband moved to Vienna, Austria. The applicants remained in Hungary and shared a household with a female relative, who was twenty-three years old at the material time and for whom the first applicant acted as primary caregiver.

10.  On 12 August 2008 the second applicant was issued with a settlement permit (letelepedési engedély), which was extended on 8 September 2020 until 23 May 2023.

11.  The applicants submitted before the Court that they had been to Russia only twice, for short periods. The second applicant had lived in Hungary her entire life, where she had attended school and had all her social contacts.

II.     THE EXPULSION PROCEEDINGS

12.  On 11 November 2020 the Constitution Protection Office (Alkotmányvédelmi Hivatal - hereinafter "the CPO") issued a recommendation (javaslat) stating that the first applicant represented a threat to national security, that her immigration permit should be revoked and that she should be subjected to a five-year ban on re-entry and residence.

13.  On 10 December 2020 the National Directorate-General for Aliens Policing (Országos Idegenrendészeti Főigazgatóság - hereinafter "the NDGAP"), referring to the above-mentioned recommendation, ordered the first applicant's expulsion to Russia, stating that her presence in Hungary seriously endangered or threatened Hungarian national security. It also barred her from re-entering and residing in Hungary for five years. The decision stated that the first applicant was well integrated into Hungarian society, had a regular income and social connections, spoke the language and owned property in Hungary. It also noted that there were no barriers to her expulsion to Russia, which was considered a safe third country.

14.  The first applicant applied for judicial review of the decision. She argued that the NDGAP had relied exclusively on a reference to the CPO's recommendation to justify her expulsion. Furthermore, she had not been made aware of the reasons for which her presence in Hungary was considered to constitute a serious threat to or breach of national security. In addition, the NDGAP had failed to examine her personal circumstances.

15.  The administrative decision as to the first applicant's expulsion was upheld by the Budapest High Court on 10 February 2021. The court held that the NDGAP was bound by the CPO's recommendation, both as to the expulsion order and the length of the ban on re-entry and residence, and that it lacked any discretionary power in this regard. It found that, although the NDGAP's decision gave no reasons as to why the first applicant posed a serious threat to national security, the file to which the court had had access clearly indicated that this was the case, and that the NDGAP had sufficiently clarified and properly considered all circumstances, including the individual circumstances of both the first and second applicants, and had sufficiently explained the evidence on the basis of which it had made its assessment.

16.  The first applicant was to have been deported by aeroplane on 11 February 2021 but failed to show up at the airport.

17.  On 6 August 2021 the Hungarian authorities were informed that, on the same day, the Austrian authorities had taken both applicants' fingerprints in the context of asylum proceedings.

18.  The constitutional complaint lodged by the applicants against the decision of the Budapest High Court was dismissed on 5 October 2021. The Constitutional Court found that the complaint did not raise any issues of fundamental constitutional importance. In any event, the question whether the first applicant's presence in Hungary constituted a threat to national security could not have been reassessed as part of constitutional proceedings, since this would have amounted to a re-examination of the facts.

III.   THE REVOCATION OF THE FIRST APPLICANT'S IMMIGRATION PERMIT AND THE SECOND APPLICANT'S SETTLEMENT PERMIT

19.  In the meantime, already on 7 July 2020, the NDGAP initiated proceedings of its own motion to review the first applicant's residence status.

20.  In reply to an enquiry from the NDGAP, the CPO issued an authoritative assessment (szakhatósági állásfoglalás) in which it stated that the first applicant's presence in Hungary constituted a risk to national security.

21.  On 21 December 2020 the NDGAP revoked the first applicant's immigration permit pursuant to section 37(2)(d) of Act no. II of 2007 on the admission and right of residence of third-country nationals (hereinafter "the Immigration Act"), which provided for the mandatory revocation of the immigration permit of third-country nationals against whom an expulsion order had been issued. That decision was served on the first applicant on 14 January 2021. On 2 March 2021 the NDGAP confirmed its initial decision on an appeal by the first applicant.

22.  On 21 December 2020 the NDGAP also revoked the second applicant's settlement permit pursuant to section 37(2)(b) of the Immigration Act, which provided for the mandatory revocation of a child's settlement permit in the event that the parent's immigration permit was revoked and the child had no other parental supervision in Hungary. That decision was confirmed on appeal on 3 March 2021.

IV.  ACCESS TO INFORMATION PROCEEDINGS

23.  On 15 December 2020 the first applicant lodged a request with the CPO for authorisation to access classified information (megismerési engedély) (see paragraph 29 below) under Act no. CLV of 2009 on the protection of classified information (hereinafter "the Classified Information Act"), seeking access to the CPO's recommendation. The request was rejected on 23 December 2020 on the grounds of the public interest in the effective functioning of the CPO. The first applicant's additional request for authorisation to access the CPO's recommendation was rejected on 15 June 2021. Her request for judicial review of the decision was to no avail.

24.  On 24 May 2022 the applicants' representative enquired with the CPO as to the number of requests lodged for authorisation to access national classified information (see paragraph 29 below). On 23 June 2022 the applicants' representative was informed that thirty-six such requests had been lodged in 2019, fifty-one in 2020, ninety-three in 2021 and thirty-one in the first five months of 2022, all of which had been rejected on the grounds that the disclosure of the requested information would have jeopardised the effective functioning of the CPO.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I.        DOMESTIC LAW

25.  The relevant parts of the Immigration Act, as in force at the material time, provided as follows:

Section 37

"...

(2) The immigration authority shall revoke any settlement permit, national settlement permit or immigration permit where

...

(b) the immigration authority has withdrawn the authorisation to reside in Hungary of the third-country national with parental custody over a minor who is a third-country national, and the continued residence of the minor in Hungary with the other parent with parental custody is not ensured;

...

(d) the third-country national to whom it was issued is subject to an expulsion order or to a ban on re-entry and residence;

 ..."

Section 43

"...

(2) Subject to the exception set out herein, the immigration authority shall, in accordance with immigration laws, order the expulsion of a third-country national whose:

...

(d) entry and residence constitute a threat to or breach of national security, public safety or public order;

...

(3) An independent ban on re-entry and residence and an expulsion order under immigration laws may also be issued by the law enforcement agencies specified in the relevant government decree, on the grounds referred to in subsection 1 and in subsection 2(d) respectively, in the discharge of their duties relating to the protection of the public interests defined by law. If an individual ban on re-entry and residence is imposed on the grounds referred to in subsection 1(c) or an expulsion order is issued on the grounds referred to in subsection 2(d), the law enforcement agencies specified in the relevant government decree shall make a recommendation as to the duration of the ban on re-entry and residence in cases falling within their jurisdiction. The immigration authority may not deviate from this recommendation."

Section 45

"(1) Before taking a decision ordering the expulsion of a third-country national who holds a residence permit issued on the grounds of his or her family relationships, the immigration authority shall take into consideration the following factors:

(a) the length of residence,

(b) the age of the third-country national, his or her family circumstances and the possible consequences of his or her expulsion for his or her family members,

(c) the third-country national's ties to Hungary or lack of ties to his or her country of origin.

(2) A third-country national who

(a) resides in Hungary as an immigrant or settled person may be expelled only if his or her continued presence seriously jeopardises national security, public safety or public order.

(2a) The decision ordering the expulsion of a person referred to in subsection 2 shall be taken by the immigration authority taking into account the criteria set out in subsection 1.

..."

Section 47

"...

(4) Where an expulsion order is issued on the grounds referred to in section 43(2) or where an expulsion is ordered by the asylum authority, the immigration authority may issue a ban on re-entry and residence, taking into account the nature and severity of the infringement, the personal circumstances of the third-country national, or the threat his or her re-entry or continued presence poses to public order, public safety or national security.

..."

Section 87/A

"(1) In the government decree implementing this Act, the Government shall designate a specialised agency to assess specific issues in the proceedings governed by this Act.

..."

Section 87/B

"...

(4) The specialised agency's authoritative assessment shall be binding on the immigration authority with regard to the specific issue at hand.

...

(8) The special agency's authoritative assessment:

(a) shall indicate the name of the specialised agency,

(b) shall contain, in the operative part, the specialised agency's approval, any additional provision or condition it may prescribe, or its refusal to grant approval.

..."

Section 87/M

"(1) A decision shall contain any data and information required to identify the relevant immigration authority, the applicant and the case, the operative part - including the authority's decision, the specialised agency's authoritative assessment, information about available legal remedies and the procedural costs liable to be incurred –, the ascertained facts of the case, the available evidence, an explanation of the specialised agency's authoritative assessment, the reasons for deliberation and the decision, and the specific statutes on the basis of which the decision was adopted.

..."

26.  The relevant parts of Government Decree no. 114/2007 (V. 24.) on the implementation of the Immigration Act, as in force at the material time, provided as follows:

Section 114

"...

(4b) Expulsion under section 43(2)(d) of the Act may also be ordered on the initiative of the investigating authority, the Constitution Protection Office or the Counter-Terrorism Centre.

..."

27.  Act no. CXXV of 1995 on the National Security Services provides as follows:

Tasks of the National Security Services

Section 5

"The Constitution Protection Office shall

...

(g) carry out checks and related tasks in respect of persons applying for a document certifying settled status, refugee status or Hungarian citizenship, and in respect of persons applying for visas to the extent necessary for the protection of State sovereignty and the rule of law;

..."

28.  The relevant provisions of the Classified Information Act provide as follows:

Section 3

"For the purposes of this Act

1. classified information shall mean:

(a) national classified information: any information falling within the domain of the public interests subject to protection by classification, which contains a classification mark issued in accordance with the formal requirements laid down in this Act or in any legislation enacted under this Act, concerning which, irrespective of the form in which it is presented, the classifier has determined during the classification procedure that its disclosure to an unauthorised person or its inaccessibility to an authorised person would directly harm or endanger (hereinafter jointly referred to as: 'harm') any of the public interests subject to protection by classification and, in view of its content, has restricted its disclosure and accessibility in the context of classification;

..."

29.  Pursuant to section 11(1) of the Classified Information Act the data subject may file a request with the classifying authority or data controller for authorisation to access his or her national classified information. Under section 12(1) of the Classified Information Act the classifier may deny such access on public interest grounds.

II.     DOMESTIC PRACTICE

30.  Judgment no. Kfv. 38.329/2018/10. of 29 May 2019 concerned the rejection of the claimant's request for a residence permit on national security grounds. In that case the Kúria found:

"...neither the immigration authority, nor the trial court are in a position to decide as to the accessibility or disclosure of classified information in place of the classifier. Both the immigration authority and the court are bound by the recommendation of the Constitution Protection Office. To ensure the effective protection of the claimant's rights, the court reviews the case file and verifies that its content provides sufficient reasons to justify the measure taken by the immigration authority. It is not within the court's power to overrule the data and findings of the national security screening. It can only decide whether the content of the recommendation is sufficiently substantiated.

..."

31.  Judgment no. Kfv. 37.533/2020/9. of 25 November 2020 of the Kúria concerned the revocation of a claimant's residence card on national security grounds. Reiterating its previous case-law, the Kúria held:

"...the first-instance court ensured the claimant's judicial protection by reviewing the documents [of the CPO] and verifying whether the information therein substantiated the existence of a risk to national security. The content of such documents cannot be revised. Judicial review involves verifying the existence of [the CPO's] authoritative assessment and that it contains a factual finding as to the existence of a risk to national security. Where [the CPO] has sufficiently substantiated its finding as to the existence of a risk to national security and has provided an authoritative assessment that follows logically therefrom, it is not within the court's power to overrule such an assessment.

...

Where [the NDGAP] has based its decision on an assessment which contains classified information, the court, after having reviewed the documents, must verify whether the facts and data included in the assessment provide sufficient justification for the authority's decision.

It is not within the court's power to overrule the findings of the agency, provided they are based on information capable of substantiating the risk to national security and they follow logically therefrom.

..."

32.  Judgment no. Kfv. 37.259/2022/8. of 28 April 2022 of the Kúria concerned proceedings under the Classified Information Act seeking access to national classified information. The claimant had requested that the CPO provide access to the recommendation it had submitted in asylum proceedings and authorise the use of the national classified information in judicial and administrative proceedings. The CPO had dismissed the claimant's request on national security grounds. In its judicial review the Kúria held that it was not possible to provide a summary (kivonatolás) of the requested information, reasoning that, in essence, the classification applied to the information in its entirety. It added that the claimant's private interest in the asylum proceedings could not override the public interest in non-disclosure of classified information.

III.   EUROPEAN UNION LAW

A.    The Országos Idegenrendézeti Főigazgatóság and Others judgment

33.  Concerning Hungarian legislation and practice that withdrew international protection on the grounds of a risk to national security, the Court of Justice of the European Union (CJEU) ruled in the case of Országos Idegenrendézeti Főigazgatóság and Others (judgment of 22 September 2022, C-159/21, EU:C:2022:708) that EU law was to be construed as precluding Hungarian legislation which allowed the person concerned or his or her adviser to access the case file only after obtaining authorisation to that end, and without being provided with the reasons for the decision.

34.  The CJEU held that where the disclosure of information contained in the case file was restricted on grounds of national security, respect for the rights of defence was not sufficiently guaranteed by the possibility for the person concerned of obtaining, under certain conditions, authorisation to access that information, together with a complete prohibition on using the information thus obtained for the purposes of administrative or judicial proceedings.

35.  The power of the court having jurisdiction to obtain access to the file could not replace access to the information contained in the case file by the person concerned or by his or her adviser.

B.     The ZZ judgment

36.  The judgment of the CJEU (Grand Chamber) in the case of ZZ (judgment of 4 June 2013, C-300/11, EU:C:2013:363) concerned the exclusion of a citizen of a member State from the territory of another member State on grounds of public security. The CJEU, in so far as relevant, found as follows:

"...

54. ... it may prove necessary, both in administrative proceedings and in judicial proceedings, not to disclose certain information to the person concerned, in particular in the light of overriding considerations connected with State security...

...

57. However, if, in exceptional cases, a national authority opposes precise and full disclosure to the person concerned of the grounds which constitute the basis of a decision taken under Article 27 of Directive 2004/38, by invoking reasons of State security, the court with jurisdiction in the Member State concerned must have at its disposal and apply techniques and rules of procedural law which accommodate, on the one hand, legitimate State security considerations regarding the nature and sources of the information taken into account in the adoption of such a decision and, on the other hand, the need to ensure sufficient compliance with the person's procedural rights, such as the right to be heard and the adversarial principle.

...

65. In this connection, first, in the light of the need to comply with Article 47 of the Charter, that procedure must ensure, to the greatest possible extent, that the adversarial principle is complied with, in order to enable the person concerned to contest the grounds on which the decision in question is based and to make submissions on the evidence relating to the decision and, therefore, to put forward an effective defence. In particular, the person concerned must be informed, in any event, of the essence of the grounds on which a decision refusing entry taken under Article 27 of Directive 2004/38 is based, as the necessary protection of State security cannot have the effect of denying the person concerned his right to be heard and, therefore, of rendering his right of redress as provided for in Article 31 of that directive ineffective.

..."

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

37.  The applicants complained that the first applicant's expulsion had been ordered in a decision based on classified information to which she had not had access. Moreover, the expulsion order and the ensuing revocation of their immigration and settlement permits had not taken into consideration their personal circumstances. They alleged an infringement of their rights under Article 8 of the Convention, which reads as follows:

"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."

A.    Admissibility

38.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties' submissions

(a)    The applicants

39.  The applicants submitted that at the time of the expulsion order issued in respect of the first applicant, they both had valid immigration and settlement permits, respectively, and were fully integrated into Hungarian society; the second applicant attended school and had all her social contacts in Hungary. They had only been to Russia twice, for short periods. The revocation of their permits had resulted directly from the expulsion order issued in respect of the first applicant.

40.  They maintained that the interference with their right to respect for their private and family life had not been lawful, since the minimum procedural guarantees had not been provided for in domestic law at the relevant time.

41.  They further argued that under section 45(2)(b) of the Immigration Act an alien with an immigration permit could only be expelled from Hungary if his or her continued presence would have constituted a serious breach of national security. However, the Hungarian authorities' reasoning as to the existence of such a serious threat to national security and the legal basis for ordering the first applicant's expulsion had not been clear.

42.  The applicants stressed that they had not been made aware of the underlying reasons for the expulsion order, namely the findings of the CPO, and that they had not been given the opportunity to challenge them. Although the first applicant had sought access to the documents produced by the CPO, her requests to that effect had been denied. Nor had the applicants been informed of the findings of the NDGAP, and the second applicant had not been invited to the hearing to present her case.

43.  Moreover, the NDGAP's decision had not contained any reasons concerning the threat to or breach of national security that the first applicant had allegedly constituted. Although the court carrying out the judicial review of the administrative decision had had access to the classified file, it had not been within its power to rule on the lawfulness of the classification, to verify its well-foundedness, validity and accuracy, or to overrule the findings of the CPO.

44.  They submitted that the domestic authorities had not carried out an appropriate and meaningful assessment of the proportionality of the expulsion order, which they argued had not been justified in the light of their personal circumstances, in particular taking account of the second applicant's best interests as a child.

(b)    The Government

45.  The Government did not dispute that there had been an interference with the applicants' right to respect for their private and family life under Article 8 of the Convention. They submitted that the necessity of expelling the first applicant and the consequences of this decision for the second applicant had been duly examined by the domestic authorities.

46.  Although the information concerning the threat that the first applicant represented to national security had constituted classified information and had not been included in the NDGAP's decision, the Budapest High Court had reviewed that information before finding that the expulsion order in respect of the first applicant had been lawful.

47.  Moreover, the domestic authorities had assessed the first applicant's circumstances, including the length of her stay and the possible consequences of her expulsion. They had sought the opinion of the asylum authority to determine whether there was a risk in expelling the first applicant to Russia. They had also duly considered whether the second applicant could follow the first applicant to Russia to maintain the family ties between mother and daughter and had taken account of the fact that they lived together in Hungary.

2.     The third-party intervener

48.  The Hungarian Helsinki Committee submitted that the violations alleged by the applicants in the present case touched upon a systemic problem in Hungary, namely denial of access to, at a minimum, the essence of the classified information on which the assessment as to a risk to national security was based. In their view, the requirement under the Immigration Act that the NDGAP gave reasons for its decisions was purely formal as the CPO itself was not obliged to provide reasons for its authoritative assessments, which merely presented its findings. Similarly, when reviewing expulsion orders, the courts could not refer to classified information, such that their decisions also lacked substantive reasoning.

49.  Furthermore, according to the results of an enquiry made by the Hungarian Helsinki Committee, the CPO had not granted any requests for access to classified information in the previous three and a half years. Moreover, any judicial review of the CPO's recommendation was futile, since the courts could only review the legal basis but not the proportionality of the measure thereby recommended.

50.  In any event, even if applicants were to have access to classified information, section 13(1) of the Classified Information Act precluded the use of such information in administrative or judicial proceedings.

51.  The Hungarian Helsinki Committee explained that some courts interpreted the relevant provisions of the Immigration Act and of Government Decree no. 114/2007 to mean that only the recommendation as to the length of the re-entry ban was binding, others considered that the recommendation as to expulsion was also of a binding nature.

52.  Lastly, once the risk to national security was established in respect of a third-county national, any assessment of the family-life implications, including the best interest of the child, became purely academic.

3.     The Court's assessment

(a)    General principles

53.  States are entitled to control the entry and residence of aliens on their territories (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, § 67, 28 May 1985, Series A no. 94). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel, for example, an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X).

54.  Where there is an arguable claim that the measure threatens to interfere with an alien's right to respect for his or her private and family life, States must make available to the individual concerned the effective possibility of challenging the measure and having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see Gaspar v. Russia, no. 23038/15, § 42, 12 June 2018). 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 (Saeed v. Denmark (dec.), no. 53/12, § 35, 24 June 2014).

55.  In this connection, the Court reiterates that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see, among many other authorities, Marguš v. Croatia [GC], no. 4455/10, § 128, ECHR 2014 (extracts), and A and B v. Norwa [GC], nos. 24130/11 and 29758/11, § 133, 15 November 2016). In keeping with this principle of harmonious interpretation of the Convention, the Court considers that, in cases concerning measures affecting an alien's residence permit in a manner that may potentially lead to his or her expulsion, procedural safeguards under Article 8 of the Convention must be interpreted in the light of those provided by Article 1 of Protocol No. 7, insofar as relevant (see Mirzoyan v. the Czech Republic, nos. 15117/21 and 15689/21, § 82, 16 May 2024).

56.  The use of confidential material may prove unavoidable where national security is at stake. It may therefore sometimes be necessary to classify some or all of the materials used in proceedings touching upon such matters and even parts of the decisions rendered in them (see Raza v. Bulgaria, no. 31465/08, § 53, 11 February 2010). However, even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must 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. The individual must be able to challenge the executive's assertion that national security is at stake (see Amie and Others v. Bulgaria, no. 58149/08, § 92, 12 February 2013).

57.  In cases examined under Article 1 of Protocol No. 7, in which national security has been invoked as grounds for the impugned measure, the Court has held that the aliens concerned must be informed of the relevant factual elements which had led the competent domestic authorities to consider that they represented a threat to national security and must be given access to the content of the documents and the information relied on by the authorities, without prejudice to the possibility of imposing duly justified limitations on such information if necessary (see, mutatis mutandis, Ljatifi v. the former Yugoslav Republic of Macedonia, no. 19017/16, § 35, 17 May 2018; Muhammad and Muhammad v. Romania [GC], no. 80982/12, §§ 128-29, 15 October 2020; and Mirzoyan, cited above, § 83).

58.  Under this provision the Court has further found that the alien must be offered an effective opportunity to submit reasons against the measure in question and be protected against any arbitrariness; therefore, only limitations which have been subject to independent scrutiny in the circumstances of each case are duly justified and are sufficiently counterbalanced, in particular by appropriate procedural safeguards (see, mutatis mutandis, A. and Others v. the United Kingdom [GC], no. 3455/05, § 218, ECHR 2009; Natsvlishvili and Togonidze v. Georgia, no. 9043/05, § 91, ECHR 2014; and Muhammad and Muhammad, cited above, §§ 133 and 137).

59.  In this regard, the Court will take particular account of the relevance of the information actually disclosed to the alien, both as regards the factual elements underlying the decision in question and as regards access to the content of the documents and information relied on by the authority making that decision and, where those documents were classified and inaccessible to the alien, of the extent to which access to them was provided to the alien's representative (Muhammad and Muhammad, cited above, §§ 151 and 154) .

60.  While the executive's assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of "national security" that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Al-Nashif v. Bulgaria, no. 50963/99, § 124, 20 June 2002, and Kaushal and Others v. Bulgaria, no. 1537/08, § 29, 2 September 2010).

61.  Therefore, the Court will also examine whether one or more independent authorities were involved in the proceedings, judicial scrutiny in principle having a greater counterbalancing effect than an administrative form of scrutiny; whether the applicant was able to challenge, in an effective manner and before an independent authority, the allegations against him that he or she represented a danger to national security; whether the independent authority had the power to effectively examine the grounds underlying the impugned decision; and whether it had access to the totality of the file constituted by the relevant national security body to make its case against the alien, including to the classified documents, and to verify the authenticity of the documents in the file, together with the credibility and veracity of the classified information adduced in support (see, in the context of Article 1 of Protocol No. 7, mutatis mutandis, Muhammad and Muhammad, cited above, §§ 151-56, with further references).

62.  Where children are involved, their best interests must be taken into account and national decision-making bodies have a duty to assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014).

(b)    Application of the general principles to the present case

63.  Turning to the case at hand, the Court observes that the first applicant had been living in Hungary with her Azerbaijani husband since 1995 on the basis of a lawfully extended immigration permit. After the couple separated, the first applicant remained in Hungary. Her daughter, the second applicant, was born in Hungary in 2008 and lived there until the age of about twelve, when she was compelled to leave the country with her mother.

64.  It is undisputed that the applicants left Hungary against their will, as a result of the expulsion order and the revocation of their immigration and settlement permits respectively. They were thus forced to leave the country where they had developed - in the case of the second applicant, uninterruptedly since birth - the network of personal, social and economic relations that make up the private life of every human being. As the Court has previously held, the totality of such ties between applicants and the community in which they have been living constitutes part of the concept of "private life" within the meaning of Article 8 (see Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008).

65.  In these circumstances, the Court cannot but find that the measures taken to expel the applicants, who were settled migrants, from Hungary, constituted an interference with their "private life" within the meaning of Article 8 § 1 of the Convention.

66.  That being stated, even though the applicants evidently had an established "family life" in Hungary, the impugned measures of removal from the country were not aimed at breaking up the family. Nor did they have such an effect, given that the Hungarian authorities revoked the second applicant's settlement permit precisely so that she would not be left without parental supervision in Hungary. Nonetheless, the impact of the impugned measures on their family life - in particular their ultimate forced migration as a family unit - is a relevant factor for the Court's assessment of the case under Article 8 of the Convention.

67.  The Court will accordingly concentrate its further examination on the question whether the interference with the applicants' right to respect for their "private life" was justified or not.

68.  Such interference will be in breach of Article 8 unless it is "in accordance with the law", pursues a legitimate aim or aims under paragraph 2, and is "necessary in a democratic society" to achieve the relevant aim or aims.

69.  The first of these requirements does not merely require that the impugned measure should have a basis in domestic law, but also refers to the quality of the law in question involving, amongst other things, a measure of legal protection against arbitrary interference or abuse by public authorities. The issue of such protection, including the procedural safeguards against such abuse, overlaps with similar issues analysed in the examination of the decision-making process by means of the proportionality test under Article 8 § 2 of the Convention (see Liu v. Russia (no. 2), no. 29157/09, § 86, 26 July 2011, and Gaspar, cited above, § 41). Given the above, the Court may dispense with ruling on "quality of law" requirements, as the impugned measures against the applicants fell short of being necessary in a democratic society for the reasons set out below.

70.  The Court is prepared to accept that the expulsion order in respect of the first applicant and the revocation of the applicants' immigration and settlement permits respectively may have pursued the legitimate aim of protecting national security.

71.  It follows from the foregoing considerations and from the principles set out above (see paragraphs 54-62) that what remains to be ascertained in the present case is whether the decision‑making process entailing an interference with the applicants' private life afforded due respect for the applicants' interests safeguarded by Article 8 of the Convention. Thus, the Court must examine whether the domestic proceedings were attended by sufficient procedural guarantees.

72.  Under domestic law, the CPO's recommendation and the authoritative assessment it subsequently provided to the NDGAP, which served as the basis for the expulsion order issued in respect of the first applicant and for the termination of her residence in Hungary, were classified. Nor is there any dispute as to the fact that none of these documents or the material on which they were based was ever made available to the applicants for consultation under any circumstances or at any stage of the proceedings.

73.  Moreover, the first applicant was not given so much as an outline of the national security case against her or a summary of the content of any classified document in her case. The allegations against her were of an undisclosed nature, making it impossible for her to challenge the CPO's assertions before the NDGAP by providing exonerating evidence or an explanation.

74.  Although under section 87/B(1) of the Immigration Act, the NDGAP was under an obligation to provide reasons for its decisions, including the specialised agency's assessment, the ascertained facts of the case, the available evidence and an explanation of the specialised agency's assessment (see paragraph 25 above), in practice its decision contained neither the facts on the basis of which a threat to national security had been found, nor a general description of the conduct ascribed to the first applicant, nor the nature of the risk she purportedly represented.

75.  In the Court's view, the process described above entailed a significant interference with the first applicant's right to be informed of the factual elements which had served as a basis for the domestic authorities' decision to order her expulsion from Hungary.

76.  In this regard, the Court takes into account the fact that the first applicant sought access to the classified information in separate proceedings brought under the Classified Information Act, but this yielded no results, since, in the understanding of the domestic authorities, the disclosure of such information would have jeopardised the effective functioning of the CPO. The Court is also mindful of the submissions of the third-party intervener and of the domestic authorities' established practice of systematically denying requests for access to national classified information, or for summaries thereof, on public interest grounds.

77.  In addition, it appears that the domestic authorities' understanding was that the NDGAP could not depart from the CPO's recommendation. Admittedly, in the present case, the NDGAP detailed the applicants' individual situations and concluded that the national security interests outweighed their personal interest. It is also true that the Budapest High Court found that the NDGAP had given sufficient consideration to the applicants' personal circumstances.

78.  However, a reading of the judgment shows that, in the authorities' view, the CPO's recommendation was binding on the NDGAP both as to the necessity of an expulsion order and as to the length of the re-entry ban, leaving the authorities no latitude in that regard and precluding any real weighing-up of the various interests at stake. To that extent, any reference to the applicants' circumstances in the NDGAP's decision was a mere formality. In other words, once the CPO had issued a recommendation based on undisclosed information finding that the first applicant represented a risk to national security, no further inquiry into the applicants' circumstances was relevant or necessary.

79.  As to the question whether the judicial review proceedings counterbalanced or mitigated the interference with the first applicant's procedural rights in the administrative proceedings, the Court notes that the decision to expel the first applicant was reviewed by the Budapest High Court, which had both the requisite independence and the right to access the confidential documents.

80.  However, the Court observes that the Budapest High Court only briefly stated that it had reviewed the documents produced by the CPO, from which it was clear to it that the applicant's presence in Hungary constituted a serious threat to national security. It did not make any reference to the evidential basis for this finding. Nor did it provide an explanation as to whether and how the authorities were able to demonstrate the existence of the specific facts serving as a basis for their recommendation to expel the first applicant. These considerations lead the Court to conclude that the domestic court confined itself to a purely formal examination of the decision to expel the first applicant, basing its ruling solely on uncorroborated information tendered by the CPO, without meaningfully scrutinising the allegations to the effect that the applicant represented a serious national security risk.

81.  In view of the foregoing considerations, the Court concludes that the first applicant, despite having the formal possibility of seeking judicial review of the expulsion order, was not able to challenge, in an effective manner, the allegation that she represented a danger to national security, nor did she enjoy the requisite degree of protection against arbitrariness on the part of the authorities. The domestic proceedings examining the expulsion decision were not attended by appropriate and sufficient procedural guarantees.

82.  As to the protection of the second applicant's best interests as a child, the view taken by the domestic authorities in the proceedings leading to the revocation of the applicants' respective permits was that the second applicant should not be separated from her mother. However, this consideration served only to justify the applicants' removal as a family unit. Given that the second applicant would have been left without parental supervision in Hungary in the event of her mother's expulsion, the domestic authorities held that the family ties were to be maintained by revoking the second applicant's settlement permit as well.

83.  The Court further observes that, pursuant to the Immigration Act, the revocation of the first and second applicants' permits was a direct and automatic consequence of the decision to expel the first applicant, leaving no leeway to the immigration authorities. The domestic authorities therefore had no latitude to consider, in particular, the strength of either applicant's social and cultural ties to Hungary - or to the destination country, Russia –, the potentially detrimental effects of leaving Hungary, or any other particular circumstances of the specific case. The Court is therefore not convinced that, in deciding on the revocation of the second applicant's settlement permit, the domestic authorities conducted a genuine inquiry into her best interests as a child.

84.  The above considerations are sufficient for the Court to conclude that, in view of the procedural deficiencies, the interference with the applicants' right to respect for their private life has not been shown to be necessary in a democratic society.

85.  There has accordingly been a violation of Article 8 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

86.  Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A.    Damage

87.  The first applicant claimed 8,000 euros (EUR) in respect of pecuniary damage corresponding to the loss of the business she owned in Hungary.

88.  The applicants also claimed EUR 15,000 each, in respect of non-pecuniary damage.

89.  The Government contested these claims.

90.  With regard to the first applicant's claim in respect of pecuniary damage, the Court does not discern any causal link between the violation found in the present case and the pecuniary damage alleged by the first applicant; it therefore rejects this claim. However, it awards the applicants EUR 10,000, jointly, in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.    Costs and expenses

91.  The applicants also claimed EUR 4,000 plus value-added tax, jointly, for the costs and expenses incurred before the Court. That sum corresponded to seventeen hours of legal work billable by their lawyer at an hourly rate of EUR 80 and twenty-four hours of legal work billable by their lawyer at an hourly rate of EUR 110.

92.  The Government contested this claim.

93.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 19 September 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Ilse Freiwirth                                                        Ivana Jelić
                 Registrar                                                             President