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Question: Both Jaroslaw and Hamza wish to bring applications to the European Court of Human Rights (ECtHR) against Poland over their treatment, and seek your advice on potential violations of the European Convention on Human Rights (ECHR). Answer: European Court of Human Rights Advice According to the statements of facts, the following substantial issues may arise amounting to violations of the European Convention on Human Rights (the Convention): Applicants right to liberty and security (Article 5) Violation of right to fair trial (Article 6) The failure of the polish authorities to prevent the applicant from the risk of ill-treatment in case of deportation (Article 3 and 5) Violation of right to respect for private and family life (Article 8) The European Convention on Human Rights (ECHR) is an international treaty that aims at safeguarding fundamental freedoms and human rights in Europe. Any nationals of the state party to the Convention may approach the European Court of Human Rights in case there is an infringement of the rights of the individuals under the ECHR Convention. The judgments delivered by the court have a binding effect upon the concerned States and they are under statutory obligation to act in compliance with such judgments[1]. Right to liberty and security The applicant, Humza has been subject to arrest under the Counter Terrorism Act but has not been presented before the judge and any authorized person conferred with the power of exercising judicial powers within a reasonable time that commences from the time of arrests. It is a clear violation of Article 5 of the Convention and the advice shall deal with the primary violation Article 5 and then examine any potential secondary violations of Articles 7 of the Convention. Article 5 The failure to present Hamza immediately before the judge has violated article 5(f) of the Convention, which required the authorities to bring any person who has been lawfully detained on the ground that action is being taken for deportation or extradition. Hamza was waiting for the determination of his refugee status with the Polish government but he was under surveillance by ISA and was arrested under the Counter-Terrorism Act and detained for 14 days without charge under the criminal procedure statute of the country. In the absence of any precise definition of the term act of terrorist nature the Polish authorities relied on the related legislations that states any person in private contact with a member if a Polish intelligence agency shall be said to have been involved in an act of terrorist nature. Further, after the completion of the 14 days detention, the government applied for continued detention and the interior Minister permitted 3 months detention as Hamza was deemed to pose a threat to the national security of the country. General principles The ECtHR is not bound by the opinion of the domestic authorities while determining the deprivation of liberty, thus, violating Article 5 of the Convention[2]. Although the domestic government stated that there is evidence Hamza had accessed an online forum for discussing about the Syrian conflict, the ECtHR shall not consider the detention of Hamza and instead would conduct an autonomous assessment of the circumstances of the case. The court shall consider the duration and the manner of deprivation of liberty that has been raised by the applicant. In Fox, Campbell and Hartley v The United Kingdom [1990], the applicants were arrested for being suspected of being a terrorist and were detained for 72 hours. The court held that there was a violation of Article 5 as the evidence based on which the detention was made was not sufficient to establish reasonable suspicion for the arrests. Article 7 The penal detention of the applicant contravenes Article 7(1) of the Convention, which prohibits the State authorities from imposing heavier penalties that was imposed after the applicant was convicted[3]. In the given circumstances, since the applicant was not convicted of an offence, the detention cannot be said to have followed conviction. The court may take into consideration the detention procedure to determine whether the detention was lawful and qualified for penalty. Right to fair trial According to Article 6 of the Convention, every person is entitled to a fair and public hearing within a reasonable time by an independent judge or any tribunal established by law. Article 6(2) states that every person who is charged with criminal offense shall be deemed to be innocent until the person is proved guilty. Article 6 (3) (a) of the Convention states that every person who is charged with a criminal offense has a right to be informed about the nature and cause of the accusation against him without any delay. Article 6 (3) (d) of the Convention entitles persons who are charged with criminal offense to examine the witnesses against him and to obtain examination and attendance of the witnesses on his behalf under the same conditions as witnesses against the person charged with criminal offense. In the given scenario, the applicant Jaroslaw pleaded before the regional court to seek unconditional release from his duty of secrecy to be able to communicate with his lawyers and prepare his defense[4]. He further pleaded before the court to provide him with the internal ISA report based on which he was charged and the documents that had been leaked as both these documents were missing from the file. However, the court refused to provide the applicant with the documents on the ground that as per the Internal Security and Foreign Intelligence Agency Act the release of such documents shall harm the national interests or security. The court released the applicant on conditions that the applicant shall not be able to cross-examine the authors of the statements. This is a clear violation of the Article 6 (3) (d) of the Convention, which entitles that every person who is charged with criminal offense shall examine the witnesses against him and obtain examination and attendance of the witnesses on his behalf under the same conditions as witnesses against the person charged with criminal offense. On the other hand, Hamza was detained for 14 days without being charged and was not presented before the Court within a reasonable time after the arrest which is a clear violation of the Article 6 of the ECHR that requires every person to be brought before any independent judge established by law. However, the Polish government could not find any material evidence against Hamza regarding the fact that he received classified information from Jaroslaw as he was in touch with him[5]. However, the government had evidences that he posed a threat to the national security of the country, hence his detention was extended to 3 months. In Chraidi v Germany [2006], the court held that under exceptional circumstances, the length of the applicants detention is considered reasonable provided the cases are associated with international terrorism. However, in Heaney v McGuinness v Ireland, the court held that if the justification given by the government that the detention of a person was extended as the person posed a threat to the national security of the country, the detention shall be held as violation of the Article 6 of the convention[6]. Failure of the polish authorities to prevent risk of ill-treatment in case of deportation Where a real risk of ill-treatment lies in another state, it is the statutory obligation not to send an individual to that particular state. The government deporting the applicant cannot justify the deportation on the ground that the interest of the public of that nation is at stake and that the deportation is necessary to safeguard the interests of the nationals[7]. The government cannot state that the interests of the public shall be more important than the risk of ill-treatment that the deported person shall be subject to, on his return to such state. The rule shall apply irrespective of the offense or conduct of the person who is subject to the risk of ill-treatment in case of deportation. In Chahal v the United Kingdom [1996], the applicant was deported on the ground that his deportation is in the interest of the nationals. The applicant pleaded that he would be subjected to ill treatment if he is deported to India. The ECtHR held that it would amount to a violation of the Article 3 of the Convention that prohibits human beings from any inhuman and degrading treatment[8]. The enforcement of the deportation order to India amounted to a violation of the article. Further, in Shamayey and Others v Georgia and Russia [2002], the applicant pleaded that he would be subject to ill treatment if he is extradited in Russia and the court held that extradition order would amount to a infringement of article 3 of the convention if such decision was enforced. In the given scenario, the applicants refugee application stated that if he is deported to Russia he would be subject to immediate torture, detainment and potentially extra-judicial execution owing to his relationship with his family members who have been identified as members of the a certain nationalist-Islamist group which is considered as a terrorist organization in Russia. The polish authorities discovered that he was in contact with Jaroslaw and suspected him to have received any classified information; however, the government found no record relating to such information. He was arrested based on the reasonable suspicion of being involved in act of terrorist nature, which is described by the countrys legislation as any foreigner who is in private contact with a member of a Polish Intelligence agency. However, a deportation order was issues against him which expelled him from the country through the expedited deportation process that deports non-citizens who are deemed to be terrorism suspects. After returning to Russia, the Russian authorities arrested Hamza immediately on his return. This establishes a clear violation of Article 3 of the Convention, which states that no pesron shall be subject to any form of torture or any treatment, or punishment that is degrading and inhuman by nature. As discussed in the Chahals case, the applicant would have ben subjected to the risk of ill-treatment if deported to India, hence the deportation order was a violation of the ECHR provisions[9]. Further, the Convention states that no person shall be deported if there is a risk of being subject to inhuman and degrading treatment, without having regard to the type of criminal offence with which the applicant has been charged. The Polish authorities have passed a deportation order against Hamza on the ground that he may pose threat to the interests of the nationals and the national security of the country. However, the ECHR state that when there is a risk of facing inhuman and ill-treatment in the deporting country, the interests of the public shall not amount to any reasonable grou nd to deport the applicant. Hence, the Polish government has violated right to be prevented from inhuman, ill-treatment or degrading treatment on deportation[10]. Violation of Right to respect for Private and Family Life According to Article 8 of the Convention, every person is entitled to respect the family and private life, home and association. The public authorities cannot make any interference in the exercise of this right unless such interference is authorized by law and is necessary to safeguard the interest of the nationals, economic well-being and safety of the citizens living in the democratic society in the country. Further, such interference must be made in order to prevent any form of crime, disorder or to safeguard the protection of the morals or health of the citizens of the country. Law authorizes the interference if it purports to safeguard the rights and freedoms of the citizens of the country. In the case of K2 v The United Kingdom [2017], the applicant was suspected to have been associated with some terrorism-related activities in Somalia and was barred from re-entering the country. The applicant claimed that his right to respect for private and family life has been contravened. He further stated that he could have presented his case, from overseas, but he was afraid of the fact that the Sudanese counter-terrorism authorities could intercept or hinder his communications and cause harm to him[11]. The Court held that although the deprivation of the citizenship of the applicant amounts to violation of Article 8 in some circumstances but issues related to the right to respect for private and family life was not present in the case[12]. Further, the interference of private and family life caused due to the deprivation of citizenship was limited, hence was legal under Article 8 of the Convention. Further, there were evidences that the applicant was involved in terrorism-related activities; hence, there was no violation of Article 8 of the Convention. In Klass and Others v Germany [1979-80], the applicants were five German lawyers who claimed that the legislation of Germany have conferred the authorities with the power to monitor the telephone and other electrical communications without necessitating the authorities to acknowledge the persons who are being subject to such monitoring, about the measures that are taken against such persons. The court held that the right to respect for private and family life of the applicant stipulated under Article 8 of the Convention was not violated. The court based its decisions on the reasons that it is often observed that in the event there lies an threat of terrorism and espionage that is complicated in nature, the legislation of some countries may grant its authorities the power to conduct secret surveillance. However, such secret surveillance shall be undertaken under exceptional circumstances. Such exceptional circumstances include if the surveillance is a necessity to safeguard the interests of the nationals, prevent the national security of the country and prevent any form of disorder or crime[13]. In the given scenario, the ISA was conferred with the powers to undertake the surveillance program under the Counter-Terrorism Act without informing the persons about the fact that their calls, communications and the other electronic devices were subject to surveillance on a 24-hour basis irrespective of the fact whether such person is under investigation[14]. The applicant, Jarslow was being under secret surveillance even before he was subjected to investigation and it was due to this investigation that the ISA and the Polish authorities developed a reasonable suspicion on him about the fact that he has been transferring classified information to third parties. However, they had no material evidence to establish that he was associated with any terrorist related activities even then he was being subject to secret surveillance and was not even informed about the same. Although the fact that the legal authorities did not find any evidence that would indicate that Jarslow was involved in terrorist related activities and subjected him under secret surveillance, does raise the question of infringement of Article 8 of the Convention to certain extent. However, the court cannot completely ignore the fact that it was due to such secret surveillance, that the ISA could discover that Jarslow provided classified copies and information to third parties outside the services. As was held in K2s case, that although the deprivation of citizenship did not violate Article 8 of the applicant as the applicant was found to hve been engaged in terrorism related activities[15]. Similarly, Jarslow was found to have shared information to their parties. Therefore, Jarslows right to respect for private and family life was limited as he was an interpreter and intelligence analyst and possessed sufficient important information about the country. If such documents are leaked, it is obvious that it would pose a threat to the national security and safety of the nationals[16]. Therefore, the court may not consider that Jacobs right to privacy and family life was violated. On the other hand, the other applicant Hamza was also subjected to constant surveillance by the ISA as he was reasonably suspected to have received classified information although no record was founded relating to the same. Hamza was detained under the Counter Terrorism Act but the statute did not provide any definition of act of terrorist but relied on accompanying legislation that considered private contact with a member of a Polish intelligence agency by any foreigner to be ground to arrest such foreigner. This may raise the question of violation of Hamzas right to private life and family under article 8 of the Convention, as they authorities commenced such monitoring on the ground that Hamza may have received some classified information from Jarslow. However, no record was found but he was arrested merely because he was in contact with Jarslow who was a member of Polish Intelligence agency and had accessed to websites discussing about Syrian conflict. However, as was observed in the Klasss case, the court asserted that in case the national government finds that any person poses a threat of terrorism and espionage, the legislations of the country might permit secret monitoring surveillance under exceptional circumstances[17]. Where there is need to prevent crime or disorder and safeguard the safety of the nationals, the legislation shall allow the authorities to monitor electrical communications of the suspected persons in the interest of the nationals of the country[18]. In the given scenario, the polish authorities have valid reasons to undertake secret surveillance. Firstly, Hamzas refugee status stated that he would be ill-treated, if deported in Russia, because of his relationship with his family members who have been recognized to be terrorist organization. Secondly, he had been in private contact via email with Jarslow who is a member of the Polish Intelligence system and was arrested for transferring classified documents to third parties outside the service. This establishes a ground of act of terrorist nature under which he was arrested. Lastly, the Polish government had evidence that the applicant Hamza may have had connections with the Islamic State fighters in Syria, which is evident from the browsing history of the applicant that revealed that Hamza had an access to an online website that prides a platform to discuss about the Syrian conflict. If these findings are taken into consideration, to some extent it gives rise to the exceptional circumstances under which, the legislation of some countries may allow secret surveillance for the safety of the nationals and country. Under such circumstances, the violation of article 8 is limited. Reference list Andenas, Mads, Eirik Bjorge, and Andreas Fllesdal. "National implementation of ECHR Rights."Constituting Europe: the European Court of Human Rights in a National, European, and Global Context(2013). Broberg, Morten, and Niels Fenger. "Preliminary References to the Court of Justice of the EU and the Right to a Fair Trial under Article 6 ECHR."European Law Review41.4 (2016): 599-607. Chahal v the United Kingdom [1996] ECHR 54 Chraidi v Germany [2006] 47 EHRR 47 para 37 D'Ambrosio, Dario Rossi. "The Human Rights of the Other-Law, Philosophy and Complications in the Extra-Territorial Application of the ECHR."SOAS LJ2 (2015): 1. Foldes, Stephan. "Reasons withheld and insufficient reasoning as due process violations: two cases before the ECHR." (2016). Fox, Campbell and Hartley v The United Kingdom [1990] 13 EHRR 157 Galetta, Antonella, and Paul De Hert. "Complementing the surveillance law principles of the ECtHR with its environmental law principles: An integrated technology approach to a human rights framework for surveillance." (2014). Grabenwarter, Christoph. "The European Convention on Human Rights: Inherent Constitutional Tendencies and the Role of the European Court of Human Rights."ELTE LJ(2014): 101. Grange, Mariette, and Izabella Majcher. "When Is Immigration Detention Lawful? The Monitoring Practices of UN Human Rights Mechanisms." (2017). Guild, Elspeth. "Understanding Immigration Detention in the UK and Europe."Immigration Detention, Risk and Human Rights. Springer International Publishing, 2016. 141-155. Heaney v McGuinness v Ireland [2001]ECtHR Herz, Clara, and ?. . "The Impact of the European Convention on Human Rights (ECHR) on Preventive Police Detention as Governed by German Law." (2017). K2 v The United Kingdom [2017] ECHR 238 Klass and Others v Germany [1979-80] 2 EHRR 214 Krebs, Johannes. "The Right to a Fair Trial in the Context of Counter-Terrorism: The use and suppression of sensitive information in Australia and the United Kingdom." (2016). Lavrysen, Laurens. "Protection by the law: the positive obligation to develop a legal framework to adequately protect ECHR rights."Human Rights and Civil Liberties in the 21st Century. Springer Netherlands, 2014. 69-129. Margalit, Alon. "Recent Trends in the Application of Human Rights and Humanitarian Law."Journal of International Humanitarian Legal Studies7.1 (2016): 156-182. Mueller, Tim Nikolas. "Preventive detention as a counter-terrorism instrument in Germany."Crime, Law and Social Change62.3 (2014): 323-335. Shamayey and Others v Georgia and Russia [2002] ECHR Tzanou, Maria. "European Union regulation of transatlantic data transfers and online surveillance."Human Rights Law Review(2017): ngw046. Vrolijk, Marloes Anne. "Immigration Detention and Non-removability Before the European Court of Human Rights."Immigration Detention, Risk and Human Rights. Springer International Publishing, 2016. 47-72. Vuille, Jolle, Luca Lupria, and Franco Taroni. "Scientific evidence and the right to a fair trial under Article 6 ECHR."Law, Probability and Risk16.1 (2017): 55-68. Walder, Alexander. "Surveillance on the Internet: A Comparison of the United States and the European Approaches to Protection and Privacy on the Internet in the Face of Increased Government Monitoring in an Effort to Combat Domestic Terrorism." (2015). Wong, Tom K.Rights, deportation, and detention in the age of immigration control. Stanford University Press, 2015. Andenas, Mads, Eirik Bjorge, and Andreas Fllesdal. "National implementation of ECHR Rights."Constituting Europe: the European Court of Human Rights in a National, European, and Global Context(2013). Lavrysen, Laurens. "Protection by the law: the positive obligation to develop a legal framework to adequately protect ECHR rights."Human Rights and Civil Liberties in the 21st Century. Springer Netherlands, 2014. 69-129. Grabenwarter, Christoph. "The European Convention on Human Rights: Inherent Constitutional Tendencies and the Role of the European Court of Human Rights."ELTE LJ(2014): 101. Herz, Clara, and ?. . "The Impact of the European Convention on Human Rights (ECHR) on Preventive Police Detention as Governed by German Law." (2017). Wong, Tom K.Rights, deportation, and detention in the age of immigration control. Stanford University Press, 2015 Foldes, Stephan. "Reasons withheld and insufficient reasoning as due process violations: two cases before the ECHR." (2016). Galetta, Antonella, and Paul De Hert. "Complementing the surveillance law principles of the ECtHR with its environmental law principles: An integrated technology approach to a human rights framework for surveillance." (2014). Krebs, Johannes. "The Right to a Fair Trial in the Context of Counter-Terrorism: The use and suppression of sensitive information in Australia and the United Kingdom." (2016). D'Ambrosio, Dario Rossi. "The Human Rights of the Other-Law, Philosophy and Complications in the Extra-Territorial Application of the ECHR."SOAS LJ2 (2015): 1. Mueller, Tim Nikolas. "Preventive detention as a counter-terrorism instrument in Germany."Crime, Law and Social Change62.3 (2014): 323-335. Vuille, Jolle, Luca Lupria, and Franco Taroni. "Scientific evidence and the right to a fair trial under Article 6 ECHR."Law, Probability and Risk16.1 (2017): 55-68. Walder, Alexander. "Surveillance on the Internet: A Comparison of the United States and the European Approaches to Protection and Privacy on the Internet in the Face of Increased Government Monitoring in an Effort to Combat Domestic Terrorism." (2015). Margalit, Alon. "Recent Trends in the Application of Human Rights and Humanitarian Law."Journal of International Humanitarian Legal Studies7.1 (2016): 156-182. Tzanou, Maria. "European Union regulation of transatlantic data transfers and online surveillance."Human Rights Law Review(2017): ngw046. Guild, Elspeth. "Understanding Immigration Detention in the UK and Europe."Immigration Detention, Risk and Human Rights. Springer International Publishing, 2016. 141-155. Broberg, Morten, and Niels Fenger. "Preliminary References to the Court of Justice of the EU and the Right to a Fair Trial under Article 6 ECHR."European Law Review41.4 (2016): 599-607. Vrolijk, Marloes Anne. "Immigration Detention and Non-removability Before the European Court of Human Rights."Immigration Detention, Risk and Human Rights. Springer International Publishing, 2016. 47-72. Grange, Mariette, and Izabella Majcher. "When Is Immigration Detention Lawful? The Monitoring Practices of UN Human Rights Mechanisms." (2017).