Article 1 of Additional Protocol No.7 to the ECHR

Interference with the procedural rights safeguarded under Article 1 of Additional Protocol No. 7 to the ECHR occurs in the case in which an injured party is prohibited from or denied the exercise of the aforementioned rights during an appropriate procedure or when he faces complications in this regard. Article 1, paragraph 2 of Additional Protocol No. 7 to the ECHR provides for an exception concerning the obligation to protect procedural rights under paragraph 1, lines (a)-(c) when such an expulsion is necessary in the interests of public order or is grounded on reasons of national security. However, the expulsion shall always follow a lawfully issued decision.²⁰⁵⁹ According to the theory and principle of supremacy of law, in the case of restricting human rights and freedoms,²⁰⁶⁰ a legal basis is always required in order to justify an act of expulsion and the related decision on expulsion must be in accordance with law.

However, it will be considered that Article 1 of Additional Protocol No. 7 to the ECHR is violated if there is no practical way or some other possibility to challenge or review the decision on expulsion.²⁰⁶¹ That possibility was lacking in Case No. CH/02/8679 because the State and Entity Ministries failed to reach an agreement on expulsion of the applicant. Although the Federal Ministry of Interior submitted an initiative to the Ministry of Civil Affairs and Communications to issue such a decision the Ministry of Civil Affairs and Communications never issued it. The Human Rights Chamber refused to accept an argument that the decision on refusal of entry, which also orders the applicants to leave the territory of Bosnia and Herzegovina immediately, could be a substitute or a legal basis for expulsion within the meaning of Article 1 of Additional Protocol No. 7 to the ECHR. Article 34 of the Law on Immigration and Asylum²⁰⁶² prohibits expulsion of aliens to countries in which their life is threatened or where they are in danger of being subjected to torture, inhuman or degrading treatment. No such limitations are provided for with respect to the issuance of decisions on refusal of entry. As a result, if a decision on refusal of entry could substitute for a decision on expulsion, these limitations could be easily circumvented.²⁰⁶³ Even if a decision on refusal of entry into the territory of BiH would be presumably considered as a substitute or a legal basis for expulsion, the acts of the competent FBiH authorities were unlawful for several reasons. Firstly, the decisions on refusal of entry into the territory of BiH were not delivered to the parties participating in the proceedings or they were delivered to them in an unlawful manner (delivery slips submitted to the Human Rights Chamber were allegedly signed by each of the applicants and SFOR as an organ delivering the decisions). In fact, the competent authorities deprived the applicants of their right to appeal since the procedural decisions on expulsion were delivered to them just before they were actually brought out of the country by U.S. forces. Furthermore, the applicants were given the wrong advice that pursuant to the relevant provisions of the Law on Administrative Proceedings the appeal against a procedural decision has no staying effect, although Article 38 of the Law on Immigration and Asylum provides that the submission of an appeal against the procedural decision on refusal of entry to a person residing in the territory of BiH shall stay the execution of that decision. That legal basis was simply passed over in silence. Finally, the expulsion was unlawful because it resulted in a violation of the legally effective interim measure issued by the Human Rights Chamber, whereby the responsible parties were ordered to undertake all necessary steps in preventing the expulsion of applicants from the country.²⁰⁶⁴ Accordingly, the expulsion shall be considered unlawful in the event of disregarding the provisions stipulating a staying effect of a legal remedy.²⁰⁶⁵