Regular procedure

Romania

Country Report: Regular procedure Last updated: 30/04/21

Author

Felicia Nica with support from JRS Romania Visit Website

Regular procedure

 

General (scope, time limits)

The law foresees a 30-day deadline to issue a decision, starting from the moment when the file is handed over to the case officer.[1]

The timeframe of 30 days provided in Article 52(1) of the Asylum Act shall be suspended during:

(a) the Dublin procedure for determining the Member State responsible for examining the asylum application;

(b) the First Country of Asylum procedure;

(c) the Safe Third Country procedure; or, where appropriate,

(d) the European safe third country procedure.

When the reason for suspension no longer exists, the assessment period cannot be less than 20 days.[2]

The 30-day time limit shall be extended successively with further periods of no more than 30 days, and not exceeding 6 months from the lodging of the asylum application in total[3]: if the assessment of the case requires additional documentation, which makes it impossible to carry out the activities necessary to decide on the asylum application or could lead to the non-observance of the guarantees recognised by the law due to causes not imputable to the applicant.

However, if the maximum timeframe of 6 months is exceeded, the applicant should be informed of the delay and shall receive, upon request, information on the reasons of the delay and the time limit for the decision to be taken on his or her application.[4]

The term of 6 months may be extended successively for new cumulative periods, not exceeding 9 months, when:[5]

  • The asylum procedure involves complex elements of fact and/or law;
  • A large number of applications for international protection are lodged, making in practice very difficult to assess the claims within 6 months.

Exceptionally, in duly justified cases, a further extension may be applied for a maximum of 3 months.[6]

In practice, in the Regional Centres for Procedures and Accommodation for Asylum Seekers at Rădăuţi, Galaţi, Timișoara, Şomcuta Mare(Maramureș) and Giurgiuthe 30-day term is respected. In exceptional cases, the 30-day deadline to issue a decision was extended. In Bucharest, according to the JRS representative, the 30-day deadline was not respected in several cases. In the case of a Syrian asylum seeker, the decision was communicated after 2 months. He was not aware of the reasons of the delay, because he could not go to Tudor Gociu Centre, where the asylum applications are assessed, due to the restrictions imposed.

In Rădăuţi, the JRS representative reported that there were cases in which the deadline was extended with 15 days, because 4 case officers had been infected with COVID-19. It was also reported that in the case of an asylum seeker, a Haitian national, who arrived in November 2020, his interview was not held because IGI-DAI could not identify an interpreter of Creole language. In January 2021 the directors had a meeting with him in order to agree on conducting the interview in French. Soon after this he left the centre. Another stakeholder mentioned that in 2020 the decisions were communicated rather swiftly, in 2 weeks.

In Bucharest, according to the JRS representative, in general the first instance decision is communicated within 2-3 weeks, especially when a form of protection is granted. Nevertheless, there were cases in which the 30-day deadline to issue a decision was extended for 10-20 days, in order to assess the country of origin information or the credibility of the asylum seeker.

According to IGI-DAI statistics, in 2020 the average duration of the asylum procedure was 30-60 days in case of regular procedure compared to 50 days in 2018[7] and 3 days in case of accelerated procedure and border procedure[8]. In practice, the average length of the asylum procedure from the moment of lodging the application until the first instance decision is taken, differs from one centre to another as follows:

Average duration of the asylum procedure by Regional Centre: 2020
Regional Centre for Procedures and Accommodation for Asylum Seekers Average duration in days
Timișoara 35
Şomcuta Mare 30
Rădăuţi 30
Galaţi 45-60
Bucharest 45
Giurgiu 30

 

Timișoara: According to the Director of the Regional Centre Timișoara, the average duration of the asylum procedure is 35 days. According to the JRS representative the asylum procedure in the administrative phase was very fast; decisions were communicated also in 15 days. Interviews were held in a shipping container placed in the courtyard of the centre, according to JRS representative.

Bucharest: According to the experience of the JRS representative, the average duration of the asylum procedure is around 30 days. The director of Stolnicu centre stated that the average duration is 45 days. The JRS representative mentioned that in the first semester of 2020 decisions were communicated even before the 30 day deadline, because there were 70-80 asylum seekers in the centre. In March the number of asylum seekers accommodated in Bucharest centre dropped to 40-50 and began to grow in the summer; the highest number registered in 2020 was 260 persons.

 

Galaţi: the procedure lasted longer (1-2 weeks longer) in case of Afghan asylum seekers, because there is no interpreter in Galaţi. Interviews were held through videoconferences.

Şomcuta Mare: the average duration of the asylum procedure in the first instance is 30 days. However, from autumn 2020, due to an increased number of transfers from Timișoara, the duration of the procedure is longer (45 days).

According to CNRR, the average length of the asylum procedure is 30-45 working days from the time the application is handed over to the case officer until the decision is communicated. There are exceptions: in case of absence of the interpreter or where there is a need for an additional interview.[9]

Prioritised examination and fast-track processing

According to the law, priority is given to asylum applications lodged by unaccompanied children.[10] IGI takes, in the shortest time, all the necessary measures for the appointment of a legal representative, which will assist the unaccompanied asylum-seeking child in all stages of the asylum procedure.[11] In practice, IGI-DAI instructs in writing the Directorate-General for Social Assistance and Child Protection to appoint a legal representative for the unaccompanied child, which will assist him or her during the asylum procedure. The notification is sent the next day or in a maximum of 3 days after the application was registered and the unaccompanied child was accommodated in one of the Regional Centres.

In case of vulnerable asylum seekers who are placed in specially designated closed spaces in the Regional Centres (see Detention of Asylum Seekers), the identity check and the assessment of their applications should be done with priority.[12]There have been no reported cases of this situation in practice.

Şomcuta Mare. It was also noted that families with children were not interviewed before single male asylum seekers. The swiftness of the procedure in case of unaccompanied children depends on the availability of the legal representative and interpreter. It was noticed that the length of the procedure for unaccompanied children is the same as the procedure for adults (45 days).

Rădăuţi: The length of the asylum procedure for an unaccompanied child is the same as the procedure for an adult. The assessment of their application depends on the availability of a legal representative. A stakeholder stated that asylum applications made by unaccompanied children were examined with priority before the influx of asylum seekers. Asylum applications of single parent families are not assessed with priority.

Galaţi: The length of the asylum procedure for an unaccompanied child is the same as the procedure for an adult. The assessment of their application depends on the availability of a legal representative and interpreter. The rest of vulnerable groups are assessed in the same way.

Timișoara: According to the JRS representative, asylum applications of unaccompanied children are analysed with priority. However, the procedure lasts longer than the procedure of an adult with 15-20 days. Even though IGI-DAI takes all the necessary measures with priority – in a maximum of 3 days after the unaccompanied child has been accommodated in the centre – and the legal representative is assigned in 2-3 weeks. According to the director of the Regional Centre Timişoara, the asylum procedure of unaccompanied children may be delayed due to the bureaucratic procedures carried out by DGASPC.

Giurgiu: According to the JRS representative, the asylum applications of minors and very ill persons were prioritised. The director of Giurgiu stated that they prioritise the applications of minors and vulnerable persons.

Bucharest: According to the JRS representative, efforts were made to prioritise the asylum applications of unaccompanied minors and in general they were assessed with priority. However, even in their cases, there were numerous delays caused by the lack of interpreters. In the end the length of the procedure is the same as for an adult. Vulnerable persons are not treated with priority. Nevertheless, according to the director of Stolnicu applications made by asylum seekers coming from countries where there is no armed conflict or concerns linked to persecution were analysed with priority.

According to Save the Children Romania, the examination of the asylum application of an unaccompanied minor is prioritised but in terms of length is the same as for an adult.

CNRR stated that the asylum applications of vulnerable persons are examined with priority.

According to IGI-DAI, in comparison with the previous years when no asylum claim was prioritised under Article 31(7) of the recast Asylum Procedures Directive, in 2019, 189 asylum requests made by unaccompanied minors were prioritised.[13]

In 2020, IGI-DAI issued 225 decisions in cases of applications made by unaccompanied children.[14]

 

Personal interview

 

According to the law, an interview is conducted in order to assess the elements of an application for international protection.[15] Although the general rule is that an interview should be held in order to correctly assess the asylum claim, there are two situations where the interview is not mandatory:[16]

  • When IGI-DAI may take a decision to grant refugee status on the basis of evidence in the file;
  • When there are serious doubts about the capacity of the adult asylum seeker.

All personal interviews, assessments of the reasons invoked by the asylum seeker and decisions are conducted by a designated case officer of IGI-DAI.[17]

IGI-DAI reported that they have no statistics for 2020 regarding the number of interviews conducted, nor on the number of asylum applications assessed without an interview.[18]

Special measures imposed during the pandemic

 

According to IGI-DAI, interviews, including preliminary interviews were conducted in the designated spaces for these activities. If the asylum seeker was isolated/ quarantined the interview was held afterwards. In addition, hygienic-sanitary measures were taken (masks, gloves, plexiglass panels, social distancing).

Interviews were not postponed or suspended during neither the state of emergency nor the state of alert.

In Bucharest, during the state of emergency, asylum seekers were transported by IGI-DAI from Stolnicu centre to Tudor Gociu centre, were the interviews are conducted. According to the director of Timișoara centre, asylum seekers received masks from IGI-DAI and from NGOs.

According to the JRS representative in Timișoara, during the state of emergency interviews were held in shipping containers installed in the centre’s courtyard.

Interpretation

Article 45(2) of the Asylum Act sets out the rules regarding the right to have an interpreter during the personal interview. At the request of the applicant and when deemed necessary for presenting all the reasons for the asylum application, the interview shall be carried out by the case officer, with the support of an interpreter, in the language indicated by the applicant or in a language he or she understands and can communicate clearly. As far as possible, if the applicant requests it, both the case officer and the interpreter will be of the same gender as the interviewee.[19]

 

Availability of interpreters and double interpretation

In the Regional Centres of Galaţi, Timișoara and Rădăuţi, Giurgiu it has been reported that there are not enough interpreters available for the main nationalities of asylum seekers:

 

Galaţi: There are only one Urdu and few Arabic interpreters. There is no interpreter of Dhari and Farsi. Their services are used by IGI-DAI and by the courts. As a consequence, quality control of their interpretation services is impossible to carry out. In one case, the procedure was delayed because the asylum seeker spoke a dialect and the authorities could not find an interpreter. Double interpretation was not used in 2020. Due to the lack of interpreters at the preliminary interviews with Afghani asylum seekers, IGI-DAI used asylum seekers, who were speaking their mother tongue and English language.

Rădăuţi: IGI-DAI frequently uses the same three interpreters – one for Arabic, one for Farsi / Dari / Urdu and one for Bengali. It was noted that the Bengali interpreter had no experience in interpretation in asylum cases or good command of Romanian. The Ombudsman noted that the low remuneration for interpreters, 23 RON/ €4.8/hour, is one reason for the low number of interpreters contracted by IGI-DAI.[20] The JRS representative reported that the number of interpreters in Rădăuţi is very low for such a high number of asylum seekers. The Farsi interpreter is also used in Timișoara and Galaţi.

Timișoara: The director of the Regional Centre Timișoara mentioned that they have interpreters for all languages and when they have no interpreter they conduct the interview through videoconference. JRS representative stated that double interpretation was not used in 2020.

Giurgiu: There is still a lack of interpreters, especially for Kurdish, Turkish, Farsi and Pashto, according to the director of the centre. According to the director the double interpretation was not used in 2020.

Bucharest: According to the director of Stolnicu there are interpreters for all the languages. The JRS representative stated that, as far as they are aware, double interpretation was not used. According to the director of Stolnicu centre double interpretation was used, but rarely, from Tamil to English and English to Romanian.

In Rădăuţi, as it was reported in 2019, in 2020 IGI-DAI still uses double interpretation from Kurdish to Arabic and from Arabic to Romanian. The interpreter for Arabic is not qualified and the interpreter for Kurdish was an asylum seeker himself that later obtained protection.

This aspect was also brought to the attention of the court in the appeal lodged against a negative decision taken through the accelerated procedure by IGI-DAI, which acknowledged the reluctance of the applicant to share his whole story because of the presence of a Kurdish interpreter who also lived in the Regional Centre of Rădăuţi. The applicant also criticised the fact that the Kurdish interpreter only graduated from Primary School and has no formal training in this field. The Regional Court Rădăuţi dismissed the appeal without even assessing the applicant’s claims regarding the double interpretation.[21]

Şomcuta Mare: The Regional Centre collaborates with the same interpreters as last year, of the following languages: Farsi, Dari, Arabic, English and French. There is no Somali interpreter. Double interpretation was used during 2020.

Stakeholders interviewed also reported that there are a limited number of female interpreters in the asylum procedure. For example, in the Regional Centre of Galaţi, there is a female interpreter for Arabic, English, French, Russian and Ukrainian, Turkish. In Giurgiu, there is one female interpreter for English, in Rădăuţi there is one interpreter for English/French, Ukrainian, in Şomcuta Mare there is a female English interpreter and Timişoara there are female interpreters for Arabic, French, English, Russian, Pashto and Dhari. In Bucharest there are 2-3 female interpreters for Arabic and one for English.

In 2020 the number of female case officers increased in all centres, except in Şomcuta Mare and Rădăuţi were all the case officers are male. In Timișoara there are 3 case officers, out of which 2 are female, according to the director. The JRS representative of Timișoara stated that he was not aware of any female case officers. In Bucharest, there are 4 female case officers out of 6, according to the director of Stolnicu centre. In Giurgiu and Galaţi there is one female case officer.

All the stakeholders interviewed stated that asylum seekers may request an interpreter or case officer to be of specific gender, but in practice this is not possible in most of the cases, due to the lack of interpreters and lack of female case officers in some of the centres.

Quality and conduct

A number of problems regarding the quality of the interpretation and conduct of interpreters has been reported. Interpreters are not sufficiently trained and, therefore, they are not impartial.
Related problems were also pointed out:

  • Some interpreters do not refrain from making comments,they express doubt about the asylum seekers’ declarations; e.g. “I was there, there are no Taliban”, “I know better”;
  • Some interpreters have private conversations with the asylum seeker and do not translate the conversation, or they express emotions;
  • Asylum seekers complained about an interpreter, who made comments during the personal interview like: “more briefly, I do not have all day at your disposal”, he selected the documents that the asylum seeker should present at IGI-DAI, and translated only a summary of what is written on the page and not the whole interview (question and answer).Even though the asylum seekers wanted to be assisted by the legal counsellor during the interview, the interpreter told them that “the presence of the legal counsellor is not necessary because you will be granted a form of protection anyway”.

In Timişoara, the JRS representative stated the asylum seekers had not reported any issues regarding the quality and conduct of interpreters. An attorney interviewed mentioned that the interpreters are not translating accurately and usually they do a summary of the declarations. The attorney further pointed out that only 1 of the interpreters with whom he interacted is dedicated and fulfils his duties with professionalism.

According to an attorney, many asylum seekers complained that the interpreters are not accurately translating the declarations made during the interview. For example, although they told their story in several phrases, the interpreter translated everything only in one sentence. Small mistakes were noticed in the transcripts, but these small details can be essential for the outcome of the decision in their cases.

In Şomcuta Mare, it was reported that interpreters are not professionally trained on asylum issues. It was also noted that asylum seekers complain about the quality of interpretation during the interview and also at the court. It was also reported, that for a Kurdish asylum seeker an interpreter of Arabic language was assigned by IGI-DAI; during the court proceedings a Kurdish interpreter was granted.   A family from Iran complained that the interpreter translated something that they did not declare at the interview. It was noted that asylum seekers are complaining about the content of the interview after their asylum claim was rejected.

 

Rădăuţi: asylum seekers complain about the quality of the double interpretation; that their declarations were not relayed exactly or coherently. It was also reported that the Arabic translator is not relaying the exact message. It was reported that 6 asylum seekers, Somali nationals, had their interviews during the same weekend. The interviews were held during the weekend because the interpreter travelled to Rădăuţi from another county. They were dissatisfied with the interpreter, because he interfered with the manner in which the asylum seekers were telling their story. They also complained about the fact that the interviews were very similar. All of them were assessed in accelerated procedure.

 

Bucharest: There are problems with interpretations for rare languages, for Bengali language, for example, there are only two interpreters and one of them does not have a good command of Romanian language and sometimes he translates only with “yes” or “no” an obvious longer answer of the asylum seeker. The case officer has to insist in order for the interpreter to relay the exact answer of the asylum seeker. For Tigrinya language, there is only one interpreter who is rarely available for interviews. It was also reported that the Bengali interpreter was rephrasing or changing the meaning of the message. Another asylum seeker stated that the interpreter did not relay the exact message.

A detainee, an Iranian national, interviewed by the author during the visit in Otopeni centre, who previously was an asylum seeker in Bucharest, declared that at the interview he had an Afghani interpreter. At the end of the interview he was given the transcript in order to sign it, without being read aloud by the interpreter. He noticed after translating the transcript that the interpreter had not accurately translated his declarations. At the court he had an Iranian interpreter.

Giurgiu: In 2020, interpreters refused to be physicaly present at the interviews, thus interviews were conducted through videoconference.

In relation to the problems with the quality of interpretation and conduct of interpreters, CNRR stated that in general there were no issues reported, even though interviews were conducted through videoconference.[22]

It was noted that only CNRR and ICAR Foundation have funds for the services provided by interpreters. In addition, UNHCR funding may be extended to cover interpreter fees, in certain situations.

All the stakeholders interviewed by the author have declared that they have never heard about a Code of Conduct for interpreters in the asylum procedure, except one legal counsellor who stated that when JRS signs a contract with an interpreter they also have to sign a Code of Conduct. CNRR, on the other hand, stated that the Code of Conduct is applied in practice and provides elements such as the rights and obligations of the interpreter, the position and attitude during the personal interview and counselling sessions, the importance of using correct terminology, the impartiality and confidentiality concerning the information the interpreter comes into contact with. This Code of Conduct was transmitted to IGI-DAI by CNRR and they believe it is applied by IGI-DAI.[23]

Recording

The law does not prescribe audio/video recording of the personal interview. Personal interviews and preliminary interviews are not audio/video recorded.

Court sessions are recorded according to the Civil Procedure Code.[24] The rules concerning the recording of court hearings are set out in Article 13 of Act 304/2004 on Judicial Organisation, which provides that:

  1. The court hearings are recorded by video or audio technical means or recorded by stenography. Recordings or transcripts are immediately transcribed;
  2. The clerk or the stenographer shall record all the affirmations, questions and submissions of those present, including the president of the court panel;
  3. Upon request, the parties may receive a copy of the transcript of the Registrars, minutes or notes of the Registrar.

In 2020, interviews were conducted through videoconferencing in all regional centres. IGI-DAI has no statistics on how many interviews were conducted this way.[25]

Şomcuta Mare: According to the JRS representative interviews were held through videoconference for 3 asylum seekers from Tibet. During this interview the double interpretation was used from Tibetan to English and from English to Romanian.

Timișoara: JRS was not aware of any interviews being conducted through videoconferencing. However, the director of the Regional Centre Timișoara stated that several interviews were conducted through videoconferencing due to the lack of interpreters. They conducted interviews through this method with Pashto, Somali, and Urdu interpreters from Bucharest, Rădăuţi and Giurgiu. The director of Arad public custody centre reported that at the start of the pandemic interviews with asylum seekers who made an application in detention were conducted through videoconference.

 

Galaţi: According to the JRS representative, IGI-DAI conducted interviews through videoconferencing with interpreters from other regional centres, in cases of asylum seekers who spoke Pashto, Farsi and Dari. Asylum seekers did not complain about the interviews conducted this way.

 

Rădăuţi: This year interviews were conducted through videoconferencing for Somali asylum seekers. It was reported that the sound during the videoconference is not so good, but in the end the participants could understand each other. In 2020, in around 10 applications the interview was conducted with an interpreter from Rădăuţi, but with a case officer from Galaţi. The asylum seekers received the transcript after 3 weeks. In one of these cases a second interview was held in Rădăuţi, because in the first interview it is not mentioned that the applicant has a child. In both interviews the double interpretation was used.

 

Giurgiu: Videoconferencing was also used to conduct interviews. According to the director of Giurgiu 73 interviews were held through videoconference. The JRS representative reported that there are technical problems and communication issues with the interpreter.

Bucharest: As far as the JRS representative was aware no interviews were conducted through videoconference. Conversely the director of Stolnicu centre mentioned that videoconference was used whenever there was no interpreter available or in cases of asylum application made from detention centres.

 

Transcript

The case officer conducting the interview transcribes the questions and the answers/statements verbatim. The transcript includes at least the following data: identification data of the applicant, the name of the case officer who performs the interview, the name of the interpreter and, as the case may be, of the legal representative, the counsellor and/or the lawyer assisting the applicant, the language of the interview, the reasons for the request for international protection, as well as the applicant’s statement that all the data and information presented at the interview are correct. Where appropriate, the interview note shall also include the applicant’s explanations of the failure to present elements to be considered when examining the asylum application and/or clarification of inconsistencies or contradictions in his or her statements.[26]

At the end of the interview, the transcript of the interview is orally translated by the interpreter to the applicant.[27] The applicant has the possibility to formulate observations and/or to offer clarifications relating to any errors of translation or misunderstanding, which will be recorded in the interview transcript.[28] After this, the transcript is signed on every page by all the persons present at the interview.[29] A copy of the transcript is given to the asylum seeker or legal representative, his or her lawyer or counsellor, as the case may be, which assisted him or her at the interview, after the document was signed.[30] If the applicant refuses to sign the transcript, the reasons for his or her refusal will be mentioned on the transcript. The applicant’s refusal to sign the transcript does not prevent IGI-DAI from taking a decision on the asylum application.[31]

In Timișoara, asylum seekers complained that they are not notified in advance of the date of the interview. According to the JRS representative, the officers are waking them up on the day of the interview or they are not allowed to leave the accommodation centre in the morning, or they are informed about the interview the day before. The latter is not applied often because IGI-DAI is afraid that the asylum seekers might leave. Furthermore, the information on the practice was corroborated by an attorney who stated that some asylum seekers mentioned that they are woken up at 7 AM and taken to the interview. It was also reported by one of the attorneys that at the end of the interview, the transcript is not fully translated by the interpreter; the interpreter only informs the asylum seekers that they have to sign the transcript as it includes all of their statements. According to the director of Regional Centre Timișoara, asylum seekers are notified about the date of the interview in writing in their language or in English or at the preliminary interview when the interpreter is available. According to JRS representative, in 2020 there were no cases of asylum seekers complaining about the translation of the transcripts. It was also noted by the JRS representative that not all the interpreters are reading the transcript at the end of the interview for the asylum seeker. Furthermore, it was mentioned that the translation of the transcript is at the discretion of the case officer.

In Galaţi, there have been cases of asylum seekers complaining about the quality of the interpretation and the transcript. Asylum seekers complain also about the fact that the interpreter did not relay everything, aspects that they mentioned were omitted by the interpreter and that the transcript is not translated at the end of the interview.

In Giurgiu, it was reported that in practice the transcript is not read at the end of the interview. Asylum seekers may formulate objections and make additional notes, which would be subsequently inserted in the transcript, however this is not a common practice.

In Şomcuta Mare, the legal counsellor is not aware if the transcript is translated at the end of the interview.

In Rădăuţi, it was reported by the JRS representative that for a period of time, at the end of the interview, the case officer was reading the transcript from his computer, the interpreter was translating only after the transcript was printed out and signed by the asylum seeker. This was the practice only when NGO representatives were not attending the interviews.

 

In Bucharest, it was reported by the JRS representative that the interpreter reads the transcript and the asylum seeker is asked if he has any objections; objections are subsequently added in the transcript.

If necessary, the case officer may conduct another interview with the asylum seeker.[32]

Appeal

The decision taken (admission or rejection) by IGI-DAI is communicated, immediately, to the asylum seeker in writing, through direct communication by the representatives of the IGI-DAI if the asylum seeker lives in the Centre, or by post at the last declared residence of the applicant.[33] The decision may be communicated to the lawyer or NGO representative representing the asylum seeker, if the asylum seeker has expressly requested this.[34]

The decision is accompanied by written information, in Romanian and in a language that the applicant understands or is reasonably supposed to understand, related to the admission or rejection of the asylum application and the conditions under which the decision may be appealed, as the case may be.[35] In practice, the justification of the decision is written in Romanian and is translated by the NGO representatives.

The decision taken by IGI-DAI may be challenged in a two-instance judicial review procedure.

Appeal before the Regional Court

The Regional Court (JudecătoriaSecţiaCivilă) has jurisdiction in asylum cases, as the first-instance judicial review. The Regional Court is made up of a single judge. The judges are not specialised in asylum law. At most they have participated at national conferences organised by NGOs or UNHCR.

The appeals, as well as the other procedural acts regarding the resolution of the appeal, are exempt from legal taxes and legal expenses cannot be demanded.[36]

In 2020, a total of 1,038 appeals against IGI-DAI decisions were filed before the Regional Courts.[37] According to the information provided by the Regional Courts the number of appeals in 2020 was 1,050.

Appeals registered by Regional Courts: 2020
Regional Court Number of appeals
Bucharest (District 4) 378
Galaţi 111
Baia-Mare 151
Giurgiu 120
Rădăuţi 78
Timișoara 212
Total 1,050

Source: Regional Courts

Time limits

The deadline for lodging an appeal is 10 days from the day the decision was communicated.[38] The appeal has automatic suspensive effect, if it was lodged within the term prescribed by law.[39]

The law contains a procedural safeguard in case of appeals lodged after the time limit set out bylaw.[40] Therefore, in case of filing the appeal or onward appeal after the deadline, the applicant may request the suspension of the execution of the return decision. The request for suspension shall be settled within 7 days from its registration, by the competent court, which shall pronounce the decision in the council chamber, without the parties being summoned, by an irrevocable decision.[41]While this review is pending, the foreigner cannot be removed from the country.[42]

If the court admits the request to suspend the execution of the removal decision, the foreigner has the right to remain in the country pending the outcome of the request for reinstatement of the legal term to appeal.[43] The foreigner will benefit from all the rights provided by Articles 17 and 18 of the Asylum Act from the moment the court admits the request for reinstatement of the legal term to appeal.[44]

The appeal has to be motivated in fact and in law.[45] It may be lodged at IGI-DAI, which has issued the decision or directly to the competent court.[46] The appeal has to be accompanied by a copy of the IGI-DAI decision and other documents or elements on which the appeal is based.[47] The court carries out an assessment of both points of facts and law. The decision of the first instance court incorporates the reasons in fact and law on which it is based.[48]

In general, there are no problems in appealing a decision, if asylum seekers consult the legal counsellor of an NGO.[49] In Bucharest, when communicating the decision, IGI-DAI also provides the asylum seeker with the postal address of the Romanian National Council for Refugees (CNRR) in English. Asylum seekers are told by the representative of IGI-DAI who communicates the decision, that they have to go to CNRR for legal counselling and assistance for lodging an appeal. This practice is in place since 2017. The JRS representative reported that sometimes this information is communicated to the asylum seeker, taking into account that CNRR has an office in Tudor Gociu Centre. Nevertheless, there were cases in which the rejected asylum seekers did not know who to turn to for the drafting the appeal against the decision of IGI-DAI.

Article 62 of the Asylum Act provides that asylum cases should be dealt with priority before other civil matters.[50] The court should take a decision on the appeal within 30 days.[51] The court has to motivate its decision within 5 days since it was pronounced.[52]

Special measures imposed during the pandemic

 

According to the information provided by the regional courts, some of them suspended the court hearings during the state of emergency, while others did not. In Regional Court District 4 Bucharest the court hearings were not suspended and the court hearings were held through videoconference, according to the court.[53] Conversely, the director of Stolnicu centre reported that the court hearings were suspended. He stated that court hearings were conducted online and priority was given to asylum applications assessed in accelerated procedure. The videoconference system is in place in Tudor Gociu centre. According to a lawyer from the Bucharest Bar Association, the court hearings were organised as follows: the asylum seeker, his or her lawyer, interpreter and IGI-DAI’s legal counsellor were present in Tudor Gociu and the judge and clerk in the court. She also mentioned that when these court hearings were taking place the courtyard of the centre was full of lawyers and their clients and social distancing was not respected.

According to the JRS representative court hearings were only suspended for asylum applications assessed in regular procedure, there were cases which lasted 4-5 months in the appeal procedure. Court proceedings for asylum claims assessed in accelerated procedure were held online. This was also echoed by an attorney. The attorney further mentioned that for a period of time the court hearings in asylum cases were all suspended, but they were resumed after IGI-DAI’s requests.

Regional Courts Rădăuţi[54] and Baia-Mare[55] stated that the court hearings were not suspended during the state of emergency. However, other stakeholders interviewed by the author reported the contrary.

Regional Court of Galaţi suspended the court hearings during the state of emergency (16 March-3 May 2020).[56] Regional Court of Giurgiu also suspended the court hearing during the state of emergency.[57]

At Regional Court Timișoara, during the state of emergency, only appeals in the accelerated procedure and subsequent applications were examined by the court, the appeals in regular procedure were suspended.[58]

At the same time, in order to prevent the spread of coronavirus the courts take all necessary measures such as: mandatory masks, hand sanitizers, ventilation of court rooms at short intervals, social distancing.

IGI-DAI statistics refer to 1 to 2 months average duration of the appeal procedure.[59]In practice, the average processing time for the first instance judicial court defers from county to county, as follows:

Average duration of the appeal procedure by Regional Court: 2020
Regional Court Number of days
Bucharest (District 4) 96,1
Galaţi 30-45
Baia-Mare 18,76
Giurgiu 30
Rădăuţi 67
Timișoara 65

Source: Regional Courts

Şomcuta Mare: The JRS representative reported that the duration of the appeal procedure differs from case to case. There were cases where the appeal procedure lasted maximum 30 days, if the interpreter and the lawyers were present and the asylum seeker could be heard. In cases where there is no lawyer appointed or the interpreter is not present, the court hearings are postponed, and the appeal can last 3-4 months. The JRS representative noted that court hearings were suspended during the state of emergency.

Galaţi: According to the legal counsellor the average duration of the appeal procedure is around 90 days. However, if there is an interpreter the procedure may be finalised at the first hearing. In general, the appeal procedure has 2 court hearings at 2 weeks or 1 month apart. Court hearings were held through videoconference with interpreters of Dari or Pasto from other cities (Bucharest, Suceava).

Rădăuţi: the legal counsellor noted that the appeal procedure lasted 30-45 days. According to the legal counsellor, the length of the procedure depends on the judge; there are some judges that are not postponing the hearing for any reason. The court hearings were suspended during the state of emergency. According to JRS representative’s experience the average duration of the appeal procedure is around 2-3 months, in some cases shorter. It was reported that there were some delays in reasoning the decisions of the regional court. For example a family with children is waiting for the reasoned decision for 2 months.

CNRR reported that the appeal in accelerated procedures is finalized within maximum 30 days since the asylum application was made. In the regular procedure there are maximum 2 court hearings; more hearings may be granted in case there is no interpreter.[60]

Timișoara: According to a lawyer, the average duration of the appeal procedure is around 75 days. Judges generally grant short terms of up to 2 weeks. It has often happened that the postponements are due to the absence of interpreters. On average there are about 2-3 court hearings for a case.

At times, during the state of emergency court hearings were held through videoconference, the asylum seeker, interpreter and legal counsellor of IGI-DAI are in the centre and the judge in the courtroom.

CNRR reported that in Timișoara, the average duration of the appeal is between 1-3 months. It was also added that in the last months the majority of asylum claims were assessed in accelerated procedure and the average duration of the appeal was 3 weeks-1 month.[61]

As CNRR pointed out in Timișoara the majority of cases examined by the court were in accelerated procedure. Regional Court Timișoara reported that out of the 138 cases in accelerated procedure, 130 were assessed in 1 court hearing. The length of the appeal procedure was 33,2 days. Under the regular procedure, 48 files were examined by the court; for which the duration of the appeal procedure was 65 days (54 until the decision is given and 11 for reasoning the decision). Out of the total appeals in the regular procedure 23 were examined in only 1 court hearing.[62]

Bucharest: the average duration of appeal procedure is around 2-4 months, according to the director of Stolnicu centre. According the JRS representative the average duration is around 3 months, but there were also cases that lasted for 4-5 months. An attorney reported that in 2020 the duration of the appeal proceedings lasted around 1 year from the moment the appeal was lodged until the decision was reasoned.

Giurgiu: according to the director of the centre the appeal procedure last around 60 days. This was also echoed by the JRS representative, who also stated that due to the pandemic there were certain delays of 1-2 weeks.

Hearing

 

The law establishes that the court may order the hearing of the asylum seeker when it considers that it is useful to settle the case.[63]

In Regional Court Galaţi, always hear the asylum seeker ex officio. In some cases the judge asks the applicant if he or she has something to add; in others the judge may ask questions. However, it was reported that in one case the asylum seeker requested the judge of the Regional Court of Galaţi to be heard, but the judge said it was not necessary if he did not have anything new to add. In Baia-Mare, on the other hand, there is an actual hearing.

In Regional Court Baia Mare, asylum seekers are not always heard, according to JRS representative

In Giurgiu it was reported that asylum seekers are heard at the request of their attorney or ex officio. As regards the actual hearing of the applicant, some of the judges ask the applicants if they have anything else to add, others allow the applicants to recount their stories again in a few minutes.

In the Regional Court of Timișoara, the hearing of the asylum seeker is requested either by the lawyer. A lawyer reported that judges do not hear the asylum seekers ex officio, with the exception of one judge who hears the asylum seekers in certain cases.

In Rădăuţi, asylum seekers are heard if this is specially requested in the appeal. There is no ex officio hearing. Some of the hearings consist in asking the asylum seeker if he has something to add, while in other cases all the parties ask questions and, only in few cases, asylum seekers have the opportunity to give full statements.

In the Regional Court of Bucharest District 4, the practice witnessed in 2017 of the asylum seekers not been heard in most of the cases, changed in 2018 when some of the judges started hearing the asylum seekers ex officio. However, the hearing consists in asking the asylum seeker if he has something else to add or to clarify contradictory aspects. A lawyer reported that in 2018 some of the judges started to exercise an active role, asking questions to the asylum seeker. This was still the case in 2020.

According to a lawyer, the hearing of the asylum seekers depends on the willingness of the judge to clarify some aspects of the interview or the appeal; some of the judges have additional questions and some of them only ask the applicant if they have something else to declare.

According to a JRS representative asylum seekers are heard at the request of their attorneys.

According to a lawyer, as a general rule the court conducts a hearing with the asylum seeker, albeit a very brief one. The hearing of the asylum seeker is usually requested by attorneys with expertise in the asylum field and not by attorneys paid from the legal aid scheme, assisting and representing asylum seekers for the first time and with limited knowledge in asylum law.

Hearings in asylum cases are not public.[64] This is respected in practice in all the courts.

Another improvement noticed by a lawyer in the Regional Court of Bucharest District 4 is that, since October/November 2018, the list of hearings displayed outside the courtroom is anonymised and no longer contains the name of the asylum-seeking appellants. However, during the pandemic, due to the fact that access in the court’s building is restricted, the gendarmerie, which is ensuring the compliance of this measure, has a list with the names of all parties, including asylum seekers.

 

Decision

The Regional Courts took 708 decisions in 2020, according to IGI-DAI.[65] According to the available data provided by the Regional Courts a total number of 861 decisions were issued in 2020.

Decisions by Regional Court: 2020
Regional Court Total Refugee status Subsidiary protection Rejection
Bucharest (District 4) 399 10 9 283
Galaţi 95 1 94
Baia-Mare 127 1 2 124
Giurgiu*
Rădăuţi 46 3 2 41
Timișoara 194 2 1 187
TOTAL 861 17 14 729

Source: Regional Courts

* Regional Court Giurgiu reported that the court has no system in place that registers the decisions of the court based on the given decision.

At the national level, there is a court’s portal available online,[66] but only the asylum cases registered at Regional Court Giurgiu are published on it.

The practice shows that with no support from NGOs or attorneys, it is impossible for the asylum seekers to learn about the decision of the appeal courts. In certain instances even for the NGO representatives and attorneys is a hurdle. This has a direct effect on their access to onward appeal.

The practice regarding the publication of the decisions of the Regional Court varies. Until 2020, the appeals reviewed by the Regional Court of Rădăuţi and Administrative Country Court of Suceava were all published on the national portal. In 2020 no information was published on the portal. Thus, in order to learn the decision of the court, the legal counselor calls the Court’s Registry.

On the other hand, practice has not change at the Regional Court and the Administrative Country Court of Giurgiu, where all the appeals are published and include full names, file number and a summary of the decision.

In addition, some of the decisions of the Regional Courts of Rădăuţi and Giurgiu are published on a website funded by the Supreme Council of Judges and the National Union of Public Notaries of Romania. Some of the names of the applicants are anonymised while others are not.[67]

In2019 asylum seekers could no longer consult the progress and outcome of their cases reviewed by the Regional Court of Baia-Mare and the Tribunal of Maramureș because the files are no longer scanned on the portal of the Court of Appeal, even though the court still communicates a password for the portal. As a consequence, it is now difficult for the asylum seeker and NGO representatives to follow the cases. It was reported that asylum seekers are not informed about their decision. In order to learn about the court proceedings and decisions, the JRS representative is asking IGI-DAI, only if it is aware whether the respective asylum seeker had a court hearing. Onward appeals were not lodged because she was not aware of the court hearings.

In Timișoara, even though the court communicates the password, the case files of asylum seekers are not recorded on the Court of Appeal portal. In the past, a register for all the cases submitted to the court, including asylum cases, was available. The register where the decisions in asylum cases where written was abolished. One of the lawyers stated that in order to know the decision of the court, he calls the public information office of the court. The director of Timișoara centre stated that they receive the decision via email or fax from the court and that asylum seekers learn about the decision from the NGOs.

The decisions of the Regional Court and Administrative Country Court of Galaţi are not published on the national portal. In order to obtain the decisions or to receive other documents from the case file, the interested parties may file a request at the court’s registry and the documents are sent to them via email. The asylum seeker is informed about the decision of the court either by the NGO representatives, who are in contact with the legal department of IGI-DAI.

The decisions of the Regional Court of Bucharest District 4 are neither published on any portal nor written in the registers. The decisions may only be accessed through the court’s archive. The JRS representative mentioned that the decision of the court is communicated by the attorney. According to an attorney, if the asylum seeker is assisted by a paid lawyer, the respective lawyer informs the asylum seeker about the decision of the regional court; the lawyers paid by state legal aid do not keep in touch with them; if the asylum seeker is accommodated in Stolnicu centre he may receive information from the NGOs about how to learn about his decision. In order to find out the decision of the court, the attorney is calling the court’s archive; phone line which is always busy. Physical presence at the court’s archive was restricted due to the pandemic, thus a prior appointment is necessary. A lawyer, member of the Bucharest Bar Association emphasised that during the pandemic it was more difficult to ensure follow up on the asylum cases.

 

Onward appeal

 

Special measures imposed during the pandemic

 

The Administrative County Court Timișoara reported that the onward appeal procedure was only marginally affected during the state of emergency. Thus, a single case was suspended based on Decree 195/2020 for a period of less than 3 months; the respective case was resolved within 6 months.[68]

The Administrative County Court Bucharest stated that during the state of emergency, the trial of the files concerning refugees was suspended according to the Decrees of the President of Romania no. 195/2020 and no. 240/2020, respectively during 16.03.2020-14.05.2020.[69]

The Administrative County Court Suceava reported that in 2 cases, that had court hearings after 23 March 2020, the court rescheduled the hearings and in 1 case that had court hearing during the state of emergency the court suspended the hearing during the state of emergency.[70]

The Administrative County Court Maramureş reported that during the state of emergency the court hearings were suspended in 3 asylum cases.[71]

On the other hand, the Administrative County Court Galaţi and Giurgiu did not suspend the trial in asylum cases.

At the same time, in order to prevent the spread of coronavirus (COVID-19) the administrative county courts take all necessary measures such as: mandatory masks, hand sanitizers, ventilation of court rooms at short intervals, social distancing, measuring the temperature of all visitors and equipping all premises with sanitizers.

Other measures to restrict public movement in court premises / buildings imposed during the state of alert: – limitation of the activities of the court’s information centre to 3 day/week for 2 hours and electronic means; prior appointment required for accessing different departments of the court; recommendation made to parties/ attorneys /legal representatives to file their claims electronically or by post, and use telephone and e-mail to communicate with courts.[72]

IGI-DAI reported that, in 2020, there were 297 onward appeals before the Administrative County Courts.[73] According to the information provided by the Administrative County Courts the number of onward appeals were 257.

Onward appeals by Administrative County Court: 2020
Regional Court Total
Bucharest 109
Galaţi 21
Maramures 33*
Giurgiu 41
Suceava 38
Timișoara 15
TOTAL 257

Source; Administrative County Courts.

* Including 2 cases registered in 2018 and 2019 respectively.

The law prescribes the possibility to appeal the decision of the Regional Court.[74] The competent court is the County Tribunal, Administrative Litigation Section (Administrative County Court), which has jurisdiction over the area of the Regional Court whose decision is appealed.[75] The Administrative County Court is made up of three judges.

The onward appeal has to be lodged within 5 days from the day the Regional Court decision was pronounced and has automatic suspensive effect, if it is lodged in due time.[76]

The average duration of the onward appeal procedure is 2-3 months.[77] In practice, this varies from one court to another:

Average duration of the onward appeal procedure by Administrative County Court: 2020
Administrative County Court Number of days
Bucharest 0-180
Galaţi 60
Maramureș 120
Giurgiu 172
Suceava 115.74
Timișoara 115

Source: Administrative County Courts

The onward appeal does not look at facts, but examines if the appealed decision is compliant with the applicable rules.[78] As a consequence, the onward appeal has to include the grounds for illegality on which the appeal is based.[79] The decision has to be motivated within 10 days from the day it is communicated by the Regional Court.

 

Timișoara: The Administrative County Court added that the duration of the onward appeal varies from 2 months (6 files) to 11 months (1 file). According to a lawyer, the average duration of the onward appeal is 45 days. The court rules after the first court hearing.

According to the director of the Regional Centre Timișoara, the average duration of the onward appeal is 3 months. CNRR reported that the duration of the onward appeal is between 1 and 3 months.[80]

Galaţi: According to a JRS representative the average duration of the onward appeal is maximum 90 days. CNRR stated that the average duration is 45 days.[81]

Giurgiu: according to the JRS representative the average duration of the onward appeal was around 1 month; the pandemic generated 1-2 weeks delays. The director of Giurgiu centre stated that the average duration was 120 days. It was further mentioned by the director that the procedure in asylum cases is too long and that asylum cases are not adjudicated with priority, in comparison with other civil cases.

 

Şomcuta Mare: The Administrative County Court mentioned that out of the total 32 cases examined in 2020 one case was finalised within 18 months since its registration, 7 cases were assessed in 5-8 months, 13 cases in 3-4 months and 11 in 1-2 months. The JRS representative reported that the onward appeal can be finalised in 30-40 days. 1 onward appeal has been pending since 2018. In this case, the court hearings were postponed several times due to the lack of an interpreter. It was emphasized that the asylum seekers are not informed about the courts’ decisions.

Rădăuţi: It was reported that in one case the onward appeal of an asylum seeker, a Somali national, lasted longer due to the lack of interpreters. In the end the court hearing was held through videoconference with an interpreter from Bucharest. It was mentioned that the sound during this videoconference was of poor quality, it was difficult for the parties and even for the judge to understand what the interpreter was saying and interruptions were also reported. JRS representative stated that the average duration of the onward appeal is around 5 months.

CNRR reported that the decision of the regional court might take 2-3 months. After the submission of the reasons for appeal, the case is referred to the administrative county court in 1 month and the case may be finalized after a maximum of 2 court hearings.[82]

Bucharest: According to the JRS representative, the average duration of the onward appeal in 2020 was 180-200 days; according to an attorney was 60 days; the director of Stolnicu mentioned 2-3 months.

One of the lawyers in Bucharest stated that some of the judges of the Regional Court of Bucharest District 4 take up to two or three months to draft and communicate the reasoned decision. This was also envisaged by the JRS representative. However, the director of Stolnicu reported the contrary, that there are no delays in reasoning the decision of the regional court, usually 1 month it is motivated.

The practice observed in Bucharest in 2017 that, in most of the cases lawyers paid by the legal aid scheme did not appeal against the decision of the Regional Court, changed in 2018 and 2019. According to a lawyer who is also the head of the Judicial Assistance Service of the Bucharest Bar Association, lawyers are starting to lodge onward appeals, but they are not aware if they have the mandate to also draft the reasoned appeal in these cases.

On the other hand, CNRR stated that in general, CNRR lodges onward appeals if the asylum seeker presents the decision.[83]

According to the Civil Procedure Code, the attorney who represented or assisted the party during the trial may, even without a mandate, take any act for the preservation of rights subject to a term, which would be lost by failing to do so on time and appeal against the judgment. In these cases, only the party will handle all the procedural documents. The supporting of the appeal can only be based on a new power of attorney.[84]

Therefore, attorneys can appeal the Regional Court decision even without a mandate in this regard, in order to preserve the rights of their client, which are subject to a term and will otherwise be lost by failure to act in time. The provision emphasises that the attorney may also appeal against a judgment without having a mandate. It also mentions that a new power of attorney is needed for representing/ arguing the appeal in the higher court. Therefore, the law makes a difference between declaring/filing an appeal and representing/arguing it.

Decisions

 

According to IGI-DAI, in 2020 280 onwards appeals were finalised and 204 were favourable for IGI-DAI.[85]

Decisions by Administrative County Court: 2020
Regional Court Total Refugee status Subsidiary Protection Admission appeal filed by IGI Dismissed appeal filed by IGI Dismissed as unfounded Appeal annulled Rehearing cases by the first court  
Bucharest 92 2 4 6 10 37 23+ 7 statutory limitation+2 appeal waiver 1  
Galaţi 18 1 1 13 2 1  
Maramures 32* 2 1 1 1 22 3+ 2 statutory limitation  
Giurgiu 31 28 3  
Suceava 34 16 5 6 7 1  
Timișoara 17 2 14 1  
TOTAL 224 3 21 8 19 120 47 6  

Source; Administrative County Courts. Note that 7 decisions were issued for cases registered in 2019.

However, the Administrative County Courts reported a total of 224 decisions issued.

Legal assistance

According to Article 17(1)(e) of the Asylum Act, the asylum seeker has the right to counselling and assistance from a representative of a Romanian or foreign NGO, in any phase of the asylum procedure. The asylum seeker has the right to be given, upon request, legal and procedural information, including information on the first instance procedure, in line with the provisions on public judicial assistance in civil matters, taking into account his or her personal situation.[86]

The law sets out the right of the asylum seeker to be provided, upon request, according to the legislation on public judicial assistance in civil matters and taking into account the personal situation of the foreigner, information on the motivation of the rejection of the asylum application, the procedure for challenging the ordinance through which the measure of placement in a specially closed spaces was taken, as well as the possibility to challenge the decision which granted, reduced or withdraw the material reception conditions.[87]

 

Legal assistance at first instance

There are no restrictions or conditions for accessing legal counselling at first instance.

In the administrative phase of the procedure, free legal counselling and assistance is provided by NGOs through projects funded by the national Asylum, Migration and Integration Fund (AMIF) scheme and UNHCR Romania. The Romanian National Council for Refugees (CNRR) provides specialised legal counselling and assistance to all asylum seekers upon request in the 6 Regional Centres for Accommodation and Procedures for Asylum Seekers, through a project funded by the national Asylum, Migration and Integration Fund (AMIF) programme. CNRR’s legal counsellors have an office in the regional centres where they are available every week day for 8 hours per day.

The Ecumenical Association of Churches from Romania (AIDRom), one of the implementing NGOs, provides legal counselling to asylum seekers accommodated in their two Accommodation Centres, one in Timișoara, operating since August 2012 with a capacity of 15 places and one in Bucharest, working since 2015 with 18 places. They accommodate vulnerable persons, especially single mothers with children. The AIDRom centres in these cities are funded both by AMIF and by external donors. In addition, the legal counsellor of AIDRom also provides legal counselling and assistance in the IGI-DAI of Bucharest (Tudor Gociu).

The Jesuit Refugee Service (JRS), through the project “Border Management and Protection of Asylum-Seekers in Romania”, also provides legal assistance and information in all the Regional Centres, which is complementary to the assistance afforded by CNRR. The project is funded by UNHCR Romania.

The legal counsellors provide information with respect to the rights and obligations, the house rules of the Regional Centre, the asylum procedure and steps to be followed. They also prepare asylum seekers for the personal interview and once the decision was communicated to them, they also explain the decision and the possibility to challenge it. Information and counselling are provided on other matters related to the asylum procedure requested by the asylum seeker. The legal counsellor may assist the asylum seeker during his or her personal interview if he or she requests so.

Under the project funded by UNHCR, JRS may appoint a lawyer if the asylum seeker is a vulnerable or a person of interest for UNHCR or if it is a case that might lead to a practice altering-decision. According to JRS representative from Timișoara, the conditions for receiving funding for lawyers are even tighter. Legal representation by a lawyer under the Legal Aid Act includes representation in the administrative phase of the procedure.[88] According to Article 35 of Legal Aid Act, legal aid may also be extra-judicial and consist in consultations, filing of applications, petitions, referrals, initiation of other related legal steps, as well as representation before public authorities or institutions other than judicial or with jurisdictional powers, with a view to achieving the individual’s legitimate rights or interests. This was confirmed by the National Union of Romanian Bar Associations.[89] However, according to the head of the judicial Assistance Service at the Bucharest Bar Association no legal aid applications for representation in the administrative phase of the procedure were lodged.

In all other cases, the asylum seeker has to pay the lawyer’s fee if he or she wishes to be represented by a lawyer during the personal interview.

Legal assistance in appeals

In court proceedings, legal aid may be provided by NGOs (CNRR and JRS), which have limited funds for legal representation. In 2020, CNRR covered 100 attorney’s fees, from AMIF funds[90] and JRS covered 16 attorney’s fees and 2 cases received pro bono assistance. In addition, if the case of the asylum seeker is not eligible for a lawyer contracted through NGOs, legal counsellors may draft a request for legal state aid.

According to the answer provided by the Regional Court of Giurgiu, out of 120 appeals received by the court in 2020, 42 cases made an application for legal aid, and 10 legal aid applications were rejected.[91] As for the reasons for dismissal of these requests, the court reported that in 7 cases, the applicants had benefited from legal counselling, in 2 cases the applicants had not proved a precarious material situation and in 1 case the court considered that the state legal aid is not mandatory.[92] No reviews of the applications for legal aid were lodged in these rejected cases.[93]

Regional Court Timișoara reported that out of 84 applications for state legal aid, only one was rejected for not fulfilling the legal provisions.[94] Regional Court Rădăuţi stated that the general rule is to appoint a lawyer paid through the state legal aid for the asylum seekers who are submitting such a request.[95] The same was reported by Regional Court District 4 Bucharest.[96] On the other hand in Regional Court Galaţi no such applications were submitted.[97]

According to CNRR, in 2020, there were no cases of rejected legal aid applications.[98]

In most of the cases, asylum seekers turn to legal counsellors for drafting and lodging the appeal against a negative decision of IGI-DAI.NGOs (CNRR and JRS) have funds for attorney’s fees, which can assist asylum seekers in the court proceedings. Therefore, if the representative of the NGO which assisted the asylum seeker examines the case and considers that it is eligible for a lawyer, he or she sends a request using a standard form to their headquarters in Bucharest for the approval and, in case of a positive assessment, the asylum seeker will be assisted by one of the lawyers from the roster of the organisation.

Bucharest: According to a lawyer, who is the head of the Judicial Assistance Service of the Bucharest Bar Association, lawyers paid through the state legal aid scheme are becoming more involved, with some of them requesting guidance from the head of the Judicial Assistance Service. However, only a few lawyers requested an adjournment of the hearing in order to prepare the case. The JRS representative reported that there were cases where lawyers paid through the state legal aid did not show up for court. The asylum seeker only meets his or her lawyer paid through the state legal aid at the court hearing and, as a consequence, they cannot prepare and discuss the details of the case.

In 2020, the Bar Associations in Romania did not organise any training on asylum law for the lawyers inserted in the legal aid register and other interested lawyers.

CNRR reported that they organised trainings for lawyers in 2020.[99]

The legal counsellor in Giurgiu stated that there are certain aspects that can be improved regarding the legal representation through the state legal aid, especially when it comes to communication between the applicant and lawyer appointed ex officio. One of the problems identified is the language barrier. Nonetheless, lawyers paid through the legal aid scheme are not willing to make use of the interpreter, even when one is available. Most of the times, this happened at the first court hearing, when the lawyer meets for the first time the client and the interpreter is also present. Some of the lawyers do not even provide their contact details to their clients. Another aspect that can be improved is that lawyers should request evidence that can substantiate solid arguments before the court.

In Regional Centre of Galaţi, legal representation through the state legal aid scheme is ensured, in general, by lawyers who have participated in seminars and conferences organised by NGOs with whom NGOs are collaborating for a long time. They contact the NGO representatives (CNRR and JRS) to discuss the case with the asylum seekers and to obtain all the documents from their file. The rest of the attorneys paid by the state legal aid do not show interest in the asylum cases, they meet with their clients only at the court hearing. The onward appeal is filed by the legal counsellors from the NGOs.

In Şomcuta Mare, the JRS representative mentioned that she collaborates with 2 lawyers. The asylum seekers do not meet with the lawyer appointed though the state legal aid scheme before the court hearing.

In Timișoara, from a large number of attorneys appointed by the Bar Association through the legal aid scheme, only one or two attorneys are knowledgeable about asylum law, according to the director of the Regional Centre of Timişoara. The rest of the lawyers paid through the legal aid scheme are not specialized or effectively involved, some of them do not even attend the court hearings. According to a lawyer, the lawyers appointed through the state legal aid scheme show lack of interest in the asylum cases and they do not meet with their clients.

In Rădăuţi, the lawyers paid through the state legal aid scheme are not knowledgeable about asylum law. According to JRS representative the attorneys paid through the state legal aid do not contact or discuss with the asylum seekers. It was also reported that attorneys paid through the state legal aid are not making any oral arguments during the court hearing, not discussing with their clients and not lodging the onward appeal.

CNRR reported that the attorneys paid through state legal aid do not rise up to the level of specialized lawyers.[100]

Two different lawyers in Bucharest mentioned that one of the most important aspects that should be considered and addressed by institutions and organisations working with asylum seekers is to ensure continuity of legal assistance through the entire asylum procedure. One of the attorneys stated that there are asylum seekers leaving the Regional Centre and moving into the city who often lose contact with the NGOs. This situation may hinder their asylum procedure since they have no knowledge of the law and, if an attorney paid from the legal aid scheme assists them, there is no certainty that they will file an onward appeal.

This issue still persists in practice. It was reported that the communication between lawyer and client is not facilitated in any way, and no interpreter is involved. There are situations where the lawyers lose contact with the asylum seeker, including due to delays between the lodging of the onward appeal and the communication of the reasoned decision of the Regional Court to the asylum seeker, which can reach two to three months. There are also situations when asylum seekers move out of the Regional Centre and do not know that they have to inform the court of their new address. Hence the decision is communicated at the old address without reaching the asylum seeker and,as a result, the onward appeal is not motivated in the timeframe prescribed by law and ends up being dismissed. Another issue reported by a lawyer is that lawyers do not follow the state of play of the proceedings and as a result they do not keep their clients reasonably informed about their case.

The asylum seekers are not aware that they have to lodge the onward appeal within 5 days from the decision of the court, as they are do not know how to be informed of the decision taken by the Region Court on their case. An attorney from the Bucharest Bar reported that many onward appeals are lodged after the deadline and are dismissed as the Administrative County Court of Bucharest rules that the applicants had access to legal counselling from an NGO.

At the same time, CNRR reported that there were no problems in lodging the onward appeals.[101]

The information provided by the domestic courts shows that in a high number of cases an onward appeal was not lodged. The Regional Court Galaţi reported that out of 95 decisions issued only 21 onward appeals were formulated.[102] In Timișoara in 48 cases registered at the regional court only 15 onward appeals were lodged. In Giurgiu 57 decisions were not appealed.[103] In Şomcuta Mare 93 decisions were not appealed.[104] In Rădăuţi 8 decisions of the regional court were not appealed.[105]

While in 2019[106] IGI-DAI provided statistics with regards to cases in which an onward appeal was not lodged, in 2020, IGI-DAI reported that they have no statistics on this matter.[107]

There are lawyers who are effectively involved in representing their client regardless of the amount of financial compensation, and others who complain about the small amount of their fee. The fee paid through the state legal aid ranges from 130 to 300 RON/ €28 to €66 per judicial instance. Lawyers working with the NGOs are aware of how the funding schemes work in this branch. The low level of remuneration is an obstacle in the sense that it seldom attracts new practitioners to this field. Usually, the lawyers with experience in asylum claims are also specialised in a more financially rewarding field (civil or commercial law), allowing them to continue also with asylum cases.

Since the fees available are part of projects, their level cannot be easily raised or decided based on a sustainable plan. The costs are subject to the evaluation of the team deciding on AMIF funding within the government structures. It often reflects an indicator calculus, which may be quite rigid. Any potential changes in the level of remuneration are subject to the “project echo” effect – from the moment an application and the budget are drafted to the last expense, a large period of time may pass, in some cases, even 2.5 years.

 

 

 

 

[1]          Article 52(1) Asylum Act.

[2]          Article 52(4) Asylum Act.

[3]          Article 52(2) Asylum Act.

[4]          Article 52(3) Asylum Act.

[5]          Article 52(5) Asylum Act.

[6]          Article 52(6) Asylum Act.

[7]          Information provided by IGI-DAI, 5 March 2019.

[8]          Information provided by IGI-DAI, 16 February 2021.

[9]          Information provided by CNRR, 9 December 2019.

[10]         Article 16(1) Asylum Act.

[11]         Article 16(2) Asylum Act.

[12]         Article 19^11 Asylum Act.

[13]         Information provided by IGI-DAI, 20 February 2020.

[14]         Information provided by IGI-DAI, 16 February 2021.

[15]         Article 19^6(2) Asylum Act.

[16]         Article 45(3) Asylum Act.

[17]         Article 48 Asylum Act.

[18]         Information provided by IGI-DAI, 16 February 2021.

[19]         Article 45(2) Asylum Act.

[20]         Ombudsman, Report 46,2019, available in Romanian at: https://bit.ly/3am46vB.

[21]         Regional Court Rădăuţi, Decision 3121/2019, 13 November 2019.

[22]         Information provided by CNRR, 10 February 2021.

[23]         Ibid.

[24]         Article 231(4) Civil Procedure Code: The court will record the court hearings. If the parties are challenging the content of the clerk’s notes, it will be verified and, if necessary, supplemented or rectified based on the records of the court hearing.

[25]         Information provided by IGI-DAI, 16 February 2021.

[26]         Article 45(5) Asylum Act.

[27]         Article 45(7) Asylum Act.

[28]         Article 45(6) Asylum Act.

[29]         Article 45(8) Asylum Act.

[30]         Article 45(9) Asylum Act.

[31]         Article 45(10) Asylum Act.

[32]         Article 45(11) Asylum Act.

[33]         Article 54(1) Asylum Act.

[34]         Article 54(1^1) Asylum Act.

[35]         Article 54(1) Asylum Act.

[36]         Article 65 Asylum Act.

[37]         Information provided by IGI-DAI, 16 February 2021.

[38]         Article 55(1) Asylum Act.

[39]         Article 55(2) Asylum Act.

[40]         Article 69 Asylum Act.

[41]         Article 69(1) Asylum Act.

[42]         Article 69(2) Asylum Act.

[43]         Article 69(3) Asylum Act.

[44]         Article 69(4) Asylum Act.

[45]         Article 57(1)(c) Asylum Act.

[46]         Article 56 Asylum Act.

[47]         Articles 56(1) and 57 Asylum Act.

[48]         Article 425(b) Civil Code.

[49]         Information provided by CNRR, 9 January 2018.

[50]         Article 62(1) Asylum Act.

[51]         Article 64(2) Asylum Act.

[52]         Article 64(3) Asylum Act.

[53]         Information provided by the Regional Court District 4 Bucharest, 21 January 2021.

[54]         Information provided by the Regional Court Rădăuţi, 25 February 2021.

[55]         Information provided by the Regional Court Baia Mare, 19 January 2021

[56]         Information provided by the Regional Court Galaţi, 18 January 2021

[57]         Information provided by the Regional Court Giurgiu, 29 January 2021.

[58]         Information provided by the Regional Court Timișoara, 26 February 2021.

[59]         Information provided by IGI-DAI, 16 February 2021.

[60]         Information provided by CNRR, 10 February 2021.

[61]         Information provided by CNRR, 10 February 2021.

[62]         Information provided by Regional Court Timișoara, 26 February 2021.

[63]         Article 63 Asylum Act.

[64]         Article 58 Asylum Act.

[65]         Information provided by IGI-DAI, 16 February 2021.

[66]         Ministry of Justice, Portalu linstanţelor de judecată, available in Romanian at: http://bit.ly/2hGMVhM.

[67]         Romanian Legal Information Institute (Rolii), available in Romanian at:https://bit.ly/2PKL4Yw.  

[68]         Information provided by the Administrative County Court Timișoara, 19 February 2021.

[69]        Information provided by the Administrative County Court Bucharest, 22 January 2021.

[70]        Information provided by the Administrative County Court Suceava, 20 January 2021.

[71]             Information provided by the Administrative County Court Maramureş, 8 February 2021.

[72]        Information provided by the Administrative County Court Galaţi, 15 January 2021.

[73]        Information provided by IGI-DAI, 16 February 2021.

[74]        Article 66 Asylum Act.

[75]        Article 67 Asylum Act.

[76]         Article 66(2) and (4) Asylum Act.

[77]         Information provided by IGI-DAI, 16 February 2021.

[78]         Article 483(3) Civil Procedure Code.

[79]         Article 486(1)(d) Civil Procedure Code.

[80]         Information provided by CNRR, 10 February 2021.

[81]         Ibid.

[82]         Information provided by CNRR, 10 February 2021.

[83]         Information provided by CNRR, 9 December 2019.

[84]         Article 87(2)(3) Civil Procedure Code.

[85]         Information provided by IGI-DAI, 16 February 2021.

[86]         Article 17(1)(s) Asylum Act.

[87]         Ibid.

[88]         Government Emergency Ordinance 51/2008.

[89]         Information provided by the National Union of Romanian Bar Associations, 8 January 2018.

[90]         Information provided by CNRR, 10 February 2021.

[91]         Information provided by the Regional Court Giurgiu, 29 January 2021.

[92]         Information provided by the Regional Court Giurgiu, 29 January 2021.

[93]         Information provided by the Regional Court Giurgiu, 29 January 2021.

[94]         Information provided by the Regional Court Timișoara, 26 February 2021.

[95]         Information provided by the Regional Court Rădăuţi, 25 February 2021.

[96]         Information provided by the Regional Court District 4 Bucharest, 21 January 2021.

[97]         Information provided by the Regional Court Galaţi, 18 January 2021.

[98]         Information provided by CNRR, 10 February 2021.

[99]         Information provided by CNRR, 10 February 2021.

[100]        Ibid.

[101]        Information provided by CNRR, 10 February 2021.

[102]        Information provided by the Regional Court Galaţi, 18 January 2021.

[103]        Information provided by the Administrative County Court Giurgiu, 25 February 2021

[104]        Information provided by the Administrative County Court Maramures, 5 February 2021.

[105]        Information provided by the Administrative County Court Suceava, 20 January 2021.

[106]        Information provided by IGI-DAI, 20 February 2019- in 58 cases the asylum seekers did not lodge an onward appeal against the decision of the Regional Courts.

[107]        Information provided by IGI-DAI,16 February 2021.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the first report
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation