Author
The Aliens Ordinance provides that foreigners detained in public custody centres have the right to be informed immediately after their arrival in these places, in their language or in a language they understand, of the main reasons for their detention and of the rights and obligations they have during their stay in these centres. These are communicated in writing by the persons designated to manage these centres.[1]
In practice, however, foreigners receive the detention order, in all cases written in Romanian. According to the director of Arad they receive a form with their rights and obligations, where it is also mentioned that they have the right to appeal against the detention order in English. Communication is done only in writing when they arrive in detention and there is no interpreter provided at this stage. According to a lawyer, detainees are not receiving their return decision. The lawyer has to request the decision from the IGI Migration Directorate.
In Otopeni, detainees are informed in writing, in Romanian and English about the reasons for detention, according to the representatives of the centre. They also said that if detainees have questions, whoever is on duty explains more to them upon arrival.
In 2023, CNRR[2] stated they distributed leaflets in English, French, Albanian, Hindu, Urdu and Vietnamese language to foreigners in public custody. The informative material about the public custody procedure was distributed both in the Otopeni and Arad centres. CNRR representatives made monthly monitoring visits at these centres. Foreign nationals in public custody were informed of the reasons why this measure has been taken against them, the legal remedies available to them and their rights. The information was provided by means of leaflets, posters and also through the legal counsellor of CNRR who comes to the centre daily during the week (6h/day). If necessary, the legal information was provided to foreigners with the support of available interpreters. No situations reported from which to result that foreigners were not able to lodge complaints to court against the measure of public custody. The Public Custody Centre in Arad indicated that informative material is available also in Arad, Turkish and Chinese. In 2024, both asylum seekers and foreign nationals in public custody were informed of the reasons why this measure had been taken against them, the legal remedies available to them and their rights. The information was provided by means of leaflets, posters and also through the legal counsellors of CNRR who come to the Otopeni public custody centre daily during the week.[3] If necessary, the legal information was provided to foreigners with the support of available interpreters. No situations reported from which to result that asylum seekers or foreigners were not able to lodge complaints to court against the measure of public custody.[4]
Under Romanian law, only a Prosecutor is competent to order detention. The maximum duration of the initial detention order is 30 days both for public custody and for specially designed closed spaces in Regional Centres.
Foreigners subject to detention can appeal before the territorially competent Court of Appeal within 5 days.[5] The appeal formulated against detention is subject to lighter formalities, as it is exempt from the judicial stamp duty.[6] If the applicant is detained during the Dublin procedure, it does not have a suspensive effect on the detention order or on the determination of the responsible Member State.[7]The Court of Appeal has to examine the appeal within 3 days from the date of receipt, and its decision is final.
In comparison with previous years when only a few appeals were lodged against detention orders, in 2022, the Court of Appeal of Timișoara had registered 23 appeals against detention orders of the Prosecutor’s Office attached to the Court of Appeal of Bucharest. However, 22 appeals were rejected and 1 annulled as judicial taxes were not submitted.[8]
In regard to the small number of complaints, CNRR stated that it could be because most foreigners requested their assistance in order to return to Serbia based on the readmission agreement.[9]
In 2023, the Court of Appeal of Bucharest registered 10 appeals against detention orders; the court delivered 4 decisions to admit the appeals and 6 decisions to reject them. The hearings were held in person in 9 cases and in 1 case online.[10] The Court of Appeal of Timisoara did not provide information for 2023.
In 2024, CNRR reported that they provided legal assistance in submitting 309 appeals against administrative decisions issued by the General Inspectorate for Immigration, as well as 100 second appeals (appeals against the first court decision). There is no systematic follow-up available for all cases; however, it is known that the majority of these appeals were rejected.[11] No additional information on these cases was provided by the General Inspectorate for Immigration.
Concerning the reason for ordering the detention, it was noted by a lawyer that IGI invokes the risk of absconding without even assessing the individual circumstances of each case. The simple fact that the person did not leave Romanian territory voluntarily means there is a risk of absconding. A rejected asylum-seeking unaccompanied minor, who lived for almost one year at DGASPC centre in Bucharest, went to school and even had a job, was placed in detention the day after his 18th birthday, due to the risk of absconding. The same reason was invoked also in the case of a woman accommodated at JRS Bucharest with medical problems. According to the lawyer who filed the appeals, the detention orders were challenged and the decision of the court was positive.
The prolongation of detention is ordered by the territorially competent Court of Appeal, upon a motivated request by IGI, filed at least 5 days before the expiry of the time limit of initial detention. The court must rule before the expiry of the period of prior detention, and its decision is final.[12]
In general, the IGI Migration Directorate requests the extension of detention for an additional period of 5 months to enforce return decisions under escort and the court may grant an extension of detention for this period.
Questions are raised with regard to the effectiveness of judicial review against detention measures, particularly in light of recent case law from the Court of Appeal of Bucharest. In a case concerning a family from Cuba including a child enrolled at kindergarten and a grandmother suffering from thalassemia and hypertension, whose asylum application had been rejected, detained on the basis of a risk of absconding from the voluntary return procedure, the Court briefly concluded on the legality of detention. It dismissed the appellants’ argument on alternatives to detention, stating that these only apply to asylum seekers. The Court also failed to consider the best interests of the child.[13]
In the assessment of the IGI Migration Directorate’s request for a two-month extension of detention, however, the Court of Appeal noted that even though detention was not ordered against the minor child, since the centre could not provide adequate conditions for raising and educating a child, it would be contrary to the best interests of the child to maintain the family in detention.[14]
In addition to judicial review upon request and judicial review in case of an extension of the duration of detention, the Aliens Ordinance requires IGI to examine the opportunity to maintain the measure of public custody at intervals of up to 3 months. In the case of families with children, the analysis must be carried out at intervals of up to one month.[15] However, there is no information about this procedure in practice.
An important case that underscores the intersection between detention measures, extradition proceedings, and the right to seek asylum is the case of the extradition of one Ukrainian to Russia was ruled in 2022. Romanian national authorities detained Chechen asylum seeker Amina Gerikhanova in March 2022 on grounds that she posed an alleged threat to national security. She had fled her home in Ukraine in the aftermath of Russia’s invasion in February 2022. The Romanian border guards separated her from her young son and detained her pending extradition based on a Russian Interpol red notice.[16] On 18 April 2002, the court of Appeal of Suceava authorised her extradition to Russia, [17] whereas the judicial authorities of the Russian Federation have presented in writing, in documents submitted to the Ministry of Justice, a series of guarantees[18], while her appeal was finally rejected on 4 May by the High Court of Cassation and Justice in Romania. The last Court noted that likewise, the Russian-Ukrainian military conflict cannot constitute a reason for refusing extradition, the admission of the extradition request being based on the documents in the file and not on the circumstantial situations that do not directly involve the violation of the fundamental rights of the requested person, as there is no evidentiary element in the file that would lead to this conclusion. In addition, the arrest warrant and the INTERPOL alert were issued a long time ago, respectively since 2018, and the search for the extraditable person carried out by this prosecutor’s office until 15.12.2017, when she was placed on the international wanted list. The same High Court also concluded that simply submitting an asylum application is not enough to be considered exempt from extradition[19].
On 9 May, Amina Gerikhanova was granted interim measures by the European Court of Human Rights under the Rule 39 procedure. The Court informed the Romanian Government that it should not extradite Amina Gerikhanova her pending its assessment of her situation[20].
Her extradition to Russia was only stopped following a massive public outcry and the imposition of interim measures by the European Court of Human Rights. Romania eventually granted her asylum[21].
It should be mentioned that in a similar case of extradtion ruled by the High Court of Cassation and Justice (against another ruling of the Court of Appeal of Suceava of 10 May 2022[22]) the same month of 2022, judges stated that on 15 March 2022, the Russian Federation initiated the procedure for withdrawal from the Council of Europe. In this context, it is noteworthy that the jurisdiction of the European Court of Human Rights, the judicial body of the Council of Europe that provides protection in the event of violations of human rights and fundamental freedoms set out in the Convention, is being denied, which calls for increased caution in assessing the consequences that extradition to the Russian Federation could have.
Also, the existence of data supporting the uncertainty of respect for human rights and fundamental freedoms in the requesting state is highlighted by the European Parliament Resolution of 07.04.2022 on the intensification of repression in Russia (2022/2622 (RSP), which was based, among other things, on the statement of the Council of Europe Commissioner for Human Rights of 24 March 2022 expressing his appreciation for the courageous work of journalists and human rights defenders, including those from the Russian Federation and Belarus, the statement of the Representative for Freedom of the Media of the Organization for Security and Cooperation in Europe of 03.03.2022 on the serious violation of the right to freedom of expression and freedom of the media in Russia in the context of the country’s military attack against Ukraine; the statement of the UN High Commissioner for Human Rights on the latest developments in Russia and Ukraine.[23]
[1] Article 104(3) Aliens Ordinance.
[2] Information provided by CNRR, 16 January 2024.
[3] ibid. February 2025.
[4] ibid.
[5] Articles 19^7(7) and 19^14(8) Asylum Act.
[6] ibid. Article 19^16(3).
[7] ibid. Article 19^14(8).
[8] Information provided by the Court of Appeal Timișoara, 07 and 17 February 2022.
[9] Information provided by CNRR, 15 February 2022.
[10] Information provided by the Court of Appeal of Bucharest, 10 January 2024.
[11] Information provided by CNRR in March 2025.
[12] Article 19^14(4) Asylum Act.
[13] Court of Appeal of Bucharest, Decision 2472/2018, 29 May 2018.
[14] Court of Appeal of Bucharest, Decision 2767/2018, 13 June 2018.
[15] Article 101(13) Aliens Ordinance.
[16] Amnesty International, Europe: Halt returns of people from the North Caucasus to Russia where they are at risk of torture and abuse, 17 January 2024, available here.
[17] Amnesty International, Romania: Ukrainian refugee faces extradition to Russia: Amina Gerikhanova, 29 April 2022, link.
[18] High Court of Cassation and Justice, Penal Section, Decision no. 282 of 04 May 2022, available only in Romanian here.
[19] ibid.
[20] Amnesty International News, 2022, available here.
[21] Amnesty International, Europe: Halt returns of people from the North Caucasus to Russia where they are at risk of torture and abuse, 17 January 2024, available here.
[22] Penal decision no. 47 of 10 May 2022, Court of Apeal of Suceava
[23] High Court of Cassation and Justice, Penal Section, Decision no. 339 of 25 May 2022, available here