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 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] 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 in 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 complaint 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.
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.[3] The appeal formulated against detention is subject to lighter formalities, as it is exempt from the judicial stamp duty.[4] If the applicant is detained during the Dublin procedure, it does not have suspensive effect on the detention order or on the determination of the responsible Member State.[5]The Court of Appeal has to examine the appeal within 3 days from the date of receipt, and its decision is final.
The Court of Appeal of Bucharest had registered only four appeals against detention on 1 January 2021.[6] According to representatives of the Otopeni centre the appeals were filed by CNRR representatives.
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.[7]
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.[8]
According to the Courts of Appeal of Timișoara, in 2022, court hearings were held through videoconferences in 54 cases.[9] In Otopeni court hearings were held in person and also online, according to the director of the centre and interviewed detainees.
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 regard to 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.[11]
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.[12]
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.[13]
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.[14] However, there is no information about this procedure in practice.
[1] Article 104(3) Aliens Ordinance.
[2] Information provided by CNRR, 16 January 2024.
[3] Articles 19^7(7) and 19^14(8) Asylum Act.
[4] Article 19^16(3) Asylum Act.
[5] Article 19^14(8) Asylum Act.
[6] Information provided by the Court of Appeal Bucharest, 7 February 2022.
[7] Information provided by the Court of Appeal Timișoara, 07 and 17 February 2022.
[8] Information provided by CNRR, 15 February 2022.
[9] Information provided by the Court of Appeal Timișoara, 17 February 2023.
[10] Information provided by the Court of Appeal of Bucharest, 10 January 2024.
[11] Article 19^14(4) Asylum Act.
[12] Court of Appeal of Bucharest, Decision 2472/2018, 29 May 2018.
[13] Court of Appeal of Bucharest, Decision 2767/2018, 13June 2018.
[14] Article 101(13) Aliens Ordinance.