Judicial review of the detention order

Romania

Country Report: Judicial review of the detention order Last updated: 30/04/21

Author

Felicia Nica with support from JRS Romania Visit Website

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]

According to CNRR, there is an obligation to provide information in writing in a language that the person can reasonably be supposed to understand. The documents are received upon the individuals’ arrival in the public custody centre. CNRR provides them counselling and, if they so wish, supports them to challenge the detention order.[2]

In practice, however, foreigners receive a document, in most cases written in Romanian and English, which cites the legal provision on which detention is based and the reasons for detention, according to the director of Arad. Communication is done only in writing when they arrive in detention and there is no interpreter provided at this stage. According to JRS, the reasons for detention are translated by the NGO representatives.

In Otopeni, detainees are informed in writing, in Romanian, about the reasons for detention, according to the directors. The following day the deputy director explains the reasons for their detention and their options.

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.

Few appeals were lodged against detention orders in 2020. In 2020, the Court of Appeal of Timișoara had registered only 7 appeals against detention orders of the Prosecutor’s Office attached to the Court of Appeal of Bucharest.[6] The Court of Appeal of Bucharest had registered only 1 appeal against detention as of 1January 2020.[7]

According to the Courts of Appeal of Bucharest and Timișoara, during the state of emergency and state of alert, the court procedures in public custody cases were not affected. Court hearings were also held through videoconferences[8]. The directors of both centres confirmed this and stated that in 2020 the court hearings were held through videoconference as a general rule. In Arad the videoconference system was installed in April/May 2020.

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.[9]

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.[10]

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.[11]

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.[12] However, there is no information about this procedure in practice.

 

 

 

[1]        Article 104(3) Aliens Ordinance.

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

[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 Timișoara, 21 January 2021.

[7]        Information provided by the Court of Appeal Bucharest, 2 February 2021.

[8]        Information provided by the Court of Appeal Timișoara, 21 January 2021 and by the Court of Appeal Bucharest, 2 February 2021.

[9]        Article 19^14(4) Asylum Act.

[10]       Court of Appeal of Bucharest, Decision 2472/2018, 29 May 2018.

[11]       Court of Appeal of Bucharest, Decision 2767/2018, 13June 2018.

[12]       Article 101(13) Aliens Ordinance.

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