Judicial review of the detention order

Romania

Country Report: Judicial review of the detention order Last updated: 31/05/22

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]

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.

According to CNRR, foreigners in public custody are informed about the reasons for their detention, available remedies and their rights (including the right to legal assistance) through the information materials in the centers (leaflets, posters), but also through the CNRR legal advisers who carry out activities in centres.[2] The information materials are in the languages most spoken in the centres, and legal counselling is provided by CNRR with the help of an interpreter.[3] Conversely, a detainee interviewed by the author stated that he did not appeal against the decision because he was not aware of this right and he did not know who to ask for more information on this.

All the interviewed detainees in both centres mentioned that they only received documents in Romanian. They also mentioned that they received several papers but they did not understand what they represented. Some of them also showed the author the documents received and they were all in Romanian. As for the information provision, all interviewed detainees in Arad mentioned that the legal counsellor from CNRR never talks to them.

The JRS representative also mentioned the case of a family from Sri Lanka, who reported that they did not understand anything; they signed several documents, without knowing what they were.

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.[4]The appeal formulated against detention is subject to lighter formalities, as it is exempt from the judicial stamp duty.[5] 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.[6]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 2021. In 2021, the Court of Appeal of Timișoara had registered only one appeal against detention orders of the Prosecutor’s Office attached to the Court of Appeal of Bucharest,[7] although the director of Arad reported that three appeals were lodged in 2021. The Court of Appeal of Bucharest had registered only four appeals against detention as of 1 January 2021.[8] According to representatives of the Otopeni centre the appeals were filed by the foreigners themselves, but a lawyer reported that s/he had filed at least two of the four appeals.

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]

According to the Courts of Appeal of Bucharest and Timișoara, in 2021, the court procedures in public custody cases were not affected due to the pandemic. Court hearings were all held through videoconferences.[10]  This was confirmed by the detainees and directors of both centres, who stated that in 2021, the court hearings were held through videoconference as a general rule.

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 foreigners 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, 15 February 2022.

[3] Ibid.

[4] Articles 19^7(7) and 19^14(8) Asylum Act.

[5] Article 19^16(3) Asylum Act.

[6] Article 19^14(8) Asylum Act.

[7] Information provided by the Court of Appeal Timișoara, 09 February 2022.

[8] Information provided by the Court of Appeal Bucharest, 7 February 2022.

[9] Information provided by CNRR, 15 February 2022.

[10] Information provided by the Court of Appeal Timișoara, 09 February 2022 and by the Court of Appeal Bucharest, 7 February 2022.

[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.

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