ECtHR - N.M. v. Romania, (Application no. 75325/11), 10 May 2015
| Country of applicant: | Afghanistan |
| Court name: | European Court of Human Rights Third Chamber |
| Date of decision: | 10-05-2015 |
| Citation: | N.M. v. Romania, (Application no. 75325/11), 10 May 2015 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
The case examined the allegations of an Afghan national that his isolated living condition in the detention centre of Otopeni in Romania constituted inhumane treatment, in violation of article 3 of the Convention. He further alleged a violation of Article 5 para 4 with regards to his right to an effective remedy to challenge the effectiveness of his detention. In addition, he complained of an excessive time period in detention (more than a year).
Facts:
The facts of the case relate to an Afghan national whose claim for asylum was rejected by the Romanian Immigration Office and later by the Bucharest Tribunal on grounds of a lack of credibility and evidence that he risked ill-treatment at the hands of the Taliban if sent back to Afghanistan. On 16 December 2010, the applicant was declared an"undesirable person"in the Romanian territory for fifteen years, on the grounds of his involvement in activities likely to jeopardize national security. He was placed in Otopeni detention centre pending removal following an order by the Court, of which he was not informed since it was sent to the refugees’ centre of Arad where he was no longer living. He later lodged an appeal against the Court of Appeal’s decision in front of the High Court. This was subsequently refused by the latter on account that he had not respected the procedural time limits for presenting his appeal.
Decision & reasoning:
Taking cue from the CPT’s report published on 11 December 2008 on detention conditions in Otopeni detention centre as well as the fact that the applicant did not question these conditions, the Court estimated that the applicant’s material conditions in the above mentioned detention centre were sufficient.Concerning the submission relating to inhumane treatment in light of the isolated living conditions in the holding centre (Article 3 ECHR), the Court noted that the applicant had been in contact with his lawyer and an interpreter, had permanent access to his mobile phone and had not complained that the length of isolated detention had led to a degradation of his physical or mental health (Ramirez Sanchez v. France) [62]. According to the Court, therefore, the threshold for an Article 3 violation had not been met.
Regarding Article 5 para 4, the Court noted that even if the applicant lacked diligence in respect of the proceedings before the Court of Appeal, the High Court showed excessive rigidity by declaring the appeal to not have been lodged on time, taking into account that the decision was delivered to an address that was no longer his. Therefore, it concluded a violation of Article 5 para 4, on the grounds that ORI could and should inform the Court of Appeal of the execution of the judgment delivered on the same day and change the applicant's address, to ensure that communication of that judgment was correctly made and the applicant's right of appeal was effective.
Lastly, with regards to Article 5 para 1 (f), the Court noted that whilst the Article does not specify a maximum time for detention, it can only be justified where an expulsion procedure is underway [91]. Notwithstanding that the applicant complained of a lack of definite time period for detention, which in fact lasted more than a year, the Court surmised that the applicant’s time spent in detention had not gone over that prescribed by law (18 months) [94]. Moreover, in light of the asylum procedure which required a meticulous examination and the possibility for the applicant to submit evidence and argumentation during this time, the Court found that the applicant’s time in detention was not excessive. The Court, subsequently, found no violation of Article 5 para 1 (f)[98]
Furthermore, the Court rejected his complaint under Article 1 of Protocol 7 for inadmissibility given that at the time of the decision prohibiting residence of the applicant, the latter was not “residing regularly” within Romania as he did not have a valid residence permit[100].
In addition, the Court found the applicant’s complaints under Articles 5 para 2, 6 and 13 in conjunction with Article 3 to be inadmissible and therefore rejected them by applying Article 35 §§ 1, 3 a) et 4 of the Convention [108].
Outcome:
Violation of Article 5 para 4 of the Convention
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Amie and Others v. Bulgaria, Application No. 58149/08 |
| ECtHR - Ocalan v Turkey (2005) (Application no. 46221/99) |
| ECtHR - A. and Others v. the United Kingdom [GC], Application No. 3455/05 |
| ECtHR - Sadaykov v. Bulgaria, Application No. 75157/01 |
| ECtHR - Auad v. Bulgaria, Application No. 46390/10 |
| ECtHR - Amuur v. France, Application No. 19776/92 |
| ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08 |
| ECtHR - Tabesh v. Greece, Application No. 8256/07 |
| ECtHR - Lupsa v. Romania, Application No. 10337/04 |
| ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Ramirez Sanchez v. France [GC], Application No. 59450/00 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - S.C. v. Romania,no. 9356/11 |
| ECtHR - Messina v. Italy, no. 25498/94 |
| ECtHR - Rohde v. Denmark, no. 69332/01 |
| ECtHR - Ntumba Kabongo v. Belgium (dec.), no. 52467/99 |
| ECtHR - Da Luz Domingues Ferreira v. Belgium, no. 50049/99 |
| ECtHR - Pérez de Rada Cavanilles v. Spain, 28090/95 |
| ECtHR - Abou Amer v. Romania, no. 14521/03 |
| ECtHR - Vikulov v. Latvia (dec.), no. 16870/03 |
| ECtHR - Sejdovic and Sulejmanovic v. Italy, no. 57575/00 |
Other sources:
European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT), Report to the Government of Romania on the visit to Romania carried out by CPT from 8 until 19 June 2009