ECtHR - S.C. v. Romania, Application No 9356/11, 10 February 2015

Facts:

The applicant is a Turkish national who claimed asylum in Romania in 2009, having entered using a transit visa.

Prior to his arrival in Romania, he had been convicted in Turkey for various offences in relation to encouraging young people to enlist with the PKK and served a prison sentence from 2003-2005. He was convicted of the same offence in 2007, and sentenced to six years and three months imprisonment, in a judgment that was later upheld by the Supreme Court. 

On 31 July 2009 his asylum claim was held to be unfounded due to the applicant’s lack of credibility.

In 2010 while the applicant’s asylum appeal was pending, following the request of the Romanian Intelligence Services, the prosecutor submitted a proposal to the Bucharest Court of Appeal to declare the applicant to be an undesirable person, impose on him a 15 year entry ban on grounds of national security, and order his detention in a special centre. This was based on classified documents which indicated that the applicant was involved in terrorist-related activities. The applicant did not appear at the hearing, despite receiving summons, and did not put in a defence. The Court of Appeal granted the prosecutor’s request, finding that the classified material proved that the applicant was involved n activities likely to jeopardise national security

The applicant was arrested on the same day and transferred to a centre for foreigners where he was served with the Court of Appeal decision. He was informed that no longer had leave in Romania and that he would be expelled by escort. He was served with another decision informing him of his detention in accordance with national law.

His challenge to the execution of the Court of Appeal judgment was dismissed as unfounded by the High Court which noted that despite his pending asylum application, the applicant could be declared undesirable and an expulsion order made where national security issues were at stake.

The rejection of the applicant’s asylum claim became final in February 2011. He remained detained at the centre for foreigners until his transfer to Turkey in May 2011.

The applicant complained that his detention in the centre for foreigners constituted an illegal deprivation of liberty, and that he had not had an effective opportunity to challenge his detention in the centre for foreigners, contrary to Article 5 ECHR. 

Decision & reasoning:

The Court noted that the applicant’s detention fell within the scope of article 5(1)f) as he was being detained pending expulsion. However, detention would cease to be lawful if expulsion proceedings are not prosecuted with due diligence.

The applicant was detained for eight months and three weeks on the order of the Court of Appeal after it declared him to be an undesirable person, pending his expulsion. The reason given by the authorities to explain the duration of detention was the processing of applicant’s pending asylum application, which the Court found not to be excessive given the complexity of the claim put forward which was given thorough and detailed examination.

However this procedure did not justify the deprivation of the applicant’s liberty for three months following the final rejection of his asylum application in February 2011.  The Government provided no explanation for this period and did not indicate what steps were taken to remove the applicant from Romanian territory as quickly as possible. As such, there was a violation of article 5(1)f).

 The Court went on to consider whether the applicant’s rights under article 5(4) had been respected. It found that the High Court had given the applicant an opportunity to contest the validity and legality of the measure taken against him; and that the Court of Appeal decision was sufficiently detailed, despite being based on classified material that was not accessible to the applicant, for him to effectively challenge it. In addition, the applicant failed to attend court summons, and delayed contacting a lawyer until he was detained and this lack of diligence contributed to a situation that prevented him from defending himself before the Court of Appeal. In these circumstances, there had been no violation of article 5(4).

Outcome:

The Court found the complaints under Article 5(1)f) and 5(4) ECHR admissible. It held that Article 5(1)f) had been violated and ordered the applicant to be compensated. There was no violation of Article 5(4).