ECtHR - Geleri v. Romania, Application No. 33118/05

Facts:

The Applicant, Zeyneddin Geleri, is a Turkish national who lives in Chisinau (Moldova). At the relevant time, he was lawfully resident in Bucharest (Romania). He had been granted political asylum in 1998, a decision that was upheld by a final decision in 2001. In 2003 he married a Romanian national, with whom he had a daughter in 2005. He was an associate in two commercial companies.

By an order of 21 February 2005, the prosecutor at the Bucharest Court of Appeal declared Mr Geleri persona non grata and banned him from entering Romania for ten years, on the ground that “sufficient and reliable information indicates that he [was] engaged in activities posing a threat to national security". On 23 February 2005 this order was communicated to Mr Geleri without further explanation and he was expelled to Italy on the same day.

On 28 February 2005 Mr Geleri’s lawyer challenged the expulsion order before the Bucharest Court of Appeal. By a final decision of 3 March 2005, the Bucharest Court of Appeal dismissed that challenge as unfounded. In particular, it held that the evidence forming the basis of a decision declaring an alien persona non grata on the ground of national security could not in any circumstances be communicated to the person in question, since that information was classified as secret by the law. The appeal court added that the Constitutional Court’s case-law had confirmed that that rule was in accordance with the Constitution.  In April 2005 the Romanian Office for Refugees withdrew Mr Geleri’s refugee status. 

Decision & reasoning:

The Court noted firstly that Mr Geleri’s expulsion and the prohibition on his entering the territory of Romania had infringed both his “private” and “family” life. Such a situation could, however, be in accordance with the Convention if it was “in accordance with the law”, pursued a legitimate aim and was “necessary in a democratic society”.

In Mr Geleri’s case, the Court focused its attention on whether the measures imposed were “in accordance with the law”. It reiterated that the “law” in question was primarily required to protect the individual from arbitrary conduct by the authorities, by offering him the chance to have the disputed measure examined by an independent and impartial body, empowered to examine all the relevant factual and legal issues.

The Bucharest Court of Appeal had conducted a purely formal examination of the expulsion order. In addition, the court of appeal had been provided with no further explanation with regard to Mr Gelari’s alleged offences, so that it had been unable to go beyond the prosecution service’s allegations in verifying whether the Applicant genuinely posed a danger to national security or public order.

Thus, the measures imposed on Mr Geleri did not guarantee him a minimal degree of protection against arbitrariness. It followed that the interference in his right to respect for his family and private life had not been in accordance with a “law” that met the requirements of the Convention.

The Court found a violation of Article 8.

Under Article 1 § 2 of Protocol No. 7, expulsion on the grounds of national security was, in principle, a case in which a foreigner could be expelled before the exercise of the procedural guarantees set out in paragraph 1 of the same Article. However, those guarantees were supposed to be offered prior to expulsion to a foreigner who was lawfully resident in the territory of the respondent State. Mr Geleri could therefore only be expelled “in pursuance of a decision reached in accordance with law” and, in particular, had been entitled to “submit reasons against his expulsion” and “to have his case reviewed”.

The Court reiterated that the Romanian law had not provided him with minimum guarantees against arbitrariness.

Further, the Court noted that the authorities had not provided Mr Geleri with the least indication of the offences of which he was suspected and which were the basis for the finding that he posed a threat to national security.

In those circumstances, the procedural guarantees to which Mr Geleri was entitled had not been respected and there had been a violation of Article 1 of Protocol No. 7.

Outcome:

• Violations of Article 8, Article 1 of Protocol No. 7.
• The Court dismissed alleged violation of Article 3 due to non-exhaustion of domestic remedies.
• The Court held that Romania was to pay the Applicant 13,000 euros (EUR) in respect of pecuniary and non-pecuniary damage, and EUR 6,300 in respect of costs and expenses.

Subsequent proceedings:

Referral to the Grand Chamber rejected by the Court.

Resolution CM/ResDH(2012)215 Geleri against Romania Action report Geleri v. Romania.  Execution of the judgment of the European Court of Human Rights (Application No. 33118/05, judgment of 15 February 2011, final on 15 September 2011).

 With regard to the measures ordered against the Applicant by the national authorities, declaring him to be an undesirable alien, expelling him and denying him access to Romanian territory, the Government indicated that the Applicant could ask for a re-opening of the internal procedure by lodging a request for revision of the judgment no. 380 of 3 March 2005 of the Bucharest Court of Appeal, on the basis of the Article 322 § 9 of the Code of Civil Procedure.

 The Government pointed out that they could not take further steps with a view to the expulsion measure, since they could not contact the Applicant and the Applicant's representative provided no information on his present location. The Government reminded that no interdiction of visiting the Applicant at his present residence was ordered for his family members and previously they could go and visit the Applicant in Rep. Moldova. However, the Government reiterated that, if his family still lives in Romania, they are entitled to appoint a legal representative for the purpose of pursuing the internal procedure for the annulment of the measures impeding him to enter the Romanian territory.

Following the report by the Government the execution proceedings of the Court's judgment of 15 February 2011 in the case Geleri v. Romania were closed.