Resolution CM/ ResDH ( 201 5 ) 50 Execution of the judgments of the European Court of Human Rights in Three cases against Romania

Application

Case

Judgment of

Final on

10337/04

LUPSA

08/06/2006

08/09/2006

33970/05

KAYA

12/10/2006

12/01/2007

14521/03

ABOU AMER

24/08/2011

(Adopted by the Committee of Ministers on 1 April 2015 at the 1224th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concerns the i llegal interference with the applicants ’ private life resulting from the expulsion measures against them for security reasons, which were not provided by a law responding to the requirements of the Convention or/and the breach of the procedural guarantees of the expulsion procedures (violations of article 8 of the Convention or/and article 1 of Protocol no. 7 ) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH ( 2015) 50

Information on the measures taken to comply with the judgments in the cases of Lupsa , Kaya and Abou Amer against Romania

Introductory case summary

The cases of Lupsa and Kaya concern a violation of the applicants ’ (Serbian and Turkish nationals respectively) right to respect for their private and family life on account of their expulsion on grounds of national security in August 2003 and April 2005. The case of Abou Amer concerns a violation of the applicants ’ (a refugee and his spouse – a Romanian national) right to respect for their private and family life, on account a decision taken by the prosecutor to expel the first applicant and to deny him access to Romanian territory, followed by their departure in June 2003 (violations of Article 8).

The European Court found that these measures were not provided by a law complying with the requirements of the Convention. In this respect it noted that Messrs. Lupsa , Kaya and Abou Amer had been declared to be undesirable aliens denied access to Romanian territory and, as regards the first two, expelled. These measures were ordered by the public prosecutor ’ s office on the ground that the Romanian Intelligence Service had received sufficient an d serious intelligence that the applicants were engaged in activities capable of endangering national security. However, no proceedings had been brought against the applicants for participating in the commission of any offence in Romania or any other country and they were not provided with any details as to the allegations against them. Furthermore, in the Lupsa case, in breach of domestic law, the applicant was not served with the order declaring his presence to be undesirable until after he had been expelled. Finally, the Bucharest Court of Appeal confined itself to a purely formal examination of the public prosecutor ’ s orders.

The cases of Lupsa and Kaya also concern the failure to respect procedural guarantees in the proceedings for the applicants ’ expulsion (violations of Article 1 of Protocol No. 7). The European Court recalled that Emergency Ordinance No. 194/2002, which constituted the legal basis for the applicants ’ expulsion, did not afford them the minimum guarantees against arbitrary by the authorities. Thus, although the applicants ’ expulsion was carried out pursuant to lawfully taken decisions, the relevant law did not comply with the requirements of the Convention. In any case, the authorities had also failed to comply with the requirements of Article 1 a) and b) of Protocol No. 7.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Lupsa (10337/04)

15 000 EUR

3 000 EUR

18 000 EUR

Paid on 14/12/2006

Kaya (33970/05)

-

-

10 000 EUR

Paid on 12/04/2007

Abou Amer (14521/03)

-

8 000 EUR

-

8 000 EUR

Paid on 24/11/2011

b) Individual measures

The applicants in the cases of Lupsa and Kaya requested the re-examination of the impugned decisions under Article 322 (9) of the former Code of Civil Procedure, in force at the date the European Court ’ s judgments became final. The Bucharest Court of Appeal upheld the applicants ’ requests, by decisions of 7 February 2007 ( Lupsa ) and 13 February 2007 ( Kaya ), and annulled the prosecutors ’ orders which had declared the applicants to be undesirable aliens and denied their access to the Romanian territory. There is no longer a formal legal obstacle preventing the granting of a visa and the applicants have not contacted either the Committee or the authorities.

As regards the applicants in the case of Abou Amer , the Romanian authorities indicated that they could have likewise requested the re-examination of the impugned decisions concerning Mr Abou Amer under the above-mentioned provisions of the Code of Civil Procedure. The authorities do not have information indicating that the applicants filed such a request.

In these circumstances, the Romanian authorities considered that no other individual measure is necessary in these cases.

II. General measures

Following the European Court ’ s judgments, Emergency Ordinance No. 194/2002 was amended on several occasions. Under Article 86, in its current version, the decision aimed at declaring an alien as undesirable is taken by the Bucharest Court of Appeal, upon request of the public prosecutor who acts upon a proposal of the authorities responsible for safeguarding the public order and the national security. The data and intelligence on which such a proposal is based are placed at the disposal of the Court of Appeal in accordance with the conditions provided by the statutes concerning national security and the protection of classified information.

The public prosecutor ’ s request is examined in camera, in the presence of the parties. The Court of Appeal informs the alien of the facts underlying this request. The alien does not have access to the classified information included in the case file, but lawyers that have security clearance from the Office of the National Register for Information Classified as State Secret have access to it . The procedure to obtain security clearance is prescribed by Government Order No. 585/2002 for the approval of standards for the protection of classified information.

The Court of Appeal shall give a reasoned decision within 10 days of the prosecutor ’ s request. The law does not restrict public access to the decision, but when the alien is declared undesirable for reasons of national security, the decision does not mention the data and intelligence which justify such a measure. The decision is enforceable and must be communicated to the alien concerned and, if the alien is declared undesirable, also to the Aliens Authority, in order for it to be implemented.

An alien may be declared undesirable for a period of between 5 and 15 years, which can be extended. Within ten days from the date of the notification of the decision of the Bucharest Court of Appeal, a cassation appeal can be introduced before the High Court of Cassation and Justice. This court is required to give a decision within five days of the date of receipt of the request for an appeal. In justified cases, to avoid imminent damages, the alien may request the suspension of the enforcement of the decision declaring him undesirable, until the end of the cassation proceedings.

The judgments of the European Court in the cases of Lupsa and Kaya have been translated and published in the Official Journal and on the website of the High Court of Cassation and Justice ( http://www.scj.ro/ ). In addition, the Lupsa judgment was transmitted to the Superior Council of Magistracy, with a view to bringing it to the attention of all domestic courts. It was also transmitted to the Bucharest Court of Appeal, the Ministry of Interior and the Authority for Aliens.

The Romanian authorities have submitted examples of decisions of the Bucharest Court of Appeal concerning the declaration of aliens as undesirable. In all cases the aliens were informed of the reasons for the request s concerning them and were represented by lawyers. Adversarial proceedings were conducted and all the facts were opened for debate between the parties. The concerned persons and their lawyers had the possibility to request the dismissal of the arguments brought by the prosecutor on preliminary issues as well as on the merits. In one of the cases, the alien concerned also brought documentary evidence. All aliens were given the possibility directly to address the co urt at the end of the debate.

III. Conclusions of the respondent State

The g overnment considers that the measures taken have fully erased the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent new similar violations in future and that Romania has therefore complied with its obligations under Article 46, paragraph 1, of the Convention