Resolution CM/ ResDH (2012) 70 [1]

Execution of the judgment of the European Court of Human Rights

Rusu against Austria

(Application No. 34082/02, judgment of 02/10/2008, final on 02/01/2009)

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the applicant ’ s right to be informed promptly of the reasons for her arrest and detention, as well as arbitrariness of her detention (violations of Articles 5, paragraphs 2 and 1 (f)) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

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, within the time-limit set, the respondent State paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its 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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2012) 70

Information about the measures to comply with the judgment in the case of

Rusu against Austria

Introductory case summary

The case concerns the arrest and detention of a Romanian national when she attempted to return to Romania from Spain on 25/02/2002 on the basis of documents issued by the French police following the theft of her passport in France . The applicant was refused entrance by the Hungarian border police and sent back to the Austrian border police where she was detained pending expulsion. However, she was not provided with prompt and adequate information of the reasons underlying her arrest and detention: the only reasons given in a language she understood were those contained in standardised forms referring to out ‑ of ‑ date legislation and unconnected with the reasons of the specific detention decision taken in her case (violation of Article 5, paragraph 2).

The case also concerns the arbitrariness of the applicant ’ s detention pending expulsion, having regard to the incompleteness of the grounds relied on by the District Administrative Authority, as there was no indication that she was trying to evade expulsion to Romania (violation of Article 5, paragraph 1 (f)).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

3 000 EUR

-

3 000 EUR

Paid on 02/04/2009

b) Individual measures

According to the judgment that the applicant was no longer detained when the Court rendered its judgment (she was ultimately expelled to Romania on 22/03/2002). Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

1) Violation of Article 5 , paragraph 2: The Court noted that the information sheets issued to the applicant in Romanian on the day of her arrest had not contained any specific factual information concerning her detention or arrest and had referred to an out-of-date Aliens Act (see §§ 38-42 of the judgment). The Austrian authorities have indicated that information sheets for detainees under the 2005 Aliens Act currently applicable have been translated into various languages and are available to police authorities and detention centres via the Intranet site of the Ministry of the Interior. This ensures that police officers can issue information to detainees promptly upon their arrest. When foreigners are questioned by the Aliens authorities shortly after their arrest, an interpreter is always present to explain the reason for their detention, any further steps to be taken and answer specific questions. Moreover, foreigners may avail themselves of the services provided by specific organisations with a view to their return ( Rückkehrvorbereitung ) . Members of these organisations have the linguistic skills to guarantee effective communication with foreigners. In addition, upon the initiative of the Human Rights Advisory Board ( Menschenrechtsbeirat ) , a project is currently being put in place which will provide improved electronic information for download by foreigners in 40 languages (short video demonstrations and information about reasons for arrest, about access to legal advice including possibilities of appeal against detention pending expulsion ( Schubhaftbeschwerde ) and about return).

2) Violation of Article 5, paragraph 1 (f): The violation resulted from the Austrian authorities ’ negligence in failing to take account of the specific situation of the applicant when ordering her detention with a view to expulsion. Section 66 of the then-applicable Aliens Act 1997 provided less stringent measures, such as residence orders in accommodation designated by the authorities (see also § 27 of the judgment). The Austrian authorities referred to the bilateral readmission agreement between Austria and Hungary which was in force at the material time (and still is today). Today, however, a similar case would be dealt with differently. First, Romanian nationals are nowadays free-moving EU citizens and thus their situations would fall under the procedures and safeguards of Directive 2004/38/EC. Secondly, the option of (assisted) voluntary return would be offered in such a case, so that a citizen of a third State under comparable circumstances would be able to return to the country of origin without being detained in the meantime. The Austrian authorities further provided statistics on the number of cases of detention pending deportation and the number of cases where more lenient measures were adopted for the years 2002 - 2009. They show that while in 2002 there were 11 816 instances of detention pending deportation with only 807 cases with more lenient measures, in 2009, the number of detention cases pending deportation was reduced to 5 996 (almost half of the number of the year 2002), with more lenient measures having been ordered in 1 877 instances (more than double the figure of the year 2002). Today, the Aliens Police Act of 2005 ( Fremdenpolizeigesetz ) is applicable to such cases. Further, discussions are currently ongoing to add to the existing forms of more lenient measures (reporting requirement and/or accommodation) the possibility of depositing financial securities. The Austrian authorities consider that similar violations are prevented from arising in the future on the basis of the legal means of the more lenient measures, the increased and ongoing awareness concerning the right to liberty among the authorities applying the Aliens Police Act, as well as the stringent domestic case-law.

3) Publication and dissemination : The judgment was published in the Newsletter of the Austrian Institute for Human Rights (NL 2008, p. 276 (NL 08/5/09), available online at http://www.mens c henrechte.ac.at/docs/08_5/08_5_09 ) and in Ö JZ 2009, p . 426 . On 30/10/2008 it was sent out to the Constitutional Court , the Supreme Administrative Court , the Ministry of the Interior and the Human Rights Advisory Council . Further, the Austrian Prime Minister ’ s Office sent a circular note of 28/07/2009 to Federal Ministries, the Constitutional Court, the Administrative Court, the Supreme Court, the Asylum Court, Parliament, the governments of all nine Austrian Länder , the Liaison Office of the Länder with the Federal authorities, all Human Rights Coordinators at the Federal Ministries, all Independent Administrative Panels of the Länder , as well as all Directorates-General of the Federal Chancellery (Prime Minister ’ s Office) which was also published on the website of the Federal Chancellery.

In view of the above, no further general measure was deemed necessary by the Committee of Ministers.

The government considers that no individual measure is required in this case apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention in the present case.

[1] Adopted by the Committee of Ministers on 6 June 2012 at the 11 44 th Meeting of the Ministers’ Deputies .