ECtHR - N.M. v. Romania, (Application no. 75325/11), 10 May 2015

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Country of Applicant: 
Afghanistan
Date of Decision: 
10-05-2015
Citation: 
N.M. v. Romania, (Application no. 75325/11), 10 May 2015
Court Name: 
European Court of Human Rights Third Chamber
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

Case Law Cited: 

ECtHR - Sejdovic and Sulejmanovic v. Italy, no. 57575/00

ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03

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 - 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 - Vikulov v. Latvia (dec.), no. 16870/03

ECtHR - Ramirez Sanchez v. France [GC], Application No. 59450/00

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
Authentic Language: 
French
State Party: 
Romania
National / Other Legislative Provisions: 
Romania - Order No. 194/2002 on the regime of aliens in Romania Government as approved by Act No. 357/2003 as amended by Law 482/2004
Romania - Law no. 51/1991 on the nationa
Romania - Law no. 535/2004 on preventing and combating terrorism
Romania- Law no. 46/1991 on the accession of Romania to the Convention on the Statuso
Romania - Law no. 122/2006 on the Asylum in Romania