THIRD SECTION
CASE OF
GALLIANI v. ROMANIA
(Application no.
69273/01)
JUDGMENT
STRASBOURG
June 2008
FINAL
10/09/2008
This judgment
may be subject to editorial revision.
In the case of Galliani v. Romania,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López
Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy
Section Registrar,
Having deliberated in private on 20 May 2008,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
69273/01) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Italian national, Mrs Paola Galliani (“the applicant”), on
29 August 2000.
The applicant, who had been granted legal aid,
was represented by Mr Alessandro Lorenzi, a lawyer practising in Carcare. The
Romanian Government (“the Government”) were represented by their Agent,
Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs.
The Italian Government, to whom a copy of the application was
transmitted under Rule 44 § 1 (a) of the Rules of Court, did not
exercise their right to intervene in the proceedings.
On 22 November 2005 the Court decided to
communicate the complaints raised under Article 5 §§ 1 (f), 2 and 4, Article 10
of the Convention and Article 1 of Protocol No. 7 to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1952 and lives in Savona, Italy.
On 19 January 1998 the applicant entered Romania with a tourist visa valid until 2 February 1998 and started business activities. In
February 1998, when the applicant requested extension of the visa, the
authorities asked for proof of residence in Romania that she could not provide.
A. The applicant’s version of the facts
1. The applicant’s first questioning
In February-March 1999 the authorities refused
the applicant’s request for extension of her visa as out of time. They told her
that she needed to “know people” who could help her receive a new visa.
On 29 April 2000 the applicant was questioned by
two officers from the Bucharest police to whom she claims she gave a bribe of 100,000
Old Romanian Lei (ROL) to let her go.
2. The events of 4 May 2000
On 4 May 2000 at 8.30 a.m. the applicant was
again stopped by officers from the Bucharest police when she was on her way to
the Italian consulate. The officers took her identity papers and verified her
data. After a one-hour wait the applicant was taken to Police Precinct no. 19
for additional checks.
From Precinct no. 19 she was taken by three officers
to the Passport Bureau, where she explained that her visa had not been extended
before its expiry because she had not had a valid residential tenancy contract.
The person in charge asked her to return the next day to have her situation regularised.
The applicant was made to wait in the police car
with one of the officers while the other two officers checked her passport.
After the check they returned to Precinct no. 19, where after a one-hour wait
the applicant was taken to the basement and body-searched by a female police
officer while her bag was searched by another officer. She was informed that
that was the standard procedure for any person who entered the police
headquarters.
After the search, the applicant was questioned
by two officers from the Passport Bureau and then taken again to their
headquarters. Her fingerprints and photograph were taken and she was put in a
room where the commander of Precinct no. 19 was writing on a paper that he was
hiding from the applicant with his hands.
The commander informed the applicant, who
requested an explanation, that she was not allowed to ask questions, to read or
to know anything, and that she had to sit in a corner and wait. He then told
her to stop crying, because the treatment she was subjected to was not even
comparable to that inflicted on Romanians arrested by the Italian police.
The applicant replied that, unlike the great majority of
Romanians in Italy, she had come to invest money in Romania and not to steal or
commit crimes. She also said that the Italian police respected procedures,
human rights and in particular the presumption of innocence, which was not the
case in Romania, where foreigners were badly treated.
The applicant’s bag was searched again by
another officer who entered the room. He took ROL 750,000 from her purse, the
cost of a visa stamp that was applied on the applicant’s passport valid from 5
to
12 May 2000. He made an inventory of the bag and reported that the applicant
had a mobile phone and ROL 2,250,000.
At around 4.30 p.m. the same day the applicant
was taken for questioning to a different passport bureau. After a one-hour wait
in the police car outside the building, she was informed that the questioning
could not take place as the person in charge was absent, but that she would be
taken to a hotel in Otopeni for the night.
3. The applicant’s arrest and repatriation
Instead of being taken to a hotel as informed
the applicant was placed in police custody. Her fingerprints were taken again
and her money confiscated by the police officers, except for ROL 500,000 that
she was allowed to keep for personal expenses.
The wardens informed her that she was to be
repatriated the next day because she did not have a valid residence permit, but
that since she had not committed any crimes in Romania she was free to return
immediately.
On 5 May 2000 at 12 midday the applicant called
the Italian consulate in Bucharest to ask the reasons for her arrest. The consulate
was not aware of her situation. Later that day someone from the consulate staff
informed the applicant that she was going to be repatriated to Italy on 7 May by the 9.10 a.m. Tarom flight but that they still did not know the reason
for her arrest.
On 7 May 2000 the applicant was taken by a
police officer to the airport where she was taken on to the flight by a
Romanian intelligence officer who accompanied her throughout her journey to Italy. Asked by the applicant about the reasons for her repatriation, the officer told her
that if she had not committed a crime it must be because of a quarrel with the police.
He confirmed that the incident with the commander of the passport police team
could have been the real reason for her repatriation. He also informed the
applicant that she was under a prohibition on returning to Romania for two years.
In Rome the applicant was taken to the Italian
police, who were not aware of her arrival. The police returned her passport and
released her.
On 16 May 2000 the applicant’s husband, who was living
in Romania in the same situation as the applicant, returned to Italy of his own free will.
B. The Government’s version of the facts
The applicant’s residence permit was granted for
the periods 29 April-29 October 1993 and 2 August 1997-2 February 1998.
According to the official records, the applicant
was not arrested or remanded in police custody between 4 and 7 May 2000.
On 4 May 2000 the applicant was stopped by
officers from Police Precinct no. 19 and taken to the Office for Foreigners in the
Ministry of Interior, which was aware of the applicant’s irregular situation.
The Office for Foreigners filled in a standard form
on the applicant’s situation under Law no. 25/1969. It recorded therein the
dates of validity of her visa, the fact that she had been unlawfully resident
for two years and three months and that she could not give reasons for her
situation. It also noted that she was not married to a Romanian national nor
did she have children of Romanian nationality and that she owned a company in
Romania which had ceased trading. The Office for Foreigners recorded on the standard
form that the applicant was not under criminal investigation in Romania, that no expulsion order had been made against her and that she had not asked for
asylum. It also noted that the applicant had ROL 2,250,000 at her disposal.
For these reasons, the Office decided that the applicant should be placed in the
Otopeni Centre for Reception, Selection and Accommodation for Foreigners (“the
Otopeni Centre”) with a view to her repatriation on the next flight to Rome. It ordered the purchase of a ticket to that end, at the authorities’ expense, and issued
a prohibition on the applicant entering Romania for two years. It stamped on
the applicant’s passport an exit visa valid from 5 to 12 May 2000.
She arrived at the Otopeni Centre on 4 May 2000
at 5 p.m. On arrival she was body-searched and the record indicated that she had
ROL 1,160,000 at her disposal.
On 7 May 2000 the applicant was repatriated. An
employee from the Airport Security Service accompanied her throughout her
journey. This measure was taken in order to ensure security on the flight,
given the applicant’s aggressive behaviour and her continual refusals to embark
on the aeroplane.
C. The applicant’s complaints against the Romanian
authorities
On 8 June 2000 the applicant sent a letter to
the Chamber of Deputies of the Romanian Parliament protesting against her
repatriation. The letter was transmitted to the Border Police Department which
informed the Chamber of Deputies of the irregularity of the applicant’s stay in
Romania and the decision to repatriate her and the prohibition on her entering
Romania for two years under Law no. 25/1969.
On 21 August 2000 the applicant sent a similar
letter to the border police.
On 10 December 2001 the Romanian embassy in Rome, answering a letter sent by the applicant, congratulated her on her good command of
the Romanian language, expressed regret for her distress, informed her that the
prohibition had been lifted and advised her to contact the Italian embassy in Bucharest to assist her with the formalities in Romania.
II. RELEVANT DOMESTIC LAW
The relevant provisions of Law no. 29/1990 on
administrative litigation at the date of the facts are described in Sabin
Popescu v. Romania, no. 48102/99, § 46, 2 March 2004.
Law 25/1969 on the status of foreigners provides
as follows:
Article 19
“(1) A foreigner who resides temporarily in Romania has the obligation to leave the country when the residence permit expires.
(2) The residence permit can be extended by the
Ministry of Interior. A request for extension shall be made at least 24 hours
before the expiry of the permit...”
Article 20
“The Minister of Interior may cancel or limit the right to
reside in Romania to a foreigner who has breached Romanian law...”
Article 21
“(1) A foreigner temporarily residing in Romania whose right of residence has been cancelled shall leave the country within 48 hours
of the time when the interdiction is communicated to him...
(3) If he does not comply with the obligation above,
he may be expelled by order of the Minister of Interior.”
The legislation has changed several times since
2001. Nowadays, under Emergency Ordinance no. 194/2002 as amended by Law no.
56/2007 and Emergency Ordinance no. 55/2007, a decision to expel a foreigner
drafted in Romanian and in an international language is served on the person concerned,
who may appeal against it before the court of appeal; the expulsion is
suspended during the proceedings (see Hussain v. Romania, no. 12338/02,
§§ 51-55, 14 February 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
Under Articles 5 and 6 of the Convention, the applicant
complained that she had been unlawfully arrested and placed in custody from 4
to
7 May 2000, as no expulsion proceedings had been pending against her at
that time. She also complained that she had not been informed of the reasons for
her arrest and that she had not had access to a court that would examine the
lawfulness of her arrest, given the absence of information and of time to
prepare her defence.
The Court considers that the complaint falls
within the scope of Article 5 §§ 1 (f), 2 and 4 of the Convention, which read
as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
...
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his arrest and
of any charge against him.
...
4. Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.”
A. Lawfulness of the applicant’s arrest
The Court will examine under Article 5 § 1 (f)
the applicant’s allegations that she was unlawfully arrested and placed in
custody.
1. Admissibility
The Government
raised a plea of non-exhaustion of domestic remedies in so far as this
complaint is concerned. In their view, the applicant should have lodged a
complaint against the exit visa under
Law no. 29/1990. They contended that such a remedy was accessible, adequate and
sufficient and therefore should have been made use of.
The applicant claimed that she had had no knowledge
of the existence of this appeal.
The Court considers that the Government’s plea
of inadmissibility is closely linked to the merits of the complaint under
examination. Therefore it joins the preliminary objection to the merits of this
complaint.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) The parties’ submissions
The Government averred that the applicant’s
detention in the Otopeni Centre had been provided for by Law no. 25/1969 and
had not been arbitrary. They contended that similar centres and procedures
existed in other countries as measures to prevent illegal immigration. They
also claimed that the applicant’s stay in the Otopeni Centre had been very
short and had only been effected for the repatriation formalities to be carried
out.
The applicant contended that although the
Romanian authorities had been aware for a long time before her arrest that she
had not had a valid residence permit, they had done nothing to put an end to
that situation. She also alleged that she had been treated like a criminal in
the Otopeni Centre.
(b) The Court’s assessment
The Court notes that, although the applicant
averred that no expulsion proceedings had been pending against her at that
date, it is not disputed that from 4 May to 7 May 2000 the applicant was
detained in the Otopeni Centre “with a view to deportation”, within the meaning
of Article 5 § 1 (f). It falls to the Court to examine whether the
applicant’s detention was “lawful” (see Chahal v. the United Kingdom,
judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V,
p. 1862, § 112).
Where the “lawfulness” of detention is in issue,
including the question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to the obligation to conform to the
substantive and procedural rules of national law, but it requires in addition
that any deprivation of liberty should be in keeping with the purpose of
Article 5, namely to protect the individual from arbitrariness (see, among
other authorities, Bozano v. France, judgment of 18 December 1986,
Series A no. 111, p. 23, § 54; Chahal, cited above, p. 1864, § 118;
and Čonka v. Belgium, no. 51564/99, §§ 38-39, ECHR
2002-I).
In this connection the Court reiterates that, in
laying down that any deprivation of liberty must be effected “in accordance
with a procedure prescribed by law”, Article 5 § 1 primarily requires any
arrest or detention to have a legal basis in domestic law. However, these words
do not merely refer back to domestic law; they also relate to the quality of
the law, requiring it to be compatible with the rule of law, a concept inherent
in all Articles of the Convention. Quality in this sense implies that where a
national law authorises deprivation of liberty, it must be sufficiently
accessible and precise in order to avoid all risk of arbitrariness (see Amuur
v. France, judgment of 25 June 1996, Reports 1996-III,
pp. 850-51, § 50, and Dougoz v. Greece, no. 40907/98, § 55,
ECHR 2001-II).
Lastly, the Court reiterates that although it is
in the first place for the national authorities, notably the courts, to
interpret and apply domestic law, under Article 5 § 1 failure to comply with
domestic law entails a breach of the Convention and the Court can and should
review whether this law has been complied with (see, among many other
authorities, Benham
v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, p. 753, § 41).
In the instant case, it appears that the
applicant’s detention was based on the standard form filled in by the Office
for Foreigners in the Ministry of Interior. It is not clear whether this form
was the Minister’s “order” required by Article 21 of Law no. 25/1969 (see
paragraph 31 above). However, in any event, the applicant was never given the
choice to leave the country of her own free will after the exit visa had been
applied to her passport as is envisaged by that provision. Furthermore, the
domestic courts were never called on to assess the regularity of the applicant’s
detention, either before the measure was taken or after, as no appeal against
the order was provided by law.
The Court also notes that Law no. 29/1990
indicated by the Government sets forth the general complaint mechanism against
administrative acts, which consists of two phases: a preliminary administrative
complaint followed by an action with the courts that respects the general
procedural requirements, including ordinary time-limits. The Court fails
to see how such an action would have been effective in the present case, given
the particular requirements of urgency dictated by the applicant’s situation, as
she was facing imminent expulsion. Furthermore, it notes that the Government
could not indicate any appeal procedure that was specially geared to persons
taken into custody with a view to repatriation.
Therefore, it concludes that the remedy does not relate to the
breaches alleged and is not sufficiently certain in practice, lacking thus the
requisite accessibility and effectiveness; the applicant was therefore
dispensed from making use of it (see, among other authorities, Navarra v.
France, judgment of 23 November 1993, Series A no. 273-B, p. 27, § 24,
and Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III).
The foregoing considerations are sufficient to
enable the Court to dismiss the Government’s preliminary objection and to conclude
that the applicant’s detention failed to comply with the “lawfulness” requirement.
There has accordingly been a violation of Article 5 § 1 (f) of
the Convention.
B. Obligation to inform of the reasons for the arrest
The Court will examine under Article 5 § 2 the
applicant’s allegations that she was not informed of the reasons for her
arrest.
1. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The Government contended that the applicant had
been informed on 4 May 2000 that she was going to be taken into custody. They
argued that the reasons for that measure had been communicated to her upon
arrival at the Otopeni Centre. In addition, the exit visa stamp applied to her
passport represented communication of the measure.
The applicant asserted that she had never been
provided with an interpreter or a lawyer to allow her to understand the
accusations.
The Court reiterates that paragraph 2 of Article
5 contains the elementary safeguard that any person arrested should know why he
is being deprived of his liberty. This provision is an integral part of the
scheme of protection afforded by Article 5: by virtue of paragraph 2 any person
arrested must be told, in simple, non-technical language that he can
understand, the essential legal and factual grounds for his arrest, so as to be
able, if he sees fit, to apply to a court to challenge its lawfulness in
accordance with paragraph 4. Whilst this information must be conveyed
“promptly”, it need not be related in its entirety by the arresting officer at
the very moment of the arrest. Whether the content and promptness of the
information conveyed were sufficient is to be assessed in each case according
to its particular features (see, mutatis mutandis, Murray
v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p.
31, § 72).
The Court notes that the applicant was informed
of the reasons for her detention on arrival at the Otopeni Centre (see
paragraph 16 above), and the information was confirmed by the Italian consulate
the next day. While it is true that she was not assisted by an interpreter or
counsel when the reasons were communicated to her, the Court notes that the
applicant could engage in dialogue with the police officers and had no
difficulty in understanding what was said to her and expected from her (see,
for example, paragraphs 9-12 and 29 above).
Therefore, the Court considers that the
information thus provided to the applicant satisfied the requirements of
Article 5 § 2 of the Convention.
Consequently, there has been no violation of that provision.
C. Right to appeal against arrest
The Court will examine under Article 5 § 4 the
applicant’s allegations that she had no access to a court that would examine
the lawfulness of her arrest.
1. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The Government contended that the applicant
could have lodged an appeal under Law no. 29/1990 (see paragraph 36 above) and
that she could have asked to be represented by a lawyer, but she had failed to
do so.
The applicant claimed that she had not been
allowed to contact anyone while she had been in the Otopeni Centre.
The Court reiterates that the existence of a
remedy under Article 5 § 4 of the Convention must be
sufficiently certain to give the individual concerned adequate protection
against arbitrary deprivation of liberty (see E. v. Norway, judgment of
29 August 1990, Series A no. 181-A, pp. 25-26, § 60).
Furthermore, in guaranteeing to persons arrested or detained a right to
institute proceedings, Article 5 § 4 also proclaims their right, following the
institution of such proceedings, to a speedy judicial decision terminating
their deprivation of liberty if it proves unlawful
(Van der Leer v. the Netherlands, judgment of 21 February 1990,
Series A no. 170-A, p. 14, § 35).
The Court notes that in the instant case the
Government’s submissions on this point are the same as those on which they
relied in support of their plea of inadmissibility raised in respect of the
complaint under Article 5 § 1 above. It reiterates that it has concluded that an
appeal under Law no. 29/1990 at the date of the facts would not have been
adequate in the applicant’s particular situation, in particular concerning the
time that it would have taken (see paragraph 47 above).
This appeal being the only one available to the
applicant at that time, the Court concludes that she did not have access to a
court that would decide speedily on the lawfulness of her detention.
There has accordingly been a violation of Article 5 § 4 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained that the real reason
for her repatriation was the quarrel that she had had with the commander of Police
Precinct no. 19, in violation of her right to freedom of expression
guaranteed by Article 10 of the Convention. Under Article 1 of Protocol No. 7
to the Convention the applicant complained that she had been expelled from
Romania although she had been granted a temporary visa valid from 5 to
12 May 2000 and that her expulsion had taken place before she had had the
opportunity to challenge the measure.
Lastly, in a letter of 3 May 2001, the applicant complained under
Article 3 of the Convention about her arrest and about the conditions of detention
in the Otopeni Centre.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed, in respect of pecuniary damage,
20,000 euros (EUR) for her investments in her companies in Romania that she could not recover after her repatriation and EUR 20,000 for the impossibility of
running her business in Romania.
She also claimed EUR 20,000 for non-pecuniary damage caused by
her arrest and expulsion and EUR 20,000 for the anguish and anxiety caused
to her and her husband by the fact that for three days he did not have any news
of the applicant’s fate.
The Government contended that the claims in
respect of pecuniary damage were not justified and that there was no causal
link between the complaints raised before the Court and the alleged damage.
They considered that the claims in respect of non-pecuniary damage were
excessive.
The Court reiterates that it has found a
violation of Article 5 §§ 1 (f) and 4, in connection with the applicant’s
arrest and detention in the Otopeni Centre awaiting her repatriation in Italy.
Even assuming that there was a causal link between the
violation found and the pecuniary damage alleged, the Court notes that the
applicant did not substantiate her claims under this head.
Furthermore, in the circumstances of the case, the
Court considers that the finding of a violation constitutes in itself a
sufficient just satisfaction for any non-pecuniary damage, which could have
been sustained by the applicant (see, mutatis mutandis, Saadi v. the
United Kingdom [GC], no. 13229/03, §§ 87-89, 29 January 2008;
Zeciri v. Italy, no. 55764/00, § 56, 4 August 2005; Sałapa
v. Poland, no. 35489/97, § 107, 19 December 2002; Włoch
v. Poland, no. 27785/95, § 157, ECHR 2000-XI; and
Nikolova v. Bulgaria [GC], no. 31195/96, § 76,
ECHR 1999-II).
B. Costs and expenses
The applicant did not make a claim for costs and
expenses.
Therefore, the Court will make no award under
this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits and dismisses the
Government’s preliminary objection of non-exhaustion of domestic remedies in so
far as Article 5 § 1 (f) is concerned;
2. Declares the complaints concerning Article 5
§§ 1 (f), 2 and 4 admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 5 § 1 (f) of the Convention;
4. Holds that there has been no violation of
Article 5 § 2 of the Convention;
5. Holds that there has been a violation of
Article 5 § 4 of the Convention;
6. Holds that finding a violation of
Article 5 §§ 1 (f) and 4 of the Convention constitutes sufficient just
satisfaction for non-pecuniary damage;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 June 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep
Casadevall
Deputy Registrar President
