Serviër woont 14 jaar in Boekarest maar wordt plotseling uitgezet omdat hij "een gevaar is voor de nationale veiligheid" - Mensenrechtenhof veroordeelt Roemenië (en)
Press release issued by the Registrar
CHAMBER JUDGMENT
LUPSA v. ROMANIA
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Lupsa v. Romania (application no. 10337/04).
The Court held unanimously that there had been:
· a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;
· a violation of Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens) to the Convention.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 15,000 euros (EUR) for pecuniary and non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available in French and English)
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1.Principal facts
The applicant, Dorjel Lupsa, 40, is a national of Serbia who lives in Belgrade. He lived in Romania for 14 years until his deportation in August 2003.
In 1989 he arrived and settled in Romania, where in 1993 he set up a Romanian commercial company whose activity was the torrefying and sale of coffee. He cohabited with a Romanian national from 1994 and they had a son, now three years old, who is a national of both Romania and of Serbia.
On 6 August 2003 the applicant, who had been abroad, came into Romania unimpeded by the border police. The next day, however, border police officers came to his house and deported him.
The applicant’s lawyer lodged an appeal against the removal measure. At a hearing before the Bucharest Court of Appeal on 18 August 2003 the applicant’s lawyer was provided with a copy of an order of 28 May 2003 issued by the public prosecutor’s office, in which, at the request of the Romanian Intelligence Service and in accordance with Emergency Ordinance no. 194/2002 on the rules governing aliens in Romania, the applicant had been declared an “undesirable person” and banned from Romania for ten years on the ground that there was “sufficient and serious intelligence that he was engaged in activities capable of endangering national security”. The Court of Appeal refused to grant a request by the applicant’s lawyer for adjournment of the case and dismissed his appeal.
In 2003 and 2004 the applicant’s girlfriend and their son went to Serbia and Montenegro on a number of occasions, staying for periods ranging from a few days to several months.
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2.Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 19 January 2004.
Judgment was given by a Chamber of 7 judges, composed as follows:
Boštjan M. Zupan?i? (Slovenian), President,
John Hedigan (Irish),
Lucius Caflisch (Swiss)2,
Corneliu Bîrsan (Romanian),
Alvina Gyulumyan (Armenian),
Egbert Myjer (Dutch),
David Thór Björgvinsson (Icelandic), judges,
and also Vincent Berger, Section Registrar.
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3.Summary of the judgment3
Complaints
The applicant alleged that his deportation and the exclusion order against him had violated Article 8 (right to respect for private and family life) and Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens).
Decision of the Court
Article 8
Since the applicant had indisputably integrated into Romanian society and had a genuine family life, the Court considered that his deportation and exclusion from Romanian territory had put an end to that integration and had radically disrupted his private and family life in a way which could not be remedied by the regular visits from his girlfriend and their child. Accordingly, there had been interference in Mr Lupsa’s private and family life, in accordance with Emergency Ordinance no. 194/2002.
The Court reiterated that a person subject to a measure based on national security considerations must not be deprived of all guarantees against arbitrariness. He must, among other things, be able to have the measure in question scrutinised by an independent and impartial body competent to review all the relevant questions of fact and law, in order to determine the lawfulness of the measure and punish a possible abuse by the authorities.
No proceedings had been brought against the applicant for being involved in any offence in Romania or any other country. Apart from one general ground, the authorities had not provided the applicant with any other details. The Court noted, furthermore, that, in breach of domestic law, the applicant had not been served with the order declaring his presence to be undesirable until after he had been deported. The Court also attached weight to the fact that the Court of Appeal had confined itself to a purely formal examination of the public prosecutor’s order, without seeking to confirm that the applicant really did represent a danger for national security or public order.
As the applicant had not enjoyed before the administrative authorities or the Court of Appeal the minimum degree of protection against arbitrariness on the part of the authorities, the Court concluded that the interference with his private life had not been in accordance with “a law” satisfying the requirements of the Convention. It accordingly held that there had been a violation of Article 8.
Article 1 of Protocol No. 7
As the Court had found, Emergency Ordinance no. 194/2002, which formed the legal basis for the applicant’s deportation, had not afforded him the minimum guarantees against arbitrary action by the authorities. Consequently, although the applicant had been deported in pursuance of a decision reached in accordance with law, there had been a violation of Article 1 of Protocol No. 7 in that the law did not satisfy the requirements of the Convention.
In any event the Court considered that the Romanian authorities had also infringed the guarantees to which the applicant should have been entitled under paragraph 1 (a) and (b) of Article 1 of Protocol No. 7. The authorities had failed to provide the applicant with the slightest indication of the offence of which he was suspected and the public prosecutor’s office had not sent him the order issued against him until the day of the sole hearing before the Court of Appeal. Further, the Court of Appeal had dismissed all requests for adjournment, thus preventing the applicant’s lawyer from studying the order and from producing evidence in support of her case against it.
Having regard to the purely formal review by the Court of Appeal, the Court found that the applicant had not been genuinely able to have his case examined in the light of reasons militating against his deportation. It held that there had therefore been a violation of Article 1 of Protocol No. 7.
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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int)
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Press Contacts
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.