ECHR: Hussain v. Romania judgment
19 February 2008
Judgment released 14. Feb in the case of Hussain v. Romania (application no. 12338/02), finds violation of Article 3 (lack of an effective investigation) re failure of to investigate applicant’s complaints of ill-treatment during detention; violation of Article 5 § 1 (right to liberty and security) re applicant’s illegal detention in transit centre of Otopeni Airport.
Press release issued by the Registrar, 14.2.2008
CHAMBER JUDGMENT
HUSSAIN v. ROMANIA
The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Hussain v. Romania (application no. 12338/02).
The Court held unanimously that there had been:
· a violation of Article 3 (lack of an effective investigation) of the European Convention on Human Rights, concerning the failure of the authorities to conduct an effective investigation into the applicant’s complaints of ill-treatment;
· a violation of Article 5 § 1 (right to liberty and security) of the Convention, concerning the applicant’s illegal detention in the transit centre of Otopeni Airport.
Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant 2,000 euros (EUR) in respect of non-pecuniary damage.
(The judgment is available only in French.)
1. Principal facts
The applicant is an Iraqi national who was born in 1956 and lives in Bucharest.
He submitted before the Court that the Romanian authorities had not conducted an effective investigation into his allegations of ill-treatment and complained of his detention in the transit centre of Otopeni airport between 1 and 17 August 2001.
The applicant arrived in Romania in 1977 in possession of a visa which was renewed at regular intervals until 26 October 1999, when his papers were allegedly stolen. From that point onwards he remained in Romania without a valid residence permit. The applicant had two children from a live-in relationship with a Romanian national. He claimed to have sole care of the children, having separated in 1999 from their mother who, he said, had lived abroad since 2000.
On 22 July 1999 the applicant lodged a complaint at the police station against his former partner, alleging that she had threatened and assaulted him. In response to an enquiry by the applicant, the public prosecutor’s office informed him that the examination of his complaint was continuing and that the police had been ordered to conduct further investigations.
On 19 November 1999 the applicant lodged a fresh complaint at the police station against his former partner and a third party who, he alleged, had been incited by her to threaten him and to hit his minor daughter. The criminal proceedings were terminated because the victims failed to attend two successive hearings without giving reasons.
On 18 April and 18 October 2000 Mr Hussain was allegedly assaulted again, this time by unknown persons. Two medical certificates drawn up on 12 and 18 October 2000 noted injuries to the applicant following the attacks. On 9 November 2000 he lodged a complaint with the public prosecutor’s office concerning the alleged attacks. On an enquiry by the applicant the public prosecutor’s office informed him that the police had been ordered to carry out further investigations.
On 1 August 2001, having been summoned to the police station in connection with one of his complaints, the applicant, who did not have a valid residence permit, was taken to the transit centre of Otopeni Airport with a view to his deportation. Mr Hussain claimed that no decision concerning his placement in the centre had been served on him. He alleged that he had been taken to the centre by force and in handcuffs. He left the transit centre on 17 August 2001, having applied for refugee status.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 22 January 2002.
On 5 January 2007 the Court indicated to the Romanian Government, under Rule 39 of the Rules of Court (interim measures), that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicant until further notice.
Judgment was given by a Chamber of seven judges, composed as follows:
Boštjan M. Zupani (Slovenian), President,
Corneliu Bîrsan (Romanian),
Elisabet Fura-Sandström (Swedish),
Alvina Gyulumyan (Armenian),
Egbert Myjer (Dutch),
David Thór Björgvinsson (Icelandic),
Ineta Ziemele (Latvian), judges,
and also Santiago Quesada, Section Registrar.
3. Summary of the judgment2
Complaints
Relying on Article 3 of the Convention, the applicant alleged that the public prosecutor’s office had not examined the three complaints lodged by him against third parties who he claimed had assaulted him. The applicant also complained under Article 5 § 1 of the Convention that his detention in the transit centre of Otopeni Airport had been unlawful.
The Court declared inadmissible the applicant’s complaint concerning the events of 19 November 1999.
Decision of the Court
Article 3
The Court observed that the applicant claimed to have been assaulted in July 1999 and again on 18 April and 18 October 2000, and that he had reported each incident to the police or the public prosecutor’s office. It also noted, with regard to the incidents of 18 April and 18 October 2000, that the arguable nature of the applicant’s claims stemmed from two medical certificates dated 12 and 18 October 2000.
The Court noted that the Romanian Government had provided information only in relation to the complaint concerning the conduct of the investigation into the incident of 19 November 1999, without making any reference to the other incidents.
In that regard the Court observed that, although the applicant had informed the competent authorities of the alleged violations by means of his complaints, the authorities’ response had been simply to inform him that the police had been instructed to carry out further investigations. Moreover, the Government had not supplied any information or documents demonstrating that investigations had been conducted with due diligence and that the judicial authorities had given a ruling.
Accordingly, the Court concluded that the State had failed in its obligation under Article 3 to carry out a thorough and effective investigation into the applicant’s allegations of ill-treatment by individuals. There had therefore been a violation of Article 3.
Article 5
While the “lawfulness” of detention under domestic law was an essential criterion, the Court observed that the relevant legislation at the material time provided that, until the order for their removal had been executed, aliens who did not have travel documents or financial resources were to be accommodated in centres created for the purpose. In addition, aliens accommodated in those centres had to be informed in writing of the reasons for their detention and their rights and obligations.
In the applicant’s case, there was no evidence in the case file to indicate that written notice had been given, although domestic law required it.
The Court therefore concluded that no decision specifying the reasons for placing the applicant in the transit centre, the length of his stay there and his rights and obligations had been sent to the applicant at the material time. Accordingly, since no decision had been served on the applicant, the Court could not subscribe to the Government’s view that he had had the opportunity to appeal against the measure in question.
Accordingly, the Court held that the applicant’s detention had not satisfied the requirements of domestic law owing to the absence of the statutory notice, in breach of Article 5 § 1 (f).