*This text is an answer to the question from Valentin Gefter “How Does National and International Law Protect Foreign Offenders?”
In the context of migration and asylum in Europe, it is important to discuss the regime applicable to foreigners in the European Union’s member states: are there differences in safeguarding the rights of the said countries’ citizens and the foreigners on its territories?
When analyzing the ways in which Romania offers protection to foreigners on its territory, we should take into consideration the three main categories: migrants, asylum seekers and beneficiaries of international protection.
The regime of foreigners on Romanian territory is regulated by a separate law defining a “foreigner” as a person is not a citizen of Romania, or any other state in the European Union, the European Economic Area or the Swiss Confederation, in other words, a Third Country National. Exceptions from this particular category include foreigners with ongoing asylum claims, persons under diplomatic immunity, and beneficiaries of international protection.
The Romanian Constitution provides that foreign citizens or stateless persons can be extradited only based on international conventions or under conditions of reciprocity. Moreover, the Romanian Penal Code provides for the application of Romanian criminal law to foreign nationals or stateless persons if they have committed an incriminating act on Romanian territory.
The General Inspectorate for Immigration, the main public institution in the field of migration, has the right to revoke a foreigner’s right to stay on Romanian territory if it considers that permanent residency permit holders a threat to the public order after having committed a criminal offense. Moreover, the Penal Code provides the accessory and complementary punishment of prohibiting offenders from exercising the the right of stay on Romanian territory.
However, the measure of expulsion cannot be applied if there are serious reasons to believe that the person’s life will be in danger or that the person will be subjected to torture or inhuman or degrading treatments.
The first time the European Court of Human Rights decided this specific matter was in 1989, in Soering vs. Great Britain. Here, the Court asserted that a state can be held liable if it expels or extradites a person, if there are serious reasons to believe there is a real risk this person will be subjected to cruel treatment (in this particular case, the risk of the death penalty if the plaintiff were extradited to the United States). This started a series of cases in which the Court found that vague assurances from the country of origin and the absence of an efficient mechanism for preventing torture represents a violation of Article No. 3 of the European Convention of Human Rights (Baysakov and others vs. Ukraine, Klein vs. Russia, Khaydarov vs. Russia etc). As a signatory of the Convention, Romania,, follows and is bound to the principles and guidelines deriving from the case-law of the Court.
Also, in the case of Geleri vs. Romania, the Court found Romania in violation of Article 1 of Protocol No. 7 (procedural safeguards related to the expulsion of aliens), by not providing the expelled refugee with a minimum guarantee against arbitrariness.
What we must take into consideration is that the measure of expulsion can only be taken by a court, and that there is no need to prove that capital punishment or torture are certain for the person in question if expelled, but only to demonstrate that there are justified reasons to believe that.
The regime of the asylum seekers is governed by the Law regarding asylum in Romania. Concerning asylum seekers who become offenders or commit crimes, we must first consider the gravity of these offenses.
Administrative offenses, such as misdemeanors and minor infractions are sanctioned in the spirit of proportionality: for instance, failure to comply with the internal regulations of the Asylum Seeker Accomodation Center will attract a suspension or a limitation of the rights afferent to living in the Center.
In principle, asylum seekers are protected against return to their country of origin. The Law regarding asylum prohibits any measures of expulsion, extradition or forced return from the border or the state’s territory. One exception to this rule is provided in the Law regarding the prevention and fight against terrorism, which states that a person can be declared “undesirable” if there are reliable clues that said person intends to carry out or support acts of terrorism. This provision applies to foreigners, stateless persons, victims of armed conflicts, asylum seekers as well as refugees.
With the exception mentioned in the previous paragraph, asylum seekers are protected against expulsion, extradition or forced return as long as their claim is pending, so until there is a final and irrevocable court decision, or until the term for formulating an appeal expires.
Beneficiaries of International Protection
This category includes refugees and persons benefiting from subsidiary protection. The principle of not returning them to the country of origin applies in the same manner as for asylum seekers, as do aforementioned exceptions.
Nonetheless, without interfering with said rule, there is one more provision applying to beneficiaries of international protection. It envisions grounds for the removals of a person under subsidiary protected from the Romanian territory in two situations.
The first is if there is reason to believe that a person can be considered a threat to the security of the Romanian state. The second refers to the case in which the person is considered a threat to the public order after conviction for a serious crime through final court decision. The law defines a serious crime as an infraction or offense, committed with intent, for which the penalty is a deprivation of liberty of more than 5 years.
Romanian law protects migrants against expulsion, extradition or forced return to their country of origin. There are exceptions to this protection, however, related to acts of terrorism and grave crimes committed on Romanian territory. Nonetheless, the protection of human rights is manifested in the principle of non-return of asylum seekers. Sanctions expected upon return to country of origin such as torture, inhuman treatment or capital punishment are also taken into account.
- Constitution of Romania
- Penal Code
- Government Ordinance no. 194/2002 regarding the foreigners’ regime
- Law no. 122/2006 regarding asylum in Romania
- Law no. 535/2004 regarding the prevention and fight against terrorism
- Soering v. The United Kingdom, 07.07.1989, No. 14038/88, URL: http://hudoc.echr.coe.int/eng?i=001-57619
- Baysakov and Others v. Ukraine, 18.02.2010, No. 54131/08, URL: http://hudoc.echr.coe.int/eng-press?i=003-3035667-3351697
- Klein v. Russia, 01.04.2010, No. 24268/08, URL: http://hudoc.echr.coe.int/eng-press?i=003-3078902-3406144
- Khaydarov v. Russia, 20.05.2010, No. 21055/09, URL: http://hudoc.echr.coe.int/eng-press?i=003-3128374-3471445
- Makhmudzhan Ergashev v. Russia, 16.10.2012, No. 49747/11, URL: http://hudoc.echr.coe.int/fre?i=003-4119673-4848210
- Geleri v. Romania, 15.02.2011, No. 33118/05, URL: http://hudoc.echr.coe.int/eng-press?i=003-3437403-3863243
- Krivosej v. Serbia, 13.04.2010, No. 42559/08, URL: http://hudoc.echr.coe.int/eng-press?i=003-3094824-3431484