CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 janvier 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s7AF76660 { font-family:Arial; font-size:7.33pt; vertical-align:super } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   16 12.01.2010     Press release issued by the Registrar   Chamber judgment [1]   Al-Agha v. Romania (application no. 40933/02)   DEPRIVATION OF LIBERTY OF A FOREIGN NATIONAL PENDING DEPORTATION AND CONDITIONS OF HIS DETENTION FOUND TO BREACH THE CONVENTION   Unanimously:   Violation of Article 3 (prohibition of inhuman or degrading treatment)   as regards the detention until September 2002 No violation of Article 3 as regards the detention after September 2002 Violation of Article 5 §§ 1, 4 and 5 (right to liberty and security) of the European Convention on Human Rights     Principal facts   The applicant, Mr Akram Ahmed M. Al-Agha, was born in 1945 and lives in Bucharest.   In 1962 he left the Gaza Strip, then under Egyptian administration, with an Egyptian travel document, to study in Cairo. Following the 1973 Yom Kippur War, his travel document was not renewed by the Egyptian authorities, but he obtained an Iraqi passport for Palestinian refugees, issued by the Iraqi Embassy in Tripoli. In 1993 he arrived in Romania on that passport, together with a Romanian visa, and settled there as a businessman.   In an order (Order no. 779) of 31 July 1998, on the basis of the Law on the rules governing aliens in the Socialist Republic of Romania, the Ministry of the Interior revoked Mr Al-Agha’s right to reside in Romania and declared him “undesirable”. The order was not served on him. On 3 August 1998 he was asked to leave the country. As he did not have a passport, the applicant was unable to leave Romanian territory within the prescribed time-limit.   On 15 February 2000 he was arrested and detained in the holding centre at Bucharest Otopeni Airport (“the centre”), for failure to comply with Order no. 779.   In June 2001 the Bucharest Court of Appeal upheld an application by Mr Al-Agha for his release, the annulment of Order no. 779 and an award of damages for unlawful detention. It noted that the applicant had not been informed that he had been declared “undesirable”, but only that his obligation to leave the country was due to the expiry of his residence permit.   In a final judgment of 25 September 2003 the Supreme Court held that, although Order no.   779 had not been served on the applicant since it was a secret document, he had been officially notified of its effects. It observed that he had been informed of the order’s existence while in the holding centre, where he had been placed in accordance with the law.   Mr Al-Agha claimed that in the centre he had endured precarious conditions in terms of hygiene and that there had been a lack of healthy food and physical exercise. He had been examined twice by way of routine medical assistance and after going on hunger strikes, but on several occasions he refused the treatment recommended. In February 2003 he was admitted to hospital and underwent specialist consultations and general tests.   In July 2003, Mr Al-Agha was released as the five-year period during which he had been declared undesirable had expired. Having been granted a refugee permit, he is now living in Romania in a centre managed by the National Refugee Office.     Complaints, procedure and composition of the Court   Relying on Articles   3 and 5, the applicant complained that his deprivation of liberty had been unlawful, that he had not had an effective remedy to challenge it and that the living conditions in the holding centre at Bucharest Airport had been poor.   The application was lodged with the European Court of Human Rights on 30 October 2002.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Alvina Gyulumyan (Armenia), Egbert Myjer (the Netherlands), Luis López Guerra (Spain), judges , and also Santiago Quesada , Section Registrar .   Decision of the Court   Article 3   The applicant's detention in the centre before September 2002 Mr Al-Agha’s allegations concerning the precarious conditions in the centre were corroborated by the report issued by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) following its visit in 1999. The Court referred in particular to the access to showers only once a fortnight, the limited physical exercise and the CPT’s comment that the centre was not suitable for long stays. Furthermore, the applicant had received medical treatment only during his hunger strikes.   Although there had been no intention on the part of the authorities to humiliate or debase Mr Al-Agha, the living conditions he had endured from February 2000 to September 2002 had undermined his dignity and had caused him to feel degraded, in breach of Article 3.   The applicant's detention in the centre after September 2002 The Court noted that in September 2002 the CPT had found the material conditions in the centre to be satisfactory and that, moreover, the applicant had refused a specialist medical examination in January 2003. In those circumstances, it was not established that the applicant's living conditions in the centre after September 2002 had been sufficiently severe to breach Article 3.   Article 5   5 § 1 Mr Al-Agha’s stay in the centre for three years and five months, without any possibility of leaving except with the authorities' consent, had amounted to a deprivation of liberty.   Detention in a holding centre with a view to deportation had a basis in Romanian law, and the relevant instrument satisfied the criteria of accessibility, having been published in the Official Gazette.   However, although the Government had justified keeping the applicant in detention by citing a risk to national security, no proceedings had been brought against him on that account and the Romanian authorities had not referred to any specific accusations against him. The Court further noted that in any event, even where matters affecting national security were concerned, individuals could not be deprived of safeguards against risks of arbitrary conduct by public authorities. Since Mr Al-Agha had not been afforded the minimum level of protection against such risks, his prolonged deprivation of liberty had had no legal basis satisfying the requirements of the Convention.   5 § 4 With regard to the right of an arrested person to have the lawfulness of his deprivation of liberty reviewed by a court, as guaranteed by Article 5, the Court noted that the Romanian courts had found that it had been impossible for the applicant to challenge Order no. 779 as it had not been served on him.   While welcoming subsequent legislative amendments concerning the status of persons declared “undesirable”, the Court observed that the applicant had been unable to benefit from them at the time of the events.   It concluded that Mr Al-Agha had not had an effective remedy to challenge the lawfulness of his deprivation of liberty, in breach of Article 5 § 4.   5 § 5 Despite stating that it had been open to the applicant to obtain compensation by means of an action for damages under the Civil Code, the Government had not given any examples of relevant case-law. In addition, Mr Al-Agha had unsuccessfully sought compensation in the national courts for unlawful detention.   The Court thus held that it was not established that the applicant had had the possibility of obtaining compensation for his deprivation of liberty, and found a violation of Article 5 § 5.   Article 41   Under Article 41 (just satisfaction), the Court awarded the applicant 17,000 euros in respect of non-pecuniary damage.   ***   (The judgment is available only in French.) This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   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.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.