RAMZI v. ROMANIA
Inadmissible
Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Yanis M.M.A. Ramzi, is a Jordanian national, who was born in 1974 and lives in the United Arab Emirates. He was represented before the Court by Ms M. Stoica Josan, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant entered Romania in 1993 in order to follow university studies in Iaşi. In 1999 he moved to Bucharest, where he worked as salesman in a small store. 5. In September 2002, during a search conducted at the applicant’s flat, the police found 20.08 grams of cannabis and 0.08 grams of opium. On 3 December 2002 the Bucharest County Court convicted the applicant of possession of illegal drugs for personal use and sentenced him to two years’ imprisonment. The court also ordered the applicant’s expulsion upon completion of his sentence. In the course of the criminal investigation C.C., the applicant’s girlfriend and a Romanian citizen, was heard as witness. She declared that she had known the applicant for three years and that they had a son together, but she did not live with him. She also stated that he was a decent person and a good father who helped her raising their son. She explained that she had a key to his flat, where she would go once every two weeks or so, depending on the problems she encountered with her son. The applicant did not appeal against the judgment of 3 December 2002. 6. On 3 February 2004, after the applicant had finished serving his sentence, the Aliens Office within the Ministry of Interior, taking into account the applicant’s criminal conviction and based on the provisions of Article 102 of the Emergency Ordinance No. 194/2002 on the status of aliens, issued an order prohibiting him from entering Romania for a period of ten years. The same day, the applicant signed the order, thus acknowledging its receipt. He then left Romania voluntarily. 7. On 7 March 2004 the applicant married C.C. in Jordan. On 1 July 2004 the Slobozia District Court granted a request submitted by C.C. and established the applicant’s paternity of her child. 8. In 2005, the applicant requested the reduction of the ten-year period laid down in the order of 2004. He based his request on an amendment to Emergency Ordinance No. 194/2002 introduced in November 2004, which allowed for a fifty per cent reduction in the term of a prohibition on entering Romania to be applied to illegal aliens who were married to a Romanian citizen or had a child of Romanian citizenship. 9. On 14 February 2005 the Aliens Office replied to the applicant that the new amendment invoked by him did not apply to aliens who had committed crimes in Romania. Moreover, the applicant was informed that the amendment in question had come into force after he had already been expelled from Romania and it could not be applied retroactively. 10. On 5 May 2005 the applicant lodged a complaint before the administrative court against this reply. He requested the courts in his case to apply the more favourable provisions introduced by the new amendment to Emergency Ordinance No. 194/2002. Firstly, he argued that under amended Article 102 (2) of the above-mentioned ordinance he would have the right to a fifty per cent reduction in the term of his prohibition on entering Romania because he had a wife and child who were Romanian citizens. Secondly, he argued that the length of the ban on entering Romania could also be reduced to three years as provided by the newly adopted provisions in cases of aliens who had committed crimes. Lastly, the applicant alleged that the initial measure imposed in his case and the letter of 14 February 2005 rejecting his request for a reduction of the ban breached his right to family life as guaranteed by Article 8 of the Convention since he had a child in Romania who was still a minor. 11. On 19 November 2005 the Bucharest Court of Appeal rejected the applicant’s complaint, reasoning that civil law did not apply retroactively and he could therefore not benefit from the more favourable provisions of Emergency Ordinance No. 194/2002 since they had been adopted after his expulsion. The court pointed out that the applicant had not contested the order of 3 February 2004 setting forth the prohibition on entering Romania. It further held that Article 8 of the Convention had not been breached since the measure adopted in the applicant’s case was provided for by law, pursued the legitimate aim of preserving public order and protecting the rights and liberties of others, and had been applied because of the applicant’s criminal conviction. 12. The applicant’s appeal on points of law (recurs) against this judgment was rejected with final effect by the High Court of Cassation and Justice on 13 December 2006. The High Court, like the lower court, pointed out that the applicant had not contested the initial measure of 3 February 2004 prohibiting him from entering Romania. It further held that the lower court had correctly ruled that the new amendments to Emergency Ordinance No. 194/2002 did not apply retroactively. The High Court also held that the applicant’s allegations of a breach of his right to family life guaranteed by Article 8 of the Convention were ill-founded since he had married and had his paternity established after the issuance of the ban on his entering Romania. Moreover, the High Court observed that the applicant had married in Jordan and had not produced any proof concerning the existence of an actual family life in Romania. Under these conditions, relying on the Court’s judgment in the case of Pini and Others v. Romania (nos. 78028/01 and 78030/01, 22 June 2004), the High Court considered that the authorities’ refusal to apply the newly adopted regulations in the applicant’s case had been a proportionate decision falling within the ambit of the second paragraph of Article 8 of the Convention. 13. Article 117 of the Criminal Code, as in force at the time of the applicant’s conviction and referring to expulsion, reads as follows in its relevant parts: “A prohibition on remaining in Romania may be imposed on any alien who has committed a crime.” 14. Emergency Ordinance No. 194/2002 on the status of aliens, as it was in force on 3 February 2004, reads as follows in its relevant parts: “The order to leave Romanian territory may be contested before the Bucharest Court of Appeal within 5 days of notification thereof ...” “(3) For aliens who have committed crimes, the term of the prohibition shall be equal to the length of their sentence, but no less than ten years.” 15. Following an amendment which entered into force on 27 November 2004, new rules for calculating the term of the prohibition on entering Romania became applicable. Article 102 of the above-mentioned ordinance was amended to read as follows in its relevant parts: “(1) For aliens who entered Romania illegally but whose stay has become legal, the term of the prohibition [on entering Romania] shall be as follows:... (2) The limits of the prohibition as set forth in paragraph (1) above shall be reduced by half for the aliens who: ... d) are married to Romanian citizens or are parents of children of Romanian citizenship who are minors. (3) For aliens who have committed intentional crimes and have been expelled, the term of the prohibition shall be equal to the length of their sentence, but no less than three years.” The amendment of 27 November 2004 did not include any special provisions concerning the aliens whose term of prohibition had been established under the former text of the Emergency Ordinance.