CASE OF RUSU v. AUSTRIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-2;Violation of Art. 5-1-f;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1967 and lives in Timisoara, Romania. 7. On 24 February 2002 the applicant’s passport and luggage were stolen in Nice when she was on her way back to Romania from a journey in Spain. After the French police had provided her with a document certifying that she had declared the theft, she continued her trip via Italy and Austria. 8. On 25 February 2002 the Hungarian border police refused the applicant leave to enter Hungary and sent her back to the Austrian border police; on the same day, the Neusiedl/See District Administrative Authority (Bezirkshauptmannschaft) ordered her detention with a view to her expulsion pursuant to section 61(1) of the Aliens Act 1997 (Fremdengesetz 1997). The reasoning read as follows: “You entered Austrian territory, coming from Italy, at 10.30 a.m. on 25 February 2002 at 2425 Nickelsdorf (marker stone A29-30), circumventing border controls and without being in possession of a valid travel document and stamp. On 25 February 2002 at 10.30 a.m. you were apprehended by border control officials. Your entry into and stay in Austria are therefore illegal. You do not have any fixed accommodation in Austria, nor do you have sufficient funds to finance your stay. The Neusiedl/See District Administrative Authority has instituted proceedings for your deportation with a view to your expulsion from the country. In view of the foregoing there is reason to fear that, if released, you would abscond and seek to evade the proceedings.” 9. The order for the applicant’s detention with a view to her expulsion (Schubhaftbescheid), issued in German and consisting of two pages, included instructions as to available remedies (Rechtsmittelbelehrung), referring in particular to a complaint to the Independent Administrative Panel (Unabhängiger Verwaltungssenat) against the lawfulness of the order, arrest or detention. It was handed to the applicant at around 6 p.m. together with two information sheets in Romanian. 10. Information sheet I read as follows: “Section A You are hereby informed that you have been arrested by law-enforcement officers (federal police/customs officers/Austrian federal army) in accordance with section 43(1)(2) of the Aliens Act because you entered Austria without reporting to the Border Control Office and were apprehended immediately afterwards. You are entitled to have a relative or other person close to you advised of your arrest, at your request, without unnecessary delay and according to your choice. In addition, the consular representation of your country of nationality will be immediately informed of your detention. You will be immediately brought before the authority responsible, namely the Neusiedl am See District Administrative Authority, which will issue the subsequent orders. Section B I ... (Name) ... (Date of birth)..., would like the following person to be advised of my arrest: ... Would you like your consular representation in Austria to be informed of your arrest? Yes O No O By signing, I also confirm receipt of information sheet I. (Signature)” 11. The applicant filled in the form, asking that Mr L. B. [full name], whose address and telephone number she indicated, be informed of her arrest, and ticked the box indicating that she wished the consular representation to be informed of her arrest. The applicant duly signed the form. 12. Information sheet II read as follows: “Section A (1) You are informed that the Neusiedl am See District Administrative Authority/Federal Police Directorate have, in accordance with section 41(1) and (2) of the Aliens Act, ordered your detention pending deportation as being necessary to secure your expulsion or deportation to your country of nationality. Aliens, that is to say, persons who are not Austrian citizens, may, according to section 35(1)(1) of the Aliens Act, be required to return to a foreign country if they have entered Austria without reporting to the Border Control Office and have been apprehended within 7 days. According to section 17(2)(6), aliens may, in the interest of public order, be expelled on the basis of an order if they have entered Austria without reporting to the Border Control Office and have been apprehended within 1 month. In your case, you were arrested by law-enforcement officers on 25 February 2002 at 10.30 a.m. after entering federal territory in the ... local administrative area on 25 February 2002 at ... o’clock without reporting to the Border Control Office, and therefore illegally. (2) You are entitled to appeal to the Independent Administrative Panel (‘UVS’ – Unabhängiger Verwaltungssenat) of the Province of Burgenland, alleging the unlawfulness of the order for your detention pending deportation, your arrest or your detention. This appeal can be addressed to the Independent Administrative Panel Burgenland, Neusiedlerstraße, 7000 Eisenstadt or to the Bezirkshauptmannschaft Neusiedl/See, Eisenstädterstr. 1a, 7100 Neusiedl am See (designation and address of the District Administrative Authority). Please mark the envelope ‘UVS-Beschwerde’ (‘UVS Appeal’). (3) If you have not taken part in the determination of your identity and nationality to the required extent or if the approval necessary for entry has not been given by another country, detention pending deportation can last for six months if earlier deportation is not possible for these reasons. Therefore it is above all in your interest to declare any identity papers which may have been handed over to other persons or hidden or thrown away in Austria, in particular travel documents, or to have them sent by your relatives from your country of nationality. Your participation in the determination of your identity by your representation office can also considerably shorten your detention pending deportation. (4) If you have further questions you can also address them in writing to Bezirkshauptmannschaft Neusiedl/See, Eisenstädterstr. 1a, 7100 Neusiedl am See (designation and address of the District Administrative Authority). Section B (1) Can you contribute to the determination of your identity? Yes O No O (2) Furthermore, I confirm by this signature the receipt of information sheet II dated ... (Signature)” 13. The applicant ticked the box stating that she could contribute to the determination of her identity, and signed the information sheet confirming that she had received it on 25 February 2002. 14. That evening she was transferred to the Graz police detention centre, where she was issued with a leaflet in Romanian informing her of her rights as a detainee (Informationsblatt für Festgenommene), including the maximum length of police detention, the right to consult a lawyer, the right to inform a person close to her and the consulate, the right to obtain medical care, and her rights during questioning. She also received and signed an information sheet concerning assistance for persons in detention pending deportation (Information über die Schubhaftbetreuung) in Romanian and ticked the box for requesting such assistance. She also received a short version of the internal prison rules. 15. According to the applicant, she then requested a lawyer and an interpreter in order to be informed of the reasons for her arrest. She alleged that her request had been ignored. In the Government’s view these submissions were misleading since the relevant information had been provided to the applicant through information sheets I and II. 16. On 26 February 2002 the Neusiedl/See District Administrative Authority requested the Romanian embassy in Vienna to issue a provisional travel document for the applicant’s return and to do so speedily, given the applicant’s detention with a view to her expulsion. This letter was dispatched and sent by registered post on 27 February 2002 and arrived at the Romanian embassy on 1 March 2002. 17. Also on 26 February 2002 the applicant called the Romanian embassy in Vienna, which promised to issue her with a provisional travel document by 1 March 2002. This did not happen, even after two more phone calls by her to that effect. 18. On 7 March 2002 the applicant was questioned at the Graz police detention centre in the presence of an interpreter, for the purpose of issuing an expulsion order. The minutes of this interview were prepared in German. According to the minutes the interpreter translated into Romanian the decision of 25 February 2002 ordering the applicant’s detention with a view to her expulsion. 19. The applicant submitted that it was only then that she had learnt for the first time that she was going to be expelled from Austria. The Government contested this statement as being incorrect in the light of the above submissions concerning information sheet II, which had been handed to the applicant on 25 February 2002. 20. On 13 March 2002 the Neusiedl/See District Administrative Authority issued a deportation order (Ausweisungsbescheid) against the applicant. The order was transmitted by fax to the Graz police detention centre and handed to the applicant on 14 March 2002. 21. On the same day the Romanian embassy in Vienna issued a provisional travel document, valid from 13 March until 13 May 2002, which was received by the Neusiedl/See District Authority on 15 March 2002. This document was transmitted to the Graz Federal Police Directorate on 18 March 2002 and from there immediately to the Graz police detention centre. 22. On 15 March 2002 the Austria-Hungary liaison office (Kontaktbüro) examined whether the applicant was prohibited from entering Hungary. 23. On 22 March 2002 she was expelled by train from Austria via Hungary to Romania. 24. At the material time, the relevant provisions governing the arrest and detention of aliens with a view to their expulsion and remedies against such arrest and detention were contained in the Aliens Act 1997 (Fremdengesetz 1997), which entered into force on 1 January 1998. 25. Section 61 governed detention with a view to expulsion. In so far as relevant, it provided: “(1) An alien may be arrested and detained (detention with a view to expulsion) where this is necessary in order to secure the conduct of the procedure for issuing an exclusion order or an expulsion order until it becomes enforceable, or in order to secure his or her expulsion, removal or transit. ... (2) Detention with a view to expulsion shall be based on an order. ... ... (4) The decision to detain a person with a view to his or her expulsion shall be amenable to appeal under section 72.” 26. Section 63 concerned the arrest of aliens. In so far as relevant, it provided: “(1) The law-enforcement agencies shall be empowered to arrest an alien: ... 2. who is apprehended within seven days of entering the country, if he or she has entered the country by circumventing the border controls. ...” 27. Section 66 dealt with less intrusive measures: “(1) The authorities may refrain from detaining a person with a view to his or her expulsion if they have reason to believe that the same purpose can be achieved by means of less stringent measures. ... (2) Less stringent measures shall take the form in particular of an order to reside in accommodation designated by the authorities. Less stringent measures shall be implemented only if the alien concerned agrees to the collection of personal identification data, ... (3) Following collection of his or her personal identification data, the alien concerned shall reside in the accommodation designated by the authorities and shall report every other day to a police station designated for the purpose. ...” 28. The provisions referred to in the two information sheets (see paragraphs 10 and 12 above) were the relevant provisions of the Aliens Act 1992, which was in force prior to 31 December 1997. Sections 17(2)(6) and 35(1)(1) governed the right to expel aliens who had entered Austria illegally by circumventing border controls. Section 43(1)(2) concerned the arrest of aliens who had been apprehended within seven days of circumventing border controls, and section 41 concerned detention with a view to expulsion. 29. Section 72 of the Aliens Act 1997, in so far as relevant, provided: “(1) Persons arrested under section 63 or who have been or are being detained on the basis of this Federal Law, shall have the right to apply to the Independent Administrative Panel alleging the unlawful nature of the order for their detention with a view to expulsion, or of their arrest or detention.” 30. Section 73 of the Act, in so far as relevant, provided: “(1) The Independent Administrative Panel within whose judicial district the applicant was arrested shall be competent to deal with the application. (2) ... 2. The Independent Administrative Panel shall give a decision on the alien’s continuing detention with a view to expulsion within one week, unless the alien’s detention ends sooner. ... (4) If the alien concerned remains in detention, the Independent Administrative Panel must in any event determine whether at the time of its decision the conditions for his or her continuing detention with a view to expulsion are met. ...” 31. Decisions given by the Independent Administrative Panel may be challenged before the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof).