Free access to non-litigations procedures for asylum seekers

Author:Ioan Zonga
Pages:124-147
SUMMARY

To streamline the asylum system are the main existing instruments at international, European and national level which guarantees access to the asylum procedure. At European level reform legislation regarding common procedures for granting and withdrawing international protection and establishing standards for the reception of applicants for international protection, the State responsible for examining an asylum visas to family members, to implement a system Common European Asylum efficient, which is why Romania has complied and amended its national legislation. Bodies which promotes the rights of asylum seekers and refugees then collaborate effectively for improving reception conditions, avoiding the detention status of asylum seekers until final resolution of the asylum application. In all stages of the procedure to consider the special needs of vulnerable groups such as children, victims of torture, sexual violence or human trafficking, persons with physical or mental disabilities, and those subject to certain risks that you would life-threatening. In particular additional safeguards for asylum-seekers must be accompanied by minors. This includes the need to appoint a guardian or legal representative for the minor. Unaccompanied minors will be given extra care and protection and shall be free from all forms of violence, abuse or exploitation. It is mandatory that they be fully accommodated a specialized center for children. They will be held in centers which are not adapted to the presence of children.

 
CONTENT
124 IOAN ZONGA
FREE ACCESS TO NON-LITIGATIONS PROCEDURES FOR
ASYLUM SEEKERS
Ioan ZONGA
ABSTRACT
To streamline the asylum system are the main existing instruments at international, European
and national level which guarantees access to the asylum procedure. At European level reform
legislation regarding common procedures for granting and withdrawing international protection and
establishing standards for the reception of applicants for international protection, the State
responsible for examining an asylum visas to family members, to implement a system Common
European Asylum efficient, which is why Romania has complied and amended its national
legislation.
Bodies which promotes the rights of asylum seekers and refugees then collaborate effectively for
improving reception conditions, avoiding the detention status of asylum seekers until final resolution
of the asylum application.
In all stages of the procedure to consider the special needs of vulnerable groups such as children,
victims of torture, sexual violence or human trafficking, persons with physical or mental disabilities,
and those subject to certain risks that you would life-threatening.
In particular additional safeguards for asylum-seekers must be accompanied by minors. This
includes the need to appoint a guardian or legal representative for the minor.
Unaccompanied minors will be given extra care and protection and shall be free from all forms
of violence, abuse or exploitation. It is mandatory that they be fully accommodated a specialized
center for children. They will be held in centers which are not adapted to the presence of children.
Key words: asylum seekers, refugees, European Regulation, national legislation, procedures.
1. History, definitions, concepts
Refuge was first used by the Hittites to provide protection in their sanctuaries
to people who were accused of committing crimes with political character,
belonging to neighboring peoples (Assyrians, Mitanni, Babylonians, Hurrians).
Asylum was practiced by Egyptians since the time they were a great empire and
PhD Candidate at National University of Political Studies and Public Administration Faculty
of Public Administration Honorary researcher at Romanian Institute for Human Rights; e-mail
zongaioan@yahoo.com.
Law Review vol. VI, special issue, December 2016, p. 124-147
Free access to non-litigations procedures for asylum seekers 125
was the privilege of the sovereign granted of priests in order to protect sacred sites,
temples, shrines, altars etc.-and their surroundings.
In terms of terminology the word „asylum" is of Latin origin (asylum) and
originates from the Greek word „asylia” (inviolable, literally translated
"prohibition against stealing") is a form of „asylos" (inviolable). Etymologically the
term "asylos" comes from „a" (no) and „syle" (catch/arrest), and hence the term
„asylum" (asylum) means „could not be pursued" or „not to be arrested",
„protection against persecution ",„ place of refuge, shelter, refuge ".
Over time, this has evolved to mean a place where a person chased
(prosecuted) for various reasons able to find refuge and receive help and
protection.
In ancient Greece, as each city had its own code of law order and the
"inviolability" enjoyed all the people who were outside the jurisdiction of their own
cities and worked as merchants, athletes, envoys, pilgrims, artists, athletes, etc. and
it was recognized by all polis1. Inviolability was characteristic of temples, altars,
shrines and called „asyla hiera”2.
A person in need of protection who entered in a temple, sanctuary must
accomplish the procedure by which a wanted person seek refuge called the
institution of hiketeia3 or supplication (person in need of help sat down on the altar
or at the image of the god holding a symbol identifying him as a suppliant, a
freshly broken off twig or a strand of wool), at which point they became applicants
for refuge. Through this request asylum seekers qualify for leniency from the city
to his pursuers and became part of the sacred sanctuary that is was because the
Greeks considered a sacred temples and supplication belong to gods and became a
divine law and was valid for citizens and strangers as well, because no one could
entered in such places to harm or arrest the supplicant but it just inside the city
(polis). To qualify for leniency the asylum seeker must convince the priests of the
temple that he deserve protection of the temple, otherwise will be removed from
the temple or shrine or handed over his pursuers and could even lose his life.
Priests were listening the applicants and took a decision based on political
motivation of its request, the possibility of revenge pursuers, what kind of crime
committed to find out what punishment awaits for him etc. Rejecting a person who
need protection and begged for it counted as sacrilege4, not everyone who sought
and received refuge was, they had to convince the priests meriting protection the
new city, and the crime was political.
1 Ulrich Sinn, „Greek Sanctuaries as Place of Refuge” in Nanno Marinatos and Robin Hagg
(eds.), „Greek Sanctuaries: New Approaches”, London, Routledge 1993, p. 71.
2 Rob W. M. Schumacher, „Three Related Sanctuaries of Poseidon: Geraistos, Kalaureia and
Tauron“ in Nanno Marinatos and Robin Hagg (eds.), „Greek Sanctuaries: New Approaches”, London,
Rutledge 1993, p. 55.
3 Ulrich Sinn, „Greek Sanctuaries as Place of Refuge” in Nanno Marinatos and Robin Hagg
(eds.), „Greek Sanctuaries: New Approaches”, London, Routledge, 1993, p. 72.
4 Idem, p. 72.
126 IOAN ZONGA
For a good organization inside the temples to preserve hygiene, cleanliness, to
supply sanctuaries with food and water to continue functioning temple for its
original purpose, priests have limited movement of asylum seekers in certain areas
specifically bounded.
When the Romans took over Greece, they used asylum as a means to achieving
domination. Once they established themselves in Greece, they put restrictions on
asylum, and its abuses were no longer permitted. The Greek city structure was
revised, and not many temples retained the right to give asylum5. They curtailed
the right of temples to grant asylum in the interest of order and under the reign of
Tiberius in 22 AD, the Roman Senate required temples to produce to the Senate
legal proof of their right to grant asylum. For this reason the majority were
stripped of their status as „asylia”6. And all of this because the importance of
protection stemmed less from the refuge it afforded to local criminals, or to exiles
who had been forced to leave their home states, than from the shelter it gave to
fugitives who had fled abroad and were sought for extradition7.
In Rome asylum provided temporary protection and saved the fugitive from
the immediate vengeance, immunity from prosecution until evidence could be
gathered and a formal trial could be held in front of a magistrates and if he was
condemned at this trial he has been punished. The procedure was to go not to a
temple but to the busts of statues of the Caesars.
The Romans protected the slaves and considered that to shelter a slave who
runaway from his master (who have the right to kill him, because Roman law
considered the slaves „alieni juris”, that he is a „good” of his master) is a theft and
must return to his master, but a slave who runaway from his master to a temple or
to a statue of Caesar is not considered a fugitive, but a asylum seeker8. The Romans
received the fugitives in this temple and refused to deliver them because, as they
declared, they were directed by an oracle of Apollo to protect the asylum from
violation9. A fugitive slave could be given asylum, but he could not claim it as a
right. A soldier could find asylum at the foot of the standards of the legions10.
After Constantine’s Edictum Mediolanense of Toleration in 313 AC, signed by
the two Roman emperors Constantin and Lycinius, which guaranteed religious
5 Tacite, Annales, IH, 63, coll. Bude, Vol. 11 in S. Prakash Sinha, „Asylum and International Law”,
The Hague: Martinus Nijhoff, 1971, p. 9.
6 S. Prakash Sinha, „Asylum and International Law”, The Hague: Martinus Nijhoff, 1971, p. 9;
N. M. Trenholme, „The Right of Sanctuary in England; A Study in Institutional History”, 1903, p. 5.
7 Coleman Phillipson, „The International Law and Custom of Ancient Greeks and Romans”,
vol. 1, 1911 (reprinted Buffalo, NY: William S. Hein, 2001, p. 361); Rigsby, Asylia, p. 11; and
Christopher L. Blakesley, „The Practice of Extradition from Antiquity to Modern France and the United
States: A Brief History,” Boston College International and Comparative Law Review, 4, 1981, p. 41.
8 Justinian, Digest, trans. Alan Watson as Digest of Justinian, vol. 1 Philadelphia, PA: University
of Pennsylvania Press,1998, at 1.21.1.17.12.
9 Plutarch, Lives of the Noble Greeks and Romans, ed. by J. and W. Langhorne, p. 16, 1875.
10 C. Phillipson, „Greeks and Romans”, p. 356.
Free access to non-litigations procedures for asylum seekers 127
tolerance in the Roman Empire, Christian churches became places for asylum.
In 392 AC is the first time mentioned this places „Sanctuary” and Emperor
Theodosius stipulated that those who sought sanctuary in churches could not be
removed by force. In addition to slaves complaining of mistreatment, churches
began to shelter debtors and accused criminals for whom bishops would use their
influence to intercede and plead for leniency11. The main purpose of the Asylum
was to protect the innocents, not the guilty persons and to granting asylum the
judgement was that the supplicant had been submitted to an abuse of authority
and that the punishment he or she faced was iniquitous
The Christian perspective governed the practice of asylum in medieval Europe
and the church extended asylum to all fugitives including atrocious. The biblical
six cities of Israel explicitly excluded from refuge intentional murderers as well as
the sanctuaries of Rome, in 511 AC the Council of Orléans included “homicides,
adulterers, and thieves” as potential recipients of sanctuary and extended the
privilege to the bishop's residence and 35 paces beyond the walls of the building12.
In 638 AC., the Council of Toledo extended asylum to even the gravest of all
offenders, such as traitors. As well in Germanic law, intentional murderers were
frequently given immunity inside churches13.
In 681, the Council of Toledo set a circumference of 35 steps from the church
within which the persecution of the criminal was prohibited14. The violators of the
asylum were excommunicated by the church or condemned to some other spiritual
pains. The earlier personal character of asylum was increasingly replaced by its
territorial character. The places of asylum were increasingly expanded to include
convents, monasteries, cemeteries, places of bishops and Canons, hospitals, such
establishments as those of the Knights of Saint-John of Jerusalem and of Templars,
and even the crosses placed along the way15. In 535 AC Justinian confirmed the
edicts of asylum made by his predecessors, refusing, however, asylum to
murderers, adulterers and rapists16.
In 1140, Pope Gratian codified the ecclesiastical law of asylum and this had
been developed during the course of the 12th century. Certain crimes were
excluded from the protection such as: return to Judaism, assassination in the
church or a cemetery by a traitor or for a price, violation of the right of asylum
11 Justinian, Digest, trans. Alan Watson as Digest of Justinian, vol. 1 Philadelphia, PA: University
of Pennsylvania Press,1998, at 1.12.2; see also Theodosian Code, 9:45.
12 J. Bingham, „Antiquities of the Christiall Church and Other Works”, Vol. III, 1855, p. 214.
13 Karl Blaine Shoemaker, „Sanctuary Law: Changing Conceptions of Wrongdoing and
Punishment in Medieval European Law,” unpublished Ph.D. thesis, University of California-Berkeley
2001, p. 116.
14 P. Wilutzky, „Vorgeschichte des Rechts”, Breslau, 1903, p. 107.
15 H. Wallon, „Du droit d'asyle”, vol. 1, 2, 1837, p. 67.
16 Justinian, XVII, XXXVII.
128 IOAN ZONGA
itself, counterfeiting the apostolic letters and money, and engaging in duels17. After
a period of struggle and breach of asylum, the canon law was again codified by the
constitutions of Gregory XIV, 24 May 1591 (Cum Alias), and Benedict XIII,
8 June 1725 (Ex quo divina). These constitutions recognized the right of asylum in
churches, chapels, monasteries, certain houses, the tower and the walls of the
church, the palace of the bishop, and the seminary of the theologians. The violators
of asylum were regarded sacrilegious and were excommunicated latae sententiae18.
Limitations were put on the type of criminals entitled to asylum by the edicts of
Clement XI (1712 and 1720)19, Benedict XIV (1750)20, and Clement XIII (1758)21.
The divine character of the right of asylum was denied by the jurists and it was
restrained. It was regarded as an institution created by man within the competence
of the state for regulation or even abolition. In the Protestant countries the Church
power decreased and their privileges began to fall. The new state-nation which
arise in that period claimed the right to administrate the justice, to pursue the
Reformation. The Europeans kings claimed to the Pope to curtail the privileges and
the right of asylum, but the Court from Rome brushed-off, reasons for kings,
starting with Louis XII of France to abolish it in 1515 and finally was abrogated
under Francis I by the ordinance of Villers Cotterets of 1 August 153922. Under the
ordinance of 1547 of Henry II, criminals could be searched and seized in all
churches and sanctuaries. In England23, the privilege of sanctuary was abolished in
1625 by an act of Parliament24. In Switzerland, the right of asylum is last mentioned
in an act of 1528. In Spain Philip II issued an ordinance in 1570 abolishing asylum
in Spain and its possessions, but it was not until 1835 that the law was able to
effectively regulate25. In Italy, church asylum was extensively used until it was
limited in 1741 to a small number of petty offenses26. In the Kingdom of Sardinia
was abolished by the law of Siccardi of 9 April 1850, in Prussia in 1794, in
Württemberg in 1804, in Bavaria in 1818, and in Saxony in 182727.
17 E. Magnin, „Immunites ecclesiastiques," in A. Vacant, „Dictionnaire de theologie catholique”,
Vol. III, 1922, p. 1257-1258.
18 P. van der Haeghen, „Le droit d'asile”, 1858, p. 26-27.
19 Const. „Ad. Apost.”, 18 June 1712; and „Non Sine ingenti”, 5 January 1720.
20 Const. „Officii Nostri”, 15 March 1750.
21 Const. Inter graviores, 30 September 1758.
22 Article 166 of this ordinance in effect abolished asylum in civil matters and subordinated the
penal asylum to the decision of the judge. Neron, Ordonnances des rois de France, Vol. I, p. 254.
23 W. Blackstone, The Commentaries on the Laws of England, Vol. IV, p. 347 (1765-1769); L. O. Pike,
A History of Crime in England, Vol. 11, p. 253 (1873-1876).
24 Statute of Realm, IV, s. 2, 1051, 1237.
25 C. de Beaurepaire, „Essai sur l'asile religieux dans l'Empire romain et la monarchie francaise,”
4 Bibliotheque de l'Ecole des Chartes (3-e serie) 351, 573, and 5 id. 151, 341 (1853-1854).
26 P. Colletta, „Histoire du Royaume de Naples”, Vol. 1, p. 89, 1834.
27 C. Recht, „The Right of Asylum,” p. 9-10, (1935).
Free access to non-litigations procedures for asylum seekers 129
It is interesting to note that the mandatory regime in Palestine recognized the
Mosque of Omar as a place of asylum for the Grand Mufti of Jerusalem28.
The notion of asylum, based on historical and etymological aspects of it, which
shows that the origins of the concept of asylum in the legal sphere were developed
by Hugo Grotius29, considered one of the fathers of public international law, in his
writings stated that asylum „was deserved only by those whose mind is
innocent30," not those „whose life is full of wicked acts", which is why he was
considered to be a cause of war several times31.
The doctrine (lore) was noted that the term "asylum" rather includes certain
places, areas or territories where a person can not be arrested due to the fact that
the space is protected by a national force.
In Europe the first state which enshrined the right to asylum in the
fundamental law was France which in the French Constitution of 1793 (Acte
constitutionnel du 24 juin 1793) promulgated but never applied, provided that
granted "asylum to foreigners expelled from their homeland to the cause of
freedom "(would give asylum to those foreigners who had been banished in their
homeland for the cause of liberty).
Further development of this institution was made so by law provisions of
States and international cooperation on the path conclusion mainly bilateral
treaties and adopting a declaration.
Internationally, the institution of asylum is generally discussed in terms of
granting this status and state of persons who requests it. In terms of the State
acceptance or refusal of asylum is an exclusive right of its being the expression of
its sovereignty. International law to seek asylum recognized in the Universal
Declaration of Human Rights adopted by the UN General Assembly on 10
December 1948 under article. 14 asylum, so „In case of persecution, everyone has
the right to seek and enjoy asylum in other countries. This right may not be
invoked in the case of prosecutions genuinely arising from a political crimes or
from acts contrary to the purposes and principles of the United Nations.32"
Although asylum is not explicitly guaranteed by international treaties globally,
however it is protected in some regional based instruments. American Convention
on Human Rights mention that under article. 22 para. 7 "Everyone has the right to
seek and offer him asylum in a foreign territory, in accordance with State law and
international conventions33."
28 See entry on „Asylrecht" in Strupp-Schlochauer, Wörterbuch des Völkerrechts, Vol. 1, 1960.
29 Hugo Grotius, „De jure belli ac pacis”, trad. A. C. Campbell, 1814, Hyperion Press 1979.
30 Idem, II.21.5.1.
31 Idem, II.21.4.6.
32 http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/rum.pdf.
33 F. Newman, D. Weissbrodt, Selected International Human Rights Instruments, Anderson
Publishing Co/Concinnati, 1990, p. 48.
130 IOAN ZONGA
And the African Charter on Human and Peoples' Rights recognizes the right to
asylum in art. 12 para. 3, according to him "everyone has the right, when
persecuted, to seek, obtain asylum in other countries in accordance with their
legislation and international conventions." In art. 28 of the Arab Charter on Human
Rights is provided 'right to seek political asylum in another country in order
persecution. "
Jerzy Sztucki states that “the Convention (Convention relating to the Status of
Refugees from 28 July 1951) with its definition is sometimes described as a Cold
War product, ‘Eurocentric’ and, if only for these reasons, obsolete.”34 At its
inception, the Convention certainly was a ColdWar product. The Cold War
atmosphere permeates the travaux préparatoires of the Convention, and is also
reflected in the fact that no communist country participated in the Conference of
the Plenipotentiaries of 1951 or (with the exception of Yugoslavia and China).35
The Convention was certainly also ‘Eurocentric’ at its inception, as the
problem of refugees, at the time of its adoption, was primarily if not exclusively
European, since the persons in question were of European origin and had been
displaced within Europe36.
At European level the EU Charter of Fundamental Rights provides for the
right of asylum to art. 18 that "The right to asylum is guaranteed with respect for
the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January
1967 on the status of refugees and in accordance with the Treaty on European
Union and the Treaty on the Functioning of the European Union (named
"Treaties") 37".
Now Common European Asylum System includes: Directive 2013/32 / EU of
the European Parliament and of the Council of 26 June 2013 on common
procedures for granting and withdrawing international protection (recast)
Directive 2013/33 / EU of the European Parliament and of the Council of
26 June 2013 laying down standards reception of applicants for international
protection (recast) Directive 2011/95 / EU of the European Parliament and of the
Council of 13 December 2011 on standards for the conditions you must meet third
country nationals or stateless persons as beneficiaries of international protection, a
uniform status for refugees or for persons eligible for subsidiary protection and the
content of the protection granted (recast) EU Regulation. 604/2013 of the European
Parliament and of the Council of 26 June 2013 establishing the criteria and
mechanisms for determining the Member State responsible for examining an
34 Jerzy Sztucki, “Who is a Refugee? The Convention Definition: Universal or Obsolete?” in
Frances Nicholson and Patrick Twomey (eds.), Refugee Rights and Realities: Evolving International
Concepts and Regimes, Cambridge University Press, 1999, p. 55.
35 Idem, p. 55.
36 Idem, p. 56.
37 http://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:12012P/TXT&from=RO,
Free access to non-litigations procedures for asylum seekers 131
application for international protection lodged in one of the Member States by a
third-country national or by a stateless person (recast) and EU Regulation.
603/2013 of the European Parliament and of the Council of 26 June 2013
concerning establishment of 'Eurodac' for the comparison of fingerprints for the
effective application of Regulation (EU) no. 604/2013 establishing the criteria and
mechanisms for determining the Member State responsible for examining an
application for international protection lodged in one of the Member States by a
third-country national or a stateless person and the demands of the law
enforcement Member States and Europol for comparisons with EURODAC data to
ensure law enforcement and amending Regulation (EU) no. 1077/2011 establishing
a European Agency for the operational management of large-scale IT systems in
the area of freedom, security and justice (recast).
Asylum is defined as the place where someone finds protection, shelter,
refuge, held inviolable who found refuge those sentenced, place of refuge, a place
of safety where refuge and asylum to be granted the right to inviolability of a state
of a foreign person persecuted in his country for political reasons (fr. asile, lat.
asylum)38.
In Romania asylum is enshrined in art. 18 of the Constitution, which states in
paragraph one that „foreign citizens and stateless persons living in Romania shall
enjoy general protection of persons and property, guaranteed by the Constitution
and other laws" and at para. 2 states that „The right to asylum is granted and
withdrawn under the law, in compliance with international treaties and
conventions to which Romania is a party". This right shall be granted and
withdrawn under the provisions of Law 122 of 2006 on asylum in Romania
respecting the Universal Declaration of Human Rights, the EU Charter of
Fundamental Rights, international treaties and conventions to which we are party.
The term "asylum seeker" has been defined in art. 2 of Law no. 122 of 2006 on
asylum in Romania as "foreign citizen or stateless person who has expressed a
desire for a form of protection in Romania, while its application has not been
resolved by a final judgment."
As we have seen so far in the world could not agree on a definition of asylum,
based on its contents from reading legal instruments adopted in the sphere of
cooperation of States and international intergovernmental level.
An important opinion asylum seeker defines as the natural person who, in his
State of origin is prosecuted or persecuted for activities in favor of humanity,
progress and peace. Asylum is granted only those wanted for political activities
and not for common law offenses39.
38 https://dexonline.ro/definitie/azil,
39 I. Muraru, S. Tnsescu, Drept constituional și instituii politice, Ed. C.H. Beck, București, 2006,
p. 192.
132 IOAN ZONGA
Specialized in legal literature is thought that both definitions are correct,
stating that, legally, the asylum seeker is a person with vocation of granting
asylum right40.
2. Principles and Procedural Guarantees of the Asylum Process
The asylum procedure is governed by the following main principles:
- free access to the asylum procedure of any foreign citizens or stateless, on the
Romanian territory or at the border. This principle ensures that nobody is excluded
from the asylum procedure and that regardless of the number of asylum
applications lodged by one applicant in several member states, will be analyzed by
one single Member State, first state where asylum seeker ask for asylum. A person
could apply for asylum when arrives at borders, including territorial waters and
transit zones41. Article 6 al. 1 from Directive requires states to register an
application within three working days or within six working days, when an
application is submitted to authorities other than those responsible for its
registration. Article 6 al. 2 obliges states to ensure that individuals have an effective
opportunity to lay down an application fast42.
- Non-discrimination. Procedures laid down in Community acquis will be
conducted without discrimination, regardless of race, nationality, ethnicity,
language, religion, social status, belief, sex, sexual orientation, age, disability,
non-contagious disease, HIV infection or belonging to a category disadvantaged,
property, birth or status acquired status or any other distinction43.
- Non-refoulement. Is the most important principle laid down by the Geneva
Convention on the Status of Refugees of 195144 and the ban applies to all forms of
forced removal from the country or rejection at the border.
- The principle that any person who has submitted an application for asylum
has the right to be informed. The asylum seeker has the right to be informed at any
stage of the proceedings.
- High Interests of the child;
- Confidentiality (relating to the data and information relating to the
application for asylum). This principle applies with the lawyer and asylum seekers
at all stages of determining a form of international protection. The lawyer has an
obligation not address the authorities of the country of origin of the applicant,
including that country's diplomatic mission in Romania.
- Active role. Authorities competent in processing asylum applications can
investigate ex officio any factual and legal circumstances that could lead to solving
40 M. Zltescu, Pentru o cultur a pcii, democraiei și toleranei în România II, Casa Editorial
Calistrat Hogaș, București, 2000, p. 40 și urm.
41 Article 3 from Directive 2013/32/EU.
42 Idem art. 6.
43 Art. 16 din Legea nr. 122/2006 privind azilul în România.
44 Art. 33 din Convenia de la Geneva din 1951.
Free access to non-litigations procedures for asylum seekers 133
the case, even if those circumstances had not been raised or mentioned in the
request for asylum or complaint;
- Presumption of good faith. The burden of proof lies with the applicant in
support of applications for asylum, but because most of the time it leaves the
country in a hurry and the examiner must provide evidence in favor of the
Applicant and its detriment. If the applicant reports seem credible and officer
decisions are data to the contrary, to give benefit of doubt45.
The procedural guarantees established by Law no. 122/2006 covers:
- The granting of a form of protection (refugee status and subsidiary protection
are granted indefinitely; temporary humanitarian protection is granted for a
specified period not exceeding 2 years);
- An asylum application couldn’t be refused only on the basis that it was not
made as early as possible. Furthermore, EU countries must ensure the individual
examination, objective and impartial requests,
- Applicants will have the right to remain in the country where their
application is pending and all remedies expired.
- Causes eliminating the criminal nature of the act (Romanian authorities will
not impose penalties for illegal entry or why asylum seekers entering without
authorization or are in Romania);
- Examination of the application (application for asylum must be examined
individually by specially appointed officials, skilled in this issue, so as to enable
decision making in an objective and impartial);
- Decision on the asylum application (judgment making a decision on the
asylum application is made in writing and shall include: the situation in fact and in
law, information on appeals, the deadline for submission of the complaint, body or
court to submit the complaint against a decision rejecting);
- Guarantees regarding unaccompanied minors seeking asylum
(unaccompanied minor asylum application is discussed primarily by the
appointment of a legal representative46 who would represent him and/or will help
in designing the request);
- If the procedure involves a personal interview, the representative shall be
given the opportunity to explain the purpose of the interview minor;
- A person who knows the special needs of minors shall prepare the decision
of the authority responsible for determining and, if necessary, conduct personal
interviews.
Temporary humanitarian protection is granted for a specified period not
exceeding two years, it is not given in the same time as refugee status or subsidiary
protection.
45 Art. 4-15 din Legea nr. 122/2006 privind azilul în România.
46 Art. 17 din Legea nr. 122/2006 privind azilul în România.
134 IOAN ZONGA
3. Asylum Procedure
The asylum procedure in Romania is provided by Law no. 122/2006 on
asylum in Romania and Government Decision no. 1251/2006 on rules for the
application of Law no. 122/2006 on asylum in Romania amended and
supplemented occurred. Authorities responsible for receiving applications for
asylum in Romania are General Inspectorate for Immigration through Asylum and
Integration Directorate, General Inspectorate of Romanian Police, General
Inspectorate of the Border Police and National Administration of Penitentiaries.
They cooperate to ensure and facilitate access to the asylum procedure, to ensure
appropriate assistance to those seeking asylum because asylum seekers should not
be returned before the completion of the asylum procedure or to support the safe
return of applicants to whom It was dismissed irrevocably asylum application, to
ensure data protection and the principle of confidentiality to help fight terrorism
and to identify the various problems that may arise in connection with the
phenomenon of asylum in Romania.
Processing asylum applications is made by officials specially designated to
function as an officer of decision and are university graduates only legal with a
license and have specialized knowledge in the field of asylum and under Directive
2013/32 / EU on asylum procedures which entered into force in July 2015 they are
obliged to conduct training and preparation of the arrival of asylum applications
and examining the application for international protection.
3.1 Forms of Procedure for Asylum
Forms of the asylum procedure are: the ordinary procedure; family
reunification procedure; accelerated procedure; procedure at the border; procedure
for handling the application for access to a new asylum procedure; procedure of
safe third country.
A. Ordinary Procedure- Administrative Step
A person is considered asylum seeker from the moment of manifestation of
will expressed in writing or orally before the competent authorities, showing that
the person requesting the protection of the Romanian state, once showed up at a
checkpoint of the state border after entering the territory of Romania or found in
Romania is the country of origin of the asylum seeker events occurred which it
determines to seek protection.
Filing the application for international protection is individual except in cases
when the applicant is a minor and has been appointed a legal representative or the
applicant has special needs and has been appointed a curator, they are who will fill
in the Romanian language or a language that applicant knows and will file claims
for asylum. From that moment it is considered an asylum seeker.
Free access to non-litigations procedures for asylum seekers 135
From now asylum seeking enjoy the following rights47: a) the right to remain
in Romania until the expiration of 15 days from the completion of the asylum
procedure, unless the application for asylum was dismissed after resolving its
accelerated procedure or the procedure at the border, where the alien must leave
the country as soon as the Romanian asylum procedure has been completed. In the
procedure for determining the Member State responsible for examining an asylum
application, the right to remain on Romanian territory ceases from the date the
decision was communicated to deny access to the asylum procedure, issued by the
General Inspectorate for Immigration; b) the right to a lawyer at any stage of the
asylum procedure; c) the right to be secure, free of charge, an interpreter at any
stage of the asylum procedure; d) the right to contact and to be assisted by an
official of the United Nations High Commissioner for Refugees (UNHCR) at any
stage of the asylum procedure; e) the right to be advised and assisted by a
representative of non-governmental organizations, Romanian or foreign, at any
stage of the asylum procedure; f) the right to be informed in a language they know
or reasonably assume that it knows, when filing the application, the rights and
obligations they have during the asylum procedure; g) the right to protection of
personal data and any other information in connection with its application; h) the
right to be issued with a temporary identity document, whose validity will be
extended periodically by the General Inspectorate for Immigration. In the absence
of documents certifying identity of the applicant, the temporary identity document
will be referred declared identity. Such document shall be issued: (i) aliens who
have applied for asylum in a checkpoint for border crossing, as long as they were
not granted access to the territory by a resolution of the General Inspectorate for
Immigration and and (ii) aliens in detention for reasons of national security and
public order, asylum seekers, as long as this measure is maintained; i) the right to
participate in cultural adaptation activities; j) the right to receive, upon request, the
necessary assistance for maintenance, if it lacks the necessary material resources,
the amounts granted for food, accommodation and other expenses are determined
by Government decision and secured from state budget through the Ministry of
Internal Affairs; k) the right to be accommodated in reception centers and
accommodation subordinated to the General Inspectorate for Immigration, to
finish the right to stay in Romania, the asylum seeker who does not have the
materials needed for maintenance; l) the right of asylum seekers with special needs
to benefit from the adaptation of accommodation and assistance in accommodation
centers; m) the right to receive free primary care and appropriate treatment,
hospital care emergency and nurse and free treatment in cases of acute or chronic
diseases that put their lives in imminent danger, through the national health
emergency and qualified first aid. These services shall, where appropriate, the
medical service of the accommodation centers and/or other health units accredited
47 Art. 20 din Legea nr. 122/2006 privind azilul în România.
136 IOAN ZONGA
and authorized by law; n) the right of asylum seekers with special needs to receive
adequate medical care; o) the right to receive access to the labor market under the
conditions provided by law for Romanian citizens, after a period by nine months
from the date of application for asylum, the asylum seeker is still in the process of
determining a forms of protection, in which case the asylum seeker is assigned an
identification number, which is part of the identity document; p) minor asylum
seekers the right to have access to compulsory education under the same
conditions as the underage Romanian citizens.
Asylum applications are individual, completed in Romanian or in a language
that the applicant knows (not supported collective asylum applications) shall be
submitted personally by aliens in Romania or in a checkpoint for passage State
border at one of the following authorities: General Inspectorate for Immigration
structures; Romanian Border Police structures; the Romanian Police; structures
National Administration of Penitentiaries of the Ministry of Justice48. If the
applicant is illiterate, the official receiving the application will fill the appropriate
form of oral declaration of the applicant and the application is signed by the
applicant or it applies its digital impressions49. Applications for asylum made
outside of Romania are not admitted.
If foreign minors asylum seekers, asylum applications can be submitted by the
legal representative who will be appointed later manifestation of will of the minor
that it wants to submit asylum applications. Minors under the age of 14 can apply
for asylum on his behalf. If an alien addresses an application / memorandum /
petition stating that he wants some form of protection in Romania, shall be
informed in writing that it is necessary to submit to competent authorities to
receive such requests. If the asylum seeker unaccompanied minor asylum
procedure is suspended until the appointment of a legal representative, and the
minor enjoys all the rights of the asylum seeker. Accommodation of asylum
seekers unaccompanied minors who have not attained the age of 16, will be centers
General Directorate of Social Assistance and Child Protection, within whose
territorial jurisdiction the specialized issues of asylum IGI, which registered
application for asylum, or belonging to a private body authorized.
Asylum procedure in the case of unaccompanied minors, asylum seekers, is
special. Also, if asylum seekers who belong to other vulnerable groups, asylum
procedure has a number of features determined vulnerability of these persons and
their need for treatment in an appropriate manner.
Unaccompanied minors and other vulnerable groups of people are asylum
seekers from the time of manifestation of will in writing or orally to the competent
authorities. Asylum applications of unaccompanied minors will always be
48 Art. 34 din Legea nr. 122/2006 privind azilul în România.
49 Art. 15 din Hotrârea nr. 1251/2006 pentru aprobarea Normelor metodologice de aplicare a
Legii nr. 122/2006 privind azilul în România.
Free access to non-litigations procedures for asylum seekers 137
processed in the ordinary procedure. Unaccompanied minors, asylum request is a
prerequisite for automated access to the territory, thereby ensuring access to the
asylum procedure. Examining applications for asylum lodged by unaccompanied
minors and other vulnerable groups of people will be carried out first.
Unaccompanied minors and other vulnerable groups of persons who have applied
for Romanian state protection are not criminally liable for illegal entry or stay in
Romania.
If the manifestation of the will of an unaccompanied minor to seek asylum is
made to other competent authorities receiving the application, it shall be informed
as soon as the General Inspectorate for Immigration - Asylum and Integration
Directorate (GII-AID), which will provide applicant to the specialized transport
issues of asylum GII structure competent to examine the application.
Unaccompanied minor will be issued a provisional certificate which will take the
place of temporary identity document and the transportation will be provided to
the competent structure of the IGI, where formalities will be listed in the paragraph
above.
Asylum seekers will draw up a personal file will be photographed and
fingerprinted (the fingerprinting is not performed for minors under 14 years) to be
entered into AFIS (Automatic Fingerprint Identification), to establish the Member
State responsible the resolution of the asylum application under the Dublin
Regulation.
Unaccompanied minors, asylum seekers who have reached age 16 and who
lack material means for maintenance, their accommodation can be made in
accommodation centers for asylum seekers subordinated GII, by the deadline 15
days from the date on which it was handed down a final ruling rejecting the
request of granting a form of protection.
Unaccompanied minors who received a form of protection in Romania
according to the law, based on a final and irrevocable decision, are taken into child
protection services system, organized county councils or local councils of
Bucharest districts.
Where demand unaccompanied minor granting a form of protection under the
law was rejected by a final ruling, minors will be taken by the General Directorate
of Social Assistance and Child Protection, which will take steps prescribed by law
for establishing a protection measure for it and inform the General Inspectorate for
Immigration - Migration Directorate about his situation, which shall act according
to law.
Also, asylum seekers will be informed about the rights and obligations they
have and on the asylum procedure.
At the time of application for asylum, asylum seekers will be issued a
temporary identity document (for unaccompanied minors this document will be
issued after their registration at GII).
138 IOAN ZONGA
After completion and registration application for asylum is allocated for
settlement officer’s decision of the General Inspectorate for Immigration,
university graduates who are legal with a license and have specialized knowledge
in the field of asylum50. To clarify all the aspects needed to address demand officer
decision hears asylum seeker in a preliminary interview, to be listened to establish
statement, family members, relatives or any person in a relationship of family
nature, countries of transit home to Romania, information regarding any previous
asylum proceedings conducted in another Member State or in a third country and
on travel or identity documents in his possession. Preliminary result of the
interview is recorded in writing, in a standard form.
Asylum seekers benefit from the confidentiality of all data and information
related to their case. In order to solve the asylum application it is necessary to
conduct an interview with the asylum seeker, giving him the opportunity to
submit reasons led him to request a form of protection.
Analyzing the reasons adduced by the applicant for asylum based on data
from file and applicant information reporting returns home (decision officers can
inform the EASO situation in the country of origin).
Interview note includes data identifying the applicant, the name of the official,
the interpreter, legal representative and the lawyer assisting him (if attorney), the
language of the interview questions that answers the applicant, and after reading
the interview is signed on each page by the applicant, an official and (where
attended the interview), interpreter, lawyer, legal representative. When deemed
necessary or has not been conclusively interview can be done a new interview.
The asylum seeker has the right to be assisted by a lawyer during the
interview. Thus, the asylum seeker can to hire a lawyer. In certain situations, in
selected cases by NGOs, asylum seekers may be assisted by counsel in these
organizations and the UNHCR. During the interview asylum seekers and minors
must attend his legal representative, and for those with special needs will be
interviewed officials specialist GII. The interview is translated by an interpreter
who is paid by asylum authorities.
The asylum application is resolved on the basis of existing documents in the
applicant's file and the grounds relied on by the applicant, which are analyzed in
relation to the concrete situation of the country of origin and credibility of the
applicant.
In processing asylum applications of minor asylum seekers and take into
account their degree of intellectual development and their maturity set by
professionals in healthcare (forensic examination to determine the exact age)51.
50 Art. 17 din Hotrârea nr. 1251/2006 pentru aprobarea Normelor metodologice de aplicare a
Legii nr. 122/2006 privind azilul în România.
51 Art. 22 din Hotrârea nr. 1251/2006 pentru aprobarea Normelor metodologice de aplicare a
Legii nr. 122/2006 privind azilul în România.
Free access to non-litigations procedures for asylum seekers 139
In processing asylum applications of asylum major injudicious, their
statements shall be valued taking into account the extent to which they affected
discernment.
If the asylum seeker expressly renounces its request at the administrative stage
(before issuing a ruling by the administrative - territorial structures GII), it is
informed of the consequences of the act of renunciation and has an obligation to
leave Romania, on the expiry of 15 days from the completion of the asylum
procedure. These provisions shall not apply if the applicant has a right to stay
covered under the law on the legal regime of foreigners in Romania.
Specially designated official shall issue a decision to close the file. The decision
to close the file is immediately communicated in writing to the applicant, through
direct communication by the representatives of the General Inspectorate for
Immigration or by postal declared its last residence. The decision to close the file
provided is not subject to appeal.
Specially appointed official interviewer, analyzes the reasons given by the
applicant and the applicant decide on the application within 30 days of taking the
case. If settlement of the application requires additional documentation, the term
shall be extended by no more than 30 days.
Officer decision, after deemed analyzed all available information to file the
asylum seeker issue a decision whereby: recognize refugee status, subsidiary
protection granted asylum or withholding.
The decision to grant subsidiary protection reasons include denial of refugee
status.
The decision to reject the asylum application contains adequate reasons for
each form of protection and the indication on the obligation to leave Romania if
not given tolerance. Aliens have the obligation to leave Romania within 15 days
after completion of the asylum procedure, unless the application for asylum was
rejected as manifestly unfounded after its settlement in accelerated procedure, in
which case the alien is obliged to leave the Romanian territory, once completed the
asylum procedure.
Acceptance or rejection of asylum is the judgment, which is immediately
communicated in writing to the applicant: through direct communication by the
representatives of the General Inspectorate for Immigration or by postal last
residence declared it, which will be accompanied by an acknowledgment
reception. Decision communicated is accompanied by written information, in
Romanian and in a language that the applicant understands or is reasonably
assume that understands. If the judgment IGI is not possible directly or through
postal with receipt, it will be done by displaying the seat structure specialized in
asylum issues the IGI which issued the decision of the notice which will include:
the number of temporary identity document of the applicant (which is the same
file number IGI), number and date of the solution on the asylum application, the
140 IOAN ZONGA
deadline for submission of the complaint and the competent court to resolve it, on
decisions rejecting the application asylum and date display52.
This information note will be displayed throughout the legal deadline for
complaint filing against the judgment IGI, which are considered to be
communicated to the display of the note. Calculating the Complaint against the
judgment IGI will be the communication (whether it was carried out directly or by
mail with return receipt / by displaying the information note). The grounds for
granting a form of protection is not communicating.
The decision to reject the asylum application contains adequate reasons for
each form of protection and the indication on the obligation to leave Romania
within 15 days from the time of completion of the asylum procedure. Against a
decision that has been granted subsidiary protection and the rejection of the
asylum application can be filed within 10 days of receipt of proof of
communication.
If the applicant has not obtained a form of protection, the General Inspectorate
for Immigration issue and implement the decision of return. If, for objective
reasons, the foreigner can not leave Romania within the statutory period, the
General Inspectorate for Immigration grant him permission to remain in the
territory, according to the regulations on foreigners in Romania.
Food and nutrition needs of asylum seekers are covered by monthly
allowances53 granted from government resources, NGOs occasionally
supplementing assistance to cover minimum standards of nutrition.
Practitioners in the field, refugees, Romanian citizens every year celebrate the
International Refugee Day on June 20. On this occasion various events are
organized in Bucharest and in the country various events (concerts, radio contests,
information campaigns) aimed at raising awareness of the refugee problem in
Romanian society54.
B. Family Reunification
According to Directive 2003/86 / EC of 22 September 2003 on the right to
family reunification55, the beneficiary of a form of protection may apply for asylum
for his family. After their entry into our country, family members may apply for
asylum, and it will be resolved according to the law in the ordinary procedure.
Family reunification procedure is triggered automatically on unaccompanied
minors asking the consent of the legal representative and the unaccompanied
minor interest principle of the minor. In all cases will take into account the views of
the minor and his interest. If unaccompanied minor Immigration Inspectorate
General take steps to locate the family, while protecting the interests of the child.
52 Art. 54 din Legea nr. 122/2006 privind azilul în România.
53 Vasile Popa, Concepte de drept internaional, Ed. All Beck, Bucureşti, 2004, p. 105.
54 Mihai Delcea, Protecia juridic a refugiailor, Editura C.H. Beck, Bucureşti, 2007, p.174.
55 http://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:32003L0086&from=RO,
Free access to non-litigations procedures for asylum seekers 141
To clearly prove family ties, the person who has acquired refugee status or
subsidiary protection will present original documents (birth certificates, marriage,
passport) or other evidence to prove his family member. These documents will be
verified in the country of origin of the family member. Family reunification
procedure must be completed within 9 months of the request. This period may be
extended by six months to carry out further checks.
Beneficiaries of a form of protection (refugee status or subsidiary protection)
can apply for asylum on behalf of family members (spouse or, where appropriate,
wife and minor children) are in the country of origin or to a third country56 being
the only exception bill to be submitted personal request for asylum from aliens in
Romania.
Family members STATUTORY asylum are: the extent that, on application by
the lead, the family exists in the country of origin, the following members of the
family of the beneficiary of refugee or subsidiary protection: the husband or, where
appropriate, wife the beneficiary of refugee or subsidiary protection or minor
children of the beneficiary of refugee or subsidiary protection dependents,
provided that they are unmarried, whether in marriage or outside it or adopted by
national legislation of the country of origin.
If the officer Decision considers to have been made proof of kinship by the
beneficial form of protection or, where appropriate, of marriage prior to entry in
Romania will ask the Ministry of Foreign Affairs issued a visa and issuance of
travel for members the family covered above.
After entering Romania of those family members, where there is agreement on
their application for asylum, with the request will be made under this Law
concerning the ordinary.
In the procedure for checking for reunification family relationship / kinship
form of protection being given to family members, provided the asylum law,
except where they are applicable grounds for exclusion.
If the conditions are not met for family reunification officer issues a decision
rejecting decision, which will be communicated to the beneficiary of a form of
protection called for reunification.
Against that decision rejecting the foreigner can pursue two remedies on the
same terms provided by law for the ordinary procedure.
Provisions on family reunification applies to persons receiving temporary
humanitarian protection. If the officer Decision considers to have been made proof
of kinship by the beneficial form of protection or, where appropriate, of marriage
prior to entry in Romania will ask the Ministry of Foreign Affairs issued a visa and
issuance of travel for members the family covered above.
After entering Romania of those family members, where there is agreement on
their application for asylum, with the request will be made under this Law
concerning the ordinary.
56 Art. 71 din Legea nr. 122/2006 privind azilul în România,
142 IOAN ZONGA
In the procedure for checking for reunification family relationship / kinship
form of protection being given to family members, provided the asylum law,
except where they are applicable grounds for exclusion.
If the conditions are not met for family reunification officer issues a decision
rejecting decision, which will be communicated to the beneficiary of a form of
protection called for reunification.
Against that decision rejecting the foreigner can pursue two remedies on the
same terms provided by law for the ordinary procedure.
Provisions on family reunification applies to persons receiving temporary
humanitarian protection.
C. Accelerated procedure
The accelerated procedure also browse, administrative stage and the judicial
stage.
The accelerated procedure can be triggered during the regular procedure after
the officer finds that the decision of one of the following: application for asylum is
manifestly unfounded; application for asylum belongs to individuals who, through
their work or membership in a certain group, poses a danger to national security or
public order (DAECH); application for asylum belongs to a person who comes
from a safe country of origin57 belonging to the EU or other safe third countries.
An application for asylum is manifestly unfounded when there is a fear of
persecution in their home country, or if it exists does not affect the applicant or it
prolong the asylum procedure, destroyed, damaged, dropped, sold papers identity
to hinder its identification or use a false identity, provided a false identity,
presented false or forged documents, and the officer identified this decision. The
asylum seeker must provide data and personal information, consistent, truthful,
verifiable, showing clearly that is subject to a fear of persecution in their country of
origin or the country whose nationality. Another reason to consider that an
application is manifestly unfounded is that hid that has submitted one or more
asylum applications in one or more EU member states.
If administrative stage, officer decision after conducting interviews and
analyzing the reasons invoked, decide within 3 days of the start of the accelerated
procedure. Decision to reject an application as manifestly unfounded complaint
may be appealed within two days of notification. The power belongs trial court of
competent structures at the headquarters of the General Inspectorate for
Immigration that issued the decision.
Can not be solved fast track asylum applications of unaccompanied minors.
D. Border procedures
Apply by border police staff asylum applications lodged by any foreign citizen
or stateless. Asylum seekers are informed that a supposedly understand or clearly
57 Art. 75 din Legea nr. 122/2006 privind azilul în România.
Free access to non-litigations procedures for asylum seekers 143
understand that rights and obligations that we have in the new situation of asylum
seekers. Asylum applications are taken from the territorial bodies of the Romanian
Border Police and sent to the Inspectorate General for Immigration, after analysis
by officers Decision shall, within 3 days of receipt: granting a form of protection
and access to the territory, granting access to territory and asylum ordinary
procedure or rejection of the application as manifestly unfounded.
Decision to reject an application may be subject to appeal within two days of
notification. The complaint is settled by the court in whose constituency is situated
structure Immigration Inspectorate General who issued the decision, within 5 days
of the notification. Apply properly analyzed procedural rules in ordinary
procedure.
If the asylum seeker has lodged an application for asylum in another Member
State over the last nine months, the Dublin procedure, which has as main objective
to determine a single Member State that is responsible for examining an asylum
application submitted citizen of a third country in the territory of Member States,
determines the Member State responsible for examining the application.
Pending the outcome of the application person will be accommodated in the
transit area or in special accommodation centers near the border. If the asylum
seeker is given access to the territory and the ordinary asylum procedure will be
transported to one of the centers IGI accommodation nearby. Where is denying
access to the asylum procedure ordinary so I will brings the knowledge-based
protocol in the presence of an interpreter with information that can challenge
response received by complaint to the border which will then be sent IGI sending it
across the court in the resort where the IGI which resolved the application for
asylum by refusal.
Not subject to the Border asylum applications lodged by unaccompanied
minors. They receive access to the territory and ordinary procedure.
E. Procedure for Settlement of Application for Granting Access to a New
Procedure for Asylum
Access to a new asylum procedure is granted if during a procedure for
resolving previous application or after the settlement of the previous application
by a final judgment or, where appropriate, by a decision to close the file, the
applicant puts forward new elements that have It could be presented for reasons
not attributable to him, provided that these items are not the result of actions
provoked in order to obtain a form of protection from the Romanian state or the
date of completion of the asylum procedure earlier occurred transformation of
political, social, military legislative or country of origin, likely to have serious
consequences for the applicant. The civil case shall be issued within 5 days of filing
the application by a reasoned decision which, if applicable: giving access to a new
asylum procedure or reject the request.
144 IOAN ZONGA
This latter decision may be appealed to the complaint within 10 days from
notice. Jurisdiction to hear the complaint belongs to the court in whose territorial
jurisdiction the structure of the General Inspectorate for Immigration that issued
the decision. Such request shall be examined urgently, in the council chamber
without summoning the parties. The court shall by a resolution irrevocable. The
complaint shall be resolved within 30 days, without hearing the applicant.
F. Procedure of Third Safe Countries
Where, prior to coming to Romania, alien transited a safe third country where
he was offered protection or had the opportunity to contact the authorities to
obtain protection, the General Inspectorate for Immigration may decide to resend
alien country or analysis application asylum.
Against this judgment the applicant may submit a complaint under the law.
Resolve it is by the ordinary rules of procedure, which shall apply accordingly. If
the transfer applicant has not been done, does not exist or can not get the consent
of the third State to one readmit the applicant, the General Inspectorate for
Immigration will consider the request for asylum. Since Romania joined the
European Union, the procedure safe third countries no longer applies if the
Member States of the European Union or other states which have through a special
agreement to participate in the mechanism for determining the State responsible
for the procedure the Member State responsible, procedure Dublin, which is
mainly aimed at determining a single Member State that is responsible for
examining an asylum application lodged by a citizen of a third country to the
territory of the Member States. Dublin procedure takes between two weeks and
two months under terms of EU law58.
After examining the evidence, the arguments circumstantial on file and the
reply received from the State asked the officer for a decision from IGI may, as
appropriate: the rejection of access to the asylum procedure and transfer the alien
in the State responsible or granting access to the asylum procedure in Romania.
The judgment is enforceable and can be challenged by a complaint within two
days of notification. The court shall pronounce a final judgment within five days of
registration. The term is suspended during the process of determining the Member
State responsible for examining an asylum application or, where appropriate,
during the procedure safe third country.
4. Conclusion
The issues identified by officers of decision in taking decisions in asylum cases
are related to: the credibility of the asylum seeker if he tell the truth or not, lack of
knowledge about the country of origin adequate information about the situation in
the area of origin of the asylum seeker being difficult to obtain as and the difficulty
58 Art. 97 din Legea nr. 122/2006 privind azilul în România.
Free access to non-litigations procedures for asylum seekers 145
of verifying the accuracy of information provided by asylum seekers, political
decisions of government are sometimes impossible decisions correct legal
decisions should be made based on the data and information in the file and not
resent the home or personal front asylum seeker.
Asylum in a predictable fashion and fair, can only be done with respect to
items such as: access to the system for granting international protection to be
relieved, the existence of a definition of persecution broad enough to cover the risk
of serious official dealing with processing asylum applications to specialize and be
impartial, breach of privacy by the disclosure of evidence or the right to be heard
in the presence of a lawyer, use the benefit of the doubt in favor of the asylum
seeker, motivating legal, full of decisions, call the introduction of a legal possibility
to reopen the case and to file a new application and humane treatment for
applicants in case of any new data and information about the applicant.
The difficult task of making decisions in the cases of asylum applications can
be supported through the development of common guidelines on the
administration of evidences and focusing specifically on standards of evidence for
inclusion, termination, exclusion and cancellation of refugee status, and aspects
related.
Country of origin information provided by EASO is a source of information
that is commonly used in the process of granting asylum. References that decision
maker and make them relevant information on home and help assess human rights
situation in objective and fair country of origin of the applicant.
As for the judiciary differences jurisprudential solutions led proposal to create
a practical unit that would help unify solutions gave by judicial systems involved
in and cooperation between professional national and international associations,
UNHCR, academic institutions, NGO community and national authorities
specialization officials who process applications for asylum, training and
specialization of judges at international level in the field of refugees by creating
courses within existing international institutions, drafting training materials and
practical guidance in several languages.
Preparing Officers makers and judges should target more than a detailed
study of the law and could benefit from an interdisciplinary approach and
openings to psychology, anthropology, geography, history and use forensic
methods such as DNA method.
Finally, it is suggested that it is necessary to improve the 1951 Convention and
1967 Protocol by a more precise definition of refugee.
Regarding the Romanian refugee protection system, while strengthening
administrative capacity of managing the problem of asylum is considered that
Romania should pay particular attention and appropriate segment of the judiciary.
In this area is not enough editing a set of rules substantive or procedural, requiring
the creation of a body of specialists who are involved in undergo periodic training
and have multiple independent sources of information about the situation in the
country of origin of applicants of asylum, such as the EASO, IOM, UNHCR.
146 IOAN ZONGA
5. Bibliografie
1. I.M. Zltescu, Pentru o cultur a pcii, democraiei și toleranei în România II,
Casa Editorial Calistrat Hogaș, București, 2000;
2. I. Muraru, S. Tnsescu, Drept constituional și instituii politice, Ed. C.H. Beck,
București, 2006;
3. Vasile Popa, Concepte de drept internaional, Ed. All Beck, Bucureşti, 2004;
4. Mihai Delcea, Protecia juridic a refugiailor, Editura C.H. Beck, Bucureşti,
2007;
5. Hugo Grotius, De jure belli ac pacis, trad. A.C. Campbell, 1814, disponibil la
adresa http://www.constitution.org/gro/djbp.htm;
6. Manualul asupra procedurilor şi criteriilor de determinare a statutului de refugiat
potrivit Conveniei din 1951 şi/sau a Protocolului din 1967 privind statutul refugiailor,
Geneva, 1992;
7. Ulrich Sinn, „Greek Sanctuaries as Place of Refuge” in Nanno Marinatos and
Robin Hagg (eds.), „Greek Sanctuaries: New Approaches”, London, Rutledge 1993;
8. Rob W. M. Schumacher, „Three Related Sanctuaries of Poseidon: Geraistos,
Kalaureia and Tauron“ in Nanno Marinatos and Robin Hagg (eds.), „Greek
Sanctuaries: New Approaches”, London, Rutledge 1993;
9. Tacite, Annales, IH, 63, coll. Bude, Vol. 11 in S. Prakash Sinha, „Asylum and
International Law”, The Hague: Martinus Nijhoff, 1971;
10. S. Prakash Sinha, „Asylum and International Law”, The Hague: Martinus
Nijhoff, 1971, p. 9; N. M. Trenholme, „The Right of Sanctuary in England; A Study in
Institutional History”, 1903;
11. Coleman Phillipson, „The International Law and Custom of Ancient
Greeks and Romans”, vol. 1, 1911 (reprinted Buffalo, NY: William S. Hein, 2001, p.
361); Rigsby, Asylia, p. 11; and Christopher L. Blakesley, „The Practice of
Extradition from Antiquity to Modern France and the United States: A Brief
History,” Boston College International and Comparative Law Review, 4, 1981;
12. Justinian, Digest, trans. Alan Watson as Digest of Justinian, vol. 1
Philadelphia, PA: University of Pennsylvania Press,1998, at 1.21.1.17.12;
13. Plutarch, Lives of the Noble Greeks and Romans, ed. by J. and W. Langhorne,
p. 16, 1875;
14. Justinian, Digest, trans. Alan Watson as Digest of Justinian, vol. 1
Philadelphia, PA: University of Pennsylvania Press,1998, at 1.12.2; see also
Theodosian Code, 9:45;
15. J. Bingham, „Antiquities of the Christiall Church and Other Works”, Karl Blaine
Shoemaker, „Sanctuary Law: Changing Conceptions of Wrongdoing and
Punishment in Medieval European Law,” unpublished Ph.D. thesis, University of
California-Berkeley 2001;
16. P. Wilutzky, „Vorgeschichte des Rechts”, Breslau, 1903;
17. H. Wallon, „Du droit d'asyle”, vol. 1, 2, 1837, Justinian, XVII, XXXVII;
Free access to non-litigations procedures for asylum seekers 147
18. E. Magnin, „Immunites ecclesiastiques," in A. Vacant, „Dictionnaire de
theologie catholique”, Vol. III, 1922;
19. P. van der Haeghen, „Le droit d'asile”, 1858, p. 26-27;
20. Const. „Ad. Apost.”, 18 June 1712; and „Non Sine ingenti”, 5 January 1720;
21. Const. „Officii Nostri”, 15 March 1750;
22. Const. Inter graviores, 30 September 1758;
23. Article 166 of this ordinance in effect abolished asylum in civil matters and
subordinated the penal asylum to the decision of the judge. Neron, Ordonnances des
rois de France, Vol. I;
24. W. Blackstone, The Commentaries on the Laws of England, Vol. IV, p. 347
(1765-1769); L. O. Pike, A History of Crime in England, Vol. 11, p. 253 (1873-1876);
25. C. de Beaurepaire, „Essai sur l'asile religieux dans l'Empire romain et la
monarchie francaise,” 4 Bibliotheque de l'Ecole des Chartes (3-e serie) 351, 573, and 5
id. 151, 341 (1853-1854);
26. P. Colletta, „Histoire du Royaume de Naples”, Vol. 1, p. 89, 1834;
27. C. Recht, „The Right of Asylum,” p. 9-10, (1935);
28. See entry on „Asylrecht" in Strupp-Schlochauer, Wörterbuch des Völkerrechts,
Vol. 1, 1960;
29. Hugo Grotius, „De jure belli ac pacis”, trad. A. C. Campbell, 1814,
Hyperion Press 1979;
30. F. Newman, D. Weissbrodt, Selected International Human Rights Instruments,
Anderson Publishing Co/Concinnati, 1990, p. 48;
31. Jerzy Sztucki, “Who is a Refugee? The Convention Definition: Universal or
Obsolete?” in Frances Nicholson and Patrick Twomey (eds.), Refugee Rights and
Realities: Evolving International Concepts and Regimes, Cambridge University
Press, 1999, p. 55;
http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/rum.p
df;
http://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:32003L0
086&from=RO;
http://eur-lex.europa.eu/legal-content/RO/TXT/PDF/?uri=CELEX:12012P/
TXT&from=RO;
https://dexonline.ro/definitie/azil;
Legea nr. 122/2006 privind azilul în România;
Directive 2013/32/EU;
Hotrârea nr. 1251/2006 pentru aprobarea Normelor metodologice de aplicare
a Legii 122/2006 privind azilul în România.