ECtHR – Al Husin v. Bosnia and Herzegovina (No. 2) (no. 10112/16)

Facts:

In 1983, the applicant, a Syrian national, went to the then Social Federal Republic of Yugoslavia to purse his studies. He settled in Croatia where he got married and had three children. On an unknown date, the applicant obtained the BH citizenship. During the 1992 - 1995 war, he took part to a local force (the ARBH) and in the immediate aftermath acted as leader of a group of foreign mujahedin.  For the interrogation of two local Serbs for a couple of hours in 1998, he was convicted for unlawful deprivation of liberty and received a suspended prison sentence in May 2000.

In 2007, the applicant’s BH citizenship was revoked and he applied for asylum. In 2008, following the dismissal of his claim, he was placed in an immigration centre on security grounds. In the same year, the applicant lodged his first application to the ECtHR (Al Husin v. BH, application no. 3727/08). The Court held that the Government should not remove the applicant until the case was pending in front of the national Constitutional Court. In 2012, when a final deportation order was issued, the ECtHR held that the deportation to Syria would expose the applicant to the risk of treatment contrary to Article 3 of the Convention and that his detention amounted to a breach of Article 5 § 1 of the Convention.

In March 2012, the Aliens Service issued a new deportation order in respect of the applicant which established that, in case he failed to voluntary leave the country, an additional removal order would be issued specifying a third destination country. From September 2012 to August 2014, the domestic authorities contacted more than forty countries to request the applicant’s expulsion. Thirty-eight countries refused and the rest did not respond. In February 2016, after more than eight years of detention and legal challenges, the applicant was released under a preventive measure because the detention had exceeded the maximum duration under the new national Aliens Act. The applicant complained before the ECtHR that the detention had been unlawful and incompatible with the prescriptions of Article 5 § 1 (f) and Article 5 § 4 of the Convention.

Decision & reasoning:

Violation of Article 5 § 1 (f) of the Convention

Admissibility

The Government argued that in June 2015 the Constitutional Court had found a violation of Article 5 § 1 (f) as regards the period of the applicant’s detentions between March 2013 and March 2014. Therefore, the applicant cannot claim to be a “victim” of the alleged violation within the meaning of Article 34 of the Convention in relation to that period. The Court found that the applicant could reasonably have been expected to turn to the domestic courts to obtain compensation for the acknowledged breach of his rights under Article 5 § 1 of the Convention and rejected the part of the application related to the cited period.

With regard to the remaining period of the applicant’s detention, the Court found that the claim is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and declared the complaint admissible.

Merits

The Court began its analysis of Article 5 § 1 (f) requirements in the contested context by referring to its Saadi v. the United Kingdom judgment to reiterate the right of the States to deprive persons of their liberty in the context of immigration control. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary but it will be justified only for as long as deportation or extradition proceedings are in progress and are conducted with due diligence.

The Court continued that the deprivation of liberty must also be lawful, in that it has to conform to the substantive and procedural rules of national law. Lawfulness is not sufficient as any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. In this sense, detention must be carried out in good faith. It must be closely connected to the ground of detention relied on by the Government, the place and conditions of detention should be appropriate and the length of the detention should not exceed that reasonably required for the purpose pursued. Lastly, the Court reiterated that the domestic authorities must verify if the deportation can be concretely carried out and the detention to this end is still justified.

The Court concluded that in the present case the grounds for the applicant’s detention did not remain valid for the whole period because after contacting more than forty countries for the removal, there was no realistic prospect of expulsion. In this sense, the Court recognised a violation of Article 5 § 1 (f) for the period between August 2014 and February 2016.

Violation of Article 5 § 4 of the Convention

Merits

The Court, recalling its previous judgement A. and Others v. the United Kingdom, reminded that guarantees must be appropriate to the type of deprivation of liberty in question. In this sense, the applicant’s right under Article 5 § 4 of the Convention must be balanced against the public interest of national security.

The Court held that after the appeal decision the applicant had the possibility to effectively challenge the allegations against him and found no violation of  Article 5 § 4.

Outcome: