ECtHR - Hendrin Ali Said and Aras Ali Said v. Hungary, Application No. 13457/11

Facts:

The applicants are Iraqi nationals, who were born in 1992 and 1989 respectively. They left Iraq in August 2009 and irregularly entered Hungary, where they made a first asylum attempt before travelling irregularly to the Netherlands with the help of traffickers. Intercepted in the Netherlands, they were

transferred back to Hungary in September 2010 under the Dublin II procedure. They claimed asylum, alleging that they had been persecuted in Iraq because of their father’s former service in Saddam Hussein’s army and their Kurdish ethnicity.The alien policing authority ordered the applicants’ expulsion to Iraq, also imposing a five-year entry ban. However, later the asylum authority registered their asylum claims and admitted them into in-merit procedure. Despite this fact, the applicants remained in alien policing detention although asylum seekers were entitled to accommodation in an open refugee reception centre.

Decision & reasoning:

The applicants complained that they had been unlawfully detained and denied an effective judicial review of that detention. The Court observed that the subject matter of the application was very similar to that of the Lokpo and Touré case.

“…The Court reiterated that the formal “lawfulness” of detention under domestic law is the primary but not always the decisive element in assessing the justification of deprivation of liberty. It must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1, which to prevent persons from being deprived of their liberty in an arbitrary fashion.  … The Court found that the applicants were deprived of their liberty by virtue of the mere silence of an authority – a procedure which in the Court’s view verges on arbitrariness. In this connection the Court reiterated that the absence of elaborate reasoning for an applicant’s deprivation of liberty renders that measure incompatible with the requirement of lawfulness inherent in Article 5 of the Convention.”

In the instant case the applicants were deprived of their liberty for a substantial period of time essentially because the refugee authority had not initiated their release. The Court concluded that the procedure followed by the Hungarian authorities displayed the same flaws as in the case of Lokpo and Touré.

This consideration alone enabled the Court to find that there has been a violation of Article 5 § 1 (f) of the Convention. 

Outcome:

Violation of Article 5 § 1

EUR 10,000 awarded to each applicant in respect of non-pecuniary damage and EUR 2,515 to the applicants jointly in respect of costs and expenses.

Observations/comments:

The decision became final on 23/01/2013

The AIRE Centre and UNHCR intervened in the proceedings as third parties in accordance with Rule 44 § 3 of the Rules of Court.