ECtHR – Nabil and Others v. Hungary, no. 62116/12, 22 September 2015

Facts:

Three Somali nationals entered Hungary via Serbia and were intercepted and arrested by the police in November 2011.

Immediately after their arrest, on 6 November 2011, the applicants were interviewed, and subsequently issued an expulsion order to Serbia by the Csongrád County  Police  Department. However, the execution of the expulsion order was simultaneously suspended. Indeed, the Serbian Party failed to reply and the expulsion was not feasible.

On the same day of the interview and the expulsion order, the applicants were also issued a detention order until 9 November 2011 by the Police.

On 9 November 2011 the applicants applied for asylum claiming that they  were  persecuted  in  their  home  country  by  the  terrorist  organisation Al-Shabaab.

Since 8 November 2011, their detention was extended three times by a district Court, which  always based its decision on section 54.1(b) of the Immigration Act, under which detention of third country nationals  is possible when they refuse to leave the country or it can be assumed that they are delaying or preventing the enforcement of expulsion.

On 17 January 2012, and subsequently once again, the applicants’ lawyer requested the applicants’ release.

On  1 February  2012,  a district court  extended again  the  applicants’ detention on the same basis, and mentioned that their expulsion was suspended due to their pending asylum applications.

On 3 March 2012 a district court further prolonged the applicants’ detention. On this occasion, the court argued that the suspensive effect of an asylum application (under  section  51(2)  of  the  Immigration Act) did not render the expulsion order  unenforceable because unenforceability  refers  to  a  permanent  state.

Their detention ended on 24 March 2014, the day after the decision which granted them subsidiary protection had become final. 

Decision & reasoning:

Regarding the first three days of the applicants’ detention, when the applicants had not yet requested asylum, the Court was satisfied that the measure had served the purpose of detaining a person with a view to deportation, as in accordance with the second limb of art. 5.1(f) of the Convention, and section 54(1)(b) of the Hungarian Immigration Act (the applicable national law). In this respect, the Court importantly remarked that the second part of art. 5.1.(f) of the Convention does not require the detention of  persons to be necessary to prevent them from committing an offence or fleeing. Art. 5.1(f) simply requires that deportation or extradition proceedings are in progress, and pursued with due diligence.

As to the applicants’ detention that was subsequent to their application for asylum, on the one hand the Court acknowledged that the submission of an asylum application does not as such imply that the detention was no longer “with a view to deportation” (as required by art. 5.1(f) of the Convention). On the other hand, the Court reiterated that detention still has to be in compliance with national law, and free from arbitrariness, as also required by art. 5.1 of the Convention (Mooren v. Germany; Saadi  v.  the  United  Kingdom).

With regard to compliance with domestic law, the Court found that none of the 4 judicial decisions that reviewed the lawfulness of the applicants detention between November 2011 and February 2012 actually assessed whether the domestic legal conditions to prolong the detention of the applicants were met. Indeed, according to art. 54 of the Immigration Act, to validly prolong the applicants’ detention, the domestic authorities had to verify whether the applicants were actually frustrating the enforcement of the expulsion; whether less stringent measures were not applicable, and whether or not the expulsion could eventually be enforced. Nevertheless, all the aforementioned decisions were in essence only based on the reason contained in the first detention order issued by the Police Department: the risk that the applicants might have frustrated their expulsion, without any analysis of the circumstances substantiating such a risk. Furthermore, although the decision taken on 1 February 2012 mentioned that the expulsion had been suspended due to the asylum application, neither this decision nor the previous ones dealt with the possible impact of the applicants’ asylum proceedings on their detention.  In light of the foregoing, the Court found a violation of Art.5.1 of the Convention in the period between 8 November 2011 and 3 March 2012. It considered it unnecessary to further examine whether the applicants’ detention in this period could be otherwise deemed arbitrary, and whether the period from 3 March 2012 (the day of the last prolongation) to the 24th of the same month had also been contrary to the Convention. 

Outcome:

The Court held that there had been a violation of Article 5 § 1 of the Convention concerning the period of detention from 8 November 2011 to 3 March 2012.

The Court held that it was not necessary to examine the period of detention from 3 to 24 March 2012.