ECtHR - Al-Tayyar Abdelhakim v. Hungary, Application No. 13058/11

Facts:

Alaa Al-Tayyar Abdelhakim is a Palestinian national who was born in 1985. Stopped by the Hungarian border control at Záhony (Hungary) in July 2010 for using a forged passport, he claimed asylum, explaining that he came from a refugee camp in Tripoli, Lebanon, where he faced security problems. He also relied on the fact that he was a stateless person, a Palestinian from a refugee camp. The Applicant’s expulsion to Ukraine was ordered together with the imposition of a two-year entry ban, as sanction for illegal border crossing. The expulsion order was in essence based on the Readmission Agreement between Hungary and Ukraine and the non-applicability of the “non‑refoulement” principle. The execution of the expulsion was however suspended until the necessary means and conditions were secured, but for not longer than six months.The District Court further prolonged the Applicant’s detention, without hearing him.

The Applicant submitted that during his incarceration he had challenged his detention on several occasions, requesting that he be relocated to an open reception centre.

In the end of July 2010 his application was referred to the in-merit procedure. Despite this fact, he remained in alien policing detention, although under the Asylum Act, meritorious asylum seekers are in principle entitled to accommodation in an open refugee reception centre. According to the Asylum Act, once the asylum application has been referred to the in-merit procedure, the alien policing authority shall, at the initiative of the asylum authority, terminate the detention of the asylum seeker. In the Applicant’s case, however, no such initiative was put in place until November 2010.

Decision & reasoning:

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 is 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 (non-pecuniary damage) and EUR 2,515 (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.