Case summaries
The detention of an asylum-seeker who claimed he had been tortured because of his sexual orientation was unlawful in part.
The applicant’s asylum application was rejected in Croatia and he received an order to leave the country in 30 days. The Slovenian Asylum authority detained the applicant due to the risk of absconding, because he left Croatia before receiving a decision in his asylum procedure. The Court ruled that the applicant’s departure from Croatia was incorrectly assessed as arbitrary absconding (the applicant actually respected the order to leave the country) and therefore the applicant does not present a risk of absconding. The Court also held that the measure was not necessary, that the Asylum authority incorrectly referred to its discretionary powers in this matter and that the objective criteria to determine when someone presents the risk of absconding (from Article 68 of Aliens Act-2) have not been applied.
The Constitutional Court rules that the doubts of the Federal Administrative Court about the legality of Section 9a(4) and Section 21(9) FPG-DVO as amended by BGBl. II 143/2015, which defines the term “risk of absconding” in the context of detention pending deportation pursuant to Section 76 FPG, are unfounded. The Court finds that Section 9a(4) FPG-DVO was adopted on a sufficient legal basis.
The Court quashed the decision of the Office of Immigration and Nationality (OIN) and ordered a new procedure because of the failure to thoroughly examine every claim presented by the Claimant and the incorrect application of the res iudicata principle.
The Court found that the national legal provision was incompatible with the Returns Directive. Lodging a complaint against the return decision to the court cannot be a reason for prolonging detention under the Directive.
Any deprivation of liberty must fall within the exceptions set out in Art. 5 of the Convention, and must be lawful, namely in compliance with domestic law, and free from arbitrariness. For this latter purpose, domestic law must be sufficiently accessible, precise and foreseeable in its application.
After a certain time of mere waiting for the detainee’s cooperation, detention ceases to be genuinely imposed for the purpose of detention, in accordance with art. 5.1(f) of the Convention.
In the case of a claimant whose first asylum application would be viewed as being withdrawn by Bulgarian authorities, it cannot be ruled out that upon return to Bulgaria under a take back request the applicant would not be detained. In light of reported detention conditions the Secretary of State should have investigated the risk of a potential Article 3 violation if the applicant were to be returned to Bulgaria.
An Uzbeck national who had fled to Turkey was deported to Iran which constituted a violation of Article 3 of the European Convention on Human Rights. He then returned to Turkey and lives in hiding for fear of deportation.
The detention of a Somalian national is declared by the European Court of Human Rights to constitute a violation of Articles 3, 5 (4) and 5 (1). The cumulative effects of the detention conditions amounted to inhuman and degrading treatment and the detention could not be deemed lawful due to the lack of an effective remedy during detention and insufficient justification under Article 5 (1) (f).