Case summaries

The applicant was detained in the airport of Turkey when entering the country due to the fact he previously stayed in the country with an irregular immigration status.

During his detention he was subjected to overcrowding, unhygienic conditions and lack of proper food and medical attention, a situation could amount to inhuman or degrading treatment.

The applicant, who committed crimes while being in Kyrgyzstan, is imprisoned in Russia and is at risk of being returned to his home country in spite of the fact that he could be subjected to torture or inhuman and degrading treatment.

An order renewing detention for the purpose of removal must be given in writing and provide reasons for prolonging detention, notwithstanding whether the maximum time limit under the Return Directive has been reached or not at the time of the decision.

Non-collaboration on the part of a person detained for the purpose of return may not be used as a basis for indefinite detention. In such a case, prolonged detention without a reasonable prospect of return is arbitrary in light of Article 5(1)(f) ECHR.

The case considered an application against the decision of the Secretary of State refusing to consider the merits of the Claimants’ contentions for asylum, on the basis that Hungary was considered to be a “safe” country that would presumably comply with its EU and international legal obligations. The Claimants argued that they would be at risk of refoulement to Iran if removed to Hungary, in breach of their rights under Article 3 of the European Convention on Human Rights (ECHR). The Claimants further argued that along the way, they would be at risk of detention in conditions and circumstances amounting to an unlawful violation of their fundamental right to freedom and liberty under Article 5(1)(f) ECHR. The court held that removal of the Claimants to Hungary gives rise to a real risk of chain refoulement to Iran.  However, there was insufficient evidence to make out breach of Article 5 ECHR. 

The Slovenian legislature has not fulfilled its obligations under the provisions of Article 2(n) of the Dublin Regulation. The possibility of an analogous application of Article 68 of the Aliens Act-2 has a very weak basis in terms of the objective criteria required. It can only be sufficient in a particular case if in light of the specific circumstances of the case there is no doubt about the existence of the risk of absconding.

If an Applicant, whilst his asylum application is being processed, is held in a limited area, this may be in contravention of Article 5 of the European Convention on Human Rights (“ECHR”). In determining this, the Court may take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.

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. 

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. 

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).