CASE OF NABIL AND OTHERS v. HUNGARY
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The applicants were born in 1984, 1974 and 1985 respectively and currently reside in Bicske, Hungary. 6. Originally coming through Greece, the applicants entered Hungary via Serbia and were intercepted and arrested by the border police on 5 (Mr Nabil) and 6 (the other two applicants) November 2011. They were transferred to the border station in Röszke, Hungary, since they could not prove either their identities or their legal residence in Hungary. 7. On 6 November 2011 the applicants were interviewed with the assistance of an interpreter. On the same day the Csongrád County Police Department ordered the applicants’ expulsion to Serbia and a ban on entry to the territory of Hungary for three years, pursuant to section 43 (2) (a) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (the “Immigration Act”). With regard to the requirement of non-refoulement, it was considered that there was no such obstacle to the expulsion. The execution of the expulsion order was simultaneously suspended for a maximum period of six months or until the expulsion became feasible, noting that “the Serbian party failed to reply before the expiry of the “retention time” (visszatartási idő)”. At the same time, that is, on 6 November 2011, the applicants’ detention was ordered by the Csongrád County Police Department until 9 November 2011 under section 54(1)(b) of the Immigration Act, on the ground that “[they] refused to leave the country, or for other substantiated reasons it can be assumed that [they] are delaying or preventing the enforcement of expulsion or transfer”. In the findings of fact it was noted that the applicants were not in possession of any travel documents; that they had crossed the border illegally via Serbia; that they said that their travel destination was [Western] Europe, Germany in particular; and that they had not applied for asylum. 8. The applicants were first detained at Bács-Kiskun County Police Department’s guarded accommodation (őrzött szállás). 9. On 9 November 2011 the applicants applied for asylum, claiming that they were persecuted in their home country by the terrorist organisation AlShabaab. On 10 November 2011 the applicants were transferred to the guarded accommodation of Szabolcs-Szatmár-Bereg County Police Department in Nyírbátor. 10. Preliminary asylum proceedings were put in place on 10 November 2011, and the immigration authorities were notified thereof. On 9 December 2011 the applicants were interviewed by the Citizenship and Immigration Authority (hereinafter: “asylum authority”) On 12 December 2011 their case was admitted to the “in-merit phase” by a decision of the asylum authority, in view of the fact, among other things, that there existed no “safe third country” in their respect. 11. Meanwhile, on 8 November 2011 the Kiskunhalas District Court had heard the applicants, assisted by a guardian ad litem and an interpreter, and had extended their detention until 5 December 2011. Relying on section 54(1) b) of the Immigration Act, it endorsed in essence the decision of 6 November 2011 of the Csongrád County Police Department, saying that the applicants, in a state of illegal entry, were likely to frustrate their deportation. On 29 November and 30 December 2011 the detention was extended again by summary decisions of the Nyírbátor District Court, referring to the immigration authority’s renewed requests to have the applicants detained for the same reasons as before and stating that the circumstances had not changed. These latter decisions made no reference to the on-going asylum proceedings. On 1 February 2012 the same court again extended the applicants’ detention on the same basis, mentioning that their expulsion was suspended due to their pending asylum applications. 12. On 17 January 2012 the applicants’ lawyer requested their release, but in vain. (The date as of which they obtained legal representation is not known.) A subsequent request for judicial review of their detention under sections 54(6)(b) of the Immigration Act was to no avail either. 13. On 3 March 2012 the Nyírbátor District Court again prolonged the applicants’ detention, holding that there were substantial grounds for believing that the applicants would hinder or delay the implementation of the expulsion order. Having heard the applicants, the court held as follows: “The expulsion order cannot be considered unenforceable on the ground that the asylum procedure has not been concluded. Under section 51(2) of the Immigration Act, a first asylum application has suspensive effect on the enforcement of the expulsion order, although this does not mean that the expulsion order is not enforceable. Unenforceability refers to a permanent state and not to a temporary period such as the term of the asylum procedure. ... Under section 54(6) of the Immigration Act (Act no. II of 2007), detention ordered under the immigration laws shall be terminated if (a) the expulsion or transfer has become viable; (b) when it becomes evident that the expulsion or transfer cannot be executed; or (c) the detention has exceeded six ... months. None of the reasons for the termination [of the detention] listed in the above-cited paragraph exists. The expulsion or transfer is [actually] not viable because of the pending asylum application; furthermore, there will be [at last] no reason preventing the execution of the expulsion or transfer if the foreign national [eventually] receives no protection in the asylum procedure, since the procedure has failed to prove that Serbia is no safe third country, [and Serbia], according to the information provided by the immigration authority, is ready to re-admit the foreign national pursuant to the Agreement between Serbia and the European Union. Lastly, the time that has elapsed since the beginning of the detention is less than six or twelve months ... On the basis of the information available to the court, the foreign national, according to his statement made during the first interview, intended to travel to Western Europe to find employment. He did not admit to this during the hearing but the court has no information which would support the foreign national’s [statement departing from the earlier one]. In view of this, it is reasonable to assume that the foreign national would delay or prevent the enforcement of the expulsion order. He is unwilling to comply with the expulsion order voluntarily, therefore it can be established that the expulsion order cannot be enforced by way of applying sections 48 (2) or 62 (1) of the Immigration Act [that is, seizure of travel document or designated residence]. The court has found that the conditions for the continuation of the detention lawfully ordered under section 54 of Act no. II of 2007 continue to be met.” 14. After interviews on the merits of their applications on 28 February 2012, on 19 March 2012 the applicants’ asylum applications were dismissed, but they were granted subsidiary protection (“oltalmazott”) under section 12 (1) of Act no. LXXX of 2007 (the “Asylum Act”). This decision was delivered and became final on 23 March 2012. The applicants’ detention ended on 24 March 2012.