European Court of Human Rights

 

 

FOURTH SECTION

CASE OF M.K. v. HUNGARY

(Application no. 46783/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

9 June 2020

 

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of M.K. v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Branko Lubarda, President,
          Carlo Ranzoni,
          Péter Paczolay, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Pakistani national, Mr M.K. (“the applicant”), on 20 June 2014;

the decision to give notice to the Hungarian Government (“the Government”) of the complaint concerning Article 5 § 1 of the Convention and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 5 May 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

The case concerns the detention of an asylum seeker on the grounds that he risked absconding since his identity could not be clarified, he had no means to support himself and had no connections in the country.

THE FACTS

1.  The applicant was born in 1981 and presently lives in Budapest as a Pakistani national under subsidiary protection. He was represented by Mr T. Fazekas, a lawyer practising in Budapest.

2.  The Government were represented by their Agent, Mr Z. Tallódi, from the Ministry of Justice.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On 4 July 2013 officers of the Csongrád county police apprehended the applicant for an identity check. During his questioning he admitted to having crossed the Hungarian border illegally but produced no documents.

5.  On 5 July 2013 the applicant lodged an asylum application with the Office of Immigration and Nationality. As he had no documents, his detention was ordered (menekültügyi őrizet) under section 31/A (1) a) and c) of Act no. LXXX of 2007 on Asylum (“the Asylum Act”) in order to clarify his identity and nationality and to ensure his availability for the asylum procedure. The Office held that less stringent measures would not be appropriate for those purposes. That measure lasted from 5 to 8 July 2013.

6.  On 8 July 2013 the Békéscsaba District Court extended the asylum detention until 6 September 2013. It noted that the applicant’s identity was unclear and that he had arrived in Hungary unlawfully, and held that continued detention was necessary to ensure his availability for the asylum procedure.

7.  On 1 August 2013 having found that the applicant’s asylum request was neither inadmissible nor manifestly ill-founded, the asylum authority ordered the examination of the case on the merits. The applicant was heard on 2 October 2013.

8.  On 29 August and 29 October 2013 the District Court further extended the applicant’s asylum detention, on exactly the same grounds as before.

9.  The applicant’s request for refugee status having been declined, he was ultimately granted subsidiary protection (oltalmazott) pursuant to section 12 § 1 of the Asylum Act. Consequently, he was released from asylum detention by a decision of the asylum authority on 21 December 2013.

10.  The applicant was in asylum detention from 5 July until 21 December 2013, that is to say, for five-and-a-half months.

RELEVANT LEGAL FRAMEWORK

11.  Act no. LXXX of 2007 on Asylum (“the Asylum Act”) provides as follows:

Section 31/A

“(1) In order to ensure compliance with the provisions set forth in sections 33 and 49(5), and having regard to the restrictions under section 31/B, the asylum authority may take into asylum detention a person seeking recognition whose right of residence is only based on the submission of an application for recognition if:

a) the identity or nationality of the person seeking recognition is not clear, in order to establish it;

...

c) there are grounds for presuming that the person seeking recognition is delaying or frustrating the asylum procedure or presents a risk of absconding, in order to establish the particulars required for conducting the asylum procedure; ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

12.  The applicant complained that his detention had been unjustified, in breach of Article 5 § 1 of the Convention, the relevant part of which reads:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country ...”

A.    Admissibility

13.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

14.  The applicant submitted that his asylum detention had not been lawful or justified since it had not corresponded to any of the reasons for detention mentioned in the exhaustive list in Article 5 § 1 of the Convention. He submitted in particular that his asylum detention had been arbitrary, because the court had ordered it without properly analysing the legal grounds, his personal circumstances or the applicability of less stringent measures, considerations prescribed both by the national law and by the Convention.

15.  The Government submitted that the measure complained of had been justified under the first limb of Article 5 § 1 (f) of the Convention, in that the authorities had sought to confirm the applicant’s identity and nationality, and to ensure that he would be available for the asylum procedure. This had been necessary because he had been apprehended as an illegal migrant, had produced no personal documents and had been likely to frustrate the asylum procedure by leaving Hungary prematurely.

16.  The Court notes at the outset that it is not disputed by the Government that the applicant’s asylum detention amounted to a deprivation of liberty within the meaning of Article 5 § 1. It considers that he was deprived of his liberty within the meaning of Article 5 § 1 during the five-and-a-half months he was in custody. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000-III). In the present case the Government’s contention was that the detention had been justified under the first limb of Article 5 § 1 (f). The Court must accordingly ascertain whether the applicant was lawfully detained “to prevent his effecting an unauthorised entry into the country”.

17.  The relevant principles have been outlined notably in Saadi v. the United Kingdom ([GC], no. 13229/03, §§ 61 to 74, ECHR 2008) and Suso Musa v. Malta (no. 42337/12, §§ 89 to 93, 23 July 2013).

18.  In particular, it is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67).

19.  As regards the lawfulness of the measure in question, the Court sees no reason to doubt that the applicant’s detention complied with the domestic provisions of substantive and procedural law. It observes in particular that the Office of Immigration and Nationality and the District Court invariably relied on section 31/A (1) a) and c) of the Asylum Act when extending the measure at the statutory intervals (see paragraph 5 above).

20.  As regards the second prong of the applicable test, namely that of absence of arbitrariness, the Court reiterates that, “to avoid being branded as arbitrary, ... detention [under Article 5 § 1 (f)] must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that ‘the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country’ ...; and the length of the detention should not exceed that reasonably required for the purpose pursued” (see Saadi, cited above, § 74).

21.  Of those considerations, in the present case the Court attaches particular importance to the last one mentioned, that is to say, the reasonable length of the detention. It observes that the applicant’s detention lasted five‑and-a-half months (see paragraph 10 above) (see Suso Musa, § 102, and contrast Saadi, § 79, both cited above). For the Court, this duration alone is capable of raising concerns, even in the absence of any indication that the detention took place in inappropriate conditions (contrast Kanagaratnam and Others v. Belgium, no. 15297/09, §§ 94-95, 13 December 2011). During that time, the authorities repeatedly relied on two elements: the need to confirm his identity and nationality, and the need to ensure that he would be available for the asylum procedure. In the Court’s view, even if those objectives were initially justified, with the passage of time it was less and less so, especially after 1 August 2013 when his asylum case was admitted for examination on the merits (see paragraph 7 above). From that time on, the applicant’s asylum case was at least arguable. Yet, the measure continued for more than another four-and-a-half months (see paragraph 10 above). For the Court, that stage of the applicant’s detention cannot be said to have corresponded to the requirement of close connection “to the purpose of preventing unauthorised entry of the person to the country” (see Saadi, cited above, § 74). It follows that the applicant’s detention, from then on and up to the date on which his asylum application was determined on 21 December 2013, was not compatible with Article 5 § 1 (f) of the Convention, which has therefore been violated.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

23.  The applicant claimed 7,500 euros (EUR) in respect of non‑pecuniary damage.

24.  The Government contested the claim.

25.  The Court considers that the applicant must have suffered some non‑pecuniary damage and awards him the full sum claimed, that is to say, EUR 7,500.

B.     Costs and expenses

26.  The applicant also claimed EUR 2,730 plus VAT for the costs and expenses incurred before the Court. This sum corresponds to twenty-one hours of legal work billable by his lawyer at an hourly rate of EUR 130 plus value-added tax (VAT).

27.  The Government contested the claim.

28.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, that is to say, EUR 2,730 plus VAT.

C.    Default interest

29.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 5 § 1 of the Convention;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,730 (two thousand seven hundred and thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.

Done in English, and notified in writing on 9 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth                                                                      Branko Lubarda
Deputy Registrar                                                                       President