ECtHR – Nabil and Others v. Hungary, no. 62116/12, 22 September 2015

Regarding the first three days of the applicants’ detention, when the applicants had not yet requested asylum, the Court was satisfied that the measure had served the purpose of detaining a person with a view to deportation, as in accordance with the second limb of art. 5.1(f) of the Convention, and section 54(1)(b) of the Hungarian Immigration Act (the applicable national law). In this respect, the Court importantly remarked that the second part of art. 5.1.(f) of the Convention does not require the detention of  persons to be necessary to prevent them from committing an offence or fleeing. Art. 5.1(f) simply requires that deportation or extradition proceedings are in progress, and pursued with due diligence.

As to the applicants’ detention that was subsequent to their application for asylum, on the one hand the Court acknowledged that the submission of an asylum application does not as such imply that the detention was no longer “with a view to deportation” (as required by art. 5.1(f) of the Convention). On the other hand, the Court reiterated that detention still has to be in compliance with national law, and free from arbitrariness, as also required by art. 5.1 of the Convention (Mooren v. Germany; Saadi  v.  the  United  Kingdom).

With regard to compliance with domestic law, the Court found that none of the 4 judicial decisions that reviewed the lawfulness of the applicants detention between November 2011 and February 2012 actually assessed whether the domestic legal conditions to prolong the detention of the applicants were met. Indeed, according to art. 54 of the Immigration Act, to validly prolong the applicants’ detention, the domestic authorities had to verify whether the applicants were actually frustrating the enforcement of the expulsion; whether less stringent measures were not applicable, and whether or not the expulsion could eventually be enforced. Nevertheless, all the aforementioned decisions were in essence only based on the reason contained in the first detention order issued by the Police Department: the risk that the applicants might have frustrated their expulsion, without any analysis of the circumstances substantiating such a risk. Furthermore, although the decision taken on 1 February 2012 mentioned that the expulsion had been suspended due to the asylum application, neither this decision nor the previous ones dealt with the possible impact of the applicants’ asylum proceedings on their detention.  In light of the foregoing, the Court found a violation of Art.5.1 of the Convention in the period between 8 November 2011 and 3 March 2012. It considered it unnecessary to further examine whether the applicants’ detention in this period could be otherwise deemed arbitrary, and whether the period from 3 March 2012 (the day of the last prolongation) to the 24^th of the same month had also been contrary to the Convention.