ECtHR - Nabil and Others v. Hungary (no. 62116/12), Article 5(1), 22 September 2015

The case of Nabil and Others v. Hungary concerned three Somali nationals, who entered Hungary via Serbia in November 2011, and were intercepted and arrested by the Hungarian border police. They were subsequently transferred to the border station in Röszke due to having entered Hungary irregularly without identity documents.

They were served with an expulsion order to Serbia, which was suspended for a maximum period of six months or until the expulsion became feasible, as the Serbian authorities had failed to respond to Hungary’s request within the relevant time limit. The applicants’ detention was ordered on the grounds of their refusal to leave the country and their involvement in delaying the enforcement of expulsion or transfer. They applied for asylum, claiming fear of persecution from Al-Shabab on return to Somalia.

Domestic courts reviewed their detention on five occasions between 8 November 2011 and 3 March 2012. It was extended on the grounds of their irregular entry into Hungary, the risk of them frustrating their deportation and their pending asylum applications. The applicants were released on 24 March after being granted subsidiary protection. Invoking Article 5(1) ECHR, the applicants complained that their detention became arbitrary as it had no basis in domestic law following their asylum request and the suspension of their deportation to Serbia. They argued that this had not been remedied by appropriate judicial review contrary to Article 5(4) ECHR.

The Court ruled that the applicants’ first three days of detention, prior to lodging their asylum claim, were justified by Article 5(1)f) , as they were being detained with a view to deportation. With regards to their further detention, this had been justified mainly on the basis of the first decision to detain the applicants, without addressing the criteria set out in domestic law: whether the applicants were indeed frustrating their expulsion and posed a flight risk; whether alternative, less stringent measures were applicable and whether or not expulsion could eventually be enforced. Due to the lack of requisite scrutiny by the domestic courts who failed to assess the specific circumstances of the case and the applicants’ personal situation the ECtHR found a violation of Article 5(1). 

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