ECtHR - O.M. v. Hungary (no. 9912/15), [Article 5 ECHR], 5 July 2016

Tuesday, July 5, 2016

The Fourth Section of the European Court of Human Rights has given its ruling in the case of O.M. v. Hungary (no. 9912/15) regarding the immigration detention in Hungary of an Iranian LGBT asylum seeker.
In June 2014, O.M had arrived in Hungary, where he was apprehended and subsequently applied for asylum. On 25 June 2014, the Office of Immigration and Nationality ordered for the applicant to be detained, referring to the fact that his identity and nationality had not yet been clarified and to the risk of absconding. He was then arrested and placed in a detention facility, where he was kept for 58 days.
The Court reiterated that Article 5 ECHR protects individuals against arbitrary interference by a Member State with his or her right to liberty. Any deprivation of liberty will only be lawful when it falls within the exhaustive list of permissible grounds listed in the sub-paragraphs (a) to (f) of Article 5 § 1 ECHR. In addition, detention measures must be prescribed by law and be of a sufficient quality to protect from arbitrariness. The authorities must further carry out a proportionality and necessity analysis, which includes an analysis of alternative means of detention. In this assessment the Court considers the following points relevant: the nature of the obligation arising from the relevant legislation, including its underlying object and purpose; the person being detained and the particular circumstances leading to the detention; and the length of the detention.
In the circumstances of the applicant’s case, the Court found that Article 5 § 1 (b) ECHR could not serve as a legal basis of the immigration detention. The Court therefore unanimously ruled that the applicant’s detention was arbitrary and unjustified, in violation of Article 5 § 1 ECHR. In particular, the Court found that the Hungarian authorities had failed to make an individualised assessment and to take into account the applicant’s vulnerability in the detention facility based on his sexual orientation. The Court emphasised special care the authorities should exercise when deciding on deprivation of liberty in order to avoid situations which may reproduce the plight that forced asylum seekers to flee in the first place.
ECRE submitted joint written observations in this case, with the ICJ, the AIRE Centre, and ILGA-Europe. The case was brought by the Hungarian Helsinki Committee.

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