(Application no. 10816/10)
20 September 2011
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lokpo and Touré v. Hungary,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 30 August 2011,
Delivers the following judgment, which was adopted on that date:
3. The applicants alleged that their detention between 9 April and 10 September 2009 had been unlawful, a situation not remedied by judicial supervision. They relied on Articles 5 §§ 1 and 4 and 13 of the Convention.
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
1. Act no. CXL of 2004 on the General Rules of Administrative Proceedings and Services (Administrative Procedure Act)
“(2) This Act applies to ... (c) proceedings related to the admission and residence of persons entitled to the right of free movement and admission, and third-country nationals, and also to asylum procedures; ... if the act pertaining to the type of case in question does not provide otherwise.”
“(2) In the event of an authority’s failure to comply with the obligation described above within the relevant administrative time-limit, the supervisory organ shall take prompt action to investigate the reason within five working days from the time of receipt of the request to this effect or upon gaining knowledge of the fact, and shall order the authority affected to conclude the proceedings within the time-limit prescribed, consistently with the case-type in question and considering the progress in the decision-making process...
(6) [...I]f in the case in question there is no supervisory organ or the supervisory organ fails to execute its vested authority, the court of jurisdiction for administrative actions shall, at the client’s request, order the authority to conclude the procedure...”
2. Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (Third Country Nationals Act)
“(2) Any third country national whose application for refugee status is pending may be turned back or expelled only if his or her application has been refused by a final and enforceable decision of the refugee authority.”
“(4) Detention ordered under the immigration laws shall be terminated immediately:
a) if the conditions for carrying out expulsion are secured;
b) if it becomes evident that expulsion cannot be executed; or
c) after six months from the date when the detention was ordered.”
3. Act no. LXXX of 2007 on Asylum (Asylum Act)
“(1) Where the Dublin Regulations cannot be applied, the decision to determine as to whether an application is considered inadmissible lies with the refugee authority.
(2) An application shall be considered inadmissible if:
a) the applicant is a national of any Member State of the European Union;
b) the applicant was granted refugee status in another Member State;
c) the applicant was granted refugee status in a third country, where this protection also applies at the time of examination of the application, and the country in question is liable to re-admit the applicant;
d) the applicant has lodged an identical application after a final refusal.”
“(1) If the refugee authority finds an application admissible, it shall proceed to the substantive examination of the application ...
(3) If the refugee authority proceeds to the substantive examination of the application and the applicant is detained by order of the immigration authority, the immigration authority shall release the applicant at the initiative of the refugee authority.”
Section 56 (The in-merit procedure)
“(1) In the order admitting the request to the in-merit phase, the refugee authority shall assign the asylum seeker – upon the latter’s request – to a private accommodation or, in the absence of such, to a dedicated facility or another accommodation, unless the asylum-seeker is subjected to a ... measure restraining personal liberty. ...
(2) During the in-merit examination and the eventual judicial review of the decision adopted therein, the asylum seeker is obliged to stay at the designated accommodation.
(3) The in-merit procedure shall be completed within two months from the adoption of the decision ordering it.”
4. Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status
Article 18 (Detention)
“1. Member States shall not hold a person in detention for the sole reason that he/she is an applicant for asylum.”
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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 or of a person against whom action is being taken with a view to deportation or extradition.”
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros) to the applicants jointly, plus any tax that may be chargeable to the applicants, 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 20 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Jočienė and David Thór Björgvinsson is annexed to this judgment.
DISSENTING OPINION OF JUDGES
JOČIENĖ AND DAVID THÓR BJÖRGVINSSON
We do not agree with the majority of the Chamber in finding a violation of Article 5 § 1 in this case. We agree with the basic principles as stated by the majority in paragraphs 16-18 and 21 of the judgment, but we cannot agree with the application of those principles to the applicants’ case and their situation.
A deprivation of liberty under Article 5 § 1 can be justified when it is “lawful” (see paragraph 18 of the judgment) and not arbitrary (see paragraphs 21-22 of the judgment). It is not contested that the original decision to detain the applicants was lawful. However, the applicants claim that their continued detention was unlawful since section 55(3) of the Asylum Act must be understood as establishing an obligation to initiate the release of the applicants.
In this regard, we would point out that it transpires from paragraph 8 of the judgment that the applicants’ lawyer requested their release. Since, however, the refugee authority had not initiated their release, the request was rejected by the alien administrative authority. Following that decision, the lawyer requested judicial review of their detention. This motion was also rejected by the Nyírbátor District Court with the reasoning that since the refugee authority had not initiated the applicants’ release, the alien administrative authority had been under no obligation to order their release and that therefore their detention was lawful.
The reasons advanced by the majority for finding a violation would seem to be twofold. Firstly, it would seem that they doubt if the interpretation of the relevant national rule by the national courts is correct. Secondly, even assuming that it is correct they consider that the applicants’ detention was not compatible with the requirement of “lawfulness” inherent in Article 5 of the Convention, since the authority’s non-action must be considered arbitrary, as it was not incarnated by a decision accompanied by a reasoning, nor was it susceptible to a remedy (see paragraph 23 of the judgment). They further add that the deprivation of liberty by virtue of the mere silence of an authority is a procedure verging on arbitrariness (see paragraph 24 of the judgment). They therefore conclude that the detention was arbitrary and thus not lawful.
As regards the interpretation of national law, we reiterate that it is for the domestic courts to interpret and apply the provisions of domestic law; the Court here plays only a subsidiary role (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I; Korbely v. Hungary [GC], no. 9174/02, § 72, 19 September 2008; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 140, ECHR 2006-V). The Court cannot substitute its own interpretation of national law for that of the domestic courts. It must therefore be accepted as the correct interpretation of national law that the refugee authority was under no obligation to initiate the release of the applicants.
As regards the alleged arbitrariness of the detention, we would point out that the lawfulness of the original decision to detain the applicants with a view to their eventual expulsion is not disputed, but only their continued detention after their asylum case reached the in-merit stage. When a case of an asylum–seeker reaches the in-merit stage, section 55(3) of the Asylum Act provides that the alien administration authority shall, at the initiative of the refugee authority, terminate the detention of the asylum-seeker. We would point out that the law does not provide for an unconditional legal obligation to liberate the asylum-seeker in all situations when his/her case reaches the merits stage. The fact that the refugee authority did not take the initiative is, in our view, not enough to render the continued detention arbitrary. It must be assumed that, under these circumstances, the continued detention is based on the same reasons as the original decision. There is nothing in the case file to suggest that the refugee authority in this case behaved differently compared to other similar cases. Furthermore, the continued detention of the applicants was subject to judicial review, in which the applicants’ motion was rejected. Finally, we would add that the applicants were released when the maximum period of detention in asylum cases had expired (see section 54(4) c) of the Asylum Act and paragraph 9 of the judgment).
Even accepting that the domestic court limited itself to what the majority labels as “formal” reasoning and a more detailed analysis of the legal basis for the continued detention might have been appropriate, this is not in itself sufficient to render the detention of the applicants, which was based on a clear legal provision, arbitrary.
Therefore, we conclude that the continued detention of the applicants, which was based on the original decision reviewed by the national court, was not arbitrary and thus not deprived of a legal basis. For these reasons, no violation of Article 5 § 1 can be found in the circumstances of this case.
We also think that in this case an examination of the legal basis for the applicants continued detention could have been more appropriate under Article 5 § 4, but this aspect had not been communicated to the Government.