European Court of Human Rights

Communicated on 28 August 2014

SECOND SECTION

Application no. 62116/12
Nabil AHMED MOHAMED and others
against Hungary
lodged on 11 September 2012

STATEMENT OF FACTS

The applicants, Mr Ahmed Mohamed Nabil, Mr Ali Isse Saleh and Mr Addow Shini Mohamud, are Somalian nationals who were born in 1984, 1974 and 1985 respectively and currently reside in Bicske, Hungary. They are represented before the Court by Ms B. Pohárnok, a lawyer practising in Budapest.

The applicants entered Hungary via Serbia and were intercepted and arrested by the border police on 5 November 2011. They were transferred to the Border Station in Röszke (Hungary) since they could not prove either their identity or their legal residence in Hungary.

On the next day the Immigration Department of the Csongrád County Regional Police Directorate ordered the applicants’ expulsion to Serbia and a ban on entry to the territory of Hungary for three years. Immediately, the expulsion order was suspended for a maximum period of six months on the ground that Serbia refused the applicants’ readmission. Their detention was ordered until 9 November 2011 under section 54 (1) point b) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (Immigration Act), on the ground that there were substantial grounds to believe that they would hide from the authorities or obstruct the enforcement of the expulsion in some other way.

On 9 November 2011 the applicants applied for asylum, claiming that they were persecuted in their home country by Al-Shabab.

The asylum proceedings started on 10 November 2011 and, on 9 December 2011, the applicants were interviewed by the aliens administration authority. On 12 December 2011 their case was admitted to the “in-merit phase” by a decision of the Citizenship and Immigration Authority, stating that there was no “safe third country” in their respect.

Under section 51(2) of the Immigration Act, third country nationals whose asylum applications are pending may only be expelled if their applications are refused by final and enforceable decisions of the refugee authority. Nevertheless, the applicants’ detention was prolonged.

On 17 January 2012 the applicants’ lawyer requested their release without success. A request for judicial review under sections 54 (6) point b) and 55 (6) of the Immigration Act was to no avail. According to the decision of the Nyírbátor District Court delivered on 3 March 2012, there were substantial grounds to believe that the applicants would hinder or delay the implementation of the expulsion order.

After an interview on the merits of their application on 28 February 2012, on 19 March 2012 the applicants’ asylum requests were dismissed but they were granted subsidiary protection under section 12 (1) of Act no. LXXX of 2007.

The applicants were released only on 24 March 2012, after subsidiary protection had been granted to them.

COMPLAINTS

The applicants complain that their detention, purportedly imposed “with a view to deportation”, was unjustified, in particular in that, in its initial phase, expulsion to Serbia was not at all possible and then became legally prohibited on the strength of their asylum applications. Moreover, they allege that their detention was prolonged without a proper examination of their arguments about its perceived illegality and the specific circumstances of their cases. They rely on Article 5 §§ 1 (f) and 4 of the Convention.

QUESTION TO THE PARTIES

Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty during the period between 6 November 2011 and 24 March 2012 fall within paragraph (f) of this provision, given that the applicants’ expulsion was apparently not feasible?