European Court of Human Rights

FIFTH SECTION

CASE OF A.A. v. HUNGARY

(Application no. 7077/15)

JUDGMENT
 

STRASBOURG

14 September 2023

This judgment is final but it may be subject to editorial revision.

In the case of A.A. v. Hungary,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 7077/15) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 31 January 2015 by an Algerian national, Mr A. A., born in 1981 and living in Algeria ("the applicant") who was represented by Ms B. Pohárnok, a lawyer practising in Budapest;

the decision to give notice of the application to the Hungarian Government ("the Government"), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the decision not to have the applicant's name disclosed;

the parties' observations;

Having deliberated in private on 12 July 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant's asylum detention.

2.  The Police apprehended the applicant in Hungary on 21 December 2013. He was placed in pre-trial detention in relation to criminal proceedings concerning his use of a forged passport. On 6 June 2014 the applicant's pre-trial detention was terminated and he was handed over to the Office of Immigration and Nationality ("the OIN"). It would appear that the OIN was informed of the applicant's identification data and received an original and a certified translation of his birth certificate. On the same day, during the interview conducted by the officers of the OIN, the applicant had expressed his wish to apply for asylum and the OIN initiated the asylum procedure. Following the interview (still on 6 June 2014) the OIN ordered the applicant's asylum detention relying on section 31/A (1) (a) and (c) of Act no. LXXX of 2007 on Asylum (the "Asylum Act", see O.M. v. Hungary, no. 9912/15, § 21, 5 July 2016) referring to the need to clarify the applicant's identity, the lack of financial resources, lack of connections in the country and the resultant risk of absconding. The OIN also noted that the applicant's application for asylum was motivated by financial interests and that he had arrived unlawfully in Hungary. On the same grounds the OIN found that less restrictive measures could not be applied. It would appear that the applicant was granted a residence permit on humanitarian grounds for duration of the asylum proceedings.

3.  On 8 June 2014 the Debrecen District Court prolonged his detention until 4 August 2014 on essentially the same grounds and noting again that the applicant's stay in Hungary had been unlawful.

4.  On 11 June 2014 the OIN suspended the immigration procedure against the applicant, noting that he was entitled to stay in Hungary on account of his pending asylum procedure.

5.  On 23 June 2014 the applicant submitted a handwritten declaration of a certain Hungarian citizen (hereinafter "A"), who had undertaken to provide him with an accommodation, and requested the OIN to release him. On 23 July 2014 the OIN requested the domestic court to extend the applicant's detention. On 29 July 2014 the applicant's representative requested the OIN to release the applicant and instead apply alternative measures for securing his availability, referring to A's declaration confirming that she could provide the accommodation for the applicant and to the applicant's identification documents.

6.  Subsequently, the applicant's representative resubmitted the evidence in support of the applicant's release, attaching a maintenance declaration signed by A, and repeatedly requested the domestic court that a hearing be held in this regard. On 31 July 2014, following a hearing, the Debrecen District Court decided not to prolong the applicant's asylum detention. He was released on 1 August 2014, with an obligation to report regularly to the authorities and to reside at a designated address. The applicant's asylum detention lasted from 6 June to 1 August 
2014.

7.  Following the interview with the applicant held on 23 September 2014, the applicant's asylum application was dismissed on the merits on 11 November 2014. His appeal was also dismissed.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

8.  The Government submitted that the applicant's address had been unknown to the Hungarian authorities and that his representative had failed to demonstrate that she had maintained contact with him. The Court notes that the applicant's representative provided details of her email exchange with the applicant of September 2021, from which it clearly transpires that he wished to continue the application, and his current address in Algeria. The Court therefore finds no grounds to conclude that the applicant does not intend to pursue his application. This Government's objection must be dismissed. The Court further notes that the present application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9.  The Government argued that the applicant's detention fell under Article 5 § 1 (f) of the Convention because the applicant had been detained pending the determination of his right to enter and stay in the country. The Court takes note of this argument. It would refer in this respect to the principles set out in Saadi v. the United Kingdom ([GC], no. 13229/03, §§ 64-66, ECHR 2008) and Suso Musa v. Malta (no. 42337/12, §§ 90 and 97, 23 July 2013). It notes that the applicant submitted that he had been granted a residence permit on humanitarian grounds in line with the national law and had held this permit throughout the proceedings (contrast M.K. v. Hungary [Committee], no. 46783/14, 9 June 2020, where no such information was put forward). It observes in this connection that, pursuant to Section 70 of Government Decree no. 114/2007. (V. 24.) on the implementation of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals, the asylum authority was required to give an asylum seeker a residence permit on humanitarian grounds within three days from when the request for asylum had been made. Therefore, having regard to the fact that the applicant was in possession of the aforementioned residence permit, and in the absence of any convincing argument to the contrary, the Court does not accept that in the present case the detention was meant to prevent an unauthorised entry into the country (see O.M. v. Hungary, cited above, § 47; Dshijri v. Hungary [Committee], no. 21325/16, § 12, 31 January 2023; and contrast Suso Musa, cited above, §§ 97-99).

10.  In so far as the applicant's detention could have been argued to fall under Article 5 § 1 (b), namely detention for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law, the Court notes that the present application is similar to O.M. v. Hungary (cited above), where the Court found a violation of Article 5 § 1. It observes that, pursuant to the Asylum Act, asylum detention could not be ordered for the sole reason that the person seeking recognition had submitted an application to that effect (Section 31/B (1)). Under section 31/A it could be ordered on the grounds listed therein and based on an individual assessment when its purpose (that is, the conduct of the asylum procedure or the securing of a transfer under the Dublin Conventions) could not be achieved through other measures securing the person's availability (see O.M. v. Hungary, cited above, § 21).

11.  In the present case, there is no indication that the applicant failed to cooperate with the Hungarian authorities. As regards the Government's argument that he had not proved his identity with sufficient evidence, the Court notes that he had provided a birth certificate of which the asylum authority appeared to have been aware on the same day his detention was ordered. There is no indication in the case file that the authenticity of this certificate was questioned. As regards the reference to the applicant's application for asylum being motivated by financial interests (see paragraph 2 above), this is not substantiated, nor is it shown in what way it was relevant to the detention order. Likewise, the fact that he had arrived in Hungary unlawfully (see paragraph 2 above) could not on its own justify the asylum detention. The Court reiterates that the applicant was issued with the special residence permit and notes in this connection that the immigration procedure against the applicant was suspended on the grounds that he was entitled to stay in Hungary during the pending asylum procedure (see paragraph 4 above). The Court further notes that, as in O.M. v. Hungary, the decisions ordering and prolonging the applicant's detention referred to the need to clarify his identity and prevent his absconding, but finds that their reasoning was not sufficiently individualised to justify the measure in question, as also required by the national law (ibid., §§ 49-52 and 54, and compare Dshijri v. Hungary [Committee], cited above, § 14, and M.M. v. Hungary [Committee], no. 26819/15, § 7, 4 May 2023).

12.  The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention regarding the applicant's detention from 6 June to 1 August 2014.

2. REMAINING COMPLAINT

13.  The applicant also complained under Article 5 § 4 of the Convention. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine this remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 8,850 in respect of costs and expenses incurred before the Court.

15.  The Government argued that the claims were excessive.

16.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

17.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,500 covering the costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under 5 § 1 of the Convention admissible and decides that there is no need to examine the applicant's remaining complaint;

2. Holds that there has been a violation of Article 5 § 1 of the Convention of the Convention;
3. Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 14 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President