The case concerns the applicant’s asylum detention.
CASE OF M.N. v. HUNGARY
(Application no. 48139/16)
14 September 2023
This judgment is final but it may be subject to editorial revision.
In the case of M.N. v. Hungary,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,
Having regard to:
the application (no. 48139/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 August 2016 by an Afghan national, Mr M. N., born in 1995 and living in Telfs (“the applicant”) who was represented by Ms B. Polaron, 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. After crossing the Hungarian border unlawfully, the applicant submitted his asylum request on 15 September 2015. The next day, on 16 September 2015, the Office of Immigration and Nationality (“the asylum authority”) commenced the asylum proceedings and ordered his detention on the basis of 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. According to the unsigned records of the minutes of the asylum interview, the applicant, when asked, explained his route from Afghanistan and said that he had planned on going to Finland.
3. On 18 September 2015, the Debrecen District Court ordered that the applicant remained in detention, relying on essentially the same grounds as the asylum authority and noting also that the applicant identified Germany as his final destination. On 7 October 2015 the applicant’s asylum request was rejected as inadmissible and his expulsion to Serbia was ordered. However, this decision did not become final and enforceable because the Debrecen Administrative and Labour Court, on 12 November 2015, quashed it and remitted the case to the asylum authority. On the same day the asylum authority terminated the applicant’s detention finding that the reasons ceased. However, later on the same day, it ordered the applicant’s detention again, essentially on the same grounds as previously. On 13 November 2015 the Debrecen District Court prolonged the applicant’s asylum detention relying on the same grounds.
4. During the asylum interview, held on 26 November 2015, the applicant gave an account of his health problems and complained of the detention conditions. He also explained that he had paid the smugglers to take him to Germany but that he had been dropped off earlier, presumably in Serbia. Subsequently, he submitted repeated requests for his release and complained of his poor health.
5. On 10 December 2015 the Kiskunhalas District Court prolonged his detention until 10 February 2016, relying essentially on the same grounds as previously. On 17 December 2015 during the second asylum interview, the applicant again complained about his poor health. He also said that he no longer wished to go to Finland as he found that Hungary was safe.
6. On 12 January 2016 the asylum authority rejected the applicant’s asylum request as inadmissible again and ordered that he be expelled to Serbia. This decision did not become final and enforceable as the applicant challenged it in his request for judicial review. The applicant’s detention was prolonged on 9 February 2016 by the Kiskunhalas District Court. On 12 February 2016 the Szeged Administrative and Labour Court quashed the decision of 12 January 2016 and ordered the asylum authority to conduct a new procedure.
7. In the meantime, on 11 February 2016, the asylum authority terminated the applicant’s asylum detention finding that the reasons for it ceased, without providing any specific information in this regard. The applicant was subsequently accommodated in an open reception facility.
8. The applicant had a residence permit issued on humanitarian grounds pending the above proceedings.
9. He was detained as part of asylum detention between 16 September 2015 and 11 February 2016.
THE COURT’S ASSESSMENT
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
10. 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 a copy of her email exchange with the applicant, a copy of his signed statement of 31 August 2021 indicating his wish to continue the proceedings before the Court, his phone number as well as his current address in Austria. 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.
11. 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).
12. The Court further notes that the applicant’s detention could also not be considered to fall under the second limb of Article 5 § 1 (f) since the expulsion orders issued against the applicant were not enforceable and, in any event, the grounds for detention did not relate to them.
13. 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).
14. In the present case, there is no indication that the applicant failed to cooperate with the Hungarian authorities. The decisions ordering and prolonging the applicant’s detention, which ultimately lasted almost five months, referred repeatedly to the set of grounds, such as the need to clarify the applicant’s identity and prevent his absconding, but were not sufficiently individualised, as required by the national law (see O.M. v. Hungary, cited above, §§ 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).
15. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention regarding the applicant’s detention from 16 September 2015 to 11 February 2016.
II. REMAINING COMPLAINT
16. 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
17. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 7,050 in respect of costs and expenses incurred before the Court.
18. The Government argued that the claims were excessive.
19. 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.
20. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,000 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;
(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:
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand 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