25 September 2015
The European Court of Human Rights (ECtHR) has ruled on a case concerned three Somali nationals who entered Hungary via Serbia, were arrested by Hungarian border police due to discrepancies about their identities and the legality of their residence in Hungary and were subsequently transferred to the border station in Röszke.
An expulsion order to return them to Serbia was issued, although it was simultaneously suspended for a maximum period of six months or until the expulsion became feasible. Their detention was ordered on the grounds of their refusal to leave the country and their involvement in delaying the enforcement of expulsion or transfer. It was reviewed by domestic courts on five occasions between 8 November and 3 March 2012 and extended on the grounds of their irregular entry into Hungary and the risk of them failing to comply with their deportation order. Meanwhile, the applicants unsuccessfully applied for asylum, claiming persecution in their home country. Following asylum proceedings they were released on 24 March and granted subsidiary protection. Invoking Article 5 §§ 1 and 4 of the Convention, the applicants complained that their detention had been arbitrary and not remedied by appropriate judicial review.
The Court ruled that the applicants’ first three days of detention were justified within the meaning of the second limb of Article 5 § 1(f) of the Convention. With regards to their further detention “with a view to deportation”, the Court considered that the domestic courts had not duly assessed whether the conditions under the national law for the prolongation of their detention were met in relation to the specific circumstances of the case and their personal situation. Their continuing detention was based on the risk that they might frustrate their expulsion; a risk, the Court held, that was not actually proven. Therefore, the Court found a violation of Article 5 § 1 with regards to their detention from 8 November 2011 to 3 March 2012.