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SECOND
SECTION
CASE OF LOKPO AND TOURÉ v. HUNGARY
(Application
no. 10816/10)
JUDGMENT
STRASBOURG
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:
Françoise
Tulkens,
President,
Danutė
Jočienė,
David
Thór Björgvinsson,
Giorgio
Malinverni,
András
Sajó,
Işıl
Karakaş,
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:
PROCEDURE
- The
case originated in an
application (no. 10816/10)
against the Republic of Hungary lodged with the Court
under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two
Ivorian nationals, Mr
Paul Thibaut Lokpo and Mr Ousmane Touré
(“the applicants”), on 18 February 2010.
- The
applicants were represented by Mr T. Fazekas, a lawyer practising in
Budapest. The Hungarian
Government (“the Government”) were represented by Mr L.
Höltzl, Agent, Ministry of Public Administration and Justice.
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.
- On
25 August 2010 the
President of the Second Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in
1990 and 1984 respectively. At the time of introducing the
application, they lived in
Budapest and Nyírbátor
respectively.
- The
applicants entered Hungary illegally and were intercepted and
arrested by the police on 10 March 2009. On the next day their
expulsion was ordered but suspended because of practical
difficulties. Their detention under immigration law was ordered until
20 March, with a view to their eventual expulsion. However, on 18
March they applied for asylum, claiming that they were persecuted in
their home country for being homosexual.
- The
asylum proceedings started on 25 March and, on 9 April, the
applicants were interviewed by the refugee authority, an agency
belonging under the jurisdiction of the Office of Immigration and
Nationality. On the same day their case was admitted to the in-merit
phase. Under section 55(3) of the Asylum Act (see below in Chapter
II), once a case reaches this stage, the alien administration
authority (another agency of the Office of Immigration and
Nationality) shall, at the initiative of the refugee authority,
terminate the detention of the asylum-seeker. Nevertheless, the
applicants’ detention continued. After another interview on 28
May, on 19 June their asylum requests were dismissed. The applicants’
action to challenge this decision in court was unsuccessful.
- Relying
on section 55(3), the applicants’ lawyer then requested their
release. However, since the refugee authority had not initiated their
release, the request was denied by the alien administration
authority. On 20 July 2009 the applicants’ lawyer
requested judicial review of their detention. This motion was
rejected by the Nyírbátor District Court on 19 August
2009 with the formal reasoning that since the refugee authority had
not initiated the applicant’s release, the alien administration
authority had been under no obligation to order their release and
that therefore their detention was lawful.
- The
applicants were released only on 10 September 2009, after the maximum
period of detention in such cases had expired.
II. RELEVANT DOMESTIC AND
INTERNATIONAL LAW
1. Act no. CXL of 2004 on the
General Rules of Administrative Proceedings and Services
(Administrative Procedure Act)
Section 13
“(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.”
Section 20
“(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)
Section 51
“(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.”
Section 54
“(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)
Section 51
“(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.”
Section 55
“(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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §
1 OF THE CONVENTION
- The
applicants
complained that their detention between 9 April and 10 September
2009 had been arbitrary and had not been remedied by judicial
supervision. They relied on Articles 5 §§ 1 and 4 and 13 of
the Convention. The Government contested that argument. The Court
considers that the application falls to be examined under Article 5 §
1 of the Convention alone, which reads as relevant:
“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.”
A. Admissibility
- The
Government argued that the application should be declared
inadmissible because the applicants had not submitted to the domestic
courts all those arguments about the alleged unlawfulness of their
detention which they had submitted to the Court; in particular,
before the Nyírbátor District Court, they had not
specifically argued under section 54(4b) of the Third Country
Nationals Act that their detention should be terminated since their
expulsion could not be executed. Moreover, they had not introduced a
motion under section 20 of the Administrative Procedure Act which
would have been a judicial remedy capable of redressing their
grievances.
- The
applicants argued that a motion under section 20 –
administrative, extraordinary and discretionary in its character –
would not have been an effective remedy in the circumstances. This
was so in particular because their motion challenging the lawfulness
of their detention had already been rejected judicially, rather than
only administratively, when the Nyírbátor District
Court had reviewed the administrative decision denying their release
(see paragraph 8 above). The latter decision had been adopted by the
alien administration authority – an institutional unit
belonging to the same State agency, namely the Office of Immigration
and Nationality of the Ministry of Justice, as the refugee authority.
In these circumstances, it could not be expected that this
supervisory administrative organ would remedy their situation.
- The
Court notes that the applicants requested the judicial review of the
lawfulness of their detention, primarily arguing section 55(3) of the
Asylum Act. The court hearing this case rejected their request,
observing that the refugee authority had not initiated their release
(see paragraph 8 above). In these circumstances, the Court is
satisfied that the applicants submitted to the domestic authorities
the substance of the alleged grievances of their Convention rights.
It moreover considers that, in addition to the judicial review, the
applicants cannot be required to have availed themselves of the
procedure under section 20 of the Administrative Procedure Act. For
the Court, it could not reasonably be expected that the common
supervisory organ of the alien administration authority and the
refugee authority would remedy a perceived omission of the latter,
whereas a court decision had already upheld the conduct of the
former. In any event, the Court considers that, by pursuing a
judicial review, the applicants did afford the domestic authorities
the opportunity of putting right the alleged violation of the
Convention. It follows that the application cannot be rejected for
non-exhaustion of domestic remedies. The Court also notes that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention or inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
- The
applicants
argued that had section 55(3) of the Asylum Act been applied
properly, their release should have been initiated by the refugee
authority once the asylum proceedings had reached the in-merit phase.
Its failure to do so had rendered their continued detention unlawful.
In any case, the ambiguous wording of section 55(3) entailed a
discretionary administrative practice, inasmuch as the release of
those asylum-seekers whose cases were admitted to the in-merit phase
was, as a pattern, not initiated by the refugee authority. In their
view, the expression “at the initiative of the refugee
authority” must be interpreted as establishing an obligation on
the refugee authority’s side, otherwise there was inadmissible
legal uncertainty in this field. Moreover, in view of section 51(2)
of the Third Country Nationals Act, their expulsion was not imminent
while the asylum proceedings were still in progress, which made their
continued detention unjustified. Lastly, the District Court’s
procedure resulting in a laconic decision upholding their continued
detention solely on the formal ground that the refugee authority had
not initiated their release had not qualified as “proceedings
by which the lawfulness of [their] detention [was] decided speedily
by a court”, for the purposes of Article 5 § 4 of the
Convention.
- The
Government argued that the detention of the applicants, susceptible
to deportation, was justified under Article 5 § 1 (f) of the
Convention. In their view, the applicants’ interpretation of
section 55(3) was a misconception of the law. In fact, this provision
was enacted to ensure compliance with Article 18 of Council Directive
2005/85/EC, that is to ensure that no asylum-seeker be held in
detention for the sole reason that he or she was an applicant for
asylum. The Government stressed that section 55(3) was
sufficiently precise for the purposes of lawfulness within the
meaning of the Court’s case-law and must be interpreted as
creating a possibility for the refugee authority to initiate release
if the asylum-seeker’s case appeared well-founded, rather than
an obligation automatically to initiate release in every case of
in-merit examination. Any other interpretation would lead to the
abuse of this provision by illegal immigrants.
- The
Court observes that a person may be deprived of his liberty only for
the purposes specified in Article 5 § 1 of the Convention. It
notes that it is common ground between the parties that the
applicants were detained with a view to their expulsion. Article 5 §
1 (f) of the Convention is thus applicable in the instant case. This
provision does not require that the detention of a person against
whom action is being taken with a view to expulsion be reasonably
considered necessary, for example to prevent an offence or
absconding. In this connection, Article 5 § 1 (f) provides a
different level of protection from Article 5 § 1 (c): all that
is required under sub-paragraph (f) is that “action is being
taken with a view to deportation or extradition”. It is
therefore immaterial, for the purposes of Article 5 § 1 (f),
whether the underlying decision to expel can be justified under
national or Convention law (see Čonka
v. Belgium, no. 51564/99, § 38,
ECHR 2002-I; and Chahal v. the United Kingdom, 15
November 1996, § 112, Reports of
Judgments and Decisions 1996 V).
- The
Court reiterates, however, that it falls to it to examine whether the
applicants’ detention was “lawful” for the purposes
of Article 5 § 1 (f), with particular reference to the
safeguards provided by the national system. Where the “lawfulness”
of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention
refers essentially to national law and lays down the obligation to
conform to the substantive and procedural rules of national law, but
it requires in addition that any deprivation of liberty should be in
keeping with the purpose of Article 5, which is to protect the
individual from arbitrariness (see Amuur v. France, 25
June 1996, § 50, Reports 1996 III).
- The
Court must therefore ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied.
In laying down that any deprivation of liberty must be effected “in
accordance with a procedure prescribed by law”, Article 5 §
1 does not merely refer back to domestic law; like the expressions
“in accordance with the law” and “prescribed by
law” in the second paragraphs of Articles 8 to 11, it also
relates to the “quality of the law”, requiring it to be
compatible with the rule of law, a concept inherent in all the
Articles of the Convention. “Quality of law” in this
sense implies that where a national law authorises deprivation of
liberty it must be sufficiently accessible, precise and foreseeable
in its application, in order to avoid all risk of arbitrariness (see
Khudoyorov v. Russia,
no. 6847/02, § 125, ECHR 2005-... (extracts); Ječius
v. Lithuania, no. 34578/97, §
56, ECHR 2000-IX; Baranowski v.
Poland, no. 28358/95, §§ 50-52,
ECHR 2000-III; and Amuur,
loc.cit.).
- In
the present case, the Court notes that there is dispute between the
parties as to the exact meaning and correct interpretation of section
55(3) of the Asylum Act, which was the legal basis of the applicants’
continued detention, and reiterates that it is primarily for the
national authorities to interpret and apply national law.
- Should
the applicants’ interpretation of that provision be right, the
Court would observe that the applicants’ detention was in all
likelihood devoid of a legal basis and thus in breach of Article 5 §
1 of the Convention. However, even assuming that it is the
Government’s interpretation of that provision that is correct –
i.e. that there is no obligation on the refugee authority to initiate
the release of those asylum-seekers whose cases have reached the
in-merit phase – the Court considers that the applicants’
detention was not compatible with the requirement of “lawfulness”
inherent in Article 5 of the Convention.
- The
Court reiterates that the formal “lawfulness” of
detention under domestic law is the primary but not always the
decisive element in assessing the justification of deprivation of
liberty. It must in addition be satisfied that detention during the
period under consideration was compatible with the purpose of Article
5 § 1, which is – as mentioned before – to prevent
persons from being deprived of their liberty in an arbitrary fashion
(see Khudoyorov,
cited above,
§ 137).
- In
regard to the notion of arbitrariness in this field, the Court refers
to the principles enounced in its case-law (see in particular Saadi
v. the United Kingdom [GC], no.
13229/03, §§ 67 to 73, ECHR 2008 ...) and emphasises
that “to avoid being branded as
arbitrary, ... detention [under Article 5 § 1 (f)] must be
carried out in good faith; it must be closely connected to the
purpose of preventing unauthorised entry of the person to the
country; the place and conditions of detention should be appropriate,
bearing in mind that « the measure is applicable not to those
who have committed criminal offences but to aliens who, often fearing
for their lives, have fled from their own country » (see Amuur,
§ 43); and the length of the detention should not exceed that
reasonably required for the purpose pursued”. The Court would
indicate in this context that it is not persuaded that the
applicants’ detention – which lasted five months
purportedly with a view to their expulsion which never materialised –
was a measure proportionate to the aim pursued by the alien
administration policy.
- In
the present application the Court notes that the applicants’
detention was prolonged because the refugee authority had not
initiated their release. That authority’s non-action in this
respect was however not incarnated by a decision, accompanied by a
reasoning or susceptible to a remedy.
- The
reasons underlying the applicants’ detention may well be those
referred to by the Government, that is to comply with European Union
standards and at the same time to counter abuses of the asylum
procedure; however, for the Court the fact remains that the
applicants were deprived of their liberty by virtue of the mere
silence of an authority – a procedure which in the Court’s
view verges on arbitrariness. In this connection the Court would
reiterate that the absence of elaborate reasoning for an applicant’s
deprivation of liberty renders that measure incompatible with the
requirement of lawfulness inherent in Article 5 of the Convention
(see mutatis mutandis Darvas v. Hungary, no. 19547/07,
§ 28, 11 January 2011; and, in the context of Article 5 §
3, Mansur
v. Turkey, 8 June 1995, § 55,
Series A no. 319 B). It follows
that the applicants’ detention cannot be considered “lawful”
for the purposes of Article 5 § 1 (f) of the Convention.
- The
foregoing considerations enable the Court to find that there has been
a violation of Article 5 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
- Article 41 of the Convention
provides:
“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.”
A. Damage
- The
applicants
claimed 10,000 euros (EUR) each in respect of non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicants must have suffered some
non-pecuniary damage and awards them the full sum claimed.
B. Costs and expenses
- The
applicants
also claimed EUR 5,000 jointly for the costs and expenses incurred
before the Court. This sum corresponds to 41 hours of legal work,
charged at an hourly rate of EUR 120, billable by their lawyer as per
the time-sheet submitted, as well as clerical costs in the amount of
EUR 80.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard
being had to the documents in its possession and the
above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares
unanimously
the application
admissible;
- Holds,
by 5 votes to 2, that
there has been a violation of Article 5 § 1 of the Convention;
- Holds,
by 5 votes to 2,
(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;
- Dismisses
unanimously the
remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 20
September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
Stanley
Naismith Françoise
Tulkens
Registrar President
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.
F.T.
S.H.N.
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.
