I correctly predicted that there was a violation of human rights in DSHIJRI v. HUNGARY.

Information

  • Judgment date: 2023-02-23
  • Communication date: 2019-08-28
  • Application number(s): 21325/16
  • Country:   HUN
  • Relevant ECHR article(s): 5, 5-1, 5-1-f
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.591438
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Dragon Dshijri, is an Iraqi national, who was born in 1992.
He is represented before the Court by Ms T. Kovács, a lawyer practising in Szeged.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant crossed the Hungarian border from Ukraine clandestinely on 25 September 2015.
Apprehended by a border guard patrol, he was taken into custody, since he was unable to show documentary evidence of his identity or right to stay in the country.
His custody lasted from 08:45 a.m. until 20:45 p.m.
He was questioned twice by the Immigration Office and he declared that he had fled from his country of origin because of the war and he applied for international protection.
In view of his request, on 26 September 2015 the Szabolcs-Szatmár-Bereg County Police Department suspended the alien administration procedure.
On the same day the Office of Immigration and Nationality commenced asylum proceedings.
After the hearing, the asylum authority, a department of the Office of Immigration and Nationality, ordered that the applicant be detained (menekültügyi őrizet), with effect from 26 September 2015, in Debrecen, relying on section 31/A (1) a) and c) of Act no.
LXXX of 2007 on Asylum (the “Asylum Act”).
In its decision the asylum authority observed that the applicant’s identity and nationality had not been clarified.
It held that there were grounds for the presumption that if left at large, he would delay or frustrate the asylum proceedings and would present a risk of absconding.
Given that he had no connections in the country or resources to subsist on, the authority found that no less restrictive measure could be applied.
According to section 31/A (6) of the Asylum Act, the maximum length of asylum detention when ordered by the asylum authority is 72 hours.
On the basis of section 31/C (3) of the Asylum Act and section 36/C (1) of the relevant Government Decree the applicant could have submitted an objection to the ordering of his asylum detention.
On 29 September 2015 the asylum authority applied to the Debrecen District Court for an extension of the asylum detention for a maximum of sixty days.
The asylum authority pointed out in its application that Afghan [sic] asylum seekers tended to frustrate the procedure and leave for unknown places.
To justify its application, it referred to the fact that the applicant’s stay in Hungary was unlawful, that he had no connection to the country, and that he lacked any resources to subsist on and therefore no less restrictive measure could be applied to his case.
On 29 September 2015 the Debrecen District Court held a hearing.
In its ensuing decision the court dismissed the applicant’s application to be released and extended the asylum detention by a maximum of sixty days, but until no later than 8 November 2015.
It noted that the applicant’s identity was unclear since he did not have any valid document to prove his identity, that he had arrived in Hungary unlawfully, and that he had no connections in the country or any means to subsist on.
The court held that less stringent measures – such as an obligation to check in regularly with the authorities, to stay at a designated place of residence, or to pay asylum bail (menekültügyi óvadék) – were not suitable in the case to secure the applicant’s availability to the authorities.
At the asylum hearing held on 17 November 2015 the applicant made further statements about his identity and the reasons for fleeing his country of origin.
On 17 November 2015 the asylum authority again sought extension of the asylum detention by another maximum of sixty days but until not later than 27 January 2016, relying on section 31/A (1) a) and c) of the Asylum Act and giving the same reasons as in its previous application.
In her submission of 20 November 2015 to the asylum authority, the applicant’s lawyer requested the termination of the asylum detention and the application of less stringent measures to secure the applicant’s availability during the proceedings.
On 24 November 2015 the Debrecen District Court extended the applicant’s asylum detention until 27 December 2015, stating that the delay caused by the acts of the asylum authority did not provide grounds for the extension of the applicant’s detention until 27 January 2016.
The court relied on the fact that the applicant had no connection to Hungary, lacked any resources to subsist on and his identity needed to be clarified.
On 26 November 2015 the asylum authority decided to transfer the applicant to Kiskunhalas.
On 23 December 2015 the Office of Immigration and Nationality dismissed the applicant’s request for asylum, but granted him subsidiary protection (oltalmazott).
On the same day the applicant’s asylum detention was terminated.
The applicant’s asylum detention lasted from 26 September 2015 to 23 December 2015.
Act no.
LXXX of 2007 on Asylum, as in force at the material time, provided as follows: Section 31/A “(1) In order to ensure compliance with the provisions set forth in sections 33 and 49(5), and having regard to the restrictions under section 31/B, the asylum authority may take into asylum detention a person seeking recognition whose right of residence is only based on the submission of an application for recognition if: a) the identity or nationality of the person seeking recognition is not clarified, in order to establish it; b) the person seeking recognition has hidden from the authority or has obstructed the course of the asylum procedure in another manner; c) there are grounds for presuming that the person seeking recognition is delaying or frustrating the asylum procedure or presents a risk of absconding, in order to establish the data required for conducting the asylum procedure; d) the detention of the person seeking recognition is necessary in order to protect national security, public safety or – in the event of serious or repeated violations of the rules of the compulsory designated place of stay – public order; e) the application has been submitted in an airport procedure; or f) the person seeking recognition has not fulfilled his/her obligation to appear on summons, and is thereby obstructing the Dublin procedure.
(2) Asylum detention may only be ordered on the basis of individual deliberation and only if its purpose cannot be achieved through measures securing availability.
(3) Before ordering asylum detention, the refugee authority shall consider whether the purpose determined in Subsection (1) can be achieved through measures securing availability.
...” COMPLAINT The applicant complains under Article 5 § 1 of the Convention that his asylum detention was not lawful.
He submits in particular that his asylum detention with the view of conducting the asylum proceedings could not be justified under Article 5 § 1 of the Convention.
Moreover, his detention was arbitrary, because the court ordered it giving stereotypical reasoning and without properly analysing the legal grounds, his personal circumstances or the applicability of less stringent measures, considerations prescribed both by the national law and the Convention.

Judgment

FIRST SECTION
CASE OF DSHIJRI v. HUNGARY
(Application no.
21325/16)

JUDGMENT
STRASBOURG
23 February 2023

This judgment is final but it may be subject to editorial revision.
In the case of Dshijri v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Gilberto Felici, President, Péter Paczolay, Raffaele Sabato, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no.
21325/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 April 2016 by an Iraqi national, Mr Dragon Dshijri (“the applicant”), who was born in 1992 and lives in Kiel, Germany, and who was represented by Ms T. Kovács, a lawyer practising in Szeged;
the decision to give notice of the complaint concerning Article 5 § 1 of the Convention to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 31 January 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1.
The case concerns the detention of the applicant pending his asylum proceedings. 2. The applicant crossed the Hungarian border from Ukraine clandestinely on 25 September 2015. In view of his request for international protection, on 26 September 2015 the Szabolcs-Szatmár-Bereg County Police Department suspended the alien administration procedure. On the same day the Office of Immigration and Nationality (hereinafter “the asylum authority”) commenced asylum proceedings. It would appear that the applicant was granted a residence permit on humanitarian grounds for the duration of the asylum proceedings. The asylum authority ordered that the applicant be detained, with effect from 26 September 2015. It relied 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), and noted that the applicant’s identity and nationality had not been clarified and that if left at large he could delay or frustrate the asylum proceedings and would present a risk of absconding. Given that he had no connections in the country or resources to subsist on, the asylum authority found that no less restrictive measure could be applied. 3. After holding a hearing, the Debrecen District Court, on 29 September 2015, at the request of the asylum authority, decided to extend the applicant’s asylum detention until 29 November 2015. It noted that the applicant’s identity was unclear since he did not have any valid document to prove it, that he had arrived in Hungary unlawfully, and that he had no connections in the country or any means of subsistence. The court held that less stringent measures – such as an obligation to check in regularly with the authorities, to stay at a designated place of residence, or to pay asylum bail – were not appropriate to ensure the applicant’s availability to the authorities. In its reasoning it referred to Article 5 § 1 (f) of the Convention. 4. At the asylum hearing held on 17 November 2015 the applicant made further statements about his identity and the reasons for fleeing his country of origin. 5. On 17 November 2015 the asylum authority again sought an extension of the asylum detention. In her submission of 20 November 2015 to the asylum authority, the applicant’s lawyer requested the termination of the asylum detention and the application of less stringent measures to ensure the applicant’s availability during the proceedings. 6. On 24 November 2015 the Debrecen District Court extended the applicant’s asylum detention until 27 December 2015. The court relied on the facts that the applicant had no connection to Hungary and lacked any resources to subsist on and that his identity needed to be clarified. 7. On 23 December 2015 the asylum authority dismissed the applicant’s request for asylum but granted him subsidiary protection. At the same time, it withdrew the residence permit that had been issued to him on humanitarian grounds. On the same day his asylum detention was terminated. 8. The applicant’s asylum detention therefore lasted from 26 September to 23 December 2015. 9. The applicant complained under Article 5 § 1 of the Convention that his asylum detention had not been lawful. THE COURT’S ASSESSMENT
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 since his release from detention and that his representative had failed to demonstrate that she maintained contact with him. The Court notes that the applicant’s representative submitted an authority form signed by him and that on 2 August 2021, further to the Court’s request, she confirmed the applicant’s address. On that day she also submitted a note signed by the applicant confirming that he maintained contact with the representative and wished to pursue the proceedings before the Court. 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. They argued that the domestic law had been intended merely to prevent asylum seekers from being expelled pending their asylum proceedings and had not provided them with an authorisation to enter. In their view, such authorisation would have been unacceptable from the standpoint of Hungary’s international obligations related to the protection of the Schengen area. 12. 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 (see also paragraph 7 above, and 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 a 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 also O.M. v. Hungary, cited above, § 47, and contrast Suso Musa, cited above, §§ 97-99). 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 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). The Government’s reference to the fact that the applicant left Hungary following his release and the granting of subsidiary protection cannot have any bearing on this conclusion. 15. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention regarding the applicant’s detention from 26 September to 23 December 2015. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16.
The applicant claimed 6,500 euros (EUR) in respect of non-pecuniary damage and EUR 3,300 in respect of the costs and expenses incurred before the Court. 17. The Government argued that the claims were excessive. 18. Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 6,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 19. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 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,
(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 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one 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;
Done in English, and notified in writing on 23 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Gilberto Felici Deputy Registrar President

FIRST SECTION
CASE OF DSHIJRI v. HUNGARY
(Application no.
21325/16)

JUDGMENT
STRASBOURG
23 February 2023

This judgment is final but it may be subject to editorial revision.
In the case of Dshijri v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Gilberto Felici, President, Péter Paczolay, Raffaele Sabato, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no.
21325/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 April 2016 by an Iraqi national, Mr Dragon Dshijri (“the applicant”), who was born in 1992 and lives in Kiel, Germany, and who was represented by Ms T. Kovács, a lawyer practising in Szeged;
the decision to give notice of the complaint concerning Article 5 § 1 of the Convention to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 31 January 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1.
The case concerns the detention of the applicant pending his asylum proceedings. 2. The applicant crossed the Hungarian border from Ukraine clandestinely on 25 September 2015. In view of his request for international protection, on 26 September 2015 the Szabolcs-Szatmár-Bereg County Police Department suspended the alien administration procedure. On the same day the Office of Immigration and Nationality (hereinafter “the asylum authority”) commenced asylum proceedings. It would appear that the applicant was granted a residence permit on humanitarian grounds for the duration of the asylum proceedings. The asylum authority ordered that the applicant be detained, with effect from 26 September 2015. It relied 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), and noted that the applicant’s identity and nationality had not been clarified and that if left at large he could delay or frustrate the asylum proceedings and would present a risk of absconding. Given that he had no connections in the country or resources to subsist on, the asylum authority found that no less restrictive measure could be applied. 3. After holding a hearing, the Debrecen District Court, on 29 September 2015, at the request of the asylum authority, decided to extend the applicant’s asylum detention until 29 November 2015. It noted that the applicant’s identity was unclear since he did not have any valid document to prove it, that he had arrived in Hungary unlawfully, and that he had no connections in the country or any means of subsistence. The court held that less stringent measures – such as an obligation to check in regularly with the authorities, to stay at a designated place of residence, or to pay asylum bail – were not appropriate to ensure the applicant’s availability to the authorities. In its reasoning it referred to Article 5 § 1 (f) of the Convention. 4. At the asylum hearing held on 17 November 2015 the applicant made further statements about his identity and the reasons for fleeing his country of origin. 5. On 17 November 2015 the asylum authority again sought an extension of the asylum detention. In her submission of 20 November 2015 to the asylum authority, the applicant’s lawyer requested the termination of the asylum detention and the application of less stringent measures to ensure the applicant’s availability during the proceedings. 6. On 24 November 2015 the Debrecen District Court extended the applicant’s asylum detention until 27 December 2015. The court relied on the facts that the applicant had no connection to Hungary and lacked any resources to subsist on and that his identity needed to be clarified. 7. On 23 December 2015 the asylum authority dismissed the applicant’s request for asylum but granted him subsidiary protection. At the same time, it withdrew the residence permit that had been issued to him on humanitarian grounds. On the same day his asylum detention was terminated. 8. The applicant’s asylum detention therefore lasted from 26 September to 23 December 2015. 9. The applicant complained under Article 5 § 1 of the Convention that his asylum detention had not been lawful. THE COURT’S ASSESSMENT
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 since his release from detention and that his representative had failed to demonstrate that she maintained contact with him. The Court notes that the applicant’s representative submitted an authority form signed by him and that on 2 August 2021, further to the Court’s request, she confirmed the applicant’s address. On that day she also submitted a note signed by the applicant confirming that he maintained contact with the representative and wished to pursue the proceedings before the Court. 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. They argued that the domestic law had been intended merely to prevent asylum seekers from being expelled pending their asylum proceedings and had not provided them with an authorisation to enter. In their view, such authorisation would have been unacceptable from the standpoint of Hungary’s international obligations related to the protection of the Schengen area. 12. 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 (see also paragraph 7 above, and 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 a 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 also O.M. v. Hungary, cited above, § 47, and contrast Suso Musa, cited above, §§ 97-99). 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 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). The Government’s reference to the fact that the applicant left Hungary following his release and the granting of subsidiary protection cannot have any bearing on this conclusion. 15. The Court therefore concludes that there has been a violation of Article 5 § 1 of the Convention regarding the applicant’s detention from 26 September to 23 December 2015. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16.
The applicant claimed 6,500 euros (EUR) in respect of non-pecuniary damage and EUR 3,300 in respect of the costs and expenses incurred before the Court. 17. The Government argued that the claims were excessive. 18. Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 6,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. 19. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 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,
(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 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one 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;
Done in English, and notified in writing on 23 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Gilberto Felici Deputy Registrar President