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

Judgment

FIFTH SECTION
CASE OF G.H. v. HUNGARY
(Application no. 75727/17)

JUDGMENT
STRASBOURG
14 November 2024

This judgment is final but it may be subject to editorial revision. In the case of G.H. v. Hungary,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President, Kateřina Šimáčková, Stéphane Pisani, judges,and Sophie Piquet, Acting Deputy Section Registrar,
Having regard to:
the application (no. 75727/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 October 2017 by an Iraqi national, Mr G.H. (“the applicant”), who was born in 1987, lives in Basra and was represented by Ms B. Pohárnok, a lawyer practising in Budapest;
the decision to give notice of the complaint concerning the applicant’s immigration detention under 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 inadmissible the remainder of the application;
the decision not to have the applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 17 October 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant, travelling from Iraq on the so-called “Western Balkan route”, arrived in Hungary on 10 September 2015. He was apprehended by the Hungarian police soon after he had crossed the border. He was detained for two days, during which time he submitted an asylum request. Following his release on 12 September 2015, he travelled to Budapest, then to Austria and finally to Germany. The applicant submitted that his journey, like that of many other refugees at the time, had been facilitated by the Hungarian and Austrian authorities in an attempt to deal with the unprecedented influx of migrants. He added that he had been following police instructions in boarding buses and trains during his journey. 2. As he had left the country, the asylum authority terminated the asylum procedure on 17 November 2015. 3. Previously, while in Budapest, the applicant met Ms R.I. who was helping asylum seekers at Keleti railway station. Following his departure, they remained in contact and on 1 January 2016 he came to Budapest to stay with her. 4. On his way back to Germany on 6 January 2016, the applicant was halted by Hungarian police officers. He was brought before the asylum and immigration authority, where he submitted a fresh asylum application. On the same day the asylum authority ordered him to stay in the Bicske open reception facility. Nevertheless, the authority allowed him to stay in the apartment of Ms R.I. between 8 and 21 January 2016. On the latter date the asylum authority designated Ms R.I.’s apartment as the applicant’s “place of stay” (kijelölt tartózkodási hely) during the asylum proceedings. 5. On 29 July 2016 the asylum authority rejected the applicant’s asylum request and ordered his removal to Iraq by way of official escort. On 2 December 2016 the Budapest Administrative and Labour Court upheld the decision. 6. On 3 January 2017 the applicant voluntarily appeared before the asylum authority in order to prolong the validity of his humanitarian residence permit, which he had received for the duration of the asylum procedure. However, the decision on his expulsion having become final, the immigration authority immediately initiated immigration proceedings. During the ensuing interview, he stated that he would be willing to leave Hungary voluntarily. At the same time, he submitted a statement by his partner, Ms. R.I., expressing her willingness to provide him with accommodation and financial support. As he had allegedly lost his passport, he also signed documents for requesting a new Iraqi passport. 7. Following the applicant’s interview, the authority ordered his detention based on section 54 (1) b) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (the “Immigration Act”). The authority argued that given his previous behaviour of leaving and returning to Hungary (see paragraphs 1, 3 and 4 above), he was unlikely to comply voluntarily with the removal order and represented a flight risk. It assumed that in case of applying any less coercive measure the applicant would not cooperate at the time of his removal. 8. On 4 January 2017 the immigration authority requested the Kiskunhalas District Court to prolong the applicant’s detention. Further to the justifications already relied on, it argued that the applicant’s intention to live with his partner in Hungary and the fact that, previously, he had contested the enforceability of the expulsion decision pointed to his unwillingness to cooperate in the enforcement of his removal. 9. On 5 January 2017 the District Court prolonged the applicant’s detention until 4 March 2017. From the excerpts of the decision submitted by the applicant and not supplemented by the Government, it appears that the court did not provide any particular justification for its decision and merely summarised the events connected to the applicant’s first and second asylum requests and referred to the provisions applicable to its procedure. 10. On 23 January the applicant’s place of detention was changed from the Kiskunhalas to the Győr detention facility. 11. On 2 February 2017 the applicant had an interview at the Embassy of the Republic of Iraq in Budapest. 12. On 27 February 2017 the immigration authority requested the Győr District Court to further prolong the applicant’s detention. It argued that the circumstances on the basis of which the applicant’s detention had been ordered had not changed and his passport had not yet been issued. 13. On 1 March 2017 the District Court heard the applicant and extended his detention until 3 May 2017. It endorsed the authority’s request, and noted that the applicant, leaving the country during the first asylum procedure, was likely to delay or prevent his deportation by absconding. It reiterated the authority’s conclusion that there had been no change in the circumstances necessitating his detention, and his removal was not possible in the absence of travel documents, therefore found the applicant’s continued detention to be justified. 14. On 18 April 2017 the immigration authority asked the deportation service about the status of the applicant’s travel documents. On 20 April 2017 the authority terminated the applicant’s detention as it had been informed by the deportation service the day before that the applicant’s removal could not take place soon, due to the Iraqi embassy’s failure to issue a passport. The applicant allegedly claimed he was not willing to return to his country of origin. 15. On the same day the immigration authority designated his partner’s apartment as the applicant’s compulsory place of stay (kötelező tartózkodási hely) following his release. He was not allowed to leave Budapest or Pest County without the authority’s prior approval and he was required to report to the authority every three weeks. 16. The applicant remained in Hungary until 19 August 2020, when he was returned to Iraq, having ultimately obtained a passport from the Iraqi embassy in Berlin. 17. The applicant complained under Article 5 § 1 of the Convention that his detention with a view to deportation had not been lawful. RELEVANT LEGAL FRAMEWORK AND PRACTICE
18. The relevant provisions of the Immigration Act have been summarised in Nabil and Others v. Hungary, no. 62116/12, 22 September 2015, § 15. 19. Besides these, section 126 (5a) of Government Decree no. 114/2007 (V. 24.) on the Implementation of the Immigration Act (the “Immigration Decree”) is also relevant to the present case. It specifies that a risk of absconding under section 54 (1) b) of the Immigration Act can be established if the person fails to cooperate with the authority during the immigration proceedings, based on which conduct it can be presumed that he or she frustrates the enforcement of the expulsion. Three particular examples of non-cooperation are mentioned: (i) the person refuses to make a statement or to sign records, (ii) the person provides false personal details, or (iii) his or her departure to an unknown destination is likely based on his or her statements. 20. As regards the practice of domestic courts, on 23 September 2013 the Administrative and Labour College of the Kúria approved the summary opinion of the Kúria’s Working Group analysing the jurisprudence of Hungarian courts in immigration cases (Kúria Idegenrendészeti joggyakorlat-elemző csoportja). The working group had analysed the courts’ practice in relation to, inter alia, prolonging immigration detention. 21. The working group emphasised that a court may consider lawful the immigration detention only if the immigration authority can clearly demonstrate the individual circumstances which make detention necessary and justify why other “sufficient but less coercive” measures (e.g. regular reporting obligation, seizure of travel documents, placement in community or private accommodation, voluntary departure) could not be applied. If the individual has a residence or has family links in Hungary or has lived in the country for many years, which makes absconding unlikely, there is no legal basis for detention. If the person had previously been ordered to stay at an open community centre or a private accommodation and did indeed stay at the designated place, the detention order is also unjustified. 22. Furthermore, in the working group’s opinion, Hungarian authorities and courts routinely ignored that the sole purpose and legal basis of immigration detention is to ensure the alien’s availability at the time of expulsion. The working group’s review of case files showed that domestic courts, when considering the need to prolong the detention of a foreign national, only examined whether there had been a change in the circumstances justifying the initial detention order. The working group suggested that courts should instead examine whether the immigration authority had taken all necessary measures to enforce the expulsion and whether there had been a realistic chance for a successful enforcement. In practice, this means that if no procedural step is taken within 30 days that would substantially advance the enforcement of the expulsion, the courts should conclude that enforcement is not possible. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
23. The Court notes that these complaints are 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. 24. The Government submitted that the immigration authority had lawfully placed the applicant in detention on the basis of 54 (1)(b) of the Immigration Act as he was likely to abscond. They referred to the facts relied on by the immigration authority substantiating the applicant’s detention (see paragraphs 7 and 8 above). The Government also found the applicant’s statements contradictory: while he had undertaken to return to Iraq in case his expulsion is enforced, he had also admitted wishing to stay with his Hungarian partner and to integrate into Hungarian society. They furthermore noted that the applicant prevented the enforcement of his expulsion by failing to cooperate with the diplomatic mission of his country of origin. 25. The applicant submitted that his detention had not been justified since the risk of his absconding had been unfounded, the immigration authority had acted in bad faith and no alternatives to his detention had been genuinely considered. He furthermore argued that in the period from 3 to 6 January 2017, in the absence of the decision rejecting his appeal being served on him, his detention had had no legal basis. 26. It is not in dispute that the applicant’s deprivation of liberty fell within the ambit of Article 5 § 1 (f), as he was detained for the purpose of being deported from Hungary. The general principles concerning such deprivation of liberty have been summarized in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 88-92, 15 December 2016) and Nabil and Others v. Hungary, cited above, §§ 26-35). The Court reiterates that deprivation of liberty must, regardless of which sub-paragraph of Article 5 § 1 is engaged, be in compliance with the substantive and procedural rules of national law and free from arbitrariness (see Mahamed Jama v. Malta, no. 10290/13, §§ 137-39, 26 November 2015, and Nabil and Others, cited above, § 38). 27. For the Court, the applicant’s detention from 3 January to 21 April 2017 raises concerns about its lawfulness in terms of compliance with the applicable domestic law. According to the combined reading of sections 54 (1) b), 54 (2) and 54 (6) b) of the Immigration Act, when ordering or prolonging immigration detention, domestic authorities are obliged to verify that the person is indeed a flight risk; that alternative, less stringent measures are not applicable, and whether the person’s removal can eventually be carried out (see Nabil and Others, cited above §§ 15 and 40). 28. The applicant’s initial detention was ordered by the immigration authority, on the basis that the applicant would not voluntarily leave the country and would be a flight risk, because he had left Hungary during his first asylum procedure. The authority was also of the opinion that a less severe coercive measure would not ensure his availability. The Court notes that the Government endorsed the authority’s decision and its reasoning (see paragraph 24 above). However, the Court observes that the authority’s justification of detention – that is to say, the applicant’s conduct during his first asylum proceedings – is at odds with the statutory definition of the risk of absconding under section 126 (5a) of the Immigration Decree, according to which such a risk can be established only if the person fails to cooperate during the immigration proceedings. 29. Even if the Court is ready to accept that the applicant’s departure in September 2015 was indicative of a risk of further absconding, it finds that the immigration authority, when considering this element, failed to take into account other relevant circumstances. First, the applicant’s departure from Hungary took place at a time in September 2015, when because of the emergency situation in Budapest and on the Hungarian border with Serbia, Austria and Germany exceptionally agreed to a continuation of the refugees’ journey into their territories. Second, with regard to the period after 6 January 2016, there is no indication that the applicant did not cooperate with the authorities. He never failed to appear before them, stayed at the designated place, signed documents when requested and repeatedly expressed his willingness to cooperate (see paragraph 6 above). In the Court’s opinion, the applicant’s stated intention to live with his partner in Hungary did not create a risk of absconding, but on the contrary, it militated against it. In this connection the Court refers to the opinion of the Kúria’s Working Group (see paragraph 21 above) which lends further support to such interpretation. 30. The Court takes note of the Government’s argument reproaching the applicant for not cooperating with the Iraqi Embassy to obtain a new passport (see paragraph 24 above). They did not submit any document substantiating this claim, i.e. any record of the applicant’s embassy interview or the embassy’s response to the deportation service’s request for information (see paragraph 14 above). Nevertheless, in its decision dated 20 April 2017 the immigration authority referred to the applicant’s unwillingness to return to Iraq as the reason for the embassy’s failure to issue a new travel document for him (see paragraph 14 above). In any case, it appears from the authority’s decision that this fact was only brought to its attention on 19 April 2017. Therefore, it could not be the basis for the detention decisions which all predate this date. 31. As to the consideration of less coercive measures, it should be observed that from 8 January 2016 to 3 January 2017 and after his release on 21 April 2017 the applicant was under an obligation to stay at his partner’s flat, not to leave Budapest without prior approval and to report to the authority at regular intervals (see paragraph 15 above). This indicates that the authorities had at their disposal measures other than the applicant’s detention to secure his availability with a view to enforce his removal (compare Raza v. Bulgaria, no. 31465/08, § 74, 11 February 2010). 32. As regards the court reviews of the lawfulness of the applicant’s detention, the Court notes that the courts’ examination was limited to the immigration authority’s submissions. They did not consider any arguments put forward by the applicant. Both courts were only concerned with the endorsement of the authority’s assertions regarding the alleged risk of absconding (compare Nabil and Others, cited above, §§ 39 and 41). Furthermore, the Győr District Court, which reviewed the necessity of the prolongation of the applicant’s detention more than two months after it had been ordered, failed to verify what actions had been taken by the immigration authority with a view to deportation and whether the applicant’s removal was a realistic prospect. This reflects the main concerns mentioned by the Kúria working group regarding the quality of judicial review in immigration detention cases (see paragraph 22 above). 33. In light of the foregoing, the fact that domestic authorities failed to properly substantiate the ground for the applicant’s detention, to duly consider alternatives to it and to verify if the applicant’s removal could eventually be carried out leads to the conclusion that his detention did not comply with national law (compare Nabil and Others, cited above, § 42). 34. The above considerations enable the Court to conclude that there has been a violation of Article 5 § 1 of the Convention. 35. In view of this finding, the Court does not find it necessary to examine the applicant’s remaining arguments. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. The applicant claimed 10,000 euros (EUR) in respect of non‐pecuniary damage and EUR 5,100 euros in respect of costs and expenses incurred before the Court. 37. The Government contested these claims. 38. The Court considers that, having regard to the circumstances of the case, its finding of a violation constitutes sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. It therefore makes no award under this head. 39. 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 were 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 EUR 500 for the legal costs of 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, EUR 500 (five hundred euros), plus any tax that may be chargeable to him, in respect of costs and expenses, to be converted into the currency of the respondent State at the date of settlement;
(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 14 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sophie Piquet Stéphanie Mourou-Vikström Acting Deputy Registrar President

FIFTH SECTION
CASE OF G.H. v. HUNGARY
(Application no. 75727/17)

JUDGMENT
STRASBOURG
14 November 2024

This judgment is final but it may be subject to editorial revision. In the case of G.H. v. Hungary,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Stéphanie Mourou-Vikström, President, Kateřina Šimáčková, Stéphane Pisani, judges,and Sophie Piquet, Acting Deputy Section Registrar,
Having regard to:
the application (no. 75727/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 October 2017 by an Iraqi national, Mr G.H. (“the applicant”), who was born in 1987, lives in Basra and was represented by Ms B. Pohárnok, a lawyer practising in Budapest;
the decision to give notice of the complaint concerning the applicant’s immigration detention under 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 inadmissible the remainder of the application;
the decision not to have the applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 17 October 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant, travelling from Iraq on the so-called “Western Balkan route”, arrived in Hungary on 10 September 2015. He was apprehended by the Hungarian police soon after he had crossed the border. He was detained for two days, during which time he submitted an asylum request. Following his release on 12 September 2015, he travelled to Budapest, then to Austria and finally to Germany. The applicant submitted that his journey, like that of many other refugees at the time, had been facilitated by the Hungarian and Austrian authorities in an attempt to deal with the unprecedented influx of migrants. He added that he had been following police instructions in boarding buses and trains during his journey. 2. As he had left the country, the asylum authority terminated the asylum procedure on 17 November 2015. 3. Previously, while in Budapest, the applicant met Ms R.I. who was helping asylum seekers at Keleti railway station. Following his departure, they remained in contact and on 1 January 2016 he came to Budapest to stay with her. 4. On his way back to Germany on 6 January 2016, the applicant was halted by Hungarian police officers. He was brought before the asylum and immigration authority, where he submitted a fresh asylum application. On the same day the asylum authority ordered him to stay in the Bicske open reception facility. Nevertheless, the authority allowed him to stay in the apartment of Ms R.I. between 8 and 21 January 2016. On the latter date the asylum authority designated Ms R.I.’s apartment as the applicant’s “place of stay” (kijelölt tartózkodási hely) during the asylum proceedings. 5. On 29 July 2016 the asylum authority rejected the applicant’s asylum request and ordered his removal to Iraq by way of official escort. On 2 December 2016 the Budapest Administrative and Labour Court upheld the decision. 6. On 3 January 2017 the applicant voluntarily appeared before the asylum authority in order to prolong the validity of his humanitarian residence permit, which he had received for the duration of the asylum procedure. However, the decision on his expulsion having become final, the immigration authority immediately initiated immigration proceedings. During the ensuing interview, he stated that he would be willing to leave Hungary voluntarily. At the same time, he submitted a statement by his partner, Ms. R.I., expressing her willingness to provide him with accommodation and financial support. As he had allegedly lost his passport, he also signed documents for requesting a new Iraqi passport. 7. Following the applicant’s interview, the authority ordered his detention based on section 54 (1) b) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (the “Immigration Act”). The authority argued that given his previous behaviour of leaving and returning to Hungary (see paragraphs 1, 3 and 4 above), he was unlikely to comply voluntarily with the removal order and represented a flight risk. It assumed that in case of applying any less coercive measure the applicant would not cooperate at the time of his removal. 8. On 4 January 2017 the immigration authority requested the Kiskunhalas District Court to prolong the applicant’s detention. Further to the justifications already relied on, it argued that the applicant’s intention to live with his partner in Hungary and the fact that, previously, he had contested the enforceability of the expulsion decision pointed to his unwillingness to cooperate in the enforcement of his removal. 9. On 5 January 2017 the District Court prolonged the applicant’s detention until 4 March 2017. From the excerpts of the decision submitted by the applicant and not supplemented by the Government, it appears that the court did not provide any particular justification for its decision and merely summarised the events connected to the applicant’s first and second asylum requests and referred to the provisions applicable to its procedure. 10. On 23 January the applicant’s place of detention was changed from the Kiskunhalas to the Győr detention facility. 11. On 2 February 2017 the applicant had an interview at the Embassy of the Republic of Iraq in Budapest. 12. On 27 February 2017 the immigration authority requested the Győr District Court to further prolong the applicant’s detention. It argued that the circumstances on the basis of which the applicant’s detention had been ordered had not changed and his passport had not yet been issued. 13. On 1 March 2017 the District Court heard the applicant and extended his detention until 3 May 2017. It endorsed the authority’s request, and noted that the applicant, leaving the country during the first asylum procedure, was likely to delay or prevent his deportation by absconding. It reiterated the authority’s conclusion that there had been no change in the circumstances necessitating his detention, and his removal was not possible in the absence of travel documents, therefore found the applicant’s continued detention to be justified. 14. On 18 April 2017 the immigration authority asked the deportation service about the status of the applicant’s travel documents. On 20 April 2017 the authority terminated the applicant’s detention as it had been informed by the deportation service the day before that the applicant’s removal could not take place soon, due to the Iraqi embassy’s failure to issue a passport. The applicant allegedly claimed he was not willing to return to his country of origin. 15. On the same day the immigration authority designated his partner’s apartment as the applicant’s compulsory place of stay (kötelező tartózkodási hely) following his release. He was not allowed to leave Budapest or Pest County without the authority’s prior approval and he was required to report to the authority every three weeks. 16. The applicant remained in Hungary until 19 August 2020, when he was returned to Iraq, having ultimately obtained a passport from the Iraqi embassy in Berlin. 17. The applicant complained under Article 5 § 1 of the Convention that his detention with a view to deportation had not been lawful. RELEVANT LEGAL FRAMEWORK AND PRACTICE
18. The relevant provisions of the Immigration Act have been summarised in Nabil and Others v. Hungary, no. 62116/12, 22 September 2015, § 15. 19. Besides these, section 126 (5a) of Government Decree no. 114/2007 (V. 24.) on the Implementation of the Immigration Act (the “Immigration Decree”) is also relevant to the present case. It specifies that a risk of absconding under section 54 (1) b) of the Immigration Act can be established if the person fails to cooperate with the authority during the immigration proceedings, based on which conduct it can be presumed that he or she frustrates the enforcement of the expulsion. Three particular examples of non-cooperation are mentioned: (i) the person refuses to make a statement or to sign records, (ii) the person provides false personal details, or (iii) his or her departure to an unknown destination is likely based on his or her statements. 20. As regards the practice of domestic courts, on 23 September 2013 the Administrative and Labour College of the Kúria approved the summary opinion of the Kúria’s Working Group analysing the jurisprudence of Hungarian courts in immigration cases (Kúria Idegenrendészeti joggyakorlat-elemző csoportja). The working group had analysed the courts’ practice in relation to, inter alia, prolonging immigration detention. 21. The working group emphasised that a court may consider lawful the immigration detention only if the immigration authority can clearly demonstrate the individual circumstances which make detention necessary and justify why other “sufficient but less coercive” measures (e.g. regular reporting obligation, seizure of travel documents, placement in community or private accommodation, voluntary departure) could not be applied. If the individual has a residence or has family links in Hungary or has lived in the country for many years, which makes absconding unlikely, there is no legal basis for detention. If the person had previously been ordered to stay at an open community centre or a private accommodation and did indeed stay at the designated place, the detention order is also unjustified. 22. Furthermore, in the working group’s opinion, Hungarian authorities and courts routinely ignored that the sole purpose and legal basis of immigration detention is to ensure the alien’s availability at the time of expulsion. The working group’s review of case files showed that domestic courts, when considering the need to prolong the detention of a foreign national, only examined whether there had been a change in the circumstances justifying the initial detention order. The working group suggested that courts should instead examine whether the immigration authority had taken all necessary measures to enforce the expulsion and whether there had been a realistic chance for a successful enforcement. In practice, this means that if no procedural step is taken within 30 days that would substantially advance the enforcement of the expulsion, the courts should conclude that enforcement is not possible. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
23. The Court notes that these complaints are 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. 24. The Government submitted that the immigration authority had lawfully placed the applicant in detention on the basis of 54 (1)(b) of the Immigration Act as he was likely to abscond. They referred to the facts relied on by the immigration authority substantiating the applicant’s detention (see paragraphs 7 and 8 above). The Government also found the applicant’s statements contradictory: while he had undertaken to return to Iraq in case his expulsion is enforced, he had also admitted wishing to stay with his Hungarian partner and to integrate into Hungarian society. They furthermore noted that the applicant prevented the enforcement of his expulsion by failing to cooperate with the diplomatic mission of his country of origin. 25. The applicant submitted that his detention had not been justified since the risk of his absconding had been unfounded, the immigration authority had acted in bad faith and no alternatives to his detention had been genuinely considered. He furthermore argued that in the period from 3 to 6 January 2017, in the absence of the decision rejecting his appeal being served on him, his detention had had no legal basis. 26. It is not in dispute that the applicant’s deprivation of liberty fell within the ambit of Article 5 § 1 (f), as he was detained for the purpose of being deported from Hungary. The general principles concerning such deprivation of liberty have been summarized in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 88-92, 15 December 2016) and Nabil and Others v. Hungary, cited above, §§ 26-35). The Court reiterates that deprivation of liberty must, regardless of which sub-paragraph of Article 5 § 1 is engaged, be in compliance with the substantive and procedural rules of national law and free from arbitrariness (see Mahamed Jama v. Malta, no. 10290/13, §§ 137-39, 26 November 2015, and Nabil and Others, cited above, § 38). 27. For the Court, the applicant’s detention from 3 January to 21 April 2017 raises concerns about its lawfulness in terms of compliance with the applicable domestic law. According to the combined reading of sections 54 (1) b), 54 (2) and 54 (6) b) of the Immigration Act, when ordering or prolonging immigration detention, domestic authorities are obliged to verify that the person is indeed a flight risk; that alternative, less stringent measures are not applicable, and whether the person’s removal can eventually be carried out (see Nabil and Others, cited above §§ 15 and 40). 28. The applicant’s initial detention was ordered by the immigration authority, on the basis that the applicant would not voluntarily leave the country and would be a flight risk, because he had left Hungary during his first asylum procedure. The authority was also of the opinion that a less severe coercive measure would not ensure his availability. The Court notes that the Government endorsed the authority’s decision and its reasoning (see paragraph 24 above). However, the Court observes that the authority’s justification of detention – that is to say, the applicant’s conduct during his first asylum proceedings – is at odds with the statutory definition of the risk of absconding under section 126 (5a) of the Immigration Decree, according to which such a risk can be established only if the person fails to cooperate during the immigration proceedings. 29. Even if the Court is ready to accept that the applicant’s departure in September 2015 was indicative of a risk of further absconding, it finds that the immigration authority, when considering this element, failed to take into account other relevant circumstances. First, the applicant’s departure from Hungary took place at a time in September 2015, when because of the emergency situation in Budapest and on the Hungarian border with Serbia, Austria and Germany exceptionally agreed to a continuation of the refugees’ journey into their territories. Second, with regard to the period after 6 January 2016, there is no indication that the applicant did not cooperate with the authorities. He never failed to appear before them, stayed at the designated place, signed documents when requested and repeatedly expressed his willingness to cooperate (see paragraph 6 above). In the Court’s opinion, the applicant’s stated intention to live with his partner in Hungary did not create a risk of absconding, but on the contrary, it militated against it. In this connection the Court refers to the opinion of the Kúria’s Working Group (see paragraph 21 above) which lends further support to such interpretation. 30. The Court takes note of the Government’s argument reproaching the applicant for not cooperating with the Iraqi Embassy to obtain a new passport (see paragraph 24 above). They did not submit any document substantiating this claim, i.e. any record of the applicant’s embassy interview or the embassy’s response to the deportation service’s request for information (see paragraph 14 above). Nevertheless, in its decision dated 20 April 2017 the immigration authority referred to the applicant’s unwillingness to return to Iraq as the reason for the embassy’s failure to issue a new travel document for him (see paragraph 14 above). In any case, it appears from the authority’s decision that this fact was only brought to its attention on 19 April 2017. Therefore, it could not be the basis for the detention decisions which all predate this date. 31. As to the consideration of less coercive measures, it should be observed that from 8 January 2016 to 3 January 2017 and after his release on 21 April 2017 the applicant was under an obligation to stay at his partner’s flat, not to leave Budapest without prior approval and to report to the authority at regular intervals (see paragraph 15 above). This indicates that the authorities had at their disposal measures other than the applicant’s detention to secure his availability with a view to enforce his removal (compare Raza v. Bulgaria, no. 31465/08, § 74, 11 February 2010). 32. As regards the court reviews of the lawfulness of the applicant’s detention, the Court notes that the courts’ examination was limited to the immigration authority’s submissions. They did not consider any arguments put forward by the applicant. Both courts were only concerned with the endorsement of the authority’s assertions regarding the alleged risk of absconding (compare Nabil and Others, cited above, §§ 39 and 41). Furthermore, the Győr District Court, which reviewed the necessity of the prolongation of the applicant’s detention more than two months after it had been ordered, failed to verify what actions had been taken by the immigration authority with a view to deportation and whether the applicant’s removal was a realistic prospect. This reflects the main concerns mentioned by the Kúria working group regarding the quality of judicial review in immigration detention cases (see paragraph 22 above). 33. In light of the foregoing, the fact that domestic authorities failed to properly substantiate the ground for the applicant’s detention, to duly consider alternatives to it and to verify if the applicant’s removal could eventually be carried out leads to the conclusion that his detention did not comply with national law (compare Nabil and Others, cited above, § 42). 34. The above considerations enable the Court to conclude that there has been a violation of Article 5 § 1 of the Convention. 35. In view of this finding, the Court does not find it necessary to examine the applicant’s remaining arguments. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. The applicant claimed 10,000 euros (EUR) in respect of non‐pecuniary damage and EUR 5,100 euros in respect of costs and expenses incurred before the Court. 37. The Government contested these claims. 38. The Court considers that, having regard to the circumstances of the case, its finding of a violation constitutes sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. It therefore makes no award under this head. 39. 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 were 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 EUR 500 for the legal costs of 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, EUR 500 (five hundred euros), plus any tax that may be chargeable to him, in respect of costs and expenses, to be converted into the currency of the respondent State at the date of settlement;
(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 14 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sophie Piquet Stéphanie Mourou-Vikström Acting Deputy Registrar President