Communicated on 28 August 2019

FOURTH SECTION

Application no. 21325/16 Dragon DSHIJRI against Hungary lodged on 11 April 2016

SUBJECT MATTER OF THE CASE

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.

QUESTION TO THE PARTIES

Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraphs (b) or (f) of this provision?