Communicated on 16 June 2015

SECOND SECTION

Application no. 9912/15 O.M. against Hungary lodged on 13 February 2015

STATEMENT OF FACTS

The applicant, Mr O.M. , is an Iranian national, who was born in 1982 and lives in Budapest . The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms B. Pohárnok , a lawyer practising in Budapest .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant arrived in Hungary illegally from Serbia on 24 June 2014. Since he was not able to prove with documents his identity or right to stay in the territory of the country, the applicant was arrested by the border control officers. The applicant requested to be recognised as refugee.

At the hearing held on 25 June 2014 by the Immigration Office, the applicant declared that he had fled from his country of origin, Iran, because of his homosexuality. He stated that he had been forced to leave Iran and with the help of a human trafficker he had entered the territory of Hungary without documents, because he had had no other possibility to do so. At the hearing, he again filed a request to be recognised as a refugee.

In view of his request, on 25 June 2014 the Csongrád County Police Department suspended the alien administration procedure . On the same day the Office of Immigration and Nationality commenced asylum proce e d ings and held a hearing. On this occasion, the applicant repeated that originally he had attempted to go to the United Kingdom, but since Hungary seem ed to be a safe country, he request ed asylum. He stated again that he had had to leave his country of origin because he wa s homosexual and criminal proce e d ings had been instituted against him for this reason. According to the applicant , the penalty for homosexuality in Iran is death.

After the hearing the asylum authority , a section of the Office of Immigration and Nationality , ordered the applicant ’ s asylum detention ( menekültügyi őrizet ) in Debrecen , relying on section 31/A (1) a) and c) of Act no. LXXX of 2007 on Asylum. 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 presuming that , if left at large, he would delay or frustrate the asylum proce e d ings and would present a risk of absconding , given that he had arrived unlawfully in Hungary and had no connections in Hungary or resources to maintain himself .

On 26 June 2014 the asylum authority requested the competent court to extend the asylum detention for a maximum of 60 days. The asylum authority pointed out in its request that the majority of Iranian asylum seekers tended to frustrate the procedure and leave for unknown places. To justify its motion , it referred to the fact that the applicant ’ s stay in the territory of Hungary was unlawful, he had no connection to the country and lack ed resources to maintain himself .

On 27 June 2014 the court appointed a legal representative for the applicant and held a hearing. In its ensuing decision the court extended the asylum detention by a maximum of 60 days. It noted that the applicant ’ s identity was unclear, that he had arrived in Hungary unlawfully, and that he had no connections in the country or any means to support himself. Without referring to other individual circumstances or the applicant ’ s sexual orientation, 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 a caution ( menekültügyi óvadék ) – were not suitable in the case to secure the applicant ’ s availability to the authorities.

On 8 and 11 July 2014 the applicant requested the asylum authority to release him from detention or transfer him to an open facility. In its reply, the asylum authority informed the applicant that an asylum hearing would be held in a few days at which he would have the possibility of proving his citizenship.

At the asylum hearing held on 18 July 2014 the applicant made the same statements as before. Referring again to his sexual orientation, he explained that it was difficult for him to bear the asylum detention, for fear of harassment. At the hearing the applicant provided the asylum authority with relevant and up-to-date information relating to his country of origin.

On 2 5 July 2014 the asylum authority stated that the applicant ’ s asylum request was neither inadmissible n or manifestly ill-founded and thus it ordered the in-merit examination of the case.

On 11 August 2014 the asylum authority again requested the extension of the asylum detention by another maximum of 60 days , relying on section 31/A (1) a) and c) of Act no. LXXX of 2007 on Asylum. In its request, the asylum authority did not give any detailed explanation as to why no other, less stringent measures could be applied in the case.

In her submission of 12 August 2014 to the asylum authority, the applicant ’ s legal-aid lawyer requested the termination of the asylum detention and the designation of a place of residence for the applicant with measures securing his availability during the proceedings.

In her submission of the same day to the Debrecen District Court , the lawyer requested the court to hear the applicant and not to ex tend the asylum detention.

On 13 August 2014 the court appointed another legal representative for the applicant. On 19 August 2014 the court heard the applicant and dismissed the request to extend the asylum detention further . Relying on section 31/A (1) a) of Act no. LXXX of 2007 on Asylum, the District Court stated that the delay caused by the acts of the authority for which the asylum seeker could not be held responsible sh ould not provide ground s for the extension of the detention. Referring to section 31/A (1) c), the court further stated that the asylum authority had not given any specific reasoning why it had been of the view that the applicant would have absconded and thus frustrated the asylum proceedings.

On 22 August 2014 the asylum authority terminated the asylum detention and ordered a designated place of residence for the applicant in Debrecen with measures securing his availability during the proceedings.

On 2 1 October 2014 the Office of Immigration and Nationality changed the designated place of residence for the applicant to Budapest.

On 31 October 2014 the applicant was recognised as refugee.

The asylum detention of the applicant lasted from 25 June 2014 to 22 August 2014.

B. Relevant domestic law

Act no. LXXX of 2007 on Asylum provides as follows:

Section 5

“ (2) A person seeking recognition shall be obliged to :

a) cooperate with the refugee authority, in particular to reveal the circumstances of his/her flight, to communicate his/her personal data and to facilitate the clarification of his/her identity, to hand over his/her documents;

b) issue a declaration with respect to his/her property and income;

c) stay as a habitual residence at the place of accommodation designated by the refugee authority for him/her according to the present Act and observe the rules of conduct governing residence at the designated place of accommodation;

d) subject him/herself to health tests, medical treatment prescribed as mandatory by law or required by the health authority and to subject him/herself to the replacement of any missing vaccinations prescribed as mandatory by law and/or required by the health authority in the case of the danger of disease. ”

Section 31/A

“ (1) In order to ensure compliance wi th the provisions set forth in s ections 33 and 49(5), and having re gard to the restrictions under s ection 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 hid den 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. ...”

Section 33

“ The asylum procedure is aimed a t determin ing whether, based on the present Act, the foreigner seeking recognition satisfies the criteria f o r recognition as refugee, beneficiary of subsidiary or temporary protection. ”

Section 41

“(1) To verify or substantiate , in the course of the asylum procedure , whether the criteria f o r recognition as a refugee ... are met in respect of the pers o n seeking recognition, the following means of providing evidence may be used in particular:

a) facts and circumstances giving rise to the act of fleeing disclosed by the person seeking recognition and the documents supporting the same;

b) travel document or any other document presented by the person seeking recognition, on the basis of which it is possible to infer his/her identity and/or nationality;

c) all relevant up-to-date information relating to the country of origin of the person seeking recognition ....”

Section 42

“ (1) No Hungarian authority or court may enter into contact with :

a) the country of origin of the person seeking recognition,

b) a country, in respect of which it may be presumed that it forwards information to the country of origin,

c) a person or organisation, in respect of whom or which it may be presumed that s/he or it persecuted or would persecute the person seeking recognition or would forward information to the persecutors of the person seeking recognition,

if, as a result of such entry into contact, the persecutors become aware of the fact that the person seeking recognition submitted an application for recognition or if, as a consequence of such entry into contact, the person seeking recognition or a member of his/her family are exposed to a physical threat or the liberty or security of the family members of the person seeking recognition living in his/her country of origin are exposed to a threat. ”

Section 49

“ (1) In the course of the preliminary assessment procedure, the asylum authority shall examine whether the criteria of the application of the Dublin procedure prevails.

(2) If the asylum authority establishes that the Dublin procedure is to be conducted, it shall suspend the preliminary assessment procedure until the conclusion of the Dublin procedure.

(3) No legal remedy shall lie against the resolution suspending the procedure under Subsection (2).

(4) If the Member State contacted in the course of the Dublin procedure is obliged to receive the applicant and to assess the application, the asylum authority shall adopt a resolution ( végzés ) with respect to the delivery of the applicant. After the communication of the resolution on the transfer, the application cannot be withdrawn.

(5) The asylum authority shall provide in the resolution on transfer that the foreigner may not leave the place of residence designated for him/her until the completion of transfer but for a maximum of 72 hours in the interest of securing the implementation of the transfer procedure.

(6) A resolution providing for transfer may be submitted to court review.

(7) The request for review shall be submitted to the asylum authority within three days of the communication of the resolution. The asylum authority shall forward the request for review, together with the documents of the case and its counter-application, to the court with no delay.

(8) The court shall decide on the request for review in a non-litigious procedure within eight days of receipt of the request for review on the basis of the available documents. There shall be no personal hearing in the procedure. No legal remedy shall lie against the decision of the court.

(9) In the course of the court review, an application for the suspension of the implementation of the resolution providing for transfer shall have no suspensive effect on the implementation of the resolution. ”

COMPLAINT

The applicant complains under Article 5 § 1 of the Convention that his asylum detention was not lawful or justified. He submits in particular that his asylum detention was arbitrary, because the court ordered it 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.

QUESTIONs TO THE PARTIES

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

2. In ordering the applicant ’ s detention, to what extent did the authorities take into account the fact that the applicant might have been exposed to abuse on account of his sexual orientation, as considered by UNHCR Guideline 9.7.?