DISSENTING OPINION OF JUDGE S 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.