EGMR

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Zitieren als:
EGMR, Urteil vom 02.10.2008 - 34082/02 - asyl.net: M15296
https://www.asyl.net/rsdb/M15296
Leitsatz:

Art. 5 Abs. 2 EMRK verlangt die Information einer inhaftierten Person über die Gründe der Inhaftierung unter Einschluss der konkreten Umstände des Falles iin einer Sprache, die die inhaftierte Person versteht; Art. 5 Abs. 1 EMRK verlangt die Prüfung der Erforderlichkeit einer Inhaftierung, wenn das nationale Recht diese Prüfung voraussetzt (hier abgelehnt im Fall der Durchreise).

 

Schlagwörter: Abschiebungshaft, Inhaftierung, EMRK, Information, Unverzüglichkeit, Formular, Verhältnismäßigkeit, freiwillige Ausreise
Normen: EMRK Art. 5 Abs. 1; EMRK Art. 5 Abs. 2
Auszüge:

Art. 5 Abs. 2 EMRK verlangt die Information einer inhaftierten Person über die Gründe der Inhaftierung unter Einschluss der konkreten Umstände des Falles iin einer Sprache, die die inhaftierte Person versteht; Art. 5 Abs. 1 EMRK verlangt die Prüfung der Erforderlichkeit einer Inhaftierung, wenn das nationale Recht diese Prüfung voraussetzt (hier abgelehnt im Fall der Durchreise).

(Leitsatz der Redaktion)

 

[...]

I. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION [...]

36. The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed "promptly" (in French: "dans le plus court délai"), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Čonka v. Belgium, no. 51564/99, § 50, ECHR 2002-I, with further references).

37. In the present case the applicant was arrested on 25 February 2002 at 10.30 a.m. On the same day the Neusiedl/See District Administrative Authority ordered her detention with a view to expulsion. This decision was issued in German and was handed to the applicant on 25 February 2002 at 6 p.m. together with two information sheets in Romanian.

38. Information sheet I stated that she had been arrested because she had entered Austria without reporting to the Border Control Office, but did not mention her specific situation, namely that she had tried to leave Austria and had been arrested after the Hungarian border police had returned her to the Austrian border police because she did not have a valid travel document.

39. Information sheet II stated that "... [the authorities have] ordered your detention pending deportation as being necessary to secure your expulsion or deportation to your country of nationality ...", without indicating any reasons why the applicant's detention was considered necessary in the specific circumstances of the case. Information sheet II mentioned again that she had been arrested because she had entered Austria without reporting to the Border Control Office, but did not give any details. In addition it informed the applicant that she could appeal to the Independent Administrative Panel if she considered her arrest or detention to be unlawful.

40. In sum, the Court notes that the information sheets did not contain any specific factual information concerning the applicant's arrest and detention. Moreover, it observes that the legal provisions mentioned in information sheets I and II were not the provisions of the Aliens Act 1997 on which her arrest and detention were based. In fact the information sheets still referred to the relevant provisions of the Aliens Act 1992 (see paragraph 28 above).

41. The Court reiterates that there is a close link between paragraphs 2 and 4 of Article 5. Anyone entitled to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he or she is promptly and adequately informed of the reasons relied on to deprive him of his liberty (see Van der Leer v. the Netherlands, judgment of 21 February 1990, Series A no. 170-A, p. 13, § 28, and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 413, ECHR 2005-III).

42. It follows from the above considerations that the information given to the applicant on the day of her arrest, that is, on 25 February 2002, was inexact as to the facts and incorrect as to the legal basis of her arrest and detention, and thus insufficient for the purpose of Article 5 § 2 of the Convention. At that time she was therefore not in a position to lodge a complaint before the Independent Administrative Panel.

43. It was only ten days later, on 7 March 2002, that the applicant was informed of the specific reasons and the correct legal grounds for her detention: on that date she was questioned in the presence of an interpreter for the purpose of issuing an expulsion order. According to the minutes, the interpreter translated into Romanian the decision of 25 February 2002 ordering the applicant’s detention. However, given the lapse of ten days, it cannot be said that the applicant was informed "promptly" as required by Article 5 § 2 of the Convention (see, for instance, Saadi v. the United Kingdom [GC], no. 13229/03, § 84, ECHR 2008-..., in which a delay of 76 hours was considered to be incompatible with the requirement that the reasons for detention should be given "promptly").

44. Returning to the question of exhaustion of domestic remedies, the Court considers that on 7 March 2002, when the applicant was finally correctly informed of the reasons for her arrest and detention, she could reasonably assume that her expulsion was already imminent. At that time the expulsion order was being prepared and the Romanian embassy had already promised a week earlier to issue her with a provisional travel document.

45. The Court reiterates that the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 69). In the specific circumstances of the present case, the Court finds that the applicant was absolved from making use of the available remedy, namely the complaint to the Independent Administrative Panel.

46. In conclusion, the Court dismisses the Government’s preliminary objection of non-exhaustion and finds that there has been a violation of Article 5 § 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION [...]

52. The applicant's detention falls to be considered under Article 5 § 1 (f) of the Convention. The Court reiterates that all that is required under this provision is that "action is being taken with a view to deportation". Article 5 § 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c) (see Čonka, cited above, § 38, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, pp. 1862-63, §§ 112-13).

53. The issue to be determined is whether the applicant’s detention was "lawful", including whether it complied with "a procedure prescribed by law". Here the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Saadi, cited above, § 67; Čonka, cited above, § 39; and Chahal, cited above, p. 1864, § 118).

54. It follows that while the necessity of detention with a view to expulsion is not required by the wording of Article 5 § 1 (f) of the Convention, it may be required under the domestic law to which that provision refers. This is the position under Austrian law. The Court notes that the District Administrative Authority based the decision ordering the applicant’s detention on section 61 (1) of the Aliens Act 1997. The said provision required the detention to be necessary for the issuing of an expulsion order or for carrying out the deportation of the person concerned.

55. Where the Convention refers directly back to domestic law, as in Article 5, compliance with such law is an integral part of the obligations of the Contracting States and the Court is accordingly competent to satisfy itself of such compliance where relevant (Article 19); the scope of its task in this connection, however, is subject to limits inherent in the logic of the European system of protection, since it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Lukanov v. Bulgaria, judgment of 20 March 1997, Reports 1997-II, p. 543, § 41, and Włoch v. Poland, no. 27785/95, § 110, ECHR 2000-XI). In essence the Court will limit its examination to whether the interpretation of the legal provisions relied on by the domestic authorities was arbitrary or unreasonable (ibid., § 116).

56. In the present case the District Administrative Authority, in its detention order of 25 February 2002, noted only that the applicant had entered Austria illegally as she had travelled without a valid passport and visa, and that she lacked the necessary means of subsistence for a stay in Austria. Referring to these facts the authority found that there were reasons to believe that the applicant would abscond and evade the proceedings if released.

57. The Court finds it striking that the authority did not pay any attention to the applicant's situation, which was fundamentally different from that of an illegal immigrant or refused asylum seeker. Admittedly, she had entered Austria without a valid travel document, as her passport had been stolen in France. However, she had tried to leave Austria on the same day. It was on that occasion, namely when she tried to cross the border with Hungary, that she was arrested. Hence, in her case, there was no indication that she had any intention of staying illegally in Austria. Nor was there any indication that she would not have cooperated in the proceedings for her expulsion.

58. In the circumstances of the case, the mere fact that the applicant entered Austria illegally does not provide a basis for the conclusion that she would try to evade the proceedings. Neither was the fact of her lack of subsistence a relevant consideration. The Court reiterates that detention of an individual is such a serious measure that – in a context in which the necessity of the detention to achieve the stated aim is required – it will be arbitrary unless it is justified as a last resort where other less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see, mutatis mutandis, Saadi, cited above, § 70, with further

references).

59. Having regard to the deficiencies in the District Administrative Authority's reasoning, the Court considers that the applicant's detention contained an element of arbitrariness. It is therefore unnecessary to examine separately whether the authorities acted with the required diligence.

60. In conclusion, the Court finds that there has been a violation of Article 5 § 1 (f) of the Convention. [...]