EGMR

[...]

26. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in subparagraph (f), permits the State to detain aliens “to prevent [their] effecting an unauthorised entry into the country” or “against whom action is being taken with a view to deportation”.

27. As regards the first limb of Article 5 § 1 (f), the Court has held in Saadi (cited above) as follows:

“65. [... U]ntil a State has “authorised” entry to the country, any entry is “unauthorised” and the detention of a person who wishes to effect entry and who needs but does not yet have authorisation to do so can be, without any distortion of language, to “prevent his effecting an unauthorised entry”. It does not accept that as soon as an asylum-seeker has surrendered himself to the immigration authorities, he is seeking to effect an “authorised” entry, with the result that detention cannot be justified under the first limb of Article 5 § 1 (f). To interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who is shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion no. 44 of the Executive Committee of the United Nations High Commissioner for Refugees’ Programme, the UNHCR’s Guidelines and the Committee of Ministers’ Recommendation (see paragraphs 34-35 and 37 above), all of which envisage the detention of asylum-seekers in certain circumstances, for example while identity checks are taking place or when elements on which the asylum claim is based have to be determined.

66. While holding, however, that the first limb of Article 5 § 1 (f) permits the detention of an asylumseeker or other immigrant prior to the State’s grant of authorisation to enter, the Court emphasises that such detention must be compatible with the overall purpose of Article 5, which is to safeguard the right to liberty and ensure that no one should be dispossessed of his or her liberty in an arbitrary fashion.”

28. As to the second limb of Article 5 § 1 (f), the Convention does not require 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 ?onka v. Belgium, no. 51564/99, § 38, 5 February 2002). Once the action is being taken with a view to deportation, it is immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996-V).

29. Nevertheless, any deprivation of liberty will be justified only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal, cited above, § 113; Auad v. Bulgaria, no. 46390/10, § 128, 11 October 2011).

30. Moreover, where the “lawfulness” of detention is at issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers first to national law and lays down the obligation to conform to the substantive and procedural rules of national law. A detention is lawful if it was ordered in compliance with the substantive and procedural rules of national law and it is not arbitrary (see Suso Musa v. Malta, no. 42337/12, § 92, 23 July 2013).

31. 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. The Court is accordingly competent to satisfy itself of such compliance in cases where this analysis is relevant. The scope of its task in this connection, however, is subject to limits inherent in the logic of the European system of protection. Here, the Court reiterates that although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see W?och v. Poland, no. 27785/95, § 110, ECHR 2000-XI; Galliani v. Romania, no. 69273/01, § 45, 10 June 2008; Eminbeyli v. Russia, no. 42443/02, § 44, 26 February 2009; and Longa Yonkeu v. Latvia, no. 57229/09, § 121, 15 November 2011). In essence, the Court will limit its examination to whether the interpretation of the legal provisions relied on by the domestic authorities was not arbitrary or unreasonable (see W?och, cited above, § 116; Rusu v. Austria, no. 34082/02, § 55, 2 October 2008).

32. Compliance with national law is not, however, sufficient: Article 5 § 1 additionally requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. No detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in that context extends beyond lack of conformity with national law: a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67).

33. While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis (see Saadi, cited above, §§ 67-68; Mooren v. Germany [GC], no. 11364/03, § § 77, 9 July 2009).

34. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate, bearing in mind that “the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above § 74; A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009; and Louled Massoud v. Malta, no. 24340/08, § 62, 27 July 2010).

35. Lastly, the Court recalls that it has found violations of Article 5 § 1 (f) under its second limb on the basis that the applicants’ detention pending asylum proceedings could not have been undertaken for the purposes of deportation, given that national law did not allow for deportation pending a decision on asylum (see R.U. v. Greece, no. 2237/08, §§ 88-96, 7 June 2011; Ahmade v. Greece, no. 50520/09, §§ 142-144, 25 September 2012).

(b) Application of those principles to the present case

36. The Court observes that the applicants’ expulsion was ordered on 6 November 2011. Simultaneously, the execution of this measure was suspended, and the applicants’ detention was ordered with a view to their eventual deportation, that is, the execution of the expulsion order.

37. Regarding the first three days of the applicants’ detention (that is, up until 8 November 2011), the Court is satisfied that the measure served the purpose of detaining a person “against whom action is being taken with a view to deportation”, within the meaning of the second limb of Article 5 § 1 (f) (cf. the order of 6 November 2011 (see paragraph 7 above), making reference to section 54(1)(b) of the Immigration Act, quoted in paragraph 15 above). Indeed, at that point in time the applicants had not yet requested asylum and were no more than illegal border-crossers without identity documents. For the Court, this phase of the applicants’ detention discloses no appearance of any arbitrariness (see Saadi, cited above, §§ 65-66).

38. As regards the applicants’ further detention, the Court emphasises that detention “with a view to deportation” can only be justified as long as the deportation is in progress and there is a true prospect of executing it (see paragraph 29 above). It notes that the applicants applied for asylum on 9 November 2011, formal asylum proceedings started on 10 November 2011, and the case was admitted to the “in-merit” phase on 12 December 2011. For the Court, the pending asylum case does not as such imply that the detention was no longer “with a view to deportation” – since an eventual dismissal of the asylum applications could have opened the way to the execution of the deportation orders. The detention nevertheless had to be in compliance with the national law and free of arbitrariness.

39. As regards compliance with the domestic law, the Court notes that on 8 November, 29 November and 30 December 2011, 1 February and 3 March 2012 the Kiskunhalas and the Nyírbátor District Courts reviewed the lawfulness of the applicants’ deprivation of liberty. However, all the decisions up to, and including, the one of 1 February 2012 were only concerned with the endorsement of the Csongrád County Police department’s original decision of 6 November 2011. According to this latter, the applicants were to be detained because they had entered the country illegally and without documents, and were deemed to be potentially frustrating their expulsion. Moreover, the decisions of 29 November and 30 December 2011 did not mention the on-going asylum case at all, and the one of 1 February 2012 only made a factual reference to it.

40. For the Court, the period until the prolongation of 3 March 2012 raises a serious question of lawfulness in terms of compliance with the relevant rules of the domestic law. Under sections 54(1)(b), 54(2) and 54(6)(b) of the Immigration Act (see paragraph 15 above) – read in conjunction and in the light of the circumstances of the case – to validly prolong the applicants’ detention, the domestic authorities had to verify that they were indeed frustrating the enforcement of the expulsion; that alternative, less stringent measures were not applicable, and whether or not the expulsion could eventually be enforced.

41. Instead of these criteria having been addressed, the applicants’ continuing detention was in essence based on the reasons contained in the first detention order by the Csongrád County Police Department, that is, the risk that they might frustrate their expulsion. However, very little reasons, if any, were adduced to show that the applicants were actually a flight risk. Moreover, none of these decisions dealt with the possibility of alternative measures or the impact of the on-going asylum procedure. The extension decision of 1 February 2012 was indeed the first one to state that the expulsion had been suspended due to the asylum application, but the court drew no inference from this fact as to the chances to enforce, at one point in time, the expulsion.

42. For the Court, it does not transpire from the reasoning of the decisions given between 8 November 2011 and 1 February 2012 that the domestic courts duly assessed whether the conditions under the national law for the prolongation of the applicants’ detention were met, with regard to the specific circumstances of the case and the applicants’ situation.

43. Since the requisite scrutiny as prescribed by the law was not carried out on these occasions of prolonging the applicants’ detention, the Court considers that it is not warranted to examine the applicants’ other arguments or whether the detention could otherwise be characterised as arbitrary, for example, because the actual progress of the expulsion process was not demonstrated.

44. The above considerations enable the Court to conclude that there has been a violation of Article 5 § 1 of the Convention in the period between 8 November 2011 and 3 March 2012. [...]