Case of O.M. v. Hungary (Application numbers 9912/15)  ECHR (5 July 2016)
The European Court of Human Rights (ECHR) has held that immigration detention of an LGBTI Iranian person seeking asylum (the Applicant) in Hungary contravened article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). In particular, the Court found that detention was not justified under Article 5(1)(b) of the Convention, as it was not done to secure fulfilment of an obligation. It further found that the Hungarian authorities had failed to take into the individual circumstances of the person seeking asylum and his vulnerability in detention as a consequence of his sexual orientation. The ECHR emphasised the need for authorities to take particular care in detaining vulnerable individuals, including LGBTI people, to ensure their safety in custody.
The Applicant was a same sex attracted Iranian national who arrived in Hungary on 24 June 2014 with the assistance of a human trafficker and without documentary evidence of his identity. When apprehended by border guard patrol, the Applicant applied for recognition as a refugee on the basis that he had been persecuted in Iran due to his sexuality.
Under the Hungarian 'Act no. LXXX of 2007 on Asylum' (the Asylum Act), the Asylum Authority is authorised to detain people seeking asylum in certain circumstances, including, relevantly where the person seeking asylum's identity is not clear, where there are grounds for presuming that the person seeking asylum presents a risk of absconding, or where there a grounds for presuming that the person seeking asylum may delay or frustrate the asylum procedure (Section 31/A (1) (a)&(c)). Section 31/A(2) provides that such detention may only be ordered on the basis of individual deliberation, and only where the purpose of ordering detention cannot be achieved by other measures to secure availability of the person seeking asylum to authorities.
Furthermore, detention under the Asylum Act will only be lawful where it complies with International Law. Specifically, Article 5(1)(b) of the Convention provides that:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law
… (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law.
Exercising its powers under the Asylum Act, the Asylum Authority detained the Applicant for 72 hours, then applied to the Debrecen District Court for a 60 day extension of the asylum detention. The Court granted the Authority's application to detain the Applicant under the Asylum Act on the basis there was a risk the Applicant would abscond or frustrate proceedings because he had arrived in Hungary unlawfully and had no connections in the country or resources on which to subsist.
The decision to detain the Applicant was made without consideration of the Applicant's sexual orientation.
The Applicant was ultimately recognised as a refugee on 31 October 2014. He subsequently brought proceedings challenging the legality of his detention under Article 5 (1) of the Convention and sought non-pecuniary damages.
The Hungarian Government submitted that the Applicant's detention was justified under Article 5(1)(b), as it was done to secure fulfilment of an obligation, namely the Applicant's obligation in section 5(2) of the Asylum Act to collaborate with the Asylum Authority, to disclose the circumstances of his flight and to communicate personal information. It further submitted that the detention otherwise complied with the procedures contained in the Asylum Act, including the requirement in section 31/A(2) that "detention may only be ordered on the basis of individual deliberation."
The ECHR held that Article 5(1)(b) did not justify the Applicant's detention, as section 5(2) of the Asylum Act does not oblige a person seeking asylum to provide documentary evidence of identity and nationality. There is only an obligation to collaborate with the relevant Authority and other provisions of the Asylum Act even contemplated scenarios where the person seeking asylum did not possess official identity documents. Furthermore, the ECHR noted that the proceedings were not assessed in a sufficiently individualised manner, as was required by section 31/A(2) of the Asylum Act, and therefore, Article 5 of the Convention.
The ECHR considered that the requirement to assess a case in an individualised manner meant that authorities should take particular care in detaining vulnerable individuals, such as LGBTI people, to "avoid situations which may reproduce the plight that the forced [them] to flee in the first place"' and ensure their safety in custody. It held that the authorities failed to do this in the Applicant's case. They never considered whether the Applicant would be unsafe in custody with other detained persons, many of whom were from countries with "widespread cultural and religious prejudice against such persons." The ECHR held that this requirement existed, notwithstanding that the Applicant had reported no instances of abuse. Notably, though all parties presented arguments on the relevance of the Guidelines of the United National High Commissioner for Refugees (the Guidelines) which, in Guideline 9.7, provide specific directions regarding placement of LGBTI people seeking asylum, the ECHR did not expressly attribute this reasoning to the Guidelines. It made no comment as to the role of the Guidelines in regulating the Hungarian Government's conduct.
In light of these findings, the ECHR held the Applicant's detention was in breach of Article 5 of the Convention, and ordered the Hungarian Government to pay the Applicant €7,500 in damages and his legal costs of the proceedings.
The ECHR decided this case by applying well settled principles on Article 5 of the Convention. The ECHR attributed the authorities' obligation to exercise care towards LGBTI people seeking asylum to the broader obligation to consider the Applicant's individual circumstances. This obligation is contained in the domestic Asylum Act which, relevantly, is rooted in European Union legislation and thus will, to some degree, reflect other regimes in EU Member States. Consequently, it may be that other EU Member States will now be required to consider the safety of detaining LGBTI people seeking asylum when considering the means of securing their availability. This will be particularly important where other detained persons are from cultures that are prejudiced towards the LGBTI or other vulnerable groups. Furthermore, this case indicates that the authorities will need to consider this regardless of whether there is evidence of harassment towards the individual.
As the ECHR attributed the need to consider the safety of LGBTI people seeking asylum to domestic law requirements, the ECHR did not clarify the role of Guideline 9.7 of the Guidelines. Thus, the case does not seem to have great significance for non-EU States, such as Australia. Despite this, the decision is nonetheless a reminder to Australia that other countries with human rights protections are emphasising the need to protect LGBTI and other vulnerable groups of people seeking asylum in the refugee-determination process. This is particularly important where those people seeking asylum are likely to be detained with persons from cultures that are also prejudiced against them (as was the case in this decision), or resettled in countries where there are some grounds to indicate that they will encounter prejudice.
The full text of the decision can be found here.
Lisette Stevens is a Lawyer at Allens.