Kashim Sabri Ali AL-Jazaeery v. Hungary

The European Court of Human Rights (Second Section) sitting on 4 May 1999 as a Chamber composed of

Mr M. Fischbach, President,

Mr B. Conforti,

Mr G. Bonello,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr A.B. Baka,

Mr E. Levits, Judges,

With Mr E. Fribergh, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 January 1999 by Kashim SABRI ALI AL-JAZAEERY  against Hungary and registered on 4 January 1999 under file no. 45163/99;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 15 February and 19 April 1999 and the observations in reply submitted by the applicant on 1 and 23 April 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1968, is an Iraqi national. When introducing his application, he was held at the Communal Accommodation of the Budapest Border Guards Directorate, located on the premises of the Budapest Ferihegy Airport. Before the Court he is represented by Mr. J. Somogyi, a lawyer practising in Budapest and acting on behalf the Hungarian Helsinki Committee, and by Mr. F. Kőszeg, the executive director of the Helsinki Committee.

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

A.      Particular circumstances of the case

On 14 December 1998 the applicant arrived at the Budapest Ferihegy II Airport from Cairo. His Iraqi passport contained a transit visa for Hungary issued by the Hungarian Embassy in Amman, Jordan. He possessed an Amman-Cairo-Budapest return flight ticket. At the immigration control a border guard expert found that it was likely that the applicant's passport had been falsified. The applicant's entry was therefore denied and his return to Egypt was ordered. Subsequently he lodged a request for recognition as a refugee.

On 15 December 1998 the applicant, who had meanwhile been committed to the Communal Accommodation of the Budapest Border Guards Directorate, was heard by an officer of the Border Guards Directorate in the presence of an interpreter.

On 16 December 1998 the applicant was heard by the Office for Refugees and Migration Affairs ("the Office"). In these proceedings the applicant, assisted by an interpreter, stated that in 1991 his late father, once belonging to the opposition in Iraq, had been arrested and executed in July 1992. Following the arrest of their father, the applicant's two brothers had fled from Iraq. In connection with his father's political activity, the applicant had been arrested in March 1991 and had been detained until late 1992, during which period he had regularly been subjected to interrogation by means of electric shocks. Following his release he had been under surveillance by the Iraqi security service. In 1995 he had obtained a passport with an exit visa and left Iraq for Jordan where he had spent one month being under constant surveillance by Iraqi agents. On his return to Iraq he had been detained again for about a month and interrogated by the Iraqi security service concerning his contacts with his late father's political allies in Jordan.

On 22 December 1998 the Office dismissed the applicant's request for recognition as a refugee as unsubstantiated. The decision specified that a subsequent action to challenge the lawfulness of the administrative proceedings before the civil courts would be of no suspensive effect concerning the applicant's return to Egypt as ordered. On the same day, the Communal Accommodation was designated as the applicant's compulsory place of residence.

On 30 December 1998 the applicant brought an action before the Budapest Regional Court to challenge the decision of 22 December 1998 concerning the dismissal of his request for asylum. These proceedings are still pending.

Meanwhile, apparently during the night 31 December 1998 to 1 January 1999 the Hungarian authorities attempted to return the applicant to Amman via Cairo. Having been denied entry to Egypt, he was, however, returned to Hungary on 2 January 1999. On the same day a meeting between the applicant and the Iraqi consul in Budapest took place on the premises of the Border Guards Directorate.

On 18 January 1999 the Border Guards Directorate requested the Office to form an opinion as to any reasons excluding the applicant's deportation.

On 25 January 1999 the Office informed the Border Guards Directorate that it held that, in pursuance of S. 32 § 1 of the 1993 Aliens Act, the applicant could not be deported to Iraq or Egypt.

B.      Relevant domestic law

1.       The 1993 Aliens Act (Act no. 86 of 1993)

Section 4 § 1 provides that foreigners may cross the Hungarian state frontier and stay on the territory of the Republic of Hungary only in possession of valid passports verifying their citizenship and particulars of identification, and with valid visas issued by the Hungarian authorities. Section 5 § 1 provides that, at the request of the Hungarian authorities, foreigners shall certify - unless international agreements provide otherwise - that the financial means necessary for entry to, stay in and exit from Hungary, as well as the visas necessary for further travel or return, are at their disposal.

According to S. 25 §§ 1, 2 and 4, all conditions of entry and stay shall be inspected by the border guards at the time of entry to the country by the foreigner, prior to crossing the state frontier, while the availability of financial means shall be inspected by the customs authority. Foreigners who do not satisfy the conditions prescribed for entering the country, shall be - subject to the provisions of S. 32 § 1 - returned to the territory of the country they arrived from. Upon notification, an appeal may be lodged against the order of return.

Section 32 § 1 provides that foreigners shall not be returned or expelled to such countries, or to the frontier of such areas, where they would be exposed to the danger of persecution for reasons connected with their race, religion, national, social belonging or political views; furthermore, to the territory of such states, or to the frontier of such areas, where it is to be greatly feared that they would be exposed to torture, inhuman or degrading treatment. These reasons shall be established by the refugee authority.

Section 43 provides the possibility of ordering an alien's residence at a designated place. According to paragraphs 1 and 3, the police headquarters and the directorate or branch of Border-Guards may order the residence of the foreigner at a designated place, restricting his personal liberty, if: (a) he is not able to certify his identity, until the establishment thereof; or (b) he is not able to certify the lawfulness of his stay in Hungary, until the verification thereof or until an official permit to stay is issued; or (c) this is necessary for the purposes of guaranteeing the execution of an expulsion, until the establishment of the conditions of expulsion; or (d) his return was ordered (see S. 25 above); or (e) his return or expulsion should take place, but he may not be returned or expelled in accordance with the prohibition under S. 32 § 1.

The compulsory place of residence may also be designated at a communal accommodation, if the foreigner is not able to support himself, and no appropriate accommodation, financial means, income and inviting party or relatives obliged to support him are at his disposal.

Paragraph 5 provides that, although no administrative appeal may be lodged against the order to reside at a designated place, the foreigner may request the court review of the decision. The procedure of the court shall be governed by the provisions applicable to the court review of the lawfulness of ‘custody for the purposes of supervision of aliens'. These provisions are as follows:

Section 39 §§ 1 and 2 provide that foreigners may request - during the period of custody - a review of the lawfulness of the decision from the local court competent at the place of custody. The submission of such a request has no suspensive effect in respect of the enforcement of the custody order. If the foreigner requests the court review of the lawfulness of the ‘custody for purposes of supervision of aliens', he shall be brought before the court in order to be heard. According to S. 41 § 1, if the court finds that the foreigner's taking into, or holding in, custody violates the law, it shall take immediate measures for his release. Section 42 §§ 1, 3 and 4 provide that the authority ordering the taking into custody as well as the foreigner may appeal against the decision of the court. The appeal may be submitted orally in the course of the hearing or in writing to the local court within three days following the announcement of the decision. Appeals submitted against the decision of the local court shall be decided by the regional court within five days. Section 50 requires that the court shall act promptly in matters of judicial review of decisions of the immigration authorities.

2.       The 1997 Asylum Act (Act no. 139 of 1997)

Section 33 §§ 3 and 4 provide that the applicant shall have the opportunity to use legal assistance of his choice, at his expenses, or to accept free legal aid offered by any registered organisation providing legal protection on a regular basis. The aliens control authorities and the refugee authorities shall provide the person applying for protection with information on his rights and the possibility to use legal assistance during the proceedings.

According to S. 42 § 1, the immigration authority shall, prior to allowing a foreigner to enter the territory of the Republic of Hungary at the border crossing point of the International Airport, immediately notify the refugee authority with a view to instituting asylum proceedings, if such a foreigner refers to a reason for seeking asylum defined in this Act, arrived from a safe country of origin or a safe third country, and is unable to prove his identity by means of a passport or other appropriate document.

3.       Government Decree no. 64/1994 (of 30 April 1994) on the Implementation of the 1993 Aliens Act

According to S. 25 § 1, the competent aliens control authority shall issue ex officio a certificate permitting temporary residence to any foreigner who does not hold a permit to enter and stay in Hungary issued under the 1993 Aliens Act or other legislation and may not be returned or expelled from Hungary in compliance with S. 32 § 1 of the 1993 Aliens Act or may not leave the country for other reasons.

Paragraph 3 provides that the certificate's period of validity shall be determined by the aliens control authority by means of appreciating the foreigner's circumstances. The period of validity may be extended until the foreigner's departure or until he is granted a residence permit.

4.       Government Decree no. 24/1998 (of 2 February 1998) on the Detailed Rules of the Refugee Determination Procedure

Section 22 §§ 4 and 5 govern the "airport procedure", according to which if an applicant does not prove his personal identity, moreover, the Office finds that he arrived from a safe third country and this presumption is not refuted, then the Office promptly delivers a decision on the rejection of the application and informs the aliens control authority thereof. If a decision on the merits cannot be delivered promptly or in accelerated procedure, the Office arranges for the applicant's entry into the country and proceeds with the application under the general rules.

5.       The Code of Civil Procedure (Act no. 3 of 1952)

a.       General rules

Section 95 § 1 provides that if a submission is not in conformity with the provisions of the Act or must be supplemented or corrected for another reason, the presiding judge shall give it back to the party for completion, fixing a short time limit and indicating the deficiencies, and shall simultaneously warn the party that the court will dismiss the submission or handle it according to its incomplete contents, if it is submitted incompletely again.

Section 121 § 1 requires that an action must be brought by filing a submission indicating the trial court; the names, domiciles and legal positions of the parties and their representatives; the rights intended to be enforced, the relevant facts and evidence; data from which the competence and jurisdiction of the court can be established and an express claim.

According to S. 124 § 1, the presiding judge shall examine the action immediately after its receipt to see whether it has to be given back to the party for completion, forwarded to another court or rejected without issuing summonses and shall take the necessary measures without delay.

Section 130 § 1 (j) provides that an action shall be rejected by the court without issuing summonses, inter alia, if it can be established that the plaintiff did not re-file the submission given back to him for completion within the time limit fixed or re-filed it incompletely and, as a consequence, the action cannot be adjudged.

b.       Judicial review of administrative decisions

Section 324 provides that the application of the general rules contained in Chapters 1 to 14 of the Code to litigations concerning the judicial review of administrative decisions is subject to the provisions in Chapter 20. Some of these special rules are outlined below.

Section 330 §§ 1 and 4 provide that the action shall be filed either with the authority which has passed the first instance administrative decision or with the competent court and within 30 days from the service of the decision requested to be reviewed. The first instance authority shall forward the action along with the case-file to the competent court within 8 days. If the plaintiff failed to observe the time-limit fixed for filing the action, he may apply for the reinstatement of the proceedings. The defendant authority shall not have the right to reject an action filed out of time, rather, it shall forward it to the court even if no request for the reinstatement of the proceedings has been filed by the plaintiff.

According to S. 331, the authority, which has passed the decision requested to be reviewed, shall submit its written observations in reply to the action either when forwarding the case-file to the court (in case the action has been filed with the authority), or otherwise within 8 days from the date when the authority has been notified of the action by the court.

COMPLAINTS

1.   The applicant complains that the Hungarian authorities' procedure concerning his request for asylum and his potential deportation amounted to a treatment in breach of Article 3 of the Convention.

2.   The applicant also complains under Article 13 read in conjunction with Article 3 of the Convention that there was no effective remedy at his disposal to challenge the denial of a refugee status and his attempted forcible return to Egypt since the court action to challenge the lawfulness of the administrative proceedings had no suspensive effect.

3.   Lastly, the applicant complains that his detention at the Communal Accommodation of the Budapest Border Guards Directorate amounted to a deprivation of liberty contrary to Article 5 §§ 1 and 4 in that it was not ordered in a manner satisfactorily prescribed by law and could not be appealed to a judicial body.

PROCEEDINGS BEFORE THE COURT

The application was introduced and registered on 4 January 1999.

On 5 January 1999 the Vice-President of the Second Section decided to indicate to the respondent Government, in accordance with Rule 39 of Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicant until the Court had an opportunity to examine the application.

On 12 January 1999 the Court decided to communicate the application to the respondent Government, pursuant to Rule 54 § 3 (b) of its Rules of Court and to prolong the indication under Rule 39.

The Government's written observations were submitted on 15 February 1999.

On 1 April 1999 the applicant submitted observations in reply to the respondent Government's observations.

On 19 April 1999 the Government submitted supplementary observations to which the applicant replied on 23 April 1999.

THE LAW

1.             The applicant complains that the Hungarian authorities' procedure concerning his request for asylum and his potential deportation amounted to a breach of Article 3 of the Convention.

Article 3 of the Convention provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 34, so far as relevant, provides that the Court may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.

The Government submit that on 25 January 1999 the Office ruled that, in pursuance of S. 32 § 1 of the 1993 Aliens Act, the applicant could not be deported to Iraq or Egypt. According to S. 25 of Government Decree no. 64/1994, the applicant should not in the future be deported from Hungarian territory as long as the relevant situation in his country of origin persists, i.e. the reasons prohibiting his expulsion cease to exist. For the duration of the asylum proceedings, he is authorised to reside in Hungary. A temporary residence permit will be issued to him, should he not be granted refugee status in the court proceedings. In these circumstances the Government are of the view that the applicant's complaint has lost relevance.

The applicant submits that the applicant's forcible return to Egypt, as attempted by the Hungarian authorities notwithstanding that his court action was pending, could have resulted in his expulsion to Iraq and thus could have exposed him to a treatment in breach of Article 3 of the Convention. Furthermore, the absence of a thorough investigation into his statements in the asylum proceedings and, in particular, the fact that the Hungarian authorities did not prevent the Iraqi consul from interfering with their proceedings amounted to another violation of Article 3. Unless he will be granted asylum in the pending court proceedings, the issue of his subsistence in Hungary is not resolved, since the certificate to be issued under S. 25 of Government Decree no. 64/1994 would not guarantee him any legal status with a view to staying in Hungary.

The Court observes that on 25 January 1999 the Office decided that the applicant could not be deported to Iraq or Egypt. In these circumstances, the Court considers that it is not called upon to examine the applicant's complaints concerning his attempted return to Egypt or the alleged shortcomings of the asylum proceedings. Since the applicant is not exposed any more to the imminent danger of being expelled to a country where he might be subjected to a treatment in breach of Article 3, he can no longer claim to be a victim of a violation of his rights under that Article within the meaning of Article 34 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.             The applicant also complains under Article 13 read in conjunction with Article 3 of the Convention that there was no effective remedy at his disposal to challenge the denial of a refugee status and his attempted forcible return to Egypt since the court action to challenge the lawfulness of the administrative proceedings had no suspensive effect.

Article 13 of the Convention provides that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

The Court notes that in the decision of 22 December 1998 it was specified that an action to challenge the lawfulness of the asylum proceedings was of no suspensive effect concerning the applicant's return to Cairo as ordered and, moreover, that subsequently the Hungarian authorities attempted to execute his return, notwithstanding the fact that his action had meanwhile been filed with the Budapest Regional Court. The question arises, therefore, whether - when introducing his application - the applicant had at his disposal a remedy before the national authorities concerning his deportation which could be considered effective within the meaning of Article 13 of the Convention.

However, as set out above in regard to his complaints under Article 3 of the Convention, the applicant is no longer exposed to the threat of imminent expulsion from Hungary. In the light of this development in the case, his pending court action for asylum can now be regarded as capable of redressing his claim. Consequently, this remedy cannot be held ineffective for the purposes of Article 13 of the Convention.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3.             Lastly, the applicant complains that his detention at the Communal Accommodation of the Budapest Border Guards Directorate amounted to a deprivation of liberty contrary to Article 5 §§ 1 and 4 in that it was not ordered in a manner satisfactorily prescribed by law and could not be appealed to a judicial body.

Article 5 §§ 1 and 4, so far as relevant, provide:

"1.  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: ...

f.    the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. …

4.   Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

Article 35 § 1 of the Convention, so far as relevant, provides that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Government submit that the Communal Accommodation was lawfully designated as the applicant's compulsory place of residence under S. 43 of the 1993 Aliens Act. Paragraph 5 of that Section provides that the judicial review of an order designating a compulsory place of residence can be requested from the courts. According to Ss. 39 to 42, such review may be requested at any time during detention. In the court proceedings the claimant must be heard in person and the court's decisions is subject to appeal. Section 50 provides that the courts shall proceed speedily in these matters. Since, however, the applicant has not availed himself of this remedy, his complaints should be rejected for non-exhaustion of domestic remedies.

The applicant submits that the domestic legal provisions on the designation of a foreigner's compulsory place of residence are not clear enough to meet the criteria of accessibility and precision. In the light of the non-suspensive effect of the request for the judicial review of the deportation order, the applicant could not have recourse to a remedy, effective for the purposes of Article 5 § 4, to challenge the lawfulness of the deprivation of his liberty. In any event, such a remedy could have been pursued only under the relevant rules of the Code of Civil Procedure: to achieve a judicial review of the impugned administrative decision, a proper action must have been brought in default of which the request might have been rejected without an examination on the merits. In a situation where legal assistance was hardly available, the relevant formal requirements rendered this remedy virtually inaccessible. Furthermore, due to the courts' heavy workload, the proceedings in question may have lasted for months, contrary to the requirement of speediness under Article 5 § 4.

The Court considers that it is not called upon to decide whether the applicant's commitment to the Communal Accommodation amounted to a deprivation of liberty within the meaning of Article 5 of the Convention or whether it was ordered lawfully, since these complaints are in any event inadmissible for the reasons set out below.

The Court recalls that the opportunity of preventing or putting right the violations alleged against them is in principle intended to be afforded to Contracting States by the rule of exhaustion of domestic remedies (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 19, § 36).             The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, pp. 30-31, § 66). Where doubts exist as to the effectiveness of a domestic remedy, that remedy must be tried (cf., e.g., No. 13669/88, Dec. 7.3.90, D. R. 65, p. 245).

In the present case the Court observes that S. 43 § 5 of the 1993 Aliens Act provides that a judicial review of an administrative decision ordering a foreigner's compulsory place of residence may be requested from the competent court. However, the applicant did not avail himself of this remedy. The Court finds that mere doubts as to the outcome or the length of the court proceedings in question did not exempt the applicant from having to exhaust the domestic remedy available to him.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Erik Fribergh    Marc Fischbach

Registrar           President