Monday, 11 July 2016

Detention of gay asylum seeker violated ECHR - judgment in O.M. v Hungary

The European Court of Human Rights has issued its judgment in O.M. v Hungary. The applicant, Mr. M., is an Iranian national who was born in 1982 and currently lives in Budapest. The case concerned Mr. M's detention for 58 days following his request for asylum in Hungary.

The facts

Having travelled via Serbia, Mr. M. arrived in Hungary in June 2014, where he was apprehended and taken into custody. He filed a claim for asylum stating that he had been forced to flee Iran, his country of origin, because of his homosexuality. At his asylum hearing he alleged that because of his sexual orientation criminal proceedings had been instituted against him and that he faced severe penalties. 

On 25 June 2014 the Office of Immigration and Nationality ordered for him to be detained, referring to the fact that his identity and nationality had not yet been clarified and the risk of his frustrating proceedings or running away if left at large. 

Mr. M.’s request for release was subsequently dismissed by the competent district court, which extended his detention by 60 days. In August 2014, the asylum authority’s request for an additional 60-day extension was dismissed. 

Mr. M's detention was eventually terminated on 22 August 2014 and he was designated a place of residence. In October 2014 he was recognised as a refugee.

Complaint

Relying on Article 5 (right to liberty and security), Mr. M. complained that his detention was arbitrary and unjustified and that the authorities failed to take into consideration the individual circumstances of his case, in particular, his belonging to a vulnerable group.

Judgment of the Court

The Court's unanimous judgment was that Mr. M. had suffered a violation of Article 5 § 1 of the Convention. 

Article 5 § 1 states:
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...
The Hungarian government attempted to rely on Article 5 § 1(b) - which allows for an interference with Article 5 § 1 rights in order to secure "the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law" - to justify Mr. M.'s detention. 

The Court would not accept the government's submission and stated that Article 5 § 1(b) could not convincingly serve as a legal basis for Mr. M's asylum detention. The key reason for this was that Hungarian domestic law did not meet the “obligation prescribed by law”  test. Specifically, domestic law did not contain the requirement that an asylum-seeker must provide documentary evidence of his identity and nationality. 

Importance of the judgment

The Court's judgment does not address the issue of sexual orientation and asylum per se. Mr. M. had already been granted refugee status by the domestic authorities and the case concerned his period of detention prior to this. However, the Court's judgment does contain a statement that may prove important in the ongoing struggle to gain protection for gay men and lesbians under the Convention when they face deportation from a Council of Europe state to a country of origin that criminalises same-sex sexual acts:
...the Court considers that, in the course of placement of asylum seekers who claim to be a part of a vulnerable group in the country which they had to leave, the authorities should exercise particular care in order to avoid situations which may reproduce the plight that forced these persons to flee in the first place. In the present case, the authorities failed to do so when they ordered the applicant’s detention without considering the extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons (§ 53)
This signals the Court's recognition of the vulnerability of gay men and lesbians who flee persecution from states with criminal laws and/or policies that are hostile to them, and reminds Council of Europe states of their duty to respond adequately to this vulnerability. 

It is to be hoped that the Court takes the next vital step soon, and establishes the principle that deporting a gay man or lesbian to a country that criminalises same-sex sexual acts is a violation of the Convention. 


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