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Mahmoud Mamou and Others v. Hungary

Publisher Council of Europe: European Court of Human Rights
Publication Date 22 June 1999
Citation / Document Symbol 34772/97
Cite as Mahmoud Mamou and Others v. Hungary, 34772/97 , Council of Europe: European Court of Human Rights, 22 June 1999, available at: http://www.refworld.org/docid/3ae6b6f714.html [accessed 24 July 2014]
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SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34772/97

by Mahmoud MAMOU and Others

against Hungary

The European Court of Human Rights (Second Section) sitting on 22 June 1999 as a Chamber composed of

Mr C. Rozakis, President,

Mr M. Fischbach,

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 February 1997 by Mahmoud MAMOU and Others  against Hungary and registered on 4 February 1997 under file no. 34772/97;

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 14 July 1997 and the observations in reply submitted by the applicants on 5 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Syrian passport-holders of Kurdish origin (see complete list in the Annex). They submit that they have been deprived of their Syrian citizenship and that their status in Syria is that of stateless "foreigners". When introducing their application, they were held at the Communal Accommodation of the Budapest Border Guards Directorate, located on the premises of the Budapest Ferihegy Airport. Before the Court they are represented by Mr. J. Somogyi, a lawyer practising in Budapest and acting on behalf the Hungarian Helsinki Committee.

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

A. Particular circumstances of the case

On 25 December 1996 the applicants, coming from Damascus, Syria, arrived at the Budapest Ferihegy Airport. At the passport control, the Hungarian immigration authority established that their visas had been reported stolen. Subsequently they were informed that they would be returned to Syria. Assisted by an interpreter, they signed the decision of the Budapest Border Guards Directorate to that effect and waived their right to an administrative appeal. On the same day Dr. S., a lawyer acting on behalf of the Mahatma Gandhi International Human Rights Organisation, contacted them. On 26 December 1996 the applicants made a request for asylum. On the same day they were committed to the Communal Accommodation.

As to the circumstances at the Communal Accommodation, the applicants allege that they were all - men, women and children together - lodged in three rooms of a surface of approximately 30 square metres, packed with bunk beds. They were under constant control by armed guards and not allowed to leave the premises of the Communal Accommodation. The Government, for their part, allege that, on their committal to the Communal Accommodation, it was the applicants' express desire to be allowed to stay together, as a result of which a room suitable to accommodate fourteen people was allocated to them. Admitting that the applicants' stay at the Communal Accommodation was subject to severe security scrutiny, the Government nevertheless submit that on the occasion when one of the applicant children had had to be taken to hospital, the parents were escorted to the hospital to visit their child the very next day, on 19 January 1997.

Meanwhile, on 27 December 1996 the Border Guards Directorate, pending the asylum proceedings, suspended the enforcement of the applicants' deportation to Syria. On 30 December 1996 the Hungarian authorities heard the applicants, represented by Dr. S., with a view to clarifying their situation, if returned to Syria.

After having interviewed the applicants, on 10 January 1997 the Hungarian Branch Office of the United Nations High Commissioner for Refugees dismissed the applicants' request for asylum on the ground that their allegations lacked credibility. On 31 January 1997 the Office for Refugee and Migration Matters and the Ministry of Foreign Affairs approved the applicants' deportation to Syria. On the same day the Border Guards Directorate ordered the applicants' deportation. Upon the announcement of the deportation order, the applicants insisted that they would not leave Hungary for any Arab country. As a consequence, their deportation did not take place.

On 5 February 1997 Dr. S. brought an action on behalf of the applicants before the Pest Central District Court challenging the Directorate's deportation order as well as their committal to the Communal Accommodation.

On 21 March 1997 the District Court discontinued the proceedings. The District Court recalled that the applicants had waived their right to an administrative appeal against the return order of 25 December 1996. The District Court pointed out that, since they had not exhausted the relevant administrative remedy in this respect, the applicants had no locus standi in judicial proceedings with a view to reviewing the impugned administrative proceedings.

Meanwhile the applicants were committed to the Refugees Reception Camp in Bicske. On 20 February 1997 the Ministry of the Interior was informed that the applicants had, without authorisation, left the camp by undoing the fence. In his submissions of 3 April 1997, the applicants' representative submitted that the applicants had eventually left Hungary for Germany.

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 if they have valid passports verifying their citizenship and particulars of identification, and have valid visas issued by the Hungarian authorities.

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 - subject to the provisions of S. 32 § 1 - be 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.   Act no. 4 of 1957 on the General Rules of Administrative Procedure

Section 62 provides that an [administrative] appeal lies against any first instance [administrative] decision taken on the merits of a case. Persons entitled to lodge an appeal may waive their right to appeal within the appeal deadline. According to S. 71, if an administrative decision is not in compliance with the law, the superior administrative body may amend or quash it.

Section 72 provides that an administrative decision taken on the merits of a case may be challenged in court within thirty days from its delivery. Such judicial review may, however, take place only if the administrative remedies - if any - available in the case have already been exhausted.

COMPLAINTS

1.   The applicants complain that their detention at the Communal Accommodation of the Budapest Border Guards Directorate between 25 December 1996 and the end of January 1997 amounted to a deprivation of liberty contrary to Article 5 §§ 1 and 4 in that it was not prescribed by law and could not be appealed to a judicial body.

2.   The applicants also complain under Article 8 of the Convention that the conditions of their detention at the Communal Accommodation amounted to a breach of their right to respect for their private and family life.

3.   Lastly, the applicants complain Article 13 of the Convention about the absence of effective remedies in respect of their above complaints under Articles 5 and 8.

PROCEEDINGS

The application was introduced before the European Commission of Human Rights and registered on 4 February 1997.

On 20 May 1997 the Commission, in a partial decision, decided to communicate the applicants' complaints under Articles 5 and 8 of the Convention to the respondent Government, in accordance with Rule 48 § 2 (b) of its Rules of Procedure, and declared inadmissible the applicants' complaint about their envisaged expulsion to Syria.

The Government's written observations were submitted on 14 July 1997.

On 5 September 1997 the applicants submitted observations in reply to the respondent Government's observations.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1.   The applicants complain that their detention at the Communal Accommodation of the Budapest Border Guards Directorate between 25 December 1996 and the end of January 1997 amounted to a deprivation of liberty contrary to Article 5 §§ 1 and 4 in that it was not 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 at the outset that the applicants' situation at the Communal Accommodation did not amount to a "deprivation of liberty" within the meaning of Article 5 § 1. They point out in particular that the applicants were at any time during the impugned period free to leave the airport, although subject to visa requirements, for any country outside Hungary. Admitting that their stay at the Communal Accommodation was subject to security scrutiny, the Government maintain that on the occasion when one of the applicant children had had to be taken to hospital, the parents were escorted to the hospital to visit their child the very next day, on 19 January 1997.

Furthermore, the Government submit that, in any event, the Communal Accommodation was lawfully designated as the applicants' 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. The Government emphasise that, although the District Court's decision dated 21 March 1997 did not extend to this limb of the applicants' action, they did not lodge an appeal against this decision, thus failing to exhaust a remedy potentially capable of rectifying their situation.

The applicants maintain that at the Communal Accommodation they were under constant control by armed guards and not allowed to leave the Accommodation's premises. As to the decision of 21 March 1997, they submit that an appeal would have been to no avail in the light of the fact that the District Court discontinued the proceedings on formal grounds which could not have been successfully disputed before the appeal court.

The Court considers that it is not called upon to decide whether the applicants' committal to the Communal Accommodation amounted to a deprivation of liberty within the meaning of Article 5 of the Convention, since the applicants' complaints under paragraphs 1 and 4 of that Article 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. The Pest Central District Court's decision of 21 March 1997 only concerned the expulsion order as such, but not the custody of the applicants. The applicants - represented by a lawyer - did not avail themselves of an appeal against this decision. The Court finds that mere doubts as to the outcome of such an appeal did not exempt the applicants from having to exhaust the domestic remedy available to them. Consequently, the question of the lawfulness of the applicants' custody has never been examined by the domestic courts.

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

2.   The applicants also complain under Article 8 of the Convention that the conditions of their detention at the Communal Accommodation amounted to a breach of their right to respect for their private and family life.

Article 8 of the Convention guarantees, inter alia, everyone's right to respect for his private and family life.

As to circumstances at the Communal Accommodation, the Government submit that, on their committal to the Communal Accommodation, it was the applicants' express desire to be allowed to stay closely together, as a result of which a room suitable to accommodate fourteen people was allocated to them.

The applicants maintain that at the Communal Accommodation they were all - men, women and children together - lodged in three rooms of a surface of approximately 30 square metres, packed with bunk beds.

In the absence of any substantiation of their allegations, the Court considers that the applicants' submissions do not disclose any indication that the circumstances amounted to an interference with their rights under Article 8 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

3.   Lastly, the applicants complain under Article 13 of the Convention about the absence of effective remedies in respect of their above complaints under Articles 5 and 8.

Article 13 of the Convention provides that everyone whose rights and freedoms as set forth in the 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.

a.   To the extent that the applicants' complaint under Article 13 can be understood to be in conjunction with Article 5 of the Convention, the Court refers back to its findings in regard to that Article, according to which the applicants failed to exhaust the domestic remedies in that respect. Consequently, the Court finds that the applicants had a remedy for the purpose of their complaint under Article 13 read in conjunction with Article 5 of the Convention.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

b.   In so far as the applicants' complaint under Article 13 relates to the complaint under Article 8 of the Convention, the Court recalls that "where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress" (see the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 42, § 113 (a)).

Given that the Court has just found the applicants' complaint under Article 8 manifestly ill-founded for lack of substantiation, the Court finds that the applicants do not have "an arguable claim" under that Article, within the above meaning. It follows that their complaint under Article 13 read in conjunction with Article 8 of the Convention is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Erik Fribergh, Registrar

Christos Rozakis, President

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