EHRM, 22-02-2024, nr. 10940/17, nr. 15977/17

The Court reiterates that Article 5 of the Convention 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 individuals may be deprived of their liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi, cited above, § 43). As regards the question whether Article 5 § 1 (f) applies in the context of asylum-seekers, the Court refers to the principles set out in Saadi (cited above, §§ 64–66) and Suso Musa (cited above, §§ 90 and 97). It further notes that Article 5 § 1 (b) could also potentially provide justification, in some specific circumstances, for the detention of asylum-seekers (see O.M. v. Hungary, no. 9912/15, § 48, 5 July 2016, and M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, § 245, 18 November 2021). However, detention is authorised under sub-paragraph (b) of Article 5 § 1 only to ‘secure the fulfilment’ of the obligation prescribed by law. It follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned, and the arrest and detention must be for the purpose of securing its fulfilment and must not be punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003, and Göthlin v. Sweden, no. 8307/11, § 57, 16 October 2014).

Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be ‘lawful’. 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. 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 (see Saadi, cited above, § 67; see also Lazariu v. Romania, no. 31973/03, §§ 102, 13 November 2014, and Suso Musa, cited above, § 92).

One general principle established in the case-law is that detention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there should be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1. There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Saadi, cited above, § 69).

The notion of arbitrariness in the contexts of sub-paragraphs (b), (d) and (e) also includes an assessment of whether detention was necessary to achieve the stated aim, which includes the question of availability of less severe measures (ibid., § 70) as well as, where detention is to secure the fulfilment of an obligation provided by law, a question of balance between the importance of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty (see Vasileva, cited above, § 37). In this connection, the Court applies a different approach to detention falling under Article 5 § 1 (f). The principle of proportionality applies to detention under Article 5 § 1 (f) only to the extent that the detention should not continue for an unreasonable length of time (see Saadi, cited above, §§ 72 and 73).

To avoid being branded as arbitrary under the first limb of Article 5 § 1 (f), detention must therefore be carried out in good faith; it must be closely connected to the purpose of preventing the unauthorised entry of the person into the country; 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, § 74, and Suso Musa, § 93, both cited above).

Various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate the immigration detention of children (see G.B. and Others v. Turkey, no. 4633/15, §§ 67–79 and 151, 17 October 2019, and M.H. and Others v. Croatia, cited above, § 236). They clearly recognise the primary importance of the best interests of the child and of the principle of presumption of minority in respect of unaccompanied migrant children reaching Europe (see Darboe and Camara v. Italy, no. 5797/17, §§ 139 and 153, 21 July 2022; see also paragraphs 44, 47 and 53 above).

The Court has repeatedly emphasised that a child's extreme vulnerability should be a decisive factor and should take precedence over considerations relating to his or her status as an irregular migrant (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 55, ECHR 2006-XI, and Darboe and Camara, cited above, § 173). It emerges from the Court's established case-law on this issue that, as a matter of principle, the confinement of migrant children in a detention facility should be avoided, and that only placement for a short period in appropriate conditions could be considered compatible with Article 5 § 1 of the Convention, provided, however, that the national authorities can establish that they resorted to such a measure only after having verified that no other measure involving a lesser restriction of freedom could be implemented (see M.H. and Others v. Croatia, cited above, § 237).

The applicants argued that their detention did not fall under Article 5 § 1 (f) of the Convention (see paragraph 61 above), which the Government disputed (see paragraph 64 above). In this connection, the Court notes that the first applicant, who had initially been detained in the context of criminal proceedings and against whom an entry ban had been issued, appears not to have been issued with a residence permit (see paragraphs 5 and 12 above). It further notes that the Government argued that the residence permit issued to the second applicant was intended only to protect him from being removed before his application for international protection had been considered by the appropriate authorities and that therefore his detention was meant to prevent his unauthorised entry into Hungary (see paragraph 64 above).

The Court takes note of these arguments, but does not find it necessary to rule on whether the applicants' detention fell under the first limb of Article 5 § 1 (f) (compare M.H. and Others v. Croatia, cited above, §§ 240-46). It reiterates, firstly, that Article 5 § 1 (b) could also potentially provide justification, in certain circumstances, for the detention of asylum-seekers (see O.M. v. Hungary, cited above, § 48) and, secondly, that Article 5 § 1 also requires, regardless of which sub-paragraph is engaged, that detention be in compliance with national law and free from arbitrariness (see paragraphs 67 to 70 above; see also Mahamed Jama v. Malta, no. 10290/13, §§ 137-39, 26 November 2015, and Nabil and Others v. Hungary, no. 62116/12, § 38, 22 September 2015). For the reasons set out below, the Court finds that this requirement was not met in respect of either of the applicants, and therefore does not find it necessary to rule on whether their detention fell within the permissible grounds under Article 5 § 1 (b) or (f) (see, M.H. and Others v. Croatia, cited above, § 246).

The Court observes that at the time of the events in question both applicants were minors, as eventually established by the domestic authorities (see paragraphs 11 and 22 above, and, compare, A.D. v. Malta, no. 12427/22, § 74, 17 October 2023, and Darboe and Camara, cited above, § 131). Under domestic law, unaccompanied minor asylum-seekers could not, under any circumstances, be detained (see paragraphs 32, 33 and 40 to 42 above). However, it cannot be ignored that the applicants appear to have initially provided the authorities with information indicating that they were adults. On the basis of that information, they were detained. They stated only a few days later that they were minors. In such a situation the domestic authorities might have had legitimate concerns as to the reliability of the applicants' statements that they were minors and thus it could have been reasonable from them to refrain from placing them in a children's facility immediately after those statements had been made. However, the mere fact that the applicants claimed to be minors after they had initially stated that they were adults could not justify dismissing those claims without taking appropriate measures to verify the applicants' age. The Court reiterates that a child's extreme vulnerability takes precedence over considerations relating to his or her status as an irregular migrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55), and notes that there might be understandable reasons prompting a child immigrant not to reveal his or her real age, such as not being sure of it or a fear of being separated from a group or an adult relative.

From the information submitted to it, the Court cannot discern any domestic legal provisions specifically governing the situation of asylum-seekers awaiting or undergoing age assessment. It observes that the Parliamentary Assembly of the Council of Europe in its Resolution no. 2195 (2017) called on the member States to identify and provide alternative accommodation options for children awaiting or undergoing age assessment (see paragraph 53 above). From the Court's perspective, the confinement of migrant children in a detention facility should be avoided; only placement for a short period in appropriate conditions could be considered compatible with Article 5 § 1 of the Convention, provided, however, that the national authorities can establish that they resorted to that measure only after having verified that no other measure involving a lesser restriction of freedom could be implemented (see paragraph 72 above, and mutatis mutandis, Nart v. Turkey, no. 20817/04, §§ 21 and 31, 6 May 2008).

In this connection the Court observes that the first applicant made a statement to the effect that he was a minor on 4 May 2016. He was ultimately asked to prove his age by submitting an original identity document or by having an age assessment procedure carried out at his own expense. On 29 June 2016 the domestic court extended his detention without in any way addressing his claim to be a minor (see paragraph 9 above). After the first applicant's representative had submitted an Afghan identity document on 30 June 2016, followed later by another similar document, the asylum authority terminated his detention on 5 August 2016, finding that he was an unaccompanied minor. No explanation can be found in the domestic decisions as to why the document submitted on 30 June 2016 was not considered sufficient to at least prompt the authorities to order an age assessment, as requested by the first applicant's representative, or why it was translated only a month later (see paragraph 10 above). The Court notes in this connection that the decision to terminate the first applicant's detention because he was a minor was given a day after the second document had been submitted in the original language (ibid.). The first applicant was accordingly detained for three months after he had informed the authorities that he was a minor.

The second applicant made a statement to the effect that he was a minor on 23 June 2016. Like the first applicant, he was told that he could prove his age by submitting an original identity document or by having an age assessment carried out at his own expense. The second applicant eventually offered to pay for an age assessment, but it turned out that it could not be conducted at the request of a private individual. The OIN ordered an age assessment on 10 August 2016, that is, only after it had been informed that the second applicant had been registered as a minor in Bulgaria and could not be returned there unless it was established that he was an adult (see paragraphs 18 and 19 above). The domestic court extended the second applicant's detention, noting the pending age assessment but without addressing the possibility that he was a minor (see paragraph 21 above). Upon receiving the expert medical opinion indicating that the second applicant was between sixteen and seventeen years old, the OIN terminated his asylum detention on 23 August 2016 (see paragraph 22 above), that is, two months after he had indicated that he was a minor. It should be noted that the second applicant appears to have travelled to Hungary with a relative who had initially been described as a cousin but was later referred to as his uncle, and that a psychologist later found that separation from him had had a negative impact on the second applicant's already fragile mental state. That relative, who appears to have remained in detention, was, according to the OIN's record of the second applicant's interview, also seventeen years old (see paragraphs 23 and 24 above).

It follows from the above that the applicants remained in detention for a considerable amount of time after they had stated that they were minors. The decisions relating to their detention that were issued after they had claimed to be minors did not explain why less coercive alternative measures would not have been appropriate and there is no indication that the delays in establishing their age were necessary. The Court finds it particularly concerning that the domestic authorities, instead of giving the benefit of the doubt to the applicants and considering their best interests (see paragraphs 71 and 72 above), presumed them to be adults simply on the account of their having changed their statements as to their age. They moreover placed the burden of rebutting that presumption on them (see paragraphs 8 and 17, and also paragraph 27 above), in disregard of the fact that for detained asylum-seekers, let alone children, obtaining the necessary evidence to prove their age could be a challenging and potentially even impossible task.

In the Court's view, the above circumstances demonstrate that the domestic authorities failed to act expeditiously and with due regard to the children's best interests, and that the applicants' detention, after they had claimed to be minors, was not carried out in good faith and was thus arbitrary. It was therefore in violation of Article 5 § 1 of the Convention.

As regards the period preceding the applicants' statements that they were minors (from 1 to 4 May 2016 as regards the first applicant and from 17 to 23 June 2016 as regards the second applicant; see paragraphs 7, 8, 14 and 17 above), the Court considers that it has dealt with the main legal question raised by the case (see paragraphs 75 to 80 above) and that there is no need to examine the merits of the remaining aspect of the applicants' complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).