Should an asylum seeker in Hungary not have been subject to a period of detention because of his sexual orientation?

The European Court of Human Rights has communicated the complaint in O.M. v Hungary. The case concerns an Iranian national, who was born in 1982 and lives in Budapest.

Summary of the facts

The applicant arrived in Hungary illegally from Serbia on 24 June 2014. The applicant requested to be recognised as a refugee and at a hearing held on 25 June 2014 by the Immigration Office, the applicant declared that he had fled from his country of origin, Iran, because of his homosexuality. At a hearing on the same day at the Office of Immigration and Nationality the applicant repeated that he had had to leave his country of origin because he was homosexual and criminal proceedings had been instituted against him for this reason. The applicant stated that the penalty for homosexuality in Iran is death.

After the hearing a section of the Office of Immigration and Nationality ordered the applicant’s asylum detention. In its decision the asylum authority observed that the applicant’s identity and nationality had not been clarified. It held that there were grounds for presuming that, if left at large, he would delay or frustrate the asylum proceedings and would present a risk of absconding, given that he had arrived unlawfully in Hungary and had no connections in Hungary or resources to maintain himself.

Subsequently, a competent court extended the asylum detention by a maximum of 60 days. Without referring to the applicant’s sexual orientation, the court held that less stringent measures were not suitable in the case to secure the applicant’s availability to the authorities.

At a hearing held on 18 July 2014 the applicant referred again to his sexual orientation, explaining that it was difficult for him to bear the asylum detention for fear of harassment. 

In August, the court dismissed a further request by the authorities to extend the asylum detention further. On 22 August 2014 the asylum authority terminated the asylum detention and on 31 October 2014 the applicant was recognised as a refugee.

The issue and complaint

The key issue of the complaint concerns the detention of the applicant, which lasted from 25 June 2014 to 22 August 2014.

The applicant relies solely on Article 5(1) of the Convention ('right to liberty and security') under which he complains that his asylum detention was not lawful or justified. He submits in particular that his asylum detention was arbitrary, because the court ordered it without properly analysing the legal grounds, his personal circumstances or the applicability of less stringent measures, considerations prescribed both by the national law and the Convention.

Questions to the Parties

The Court has asked two questions:

1. Was the applicant deprived of his liberty in breach of Article 5(1) of the Convention? In particular, did the deprivation of liberty fall within paragraphs (b) or (f) of this provision?

Paragraph (b) concerns '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'; paragraph (f) concerns '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'. 

2. In ordering the applicant’s detention, to what extent did the authorities take into account the fact that the applicant might have been exposed to abuse on account of his sexual orientation, as considered by UNHCR Guideline 9.7.?

UNHCR (United Nations High Commissioner for Refugees) Guideline 9.7. concerns 'victims of trauma or torture'. 

Sexual orientation and Article 5

A key issue in this complaint concerns whether the failure by the Hungarian authorities to consider the applicant's sexual orientation when ordering and maintaining his detention amounts to a violation of Article 5(1) of the Convention. 

The applicant does not invoke Article 14 in conjunction with Article 5(1) - a combination which remains unusual in complaints under the Convention generally (although, for a rare example of a case concerning sexual orientation, see Waite v the United Kingdom) - and does not, therefore, make any straightforward claim about discrimination on the grounds of sexual orientation in respect of the processing of his application for asylum and his associated detention. However, a key aspect of the applicant's complaint is that by failing to consider, inter alia, his sexual orientation his detention did not comply with Article 5(1) of the Convention. 

The complaint raises a novel issue before the Court. Although in Lokpo and Touré v Hungary the Court considered and upheld an Article 5 complaint from two applicants in similar circumstances to Mr. O.M. - the applicants were also asylum seekers who claimed that they were persecuted in their home country for being homosexual - the issue of sexual orientation was not material to the complaint. Similarly, the Court upheld a complaint under Article 5 by a homosexual applicant in Enhorn v Sweden concerning his detention because he was HIV+ but the issue of his sexual orientation was not material to the complaint. 

Complaints relating to sexual orientation are uncommon under Article 5. As far as I am aware, the earliest such complaint was in X. v Federal Republic of Germany (no. 986/61, Commission decision, 7 May 1962) which related to the treatment of the applicant in respect of his trial, conviction and imprisonment for homosexual offences under the former Paragraph 175 of the German Criminal Code. To date, the Court has not upheld a complaint under Article 5 where the issue of sexual orientation discrimination was material. Will O.M. be the first?