36. The Court observes that the applicants’ expulsion was ordered on 6 November 2011. Simultaneously, the execution of this measure was suspended, and the applicants’ detention was ordered with a view to their eventual deportation, that is, the execution of the expulsion order.
37. Regarding the first three days of the applicants’ detention (that is, up until 8 November 2011), the Court is satisfied that the measure served the purpose of detaining a person “against whom action is being taken with a view to deportation”, within the meaning of the second limb of Article 5 § 1 (f) (cf. the order of 6 November 2011 (see paragraph 7 above), making reference to section 54(1)(b) of the Immigration Act, quoted in paragraph 15 above). Indeed, at that point in time the applicants had not yet requested asylum and were no more than illegal border-crossers without identity documents. For the Court, this phase of the applicants’ detention discloses no appearance of any arbitrariness (see Saadi, cited above, §§ 65-66).
38. As regards the applicants’ further detention, the Court emphasises that detention “with a view to deportation” can only be justified as long as the deportation is in progress and there is a true prospect of executing it (see paragraph 29 above). It notes that the applicants applied for asylum on 9 November 2011, formal asylum proceedings started on 10 November 2011, and the case was admitted to the “in-merit” phase on 12 December 2011. For the Court, the pending asylum case does not as such imply that the detention was no longer “with a view to deportation” – since an eventual dismissal of the asylum applications could have opened the way to the execution of the deportation orders. The detention nevertheless had to be in compliance with the national law and free of arbitrariness.
39. As regards compliance with the domestic law, the Court notes that on 8 November, 29 November and 30 December 2011, 1 February and 3 March 2012 the Kiskunhalas and the Nyírbátor District Courts reviewed the lawfulness of the applicants’ deprivation of liberty. However, all the decisions up to, and including, the one of 1 February 2012 were only concerned with the endorsement of the Csongrád County Police department’s original decision of 6 November 2011. According to this latter, the applicants were to be detained because they had entered the country illegally and without documents, and were deemed to be potentially frustrating their expulsion. Moreover, the decisions of 29 November and 30 December 2011 did not mention the on-going asylum case at all, and the one of 1 February 2012 only made a factual reference to it.
40. For the Court, the period until the prolongation of 3 March 2012 raises a serious question of lawfulness in terms of compliance with the relevant rules of the domestic law. Under sections 54(1)(b), 54(2) and 54(6)(b) of the Immigration Act (see paragraph 15 above) – read in conjunction and in the light of the circumstances of the case – to validly prolong the applicants’ detention, the domestic authorities had to verify that they were indeed frustrating the enforcement of the expulsion; that alternative, less stringent measures were not applicable, and whether or not the expulsion could eventually be enforced.
41. Instead of these criteria having been addressed, the applicants’ continuing detention was in essence based on the reasons contained in the first detention order by the Csongrád County Police Department, that is, the risk that they might frustrate their expulsion. However, very little reasons, if any, were adduced to show that the applicants were actually a flight risk. Moreover, none of these decisions dealt with the possibility of alternative measures or the impact of the on-going asylum procedure. The extension decision of 1 February 2012 was indeed the first one to state that the expulsion had been suspended due to the asylum application, but the court drew no inference from this fact as to the chances to enforce, at one point in time, the expulsion.
42. For the Court, it does not transpire from the reasoning of the decisions given between 8 November 2011 and 1 February 2012 that the domestic courts duly assessed whether the conditions under the national law for the prolongation of the applicants’ detention were met, with regard to the specific circumstances of the case and the applicants’ situation.
43. Since the requisite scrutiny as prescribed by the law was not carried out on these occasions of prolonging the applicants’ detention, the Court considers that it is not warranted to examine the applicants’ other arguments or whether the detention could otherwise be characterised as arbitrary, for example, because the actual progress of the expulsion process was not demonstrated.
44. The above considerations enable the Court to conclude that there hasbeen a violation of Article 5 § 1 of the Convention in the period between 8 November 2011 and 3 March 2012.
