In judgment of OM v Hungary, the Court, unanimously ruled that the applicant’s detention was arbitrary and unjustified, in violation of Article 5 (Right to liberty and security) of the European Convention. In particular, the Court found that Hungarian authorities failed to make an individualised assessment and to take into account applicant’s vulnerability in the detention facility based on his sexual orientation.
“It is comforting that the Court again stands with the rights of asylum seekers – no matter their sexual orientation or gender identity. Hungary needs to act on the judgment, and immediately ensure the respect of fundamental rights in all asylum procedures” said ILGA-Europe’s Executive Director Evelyne Paradis. “We have been aware of the deteriorating situation for LGBTI people in Hungary over the past few years. The harsh methods we have seen the Hungarian authorities use to handle the on-going refugee situation, is another proof of a declining respect for fundamental rights with the system.”
It is noteworthy, that the Court used particular strong language in favour of the rights of LGBTI asylum seekers: “…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”
The ruling is in line with a report by the Council of Europe’s Commissioner for Human Rights, Nils Muižnieks following his visit to Hungary in July 2014. Here he expressed particular concern over the arbitrariness that characterized the Hungarian asylum detention regime.
ILGA-Europe had jointly with the International Commission of Jurists (ICJ), AIRE Centre (Advice on Individual Rights in Europe) and ECRE (European Council for Refugees and Exiles intervened as a third-party in this case.
The case in short: The applicant, O.M., is an Iranian national who was born in 1982 and currently lives in Budapest. The case concerns his detention for 58 days following his request for asylum in Hungary. Having travelled via Serbia, O.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, including death penalty. 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. The applicant repeatedly requested the asylum authority to release him from detention facility or transfer him to an open facility due to harassment based on his sexual orientation. O.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.