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Court confirms sexual orientation is a vulnerability for asylum seekers in detention

5 July 2016

The European Court of Human Rights, in its judgment in OM v Hungary, has ruled that the detention of an LGBT asylum seeker violates Article 5 of the European Convention of Human Rights.

The AIRE Centre intervened in this case alongside ILGA-Europe, International Commission of Jurists (ICJ), and ECRE (European Council for Refugees and Exiles). 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 had failed to make an individualised assessment or take into account the applicant’s vulnerability within the detention facility because of his sexual orientation

“We welcome this judgment and that the Court has, once again, recognised the fundamental rights of asylum seekers to protection – no matter their sexual orientation or gender identity. It is equally important that Countries across Europe ensure the respect of these fundamental rights in their asylum procedures”, said Matthew Evans, Director of The AIRE Centre.

Background

O.M. is an Iranian national who requested asylum in Hungary after travelling to Europe via Serbia. On arriving in Hungary in early 2014 he was arrested and placed in a detention facility, where he was kept for 58 days.

He claimed asylum based on his homosexuality and the fact that were he to be returned to Iran he faced severe penalties because of his homosexuality, including the death penalty. During his time in detention, O.M. repeatedly asked the asylum authority to release him from the detention facility or transfer him to an open facility due to the harassment he faced as a result of his sexual orientation.

His detention was eventually terminated on 22 August 2014 and in October 2014 he was recognised as a refugee.

The Court made a strong statement in favour of the rights of LGBT asylum seekers: “…when asylum seekers 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 applicants 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.

Notably, this judgement reflects the findings of a report by the Council of Europe’s Commissioner for Human Rights, Nils Mui┼żnieks who, after visiting Hungary in 2014, discovered the arbitrariness of the Hungarian asylum detention regime deeply concerning.

 

Read our intervention

Read the full judgment

Read the European Court of Human Rights Fact Sheet on Sexual Orientation Issues 

 

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