27 Jun The detention of the applicant was not in accordance with the Convention after it became clear that he could not be deported to any safe third country

In the case of Al Husin v. Bosnia and Herzegovina (no. 2) (application no. 10112/16, 25/06/2019) the European Court of Human Rights held, unanimously, that there had been: 

• a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights as regards the applicant’s detention from August 2014 to February 2016, and, 
• no violation of Article 5 § 1 over his detention between July 2012 and March 2013 and March 2014 to August 2014, 
• and no violation of Article 5 § 4 (right to liberty and security/proceedings on lawfulness of detention). 

The applicant, Imad Al Husin, was born in Syria and currently lives in Ilidža, Sarajevo Canton (Bosnia and Herzegovina). Mr Al Husin studied in the former Yugoslavia in the 1980s and fought as part of a foreign mujahedin unit on the Bosnian side during the 1992-95 war. At some point he obtained citizenship of Bosnia and Herzegovina, but this was revoked in 2007. He was placed in an immigration detention centre in October 2008 as a threat to national security. He claimed asylum, but this was dismissed and a deportation order was issued in February 2011.

The applicant lodged a first application with the Court in January 2008 (application no. 3727/08). In February 2012 it found that he faced a violation of his rights under Article 3 (prohibition of torture) if he were to be deported to Syria and that his detention between October 2008 and the end of January 2011 had violated Article 5 § 1 (right to liberty and security) as there had been no deportation order.

The authorities issued a new deportation order in March 2012 and proceeded over the following years to extend his detention on national security grounds.

In the meantime, the authorities tried to find a safe third country to deport him to, but many countries in Europe and the Middle East refused to accept him. In February 2016 he was released subject to restrictions, such as a ban on leaving his area of residence and having to report to the police. 

The Court found in particular that from August 2014 it should have been obvious to the authorities that no country was willing to admit the applicant, who had been classed as a national security risk. He had not been released until February 2016 as the search for a country to accept him had continued. There had therefore been a violation of his rights under Article 5 § 1 (f) for the period from August 2014 to 17 February 2016, but no violation for 9 July 2012 to 21 March 2013 and 14 March 2014 to August 2014.

Mr Al Husin alleged that he had not been able to challenge the lawfulness of his detention because he had not had access to evidence related to national security issues.

The Court found that Mr Al Husin had been given access to evidence that had been classified as open evidence, had had legal representation, and had benefited from reviews in the State Court, the Appeals Chamber of the State Court and the Constitutional Court. Furthermore, some of the allegations against him had been quite specific, allowing him to challenge them. Overall he had been given a reasonable opportunity to present his case and there had been no violation of Article 5 § 4 of the Convention.

References from the official website of the European Court of Human Rights