Information Note on the Court’s case-law No. 136
December 2010
Jusic v. Switzerland - 4691/06
Judgment 2.12.2010 [Section I]
Article 5
Article 5-1
Procedure prescribed by law
Failure to adhere strictly to domestic-law rules governing detention with a view to deportation: violation
Facts – The applicant is a national of Bosnia and Herzegovina who lives in Switzerland. His application for asylum in that country was turned down. He was detained for twenty-two days with a view to his deportation, but was not deported.
Law – Article 5 § 1: The applicant’s asylum application had been turned down but the order for his and his family’s deportation had not been enforced. Following the deportation order of May 2005 the applicant could not have been unaware that he had to leave the country with his family and that if they did not leave of their own accord they would be removed, if necessary by force. Hence, the case fell within the scope of the second part of Article 5 § 1 (f), since action was “being taken” with a view to the deportation of the applicant and his family when he was placed in detention in August 2005. In the Cantonal Court’s view, the fact that the applicant had clearly and repeatedly signalled his intention not to return to his country of origin, and that his wife had refused to sign a document acknowledging receipt of a flight plan for a flight in August 2005, were significant indications that the applicant intended to evade enforcement of the removal order. The Court did not share this view and considered that the manner in which the national authorities had applied the domestic law in the instant case had been incompatible with the requirement for Article 5 to be construed strictly. While it was true that an enforceable deportation order had existed, the applicant had provided his particulars and those of his wife on their arrival in Switzerland, had submitted his identity card and had kept all his appointments with the Cantonal Population Office. He had four dependent children, all of them minors, and his wife suffered from a psychological disorder. Hence, there had been no “real evidence” to suggest that the applicant planned to “evade return”, although the law required such evidence before the person concerned could be detained. In particular, the fact that the applicant had repeatedly stated that he would not leave Switzerland could not be construed as an intention on his part to “evade” enforcement of the deportation order. Hence, the competent domestic authorities had not complied with the criteria laid down by the relevant section of the former Federal Aliens’ Domicile and Residence Act. The applicant had therefore not been detained in accordance with a procedure prescribed by law.
Conclusion: violation (unanimously).
The Court further held unanimously that there had been no violation of Article 5 § 5, as the applicant’s right to compensation for the breach of Article 5 § 1 had been guaranteed with sufficient certainty.
Article 41: EUR 10,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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