Information Note on the Court’s case-law No. 81
December 2005
Mahdid and Haddar v. Austria (dec.) - 74762/01
Decision 8.12.2005 [Section III]
Article 5
Article 5-1
Deprivation of liberty
Refusal for asylum seekers to enter into Austria, and their subsequent stay in the transit zone of Vienna airport: inadmissible
The applicants, who are Algerian nationals, arrived at Vienna airport on a flight from Tunisia, and presented themselves to the airport and border police on 4 November 1996. They requested asylum claiming that they had fled Algeria for fear of political persecution, and that if they were returned to Tunisia they risked deportation to Algeria. The police, having regard to the fact that the applicants did not present any passports and did not arrive directly from the state where they feared persecution, refused them entry into Austria. The applicants were offered lodging in a special transit zone of the airport equipped with beds and where food was provided. They refused this and stayed in the regular transit zone of the airport. The authorities dismissed the request for asylum on 7 November 1996, noting that the applicants had come from Tunisia where they were safe from persecution. Pending their deportation to Tunisia, the applicants remained in the transit zone of the airport until 13 December 1996, when the Austrian authorities let them enter on humanitarian grounds. The applicants subsequently complained to the authorities that their stay in the transit zone and the attempts to deport them had been unlawful as they should have been allowed to enter Austria as asylum seekers who had come from a country where they feared persecution. They also complained that their stay in the transit zone was contrary to Articles 5(1) and 5(4) of the Convention, submitting that their situation following their rejection at the border control had amounted to an unlawful deprivation of liberty which they were unable to challenge effectively as the Austrian authorities had refused to acknowledge their stay in the transit zone as deprivation of liberty. They also complained that they had no possibility to obtain compensation.
Inadmissible under Article 5(1) – This case had to be differentiated from Amuur v. France, where the applicants had been detained for twenty days in the transit zone of Orly airport and where the Court had found such confinement contrary to Article 5, for a number of reasons. Firstly, the authorities in the instant case had considered the applicants’ asylum request within three days. The applicants had nevertheless decided to stay. Moreover, after having been refused entry to Austria and having declined an offer to lodge in a specially arranged zone, the applicants had been left to their own devices. They had been able to organise their daily life, correspond and enter into contact with third persons without interference from the authorities. Whilst they were in the transit zone they came into contact with a humanitarian organisation which provided them social and legal assistance. Hence, the Court could not follow the argument that their situation was in fact comparable with or equivalent to the situation of detained persons. Accordingly, it could not be said that during their stay in the transit zone of the airport the applicants had been “deprived of their liberty” within the meaning of this provision. Finally, the Court recalled the right of Contracting States under international law to control aliens’ entry into and residence in their territory, provided that this right was exercised in accordance with the provisions of the Convention: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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