ECtHR - Ilias and Ahmed v. Hungary, Application No. 47287/15, 14 March 2017

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Country of Applicant: 
Bangladesh
Date of Decision: 
14-03-2017
Citation: 
European Court Of Human Rights, Ilias and Ahmed v. Hungary, Application No. 47287/15, 14 March 2017
Court Name: 
European Court Of Human Rights - Fourth Section
Relevant Legislative Provisions: 
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.1 > Art 5.1 (f)
Headnote: 

The procedure applied by the Hungarian authorities in considering Serbia a ‘Safe Third Country’ was not appropriate to provide the necessary protection against a real risk of inhuman and degrading treatment. The schematic reference to the Hungarian Government’s list of safe third countries and disregard of country reports by reputable international organisations imposed an unfair and excessive burden of proof on the applicants, breaching the effective procedural guarantees provided for in Article 3 and subjecting them to inhuman or degrading treatment due to a possible “chain-refoulement” to Greece.

The applicants’ confinement for more than three weeks in a guarded compound (Röszke transit zone) which could not be accessed from the outside amounted to a de facto deprivation of their liberty. The detention did not have a precise legal basis, which made it impossible for the applicants to initiate a proceeding contesting the lawfulness of the detention. 

Facts: 

The case concerned two Bangladeshi nationals who transited through Greece, the former Yugoslav Republic of Macedonia and Serbia before reaching Hungary and the Röszke transit zone where they immediately applied for asylum and were held for 23 days. During the asylum interview by the Hungarian asylum authority one of the applicants was provided interpretation and legal information in Dari, a language which he did not speak. On the same day as the interview the applicants asylum claims were both rejected on grounds that Serbia was considered to be a ‘safe third country’ according to Government Decree no. 191/2015. After a successful appeal to the Szeged Administrative and Labour Court the asylum authority again rejected the asylum applications of both individuals, decisions which were later upheld in judicial review proceedings. The applicants were subsequently escorted to the Serbian border by Hungarian officers and entered Serbian territory.

The applicants complained that their detention conditions at the transit zone violated their rights under Article 3, Article 5 (1) and (4), and Article 13, and that their expulsion to Serbia had exposed them to possible “chain-refoulement” to Greece.

The domestic authorities held that the applicants had neither special needs that could not be met in the transit zone nor any particular individual circumstances indicating that Serbia would not be a safe third country for them. 

Decision & Reasoning: 

As a preliminary note the Court makes reference to the changes in the legislative landscape which the enactment of the Government Decree heralded in.  Whilst the Court was satisfied in Mohammadi v. Austria that Hungary did not automatically rely on the safe third country concept regarding Serbia and that no systematic deficiencies in the Hungarian asylum system existed at the time, the adoption of the Governmental Decree meant that the presumption of Serbia’s safety is now automatic.

With regards to Article 5 ECHR the Court reiterated its well-versed case law on the notion of a deprivation of liberty and the safeguards for the person concerned. Most notably the Court highlights that the applicants were kept in a border zone, which resembled an international zone under the State’s effective control, without the applicants consent. Ruling out the Government’s submissions with regards to voluntary exit from the zone, the Court highlighted that this did not exclude a potential infringement of their right to liberty. Moreover, any re-entry to Serbia, which was not consented to by the Serbian authorities, would lead to a forfeiture of the applicants’ asylum claims and a risk of refoulement. Therefore, the applicants’ confinement constituted a de facto deprivation of liberty under Article 5(1).

Considering that the only permissible ground to justify the applicants detention was Article 5(1)(f) the Court notes that the requirement of detention being ‘lawful’ refers not only to national law, but international law as well as European Union law. Moreover the requirement of non-arbitrariness entails consideration, amongst other aspects, of the individual’s profile, namely that the person has not committed a criminal offence and is instead fleeing their country out of fear for their lives. The Court takes note of the Asylum Procedures Directive and that Member States should not hold a person in detention for the sole reason that he or she is an applicant for protection.  The Court finds that the domestic legislation on which the applicants’ detention was based upon to be insufficiently precise and unforeseeable. The ‘elastic interpretation’ of the national legislation meant that asylum applicants were not aware that they were liable to being detained in the transit zone. Moreover, no detention decision was in fact issued to the applicants. Coupled together the Court found the Hungarian practice towards the applicants to be incompatible with the principle of arbitrariness as specified in Article 5(1) and thus unlawful.

With regards to Article 5(4), the Court relied on its finding on Article 5(1), namely that there had been no formal proceedings or a decision provided on the applicants’ detention and that the judicial review undertaken by the Labour Court related to their asylum applications rather than the question of personal liberty. The Court therefore found a violation of 5(4).

Turning to the question of Article 3 in respect of the conditions in the Röszke transit zone the Court referred to the “general principles” applicable to treatment of migrants in detention in Khlaifia and Others. Whilst reiterating that “an influx of migrants cannot absolve a State of its obligations under Article 3,” the Court cannot completely detach its reasoning from the difficulties confronting authorities at specific times. Relying on a CPT report which followed their visit to Röszke at the end of October and which highlighted that sanitary facilities, medical services, food and outdoor space were all provided to the applicants, the Court goes onto note that the applicants, although vulnerable due to their status as asylum seekers, were not more vulnerable than any other adult asylum seeker detained at that time. Thus, whilst the conditions may have contributed to a feeling of inferiority “there is an inevitable element of suffering and humiliation involved in custodial measures” which does not in itself entail a breach of Article 3. The Court, however, does find a violation of Article 13 in conjunction with Article 3 concerning the conditions in the transit zone since the complaints raised by the applicants concerning Article 3, whilst not found to be breached, were nonetheless not manifestly ill-founded . The complaints were arguable and thus the applicants should have had access to an effective remedy, which was, in fact, entirely absent for the applicants.

The Court lastly turns to whether the applicants’ expulsion to Serbia exposed them to a real risk of chain refoulement, amounting to a breach of Article 3. The Court focuses in on the effective guarantees protecting applicants against arbitrary refoulement. Indeed, assessments undertaken by States must be adequate and sufficiently supported by various domestic and international materials. Reiterating the rationae in F.G. v. Sweden the Court highlights that States are to assess a risk of Article 3 of their own motion where such a risk is “freely ascertainable from a wide number of sources.” Moreover, the Court states that the lack of access to information constitutes a substantial hurdle in accessing asylum procedures and substantiating their complaints.

Applying these principles to the case at hand the Court notes that the Governmental Decree of 2015 has reversed the burden of proof concerning the safety of Serbia to the applicants’ detriment since they must prove a real Article 3 risk in a chain-refoulement situation to Serbia, FYROM and Greece. Whilst it is incumbent on the Hungarian authorities to undertake an F.G. v Sweden type assessment, the Hungarian authorities relied solely on the Governmental Decree when rejecting the applicants’ claims. According to the Court this is highly disconcerting since the abrupt change of position regarding Serbia’s safety did not appear to be based on any concrete information as to the improvement of procedural and substantive guarantees for asylum seekers in Serbia. Indeed, reports from UNHCR showed quite the opposite. The Hungarian authorities did not examine any risks associated with the applicants’ expulsion to Serbia and the possibility of them being subsequently refouled to Greece, where conditions in the country at that time were not conducive to the resumption of Dublin transfers.

Additionally, the active participation of the applicants in the proceedings were extremely limited given the provision of erroneous interpretation and the fact that both were illiterate. In light of the lack of information on the procedure, the complete denial of any form of communication with the lawyers, and the decision rejecting the applicants’ claims being given to the applicants’ lawyers two months after the decision had actually been taken and two months after the applicants had left the territory, the Court finds that the applicants did not benefit from the effective guarantees as required by Article 3.  

Outcome: 

The Court finds a violation of Articles 5(1), 5(4), 13 read in conjunction with 3 on the conditions in Röszke transit zone and Article 3 with regards to the applicants' expulsion to Serbia.

Case Law Cited: 

ECtHR - Waite and Kennedy v. Germany [GC], Application No. 26083/94

ECtHR - Muminov v. Russia, Application No. 42502/06

ECtHR - Takush c. Greece, Application No. 2853/09

Nizomkhon Dzhurayev v. Russia, (no. 31890/11)

ECtHR - Stanev v. Bulgaria [GC], Application No. 36760/06

ECtHR - Guzzardi v. Italy, Application No. 7367/76

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99

ECtHR - Medvedyev and Others v France, [GC], Application No. 3394/03

ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03

ECtHR - Creanga v. Romania [GC], Application No. 29226/03

ECtHR - Austin and Others v. the United Kingdom [GC], Application Nos. 39692/09, 40713/09 and 41008/09

ECtHR- Shamsa v Poland, Application no. 45355/99

ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10

ECtHR - Belevitskiy v. Russia, no. 72967/01, 1 March 2007

ECtHR - Nakhmanovich v. Russia, no. 55669/00, 2 March 2006

ECtHR - Stašaitis v. Lithuania, no. 47679/99, 21 March 2002

ECtHR - Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 20112007‑I

ECtHR - Mooren v. Germany[GC], no 11364/03 9 July 2009

ECtHR - Khlaifia and Others v. Italy ([GC], no. 16483/12,15 December 2016

ECtHR - Murray v. the Netherlands [GC], no. 10511/10, ECHR 2016

ECtHR - Arat v. Turkey, no. 10309/03,10 November 2009

ECtHR - Mahamed Jama v. Malta, no. 10290/13 26 November 2015

ECtHR - Rohlena v. the Czech Republic [GC], no. 59552/08, ECHR 2015

ECtHR - Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01

ECtHR - Mogoş v. Romania ((dec.), no. 20420/02, 6 May 2004)

ECtHR - De Tommaso v. Italy [GC], no. 43395/09, 23 February 2017

ECtHR - H.L. v. the United Kingdom, no.45508/99, ECHR 2004 IX

ECtHR - H.M. v. Switzerland, no. 39187/98, ECHR 2002 II

ECtHR - O.M. v. Hungary, no. 9912/15, 5 July 2016

ECtHR - Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005‑I
Attachment(s): 
Other sources cited: 

Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 21 to 27 October 2015

UNHCR, Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016, May 2016

ECRE, Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary, 1 October 2015

ECRE, Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary, January 2016

UNHCR, Serbia As a Country of Asylum; Observations on the Situation of Asylum-Seekers and Beneficiaries of International Protection in Serbia, August 2012

ECRE, AIDA, Country Report: Serbia, 31 December 2016

UNHCR, The former Yugoslav Republic of Macedonia As a Country of Asylum, August 2015

European Commission’s Recommendation of 8.12.2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013

Authentic Language: 
English
State Party: 
Hungary
National / Other Legislative Provisions: 
Hungary - Act no. LXXX of 2007 on Asylum
Hungary - Act no. LXXX of 2007 on Asylum Section 2
Hungary - Act no. LXXX of 2007 on Asylum Section 5
Hungary - Act no. LXXX of 2007 on Asylum Section 31/A
Hungary - Act no. LXXX of 2007 on Asylum Section 45
Hungary - Act no. LXXX of 2007 on Asylum Section 51
Hungary - Act no. LXXX of 2007 on Asylum Section 66
Hungary - Act no. LXXX of 2007 on Asylum Section 71/A
Hungary - Act no. LXXX of 2007 on Asylum Section 51-52
Hungary - Act no. LXXX of 2007 on Asylum Section 3
Hungary - Government Decree no. 191/2015