Ilias and Ahmed v. Hungary (Appl. no. 47287/15) - Third Party Intervention: DCR, ECRE and ICJ - before the Grand Chamber

(...)

The interveners share the conclusions of the Chamber that in order to comply with non-refoulement obligations under the Convention the authorities of the transferring Contracting Party must conduct a real and effective investigation of the conditions of refugees in the destination countries, including proprio motu. Schematic reliance on a national law considering a particular third country safe can never be sufficient and is capable of breaching the obligations under the Convention particularly without an individualised and diligent assessment of all the facts and circumstances of a particular case, including when these were known or ought to have been known by the authorities, or when publicly available information from reputable sources suggests otherwise. 

(...)

The interveners submit that disregarding country reports and other evidence submitted by applicants and imposing an unfair and excessive burden of proof on individuals concerned; lack of interpretation in a language applicants understand; lack of access to clear information provided with due regard to vulnerabilities and educational level; lack of access to a lawyer; and lack of access to effective remedy with a jurisdiction of ex nunc examination of the case, all render access to rights under Articles 3 and 13 of the Convention ineffective, theoretical and illusory.
 
(...)
 
The interveners submit that a return that exposes applicants to the risk of refoulement, and deprives them of rights guaranteed by international law, including full access to rights under the Refugee Convention (Articles 2 – 34) and procedural guarantees violates Contracting States’ international obligations regardless of whether the third country is listed as a ‘safe third country’.
 
(...)
 
The interveners submit that an EU Charter compliant interpretation of the STC concept under EU law requires that guarantees must be provided in each individual case that the applicant will be treated in accordance with the following principles in the safe third country concerned: (1) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (2) there is no risk of serious harm as defined in Directive 2011/95/EU, (3) the principle of non-refoulement in accordance with the Refugee Convention and international human rights law is respected; (4) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention, meaning ratification and observance in practice of the 1951 Convention and the 1967 Protocol, and (5) there is access to effective remedy within the meaning of Article 47 CFR.
 
(...)
 
In light of the obligations of EU Member States under EU law, including the recast Reception Conditions Directive, and Article 53 ECHR, the interveners submit that detention of asylum seekers falling within the scope of that Directive will be unlawful and arbitrary where it fails to make clear and accessible legislative provision for the permissible grounds of detention, or for procedural protections for detainees, including judicial review and access to legal advice. Detention will be arbitrary where it is not a measure of last resort, but is imposed without consideration of less onerous alternative measures.

 

Resource category: 
International Commission of Jurists,
NGO,
Documentation
Resource country: 
Hungary
Keywords: 
Freedom of movement (right to),
Reception conditions,
Detention,
Legal assistance / Legal representation / Legal aid,
Individual assessment,
Effective remedy (right to),
Safe third country
Resource date: 
10-01-2018