ECtHR - Ilias and Ahmed v. Hungary, Application No. 47287/15, 21 November 2019

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Country of Applicant: 
Bangladesh
Date of Decision: 
21-11-2019
Citation: 
European Court Of Human Rights, Ilias and Ahmed v. Hungary, Application No. 47287/15, 21 November 2019
Court Name: 
European Court of Human Rights (Grand Chamber)
Relevant Legislative Provisions: 
Headnote: 

When State Parties do not examine an application for international protection in its mertis based on a safe third country clause, Article 3 still requires that they apply a thorough and comprehensive legal procedure to assess the existence of such risk by looking into updated sources regarding the situation in the receiving third country. Hungary violated Article 3 by failing to conduct an efficient and adequate assessment when applying the safe third country clause for Serbia.

Article 5 cannot be considered as ratione materiae applicable to the Röszke transit zone; the applicants' stay there involved a short waiting time in order for Hungary to verify their right to enter, they had entered on their own initiative and they were free to leave the area in the direction of Serbia. The conditions in the transit zone were not found to breach Article 3 because of the restrictive measure's short duration, the possibility for human contact and the applicants' awareness of the procedure.

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 European Court of Human Rights (Fourth Section) delivered its judgment on 14 March 2017 finding that 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 and that the applicants’ confinement for more than three weeks in a guarded compound (Röszke transit zone) amounted to a de facto deprivation of their liberty that they could not contest. On 18 September 2017, the case was referred to the Grand Chamber.

Decision & Reasoning: 

Admissibility

Preliminary objections by the Hungarian Government

The Court first assessed the respondent government’s preliminary objections regarding the admissibility of the complaint under Article 3 in conjunction with Article 3, regarding the living conditions in the transit zone, the applicants’ victim status and the role of EU law.

Despite a brief mention of the fact that Hungarian law does not provide for a procedure to challenge the lawfulness of the detention, the living conditions or the limits of the measure’s duration, the Court found that this was not a standalone reference to an A3+A13 complaint and was too ambiguous to be considered as actually raising a complaint that would interrupt the 6-month time limit (paras. 83-86).

On the applicants’ victim status, the government claimed that there was no real risk of ill-treatment in the event of removal to Serbia – a claim that, according to the Court, concerns the substance of their complaint under Article 3 and not the victim status of Article 34 of the Convention, which is present as long as there was a binding and enforceable expulsion decision (paras. 92-93). The objection was dismissed.

Lastly, the Hungarian government argued that they had acted in accordance with EU law and the Court’s competence should be considered as limited. The Court dismissed this claim and found that Hungary was fully responsible under the Convention, since the Hungarian authorities were exercising discretion under EU law and the contested measures did not fall under the country’s international obligations (para. 97).

Merits

Article 3 (removal to Serbia)

On this claim, the Grand Chamber concurred with the Chamber judgment that the Hungarian authorities did not act in compliance with their duty to safely assess the applicants’ risk of inhuman and degrading treatment in the event of return to Serbia, or by further refoulement to Greece.

The government argued that the inclusion of Serbia in a list of safe third countries was based on a possibility offered by EU law and that there was no evidence regarding Serbia’s non-respect of refugee law and the principle of non-refoulement. Moreover, the applicants had only made general remarks without invoking specific risks regarding their return.

The Court first referred to its general principles in expulsion cases (paras. 124-127) and assessed the duty of countries upon removal of an applicant without an examination of the application on its merits. Referring to the possibility under EU law to examine applications solely on their admissibility, the Court added that it is the duty of the removing State to assess the real risk the applicant would face in the receiving third country. If safety is not guaranteed, Article 3 entails a duty not to remove the individual concerned to that third country (para. 134). When an application is not examined in its merits, it cannot be known that an Article 3 risk exists, unless a thorough and comprehensive legal procedure to assess the existence of such risk takes place, including an up-to-date ex officio assessment of the adequacy of the receiving state’s asylum system (paras. 137-141).

The Grand Chamber went on to examine whether the assessment made by Hungary was adequate and sufficiently supported by domestic documents and other reliable and objective sources (para. 150). In assessing Hungary’s compliance with the procedural aspects of Article 3 in the present case, the judges noted the creation of a safe third country list and considered that the Convention did not necessarily prohibit such lists. Any such presumption, however, should be accompanied by an analysis of the relevant conditions in the country and of its asylum system but Hungary did not provide any documents to demonstrate that the inclusion of Serbia in the safe third country list was made following a thorough assessment of the situation there (paras. 152-154).

Despite the large numbers of migrants arriving in Hungary in 2015, the absolute nature of Article 3 entailed a duty to adequately assess the safety of the third country (para. 155). However, the Hungarian authorities did not take into account available and reliable information regarding the risk of refoulement from Serbia, administrative deficiencies to assess asylum claims, or denials of the right to apply for asylum for readmitted persons. Any passing references in domestic proceedings or the applicants’ opportunity to raise these concerns does not mean that a thorough examination was conducted (paras. 159-160). The Court found a violation of Article 3 in respect of this complaint. It did not consider it necessary to examine the complaint under Article 3 in conjunction with Article 13, given that a violation of Article 3 had been found.

Article 3 – conditions in the transit zone

The Grand Chamber agreed with the conclusions of the Chamber that the conditions in the transit zone did not amount to inhuman or degrading treatment, as the hygiene, food and medical care were sufficiently decent (paras. 189-190).

It went on to examine whether there were any individual vulnerabilities that would have made these conditions incompatible with Article 3. Although asylum seekers are considered to be a vulnerable group due to their past experiences, there is no evidence to support that the applicants were more vulnerable than any other adult detained in the transit zone. Taking into account that the applicants were aware of the procedural steps to be followed, that their stay was short and there was a possibility for human contact, the Court found that the conditions in the transit zone did not reach the Article 3 threshold (paras. 192-194).

Violation of Article 5 (1) and (4)

The Grand Chamber examined the applicability of Article 5 on the applicant’s confinement to the transit zone, as a result of a potential de facto deprivation of liberty. On this part of the complaint, the Grand Chamber dissented from the findings of the Chamber judgment in 2017.

After referring to the relevant principles and mutatis mutandis applicable case law on reception centres and airport transit zones, the Court considered that in examining the space between restriction of movement and deprivation of liberty in the context of asylum, “its approach should be practical and realistic, having regard to the present-day conditions and challenges” (para. 213). The Court noted that the applicant entered the transit zone of their own initiative aiming to apply for asylum and, although this alone does not preclude Article 5 protection, the lack of a prior link with Hungary – and of an obligation that they had acquiesced to – does play a role in the assessment of the situation. In any case, they did not cross into the transit zone due to an immediate danger in Serbia and Hungary had a right to take all necessary measures to examine the applicants’ claims before deciding to admit them (paras. 217-222).

Moving on to the government’s actions during the confinement, the Court noted that a short amount of waiting time for the verification of the right to enter cannot constitute deprivation of liberty unless other factors are present (para. 225). The asylum applications had been considered quite rapidly and there was no additional action other than the ones that were necessary to verify the existence of a need for international protection in a very challenging situation of mass influx (paras. 227-230). Assessing the nature and degree of the restrictions under examination, the Court noted that the zone did involve a significant degree of restriction of movement but the conditions had not been found to be inhuman. Moreover, the measure was connected to the assessment of their applications without exceeding that very necessity (paras. 232-233).

Further looking into whether the applicants could leave the transit zone, the Court took note of its reasoning in Amuur v. France regarding the practical inability to leave towards a country that presents significant risks. It found, however, that in the present case the applicants would leave to enter Serbia, a country which observes the 1951 Geneva convention and where there was no direct threat to their lives (paras. 240-241). The Court referred to the link between rights under Article 3 and Article 5 of the Convention, in the sense that judicial scrutiny of detention is important for the identification of Article 3 situations, but it did not consider that such a connection could be applied in the present case (p. 245-248). Considering all the above, the Grand Chamber found that Article 5 is not applicable and went on to dismiss the complaint under this Article as inadmissible ratione materiae.

Outcome: 

Violation of Article 3 with regard to the applicants' removal to Serbia - unanimous

No violation of Article 3 with regard to the conditions in the border transit zone of Röszke - unanimous

Complaints uner Article 5 (1) and (4) inadmissible as incompatible ratione materiae - by majority

Observations/Comments: 

In a partly dissenting opinion, Judge Bianku (joined by Judge Vučinić) elaborated on his disagreement with the finding of inadmissibility in respect of Article 5. The opinion analyses each of the thee criteria that the majority took into account in order to assess the compatibility of the situation under examination with Article 5.

Starting with the issue of personal situation and choices of the applicants (paras 220-223), the judge did not consider that an asylum seeker can be said to have a choice over the situation under examination - on the contrary their situation is characterised by necessity and a need for protection. Moreover, the fact that the majority disapplied Article 5 considering that the applicants were free to exit the transit zone and go to Serbia was considered contradictory with the previous finding that Article 3 required a thorough examination of an Article 3 risk in Serbia. Secondly, in respect of the way the majority approached the applicable legal regime, the Judge added that it "turns the clock back many years on the interpretation of Article 5". The majority did not follow the Court's established case law which is not necessarily bound by the purpose of the measures and the general regime imposed by the authorities in order to assess whether there has been a deprivation of liberty. Similarly, the majority pointed to the short duration of the applicants' stay while in other cases it had applied Article 5 in situations of shorter stays. Lastly, the analysis of the procedural safeguards available to the applicants was flawed.

On the final point, regarding the nature and degree of the restrictions imposed on the applicants, the Judge considered the distinction drawn between applicants arriving at the land border, an airport or an island as artificial. He went on to cite the findings of the United Nations Working Group on Arbitrary Detention (UNWGAD), which clearly found the situation at the Rözske transit zone to constitute deprivation of liberty, and noted that the majority did not cite any factual evidence or expert reports to refute this finding.

Case Law Cited: 

ECtHR – Richard Roy Allan v UK, Application No. 48539/99

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

ECtHR - D.H. and Others v. the Czech Republic [GC], Application No. 57325/00

Kovačić and Others v. Slovenia, nos. 44574/98, 45133/98 and 48316/00, 3 October 2008;

ECtHR - Azinas v Cyprus, Application No. 56679/00

ECtHR - Kurić and Others v. Slovenia [GC], Application no. 26828/06, 31 May 2007

ECtHR - Pisano v Italy, Application No. 36732/97

ECtHR - Guerra and Others v. Italy, 116/1996/735/932

ECtHR - Nada v. Switzerland [GC], Application No. 10593/08

ECtHR - K. and T. v Finland [GC], Application No. 25702/94

ECtHR - Mahdid and Haddar v. Austria, Application No. 74762/01

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

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

ECtHR - I.I. v. Bulgaria, Application No. 44082/98

ECtHR - Osypenko v. Ukraine, Application No. 4634/04

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

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

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

ECtHR - Vijayanathan and Pusparajah v. France (nos.17550/90,17825/91), 27 August 1992

ECtHR - Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi (Bosphorus Airways) v. Ireland [GC], Application No. 45036/98

ECtHR - T.I. v United Kingdom (Application no. 43844/98)

ECtHR - Kurt v Turkey, Application no. 24276/94
Other sources cited: 
  • Council of Europe: Committee for the Prevention of Torture, 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, 3 November 2016, CPT/Inf (2016) 27
  • UN High Commissioner for Refugees (UNHCR), Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016, May 2016
  • European Council for Refugees and Exiles (ECRE), "Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary”, October 2015
  • European Council for Refugees and Exiles (ECRE), Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary, January 2016
  • Amnesty International, "Fenced Out, Hungarys Violations of the Rights of Refugees and Migrants", 2015
  • UNHCR, Serbia as a Country of Asylum: Observations on the Situation of Asylum-Seekers and Beneficiaries of International Protection in Serbia, August 2012
  • European Council for Refugees and Exiles (ECRE), AIDA 2016 Report: Serbia
  • Report by the Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees following the fact-finding mission of June 2017, (SG/Inf(2017)33) of 13 October 2017
  • Belgrade Centre for Human Rights, Right to Asylum in the Republic of Serbia, 2014
  • UNHCR, The former Yugoslav Republic of Macedonia As a Country of Asylum, August 2015
Authentic Language: 
English
State Party: 
Hungary
National / Other Legislative Provisions: 
Act no. LXXX of 2007 on Asylum (“the Asylum Act”)
Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals
Government Decree no. 191/2015. (VII. 21.) on the definition of safe countries of origin and safe third countries