ECtHR - Ilias and Ahmed v. Hungary (no. 47287/15) [Articles 3 and 5 §§ 1 and 4], 14 March 2017

Tuesday, March 14, 2017

On 14 March 2017, the European Court of Human Rights gave its judgment in case Ilias and Ahmed v. Hungary (no. 47287/15). The case concerned two Bangladeshi nationals who transited through Greece, the former Yugoslav Republic of Macedonia and Serbia before reaching Hungary, where they immediately applied for asylum and were held in a transit zone for 23 days. They were then sent back to Serbia based on a 2015 Government Decree listing Serbia as a “safe third country”. The domestic authorities also 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. 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.
Regarding Article 5 §§ 1 and 4, the ECtHR ruled that the applicants’ confinement for more than three weeks in a guarded compound which could not be accessed from the outside (even by their lawyer), had amounted to a de facto deprivation of their liberty. It dismissed the government’s argument that the applicants could voluntarily leave the zone in the direction of Serbia, as this could potentially be used against their asylum claims and could amount to refoulement. Furthermore, the Court held that the detention did not have a precise legal basis, which made impossible for the applicants to initiate a proceeding contesting the lawfulness of the detention.
Despite considering that the conditions of detention were “acceptable” and had not reached the level of severity necessary to constitute a violation under Article 3, the ECtHR found a violation of Article 13 in conjunction with Article 3 since there was no remedy by which the applicants could have complained about the detention conditions.
The Court found that the procedure applied by the Hungarian authorities was not appropriate to provide the necessary protection against a real risk of inhuman and degrading treatment. Notably, they relied on a schematic reference to the Government’s list of safe third countries, disregarded the country reports by reputable international organisations and other evidence submitted by the applicants and imposed an unfair and excessive burden of proof on them. Therefore, the Court found a breach of Article 3 due to the lack of effective guarantees to protect the applicants from a risk of being subjected to inhuman or degrading treatment due to a possible “chain-refoulement” to Greece.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Accelerated procedure
Effective access to procedures
Effective remedy (right to)
Inhuman or degrading treatment or punishment
Safe third country