The expulsion of asylum seekers to a designated safe third country, without the necessary scrutiny, violated the procedural aspect of Article 3 of the ECHR. Their stay in a border area was not a deprivation of liberty.

JUDGMENT

(GRAND CHMABER)

Ilias and Ahmed v. Hungary 21.11.2019 (no. 47287/15)

see here

SUMMARY

Asylum application, refoulement and safe third country.

The applicants applied for asylum in Hungary, remaining in the period of examination of their applications in a transit zone at the Hungarian-Serbian border. The applications were rejected on the ground that the State responsible for examining the claim was considered Serbia, which has been designated as a Safe Third Country, and the applicants were subsequently expelled. They complained about detention conditions in the transit zone and their return to Serbia.

Article 3

The Court found that the Hungarian authorities contributed to the dangers faced by the applicants by forcing them to return to Serbia illegally without any guarantees from the Serbian authorities, and held by a majority that Hungary failed to comply with its procedural requirements  the risks which the applicants would have faced in violation of Article 3 prior to their deportation to Serbia, thereby breaching this provision of the Convention.

On the contrary, they found no breach of Article 3 as regards the conditions of detention in the transit area because Hungary had provided them with the necessary security guarantees required by the Convention.

Articles 5 par. 1 and 4

The Court noted that the applicants had entered the transit zone on their own initiative to seek asylum in Hungary and did not face an immediate threat to their lives or their health in Serbia that would force them to leave the country.

As regards the actual restrictions they faced in the transit area, the Court concluded that their freedom of movement was not unnecessarily restricted or for reasons not related to their asylum applications.

With regard to their return to Serbia, the court found that their fears of degrading treatment under Article 3 could not be included in Article 5 because the concept of personal freedom would extend beyond the meaning of the Convention and concluded that had been deprived of their liberty by rejecting their complaint under Article 5 as inadmissible

PROVISIONS

Article 3

Article 5§1 and 4

PRINCIPAL FACTS

The applicants, Ilias Ilias and Ali Ahmed, are Bangladeshi nationals who were born in 1983 and 1980.
The applicants arrived in Hungary on 15 September 2015 after transiting through various countries,
including Serbia. They immediately applied for asylum in Hungary and for the next 23 days stayed in
the Röszke transit zone, which is on Hungarian territory next to Serbia; they could not leave for
Hungary as the zone had a fence and was guarded.

Their applications for asylum were rejected and in October 2015 their expulsion was ordered. The
removal decision referred to a Government Decree introduced in 2015 listing Serbia – the last
country through which the applicants had transited – as a safe third country.

The asylum authorities found in particular that the applicants had not referred to any pressing
individual circumstances to substantiate their assertion that Serbia was not a safe country for them.
The domestic court upheld this decision, which was served on the applicants on 8 October 2015. They were immediately escorted to the Serbian border, leaving the transit zone without physical coercion.

THE DECISION OF THE COURT…

The Court first held that the applicants’ complaint under Article 13 in conjunction with Article 3
about an alleged lack of remedies for the issue of the living conditions in the border zone had to be
declared as inadmissible after being submitted outside the six-month time-limit.

Article 3

Expulsion to Serbia

The Court found that it was not called on to examine the substance of the applicants’ asylum
application in Hungary – that they faced ill-treatment in Bangladesh – as it was not its job to act as a
first-instance court where a defendant State had opted not to deal with an asylum request itself but
had relied on the safe country principle to expel someone to another country.

The Court thus had to look at whether the Hungarian authorities had fulfilled their procedural duty
under Article 3 to assess properly the conditions for asylum-seekers in Serbia. That included access
to effective asylum procedures and the risk of chain-refoulement to Greece, where the conditions in
refugee camps had already been found to be in violation of Article 3.

It noted that Hungary had begun to classify Serbia as a safe third country from July 2015. The
Hungarian Government had appeared to confirm in its submissions to the Grand Chamber that the
change in classification had been due to the fact that Serbia was bound by international
conventions; that as a European Union entry candidate it had been aided to improve its asylum
system; and that there had been an unprecedented wave of migration at the time and measures had
had to be taken. However, the Government had not provided any evidence that its authorities had
examined the risk of a lack of effective access to asylum proceedings or the risk of refoulement.

As to the applicants’ individual circumstances, the Court noted that the authorities had had access to
reports on conditions in Serbia, particularly those produced by the UNHCR. However, the authorities
had not given sufficient weight to concerns in such reports, such as people being denied access to
asylum procedures in Serbia, being summarily removed and eventually arriving in Greece.
The Hungarian authorities had contributed to the risks faced by the applicants by inducing them to
return to Serbia in an illegal manner without obtaining any guarantees from the Serbian authorities.
The Court thus found that Hungary had failed to comply with its procedural obligation to assess the
risk of the applicants facing treatment contrary to Article 3 before removing them to Serbia and
there had been a violation of that provision of the Convention.

Given its conclusion of a violation of Article 3 in relation to the procedures for the applicants’
expulsion, the Court did not consider it necessary to carry out a separate examination of their
related complaint on domestic remedies under Article 13 in conjunction with Article 3.

Conditions in the transit zone

The Grand Chamber, endorsing the Chamber’s findings, held that the living conditions in the zone,
the length of the applicants’ stay there, and the possibilities for human contact with other
asylum-seekers, UNHCR representatives, NGOs and a lawyer, meant that their situation had not
reached the minimum level of severity necessary to be considered as inhuman treatment within the
meaning of Article 3. There had therefore been no violation of that provision.

Article 5 §§ 1 and 4

The key issue was whether there had been de facto deprivation of liberty, even if the Hungarian
authorities did not consider that the applicants had been detained in the transit zone.

The Court also observed that this was apparently the first time that it had had to deal with a case of
a land border transit zone between two States who were members of the Council of Europe and
where asylum-seekers had to stay during the examination of their asylum claims.

The Court took account of the following factors: the applicants’ individual situation and choices; the
applicable legal regime and its purpose; the duration of the measure and procedural protection; and
the nature and degree of the actual restrictions involved.

On the first point, the Court noted that the applicants had entered the transit zone on their own
initiative in order to seek asylum in Hungary and had not faced an immediate threat to their life or
health in Serbia which had forced them to leave that country.

Considering the legal regime, the Court observed that the transit zone’s express purpose was to
serve as a waiting area while asylum applications were processed and that the applicants had had to
wait there pending the completion of their appeal. Having to wait for a short time during such a
process could not be considered deprivation of liberty.

The domestic law also had procedural guarantees on waiting times, which had been applied in the
applicants’ case. It had taken 23 days to examine their claims, at a time of a mass influx of
asylum-seekers and migrants, and the Court found that the applicants’ situation had not been
influenced by any official inaction or by actions that had not been linked to their asylum claims.
As to the actual restrictions which the applicants had faced in the transit zone, the Court concluded
that their freedom of movement had been restricted to a very significant degree given the small
area of the zone and the fact that it was heavily guarded. However, it had not been restricted
unnecessarily or for reasons unconnected with their asylum applications.

The remaining question was whether the applicants had been able to leave the zone for any other
country than Hungary.

The Court first noted that other people in similar situations had returned to Serbia from the transit
zone. A further significant consideration was that, in contrast to people confined to an airport transit
zone, people in a land border zone, like the applicants, did not have to board an aeroplane to return
to the country whence they had come. Serbia was adjacent to the Röszke zone and the possibility for
the applicants to leave for that country had thus not only been theoretical but realistic.

The Court reiterated its findings in Amuur v. France that asylum-seekers being able voluntarily to
leave a country where they had wished to take refuge did not exclude a restriction on liberty.

However, it distinguished that case from Mr Ilias’s and Mr Ahmed’s as the applicants in Amuur had
been confined to an airport transit zone which they had not been able to leave of their own volition
and would have had to return to Syria, which was not bound by the Geneva Convention Relating to
the Status of Refugees. Serbia was bound by that Convention and Mr Ilias and Mr Ahmed had had
the real possibility of being able to return there of their own will.

The Court noted the applicants’ fears, as set down under Article 3, of a lack of access to asylum
procedures in Serbia and of further removal to other countries. However, it found that such fears
could not make Article 5 applicable to their case, where all the other circumstances pointed to it not
being applicable and with the circumstances being different from airport transit zone cases. Such an
interpretation of the applicability of Article 5 would stretch the concept of deprivation of liberty
beyond its meaning intended by the Convention.

The Court found that where all other relevant factors did not point to de facto deprivation of liberty,
and where asylum-seekers could return to a third country without danger to their life or health, then
a lack of compliance with a State’s duties under Article 3 could not be called on to make Article 5
applicable to a situation in a land border zone where people were waiting for an asylum decision.
The Convention could not be read as linking in such a manner the applicability of Article 5 to a
separate issue concerning the authorities’ compliance with Article 3.

That was the case even if the applicants had risked losing the right to have their asylum claims
considered in Hungary if they returned to Serbia. That factor, along with their other fears, had not
made the possibility of leaving the transit zone in the direction of Serbia merely theoretical. It
therefore had not had the effect of making their stay in the transit zone involuntary from the
standpoint of Article 5 and could not by itself trigger the applicability of that provision.

The Court concluded that the applicants had not been deprived of their liberty within the meaning of
Article 5, which therefore did not apply to their case and their complaint under this provision had to
be rejected as inadmissible.

Just satisfaction (Article 41)

The Court held by 16 votes to one that Hungary was to pay the applicants 5,000 euros (EUR) each in
respect of non-pecuniary damage. It held unanimously that Hungary was to pay the applicants EUR
18,000 jointly in respect of all costs and expenses.

Separate opinion

Judge Bianku, joined by Judge Vučinić, expressed a partly dissenting opinion which is annexed to the
judgment(echrcaselaw.com).


ECHRCaseLaw

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