Last Updated on October 13, 2023 by LawEuro
The cases concern the removal of two families (Yemeni and Afghan nationals respectively) from Hungary to Serbia after their apprehension at Budapest Airport, allegedly without an individual assessment of their situation. Having regard to the above, the Court therefore concludes that the respondent State failed to discharge its procedural obligation under Article 3 of the Convention to examine whether the applicants would have access to an adequate asylum procedure in Serbia, the country to which they were removed. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.
FIRST SECTION
CASE OF S.S. AND OTHERS v. HUNGARY
(Applications nos. 56417/19 and 44245/20)
JUDGMENT
Art 4 P4 • Prohibition of collective expulsion of aliens • Removal of two migrant families to external side of Hungarian border fence with Serbia amounting to expulsion • Applicants attempted to enter Hungary through an airport, an official border crossing point, and presented themselves to border officers • Immediate removal to a country applicants had not come from without examining their arguments and needs of applicant children who were particularly vulnerable • Collective nature of removal without applicants being afforded effective opportunity to submit arguments against removal
Art 3 (procedural) • Expulsion • Domestic authorities’ failure to examine applicants’ access to adequate asylum procedure in Serbia protecting them against refoulement
STRASBOURG
12 October 2023
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of S.S. and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Marko Bošnjak, President,
Alena Poláčková,
Krzysztof Wojtyczek,
Lətif Hüseynov,
Péter Paczolay,
Gilberto Felici,
Erik Wennerström, judges,
and Renata Degener, Section Registrar,
Having regard to:
the applications (nos. 56417/19 and 44245/20) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Yemeni nationals and three Afghan nationals respectively, on the various dates indicated in the appended table;
the decision to give notice to the Hungarian Government (“the Government”) of application no. 44245/20;
the decision to give notice to the Government of the complaints concerning Article 4 of Protocol No. 4 to the Convention, the procedural limb of Article 3 of the Convention and the alleged lack of an effective remedy under Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4, and the complaint submitted in application no. 44245/20 under Article 13 in conjunction with Article 3 of the Convention, and to declare the remainder of application no. 56417/19 inadmissible;
the decision not to have the applicants’ names disclosed;
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by the IDEAS Centre for Research and Social Development, which was granted leave to intervene by the President of the Section;
Having deliberated in private on 19 September 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The cases concern the removal of two families (Yemeni and Afghan nationals respectively) from Hungary to Serbia after their apprehension at Budapest Airport, allegedly without an individual assessment of their situation.
THE FACTS
2. The applicants’ details are set out in the appended table. They were represented by Mr G. Győző, a lawyer practising in Budapest.
3. The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice.
4. The facts of the cases may be summarised as follows.
I. APPLICATION No. 56417/19
5. The applicants are a mother (the first applicant), her five children (the third to seventh applicants), two of whom (the sixth and seventh applicants) were minors (14 and 11 years old respectively) at the time of the events in question, and one of their relatives (the second applicant). They arrived in Budapest Liszt Ferenc International Airport (hereinafter “Budapest Airport”) from Yemen on 21 April 2019, having travelled via Istanbul. They used counterfeit diplomatic travel documents at the border check, a fact which was discovered by the police and led to them being arrested.
6. On the same day the applicants were issued with decisions refusing their entry into Hungary and ordering their return to the country of departure, Turkey. Their return flight was scheduled for the next day. An Arabic interpreter who had been appointed explained the decision and the procedure to them. They were placed in a designated accommodation area of the airport, where their belongings were searched and their real passports were discovered. At that stage they had a conversation with an officer of the Airport Police, and they told him that they had fled Yemen because of the war. They also explained that the seventh applicant had Down syndrome and the fifth applicant had health problems which could not be treated in Yemen.
7. Criminal proceedings were initiated against the first applicant on the basis that she was suspected of having committed criminal offences related to the use of counterfeit diplomatic travel documents and people smuggling.
8. On 22 April 2019 the applicants made a request for asylum, orally and in writing. At that point the procedure to return them to Turkey on the scheduled flight was suspended. The applicants were handed a leaflet in Arabic indicating that they were to be escorted to a temporary border crossing and that they could submit their asylum application in the transit zone which could be accessed from Serbian territory.
9. Before being taken to the border with Serbia, the first applicant was questioned by officers of the criminal department of the Airport Police. She admitted that she had used counterfeit documents, but explained that this had been the only way that the applicants could reach a safe country. The third and fourth applicants were also questioned. According to the Government, the applicants were visited by an authorised adviser from the embassy of Yemen, and an interpreter and defence counsel were appointed to act for the first applicant.
10. On the same day, at around 9 p.m. the applicants were taken to an exit gate in the fence at the border with Serbia and handed over to the local (Hungarian) police in the early hours of 23 April. This measure appeared to be based on section 80/J(1) of the Asylum Act, which provided that an asylum request could be submitted in person only in the transit zone (see paragraph 21 below), and section 5(1b) of the State Border Act, which authorised the police to immediately remove aliens who were staying in the country unlawfully to the external side of the border fence with Serbia (see paragraph 22 below). The applicants were made to walk in the direction of Serbia at around 1.30 a.m. The police allegedly pointed guns at the applicants and dragged one of the minor applicants, as he refused to walk. That night the applicants found an abandoned building to sleep in, and later they were allegedly robbed by some smugglers.
11. A month after entering Serbia the applicants managed to lodge their asylum requests with the Serbian authorities, and they were accommodated in the Krnjača Asylum Centre in Belgrade. They were later granted refugee status in Austria.
12. According to an update of November 2022, on 17 May 2022 a first-instance court acquitted the first applicant of the charges related to the use of counterfeit travel documents and people smuggling (see paragraph 7 above) on the basis of, inter alia, Article 31 of the Refugee Convention (see paragraph 30 below); the proceedings are currently pending on appeal.
II. APPLICATION NO. 44245/20
13. The applicants are a mother (the eighth applicant) and two adult children (the ninth and tenth applicants). According to the applicants, they left Afghanistan owing to the bad security situation and their fear of persecution related to the ninth applicant’s involvement in an NGO which campaigned for the criminalisation of violence against women and forced marriages, among other things. They arrived at Budapest Airport on 20 December 2019, having travelled via Dubai. They used counterfeit travel documents at the border check, a fact which was discovered by the police and led to them being arrested.
14. Upon their arrest, the applicants immediately submitted a handwritten application for asylum, in English and Dari.
15. Criminal proceedings were initiated against the applicants on the basis that they were suspected of having committed a criminal offence related to the use of counterfeit travel documents. According to the Government, defence counsel and an interpreter were appointed to act for the applicants in the context of those proceedings. The eighth and ninth applicants were questioned. During the questioning they repeated their wish to apply for asylum and explained that their travel from Dubai had been arranged by a smuggler and that this had been their only way to seek international protection in Europe. They referred to the bad security situation in Afghanistan and the risk related to the ninth applicant’s activities (see paragraph 13 above). According to the applicants, with the assistance of a Farsi-speaking interpreter, the police told them that requesting asylum meant remaining in a closed camp for a long period, to which they agreed. They were given a document in Hungarian concerning their deportation, which they signed, upon the interpreter’s advice. Police reports noted that once the applicants had submitted the request for asylum, they were considered to be unlawfully staying in the territory of Hungary and were therefore subjected to the measure under section 5(1b) of the State Border Act (see paragraph 22 below).
16. After that, at around 2.30 p.m. on the same day (20 December 2019) they were transported to the border with Serbia on the basis of the same legislation which had been applied in relation to the first to seventh applicants (see paragraph 10 above). At around 5.40 p.m. they were handed over to the local police at the border fence. The applicants asked not to be deported and reiterated their wish to apply for asylum. At 5.50 p.m. they were ordered to walk through a gate in the border fence, in the direction of Serbia.
17. The applicants then walked for about one hour until they reached a hostel in Serbia, where they spent the night. They subsequently reported to the Serbian police, who referred them to the Vranje transit centre (in Serbia), where it was impossible to apply for asylum. Several months later they were transferred to the Šid transit centre (in Serbia), but they still had no access to an asylum procedure.
18. The applicants were granted refugee status in Germany, where they currently reside. Owing to the fact that the Hungarian authorities did not know of their whereabouts, the criminal proceedings against them were suspended on 17 December 2021.
RELEVANT LEGAL FRAMEWORK
I. DOMESTIC LAW
19. At the material time, section 40 of Act II of 2007 on the Entry and Stay of Third-Country Nationals read as follows:
“(1) The authority carrying out border checks shall refuse the entry of third-country nationals seeking admission for stays not exceeding ninety days, in accordance with the provisions of the Schengen Borders Code, and shall return such persons, in due observation of its interests:
(a) to the country of origin of the third-country national in question;
(b) to the country that is liable to accept the third-country national in question;
(c) to the country where the customary residence of the third-country national in question is located;
(d) to any third country prepared to accept the third-country national in question.
…
(3) The decision refusing entry may not be appealed against.”
20. As regards the concept of a safe third country, Law no. LXXX of 2007 on Asylum (“the Asylum Act”) provided, inter alia, as follows:
Section 51
“(1) If the conditions for the application of the Dublin Regulations are not present, the asylum authority shall decide on the admissibility of the application for refugee status …
(2) An application is not admissible if
…
(e) there is a country that [is] considered a safe third country with respect to the applicant …
(4) An application may be considered inadmissible pursuant to subsection (2)(e) only if:
(a) the applicant resided in a safe third country and he or she had the opportunity to request effective protection in line with section (2)(i) in that country;
(b) the applicant travelled through a safe third country and he or she could have requested effective protection in line with section (2)(i);
(c) the applicant has a family member in that [safe third] country and is allowed to enter the territory thereof; or
(d) the safe third country submitted a request for the extradition of the applicant.
(5) In the case of a situation falling under subsection (4)(a) or (b), it is for the applicant to prove that he or she did not have an opportunity to obtain effective protection in that country in line with section (2)(i).
…
(11) If section (2)(e) … applies to the applicant, he or she may, immediately after being notified of this, or at the latest three days after being notified, provide evidence that the country in question cannot be considered a safe country of origin or a safe third country in his or her individual case.”
Section 51/A
“If the safe country of origin or safe third country refuses to admit or take back the applicant, the asylum authority shall withdraw its decision and continue the procedure.”
Section 53
“…
(2) The decision declaring the application inadmissible … may be challenged in court. Except in relation to a decision based on section 51(2)(e) …, a request for a court review shall not have a suspensive effect on the execution of the decision.
…”
21. Section 80/J(1) of the Asylum Act provided that an asylum application could be lodged in person only in the transit zone, unless the asylum applicant was subject to a coercive measure, deprived of his or her liberty, or staying legally in Hungarian territory. Section 80/J(3) provided that the police should escort a foreign national who was staying illegally in Hungarian territory and who declared his or her intention to lodge an application for asylum to the other side of the gate of a facility for maintaining order at the border, as provided for by the State Border Act, where the person concerned could then lodge his or her application for asylum in one of the two transit zones.
22. Section 5(1b) of Law no. LXXXIX of 2007 on State Borders (“the State Border Act”) authorised the police, during a state of crisis caused by mass migration, to apprehend foreign nationals staying illegally on Hungarian territory and escort them through the nearest gate in the border fence, except when they were suspected of having committed an offence. A “state of crisis due to mass migration” was declared in September 2015 and subsequently this has been continuously extended. The most recent extension – to last until 7 September 2023 – was effected on 21 February 2023.
II. EUROPEAN UNION LAW AND PRACTICE
23. As regards European Union (EU) law and practice, including the relevant parts of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third‑country nationals (the “Return Directive”), it has been summarised in Shahzad v. Hungary (no. 12625/17, §§ 21-26, 8 July 2021). Furthermore, the following EU material is of relevance to the present case.
A. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (the “Asylum Procedures Directive”)
24. Recital 27 of the Asylum Procedures Directive reads as follows:
“Given that third-country nationals and stateless persons who have expressed their wish to apply for international protection are applicants for international protection, they should comply with the obligations, and benefit from the rights, under this Directive and [Directive 2013/33]. To that end, Member States should register the fact that those persons are applicants for international protection as soon as possible.”
25. Article 6, entitled “Access to the procedure”, reads as follows:
Access to the procedure
“1. When a person makes an application for international protection to an authority competent under national law for registering such applications, the registration shall take place no later than three working days after the application is made.
If the application for international protection is made to other authorities which are likely to receive such applications, but not competent for the registration under national law, Member States shall ensure that the registration shall take place no later than six working days after the application is made.
Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged.
2. Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. Where the applicant does not lodge his or her application, Member States may apply Article 28 accordingly.
3. Without prejudice to paragraph 2, Member States may require that applications for international protection be lodged in person and/or at a designated place.
…”
B. Judgment of the Court of Justice of the European Union (CJEU) of 25 June 2020 in Ministerio Fiscal (Authority likely to receive an application for international protection), C-36/20 PPU, EU:C:2020:495
26. Responding to a request for a preliminary ruling from the Court of Preliminary Investigation no. 3 of San Bartolomé de Tirajana concerning, inter alia, the obligations imposed on magistrates deciding on the detention of foreign nationals, who the CJEU considered to be “other authorities” within the meaning of the second sub-paragraph of Article 6(1) of the Asylum Procedures Directive, the CJEU reached the following conclusions:
“80. If an application for international protection has been made before ‘other authorities’, within the meaning of the second subparagraph of Article 6(1) of Directive 2013/32, the latter provision requires that the Member State concerned ensure that the application is registered no later than six working days after the application is made.
81. In order to comply with that particularly short time limit, it is imperative, particularly in order to guarantee the efficiency and speed of the procedure for examining applications for international protection, that such an authority transfer the file in its possession to the authority which is competent under national law to register the application.
82. In the absence of such a step, the very aim of Directive 2013/32, in particular that of Article 6(1) thereof, which consists in guaranteeing effective, simple and straightforward access to the international protection procedure, would be seriously undermined …
83. The answer to the second question is therefore that the second and third subparagraphs of Article 6(1) of Directive 2013/32 must be interpreted as meaning that examining magistrates, as ‘other authorities’ within the meaning of that provision, must, first, inform third-country nationals without a legal right of residence of the procedure for lodging an application for international protection and, second, where a third‑country national has expressed his or her wish to make such an application, send the file to the competent authority for the purposes of registering that application, in order that that third-country national may benefit from the material reception conditions and health care provided for in Article 17 of Directive 2013/33 [the so-called ‘Reception Conditions Directive, laying down standards for the reception of applicants for international protection (recast)’].”
C. Judgment of the CJEU (Grand Chamber) of 17 December 2020 in Commission v. Hungary (Reception of applicants for international protection), C‑808/18, EU:C:2020:1029
27. In addition to what has been cited in Shahzad (cited above, § 25), the CJEU made the following findings regarding access to the international protection procedure:
“90 ..the EU legislature took a broad view of authorities which, without being competent for registering applications for international protection, are nevertheless likely to receive such applications, within the meaning of the second subparagraph of Article 6(1) of Directive 2013/32. Thus, a national authority may, in principle, be regarded as such, if it is plausible that an application for international protection is being made to it by a third-country national or a stateless person (see, to that effect, judgment of 25 June 2020 [paragraph 26 above] …). Furthermore, the third subparagraph of Article 6(1) of that directive explicitly mentions, as constituting such authorities, the police, border guards, immigration authorities and personnel of detention facilities.
…
97 Such an application [for international protection] is, moreover, deemed to have been made as soon as the person concerned has declared, to one of the authorities referred to in Article 6(1) of Directive 2013/32, his or her wish to receive international protection, without the declaration of that wish being subject to any administrative formality whatsoever (see, to that effect, judgment of 25 June 2020 [paragraph 26 above]…).
98 It therefore follows from Article 6 of Directive 2013/32 that any third-country national or stateless person has the right to make an application for international protection to one of the authorities referred to in that article, by declaring, to one of them, his or her wish to receive international protection.
…
103 Accordingly, a Member State cannot, without undermining the effectiveness of Article 6 of that directive, unjustifiably delay the time at which the person concerned is given the opportunity to make his or her application for international protection.”
28. As regards the removal of illegally staying third-country nationals under section 5(1b) of the State Border Act, relying on the Return Directive (Directive 2008/115), the CJEU found, inter alia, as follows:
“245 Second, it should be noted that Article 2(2) of that directive lists the grounds on which Member States may decide to exclude from the scope of that directive an illegally staying third-country national, within the meaning of Article 3(2) of that directive.
246 That being so, it is not disputed that Article 5(1b) of the Law on State borders [that is the State Border Act] does not limit its scope to categories of illegally staying third-country nationals in respect of which Article 2(2) of Directive 2008/115 authorises Member States to derogate from that directive. Moreover, Hungary does not contend that Article 5(1b) of that law falls under any of the derogations provided for in that Article 2(2).
247 Third, where a third-country national falls within the scope of Directive 2008/115, he or she must, in principle, be subject to the common standards and procedures laid down by that directive for the purpose of his or her removal, as long as his or her stay has not, as the case may be, been regularised …
…
249 Thus, once the illegality of the stay has been established, the competent national authorities must, under Article 6(1) of Directive 2008/115 and without prejudice to the exceptions provided for in Article 6(2) to (5) thereof, adopt a return decision (judgment of 11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 46 and the case-law cited).
250 It also follows from recital 6 of Directive 2008/115 that that return decision must be taken following a fair and transparent procedure. …
…
254 In the case at hand, first, it should be noted that Hungary does not dispute that, under Article 5(1b) of the Law on State borders, third-country nationals staying illegally in its territory may be subject to forcible deportation beyond the border fence, without prior compliance with the procedures and safeguards provided for in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115. In that regard, it must be stated that the safeguards surrounding the intervention of the police services, put forward by Hungary and summarised in paragraph 240 of the present judgment, clearly cannot be regarded as corresponding to the safeguards provided for in Directive 2008/115.
…
266 It follows from all the foregoing considerations that, in allowing the removal of all third-country nationals staying illegally in its national territory, with the exception of those of them who are suspected of having committed an offence, without observing the procedures and safeguards laid down in Article 5, Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115, Hungary has failed to fulfil its obligations under those provisions.”
III. council of europe and other international material
29. The pertinent material has been summarised in Shahzad, cited above, §§ 27-31. In addition, the following material is relevant to the present case.
A. Convention relating to the Status of Refugees and its interpretation
30. Article 31 § 1 of the Convention relating to the Status of Refugees, adopted on 28 July 1951, 189 UNTS 137 (“the Refugee Convention”), reads as follows:
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
31. On 15 March 2017 the interpretation of Article 31 of the Refugee Convention was discussed at the expert round table on Non-Penalization for Illegal Entry or Presence: Interpreting and Applying Article 31 of the 1951 Refugee Convention. The round table, hosted by the Refugee Studies Centre of the University of Oxford, was organised by the UNHCR as part of a broader project to develop guidelines on the interpretation and application of Article 31 of the Refugee Convention pursuant to its mandate. The discussion was informed by, inter alia, a comprehensive background study of the law and practice relating to Article 31 of the Refugee Convention. The relevant parts of its summary conclusions read as follows:
The object and purpose of Article 31 of the 1951 Convention
“…
3. Article 31(1) of the 1951 Convention recognizes that in exercising the right to seek asylum, refugees are often compelled to arrive, enter or stay in a territory without authorization or with no, insufficient, false or fraudulent documentation.”
Presenting themselves without delay to the authorities
“…
17. The situation of refugees arriving at airports and presenting false or fraudulent documents was seen as particularly important to address and clarify. One may argue that refugees can claim asylum directly upon arrival and therefore have no reason to present false or fraudulent documents. However, while it may be rational in some cases to expect the refugee to claim asylum immediately upon arrival (or at least not unduly delay making a claim), newly-arrived refugees might reasonably fear summary return and regard border crossings or points of entry as unsafe or inappropriate places to make an asylum claim. This refugee reality has been recognized by several domestic courts, which have afforded the protection of Article 31 to cover the use false or fraudulent documents to enter the country. Further, it may be necessary for state officials to identify those seeking asylum, in particular children and other refugees with specific needs, and refer them to the proper authorities and procedures, rather than directing them to present themselves to immigration authorities.”
Showing good cause for the illegal entry or presence
“18. Refugees must show good cause for their illegal entry or presence. Having a well-founded fear of being persecuted may in itself be a ‘good cause’ for illegal entry or presence, depending on the factual context. As mentioned above, in reality refugees face multiple factual and legal risks and barriers in search of safety. They are often unable to enter an asylum country regularly and are therefore forced to resort to irregular means. In addition, using false or fraudulent documents – or otherwise circumventing immigration or border control requirements – for fear of being rejected at the border may also constitute ‘good cause.’”
B. Draft Articles on the Expulsion of Aliens
32. Draft Articles on the Expulsion of Aliens, adopted by the International Law Commission, of which the United Nations General Assembly took note (Resolution A/RES/69/119 of 10 December 2014), include the following provisions relevant to the present case:
Article 15
Vulnerable persons
“1. Children, older persons, persons with disabilities, pregnant women and other vulnerable persons who are subject to expulsion shall be considered as such and treated and protected with due regard for their vulnerabilities.
2. In particular, in all actions concerning children who are subject to expulsion, the best interests of the child shall be a primary consideration.”
Article 22
State of destination of aliens subject to expulsion
“1. An alien subject to expulsion shall be expelled to his or her State of nationality or any other State that has the obligation to receive the alien under international law, or to any State willing to accept him or her at the request of the expelling State or, where appropriate, of the alien in question.
2. Where the State of nationality or any other State that has the obligation to receive the alien under international law has not been identified and no other State is willing to accept the alien, that alien may be expelled to any State where he or she has a right of entry or stay or, where applicable, to the State from where he or she has entered the expelling State.”
C. Reports published on the Asylum Information Database (AIDA)
33. A report entitled “Country Report: Hungary – 2019 update” was published on the Asylum Information Database (AIDA), which is coordinated by the European Council on Refugees and Exiles. The report notes that in 2019 11,101 migrants were pushed back from the territory of Hungary to the external side of the border fence, while 2,585 persons were blocked from entering via the border fence. A total of 961 persons were apprehended in Hungary. As regards asylum applications, the report points to the very low recognition rate (the rejection rate was 91.5%) and extremely lengthy procedures, during which asylum seekers had to stay in the transit zone.
34. A report entitled “Country Report: Serbia – 2019 update”, published on AIDA, makes the following observations regarding the asylum procedure in Serbia:
“Access to the territory and push-backs: … it is still not clear if foreigners subject to various forms of expulsion decisions have access to the asylum procedure, especially when they return from one of the neighbouring countries (e.g. Hungary or Croatia) and decide to stay and apply for asylum in Serbia. Finally, the period that asylum seekers have to wait to lodge asylum application has a discouraging effect on them.
…
The registration certificate in Serbia is not considered an asylum application. Therefore, expressing the intention to seek asylum does not constitute the initiation of the asylum procedure. It is, however, a precondition for submission of the asylum application.
After the foreigner is registered, he or she is referred to an Asylum Centre or other facility designated for accommodation of asylum seekers. The asylum seeker is obliged to report to such facility within 72 hours from the moment of issuance of the registration certificate. … One of the possible consequences of misunderstanding of the content of the certificate is the failure of an asylum seeker to appear in the Asylum Centre within 72 hours. In that case, he or she would lose the status of an asylum seeker and will be treated in line with the provisions of the Foreigners Act as an irregular migrant. He or she then risks being penalized in the misdemeanour proceeding and served with one of the expulsion decisions (decision on cancellation of residency or return decision).
…
… [I]t is common practice that genuine asylum seekers are referred to Reception Centres instead of Asylum Centres … Consequently, NGOs providing legal assistance have to advocate for their transfer to one of the five Asylum Centres. This process can sometimes last … longer than several weeks, or even months, which further delays access to the asylum procedure …”
35. As regards reception conditions, the above-mentioned report on Serbia notes the following:
“Conditions in reception centres: Overall, the reception conditions in Asylum Centres can be considered as satisfactory, with the exception of the largest Asylum Centre located in Krnjača. However, living conditions in the Temporary Reception Centres continue to raise serious concerns as they are not adequate for hosting asylum seekers for long periods. The lack of security in many reception facilities is a serious concern, and the presence of organised crime groups involved in smuggling and potentially human trafficking is evident. This is particularly worrying for unaccompanied asylum‑seeking children (UASC) who are at serious risk in almost all reception facilities. Important critics and concerns were expressed in particular regarding the conditions in Adaševci, Šid, Obrenovac and several other Reception Centres which should be improved without delay.
…
In general, it can be safely argued that the vast majority of Reception Centres lack adequate living conditions due to their nature and purpose. Namely, the Reception Centres were established and designed during the 2015/2016 mass influx of refugees with an aim to provide a short-term stay (several days). However, when the border policies of neighbouring countries had changed, and the time of stay in Serbia increased from several days to at least 6 months, the living conditions in [Reception Centres] deteriorated. For that reason, arguably the living conditions in majority of [Reception Centres] are inadequate and the main features are the following: overcrowding, poor hygiene, lack of privacy and safety, poor sanitation and lack of basic psycho-social services.”
THE LAW
I. JOINDER OF THE APPLICATIONS
36. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).
II. ALLEGED VIOLATION OF ARTICLE 4 of protocol no. 4 to THE CONVENTION
37. The applicants complained that they had been part of a collective expulsion, in breach of Article 4 of Protocol No. 4 to the Convention, which reads as follows:
“Collective expulsion of aliens is prohibited.”
A. Admissibility
38. The Government submitted that the applicants had made no complaints during the procedure leading to their removal (see paragraph 43 below). In so far as this could be understood as being an objection as to admissibility, the Court notes that in Shahzad v. Hungary (no. 12625/17, § 78, 8 July 2021) it found that the effectiveness of a complaint against the police measure in question, with respect to an alleged violation of Article 4 of Protocol No. 4, had not been demonstrated. The Court sees no reason to reach a different conclusion in the present case. It notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
39. The applicants submitted that they had not denied to the authorities that they had used fake passports. They had done so in order to escape persecution. They had evidently expressed their wish to apply for asylum, and had provided reasons supporting their arguable claim under Article 3 of the Convention. Instead of being referred to the appropriate asylum procedure, they had been removed to a country where they had never been before, without their particular circumstances ever being examined by the Hungarian authorities and without having effective access to means of legal entry. In view of the automatic nature of their return, which had been triggered by their requests for asylum, they had not had an effective opportunity to put forward arguments against their expulsion.
40. The applicants further argued that despite the three-year gap between the events in their case and the events in Shahzad (cited above), the domestic legal regime and the factual circumstances regarding access to transit zones had not changed. In fact, at the material time, access to transit zones had been more restrictive than at the time of the events in Shahzad. In December 2019 admissions to the Röszke transit zones had been suspended, and on average one person per day was admitted to the Tompa transit zone.
41. The applicants also submitted that at the material time, section 5(1b) of the State Border Act had precluded an alien being apprehended and escorted through the nearest gate in the border fence while criminal proceedings were pending against him. Their removal had therefore been in clear violation of domestic law. They furthermore drew attention to judgment no. C-808/18 of the CJEU (see paragraphs 27 and 28 above).
42. The first to seventh applicants pointed out that the visit by an adviser from the embassy of Yemen, after they had expressed their wish to apply for asylum, had evidently been in breach of EU asylum law. The eighth to tenth applicants submitted that they had signed the document concerning their deportation (see paragraph 15 above) against their will.
(b) The Government
43. The Government submitted that the applicants had made no complaints during the procedure. They had not been expelled under the Third‑Country Nationals Act; as a matter of fact, no expulsion order had been issued against any of the applicants. They had been subjected to a measure under section 5(1b) of the State Border Act.
44. The Government also submitted that they had applied the measure in question within the framework of the derogation provided for in Article 2(2)(a) of the Return Directive.
2. The Court’s assessment
45. The Court notes that like the applicant in Shahzad (cited above), the present applicants were removed to the external side of the border fence with Serbia. The border fence which the applicants were made to cross had clearly been erected in order to secure the border between Hungary and Serbia (ibid., § 49). Having regard to the considerations set out in the above‑mentioned judgment (ibid., §§ 46-52), the Court finds that the applicants’ removal amounted to expulsion within the meaning of Article 4 of Protocol No. 4. The Court is thus called upon to ascertain whether the applicants’ expulsion was “collective” in nature.
46. The decisive criterion in order for an expulsion to be characterised as “collective” is the absence of “a reasonable and objective examination of the particular case of each individual alien of the group” (see N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 195, 13 February 2020). Exceptions to this rule have been found in cases where the lack of an individual expulsion decision could be attributed to the applicant’s own conduct (see M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, § 294, 18 November 2021, and the case-law referred to therein).
47. The applicants in the present case were removed on the basis of section 5(1b) of the State Border Act, which authorised the police to apprehend foreign nationals staying illegally on Hungarian territory and escort them through the nearest gate in the border fence, except when they were suspected of having committed an offence (see paragraph 22 above). Given that the applicants – or at least some of them – were suspected of having committed criminal offences because of their use of counterfeit travel documents (see paragraphs 7, 9, 12, 15 and 18 above), the Court observes that the relevant provision, on which the Government relied, could not provide a lawful basis for their removal. Hence, their removal seems to have been in violation of the domestic law.
48. Be that as it may, the Court will proceed to examine whether the applicants were afforded an effective opportunity to submit arguments against their removal, and whether there were sufficient guarantees demonstrating that their personal circumstances were genuinely and individually taken into account before their removal (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 238, 15 December 2016, and Asady and Others v. Slovakia, no. 24917/15, § 62, 24 March 2020).
49. It has not been disputed that the applicants expressed their wish to seek asylum in Hungary and cooperated with the authorities when they were apprehended. Instead of examining the applicants’ arguments and the needs of the applicant children, who were in a particularly vulnerable position (see paragraphs 5, 6 and 32 above), the Hungarian authorities proceeded to immediately remove them to Serbia. In the Court’s view, the authorities’ conduct could not be justified under Article 4 of Protocol No. 4. In this connection, it observes that the applicants arrived at an official border crossing point at Budapest Airport and presented themselves to the border officers. They were then removed to a country which they had not come from. The situation in the present case must thus be distinguished from a situation where aliens who had genuine and effective access to existing border crossing points decided to cross a land border at a different location in an unauthorised manner and were then returned to the country they had entered from (see, mutatis mutandis, M.K. and Others v. Poland, nos. 40503/17 and 2 others, § 207, 23 July 2020, and contrast N.D. and N.T. v. Spain, cited above, §§ 209‑210 and 231).
50. Furthermore, while the applicants undisputedly used counterfeit documents for the purposes of their travel and attempted to enter Hungary using these documents, this itself could not qualify as the kind of conduct which would absolve the authorities of their obligation under Article 4 of Protocol No. 4. Indeed, the Court has previously emphasised that protection under the Convention cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question. The opposite approach would entail serious risks of arbitrariness, in so far as persons entitled to protection under the Convention could be deprived of such protection on the basis of purely formal considerations, for instance on the grounds that, not having crossed the State’s border lawfully, they could not make a valid claim for protection under the Convention. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention, and in particular by Article 3 (see N.D. and N.T. v. Spain, cited above, 184). Also, the Court cannot ignore the fact that persons seeking international protection are often compelled to travel without appropriate travel documents and, consequently, they might in some circumstances resort to the use of false or fraudulent documentation, particularly if they travel by air (see paragraphs 30 and 31 above, and also the Court’s approach in O.M. and D.S. v. Ukraine, no. 18603/12, §§ 21, 33 and 77-100, 15 September 2022). In any event, in the instant case, the reason for the applicants’ removal does not appear to have been their use of counterfeit travel documents. The Government confirmed that no expulsion order had been issued against the applicants, and that they had been removed to Serbia on the basis of the general measure provided for in section 5(1b) of the State Border Act (see paragraph 43 above).
51. Having regard to the foregoing, the Court finds that the applicants were removed to Serbia without being afforded an effective opportunity to submit arguments against their removal. Their removal was therefore of a collective nature. The Government’s reliance on a derogation based on Article 2(2)(a) of the Return Directive (see paragraph 44 above) has no bearing on that conclusion, and was, moreover, dismissed by the CJEU, which also found that removals under section 5(1b) of the State Border Act failed to observe the safeguards set out in that Directive (see paragraph 28 above).
52. There has accordingly been a violation of Article 4 of Protocol No. 4 to the Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
53. The applicants complained under Article 3 of the Convention that they had been expelled to Serbia, where no adequate asylum procedure had been available, without any assessment of the consequences of their removal for their right enshrined in Article 3 and in breach of the procedural obligation under this provision, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
54. The Court notes that the above complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
55. The applicants submitted that they had had an arguable claim under Article 3 regarding the risks faced in their country of origin. They argued that no proper assessment of the risk of treatment contrary to Article 3 had been carried out prior to their removal, nor had there been any examination of whether they would have access to an asylum procedure in Serbia. They also pointed to the lack of prior arrangements with the Serbian authorities regarding their removal to Serbia. The applicants moreover submitted that the Government had entirely misunderstood the matter under examination, because in their observations they had dealt solely with the question of the applicants’ treatment by the police. The eighth to tenth applicants emphasised that they had been denied access to an asylum procedure in Serbia and had thus remained destitute and at risk of refoulement. Their stay in Serbia had not been regulated, but merely tolerated.
56. The Government argued that by law, the police were required to act appropriately, and in particular they had to respect the prohibition of torture and ill-treatment. A number of mechanisms, such as reporting and monitoring, were in place to ensure compliance with the professional standards of conduct and the investigation of allegations of misconduct.
2. Third-party interveners
57. The IDEAS Centre for Research and Social Development pointed out that Serbia had a worrying track record with regard to its asylum system. Asylum seekers who were collectively expelled and returned from Hungary, as well as from Croatia or Romania, could face difficulties in accessing the asylum procedure owing to the Serbian authorities lacking an official stance as regards such cases. In the intervener’s submission, it was common for those who were returned to be penalised by means of a misdemeanour procedure, especially in the northern cities of Serbia (located in the area bordering Hungary) and in Belgrade. They could be issued with expulsion orders. As a consequence, persons who were returned informally and were in need of international protection were denied access to an asylum procedure, and were treated as illegal migrants who risked being expelled to other neighbouring countries in a procedure in which the danger of refoulement was not examined at all.
58. Since 2009 a total of 652,708 registration certificates had been issued, but asylum applications had been lodged in only 3,700 cases, which represented 0.6% of all foreigners registered under the Asylum Act. In the period 2008-2021 only 196 persons had been granted international protection in Serbia, which, in the intervener’s opinion, indicated an extremely low recognition rate. In its view, the system in general could be described as ineffective.
59. The intervener further pointed out that in Serbia a registration certificate was not considered an asylum application, and thus an individual with such a certificate was not considered an asylum seeker and had no rights related to material reception conditions. Persons in need of international protection were forced to wait for weeks in order to be transferred to an asylum facility, where they could lodge their asylum application. Moreover, in practice, only those accommodated in Krnjača Asylum Centre (located in Belgrade) could initiate the asylum procedure. The intervener submitted that that the conditions of accommodation were deplorable, and had been in the period 2019-2021, when around 60,000 persons per year had arrived in Serbia, according to the official statistics.
3. The Court’s assessment
60. The general principles concerning an expelling State’s procedural duty under Article 3 of the Convention in cases of removal of an asylum-seeker to a third country without examination of the asylum claim on the merits have been summarised in Ilias and Ahmed v. Hungary ([GC], no. 47287/15, §§ 124-141, 21 November 2019).
61. The Court has consistently acknowledged the importance of the principle of non-refoulement (see, for example, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 286, ECHR 2011, and M.A. v. Cyprus, no. 41872/10, § 133, ECHR 2013 (extracts)). It reiterates that the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment breaching Article 3 in the destination country (see O.M. and D.S. v. Ukraine, no. 18603/12, § 81, 15 September 2022). The Court has indicated that where a Contracting State seeks to remove an asylum-seeker to a third country without examining the asylum request on the merits, the main issue before the expelling authorities is whether or not the individual will have access to an adequate asylum procedure in the receiving third country (see Ilias and Ahmed, cited above, § 131).
62. In the present case, the Court has established in the context of Article 4 of Protocol No. 4 that the Hungarian authorities removed the applicants to Serbia (see paragraph 45 above). It has furthermore not been disputed that the applicants made applications for international protection to the Hungarian authorities before their removal. During their interaction with the authorities they referred to the risks they would allegedly face in Yemen and Afghanistan respectively; those risks, in their opinion, supported their applications for international protection (see paragraphs 6, 8, and 14‑16 above).
63. Instead of facilitating the applicants’ access to the asylum procedure by forwarding their requests for asylum to the competent authorities and allowing them to stay in Hungary until such requests were decided (see, for comparison, paragraphs 26 and 27 above), the police removed the applicants to Serbia. The removal was based solely on the fact that the applicants were considered to be staying in Hungary illegally and had expressed their wish to apply for asylum which, in accordance with the applicable law, was possible only in one of the Hungarian transit zones situated at the border with Serbia (see paragraph 21 above). It follows that the Hungarian authorities’ decision to remove the applicants was unrelated to the merits of their asylum claims, and it is thus not the Court’s task to examine whether the applicants risked ill-treatment in their countries of origin (see Ilias and Ahmed, cited above, § 145). It should instead examine whether their removal to Serbia was compatible with the respondent State’s procedural obligations under Article 3.
64. In this regard, the Court reiterates that in all cases of removal of an asylum‑seeker from a Contracting State to a third intermediary country without examination of the asylum request on the merits, regardless of whether or not the receiving third country is a State Party to the Convention, it is the duty of the removing State to examine thoroughly the question of whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum-seeker should not be removed to the third country concerned (see Ilias and Ahmed, cited above, § 134).
65. In the present case, the applicants seemed to have no connection with Serbia, and neither the authorities, in the domestic proceedings, nor the Government, in the proceedings before the Court, referred to Serbia as a safe third country for the applicants (compare and contrast Ilias and Ahmed, cited above, §§ 151-3; see also the domestic law regarding the concept of a safe third country, cited in paragraph 20 above). In any event, nothing has been put forward to show that the applicants’ removal was underpinned by any – let alone any proper – assessment of access to the asylum procedure in Serbia and the adequacy of that procedure (see Ilias and Ahmed, cited above, §§ 148 and 152), despite the worrying reports on this subject (ibid., §§ 68-76; see also paragraphs 34, 35, and 57-59 above). Such an assessment had to be conducted by the Hungarian authorities of their own motion, and on the basis of all relevant and up-to-date information (see O.M. and D.S. v. Ukraine, cited above, § 96).
66. In this connection, the Court observes that the applicants’ removal appeared to be based on the premise that after crossing Serbian territory, they would be able to apply for asylum in the Hungarian transit zone (see paragraphs 8, 10, 16 and 21 above). However, the Court notes that there is nothing indicating that the domestic authorities satisfied themselves that the applicants would be able to effectively access the asylum procedure in the transit zone. The Government, who must have been aware of the Court’s finding that transit zones did not afford an effective means of legal entry to Hungary (see Shahzad, cited above, § 65) and the applicants’ assertion that access to the asylum procedure through the transit zone had become even more restrictive since that finding (see paragraph 55 above), put forward no arguments in this connection.
67. Having said that, it is crucial to note that the applicants were not taken to the transit zone, but removed from the respondent State’s jurisdiction. They were induced to enter and stay in Serbia illegally, and faced the predicament associated with such a stay (see paragraphs 32, 34, 35, and 57-59 above). In addition, as mentioned above, there was no prior assessment of whether Serbia’s asylum procedure afforded sufficient guarantees to avoid their direct or indirect removal to their countries of origin without a proper evaluation of the risks they could face from the standpoint of Article 3 of the Convention.
68. The Court emphasises that, from the perspective of Article 3, a Contracting State cannot deny an asylum-seeker access to its territory or remove him or her, even on the assumption that that person might be able to return through some other means of entry, without a proper evaluation of the risks that such a denial or removal might have for his or her rights protected under that provision (see, mutatis mutandis, M.K. and Others v. Poland, cited above, § 179).
69. Having regard to the above, the Court therefore concludes that the respondent State failed to discharge its procedural obligation under Article 3 of the Convention to examine whether the applicants would have access to an adequate asylum procedure in Serbia, the country to which they were removed. It is therefore unnecessary for the Court to examine whether Article 3 was breached on the additional grounds relied on by the applicants (see paragraph 55, and Ilias and Ahmed, cited above, § 165).
70. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.
IV. OTHER COMPLAINTS
71. The applicants also complained under Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 that they had had no effective remedy at their disposal as regards their removal. The eighth to tenth applicants also relied on Article 13 in conjunction with Article 3 of the Convention.
72. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that the applicants’ remaining complaints are admissible, but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and H.M. and Others v. Hungary, no. 38967/17, § 33, 2 June 2022).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
73. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
74. The applicants claimed 5,000 euros (EUR) each in respect of non‑pecuniary damage.
75. The Government argued that the applicants’ claims were excessive.
76. In respect of non-pecuniary damage, in view of the particular circumstances of the present case and the nature of the violations found, the Court awards the first to seventh applicants EUR 10,000 jointly, and the eighth to tenth applicants EUR 7,000 jointly, plus any tax that may be chargeable.
B. Costs and expenses
77. The applicants also claimed EUR 4,000 in respect of each application, for the costs and expenses related to their representation before the Court.
78. The Government disputed the claim.
79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants, who had the same representative, the sum of EUR 3,000 jointly for the proceedings before the Court, plus any tax that may be chargeable to them.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 4 of Protocol No. 4 to the Convention;
4. Holds that there has been a violation of Article 3 of the Convention in its procedural limb;
5. Holds that there is no need to examine the merits of the applicants’ complaints under Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 to the Convention and the eight to tenth applicants’ complaint under Article 13 in conjunction with Article 3 of the Convention;
6. Holds,
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros) to the first to seventh applicants jointly, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(ii) EUR 7,000 (seven thousand euros) to the eighth to tenth applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 3,000 (three thousand euros) to all the applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 12 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Marko Bošnjak
Registrar President
_________
APPENDIX
List of cases:
| No. | Applicant’s Name | Application no. | Year of birth | Nationality | Place of residence | |
| 1. | S.S. | 56417/19 | 1976 | Yemeni | Vienna, Austria | |
| 2. | B.B. | 56417/19 | 1989 | Yemeni | Vienna, Austria | |
| 3. | A.A.K. | 56417/19 | 1994 | Yemeni | Vienna, Austria | |
| 4. | A.F.A.K. | 56417/19 | 1998 | Yemeni | Vienna, Austria | |
| 5. | Y.A.K. | 56417/19 | 2000 | Yemeni | Vienna, Austria | |
| 6. | A.K.A.K. | 56417/19 | 2004 | Yemeni | Vienna, Austria | |
| 7. | E.A.K. | 56417/19 | 2008 | Yemeni | Vienna, Austria | |
| 8. | F.W. | 44245/20 | 1959 | Afghan | Hamburg | |
| 9. | N.W. | 44245/20 | 1996 | Afghan | Hamburg | |
| 10. | H.W. | 44245/20 | 2001 | Afghan | Hamburg | |
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