Last Updated on January 18, 2024 by LawEuro
European Court of Human Rights (Application no. 82479/17)
On 1 June 2017 the applicant entered Hungary from Romania irregularly. He then entered, likewise irregularly, Austria on 3 June 2017. On the same day he was handed over from the Austrian Police to the Hungarian officers. He was subsequently detained in a police facility in Hungary together with two adult men. The three of them were interviewed and the applicant noted his wish to apply for asylum on a document he had been asked to complete and sign. On 5 June 2017 the applicant and the two other migrants were transported by the Hungarian officers to the border fence and made to go towards the direction of Serbia. The applicant was sixteen years old at the time of these events.
The applicant complained that he had been subjected to a collective expulsion, in breach of Article 4 of Protocol No. 4 to the Convention. He also complained under Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 that he had not had any effective remedy at his disposal.
The Government argued that the applicant had not applied for asylum in Hungary and therefore could have not been considered a victim of the alleged violation. They also submitted that at the time of the events in question it had had only been possible to apply for asylum in one of the transit zones. In their submission, the police were required to escort the aliens who wished to apply for asylum to the border fence where they could, by transiting Serbian territory, go to the one of the Hungarian transit zones. In their view, this measure did not amount to an expulsion within the meaning of Article 4 of Protocol No. 4. The applicant, on the other hand, submitted that he had not been able to communicate with the police as he had only understood Kurdish and had not been assisted by an appropriate interpreter. The name indicated on the documents relating to his apprehension in Austria and Hungary, including the one with the indication of his wish to apply for asylum, contain his first and his middle name.
The European Court of Human Rights noted the following:
At the outset, in view of the parties’ submissions and the documents in the case-file, the European Court of Human Rights finds no reason to question that the Hungarian authorities removed the applicant from Hungary on 5 June 2017. The Government submitted that the removal had been based on section 5 of Law no. LXXXIX of 2007 on State Borders 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. The Court notes that this provision was, in all relevant aspects, the same as that on which the authorities had relied in the case of Shahzad v. Hungary. Having regard to the foregoing and its findings in Shahzad, the Court considers that the removal of the applicant amounted to an expulsion within the meaning of Article 4 of Protocol No. 4.
Since this complaint is neither manifestly ill-founded nor inadmissible on any other of the grounds listed in Article 35 of the Convention, it must be declared admissible.
As regards the “collective” nature of the expulsion, the present case is similar to Shahzad. In that case the Court found that the removal of the applicant, which had taken place in August 2016, had been in violation of Article 4 of Protocol No. 4 to the Convention because it had been carried out in the absence of any formal decision or examination of the applicant’s situation. The Court also found that the only means of legal entry to Hungary – namely via the two transit zones – could not have been considered to be effective in view of the limited access and lack of any formal procedure accompanied by appropriate safeguards governing the admission of individual migrants.
In the present case the removal of the applicant was carried out by means of the same procedure as in the Shahzad case, in particular without any decision or examination of his situation. The Government did not put forward any argument demonstrating that at the time of the applicant’s removal the procedure for legal entry available to him had been effective. The Court therefore cannot but conclude that his removal was collective in nature.
Lastly, the Court cannot ignore that at the time of his removal the applicant was an unaccompanied minor, and therefore in a situation of extreme vulnerability. It has previously emphasised in the context of Article 3 that this factor should take precedence over considerations relating to his or her status as an irregular migrant.
In view of the above considerations, there has been a violation of Article 4 of Protocol No. 4 to the Convention.
CASE OF K.P. v. HUNGARY (European Court of Human Rights) 82479/17. Full text of the document.
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