{"id":20860,"date":"2023-05-04T12:24:20","date_gmt":"2023-05-04T12:24:20","guid":{"rendered":"https:\/\/laweuro.com\/?p=20860"},"modified":"2023-05-04T12:24:20","modified_gmt":"2023-05-04T12:24:20","slug":"case-of-r-n-v-hungary-the-case-concerned-the-applicants-removal-from-hungary-after-his-irregular-entry","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=20860","title":{"rendered":"CASE OF R.N. v. HUNGARY – The case concerned the applicant\u2019s removal from Hungary after his irregular entry"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF R.N. v. HUNGARY<\/strong>
\n(Application no. 71\/18)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n4 May 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of R.N. v. Hungary,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, President,
\nLado Chanturia,
\nMattias Guyomar, judges,
\nand Sophie Piquet, Acting Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the application (no.\u00a071\/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 17 December 2017 by a Pakistani national, R.N. (\u201cthe applicant\u201d), who was born in 2003, lives in Paris and was represented by Mr Fazekas, a lawyer practising in Budapest;<\/p>\n

the decision to give notice of the application to the Hungarian Government (\u201cthe Government\u201d), represented by their Agent, Mr Z. Tall\u00f3di, of the Ministry of Justice;<\/p>\n

the decision not to have the applicant\u2019s name disclosed;<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 30 March 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The case concerned the applicant\u2019s removal from Hungary after his irregular entry.<\/p>\n

2. The applicant is a Pakistani national who crossed the border into Hungary clandestinely on 21\u00a0June 2017. He subsequently hid in a barn where he was allegedly repeatedly physically assaulted by members of the \u201cfield guards\u201d. On the same day he was apprehended by Hungarian police officers. He submitted a printout of a Facebook post by the mayor of \u00c1sotthalom which included photos showing him and other migrants lying on the floor after being apprehended. Together with ten other migrants he was then taken to the border fence and made to walk in the direction of Serbia. He alleged that he and other migrants had been given no chance to claim asylum.<\/p>\n

3. Following his removal, the applicant was, on the same day, examined in a hospital in Subotica (Serbia). A medical examination carried out two days later by a member of M\u00e9decins Sans Fronti\u00e8res confirmed that he had sustained a wound to his head. The applicant was at that time fourteen years old and unaccompanied.<\/p>\n

4. On 28 July 2017 the applicant\u2019s legal representative lodged a criminal complaint with the Hungarian prosecution service in relation to the alleged ill-treatment of the applicant.<\/p>\n

5. The applicant complained that he had been subjected to a collective expulsion, in breach of Article 4 of Protocol No.\u00a04 to the Convention. He also complained under Article 13 of the Convention in conjunction with Article\u00a04 of Protocol No.\u00a04 that he had not had any effective remedy at his disposal. In his submissions of 28 November 2022, he also raised a complaint under Article 3 of the Convention.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. ALLEGED VIOLATION OF ARTICLE 4 of Protocol No. 4 to THE CONVENTION<\/strong><\/p>\n

6. The Court observes from the outset that it has not been disputed that the Hungarian authorities removed the applicant from Hungary on 21\u00a0June\u00a02017. The Government submitted that the removal had been based on section 5(1b) of Law no. LXXXIX of 2007 on State Borders (\u201cthe State Borders Act\u201d) 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 the same as that found in section 5(1a) of the State Borders Act on which the authorities had relied in the case of Shahzad v.\u00a0Hungary (no. 12625\/17, \u00a7 17, 8 July 2021) with the exception that it no longer limited the police powers in question to an area in proximity of the border but extended them to the entirety of Hungarian territory. Having regard to the foregoing and its findings in Shahzad (cited above, \u00a7\u00a7 45-53), the Court considers that the removal of the applicant amounted to an expulsion within the meaning of Article\u00a04 of Protocol No. 4.<\/p>\n

7. Since this complaint is neither manifestly ill-founded nor inadmissible on any other of the grounds listed in Article\u00a035 of the Convention, it must be declared admissible.<\/p>\n

8. As regards the \u201ccollective\u201d nature of the expulsion, the present case is similar to Shahzad (cited above). In that case the Court found that the removal of the applicant, which had taken place in August 2016 and also pursuant to section 5(1a) of the State Borders Act, 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\u2019s situation (ibid., \u00a7\u00a7 60-67). The Court also found that the only means of legal entry to Hungary \u2013 namely via the two transit zones \u2013 could not have been considered to be effective in the case of the applicant, who was an unaccompanied minor, in view of the limited access (daily quota) and lack of any formal procedure accompanied by appropriate safeguards governing the admission of individual migrants (ibid., \u00a7\u00a7 63-65).<\/p>\n

9. In the present case the removal of the applicant was carried out in essentially the same manner as in the Shahzad case, in particular without any decision or examination of his situation. Moreover, the applicant submitted that he had not had a realistic chance of entering the transit zone and applying for asylum there. The Government did not put forward any argument demonstrating that at the time of the applicant\u2019s 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.<\/p>\n

10. 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\u00a03 that this factor should take precedence over considerations relating to his or her status as an irregular migrant (see, for example, Khan v. France, no.\u00a012267\/16, \u00a7 74, 28 February 2019, and\u00a0N.T.P. and Others v.\u00a0France, no.\u00a068862\/13, \u00a7 44, 24 May 2018).<\/p>\n

11. In view of the above considerations, there has been a violation of Article 4 of Protocol No.\u00a04 to the Convention.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION in conjuNction with Article 4 of Protocol No. 4 to the convention<\/strong><\/p>\n

12. The applicant\u2019s complaint under Article 13 of the Convention read in conjunction with Article 4 of Protocol No. 4 is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7\u00a03\u00a0(a) of the Convention, nor inadmissible on any other grounds (see Shahzad, cited above, \u00a7\u00a7 70-74). Accordingly, it must be declared admissible. Having examined all the material before it and taking into account its findings in the case of Shahzad (cited above, \u00a7\u00a7 75\u201179), the Court concludes that the facts of this case disclose a violation of Article\u00a013 of the Convention taken in conjunction with Article 4 of Protocol No. 4.<\/p>\n

III. REMAINING COMPLAINt<\/strong><\/p>\n

13. In his observations submitted on 28 November 2022, the applicant raised a complaint concerning the State\u2019s procedural obligation under Article\u00a03 to assess the risk of his being subjected to treatment contrary to that provision before removing him from Hungary. However, the applicant had not raised that complaint in his application form. In view of the fact that his removal took place on 21\u00a0June\u00a02017, this complaint was lodged outside the applicable six-month time-limit. It must therefore be rejected pursuant to Article\u00a035 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

14. The applicant claimed 15,000 euros (EUR) in respect of non\u2011pecuniary damage. He also claimed EUR 5,400 in respect of costs and expenses incurred before the Court, in particular relating to legal work carried out in the preparation of this and a number of other similar applications.<\/p>\n

15. The Government argued that the above claims were excessive.<\/p>\n

16. Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR\u00a06,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.<\/p>\n

17. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 in respect of the costs and expenses incurred in proceedings before the Court, plus any tax that may be chargeable to the applicant.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the complaints concerning Article 4 of Protocol No. 4 to the Convention alone and in conjunction with Article 13 of the Convention admissible and the remainder of the application inadmissible;<\/p>\n

2. Holds that there has been a violation of Article 4 of Protocol No. 4 to the Convention;<\/p>\n

3. Holds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention;<\/p>\n

4. Holds<\/p>\n

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n

(i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n

(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;<\/p>\n

5. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 4 May 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Sophie Piquet \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u00a0 St\u00e9phanie Mourou-Vikstr\u00f6m
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

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FIFTH SECTION CASE OF R.N. v. HUNGARY (Application no. 71\/18) JUDGMENT STRASBOURG 4 May 2023 This judgment is final but it may be subject to editorial revision. In the case of R.N. v. Hungary, The European Court of Human Rights…<\/p>\n

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