The European Court of Human Rights (ECtHR) has delivered its judgment in the case of Ilias and Ahmed v. Hungary. The Court held that Hungary’s border procedures and treatment of asylum-seekers violates the European Convention of Human Rights (the Convention) in a multitude of ways. In particular there had been a violation of Article 5 and 4 (right to liberty and security) owing to their confinement in the Röszke transit zone without any formal, reasoned decision and without appropriate judicial review. While the ECtHR found the conditions of detention did not amount to a violation of Article 3 (prohibition of inhuman or degrading treatment), their expulsion to Serbia did insofar as they had not had the benefit of effective guarantees to protect them from exposure of a real risk of being subjected to inhuman and degrading treatment.
By way of background the applicants were part of a group of asylum seekers that tried to enter Hungry in 2015 following the introduction of a Government Decree. The applicants were held in the Röszke transit zone. While transit zone was surrounded by a fence, guarded and could not be accessed from the outside (including the applicants lawyers). It was argued that this amounted to a deprivation of liberty. The Hungarian Government argued the applicant’s detention had been more of practical arrangement than a formal decision of legal relevance, complete with reasoning. Furthermore the applicants could have left the transit zone voluntarily in the direction of Serbia rather than seeking to enter Hungary i.e. Serbia was a designated “safe third country”.
In its first ruling on the Government Decree, the ECtHR found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention. The ECtHR emphasised the fact that the applicants had been in confinement for more than three weeks in the Röszke transit zone, in a guarded compound which could not be accessed from the outside even by legal representatives, and with no adequate safeguards, had ultimately amounted to a de facto deprivation of their liberty. The ECtHR found that the applicants did not have access to an effective remedy with respect to the conditions of their detention. Ultimately the applicants were sent back to Serbia without ever having the possibility of ill-treatment genuinely considered by the asylum authority or by the national court in their attempted appeals against the Szeged Administrative ruling.
The legal implications of the ruling are potentially significant in terms of the rights of asylum seekers. Firstly the ECtHR analysis of the Government Decree of 2015 calls into question the legality of ‘Dublin returns’ to Serbia - similar to the ruling in M.S.S. v. Belgium and Greece (which PILA previously wrote about here). In reference to the applicants’ asylum proceedings, the ECtHR stated that: ‘the procedure applied by the Hungarian authorities had not provided the necessary protection against a real risk of inhuman and degrading treatment. Notably, having failed to carry out an individual assessment of each applicant’s case, the authorities had: schematically referred to the Government’s list of safe third countries; disregarded the country reports and other evidence submitted by the applicants; and imposed an unfair and excessive burden on them to prove that they were at real risk of a chain-refoulement situation, whereby they could eventually be driven to Greece to face inhuman and degrading reception conditions’.
The ECtHR went on to called into question the similar asylum procedures of Serbia along with, the conditions asylum seekers are subject to within that system. The ECtHR stated that Serbia’s asylum procedures were as inadequate as the Hungarian system with only one exception; the deprivation of liberty. In effect the ECtHR determined the existence of potential violations of Art. 3 in situations where asylum seekers experience a forced return to Serbian borders. The judgement in Ilias and Ahmed is a landmark ruling in the protection of the rights of refugees and asylum-seekers taking the Western Balkans route.
Click here for a copy of the judgement.
For further commentary click here.