issued by the Registrar of the Court

ECHR 090 (2017)

14.03.2017

Border-zone detention of two asylum-seekers was unlawful and their removal

from Hungary to Serbia exposed them to the risk of inhuman and degrading

reception conditions in Greece

The case of Ilias and Ahmed v. Hungary (application no. 47287/15) concerned the border-zone

detention for 23 days of two Bangladeshi asylum-seekers as well as their removal from Hungary to

Serbia. In today’s Chamber judgment¹in the case the European Court of Human Rights held,

unanimously, that there had been:

a violation of Article 5 §§ 1 and 4 (right to liberty and security) of the European Convention on

Human Rights because the applicants’ confinement in the Röszke border-zone had amounted to

detention, meaning they had effectively been deprived of their liberty without any formal, reasoned

decision and without appropriate judicial review;

no violation of Article 3 (prohibition of inhuman or degrading treatment) as concerned the

conditions of their detention in the transit zone, but a violation of Article 13 (right to an effective

remedy) as concerned the lack of an effective remedy with which they could have complained about

their conditions of detention; and,

a violation of Article 3 on account of the applicants’ expulsion to Serbia insofar as they had not had

the benefit of effective guarantees to protect them from exposure to a real risk of being subjected to

inhuman or degrading treatment.

The Court found in particular that, in the applicants’ asylum proceedings, the Hungarian authorities

had: failed to carry out an individual assessment of each applicant’s case; 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.

Principal facts

The applicants, Md Ilias Ilias and Ali Ahmed, are Bangladeshi nationals who were born in 1983 and

1980.

Having left Bangladesh, the applicants transited through Greece, “the former Yugoslav Republic of

Macedonia” and Serbia, eventually arriving in Hungary on 15 September 2015. They immediately

applied for asylum. For the next 23 days they stayed inside the Röszke transit zone situated on the

border between Hungary and Serbia; they could not leave in the direction of Hungary as the zone

was surrounded by a fence and guarded.

Following two sets of asylum proceedings, they were removed from Hungary essentially on the

strength of 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 notably found that

psychiatrist reports, following their visits with the applicants, had not shown that the applicants had

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

special needs which could not be met in the transit zone. Nor had the applicants 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 being applied.

Complaints, procedure and composition of the Court

Relying on Article 5 § 1 (right to liberty and security) and Article 5 § 4 (right to have lawfulness of

detention decided speedily by a court), the applicants alleged that the 23 days they had spent in the

transit zone amounted to a deprivation of liberty which had no legal basis and which could not be

remedied by appropriate judicial review.

Further relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to

an effective remedy), they alleged that their protracted confinement in the transit zone in

substandard conditions, especially given that they had been suffering from posttraumatic stress

disorder, had been inhuman. Further relying on Article 3, they alleged that their expulsion to Serbia,

without a thorough and individualised assessment of their cases, had exposed them to possible

chain-refoulement – via Serbia and FYROM – to Greece, where they had been at risk of inhuman

reception conditions. They further claimed that the inadequacy of the asylum proceedings had been

aggravated by the fact that the only legal information the authorities had given the applicants, who

were illiterate, had been written, and that one of them had been interviewed in a language he did

not speak.

The application was lodged with the European Court of Human Rights on 25 September 2015.

Judgment was given by a Chamber of seven judges, composed as follows:

Ganna Yudkivska (Ukraine), President,

Vincent A. De Gaetano (Malta),

András Sajó (Hungary),

Nona Tsotsoria (Georgia),

Krzysztof Wojtyczek (Poland),

Gabriele Kucsko-Stadlmayer (Austria),

Marko Bošnjak (Slovenia),

and also Marialena Tsirli, Section Registrar.

Decision of the Court

Article 5 §§ 1 and 4 (unlawfulness of applicants’ detention in the transit zone, without

judicial review)

The Court found that the applicants’ 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 their lawyer),

had amounted to a de facto deprivation of their liberty. It doubted that the applicants would have

voluntarily left the transit zone in the direction of Serbia, as suggested by the Government, as they

would have run the risk of forfeiting their asylum claim and refoulement.

Furthermore, the applicants’ detention had been more of a practical arrangement than a formal

decision of legal relevance, complete with reasoning. The applicants had thus been deprived of their

liberty without any formal decision. The Government’s submissions, according to which the

applicants’ stay at the transit zone had not amounted to detention but nevertheless had a

compelling basis in national law, namely section 71/A (1) and (2) of the Asylum Act, only cast doubt

on the clarity and foreseeability of the domestic provisions in question. Indeed, the Court found it

difficult to identify in those provisions any reference to the possibility of detention at the transit

zone. It followed that the applicants’ detention could not be considered “lawful”, in violation of

Article 5 § 1.

Moreover, it was quite inconceivable how the applicants could have pursued any judicial review of

their detention in the transit zone in such circumstances, their detention not having been ordered in

any formal proceedings or taken any shape of a decision. The Court therefore concluded that the

applicants had not had the possibility of bringing “proceedings by which the lawfulness of [their]

detention [could have been] decided speedily by a court”, in violation of Article 5 § 4.

Articles 3 and 13 (conditions of detention)

The Court considered that the applicants’ conditions of detention had been satisfactory. They had

been the only occupants of a container measuring 13 square metres meant to sleep five; they had

been provided with sanitary facilities in separate containers; they had been given three meals daily;

and the health-care facilities, including their having had access to a psychiatrist, had generally been

favourable. Indeed, in a report issued soon after the applicants had left the transit zone, the

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment (“CPT”) had described the conditions in the transit zone as acceptable.

Furthermore, although the Court took into account psychiatric reports which found that the

applicants had been suffering from post-traumatic stress disorder, it considered that they had not

been more vulnerable than any other adult asylum-seeker detained at the time.

In view of the above as well as the relatively short time involved, the Court concluded that the

applicants’ conditions of detention had not reached the minimum level of severity necessary to

constitute inhuman treatment under Article 3. There had therefore been no violation of Article 3.

Nevertheless, it considered that the applicants’ complaints concerning their conditions of detention

had raised serious questions of fact and law requiring examination on the merits. Yet the

Government had not indicated any remedies by which the applicants could have complained about

the conditions in which they had been held in the transit zone. There had therefore been a violation

of Article 13.

Article 3 (risk of inhuman and degrading treatment)

First, the Court noted that the Government had not convincingly explained why there had been an

abrupt legislative change in July 2015 in the Hungarian stance on Serbia from the perspective of

asylum proceedings, Serbia not having been considered a safe country up until that point. This

reversal of attitude was of particular concern, especially given the reservations expressed as late as

December 2016 by the United Nations High Commissioner for Refugees and respected international

human rights organisations about removal to Serbia.

As concerned the applicants’ asylum proceedings, the Court found 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.

Aside from those shortcomings, the Court further observed that, owing to a mistake, the first

applicant had been interviewed and given an information leaflet on asylum proceedings in a

language he did not understand. As a consequence, his chances of actively participating in the

proceedings and explaining the details of his flight from his country of origin had been extremely

limited. In addition, despite the applicants being illiterate, all the information they had received on

the asylum proceedings had been contained in a leaflet. The authorities had thus failed to provide

the applicants with sufficient information on the procedure. Moreover, a translation of the decision

in their case had only been given to their lawyer at a time when they had already been outside

Hungary for two months.

The Court therefore concluded that the applicants had not had the benefit of effective guarantees

which would have protected them from exposure to a real risk of being subjected to inhuman or

degrading treatment, in breach of Article 3 of the Convention.

Article 41 (just satisfaction)

The Court held that Hungary was to pay each applicant 10,000 euros (EUR) in respect of non-

pecuniary damage and EUR 8,705 for costs and expenses.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.