Ilias and Ahmed (Bangladesh) vs Hungary
According the Court's Press Release,
The case of Ilias and Ahmed v. Hungary (application no. 47287/15) concerned two asylum-seekers from Bangladesh who spent 23 days in a Hungarian border transit zone before being removed to Serbia after their asylum applications were rejected.
In a Chamber judgment of 14 March 2017, the European Court of Human Rights held, unanimously, that there had been a violation of ECHR. On 18 September 2017 the Grand Chamber Panel accepted a request from the Hungarian Government that the case be referred to the Grand Chamber. A hearing was held on 18 April 2018.
In Grand Chamber's judgment the European Court of Human Rights held, unanimously, that there had been a violation of Article 3 (prohibition of torture or inhuman or degrading treatment) of the European Convention on Human Rights owing to the applicants’ removal to Serbia, and, no violation of Article 3 as regards the conditions in the transit zone, and, by a majority, that the applicants’ complaints under Article 5 §§ 1 and 4 (right to liberty and security) had to be rejected as inadmissible. The Court found in particular that the Hungarian authorities had failed in their duty under Article 3 to assess the risks of the applicants not having proper access to asylum proceedings in Serbia or being subjected to chain-refoulement, which could have seen them being sent to Greece, where conditions in refugee camps had already been found to be in violation of Article 3.
In a development of its case-law, it held that Article 5 was not applicable to the applicants’ case as there had been no de facto deprivation of liberty in the transit zone. Among other things, the Court found that the applicants had entered the transit zone of their own initiative and it had been possible in practice for them to return to Serbia, where they had not faced any danger to their life or health. Their fears of a lack of access to Serbia’s asylum system or of refoulement to Greece, as expressed under Article 3, had not been enough to make their stay in the transit zone involuntary.
Differences and Similarities between two Judgments
One main difference is the Grand Chamber’s finding under Article 5 (right to liberty and security) of the European Convention on Human Rights. The Chamber found that there had been a violation of Article 5 §§ 1 and 4 of the Convention as the applicant’ confinement in Hungary’s Röszke transit zone on the border with Serbia had amounted to deprivation of liberty and that there had been no formal decision with reasons for that measure or any review of it by the courts. The Grand Chamber has found that Article 5 does not apply to the applicants’ situation.
Similarly to the Chamber, the Grand Chamber found that there had been a violation of Article 3 owing to the applicants being returned to Serbia without a proper examination of their reception there. The Grand Chamber carried out a fuller analysis of this aspect of the case, coming to similar conclusions but making a number of points about the duties of States when they decide not to examine asylum-seekers’ application but refer to the notion of a safe third country to remove them. The Grand Chamber found no violation of Article 3 as regards the conditions in which the applicants had had to live in the transit zone, a decision that was the same as the Chamber’s. It also found differently from the Chamber on the question of a complaint by the applicants under Article 13 (effective remedies) in conjunction with Article 3 (prohibition of torture and inhuman or degrading treatment) about the conditions in the transit zone. It held that his complaint had been lodged outside the six-month time-limit set by the Convention, whereas the Chamber held that the complaint was admissible and found a violation.
Access to procedures; Detention/ Alternatives to Detention; Non-refoulement; Return/Removal/Deportation; Safe Country concept/Safe Country of Origin/ Safe third country;
ECHR Press Release
Council of Europe,CoE: European Court of Human Rights [ECHR], Ilias and Ahmed (Bangladesh) vs Hungary, 21/11/2019, ECLI:CE:ECHR:2019:1121JUD004728715ECHR rules on Hungary expelling asylum seekers to Serbia as violating ECHR. Stay in a border transit zone not considered as deprivation of liberty