European Court of Human Rights Grand Chamber rules in Ilias and Ahmed v. Hungary

On 21 November 2019, the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) rendered judgment in favour of the applicants in Ilias and Ahmed v. Hungary.  The case 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 had been rejected.  The judgment is an important development on the treatment of asylum-seekers within Europe and the interplay between the European Convention on Human Rights (ECHR) and EU law in this field, particularly as regards the Hungarian authorities’ systematic practice of returning asylum-seekers to Serbia.

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The applicants complained that Hungarian authorities failed adequately to examine their allegation that they faced a real risk of ill-treatment by being expelled to Serbia in violation of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR.  They also complained, under the same provision, about their conditions of detention in the transit zone.  The applicants further alleged that they had been confined to the transit zone in violation of Article 5 § 1 (right to liberty and security) and Article 5 § 4 of the ECHR (right to have lawfulness of detention decided speedily by a court).

In a Chamber judgment of 14 March 2017, the ECtHR unanimously held that there had been a violation of Article 5 §§ 1 and 4 as regards the applicants’ confinement in the transit zone.  However, the Chamber unanimously found no violation of Article 3 as regards the conditions of the applicants’ detention in the transit zone or their expulsion to Serbia.  The case was then referred to the GC, at the request of the Hungarian Government.

In its judgment, the GC held, unanimously, that there had been a violation of Article 3 due to the applicants’ removal to Serbia.  The Court found that Hungary had “failed to discharge its procedural obligations under Article 3” to assess the risks of the applicants not having access to an “effective asylum procedure in Serbia” or being “removed from Serbia to North Macedonia and then Greece”, where conditions in refugee camps had already been found to violate Article 3.

As regards conditions in the transit zone, the GC unanimously found no violation of Article 3.  It ruled that, in light of the “material conditions at the zone”, the “length of the applicants’ stay” there, and the “possibilities for human contact with other asylum-seekers, UNHCR representatives, NGOs and a lawyer”, the situation complained of “did not reach the minimum level of severity necessary to constitute inhuman treatment” under Article 3.

Finally, the GC found, by a majority, that the applicants’ complaint under Article 5 §§ 1 and 4 was inadmissible.  In particular, the risk of the applicants forfeiting the examination of their asylum claims in Hungary and their fears about insufficient access to asylum procedures in Serbia did not make the applicants’ stay in the transit zone involuntary from the standpoint of Article 5.

The GC ordered Hungary to pay the applicants 5,000 euros (EUR) each for non-pecuniary damages and EUR 18,000 jointly for all costs and expenses.

The Chamber’s judgment is here

The Grand Chamber’s judgment is here