EGMR: Hungary violated the rights of two asylum-seekers by expelling them to Serbia but their stay in a border transit zone was not deprivation of liberty

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 today’s Grand Chamber judgment 1 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.

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