29 Nov Refusing asylum applications and returning asylum seekers to Serbia was not in line with the Convention

In the case of Ilias and Ahmed v. Hungary (application no. 47287/15, 21.11.2019) 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, 
• 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 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 were rejected. 

The Court noted that Hungary had begun to classify Serbia as a safe third country from July 2015. The Hungarian Government had appeared to confirm in its submissions to the Grand Chamber that the change in classification had been due to the fact that Serbia was bound by international conventions; that as a European Union entry candidate it had been aided to improve its asylum system; and that there had been an unprecedented wave of migration at the time and measures had had to be taken. However, the Government had not provided any evidence that its authorities had examined the risk of a lack of effective access to asylum proceedings or the risk of refoulement. 

As to the applicants’ individual circumstances, the Court noted that the authorities had had access to reports on conditions in Serbia, particularly those produced by the UNHCR. However, the authorities had not given sufficient weight to concerns in such reports, such as people being denied access to asylum procedures in Serbia. 

The Hungarian authorities had contributed to the risks faced by the applicants by inducing them to return to Serbia in an illegal manner without obtaining any guarantees from the Serbian authorities. The Court thus found that Hungary had failed to comply with its procedural obligation to assess the risk of the applicants facing treatment contrary to Article 3 before removing them to Serbia and there had been a violation of that provision of the Convention.

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. 

References from the official website of the European Court of Human Rights