Violation of the Convention due to the collective expulsion of foreigners in Hungary

In the case of Shahzad v. Hungary (application no. 12625/17, 08.07.2021) the EuropeanmCourt of Human Rights held, unanimously, that there had been a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) to the European Convention on Human Rights, and a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 4 of Protocol No. 4.

The case concerned the applicant’s entry from Serbia to Hungary as part of a group and his subsequent summary expulsion by the police.

On 11 August 2016 the applicant crossed the border irregularly with a group of others. Several hours later he and the other members of the group were apprehended by Hungarian police and removed to the other side of the border fence between Hungary and Serbia. No formal decision had been taken. 

The only way for the applicant to enter Hungary lawfully was through two transit zones. According to the applicant, access them at the time was limited to 15 people. Asylum-seekers also had to register with one of the migrants (“the list manager”) before entry (he was refused once for being a single man). There was no official procedure for registering names on the waiting list and then allowing people from that list to enter the transit zone. As the applicant was unable to enter Hungary he stayed in Serbia. In late 2016 the applicant returned to Pakistan voluntarily.

The Court reiterated that with regard to Contracting States like Hungary, which had an external Schengen Area border, the effectiveness of the Convention rights required that those States made available genuine and effective means of legal entry, in particular border procedures for arrivals at the border. In the applicant’s case, the access points available had been located 40 and 84 km away from where he had been returned to Serbia. The applicant argued that those zones had been inaccessible for him owing to the daily limit on entrants and the need to register beforehand. The Court considered that due to the daily admission limits, which had been quite low, and lack of any formal procedure accompanied by appropriate safeguards governing the admission of migrants Hungary had failed to provide an effective means of entry. As a result, the Court found that the applicant’s expulsion had been “collective” leading to a violation of his rights.

The Court took note of the Government’s argument that individuals being removed under section 5(1a) of the State Borders Act were informed of their right to complain against the police measure. However, they had submitted neither the legal basis for such a complaint nor any relevant case-law. Nor had they referred to any other remedy. The Court found that the applicant had not had an adequate remedy at his disposal, leading to a violation the Convention.

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