I incorrectly predicted that there's no violation of human rights in W.A. v. HUNGARY and 2 other applications.

Judgment

FIRST SECTION
CASE OF W.A. AND OTHERS v. HUNGARY

(Applications nos. 64050/16 and 2 others – see appended list)

JUDGMENT
STRASBOURG
15 December 2022

This judgment is final but it may be subject to editorial revision. In the case of W.A. and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Alena Poláčková, President, Péter Paczolay, Gilberto Felici, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the applications against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;
the decision not to have the applicants’ names disclosed;
the decision to give notice to the Hungarian Government (“the Government”) represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice, of the complaints under Article 3 of the Convention concerning the applicants’ expulsion to Serbia and to declare inadmissible the complaints under Article 3 of the Convention concerning the conditions in the Röszke transit zone as well as the complaints under Article 5 §§ 1 and 4 of the Convention;
the parties’ observations;
Having deliberated in private on 22 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applications concern the applicants’ removal to Serbia following the rejection of their asylum requests as inadmissible by the Hungarian authorities, which considered Serbia to be a “safe third country”. 2. The applicants are Syrian nationals. Their personal details are set out in the appended table. 3. At the end of April 2016 the applicants arrived in Hungary from Serbia and entered the Röszke transit zone, situated on Hungarian territory at the border between the two countries. They immediately applied for asylum. The asylum authority rejected the applicants’ requests as inadmissible within a few hours of their submission and ordered their expulsion. The applicants requested a judicial review of these decisions, to no avail. The Szeged Administrative and Labour Court found that, as the applicants had not rebutted the presumption that they had had an opportunity to enjoy effective international protection in Serbia, Serbia was to be considered a safe third country for them. Furthermore, the applicants’ failure to rebut the aforementioned presumption meant that they had not established any circumstances justifying the application of the non-refoulement principle. 4. On being notified of the administrative courts’ rejection of their asylum claim, the applicants were taken out of the transit zone by the Hungarian authorities and were made to cross the border back into Serbia without any official arrangement with the Serbian authorities. 5. The applicants complained under Article 3 of the Convention that their expulsion to Serbia had taken place as a result of a deficient asylum procedure exposing them to (i) a risk that they would not be allowed access to an asylum procedure in Serbia; (ii) a risk of chain refoulement; and (iii) inadequate reception conditions in Serbia. They also complained under Article 13 of the Convention in conjunction with Article 3 that the domestic remedies concerning the rejection of their asylum request and their expulsion had been ineffective. 6. The Court has previously considered the applicable domestic law and international material in Ilias and Ahmed v. Hungary ([GC], no. 47287/15, §§ 41-78, 21 November 2019). THE COURT’S ASSESSMENT
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 8. The Court notes that the complaints raised under Article 3 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 9. The general principles concerning an expelling State’s procedural duty under Article 3 of the Convention in cases of removal of an asylum-seeker to a third country without examination of the asylum claim on the merits have been summarised in Ilias and Ahmed (cited above, §§ 128-50). 10. The present cases disclose very similar facts and complaints to those the Court has already examined in Ilias and Ahmed (ibid., §§ 7-40). In that case the Court found that the respondent State had failed to discharge its procedural obligation under Article 3 of the Convention in that it had not assessed the risk of the applicants’ summary removal from Serbia before expelling them to that country (ibid., § 163). In particular, the Court found that the general legislative presumption that Serbia was a safe third country had not been sufficiently substantiated. It also noted that the authorities’ individual assessment of the Serbian asylum system did not take into account the findings of the Office of the United Nations High Commissioner for Refugees (UNHCR) according to which at the relevant time asylum-seekers returned to Serbia ran a real risk of not being protected against refoulement to North Macedonia and then to Greece (ibid., §§ 158-60). The Court also noted that the Hungarian authorities had exacerbated the risks faced by the applicants by inducing them to enter Serbia illegally instead of making an arrangement with the Serbian authorities concerning their readmission (ibid., § 161). 11. Even though in Ilias and Ahmed the impugned asylum proceedings took place between September and October 2015, that is, six months before the proceedings in the applicants’ case, the applicable domestic law and the relevant country reports remained the same. The Court notes that the asylum authority’s assessment of Serbia as a safe third country in Ilias and Ahmed was identical to that in the applicants’ cases. The fact that, unlike the applicants in Ilias and Ahmed, the applicants in the present case had no legal representation in the course of the asylum proceedings and were not heard before the Szeged Administrative and Labour Court (contrast Ilias and Ahmed, cited above, § 157) only aggravated the State’s procedural violation of Article 3 of the Convention. All other circumstances being equal, and noting that the Government’s argument that the UNHCR’s report was unreliable is entirely unsubstantiated, the Court sees no reasons to depart from its findings in Ilias and Ahmed (ibid., §§ 151-65). 12. Having regard to all of the above, the Court therefore concludes that the respondent State failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision before removing the applicants from Hungary. This makes it unnecessary for the Court to examine whether Article 3 was breached on the additional ground that the Hungarian authorities allegedly failed to assess whether the applicants would run a risk of being denied adequate reception conditions in Serbia (ibid., § 165). 13. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. 14. The applicants complained that the domestic remedies concerning the rejection of their asylum requests and their expulsion were ineffective and that there had therefore been a violation of Article 13 of the Convention in conjunction with Article 3. 15. Having found a violation of Article 3 of the Convention, and in view of the fact that the alleged procedural shortcomings in the examination of the applicants’ asylum requests have been sufficiently examined under that Article, the Court does not find it necessary to examine the admissibility and merits of the complaint under Article 13 regarding those same alleged shortcomings (see Ilias and Ahmed, cited above, § 179). 16. The applicants claimed 5,000 euros (EUR) each in respect of non‐pecuniary damage and the amounts indicated in the appended table in respect of costs and expenses incurred before the Court. 17. The Government found the applicants’ claims for just satisfaction to be excessive. It noted in particular that lawyer’s fees had been claimed in all three cases for preparing the same observations. 18. The Court, making its assessment on an equitable basis, awards the applicants EUR 5,000 each in respect of non-pecuniary damage, plus any tax that may be chargeable. 19. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants EUR 3,000 jointly, covering costs under all heads for the proceedings before the Court, plus any tax that may be chargeable to them, and dismisses the remainder of the claims. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Alena Poláčková Deputy Registrar President

APPENDIX
No. Application no.Case nameIntroduction date
Applicant’s nameYear of birth
Place of residenceNationality
Representative’s nameLocation
Costs and expenses claimed
1. 64050/16W.A. v. Hungary02/11/2016
W.A.1994Linköping, SwedenSyrian
Barbara POHÁRNOKBudapest, Hungary
EUR 6,450
2. 64558/16M.C. v. Hungary04/11/2016
M.C.1976Gothenburg, SwedenSyrian
Barbara POHÁRNOKBudapest, Hungary
EUR 3,150
3. 66064/16M.H. v. Hungary04/11/2016
M.H.1998Belgrade,
SerbiaSyrian
Barbara POHÁRNOKBudapest, Hungary
EUR 3,300

FIRST SECTION
CASE OF W.A. AND OTHERS v. HUNGARY

(Applications nos. 64050/16 and 2 others – see appended list)

JUDGMENT
STRASBOURG
15 December 2022

This judgment is final but it may be subject to editorial revision. In the case of W.A. and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Alena Poláčková, President, Péter Paczolay, Gilberto Felici, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the applications against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;
the decision not to have the applicants’ names disclosed;
the decision to give notice to the Hungarian Government (“the Government”) represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice, of the complaints under Article 3 of the Convention concerning the applicants’ expulsion to Serbia and to declare inadmissible the complaints under Article 3 of the Convention concerning the conditions in the Röszke transit zone as well as the complaints under Article 5 §§ 1 and 4 of the Convention;
the parties’ observations;
Having deliberated in private on 22 November 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applications concern the applicants’ removal to Serbia following the rejection of their asylum requests as inadmissible by the Hungarian authorities, which considered Serbia to be a “safe third country”. 2. The applicants are Syrian nationals. Their personal details are set out in the appended table. 3. At the end of April 2016 the applicants arrived in Hungary from Serbia and entered the Röszke transit zone, situated on Hungarian territory at the border between the two countries. They immediately applied for asylum. The asylum authority rejected the applicants’ requests as inadmissible within a few hours of their submission and ordered their expulsion. The applicants requested a judicial review of these decisions, to no avail. The Szeged Administrative and Labour Court found that, as the applicants had not rebutted the presumption that they had had an opportunity to enjoy effective international protection in Serbia, Serbia was to be considered a safe third country for them. Furthermore, the applicants’ failure to rebut the aforementioned presumption meant that they had not established any circumstances justifying the application of the non-refoulement principle. 4. On being notified of the administrative courts’ rejection of their asylum claim, the applicants were taken out of the transit zone by the Hungarian authorities and were made to cross the border back into Serbia without any official arrangement with the Serbian authorities. 5. The applicants complained under Article 3 of the Convention that their expulsion to Serbia had taken place as a result of a deficient asylum procedure exposing them to (i) a risk that they would not be allowed access to an asylum procedure in Serbia; (ii) a risk of chain refoulement; and (iii) inadequate reception conditions in Serbia. They also complained under Article 13 of the Convention in conjunction with Article 3 that the domestic remedies concerning the rejection of their asylum request and their expulsion had been ineffective. 6. The Court has previously considered the applicable domestic law and international material in Ilias and Ahmed v. Hungary ([GC], no. 47287/15, §§ 41-78, 21 November 2019). THE COURT’S ASSESSMENT
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 8. The Court notes that the complaints raised under Article 3 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 9. The general principles concerning an expelling State’s procedural duty under Article 3 of the Convention in cases of removal of an asylum-seeker to a third country without examination of the asylum claim on the merits have been summarised in Ilias and Ahmed (cited above, §§ 128-50). 10. The present cases disclose very similar facts and complaints to those the Court has already examined in Ilias and Ahmed (ibid., §§ 7-40). In that case the Court found that the respondent State had failed to discharge its procedural obligation under Article 3 of the Convention in that it had not assessed the risk of the applicants’ summary removal from Serbia before expelling them to that country (ibid., § 163). In particular, the Court found that the general legislative presumption that Serbia was a safe third country had not been sufficiently substantiated. It also noted that the authorities’ individual assessment of the Serbian asylum system did not take into account the findings of the Office of the United Nations High Commissioner for Refugees (UNHCR) according to which at the relevant time asylum-seekers returned to Serbia ran a real risk of not being protected against refoulement to North Macedonia and then to Greece (ibid., §§ 158-60). The Court also noted that the Hungarian authorities had exacerbated the risks faced by the applicants by inducing them to enter Serbia illegally instead of making an arrangement with the Serbian authorities concerning their readmission (ibid., § 161). 11. Even though in Ilias and Ahmed the impugned asylum proceedings took place between September and October 2015, that is, six months before the proceedings in the applicants’ case, the applicable domestic law and the relevant country reports remained the same. The Court notes that the asylum authority’s assessment of Serbia as a safe third country in Ilias and Ahmed was identical to that in the applicants’ cases. The fact that, unlike the applicants in Ilias and Ahmed, the applicants in the present case had no legal representation in the course of the asylum proceedings and were not heard before the Szeged Administrative and Labour Court (contrast Ilias and Ahmed, cited above, § 157) only aggravated the State’s procedural violation of Article 3 of the Convention. All other circumstances being equal, and noting that the Government’s argument that the UNHCR’s report was unreliable is entirely unsubstantiated, the Court sees no reasons to depart from its findings in Ilias and Ahmed (ibid., §§ 151-65). 12. Having regard to all of the above, the Court therefore concludes that the respondent State failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision before removing the applicants from Hungary. This makes it unnecessary for the Court to examine whether Article 3 was breached on the additional ground that the Hungarian authorities allegedly failed to assess whether the applicants would run a risk of being denied adequate reception conditions in Serbia (ibid., § 165). 13. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. 14. The applicants complained that the domestic remedies concerning the rejection of their asylum requests and their expulsion were ineffective and that there had therefore been a violation of Article 13 of the Convention in conjunction with Article 3. 15. Having found a violation of Article 3 of the Convention, and in view of the fact that the alleged procedural shortcomings in the examination of the applicants’ asylum requests have been sufficiently examined under that Article, the Court does not find it necessary to examine the admissibility and merits of the complaint under Article 13 regarding those same alleged shortcomings (see Ilias and Ahmed, cited above, § 179). 16. The applicants claimed 5,000 euros (EUR) each in respect of non‐pecuniary damage and the amounts indicated in the appended table in respect of costs and expenses incurred before the Court. 17. The Government found the applicants’ claims for just satisfaction to be excessive. It noted in particular that lawyer’s fees had been claimed in all three cases for preparing the same observations. 18. The Court, making its assessment on an equitable basis, awards the applicants EUR 5,000 each in respect of non-pecuniary damage, plus any tax that may be chargeable. 19. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants EUR 3,000 jointly, covering costs under all heads for the proceedings before the Court, plus any tax that may be chargeable to them, and dismisses the remainder of the claims. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Alena Poláčková Deputy Registrar President

APPENDIX
No. Application no.Case nameIntroduction date
Applicant’s nameYear of birth
Place of residenceNationality
Representative’s nameLocation
Costs and expenses claimed
1. 64050/16W.A. v. Hungary02/11/2016
W.A.1994Linköping, SwedenSyrian
Barbara POHÁRNOKBudapest, Hungary
EUR 6,450
2. 64558/16M.C. v. Hungary04/11/2016
M.C.1976Gothenburg, SwedenSyrian
Barbara POHÁRNOKBudapest, Hungary
EUR 3,150
3. 66064/16M.H. v. Hungary04/11/2016
M.H.1998Belgrade,
SerbiaSyrian
Barbara POHÁRNOKBudapest, Hungary
EUR 3,300