On 12 October 2023, the European Court of Human Rights (‘ECtHR’) unanimously concluded that Hungary’s deportation of two families of asylum seekers to Serbia without an individual assessment of the families’ situations violated the procedural limb of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’), which deals with the prohibition on torture. The ECtHR further concluded that the circumstances of the deportation breached Article 4 of Protocol No. 4 of the Convention, which deals with the prohibition on the collective expulsion of aliens.
The ECtHR delivered its decision following a consideration of two applications which were lodged with the ECtHR and heard jointly. The first application was submitted by a Yemeni family who travelled from Turkey to Hungary using counterfeit documents in 2019, and who were detained by the Hungarian authorities and scheduled for deportation back to Turkey. The Yemeni family at this stage requested asylum (on the basis that they were fleeing war and would be unable to access necessary medical support in Yemen) and were informed that they would be escorted to a temporary border crossing to submit their asylum application in a transit zone which could be accessed from Serbian territory, as this was required under Hungarian law. Upon being transported to the Serbian border, the Yemeni family were instead forced to walk across the Serbian border at gunpoint, on the alleged basis that they were in Hungary illegally.
The second application was submitted by an Afghan family who travelled from the United Arab Emirates to Turkey in 2019 and who were detained by the Hungarian authorities when it was discovered that the family had travelled using counterfeit documents. The Afghan family requested asylum during questioning (on the grounds that they feared persecution in Afghanistan, given that a member of the family had previously worked for an NGO that campaigned for the criminalisation of forced marriages), and were subsequently transported to the Serbian border and forced to walk to Serbia. This decision to remove the family was once again made because the family allegedly lacked legal permission to be in Hungary. Both the Yemeni family and the Afghan family then brought a case to the ECtHR, alleging a violation of Article 3 and of Article 4 of Protocol No. 4.
The ECtHR found that Article 3 of the Convention was admissible in the circumstances of the case and that “the Hungarian authorities’ decision to remove the applicants was unrelated to the merits of their asylum claims”. Hungary’s automatic removal of the families therefore meant that it had “failed to discharge its procedural obligation under Article 3 of the Convention to examine whether the applicants would have access to an adequate asylum procedure in Serbia, the country to which they were removed”.
The ECtHR also concluded that Article 4 of Protocol No. 4 was admissible in the circumstances, and that “the applicants were removed to Serbia without being afforded an effective opportunity to submit arguments against their removal”. The ECtHR accordingly found that “their removal was therefore of a collective nature” in violation of Article 4 of Protocol No. 4.
The ECtHR, exercising its power under Article 41 of the Convention to award just satisfaction to a party injured by a violation of the Convention, awarded the Yemeni family €10,000 and the Afghan family €7,000 in respect of non-pecuniary damage. The ECtHR further awarded the applicants, who had the same legal representative, a joint sum of €3,000 in respect of costs and expenses.
Click here for the judgment in Case of S.S. and Others v Hungary App Nos 56417/19 and 44245/20 (ECHR, 12 October 2023).