The ECHR ruling of July 08, 2021 in the case of Shahzad v. Hungary (complaint No. 63772/16).
In 2016, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to Hungary.
In the case, a complaint was successfully considered about the forced placement of migrants on a narrow strip of land behind a border fence, which was tantamount to expulsion. The provisions of article 4 of Protocol No. 4 to the Convention are applicable to the case. In the case, the applicant's expulsion from the territory of Hungary is being appealed against after entering the country illegally, but not harming anyone, in the absence of a formal procedure and guarantees, as well as an individual decision on his case, despite limited access to methods of lawful entry into the territory of Hungary. There was a violation of article 4 of Protocol No. 4 to the Convention in the case.
CIRCUMSTANCES OF THE CASE
In August 2016, a group of 12 Pakistani citizens, including the applicant, illegally crossed the Hungarian border by cutting a hole in the fence on the border between Hungary and Serbia. They walked for several hours through the territory of Hungary before stopping to rest in a field, where they were intercepted by Hungarian police officers and "detained and escorted" to them in accordance with paragraph 1 (a) of article 5 of the Law on the State Border. In a truck, these persons were taken to the nearest border fence, and then police officers led them through the gate to the outside of the fence from Serbia. The applicant, who had injuries, was sent to the reception center for foreigners in Subotica, Serbia, and from there he was sent to the nearest hospital.
LEGAL ISSUES
Regarding compliance with article 4 of Protocol No. 4 to the Convention. (a) Applicability. The fact that the applicant entered the territory of Hungary illegally and was detained a few hours after crossing the border and probably not far from it did not prevent the application of article 4 of Protocol No. 4 to the Convention. In addition, this provision may be applied even if the measure under consideration in the case is not qualified as "expulsion" by the legislation of the State concerned. In the present case, the European Court had to consider whether the fact that the applicant was not sent directly to the territory of another State, but was placed on a narrow strip of land between the Hungarian border fence and the real border of Hungary with Serbia, meant that the contested measure was outside the scope of Article 4 of Protocol No. 4 to the Convention. The Court found that this did not happen and that the applicant's transfer to the outside of the border fence was an expulsion within the meaning of Article 4 of Protocol No. 4 to the Convention.
In particular, the fence was clearly erected to protect the border between the two states. A narrow strip of land without infrastructure on the outside of the fence was of exclusively technical importance related to border maintenance, and in order to enter Hungary, deported migrants had to pass through one of the transit zones, which usually meant crossing the territory of Serbia. In its resolution of December 17 , 2020 On Hungary's implementation of Directives 2008/115/EC and 2013/32/EC, the Court of Justice of the European Union (the Court of Justice of the European Union) found that migrants expelled on the basis of paragraph 1 (a) of Article 5 of the Law on the State Border had no choice but to leave the territory of Hungary. In addition, in the present case, it seems that the group of persons being expelled was sent by the relevant officers towards Serbia. Consequently, the measure applied to the applicant was intended to expel the applicant from the territory of Hungary and led to exactly this result. Referring exclusively to the formal status of the strip of land on the outside of the border fence as part of the territory of Hungary and ignoring the political realities mentioned above will deprive article 4 of Protocol No. 4 to the Convention of practical effectiveness in cases similar to what is considered in this complaint, and will allow States to circumvent the obligations imposed on them by the said convention provision. Problems with the management of migrant flows cannot justify the existence of an area outside the legal field where individuals are outside the operation of any legal system capable of ensuring their rights and guarantees protected by the Convention.
(b) The substance of the complaint. It was not disputed that the applicant had been expelled from Hungary without any identification procedure being carried out against him or his individual situation being examined by the Hungarian authorities. Therefore, it should be clarified whether the absence of an individual examination of the applicant's situation could be due to the applicant's own behavior. In this regard, the European Court took into account the following circumstances.
Firstly, although the applicant, together with other migrants, crossed the Hungarian border illegally, it followed from the video provided that they were following orders from employees of the relevant Hungarian State authorities and that the situation was under the full control of these employees. There was no indication that the applicant and other migrants resisted or used force against Hungarian government officials. The Hungarian authorities also did not claim that crossing the border by the applicant and other migrants would create an explosive, uncontrollable situation in the country or that their actions would compromise public safety in the country. Therefore, apart from illegal entry into the territory of Hungary, the present case cannot be compared with the Ruling of the Grand Chamber of the European Court in the case "N.D. and N.T. v. Spain" (See: The Ruling of the Grand Chamber of the European Court in the case "N.D. and N.T. v. Spain" (N.D. and N.T. v. Spain) dated February 13, 2020, complaint No. 8675/15 // Precedents of the European Court of Human Rights. Special Issue. 2020. N 4).
Secondly, with regard to the question of whether the applicant had bypassed the effective procedure of legal entry into Hungary by his illegal border crossing, each of the two available transit zones accepted a fairly small number of applications for international protection per day, and those persons who wanted to enter the transit zone had to first register their name in the on a waiting list and potentially waiting several months in Serbia before they would be allowed to enter Hungary. Although the applicant claimed that he had asked the person involved in the preparation of the waiting list to add his name to the list, he was never registered. In this regard, the Office of the United Nations High Commissioner for Refugees (hereinafter referred to as the Office) and the Special Representative of the Secretary General of the Council of Europe for Migration and Refugees pointed to shortcomings and lack of transparency in managing access to transit zones and when working with waiting lists. The Department also noted that persons without satellites, who also had no apparent external reasons for special treatment to them, were actively dissuaded from the need to approach transit zones. In view of the above and, in particular, the informal nature of this procedure, the applicant cannot be held responsible for the fact that his name was not included in the waiting list.
Thus, taking into account the limited access to transit zones and the absence of a formal procedure with adequate guarantees that would regulate the reception of migrants in such circumstances, the Hungarian authorities did not provide the applicant with an effective way of legal entry into the State. Consequently, the absence of an individual decision to expel the applicant cannot be explained by the applicant's own conduct. Thus, taking into account the fact that the Hungarian authorities expelled the applicant without establishing his identity and without considering his situation, and taking into account the lack of effective access to legal means of entry into Hungary, the applicant was expelled from the country as part of the collective expulsion of foreigners.
In the light of the above, the European Court also rejected, with the addition to the consideration of the complaint on the merits, the argument of the Hungarian authorities about the applicant's lack of victim status, since he had not filed an application for international protection.
RESOLUTION
There was a violation of article 4 of Protocol No. 4 to the Convention in the case (adopted unanimously).
The European Court also ruled unanimously that there had been a violation of article 13 of the Convention, examined in conjunction with Article 4 of Protocol No. 4 to the Convention, due to the applicant's lack of an effective remedy to appeal his expulsion from Hungary.
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 5,000 euros in compensation for non-pecuniary damage.