The ECHR found a violation of the requirements of Article 4 of Protocol No. 4 to the Convention.

Заголовок: The ECHR found a violation of the requirements of Article 4 of Protocol No. 4 to the Convention. Сведения: 2024-06-26 03:41:20

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 preparing the complaint. Subsequently, the complaint was communicated to Hungary.

The case appeals against 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. The case appeals against the applicant's expulsion from the territory of Hungary after an unlawful but not harmful entry into the country 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.

 

THE 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 Hungarian territory before stopping to rest in a field, where they were intercepted by Hungarian police officers and subjected to "detention and transfer" in accordance with paragraph 1 (a) of article 5 of the Law on the State Border. The persons were taken in a truck 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 in question 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 European Court found that this did not happen and that the applicant's transfer to the outside of the border fence constituted 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. Moreover, in the present case, it appears that the group of persons being expelled was directed by the relevant officers towards Serbia. Consequently, the measure applied to the applicant was aimed at expelling the applicant from the territory of Hungary and led to exactly this result. Referring solely 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 above-mentioned political realities 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 scope 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 reviewed by the Hungarian authorities. Therefore, it should be clarified whether the lack of individual consideration of the applicant's situation could have been 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 had 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 Decision of the Grand Chamber of the European Court of Justice in the case "N.D. and N.T. v. Spain" (See: The Decision of the Grand Chamber of the European Court of Justice 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 for 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 the 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 responsible for compiling 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 in working with waiting lists. The Department also noted that people without satellites, who also had no apparent external reasons for special treatment, were actively dissuaded from approaching transit zones. Due to 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 lack of a formal procedure with appropriate guarantees that would regulate the reception of migrants in such circumstances, the Hungarian authorities did not provide the applicant with an effective way to legally enter 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 that the applicant did not have 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, considered 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.

 

 

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