CASE OF ILIAS AND AHMED v. HUNGARY
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Serbia);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
9. The applicants were born on 1 January 1983 and 3 June 1980 respectively. Having left their home country, Bangladesh, they travelled through Pakistan, Iran, and Turkey, and entered the territory of the European Union in Greece. From there, they transited through the former Yugoslav Republic of Macedonia to Serbia. Mr Ilias spent some 20 hours on Serbian territory; whereas Mr Ahmed two days. At last, on 15 September 2015 they arrived in the Röszke transit zone situated on the border between Hungary and Serbia. On the same day, they submitted applications for asylum. 10. From that moment on, the applicants stayed inside the transit zone, which they could not leave in the direction of Hungary. They alleged that the transit zone was, in their view, unsuitable for a stay longer than a day, especially in the face of their severe psychological condition. They were effectively locked in a confined area of some 110 square metres, part of the transit zone, surrounded by fence and guarded by officers; and were not allowed to leave it for Hungary. They claimed that they had no access to legal, social or medical assistance while in the zone. Moreover, there was no access to television or the Internet, landline telephone or any recreational facilities. They submitted that they stayed in a room of some 9 square metres containing beds for five. 11. The Government submitted that the containers measured 15 square metres. There were five beds in each container and an electric heater. The number of asylum-seekers never exceeded thirty in the material period. Hot and cold running water and electricity were supplied. Three pork-free meals were available daily to the applicants in a dining-container. Medical care was available for two hours daily by doctors of the Hungarian Defence Force. 12. According to the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) (see paragraphs 36 below), asylum seekers in the Röszke zone were accommodated in rooms of some 13 square metres in ground surface that were equipped with two to five beds fitted with clean mattresses, pillows and bedding. The accommodation containers had good access to natural light and artificial lighting, as well as to electric heating. Further, there was a narrow designated area in front of the containers to which foreign nationals had unrestricted access during the day. The sanitary facilities were satisfactory. The CPT delegation had a good impression of the health-care facilities and the general health care that was provided to foreign nationals in the establishment. 13. The applicants, both illiterate, were interviewed at once by the Citizenship and Immigration Authority (“the asylum authority”). By mistake, the first applicant was interviewed with the assistance of an interpreter in Dari, which he does not speak. Both applicants’ mother tongue was Urdu. According to the record of the meeting, the asylum authority gave the first applicant an information leaflet on asylum proceedings, which was also in Dari. The interview lasted two hours. An Urdu interpreter was present for the second applicant’s interview, which lasted 22 minutes. 14. According to the notes taken during the interviews Hungary was the first country where both applicants had applied for asylum. 15. By a decision delivered on the very same day of 15 September 2015, the asylum authority rejected the applicants’ asylum applications, finding them inadmissible on the grounds that Serbia was to be considered a “safe third country” according to Government Decree no. 191/2015. (VII.21.) on safe countries of origin and safe third countries (“the Government Decree”, see paragraph 33 below). The asylum authority ordered the applicants’ expulsion from Hungary. 16. The applicants challenged the decision before the Szeged Administrative and Labour Court. On 20 September 2015 the applicants, through representatives of the Office of the United Nations High Commissioner for Refugees (“UNHCR”) who had access to the transit zone, authorised two lawyers acting on behalf of the Hungarian Helsinki Committee to represent them in the judicial review procedure. However, the authorities did not allow the lawyers to enter the transit zone to consult with their clients until the evening of 21 September 2015, that is, after the court hearing. 17. On 21 September 2015 the court held a hearing regarding both applicants with the assistance of an Urdu interpreter. Both applicants stated that they had received a document from the Serbian authorities written in Serbian, which they could not understand, and that they had been ordered to leave Serbian territory. At the hearing, the second applicant submitted that he had applied for asylum in Serbia, but his application had not been examined. 18. The court annulled the asylum authority’s decisions and remitted the case to it for fresh consideration. It relied on section 3(2) of the Government Decree and argued that the asylum authority should have analysed the actual situation in Serbia regarding asylum proceedings more thoroughly. It should also have informed the applicants of its conclusions on that point and afforded them three days to rebut the presumption of Serbia being a “safe third country” with the assistance of legal counsel. 19. On 23 September 2015, at the request of their lawyers, a psychiatrist commissioned by the Hungarian Helsinki Committee visited the applicants in the transit zone and interviewed them with the assistance of an interpreter attending by telephone. Her opinion stated that the first applicant (Mr Ilias) had left Bangladesh in 2010 partly because of a flood and partly because two political parties had been trying to recruit him. When he refused, he was attacked and suffered injuries. The psychiatrist observed that he was well oriented, able to focus and recall memories, but showed signs of anxiety, fear and despair. He was diagnosed with post-traumatic stress disorder (“PTSD”). 20. With regard to the second applicant (Mr Ahmed), the medical report stated that he had fled his country five years before. He had previously worked abroad, during which time his whole family had died in a flood. He had then left Bangladesh and migrated through several countries in order to restart his life. He was found to be well oriented with no memory loss but with signs of depression, anxiety and despair. He was diagnosed with PTSD and as having an episode of depression. 21. Neither of the reports contained any indication of urgent medical or psychological treatment. However, the psychiatrist was of the opinion that the applicants’ mental state was liable to deteriorate due to the confinement. 22. According to the documents in the case file, on 23 September 2015 the asylum authority informed the applicants’ legal representatives by telephone that a hearing would be held two days later. However, the applicants submitted that no such precise information had been given to their representatives. 23. Since their legal representatives were not present at the hearing, the applicants decided not to make any statement. With the assistance of an Urdu interpreter, the asylum authority informed the applicants that they had three days to rebut the presumption of Serbia being a safe third country. 24. On 28 September 2015 the applicants’ legal representatives made submissions to the asylum authority and requested that a new hearing be held, which they would attend. 25. On 30 September 2015 the asylum authority again rejected the applications for asylum. It found that the reports prepared by the psychiatrist had not provided enough grounds to grant the applicants the status of “persons deserving special treatment” since they had not revealed any special need that could not be met in the transit zone. As to the status of Serbia being classed as a “safe third country”, the asylum authority noted that the applicants had not referred to any pressing individual circumstances substantiating the assertion that Serbia was not a safe third country in their case, thus they had not managed to rebut the presumption. As a consequence, the applicants’ expulsion from Hungary was ordered. 26. The applicants sought judicial review by the Szeged Administrative and Labour Court. On 5 October 2015 the court upheld the asylum authority’s decision. It observed in particular that, in the resumed proceedings, the asylum authority had examined, in accordance with the guidance of the court, whether Serbia could be regarded generally as a safe third country for refugees and had found on the basis of the relevant law and the country information obtained that it was so. It had considered the report of the Belgrade Centre for Human Rights published in 2015, the reports of August 2012 and June 2015 issued by the UNHCR concerning Serbia together with other documents submitted by the applicants. It had established on the basis of those documents that Serbia satisfied the requirements of section 2 (i) of the Asylum Act. The court was satisfied that the asylum authority had established the facts properly and observed the procedural rules, and because the reasons for its decision were clearly stated and were reasonable. 27. The court further emphasised that the applicants’ statements given at the hearings were contradictory and incoherent. The first applicant had given various reasons for leaving his country and made confusing statements on whether he had received any documents from the Serbian authorities. The document he had finally produced was not in his name, and therefore it could not be taken into account as evidence. Never in the course of the administrative proceedings had he referred to the conduct of human traffickers before his hearing by the court. The second applicant’s statements were incoherent on the issue of the duration of his stay in Serbia and the submission of a request for asylum. The applicants had not relied on any specific fact that could have led the authority to consider Serbia non-safe in their respect. They had contested the safety of Serbia only in general which was not sufficient to rebut the presumption. 28. Lastly, the court was satisfied that the authority’s procedure had been in compliance with the law. 29. The final decision was served on the applicants on 8 October 2015. It was written in Hungarian but explained to them in Urdu. Escorted to the Serbian border by officers, the applicants subsequently left the transit zone for Serbia without physical coercion being applied. 30. On 22 October 2015 the transcript of the court hearing held on 5 October 2015 was sent to the applicants’ lawyer. On 10 December 2015 the lawyer received the Urdu translation of the court’s decision taken at the hearing. On 9 March 2016 the applicants’ petitions for review were dismissed on procedural grounds, since the Kúria held that it had no jurisdiction to review such cases.