MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-17

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-17 Ilias and Ahmed v. Hungary (Application No. 47287/15) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1107, DH-DD(2021)1092, CM/Del/Dec(2021)1406/H46-14

 

Application	Case	Judgment of	Final on	Indicator for the classification
47287/15	ILIAS AND AHMED	21/11/2019	21/11/2019	Complex problem

Case description

The case concerns the authorities’ failure to comply with their procedural obligation under Article 3 to assess the risks of ill-treatment before removing the two asylum-seeking applicants to Serbia in 2015.

The Court found in particular that “there was an insufficient basis for the government’s decision to establish a general presumption concerning Serbia as a safe third country”, that “the expulsion decisions disregarded the authoritative findings of the UNHCR as to a real risk of denial of access to an effective asylum procedure in Serbia and summary removal from Serbia to North Macedonia and then to Greece, and that the authorities exacerbated the risks facing the applicants by inducing them to enter Serbia illegally instead of negotiating an orderly return” (§ 163).

Status of execution

On 22 October 2021, a second action report was received (DH-DD(2021)1107). On 12 October 2021, the Hungarian Helsinki Committee (HHC) submitted a communication under Rule 9.2 (DH-DD(2021)1092).

The information received, and that available in the public domain, can be summarised as follows:

Individual measures

At its 1406^th meeting (June 2021) (DH) the Committee considered that no further individual measures appear necessary.

General measures

At the 1406^th meeting (June 2021) (DH), the Committee in particular invited the authorities to carry out a reassessment in line with the requirements of the Court’s case-law of the legislative presumption of “safe third country” in respect of Serbia, as well as to demonstrate, preferably by case-law examples, that the risk of denial of access to an effective asylum procedure in Serbia and the risk of refoulement from that country are now thoroughly examined by the asylum authority and the national courts in similar cases along with the authoritative findings of the UNHCR.

The Committee further noted with concern that the respondent State’s practice of forced returns to Serbia appeared to have been intensified throughout the last years and called on the authorities to fully ensure that forced returns are framed by orderly procedures (cf. CM/Del/Dec(2021)1406/H46-14).

The reassessment of the legislative presumption of “safe third country” in respect of Serbia and of the underlying Government Decree No. 191/2015 (VII.21.) so far has not taken place. The impugned legislation is still in force. According to the authorities, there is still no reliable information that would indicate that the Serbian asylum system does not function in conformity with the Convention. In particular, the Court had not yet decided the pending cases concerning its possible shortcomings.[1] The authorities further reiterated that due to the judgment of 14 May 2020 of the Court of Justice of the European Union (CJEU),[2] a reform of the Hungarian asylum system was underway and that future developments of the Court’s case-law concerning Serbia as a “safe third country” would be taken into account.

Regarding the application in practice of the legislative presumption by the asylum authorities and the national courts, no information was provided by the authorities. It appears that in 2017 the former Immigration and Asylum Office temporarily stopped using the “safe third country” concept.[3] On 1 July 2018, the “safe transit country” inadmissibility ground was introduced into the Asylum Act[4] which, in practice, allowed the applicants’ expulsion towards Serbia[5] and was then applied by the domestic authorities instead of the “safe third country” ground up until July 2019.[6] Since then, the “safe transit country” inadmissibility ground appears to not have been applied anymore (see DH-DD(2021)1107 p. 2; DH-DD(2021)372, p. 6).

It further appears that in certain cases, where the authorities applied these concepts and approached the Serbian authorities to organise the orderly removal of the concerned individuals, the competent asylum authorities, in reaction to Serbia officially refusing to readmit any asylum seekers,[7] introduced a practice of modifying previous expulsion orders by changing the destination country from Serbia to the asylum seekers’ country of origin without assessing the protection claim in substance.[8] On 13 September 2021 the Court communicated a case concerning an application with a similar factual background.[9]

As of May 2020, transitional asylum proceedings were introduced, foreseen to be in force until the end of 2021. The new proceedings require asylum seekers first to submit a “statement of intent” at the Embassy of Hungary in Belgrade or Kyiv. Only if the authorities grant them a single-entry permit for this purpose, they are allowed to enter Hungary in order to lodge their asylum application.[10] Under the new rules – subject to an ongoing infringement procedure before the CJEU[11] – in the first half of 2021  20 persons were allowed to enter Hungary to submit asylum claims.[12] The authorities argue that the regulation was adopted on a transitional basis, to ensure the epidemiological protection of the population of Hungary and all residents of the EU. They state that effective access to asylum continues to be guaranteed within the new system and emphasise that it is the sovereign state’s right to authorise entry into its territory.[13]

From data published by the Hungarian authorities, it appears that forced removals without orderly procedures towards Serbia take place on a large scale. Between 1 January and 6 October 2021 the police escorted more than 46,000 individuals back to the outer side of the border fence.[14] According to NGO reports, such removals include unaccompanied minors and often involve ill-treatment and other human rights violations, including denial of access to asylum proceedings, and in some cases extortion or destruction of property.[15] It does not appear that in the course of these forced removals the authorities negotiate with their Serbian counterparts to organise returns to Serbia in an orderly manner (cf. § 161).[16]

On 9 June 2021, the European Commission decided to send a formal notice to Hungary for failing to comply with the ruling of the CJEU of 17 December 2020.[17] The CJEU held, among others, that Hungary had failed to fulfil its EU law obligations “in allowing the removal of […] third-country nationals staying illegally in its territory […] without observing the procedures and safeguards laid down in […] Directive 2008/115” (“the Return Directive”).[18]

Analysis by the Secretariat

The sources of the violation found by the Court consist of three main elements (cf. CM/Notes/1406/H46-14):

·         The first element criticised by the Court was a legislation-related shortcoming emanating from Government Decree No. 191/2015 (VII.21.) under which there was a general presumption concerning Serbia as a safe third country (§ 163). In this context the Court noted that the “Government have not mentioned any facts demonstrating that the decision‑making process leading to the adoption of the presumption in 2015 involved a thorough assessment of the risk of lack of effective access to asylum proceedings in Serbia, including the risk of refoulement” (§ 154).

·         Secondly, the Court pointed to shortcomings of the application of the above legislative presumption by the asylum authority and the national court in particular, they “disregarded the authoritative findings of the UNHCR as to a real risk of denial of access to an effective asylum procedure in Serbia and summary removal from Serbia to North Macedonia and then to Greece” (§ 163, see also §§ 156-160).

·         Thirdly, the Court took issue with the forced removal of the applicants without orderly procedure, whereby the authorities “induc[ed] them to enter Serbia illegally instead of negotiating an orderly return” (§ 163). Indeed, “the applicants were not returned on the strength of an arrangement with the Serbian authorities but were made to cross the border into Serbia without any effort to obtain guarantees. […] This exacerbated the risk of denial of access to an asylum procedure in Serbia and, therefore, of “summary removal” from that country to North Macedonia and then to Greece” (§ 161).

1.     Reassessment of the legislative presumption concerning Serbia as a “safe third country”

Despite the Committee of Minsters’ invitation to carry out a reassessment of the legislative presumption of “safe third country” for Serbia, the Hungarian authorities do not appear to have taken any action in this respect. Considering the European Court’s findings and that a great number of expulsions from Hungary are reported to take place towards Serbia, a thorough assessment of the asylum situation in that country is of paramount importance before applying this presumption in practice.[19]

The authorities’ argument of a lack of any reliable information as to shortcomings of the Serbian asylum system does not appear convincing.[20] The European Council on Refugees and Exiles (ECRE) report on Serbia highlighted that “in 2020, more than 25,000 refugees and migrants were collectively expelled to Serbia from [the neighbouring] countries. The persons pushed back to Serbia frequently face obstacles in accessing the asylum procedure [in that country]”.[21] Moreover, it appears that since 15 September 2015, Serbia has been refusing to take back third-country nationals under the readmission agreement with the EU.[22] Thus, irrespective of the asylum situation in that country, the “safe third country” concept cannot work effectively in respect of Serbia, readmission being a precondition for the application of that concept (see §§ 47, 54 and 63). The Committee therefore might wish to note with deep regret that so far no measures were taken or envisaged for the reassessment of the legislative presumption of “safe third country” in respect of Serbia and to firmly reiterate its invitation to carry out such reassessment without further delay and in line with the requirements of the Court’s case-law and to present the grounds and the outcome thereof.

2.     Convention-compliant application of the above legislative presumption in individual cases

Based on the information available and in contrast to their previous statements (cf. DH-DD(2020)919), there is no indication that the respondent State’s authorities commenced a practice where “the risks of denial of access to an effective asylum procedure in Serbia” and “the risk of arbitrary removal” (§ 160) are thoroughly examined before any expulsion to that country – as requested by the Committee (see above).

It is true that unlike in the present case, the authorities in certain cases approached Serbia in order to organise returns in an orderly manner.[23] However, upon the Serbian authorities’ refusal, certain asylum seekers were forced to leave the Hungarian transit zone and cross the border to Serbia.[24] At the same time, in other cases it appears that the Hungarian authorities examined asylum applications on their merits and in compliance with the applicable domestic and EU legislation.[25]

It appears that under the currently applicable asylum proceedings which require asylum seekers first to submit a “statement of intent” at the Embassy of Hungary in Belgrade or Kyiv, the number of actual asylum applications has dropped significantly since the introduction of this new legal regime in May 2020. It is difficult to obtain a clear view on the framework governing those applications that are made as the currently applicable transitional asylum proceedings will expire at the end of 2021 and it is unclear what will be the applicable legal situation thereafter.

Therefore, the Committee might wish to firmly reiterate its request to the authorities to demonstrate, preferably by case-law examples, that “the risks of denial of access to an effective asylum procedure in Serbia” and “the risk of arbitrary removal” (§ 160) from that country, factors to which the authorities had not given sufficient attention in the Court’s view, are now thoroughly examined in similar cases.

3.     Termination of forced removals to Serbia without orderly procedure

It appears that since the Committee of Ministers’ decision of June 2021, forced removals to Serbia, without any orderly procedure, have continued and even intensified. Statistics indicate constantly growing numbers in terms of such forced removals by the police,[26] while NGOs report alleged abusive practices by the Hungarian authorities during such removals.[27]

The Committee might wish to note with grave concern that, despite the concerns expressed in its previous decision, this practice has continued. It might further wish to strongly reiterate its call on the authorities to fully comply with the requirements flowing from the Court’s judgment and to ensure that forced returns are framed by orderly procedures and safeguards notably concerning every person’s right to seek asylum as established by international law.

Lastly, the Committee also requested information on the reform of the asylum system apparently in progress in connection with the CJEU’s judgment of 14 May 2020 (cf. CM/Del/Dec(2021)1406/H46-14). As no information was received in this respect either, the Committee might wish to firmly reiterate its request of providing concrete information on the announced reform of the asylum system.

Furthermore, the Committee might also wish to request information from the authorities on the measures envisaged by them with a view to preventing the recurrence of similar violations and might wish to resume examination of this case at its DH meeting in September 2022 at the latest.

Financing assured: YES