MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-18

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-18 Alhowais (Application No. 59435/17) and Shahzad (No. 2) (Application No. 37967/18) v. Hungary Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)117; DH-DD(2024)1150; DH-DD(2024)1151

 

Application	Case	Judgment of	Final on	Indicator for the classification
59435/17	ALHOWAIS	02/02/2023	02/05/2023	Complex problem
37967/18	SHAHZAD (No. 2)	05/10/2023	05/01/2024

Case description

The Alhowais case concerns the ineffective criminal investigation into the death and alleged ill-treatment of the applicant’s brother (F.), a migrant who drowned during a border control operation at the Hungarian-Serbian border in 2016 (procedural violation of Articles 2 and 3). It further concerns the border control authorities’ failure to act rapidly and decisively, and thus take the operational measures within the scope of their powers which were reasonably expected to protect F.’s life (substantive violation of Article 2).

The Shahzad (no. 2) case concerns the ill-treatment of the applicant, a Pakistani migrant, in 2016 by Hungarian law-enforcement officers while he was being escorted back to the external side of the Hungarian border fence with Serbia and the lack of effective investigations in this respect (procedural and substantive violations of Article 3).

Status of execution

The authorities submitted action plans in the Alhowais case on 1 February (DH-DD(2024)117) and 11 October 2024 (DH-DD(2024)1151), and in Shahzad (No. 2) on 11 October 2024 (DH-DD(2024)1150).

Individual measures:

In Alhowais, the just satisfaction awarded by the European Court in respect of non-pecuniary damage was paid to the applicant and the costs and expenses awarded were paid to his legal representative. In March 2020, that is after the communication of the case to the Government in October 2019 but before prescription, the Office of the Prosecutor General reviewed the case and concluded that the legal conditions for the continuation of the proceedings were not satisfied. The authorities’ action plan of October 2024 also indicated that the statute of limitations has subsequently elapsed.

In Shahzad (No. 2), the just satisfaction awarded was duly paid. Since the limitation period for the crime has not yet elapsed, the Prosecutor General ex officio may review the proceedings terminated.

General measures:

1.     Information submitted in relation to the Alhowais case

As regards border control, notably the operational plans implemented at borders during border control and rescue operations, the authorities indicated that the procedure to be followed by the police is regulated by internal rules which are not public. They further submitted that there is constant cooperation with the Serbian authorities at local and regional levels with border meetings in person and international correspondence. The cooperation takes place through the staff of the Border Police Regional Centre in Subotica, and there are also joint patrol services between the two States.[1]

With respect to investigating complaints of migration-related police assault, the Prosecutor General’s Office carried out a targeted study in order to provide an overview of the nature and difficulties of criminal proceedings concerning migration cases. The study, which covered the period between 1 January 2015 and 1 September 2019, revealed that all cases examined were characterised by poor evidence and the majority of them had been closed for lack of evidence. Additionally, in a mandatory training course for all investigatory prosecutors held by the Investigation Supervision Division of the Central Chief Prosecution Office of Investigation in November 2023, the Alhowais case was analysed in detail.[2]

2.     Information submitted in relation  to the Shahzad (No. 2) case

The authorities recalled the general framework of apprehension and escort measures under Act LXXXIX of 2007 on State Borders („State Borders Act”) authorising the police to apprehend foreign nationals present illegally on Hungarian territory and to remove them to the external side of the Hungarian border fence on the border with Serbia.[3] The authorities further made reference to Act XXXIV of 1994 on the Police („Police Act”), to Decree no. 30/2011 (IX. 22.) of the Ministry of Interior on the Police Service Regulations, and to unpublished internal rules as regards the procedure to be followed by the police for the execution of these measures and the use of coercive means in the course of the performance of police officer duties.

Analysis of the Secretariat

Individual measures

The just satisfaction awarded by the Court was duly paid in both cases. In Alhowais, after the case was communicated to the Government, the competent authorities ex officio examined the possibilities for reopening the investigation and concluded that the requirements were not met, following which the statute of limitations elapsed before the Court’s final judgment. While the ex officio review of the possibility of reopening is positive, it is not clear from the information submitted what the legal conditions assessed by the Prosecutor General’s Office were, what grounds led to the conclusion that reopening was not possible, and whether it was the competent prosecutorial authorities who later concluded that the statute of limitations had expired.

Furthermore, it is recalled that in finding a violation of Articles 2 and 3 in their procedural aspect, the Court noted that “by deciding to open an investigation into the alleged ill-treatment by police officers, the substantive scope of the criminal investigation remained limited and was not meant to inquire into the alleged failure of the authorities to do enough to protect F.’s life” (§ 81). In this respect, a clarification appears to be necessary as to whether there is the possibility of reopening the investigation in case of a possible requalification of “the circumstances of the incident under the relevant provisions of domestic criminal law” (§ 81).

Noting with interest the ex officio review of the possibility of reopening the investigation, the Committee might thus wish to invite the authorities to provide detailed information in response to the above concerns.

In Shahzad (No. 2), according to the information received from the authorities, the statute of limitations has not expired and the Prosecutor General may still ex officio reopen the investigation. Therefore, also in light of the above considerations related to grounds for reopening in the Alhowais case, the Committee might wish to call on the competent authorities to urgently  examine the possibility of reopening the investigation in Shahzad (No. 2) in order to ensure, as far as possible, that the shortcomings identified by the Court are rectified.

It may wish to invite them to submit the prosecution’s reasoned decision in this respect, detailing the legal conditions required and the grounds taken into account, as well as on the investigatory steps that can still be taken or those that can no longer be taken for practical or legal reasons.

General measures

It is recalled that the source of the violations found in these cases consist of three main elements:

·         the border control authorities’ failure to act rapidly and decisively, and thus to take the operational measures within the scope of their powers which reasonably might have been expected to protect the life of the applicant’s brother (Alhowais, § 144);

·         the ill-treatment of the applicant by Hungarian law-enforcement officers while he was being escorted back to the external side of Hungarian border fence with Serbia (Shahzad (No. 2), § 80);

·         the lack of effective criminal investigation into the incidents (Alhowais, § 92; Shahzad (No. 2), § 65);

The information submitted by the authorities does not fully respond to the issues identified by the Court. The authorities should provide information on the following types of measures to adequately address the sources of the violation as set out below:

1.     Operational plans for border control and rescue operations: positive obligations to protect lives (Alhowais case)

The judgment in Alhowais appears to show fundamental shortcomings in routine border operations. The Court notably concluded that the officers in question could not be considered to have done all that could be reasonably expected to avoid a real and immediate risk to life as (i) they did not seem to have followed any operational plan (Alhowais, §§ 135-136), (ii) there was no evidence that they took any measures or received any instructions upon detecting the migrants’ boat (§ 136), (iii) “there was no clear order of priorities or course of action set for dealing with migrants in a vulnerable situation that could have guided the officers” (§ 141), (iv) there was no indication of any effort to look for the applicant’s brother after the rescue boat left the spot where he had apparently disappeared (§ 142), and (v) the rescue capacities present did not correspond to the requirements of the emergency (§ 143).

The authorities’ submissions do not contain information on the operational plans implemented or the instructions provided to officers at the border during border control and rescue operations, besides reference to the confidentiality of the procedure to be followed by the police. Such information, however, is indispensable for the Committee to assess whether the authorities fulfil their positive obligations in this respect. The Committee might therefore wish to invite the authorities to provide information on the measures taken or planned to address the shortcomings identified by the Court in border control operations, including ensuring that no excessive force is used at the border, and to implement and enforce detailed instructions and operational plans for such procedures, incorporating both the allocation of sufficient capacities as well as the adequate assessment of potential risks and the possible order of priorities in emergency situations.

2.     Ill-treatment during apprehension and escort measures (Shahzad (No. 2))

It is recalled that the Court found a violation in Shahzad (No. 2) as the authorities had not provided any plausible explanation as to the cause of the applicant’s injuries and had not satisfactorily established that the applicant’s injuries were caused by anything other than the treatment alleged by the applicant (§ 78). The Court also noted international reports about “a series of cases of physical violence alleged to have taken place during ‘push-back’ operations near the Serbian border” (§ 73).

No information has been provided in these respects. This is all the more regretful in light of the fact that ill-treatment by law-enforcement officers in general has been a long-standing and complex problem in Hungary, giving rise to a significant number of complaints examined both at domestic level and by the Court (see the Gubacsi v. Hungary group of cases also examined at the present meeting, CM/Notes/1514/H46-19), as well as the high number of cases reported alleging the use of force during numerous[4] forced removals towards Serbia.[5]

Concerns regarding the lack of effective safeguards to prevent ill-treatment of persons returned by Hungarian police have been voiced by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) already during its 2017 and 2018 visits to Hungary,[6] but no measures have been reported.

In view of the above, the Committee might wish to invite the authorities to provide information on the measures planned or taken to implement effective safeguards to prevent ill-treatment at borders, to stress the importance of a general “zero tolerance” message at the highest possible level and the need for prevention and awareness raising, including trainings, within border patrol agents and law enforcement officers to ensure that the treatment of migrants at the border complies with international standards.

3.     Measures common to both cases: effectiveness of criminal investigations

The Court found the domestic criminal investigations into police ill-treatment ineffective for (i) being restricted to verifying the allegations of the use of force, disregarding other elements of a police operation and lacking any assessment of responsibility for failing to protect the right to life (Alhowais, § 82); (ii) the lack of reasonable efforts to gather the evidence and establish facts, thereby limiting the potential of the investigation, undermining its reliability and effectiveness (Alhowais, § 92); and (iii) the investigating authorities’ failure to interview the applicant, order forensic medical assessments, or take other necessary measures to resolve factual contradictions and uncertainties (Shahzad (No. 2), § 64).

Although the targeted study of the Prosecutor General’s Office and the training for investigatory prosecutors are welcome steps, the Court’s judgments indicate a general need to improve the quality of investigations. The clarification ofthe process of investigation into such incidents appears to be vital, especially as regards locating the migrant witnesses involved, identifying police officers present at border control and rescue operations, ensuring that all relevant individuals are questioned and the victims are heard, and clarifying the method of weighing evidence in case of inconsistencies between the testimonies of migrant witnesses and police officers when the latter’s criminal liability is at issue. In these respects, the authorities may draw inspiration from the Fundamental Rights Agency’s „Guidance on investigating alleged ill-treatment at borders” promoting effective national investigations.[7]

In view of the above, the Committee might wish to invite the authorities to explore possible avenues to ensure that the process of prosecutorial investigations into incidents that take place at the border is clarified and they are conducted in a fully Convention-compliant manner, including through trainings and awareness raising of the police, prosecutors and judges, drawing also on Council of Europe expertise and training courses such as the relevant HELP courses and on the Fundamental Rights Agency’s guidance on investigating alleged ill-treatment at borders.

Finally, it might wish to invite the authorities to submit updated action plans including information on all the above issues by the end of June 2025 at the latest and decide to resume consideration of this case at its DH meeting in December 2025 at the latest.

Financing assured: YES