European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF R.N. v. HUNGARY

(Application no. 71/18)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

4 May 2023

This judgment is final but it may be subject to editorial revision.

In the case of R.N. v. Hungary,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Stéphanie Mourou-Vikström, President,
          Lado Chanturia,
          Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 71/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 December 2017 by a Pakistani national, R.N. (“the applicant”), who was born in 2003, lives in Paris and was represented by Mr Fazekas, a lawyer practising in Budapest;

the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

 

Having deliberated in private on 30 March 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerned the applicant’s removal from Hungary after his irregular entry.

2.  The applicant is a Pakistani national who crossed the border into Hungary clandestinely on 21 June 2017. He subsequently hid in a barn where he was allegedly repeatedly physically assaulted by members of the “field guards”. On the same day he was apprehended by Hungarian police officers. He submitted a printout of a Facebook post by the mayor of Ásotthalom which included photos showing him and other migrants lying on the floor after being apprehended. Together with ten other migrants he was then taken to the border fence and made to walk in the direction of Serbia. He alleged that he and other migrants had been given no chance to claim asylum.

3.  Following his removal, the applicant was, on the same day, examined in a hospital in Subotica (Serbia). A medical examination carried out two days later by a member of Médecins Sans Frontières confirmed that he had sustained a wound to his head. The applicant was at that time fourteen years old and unaccompanied.

4.  On 28 July 2017 the applicant’s legal representative lodged a criminal complaint with the Hungarian prosecution service in relation to the alleged ill-treatment of the applicant.

5.  The applicant complained that he had been subjected to a collective expulsion, in breach of Article 4 of Protocol No. 4 to the Convention. He also complained under Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 that he had not had any effective remedy at his disposal. In his submissions of 28 November 2022, he also raised a complaint under Article 3 of the Convention.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 4 of Protocol No. 4 to THE CONVENTION

6.  The Court observes from the outset that it has not been disputed that the Hungarian authorities removed the applicant from Hungary on 21 June 2017. The Government submitted that the removal had been based on section 5(1b) of Law no. LXXXIX of 2007 on State Borders (“the State Borders Act”) which authorised the police to apprehend foreign nationals staying illegally on Hungarian territory and escort them through the nearest gate in the border fence, except when they were suspected of having committed an offence. The Court notes that this provision was the same as that found in section 5(1a) of the State Borders Act on which the authorities had relied in the case of Shahzad v. Hungary (no. 12625/17, § 17, 8 July 2021) with the exception that it no longer limited the police powers in question to an area in proximity of the border but extended them to the entirety of Hungarian territory. Having regard to the foregoing and its findings in Shahzad (cited above, §§ 45-53), the Court considers that the removal of the applicant amounted to an expulsion within the meaning of Article 4 of Protocol No. 4.

7.  Since this complaint is neither manifestly ill-founded nor inadmissible on any other of the grounds listed in Article 35 of the Convention, it must be declared admissible.

8.  As regards the “collective” nature of the expulsion, the present case is similar to Shahzad (cited above). In that case the Court found that the removal of the applicant, which had taken place in August 2016 and also pursuant to section 5(1a) of the State Borders Act, had been in violation of Article 4 of Protocol No. 4 to the Convention because it had been carried out in the absence of any formal decision or examination of the applicant’s situation (ibid., §§ 60-67). The Court also found that the only means of legal entry to Hungary - namely via the two transit zones - could not have been considered to be effective in the case of the applicant, who was an unaccompanied minor, in view of the limited access (daily quota) and lack of any formal procedure accompanied by appropriate safeguards governing the admission of individual migrants (ibid., §§ 63-65).

9.  In the present case the removal of the applicant was carried out in essentially the same manner as in the Shahzad case, in particular without any decision or examination of his situation. Moreover, the applicant submitted that he had not had a realistic chance of entering the transit zone and applying for asylum there. The Government did not put forward any argument demonstrating that at the time of the applicant’s removal the procedure for legal entry available to him had been effective. The Court therefore cannot but conclude that his removal was collective in nature.

10.  Lastly, the Court cannot ignore that at the time of his removal the applicant was an unaccompanied minor, and therefore in a situation of extreme vulnerability. It has previously emphasised in the context of Article 3 that this factor should take precedence over considerations relating to his or her status as an irregular migrant (see, for example, Khan v. France, no. 12267/16, § 74, 28 February 2019, and N.T.P. and Others v. France, no. 68862/13, § 44, 24 May 2018).

11.  In view of the above considerations, there has been a violation of Article 4 of Protocol No. 4 to the Convention.

II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION in conjuNction with Article 4 of Protocol No. 4 to the convention

12.  The applicant’s complaint under Article 13 of the Convention read in conjunction with Article 4 of Protocol No. 4 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds (see Shahzad, cited above, §§ 70-74). Accordingly, it must be declared admissible. Having examined all the material before it and taking into account its findings in the case of Shahzad (cited above, §§ 75‑79), the Court concludes that the facts of this case disclose a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4.

III.   REMAINING COMPLAINt

13.  In his observations submitted on 28 November 2022, the applicant raised a complaint concerning the State’s procedural obligation under Article 3 to assess the risk of his being subjected to treatment contrary to that provision before removing him from Hungary. However, the applicant had not raised that complaint in his application form. In view of the fact that his removal took place on 21 June 2017, this complaint was lodged outside the applicable six-month time-limit. It must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed EUR 5,400 in respect of costs and expenses incurred before the Court, in particular relating to legal work carried out in the preparation of this and a number of other similar applications.

15.  The Government argued that the above claims were excessive.

16.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 6,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

17.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 in respect of the costs and expenses incurred in proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints concerning Article 4 of Protocol No. 4 to the Convention alone and in conjunction with Article 13 of the Convention admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 4 of Protocol No. 4 to the Convention;

3.      Holds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 May 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Sophie Piquet                                         Stéphanie Mourou-Vikström
    Acting Deputy Registrar                                                President