The ECtHR’s Ilias and Ahmed v. Hungary and Why It Matters

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The European Court of Human Rights delivered a judgment last Tuesday in the case of Ilias and Ahmed v. Hungary, finding multiple violations of the European Convention as a result of Hungary’s border procedures and its treatment of asylum-seekers. The applicants, nationals of Bangladesh, spent over three weeks in the transit zone before being sent back to Serbia, considered a “safe third country” under a 2015 Governmental Decree. Both applicants were part of the first wave of asylum-seekers attempting to access Hungary after the entry into force of controversial new legislation in September 2015, which effectively led to the Western Balkans route turning towards Croatia over the course of the next few days.

In what constitutes its first verdict on Hungary’s latest practice – which involves deprivation of liberty and almost universal forced return to Serbia on the basis of the safe third country concept – the Court found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention, namely because the applicants had been subjected to de facto deprivation of liberty with no adequate safeguards for over three weeks, didn’t have access to an effective remedy with respect to the conditions of their detention and ended up being sent back to Serbia without ever having the possibility of ill-treatment genuinely considered either by the asylum authority or the Szeged Administrative Court in their attempted appeals against the former’s ruling. In finding violations, the Court generally agreed with more-or-less all of the applicants’ arguments, however it did not agree with them that the conditions of their detention in the border zone reached the level of severity necessary for there to be a violation of Art. 3 in that respect.

The Implications

While the Ilias and Ahmed v. Hungary judgment doesn’t break any new ground with respect to the Court’s reading of the law, it is probably one of the Court’s more important recent cases in light of its broader implications, political as well as legal. First of all, the Court’s analysis of the new situation in Hungary following the legislative amendments of 2015 effectively calls into question the legality of Dublin returns to that country along the lines of M.S.S. v. Belgium and Greece (in case anyone was really still wondering if it was alright to send asylum-seekers back to Hungary). Furthermore, by analysing the conditions and asylum system of Serbia and determining the existence of a real risk of violations of Art. 3 in case of forced return there (particularly with respect to the possibility of chain refoulement), the Court actually sent a very clear message to the Serbian authorities themselves, giving local civil society a new resource to draw upon when confronting state officials and their obstinate mantra that Serbia has somehow been “more European than some European countries” in its handling of the refugee situation. In fact, the practice of Serbian authorities is just about identical to Hungarian practice when it comes to the automatic application of the safe third country concept and refusal to examine asylum applications in the merits, albeit deprivation of liberty is far less common.

In a nutshell, Serbia is guilty of almost the same lack of safeguards with respect to the forced returns procedure as is Hungary. This is consistently reported by numerous reports by civil society, UNHCR and is even addressed by the CAT’s last Concluding Observations on Serbia. Therefore, it’s likely only a matter of time before Serbia finds its name added by the ECHR to the hall of shame of Europe’s asylum baddies.

There is also a third important component to the present judgment, which revolves around the fact that the situation of the present applicants is exactly the same as that of thousands of other refugees and asylum-seekers diligently abused by Hungarian authorities since, at the very least, late 2015. It is unfortunate that, mostly as a result of fear or ignorance or simply wanting to leave everything behind and move on with their lives, the vast majority of refugees and asylum-seekers in transit show very little willingness to commit to complex legal proceedings that could take years with potentially small compensation; as a result, asylum lawyers sometimes come across as overzealous, if not downright unscrupulous, in their pursuit of victims of human rights violations for “strategic litigation” (I have known lawyers who would have likely provided full room and board to potential applicants in their own homes, just to make sure they don’t get out of touch before the case can be adjudicated). Nevertheless, in such cases where they do succeed, they provide for a situation where even the most hypocritical state officials have a hard time trying to justify their country’s practice – and that goes for all of their victims, not just successful applicants.

Therefore, the Ilias and Ahmed judgment shows very clearly that a majority of asylum-seekers in Hungary have had their rights violated by that country’s authorities, in a manner which is deliberate, widespread and systematic and targets the migrant population specifically. I use these words deliberately: it probably won’t be long before someone seriously accuses Hungary of the exact same things Australia is currently coming under fire for.

What Comes Next

One should be careful not to attach too much practical significance to decisions by treaty bodies, even the more prestigious ones, such as the European Court. There can be very little doubt that populist, semi-authoritarian regimes which engage in this kind of abuse in order to satisfy their electorate are, in fact, aware that they’re violating international law, which once again highlights the chronic problem of impunity for human rights violations. It would therefore be too optimistic to believe that this verdict could change Hungarian policy in the short run, let alone that of neighbouring countries such as Serbia.

In fact, the European Court itself is deserving of criticism to the extent it failed to indicate interim measures in line with Rule 39 of the Rules of Court and prevent the applicants’ return to Serbia in the first place; whatever the appointed judge’s reasoning may have been, the author of the present post cannot find any explanation for the Court’s apparent reluctance to use its authority other than a desire to keep a low profile and stay under the radar at a time when the entire European establishment is being consumed by anti-immigrant hysteria. With all due respect to the Court, that is not part of its mission.

That being said, there is absolutely no doubt that the Ilias and Ahmed verdict represents a milestone in the protection of the rights of refugees and asylum-seekers taking the Western Balkans route. While it’s unfortunate that the judgment comes at a time when the media’s attention has long since “migrated” to other issues, it serves to validate civil society’s criticism of policies adopted by several countries along the route, and may even intimidate some governments into taking genuine action to improve the situation. Now it’s up to lawyers in Serbia to follow the example set by civil society in Hungary and re-double their efforts at litigating – they can hardly say there’s no potential applicants to work with.

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Jakob Cornides says

March 23, 2017

It is regrettable that the main question raised by this decision (which is not yet final, as Hungary is likely to request referral to a Grand Chamber) is not addressed here: whether a situation such as the one in the present case, where the complainants were not allowed to leave the transit zone to continue their travel to Hungary (and further?), but were free to leave it in order to return to Serbia (whence they had come) can really be termed a "deprivation of liberty".

The Court essentially argued that "the applicants did not choose to stay in the transit zone" and thus must be considered to have been deprived of their liberty.

This is quite a daring and innovative interpretation of "deprival of liberty". Until now, "deprival of liberty" meant to be retained (i.e., locked in) someplace where one did not want to stay, e.g. in a dungeon. Suddenly, and through a not-very-subtle twist of language, one is "deprived of liberty" if one is not allowed to enter a place one wants to enter.

Thus, the two applicants were "deprived of their liberty" because they were not allowed to penetrate further into Hungarian territory (or Austria, or Germany?), which they might have preferred over staying in the transit zone.

If interpreted that way, the "right not to be deprived of one's liberty" is in fact a "right to enter wherever one wants". Maybe, rather trhan ventilating on who else (besides Hungary) must now be condemned, it would be worthwhile to reflect on whether this interpretation really reflects what State Parties, when acceding to the Convention, have agreed upon.

Thor Alfredsson says

March 24, 2017

In response to the last comment, it may well be that this judgment is overruled by the Grand Chamber, although that seems very unlikely, particularly bearing in mind that the Chamber was unanimous in all of its findings. But Mr Cornides is flat out wrong when he says that there is something 'daring and innovative' about the Chamber's approach to what is a deprivation of liberty. The innovation, such as it was, happened in the 1996 Amuur v France case, para. 46-48, where the exact argument that Mr Cornides is making was raised by the French government and by the then-extant Commission, but was rejected by a (also unanimous) Court. This is, in other words, a more or less straightforward application of 20 years of settled jurisprudence. This approach moreover makes perfect sense when bearing in mind that there is no conceptually non-arbitrary way of drawing a clear line between a restriction on liberty and a deprivation of liberty, which is why the Court has always refused to do so, pointing out (rightly) that the distinction is one of degree, not one of kind.

Jakob Cornides says

March 28, 2017


upon re-reading I find you are right: this is indeed not the first time the ECtHR has adopted this (nevertheless rather strange) interpretation of "deprivation of liberty".

I do not, however, believe that there "is no conceptually non-arbitrary way of drawing a clear line between a restriction on liberty and a deprivation of liberty". The statement sounds somewhat apodictic, and you might wish to qualify it. Is it not, by the same logic, a "deprivation of someone's liberty" if I lock the door of my house because I do not want unknown people to enter? And what about fencing in my garden? Must everybody be allowed to enter everywhere?

Is it "conceptually arbitrary" to make a very simple and obvious differentiation between not allowing someone to LEAVE a place (e.g. a prisoner, a hostage, or the citizens of the former GDR?) and not allowing someone to ENTER a place?

The ECtHR's reasoning seems rather weak on this point, and mere repetition does not make it any better.