Submission by the HHC on the execution of the European Court of Human Rights’ judgment in the Ilias and Ahmed v. Hungary case
The European Court of Human Rights established in 2019 that Hungary failed to discharge their procedural obligation under Article 3 to assess the risks of ill-treatment before removing the two asylum-seeking applicants to Serbia. The Court noted 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; 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; the authorities exacerbated the risks facing the applicants by inducing them to enter Serbia illegally instead of negotiating an orderly return.
The Committee of Ministers of the Council of Europe examines the Ilias and Ahmed v. Hungary under the enhanced procedure.
The Hungarian Helsinki Committee argued in its submission that Hungary failed to comply with the general measures resulting from the judgment.
The Committee of Ministers adopted a decision on the implementation of the judgment during its 1406th Human Rights meeting on 7-9 June 2021.
The Committee invited the Hungarian authorities to carry out a reassessment in line with the requirements of the ECtHR’s case-law of the legislative presumption of “safe third country” in respect of Serbia and to present the grounds and the outcome of that reassessment. It also requested the authorities 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. The Committee noted with concern that the respondent State’s practice of forced returns to Serbia has intensified throughout the last few years. It called on the Hungarian authorities to fully comply with the requirements flowing from the ECtHR’s judgment and to ensure that forced returns are framed by orderly procedures and safeguards concerning every person’s right to seek asylum as established by international law. The Committee also requested concrete information from the authorities on the measures envisaged with a view to preventing the reoccurrence of violations similar to that found by the ECtHR, including on the reform of the asylum system. Lastly, it invited the authorities to submit an updated comprehensive action plan/report by the end of September 2021 and the Committee decided to examine the case at the 1419th meeting in December 2021.
The Hungarian Helsinki Committee submitted a second Rule 9 submission, illustrating that Hungary so far failed to comply with any of the Committee of Ministers’ recommendations.
The Committee of Ministers adopted a decision on the implementation of the judgment during its 1419th Human Rights meeting on 30 November – 2 December 2021.
The Committee noted with deep regret that no steps have been taken towards conducting the necessary reassessment of the legislative presumption of “safe third country” in respect of Serbia and firmly reiterated their 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; firmly reiterated their request to the authorities to demonstrate, preferably with case-law examples, that the risks of denial of access to an effective asylum procedure in Serbia and the risk of arbitrary removal from that country are now thoroughly examined by the asylum authority and the national courts in similar cases in line with the European Court’s case law and so with reference to any authoritative findings of the UNHCR; noted with grave concern that, despite the concerns expressed in their previous decision, the practice of forced removals without orderly procedure has continued; strongly reiterated their 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; firmly reiterated their request of providing concrete information on the announced reform of the asylum system apparently in progress in connection with the CJEU’s judgment of 14 May 2020 and on the measures envisaged with a view to preventing the recurrence of violations similar to that found by the Court; decided to resume examination of this case at their 1443rdmeeting (September 2022) (DH) at the latest.
The Hungarian Helsinki Committee submitted a third Rule 9 submission, reiterating that Hungary still failed to comply with any of the Committee of Ministers’ recommendations and pointing out to the deteriorating legislative environment, developments in jurisprudence and the impact of the war in Ukraine.
The HHC held a briefing for the Committee of Ministers on 16 September 2022 on the execution of the judgment. The presentation is available here.
The Committee of Ministers adopted a decision on the implementation of the judgment during its 1443rd meeting on 20-22 September 2022.
The Committee expressed their profound concern that, almost three years after the European Court’s judgment in Ilias and Ahmed and despite the Committee of Ministers’ repeated requests, the authorities have not carried out a reassessment of the legislative presumption of “safe third country” in respect of Serbia; strongly urged the authorities to do so without further delay in line with the requirements of the Court’s case-law and to present the grounds and the outcome thereof; invited the authorities to provide information as to whether the legislative presumption of “safe third country” for Serbia has been applied by the asylum authority and the national courts since the introduction of the transitional asylum procedure as of 26 May 2020 (“Embassy procedure”); recalling the serious concerns expressed notably by UNHCR, called on the authorities to demonstrate, without further delay, that the risks of denial of access to an effective asylum procedure in Serbia and the risk of arbitrary removal from that country are now thoroughly examined by the asylum authority and the national courts in line with the Court’s case-law and the authoritative findings of the UNHCR; expressed their grave concern that despite the authorities’ repeated indications that the reform of the asylum system is underway, no concrete information has been communicated; called on the authorities to intensify their efforts in reforming the asylum system in order to afford effective access to means of legal entry, in particular border procedures, in line with Hungary’s international obligations as arising from the relevant judgments of the European Court and the CJEU; reiterated their grave concern that, despite the concerns expressed in their previous decisions and notwithstanding the recent adoption of the Shahzad judgment by the European Court, collective expulsions reportedly continue and have even intensified; strongly reiterated their urgent call on the authorities to terminate the practice of removing asylum-seekers to Serbia pursuant to section 5 of the State Borders Act without their identification or examination of their individual situation; called on the authorities to envisage the introduction of an effective remedy providing a person alleging that their expulsion procedure is “collective” in nature with an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of their complaints carried out by an independent and impartial domestic forum, in line with the Court’s case-law; invited the authorities to provide information on all the above issues in an updated action plan by 31 March 2023 and decided to resume the examination of this group at their DH meeting in September 2023; instructed the Secretariat to prepare a draft interim resolution for the Committee’s consideration at that meeting, should no tangible progress be achieved by then.
The Hungarian Helsinki Committee submitted a fourth Rule 9 submission, reiterating that Hungary continues to breach its obligations stemming from international law and the law of the European Union. Returns to Serbia in a summary manner substantially increased, access to asylum at the border and on the territory continues to be severely restricted by the “Embassy system”, despite the recent CJEU judgement C-823/21 and certain categories of third-country nationals are no longer entitled to enter from Ukraine and apply for temporary protection. The procedural leg of Article 3 of the Convention thus remained to be systemically breached.