Information Note on the Court’s case-law 205

March 2017

Ilias and Ahmed v. Hungary - 47287/15

Judgment 14.3.2017 [Section IV]

Article 5

Article 5-1

Deprivation of liberty

Twenty-three days’ de facto confinement in transit zone: violation

Article 3

Inhuman treatment

Expulsion

Expulsion to Serbia/Conditions of detention in transit zone: violation, no violation

[This case was referred to the Grand Chamber on 18 Sept ember 2017]

Facts – The applicants, Bangladeshi nationals, arrived in the transit zone situated on the border between Hungary and Serbia and submitted applications for asylum. Their applications were rejected and they were escorted back to Serbia. In the Convention proceed ings, they complained inter alia that their deprivation of liberty in the transit zone had been unlawful, that the conditions of their allegedly unlawful detention had been inadequate and that their expulsion to Serbia had exposed them to a real risk of in human and degrading treatment.

Law – Article 3

(a) Conditions of detention in the transit zone – The applicants had been confined to an enclosed area of some 110 square metres for 23 days. Adjacent to that area they had been provided with a room in one of several dedicated containers. The room contained five beds but at the material time the applic ants were the only occupants. In its Report to the Hungarian Government the European Committee for the Prevention of Torture and Inhuman or De grading Treatment or Punishment ( CPT ) had found that the sanitary facilities provided did not call for any particular comment and had gained a generally favourable impression of the health-care facilities. The applicants were no more vulnerable than any other adult asylum-seeker detained at the time. It was true that there were no proper legal grounds for their confinement; and the lack of legal basis for their deprivation of liberty could have contributed to the feeling of inferiority prevailing in the impugned conditions but in view of the satisfactory material conditions and the relatively short time involved, the treatment complained of did not reach the minimum level of severity necessary to constitute inhuman treatment.

Conclusion : no violation (unanimously).

(b) Expulsion to Serbia – The Hungarian authorities had relied on a schematic reference to the Government’s list of safe third countries. They had disregarded country reports and other evidence s ubmitted by the applicants and imposed an unfair and excessive burden of proof. Owing to a mistake, the first applicant had been interviewed with the assistance of an interpreter in Dari, a language he did not speak, and the asylum authority had provided h im with an information leaflet on asylum proceedings that was also in Dari. As a consequence, his chances of actively participating in the proceedings and explaining the details of his flight from his country of origin were extremely limited. The applicant s were illiterate, nonetheless all the information they received on the asylum proceedings was contained in a leaflet. It thus appeared that the authorities had failed to provide the applicants with sufficient information on the procedure. A translation of the decision in their case was given to their lawyer two months after the relevant decision had been taken, at a time when they had already left Hungary. The applicants had not had the benefit of effective guarantees which would have protected them from e xposure to a real risk of being subjected to inhuman or degrading treatment in breach of Article 3 of the Convention.

Conclusion : violation (unanimously).

Article 5 § 1

(a) Admissibility – The Court had to determine whether the placing of the applicants in the transit zone constituted a deprivation of liberty within the meaning of Article 5 § 1. In order to determine whether someone had been deprived of his liberty, the starting-point had to be his specific situation and account had to be taken of a whole range of factors. The notion of deprivation of liberty contained both objective and subjective elements. The objective element included the type, duration and effects, and manner of implementation of the measure in question, the possibility to leave the r estricted area, the degree of supervision and control over the person’s movements and the extent of isolation. The subjective element included whether the person had validly consented to the confinement in question. The difference between deprivation and r estriction upon liberty was one of degree or intensity, and not of nature and substance. The mere fact that it was possible for the applicants to leave the transit zone voluntarily could not rule out an infringement of the right to liberty.

The applicants had been confined for over three weeks. They were confined in a guarded compound which could not be accessed from the outside. They did not have the opportunity to enter Hungarian territory beyond the zone. Accordingly, the applicants had not chosen to st ay in the transit zone and thus could not be said to have validly consented to being deprived of their liberty. If the applicants had left Hungarian territory, their applications for refugee status would have been terminated without any chance of being exa mined on the merits. As such, their confinement to the transit zone amounted to a de facto deprivation of liberty.

(b) Merits – The first limb of Article 5 § 1 (f) permitted the detention of an asylum-seeker or other immigrant prior to the State’s grant o f authorisation to enter. Such detention had to be compatible with the overall purpose of Article 5, which was to safeguard the right to liberty and ensure that no one should be dispossessed of his or her liberty in an arbitrary fashion. To avoid being bra nded as arbitrary, detention under Article 5 § 1 (f) had to be carried out in good faith; it had to be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention had to be appropria te, bearing in mind that the measure was applicable not to those who had committed criminal offences but to aliens who, often fearing for their lives, had fled their own country; and the length of such detention should not exceed that reasonably required f or the purpose pursued.

The applicants’ detention in the transit zone had lasted for 23 days. The relevant rules were not circumscribed with sufficient provision and foreseeability. The applicants’ detention apparently occurred de facto , as a matter of pr actical arrangement. The applicants had been deprived of their liberty without any formal decision of the authorities solely by virtue of an elastically interpreted general provision of the law – a procedure which fell short of the requirements enounced in the Court’s case-law.

Conclusion : violation (unanimously).

The Court also found, unanimously, violations of Article 5 § 4 and Article 13 taken together with Article 3.

Article 41: EUR 10,000 each in respect of non-pecuniary damage.

(See also below Z.A. a nd Others v. Russia , 61411/15 et al., 28 March 2017, Information Note 205 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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