Published on 27 March 2023

FIRST SECTION

Application no. 40185/22 Z.A. against Hungary lodged on 12 August 2022 communicated on 10 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the removal of the applicant from Hungary. On 16 February 2022 the applicant, who is of Afghan nationality and was at the time sixteen years old, crossed the border with Hungary clandestinely. He was on the same day seriously injured in a traffic accident. While in the hospital he informed the medical staff of his wish to apply for asylum. The police then visited him and recorded his personal data. Around 14 April 2022, following his two-month hospital stay, officers took the applicant from the hospital barefoot, put him in a van and drove him to the Hungarian border with Serbia where he was dragged out of the van and left in the area of the Tompa transit zone. He was unable to access the transit zone and had to cross into Serbia where he has remained since.

The applicant complains that he was part of a collective expulsion, in breach of Article 4 of Protocol No. 4 to the Convention. As regards his removal and his access to asylum proceedings, the applicant argues that his vulnerability as an unaccompanied minor should take on particular importance. He further claims that the access to asylum through the procedure available at the Hungarian Embassy in Belgrade (Serbia) was overly restrictive and was not genuinely and effectively accessible. In any event, it could not have been reasonably expected from an unaccompanied minor in his situation to avail himself of that procedure. According to him, the Hungarian law required that he be issued a residence permit on humanitarian grounds and placed in a child protection facility. The applicant also complains under Article 13 in conjunction with Article 4 of Protocol No. 4 that he had no effective remedy at his disposal as regards his removal.

QUESTIONS TO THE PARTIES

1. Was the applicant expelled from Hungary collectively, in breach of Article 4 of Protocol No. 4 to the Convention (see Shahzad v. Hungary , no. 12625/17, §§ 58-59, 8 July 2021, and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, §§ 193-199, 13 February 2020)? Could the lack of an individual expulsion decision be attributed to the applicant’s own conduct (see N.D. and N.T. v. Spain , cited above, §§ 200 and 211)?

2. Did the applicant have a genuine and effective access to the asylum procedure in Hungary, having regard to the applicable legal rules and their operation in practice and, in particular, to the fact that he was an unaccompanied minor?

3. Was the applicant appointed a guardian for the protection of his interest with respect to, inter alia , the procedure leading to his removal?

4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 4 of Protocol No. 4, as required by Article 13 of the Convention (see Shahzad , cited above, §§ 77-79)?