FIFTH SECTION

CASE OF K.P. v. HUNGARY

(Application no. 82479/17)

JUDGMENT

STRASBOURG

18 January 2024

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

In the case of K.P. 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. 82479/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 December 2017 by an Iraqi national, K.P. (“the applicant”), who was born in 2001, lives in Belgrade and was represented by Mr Fazekas, a lawyer of the Hungarian Helsinki Committee, practising in Budapest;

the decision to give notice of the complaints concerning Article 4 of Protocol No. 4 to the Convention and the alleged lack of effective remedy under Article 13 of the Convention, 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 14 December 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 to Serbia.

2. On 1 June 2017 the applicant entered Hungary from Romania irregularly. He then entered, likewise irregularly, Austria on 3 June 2017. On the same day he was handed over from the Austrian Police to the Hungarian officers. He was subsequently detained in a police facility in Hungary together with two adult men. The three of them were interviewed and the applicant noted his wish to apply for asylum on a document he had been asked to complete and sign. On 5 June 2017 the applicant and the two other migrants were transported by the Hungarian officers to the border fence and made to go towards the direction of Serbia. The applicant was sixteen years old at the time of these events.

3. 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.

THE COURT’S ASSESSMENT

4. The Government argued that the applicant had not applied for asylum in Hungary and therefore could have not been considered a victim of the alleged violation. They also submitted that at the time of the events in question it had had only been possible to apply for asylum in one of the transit zones. In their submission, the police were required to escort the aliens who wished to apply for asylum to the border fence where they could, by transiting Serbian territory, go to the one of the Hungarian transit zones. In their view, this measure did not amount to an expulsion within the meaning of Article 4 of Protocol No. 4. The applicant, on the other hand, submitted that he had not been able to communicate with the police as he had only understood Kurdish and had not been assisted by an appropriate interpreter. The name indicated on the documents relating to his apprehension in Austria and Hungary, including the one with the indication of his wish to apply for asylum, contain his first and his middle name.

5. At the outset, in view of the parties’ submissions and the documents in the case-file, the Court finds no reason to question that the Hungarian authorities removed the applicant from Hungary on 5 June 2017. The Government submitted that the removal had been based on section 5 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, in all relevant aspects, the same as that on which the authorities had relied in the case of Shahzad v. Hungary (no. 12625/17, § 17, 8 July 2021). Having regard to the foregoing and its findings in Shahzad (cited above, §§ 45-52), the Court considers that the removal of the applicant amounted to an expulsion within the meaning of Article 4 of Protocol No. 4.

6. 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.

7. 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, 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 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).

8. In the present case the removal of the applicant was carried out by means of the same procedure as in the Shahzad case, in particular without any decision or examination of his situation. 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.

9. 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; N.T.P. and Others v. France , no. 68862/13, § 44, 24 May 2018; and compare R.N. v. Hungary [Committee], no. 71/18, § 10, 4 May 2023).

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

11. 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.

12. In his observations submitted on 20 April 2023, the applicant raised a complaint concerning the State’s procedural obligation under Article 3 of the Convention 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 5 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

13. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. He also claimed EUR 2,850 in respect of costs and expenses incurred before the Court.

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

15. 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.

16. 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,

(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;

Done in English, and notified in writing on 18 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Sophie Piquet Stéphanie Mourou-Vikström Acting Deputy Registrar President