Published on 24 October 2022
FIRST SECTION
Application no. 46084/21
H.Q.
against Hungary
lodged on 17 September 2021
communicated on 7 October 2022
SUBJECT MATTER OF THE CASE
The application concerns the removal of the applicant, who is an Afghan national, from Hungary. The applicant initially stayed in Hungary based on his valid residence permit. The latter came to an end in 2020. On 14 September 2021 the applicant filed an application for asylum with the asylum authority citing fear of persecution under the Taliban regime if he were to be returned to Afghanistan (due to his father’s position in the previous Afghan government). This was rejected as inadmissible owing to the legislation (Act LVIII of 2020 on the transitional rules related to the termination of the state of danger and on the epidemiological preparedness – “the Transitional Act”) which allowed for asylum applications to be lodged and examined only after the intent to seek international protection had been declared at the Hungarian embassy in Belgrade or Kiev and accepted by the asylum authority. According to the applicant, this preliminary procedure at the Hungarian Embassy was practically inaccessible. Before being removed, the applicant also submitted a new asylum application, relying on the fact that he was now detained and arguing that the Transitional Act allowed for an asylum procedure to be initiated in such situations. The police refused to forward this new application to the asylum authority. The applicant challenged the rejection of his asylum application in judicial proceedings. On 17 September 2021 the Hungarian police removed the applicant from Hungary to Serbia, relying on section 5(1b) of Act no. LXXXIX of 2007 on State Borders, which stipulated that any illegally staying third country national on the territory of Hungary could be escorted from Hungary through the nearest border fence. The applicant submits that his removal was not arranged with the Serbian authorities and that he was left without any assistance at the border. Two days later he managed to get into the Krnjaca reception centre in Serbia, but the conditions there were degrading. On 11 October 2021 the Budapest High Court issued an interim relief ordering the suspension of the enforcement of the asylum authority’s decision. The court found that the applicant’s removal had been unlawful as his pending request for an interim relief should have had a suspensive effect. On 13 October 2021 the same court clarified that as a result of its interim relief order the return of the applicant to Hungary should be facilitated. However, this measure has remained unimplemented. On 12 November 2021 the Budapest High Court gave judgment finding that the rejection of the applicant’s asylum application without examination on the merits was unlawful.
The applicant complains that he was part of a collective expulsion, in breach of Article 4 of Protocol No. 4 to the Convention. He furthermore complains under Article 3 of the Convention that he was removed to Serbia, without any assessment of the consequences of his removal for his Article 3 rights and in breach of the procedural obligation under this provision. He 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., cited above, §§ 200 and 211)? Did the applicant have a genuine and effective access to the procedure for examination of his individual circumstances and his asylum application by the Hungarian authorities, given the requirement to first initiate the preliminary procedure at the Hungarian Embassy (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 248, 15 December 2016; Shahzad¸ cited above, § 62; and N.D. and N.T., cited above, § 211)?
2. Did the respondent State comply with its obligation under Article 3 of the Convention to duly assess the risks of treatment contrary to that provision before removing the applicant from Hungary to Serbia (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, in particular §§ 129-134, 141, 148 and 163, 21 November 2019, and Tarakhel v. Switzerland [GC], no. 29217/12, §§ 93‑122, ECHR 2014 (extracts)?
3. 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)?