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The Safe Third Country Concept and De Facto Deprivation of Liberty in the Light of the Case Ilias and Ahmet v. Hungary ECtHR 14 March 2017 (Request for Referral to the Grand Chamber Pending) Application No. 47287/15

İlias ve Ahmet Macaristan Kararı Işığında Güvenli Üçüncü Ülke Kavramı ve Fiili Hürriyetten Alıkoyma AİHM 14 Mart 2017, Başvuru No: 47287/15

Merve AKBULUT

Hungary made regulations that creating legal basis for the construction of a fence and transit zones at its borders in September 2015. At the same date, Hungary also published a Government Decree, which considered Serbia as a safe third country. Hungary has allegedly attempted to create a legal basis to push back all asylum seekers who coming to the Hungarian borders because of the refugee crisis broke out at that time. The applicants of the case which is the subject of this study, Ilias Ilias and Ali Ahmed are members of the first asylum seeker group who attempting to access to Hungarian borders after contraversial legislations. The applicants transited through Greece, the former Yugoslav Republic of Macedonia and Serbia, finally arriving in Hungary. Hungary was the first country, which they applied for asylum. Two applicants were held for 23 day in Röszke Transit Zone and their asylum applications were rejected on the grounds that Serbia was a safe third country. European Court of Human Rights (ECtHR) held that there were violation of Article 3, Article 5 para. 1 and 4 and Article 13 on the gorunds that only direction the applicants could leave the zone was Serbia, which caused the chain refoulment and this situation forced them to stay in transit zone and finally there was no effective remedy to complain about the conditions of transit zone. This ruling is a corner stone for refugees and asylum seekers who taking Western Balkan Route because of that the first decision of ECtHR on Hungarian contraversial legislations.

European Convention on Human Rights, Asylum Seeker, Safe Third Country, De Facto Deprivation of Liberty, Non-Refoulment,

Macaristan Eylül 2015 tarihinde sınırlarına tel örmenin ve geçiş bölgeleri inşa etmenin önünü açan bir düzenleme yapmıştır. Yine aynı tarihte Sırbistan’ı güvenli üçüncü ülke kategorisinde değerlendiren bir kararname yayınlamıştır. Macaristan’ın bu düzenlemelerle, o dönemde patlak veren mülteci krizi sebebiyle sınırlarına akın eden mültecileri kabul etmemek için yasal zemin oluşturmaya çalıştığı iddia edilmiştir. Bu çalışmaya konu olan davanın başvurucuları İlyas İlyas ve Ali Ahmet bu düzenlemeler yürürlüğe girdikten sonra Macaristan sınırına gelen ilk mülteci dalgasının mensuplarıdır. Başvurucular Yunanistan, Makedonya ve Sırbistan rotasını izleyerek Macaristan’a ulaşmışlardır. Başvuru yaptıkları ilk ülke Macaristan’dır. İki başvurucu 23 gün boyunca Röszke Geçiş Bölgesi’nde tutulmuş, iltica talepleri Sırbistan’ın güvenli üçüncü ülke olduğu gerekçesiyle reddedilmiştir. Avrupa İnsan Hakları Mahkemesi (Mahkeme) başvurucuların gidebildiği tek yönün Sırbistan olması ve bu durumun da zincirleme geri göndermeye sebep olacağı; bu durumun başvuranları geçiş bölgesinde kalmaya zorladığı; geçiş bölgesinin durumundan şikâyetçi olabilecekleri etkili bir iç hukuk yolu olmaması gerekçeleriyle madde 3, madde 5/1-4 ve madde 13 ün ihlal edildiğine karar vermiştir. Bu karar Macaristan’ın tartışma yaratan düzenlemeleri üzerine verilen ilk karar olması sebebiyle Batı Balkan rotasını izleyen mülteciler için dönüm noktası sayılabilecek bir karardır.

Avrupa İnsan Hakları Sözleşmesi, Mülteci, Güvenli Üçüncü Ülke, De Facto Hürriyetten Yoksun Bırakma, Geri Gönderme Yasağı.

The Facts and the Process

The applicants, Mr. Ilias Ilias and Ali Ahmed, are Bangladeshi nationals who both were part of the first wave of aslyum seekers attempting to access Hungary after entry into force of new legislations in September 2015.

Having left Bangladesh, the applicants transited through Greece, “the former Yugoslav Republic of Macedonia” and Serbia, eventually arriving in Hungary on 15 September 2015. They immediately applied for asylum. By a decision delivered on the very same day of 15 September 2015, the asylum authority rejected the applicants’ asylum applications, finding them inadmissible on the grounds that Serbia was to be considered a “safe third country” according to Government Decree on safe countries of origin and safe third countries. The asylum authority ordered the applicants’ expulsion from Hungary.

The applicants challenged the decision before the Szeged Administrative and Labour Court. The Office of the United Nations High Commissioner for Refugees (“UNHCR”) who had access to the transit zone, authorised two lawyers acting on behalf of the Hungarian Helsinki Committee to represent them in the judicial review procedure but the authorities did not allow them to enter the transit zone until after the Court hearing. On 25 September 2015 the applicants submitted a request for an interim measure under Rule 39 of the Rules of Court from ECtHR to prevent their expulsion to Serbia. The request was rejected.

On 30 September 2015 the asylum authority again rejected the applications for asylum on the grounds that there is not enough evidence to grant the applicants the status of “persons deserving special treatment” since they had not revealed any special need that could not be met in the transit zone and noted that the applicants had not referred to any pressing individual circumstances substantiating the assertion that Serbia was not a safe third country in their case. As a consequence, the applicants’ expulsion from Hungary was ordered. And on 5 October 2015 the Court upheld the asylum authority’s decision on the grounds that the applicants’ statements were contradictory and incohorent and the asylum authority’s decision was in compliance with law.

The final decision was served on the applicants on 8 October 2015. It was written in Hungarian but explained to them in Urdu which was both applicant’s mother tongue. Escorted to the Serbian border by officers, the applicants subsequently left the transit zone for Serbia without physical coercion being applied.

The Court’s Decision

The Court found that the applicants’ confinement for more than three weeks in the Röszke transit zone which could not be accessed from the outside (even by their lawyer), had amounted to a de facto deprivation of their liberty. And emphasized that the applicants would not have voluntarily left the transit zone in the direction of Serbia, as suggested by the Government, as they would have faced the risk of forfeiting their asylum claim and refoulement. And detentions’s legal basis namely 71/A of the Asylum Act any reference to the possibility of detention at the transit zone. It followed that the applicants’ detention could not be considered “lawful”, in violation of Article 5 § 1. their detention not having been ordered in any formal proceedings or taken any shape of a decision. The Court therefore concluded that the applicants had not had the possibility of bringing “proceedings by which the lawfulness of [their] detention [could have been] decided speedily by a court”, in violation of Article 5 § 4.

The applicants alleged that the transit zone was unsuitable for a stay longer than a day, especially in the face of the severe psychological condition. But the Court considered that the applicants’ conditions of detention had been satisfactory in accordance with reports of both the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment1 (cpt) and the UNHCR. So the Court concluded that the applicants’ conditions of detention had not reached the minimum level of severity necessary to constitute inhuman treatment under Article 3. There had therefore been no violation of Article 3. Yet the Government had not indicated any remedies by which the applicants could have complained about the conditions in which they had been held in the transit zone. There had therefore been a violation of Article 13.

Finally, the Court found that Hungary Government had not convincingly explained why there had been an abrupt legislative change in July 2015 in the Hungarian Asylum Law and considered Serbia as a safe country despite the fact that United Nations High Commissioner for Refugees and respected international human rights organisations couldn’t consider Serbia as a safe country because of shortcomings in its asylum proceedings2 . Besides, only information which the applicant’s receive written in a leaflet and there was no chance active participation in asylum proceedings. In consequence of these facts the applicants were at real risk of a chain-refoulement situation, whereby they could eventually be driven to Greece to face inhuman and degrading reception conditions. The Court therefore concluded that the applicants had not had the benefit of effective guarantees which would have protected them from exposure to a real risk of being subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention.

The Assessment

This judgment actually doesn’t contain any new interpretation because the concept of de facto deprivation of liberty was innovated in Amuur vs France Judgment3 . But it’s still a landmark ruling in the protection of the rights of refugees and asylum seekers taking the Western Balkan route. Because firstable, it’s a warning not only for Hungary but also for Serbia which has nearly the same asylum proceedings kind of hostile towards asylum seekers as Hungary has.

Secondly, this judgment allows us to re-examine the legal status of transit zone which regulated in Act on State Borders. According to Hungary Government position transit zone is a no man’s land despite there is no “no man’s land” in international law. If we consider transit zone as no man’s land, we can’t consider is a part of Hungary territory, thus pushing back asylum seekers to serbia doesn’t qualify as acts of forced return4 . But ECtHR has already clearly rejected it in the Amuur case. And in the present case, the Court also emphasized that schematically listing a country as a safe country and sent asylum seekers on the basis of a safe country concept regards as forced return, too. And this analysis of the Government Decree calls into question the legality of Dublin Returns to Serbia, as well.

The last but not the least, the Court itself is deserving huge criticism because it rejected the request of interim measures in line with Rule 39 of the Rules of Court and failed to prevent the applicants’ expulsion to Serbia due to the fact that the Court was well aware of rejection of the request could cause chain refoulment for the applicants.