TrustHLT/LaCour huggingface dataset:
Guido Raimondi (JudgeP): The respondent government are represented by Mrs. Aranka Lőrincz Director, Office for Immigration and Asylum, Ministry of the Interior, Mrs. Zoltán Tallódi, Government Agent, and Mrs. Mónika Weller, Government Co-Agent.
Guido Raimondi (JudgeP): The applicants are represented by Mrs. Barbara Pohárnok, Counsel, assisted by Mrs. Grusa Matevzic, lawyer at the Hungarian Helsinki Committee, Advisor, and Mrs. Nuala Mole from the AERI Center, Advisor.
Guido Raimondi (JudgeP): I also welcome the delegation of judges from the Court of Cassation of Greece, including the President and Madam Prosecutor General, and the delegation of Greek prosecutors.
Guido Raimondi (JudgeP): I furthermore welcome the following groups who are on a study visit to the court.
Guido Raimondi (JudgeP): The group of Turkish judges and prosecutors, the group of judges and prosecutors from Serbia, and the judges and prosecutors participating in the joint JUFREX program, coming from Serbia, Montenegro, Albania, the former Yugoslav Republic of Macedonia, Bosnia and Herzegovina, and Kosovo.
Guido Raimondi (JudgeP): Mrs. Pohárnok for the applicants will speak first, and then Mrs. Zoltán Tallódi for the government.
Guido Raimondi (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into four other languages, Turkish, Serbian, Albanian, and Macedonian, has been authorized for the benefit of the groups of judges and prosecutors attending this hearing.
Guido Raimondi (JudgeP): I call Mrs. Pohárnok.
Guido Raimondi (JudgeP): You have the floor, please, Madam.
AP1 (Applicant): allow me to bring you back to September 2015 with a quote.
AP1 (Applicant): It all began at half past 11 in the morning when they let us in and said that they will take our fingerprints and then give us refugee status.
AP1 (Applicant): We were inside until half past five when they brought us the decision that they do not give us refugee status.
AP1 (Applicant): Then they told us we either leave or they put us in jail.
AP1 (Applicant): We wanted to appeal, but they told us that it won't do any good.
AP1 (Applicant): It's better for you to leave.
AP1 (Applicant): I did not want to come to a prison.
AP1 (Applicant): I could have done it in Syria.
AP1 (Applicant): Mr. President, these are the words of a Syrian
AP1 (Applicant): asylum seeker interviewed on the 17th of September 2015, right after he left the transit zone on the Serbian-Hungarian border.
AP1 (Applicant): His testimony, annexed to our written submission, gives a truthful account of what was happening to asylum seekers admitted to these transit zones at the material time of the present case.
AP1 (Applicant): It is in light of this context that the government's allegations denying procedural shortcomings and that Hungary returned genuine asylum seekers to Serbia should be assessed.
AP1 (Applicant): Except for families with minor children, all asylum seekers, regardless of nationality or vulnerability, were subjected to summary procedures concluded within a day without the minimum safeguards.
AP1 (Applicant): What makes the case of Mr. Ilyas and Mr. Ahmed special
AP1 (Applicant): is that, unlike most asylum seekers, other asylum seekers, they refused to leave the transit zone and to withdraw their asylum claim.
AP1 (Applicant): As a consequence, they ended up in detention.
AP1 (Applicant): They trusted the system and hoped that, in the end, they would be protected from injustice.
AP1 (Applicant): But it did not happen.
AP1 (Applicant): Now they have come to this court to find justice.
AP1 (Applicant): the case of Mr. Ilyas and Mr. Ahmed
AP1 (Applicant): is a case about Hungary's, Hungarian government's, disregard of the essential procedural safeguards that ensure that no one is subjected to a risk of torture or inhuman treatment and no one is deprived of the right of an effective remedy.
AP1 (Applicant): This case is also about extrajudicial deprivation of liberty of two already traumatized human beings for three and a half weeks without any review by a competent court.
AP1 (Applicant): As opposed to the government's allegations, the applicants did not come to this court to have a ruling on the merits of their asylum claim.
AP1 (Applicant): They do not claim that asylum seekers should be granted an unconditional right to enter and remain in Hungary.
AP1 (Applicant): Their claim is merely that if detention is used, it should be based on law and respect the necessary procedural safeguards.
AP1 (Applicant): What they request you, Mr. President, members of the court,
AP1 (Applicant): is to find the following.
AP1 (Applicant): First, that their expulsion, which lacked both rigorous scrutiny and access to effective judicial remedy, exposed them to a real risk of inhuman treatment and thus led to the violation of Article 3 and Article 13 of the Convention.
AP1 (Applicant): Second, that their arbitrary detention in Hungary, which lacked any legal grant and any possibility of judicial review, breached Article 5 and 5.4
AP1 (Applicant): Third, that inhuman conditions during their arbitrary detention in Hungary, against which there was no opportunity to seek any remedy, breached Article 3 or Article 8 and Article 13 of the Convention.
AP1 (Applicant): Why did the applicants stay in the transit zone?
AP1 (Applicant): Because they wanted to find international protection and safety, despite the government's allegations.
AP1 (Applicant): For instance, Mr. Ilias is an extremely vulnerable orphan
AP1 (Applicant): since the age of eight.
AP1 (Applicant): Most of his life, he lived undocumented outside of Bangladesh in precarious conditions, often exposed to extreme hardship, from arbitrary detention to child labor.
AP1 (Applicant): Even in Bangladesh, during the short period he could spend there, he was destitute, undocumented, and homeless.
AP1 (Applicant): He faced abuse and harassment from the ruling party for being involved with the political opposition party.
AP1 (Applicant): He was also under constant harassment by the Bangladeshi police.
AP1 (Applicant): Eventually, he was expelled from his own country for being an undocumented migrant.
AP1 (Applicant): While he was detained in the Hungarian transit zone, Hungary granted refugee status to another asylum seeker from Bangladesh for risk of persecution due to his political affiliation, which was the same as Mr. Ilias's.
AP1 (Applicant): During their journey to Europe, both applicants had been vagrant and victim of forced labor whilst at the mercy of gangmasters and smugglers.
AP1 (Applicant): Then in Greece, they again became victims of forced labor in human treatment and conditions at the infamous Manolada farm.
AP1 (Applicant): They shared the fate of the Bangladeshi fruit pickers of this farm, who this court had found to be victims of violation of Article 4 of the Convention in the Chaudhry case.
AP1 (Applicant): This court is best placed to know of the deficiencies of the asylum system in Greece, unchanged in 2015, for which Greece was also held responsible for in MSS.
AP1 (Applicant): According to the Medicare reports, while the applicants were detained in the Hungarian transit zone, both applicants were diagnosed with post-traumatic stress disorder.
AP1 (Applicant): Mr. Ilias had signs of past treatment on his body.
AP1 (Applicant): Mr. Ahmed also had depression.
AP1 (Applicant): Mr. President, in our submission this morning,
AP1 (Applicant): I will address three issues in relation to the merits of our complaint.
AP1 (Applicant): The first, I will demonstrate the arguability of Article 3, why and in what form the applicants were facing risk of retreatment.
AP1 (Applicant): Second, I will demonstrate why the applicants' expulsion to Serbia led to the breach of Article 3 and Article 13.
AP1 (Applicant): And third, I will demonstrate why the transit zone was the detention, why it was unlawful and arbitrary in breach of Article 5 and 5.4.
AP1 (Applicant): Now I will start with the first point, the arguability of the applicant's claim with respect to Serbia.
AP1 (Applicant): All major international organizations, UN bodies such as the UNHCR, UN Committee Against Torture, UN Human Rights Committee, the EU Commission, reputable NGOs, and even other EU member states like Germany, Austria, and Belgium stated at the material time that Serbia was not safe for asylum seekers.
AP1 (Applicant): Mainly because of the serious deficiencies of the asylum system, including lack of access to the procedure, the absence of reception conditions, and the risk of chain refoulement.
AP1 (Applicant): Unlawful pushbacks and expulsions from Serbia to former Yugoslav Republic of Macedonia, FIROM, and further on to Greece and Turkey, or even to countries of origin such as Syria, took place as routine practice.
AP1 (Applicant): As admitted by Serbian state representatives in the evidence submitted, Serbia was automatically applying its own safe third country list, which included FIROM and all its neighboring states.
AP1 (Applicant): This court granted interim measures against Serbia, preventing returns to FIROM and Montenegro, initially in June 2015, again in 2016, and in 2017.
AP1 (Applicant): Finally, even the Hungarian asylum office stopped issuing safe third country inadmissibility decisions regarding Serbia in the middle of 2017 entirely.
AP1 (Applicant): But Mr. Ilias and Mr. Ahmed's situation
AP1 (Applicant): was special, and even worse at the material time.
AP1 (Applicant): Because they were rejected asylum seekers expelled by Hungary.
AP1 (Applicant): It was a well-known fact that asylum seekers rejected by Hungary did not have the right to lawfully enter Serbian territory, to apply for asylum, or to receive any kind of reception conditions in Serbia, not even basic food and shelter.
AP1 (Applicant): Under domestic law, Hungary had to apply the readmission agreement and had to ensure that Serbia officially takes back rejected asylum seekers, including the applicants, and grants them access to the asylum procedure and reception conditions.
AP1 (Applicant): In the absence of this, Hungary could not expel.
AP1 (Applicant): Instead, had to continue and examine the asylum applications on the merits.
AP1 (Applicant): In reality, by September 2015, readmission procedures were already suspended.
AP1 (Applicant): Serbian state officials stated in the media that Serbia would stop Hungary returning rejected asylum seekers with all its powers involving the army and not accept anyone Hungary attempts to return under duress.
AP1 (Applicant): It is a fact that in the applicant's specific case, Hungary never initiated the readmission procedure, never contacted the Serbian authorities, although their expulsion was based on the readmission agreement with Serbia.
AP1 (Applicant): It is also a fact that the exit area of the transit zone where rejected asylum seekers were forced to leave to is Hungarian territory outside the state border of Serbia.
AP1 (Applicant): Therefore, it was of utmost importance that Serbia officially takes back the applicants as asylum seekers and grants them access to the asylum procedure.
AP1 (Applicant): Instead, as the evidence show, on 8 October 2015, the applicants were forced to leave the transit zone.
AP1 (Applicant): Then the Serbian officials did not let them enter Serbia despite them asking for it with the assistance of UNHCR.
AP1 (Applicant): Then they had to enter irregularly.
AP1 (Applicant): By their expulsion, the applicants either faced destitution on the border of the two countries or because of eventually entering Serbia irregularly without the right to apply for asylum, they were left destitute, facing harassment and abuse by the Serbian police, risk of arrest, misdemeanor procedures, fines, and deportation.
AP1 (Applicant): They faced the risk of automatic chain refoulement to FIROM and Greece, where the risk of Article 3 violation was unanimously established by the chamber.
AP1 (Applicant): Mr. President, at the material time,
AP1 (Applicant): Hungary did not reject the applicants' asylum claim and expelled them due to the lack of persecution in Bangladesh.
AP1 (Applicant): Hungary chose not to examine their asylum claim on the merits, but decided that Serbia should do it for them.
AP1 (Applicant): This is why they were expelled from Hungary.
AP1 (Applicant): Publicly available evidence that laid before the Hungarian authorities showed that Mr. Elias and Mr. Ahmed had arguable claims under Article
AP1 (Applicant): 3 with regard to Serbia.
AP1 (Applicant): This brings me to the second point of today's submission, which is why Hungary violated Article 3 and Article 13 in relation to the applicants' expulsion to Serbia.
AP1 (Applicant): At the core of the complaints is that Hungary expelled the applicants without examining with rigorous scrutiny.
AP1 (Applicant): And by denying the basic procedural safeguards, the applicants clearly argued their claims with regard to Serbia.
AP1 (Applicant): Mr. President, the applicants fully
AP1 (Applicant): accept that the existence of the government decree entailing the safe third country list did not in itself violate Article 3.
AP1 (Applicant): It was the manner of implementation that rendered the domestic proceedings to be in breach of convention standards, despite the applicants' clear, arguable claim.
AP1 (Applicant): The complaint deficiencies have been observed by multiple bodies, including UN bodies, the CPT, the Commissioner for Human Rights, EU Commission and NGOs.
AP1 (Applicant): Eventually, these were the primary basis for the chamber to find unanimously the Article 3 violation.
AP1 (Applicant): Under this second point, now I will present the two most flagrant violations from our written submissions.
AP1 (Applicant): First, Hungary failed to apply the convention standards in relation to the subject and scope of Article 3 risk assessment.
AP1 (Applicant): Hungary simply did not examine the relevant facts, which I listed under the first point today.
AP1 (Applicant): It unlawfully required the applicants to prove that they had individually suffered past ill treatment while transiting through Serbia, instead of examining the future ill treatment, the risk of future ill treatment.
AP1 (Applicant): Hungary ignored the evidence described in the publicly available country information reports, including UNHCR's findings, on which the applicants specifically relied, which alone was against domestic law and this court's case law.
AP1 (Applicant): That the authorities' conclusion on this report was biased, superficial, and distorted.
AP1 (Applicant): That the burden of proof placed on the applicants was far too excessive.
AP1 (Applicant): The second most flagrant violation is the ineffectiveness of the domestic judicial remedy.
AP1 (Applicant): Domestic law explicitly prohibited the competent Hungarian court to conduct an ex-nunc judicial review and to examine the applicant's submissions, facts, and evidence in the second procedure.
AP1 (Applicant): For instance, the medical opinion, the country information, et cetera.
AP1 (Applicant): now I will turn to our third point of today's submission, the extrajudicial detention of Mr. Elias and Mr. Ahmed.
AP1 (Applicant): Under this third point, I will address three issues.
AP1 (Applicant): First, I will argue that the transit zone placement was deprivation of liberty.
AP1 (Applicant): Second, that it was unlawful and arbitrary.
AP1 (Applicant): And third, that there was no judicial remedy available for the applicants.
AP1 (Applicant): The first issue is the definition of detention.
AP1 (Applicant): What did the place look like at the time when Mr. Elias and Mr. Ahmed, two traumatized asylum seekers,
AP1 (Applicant): were staying there for 3 and 1 1 weeks?
AP1 (Applicant): Well, the place resembled a cage in the middle of nowhere, fenced in with high barbed wire fence and rows of razor blade wire.
AP1 (Applicant): The applicants were constantly controlled and monitored by armed police, border guard officers, security guards, and cameras.
AP1 (Applicant): Mr. Elias and Mr. Ahmed lived in a container
AP1 (Applicant): with not more than one to two square meters free space and a narrow strip as an outside area.
AP1 (Applicant): No privacy, total isolation from the outside world, with no possibility of communication and no meaningful activities.
AP1 (Applicant): The applicants could not leave the place towards Hungary.
AP1 (Applicant): And contrary to the government's allegation, it would not have been their free choice to leave in the direction of Serbia, because leaving would have meant abandoning their asylum claims, asylum procedures.
AP1 (Applicant): They could not re-enter the transit zone and feared ill treatment upon exiting the transit zone.
AP1 (Applicant): What is the legal definition of the deprivation of liberty?
AP1 (Applicant): Your court has already given a definition in many cases.
AP1 (Applicant): The legitimacy of which the government, in fact, have explicitly accepted in their written submissions.
AP1 (Applicant): Deprivation of liberty is to be assessed in light of a wide range of factors, such as the type, duration, effect, and manner of implementation of the restrictive measures, the degree of supervision and control, extent of isolation, availability of social contacts.
AP1 (Applicant): The theoretical possibility to leave the place of confinement is only one among the several factors in this definition.
AP1 (Applicant): This court has already found the applicability of Article 5.1
AP1 (Applicant): in transit zone cases in Amur, in Shamshen, and in Riyadh and Lidiab, despite the fact that it was possible for the applicants to voluntarily leave the country where they wished to take refuge.
AP1 (Applicant): Moreover, the arguability of the non-reformant claim is not a decisive factor whether the deprivation of liberty falls within the scope of Article 5.1.
AP1 (Applicant): Quite the opposite.
AP1 (Applicant): Such attempts from governments were explicitly rejected by this court as early as Amur, more than two decades ago.
AP1 (Applicant): On the other hand, lack of acceptance of the asylum seekers by the receiving country was a relevant fact in these cases.
AP1 (Applicant): Finally, according to this court, findings in Casparov detention may violate Article 5.1,
AP1 (Applicant): even though the person concerned has agreed to it, or as had in HL or Stanov, if given himself up to be taken into detention.
AP1 (Applicant): As regards the specific facts of the present case, the court will recall that the transit zone was and still is a place of detention, according to several UN and Council of Europe institutions, as well as academics and NGOs.
AP1 (Applicant): Importantly, the CPT itself has always considered the transit zone as a place of detention.
AP1 (Applicant): Recently, even Hungarian courts started issuing judgments in which they define placement in the transit zone as deprivation of liberty.
AP1 (Applicant): Now, it is against this backdrop that the government still insists on saying that the applicants were not detained.
AP1 (Applicant): They argue that the Amur principles and your consistent case law do not apply to the specific facts of this case, of Mr. Ilyas
AP1 (Applicant): and Mr. Ahmed's present case, because
AP1 (Applicant): of the lack of risk of persecution in Serbia and Bangladesh.
AP1 (Applicant): Related to this argument, the Hungarian and the Russian governments are implying that Habas corpus rights should only be granted to those who can prove before any decision on that issue that they face ill treatment upon leaving the country where they seek refuge.
AP1 (Applicant): This is fundamentally wrong.
AP1 (Applicant): It is undisputed that every person has the right to ask for international protection, as most recently reinforced in AEA versus Greece, and be protected from ill treatment.
AP1 (Applicant): Our submission is that every person entitled to be guaranteed Habas corpus rights by the state which has jurisdiction over them, as long as this person is waiting for the decision on their asylum claim or for a decision on their return, no person, regardless of their nationality or merits of their claim, of their asylum claim, should be accepted to renounce their Habas corpus rights and return to ill treatment for the sake of regaining their personal liberty.
AP1 (Applicant): Every person should be granted at least the chance to show the arguability of their claim under Article 3 in a procedure that satisfies the convention before any remover can take place.
AP1 (Applicant): In addition, the government is wrong about the facts of the present case.
AP1 (Applicant): In light of the report and other evidence, the applicants had an arguable claim with respect to Serbia and onward to Greece.
AP1 (Applicant): Mr. President, it is based on these considerations
AP1 (Applicant): that Mr. Elias and Mr. Ahmed were actually
AP1 (Applicant): deprived of their liberty while waiting for the outcome of their asylum proceedings, in which Hungary was supposed to examine their arguable claim, despite the exit gate in the direction of Serbia.
AP1 (Applicant): Now, I will turn to the second issue of why the applicant's detention was unlawful.
AP1 (Applicant): I will address three points.
AP1 (Applicant): First, the lack of legal basis.
AP1 (Applicant): Second, the lack of individualized assessment as regards necessity and proportionality.
AP1 (Applicant): And third, the inapplicability of the government's argument concerning border procedures.
AP1 (Applicant): The first point is that the applicant's detention was unlawful within the meaning of Article 5.1
AP1 (Applicant): because it was not in accordance with national law and had no legal basis in national law.
AP1 (Applicant): Mr. Elias and Mr. Ahmed never received a decision
AP1 (Applicant): nor information on the fact that they were detained under what law, for what reasons, on what conditions, for exactly how long, and with what remedies.
AP1 (Applicant): As the Grand Chamber reinforced its consistent case law in Claifia, the lack of specific legal provision underlying detention, the absence of a decision on detention, and the absence of judicial authorization, contrary to the principle of legal certainty, and these deficiencies should alone suffice for the conclusion that the applicant's detention was devoid of legal basis and arbitrary under national law and consequently under Article 5.
AP1 (Applicant): Our second point is that the applicant's detention was arbitrary because the Hungarian authorities failed to carry out an individualized assessment and examine whether detention was necessary and proportionate in the applicant's individual case, despite the clear legal obligations under domestic law on detention of asylum seekers.
AP1 (Applicant): This alone should also suffice for fighting a violation of the convention, as it was established by this court in the case of OM versus Hungary.
AP1 (Applicant): Our third point concerns the government's allegation that the national rules on border procedure should be considered sufficient legal basis for their detention.
AP1 (Applicant): The government is wrong.
AP1 (Applicant): Even if this piece of law would be acceptable in the first place, the quality of the law is not compatible with the general convention principles, the rule of law, legal certainty, proportionality, and the principle of protection against arbitrariness, the very aim of Article 5.
AP1 (Applicant): Today, I would like to emphasize in the following five points why the government's stance is totally unacceptable in the applicant's case.
AP1 (Applicant): First, the border procedure provisions suggested by the government exclusively concerned the asylum procedure process at the border transit zones, but not the issue of persons.
AP1 (Applicant): But not the issue of personal liberty detention in the transit zones.
AP1 (Applicant): It is clear that this law simply did not say a word about detention, about related judicial remedy, or about assessing vulnerability, as it was confirmed by the chamber judgment.
AP1 (Applicant): The second point, the government cannot possibly state that Mr. Ilyas and Mr. Ahmed were not detained