TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): and state at the same time that they should have known what the legal basis was for their detention.
AP1 (Applicant): Three, the two educated applicants could not possibly foresee anything about their detention without ever receiving any decision or adequate information on their detention.
AP1 (Applicant): What is more, none of the documents issued in the Hungarian proceedings concerned their placement in the transit zone as such.
AP1 (Applicant): Four, the applicants whose mother tongue is Bangla and who are illiterate in Urdu language were only given written information leaflet in Urdu language, which did not contain anything about detention and which was of insufficient quality, as stated by the witness statement, which we submitted to the chamber on 28th of March.
AP1 (Applicant): Five, as opposed to the government, the fact remains that the applicants who were diagnosed with post-traumatic stress disorder remained detained despite the medical evidence and their written requests to be released based exactly on the border procedures exclusion clause.
AP1 (Applicant): Finally, I address our third point about the applicant's detention.
AP1 (Applicant): The applicants on lawful detention was also in breach of Article 5.4,
AP1 (Applicant): given the fact that there was no opportunity either in law or in practice for the applicants to have their detention reviewed by any authority, let alone a judicial one.
AP1 (Applicant): As opposed to the government, domestic law on border procedure did not allow the court in the applicant's case to review the lawfulness of their stay in the transit zone, not even the applicability of the border procedure itself.
AP1 (Applicant): This was explicitly stated in the final court decision in the present case.
AP1 (Applicant): the government explicitly acknowledged the legitimacy of your consistent case law applied unanimously by the chamber.
AP1 (Applicant): The government was not correct about the relevant facts of the case and did not present any persuasive or legitimate reason that could justify for the Grand Chamber to reverse from the consistent case law on detention in transit zones and on standards of the necessary procedural safeguards in Article 3 cases.
AP1 (Applicant): Therefore, we request the Grand Chamber to find that Hungary violated Mr. Ilyas and Mr. Ahmed's rights
AP1 (Applicant): under Article 3, Article 13, Article 5, Article 5.4,
AP1 (Applicant): and Article 8 of the Convention.
Guido Raimondi (JudgeP): Thank you very much Mrs. Pohárnok.
Guido Raimondi (JudgeP): And now I call Mr.Tallódi, have the floor, please.
GR1 (Government): Honorable members of the court, ladies and gentlemen, it's a privilege and a pleasure to have the opportunity to appear before the court to present the oral submissions on behalf of the government of Hungary.
GR1 (Government): The court has directed the government to react to the applicants' observations in their oral pleadings at this hearing.
GR1 (Government): Although this method is not appropriate to correct each and every false presentation of facts, or flawed arguments in the applicants' submissions, to point out their irrelevance to the present case, the government considered that the court should not be lost in those details anyway.
GR1 (Government): Those details would be relevant only if the court decided to endorse a universal right to free movement of persons across borders, which I hope I can dissuade you from.
GR1 (Government): First of all, however, let me note that the applicants' observations didn't reveal any meaningful information about their present legal status in Germany and Spain, respectively.
GR1 (Government): They have presented a moving story of their sufferings as a result of their bad decisions made in their quest for a better life in the course of their journey to Europe, but they still have not submitted a credible story of their persecution in their home country.
GR1 (Government): The second applicant still claims to have left Bangladesh because of his poverty and loss of family caused by a flood.
GR1 (Government): He stated that he resided in Spain with a new identity, new name and date of birth, but he had not applied for asylum there, and he is not known to the Spanish immigration authorities.
GR1 (Government): The first applicant's story has become more refined and sophisticated, possible for the benefit of the asylum proceedings in Germany, but it is still not credible enough to have convinced the German authorities of his need for international protection.
GR1 (Government): The applicant's request for asylum having been rejected, he was ordered to leave Germany by the 7th of December, 2017, but it seems that he was overstayed his welcome and he's still in Germany.
GR1 (Government): It appears that he can enjoy a tolerated status in Germany as long as his home country refuses to take him back, or until he decides to leave voluntarily, because otherwise the German authorities have no means to remove him.
GR1 (Government): Thus, the court can satisfy that the applicants are all well, happily defying the law in Europe, and that the Hungarian authorities being very much aware of the realities of the process of migration in Europe were right in concluding that the applicants didn't face the risk of ill treatment or chain refoulement in Serbia, in spite of all anxiety and concerns raised by the NGOs or the UNHCR wanting to facilitate migrants' access to the country of their chosen destination.
GR1 (Government): Although the applicants in the present case are formally two Bangladeshi nationals who have a real stake in the present proceedings for a compensation claim of 15,000 euros each, the real stakeholders in this case are the NGOs acting as representatives for the applicants or intervening as third parties, which are advocates of the recognition of the right to asylum shopping and of the universal right to free movement of persons across borders.
GR1 (Government): Let me remind you that these purported rights are not yet recognized in international law, and even if the honorable members of this court consider such development of international law desirable, that decision is not for a judicial authority to make, not even under the pretense of interpretation of the Convention as a living instrument.
GR1 (Government): For such interpretation only means the adaptation of the vague notions used in the provisions of the Convention to the actual changes in society, to social reality, and not making society adapt some political goals not envisioned by the drafters of the Convention or by the states which have later acceded to that instrument.
GR1 (Government): this leads us to the real issue raised by this case, whether there is a right to have access to the country of chosen destination, whether there is a right to asylum shopping in international law, or a universal right to free movement of persons across borders.
GR1 (Government): Can any of those purported rights be derived from the Convention by way of interpretation, or do they constitute political goals formulated in human rights language whose achievement needs a political decision by the lawmakers, both in international and national law?
GR1 (Government): While the NGOs acting as representatives for the applicants or intervening as third parties, as well as the UNHCR advocate the recognition of the right to asylum shopping and of the universal right to free movement of persons across borders with a view to facilitating access to European standard of living for as many people as possible, and thus strive to have the notion of liberty under Article V be defined as the freedom to go wherever you want, the court must keep to the presently applied notion of personal liberty, allowing the inherent legal restraints without requiring individual judicial decisions.
GR1 (Government): Should we accept the applicant's definition of liberty, we would need a fully reasoned judicial decision every time we denied anyone entry to our home, or to mention a close example, to the building of this court or to the premises of any public offices.
GR1 (Government): What difference does it make if the gates of that office are at the border or inland of a state?
GR1 (Government): What difference does it make if it is our private home or the common home of a community?
GR1 (Government): Denial of entry is a restriction of liberty only if the person denied entry clearly has a legal entitlement to enter.
GR1 (Government): Do asylum seekers have an automatic right to enter the country, simple on account of a claim for asylum, irrespective of the well-foundedness of that claim?
GR1 (Government): That is an issue for the national legislator to regulate.
GR1 (Government): Under Hungarian law, the applicants did not have such a right.
GR1 (Government): Therefore, their liberty was not restricted when they were not allowed to enter the territory of Hungary beyond the transit zone.
GR1 (Government): Or if a broader notion of liberty is applied, their freedom to do as they wished was subject to an inherent limitation stemming from the lack of the right to do so.
GR1 (Government): Therefore, no issue of restriction of liberty arose in the present case, which should have been the subject of a judicial decision.
GR1 (Government): To conclude otherwise, it would be tantamount to a judicial recognition of an unconditional right to enter the country, a right to free movement across borders.
GR1 (Government): At this point, it must be noted that when the third party submissions are concerned about the restriction of the asylum seekers' freedom of movement, it is to be understood as a reference to a purported freedom of movement across borders, since freedom of movement, as provided for in Article 2 of Protocol Number 4 to the Convention, is well known to be a liberty of movement within the territory of a state, restricted to those lawfully within the territory of a state.
GR1 (Government): That is, those who already have been granted leave to enter and stay in the country.
GR1 (Government): No mention is made in the Convention of a freedom of movement across borders, thus the legal basis for the third party's concerns in this respect is completely lacking.
GR1 (Government): Considering the additional protocols have never restricted, only specified or supplemented the rights enshrined in the Convention, we cannot conclude that the scope of Article 5 is broader in respect of the liberty of movement than that of Article 2 of Protocol Number 4, and thus Article 5 cannot be interpreted to include a right to free movement across borders, as claimed by the applicants and the third parties.
GR1 (Government): There is no universally recognized right to free movement across borders either.
GR1 (Government): Free movement is recognized by some regional arrangements, such as in the European Union, as a privilege accorded to the citizens of the states taking part in a special form of international cooperation.
GR1 (Government): This privilege cannot be extended as a universal human right by judicial interpretation.
GR1 (Government): It is the court-settled case law that, in accordance with well-established international law, contracting states have the right to control the entry, residence, and removal of alliance.
GR1 (Government): We also know from the jurisprudence of the court that the rights enshrined by the Convention must be interpreted in a manner so as not to make them illusory or theoretical.
GR1 (Government): That should apply to the rights of the contracting states too.
GR1 (Government): You could ask, since states' rights are not human rights.
GR1 (Government): Because the states, contrary to the picture painted of them by human rights NGOs and some advocates of supranational global governance, are not to be regarded as an abstract entity with the power of repressing human freedom and to be eliminated as a leviathan, but the community of people exercising their right to self-determination within the framework of a social contract, creating an institutional structure for the protection of their well-being and achieving their common goals.
GR1 (Government): In this sense, states' rights necessary to fulfill their tasks conferred upon them by the social contract are to be protected from attempts of elimination the same way as human rights, as it is enshrined in both UN covenants as the people's right to self-determination.
GR1 (Government): As the devastating fate of people living in failed states and the inability of the United Nations to ensure the universal protection of human rights show, states, defined by the territory, borders, and population, cannot yet be eliminated from international law for the sake of globalization and global governance.
GR1 (Government): Therefore, none of the provisions of the convention can be interpreted in a manner making the states' right to control the entry, residence, and removal of alliance illusory or theoretical.
GR1 (Government): Granting a right to freedom of movement across borders or an unconditional right to entry upon the mere submission of a claim for international protection would have exactly that effect.
GR1 (Government): Then a request for asylum would substitute for any passport or visa requirements the preventing an unauthorized entry, part of Article V, Paragraph 1F of the convention, would become meaningless for all entry would be automatically authorized by the decision of this court.
GR1 (Government): And there would be no stopping of anyone, refugee or not, from reaching their desired destination.
GR1 (Government): You might find that a desirable development in a global village, but it is certainly not so until the effective institutions of a comprehensive and democratic global governance of the global village will be put in place.
GR1 (Government): As it is demonstrated by the German authorities' inability to remove the first applicant after rejection of his asylum claims, the state's right to control the removal of alliance has already become theoretical.
GR1 (Government): It is therefore even more important not to render the right to control the entry of alliance illusory.
GR1 (Government): The same effect of making the state's right to control immigration illusory can be achieved by the interpretation of Article III as proposed by the applicants.
GR1 (Government): If the standards of protection of individual rights are set as high as to make it practically impossible to apply any restriction in the interest of the community, or public interest if you prefer, and as high as to make individual interests prevail under any circumstances, it makes the protection of the rights of the community illusory.
GR1 (Government): If the threshold for the applicability of Article III is set so high that its standards can be reasonably met only by the richest states, and if the risks of refoulement and the adequacy of procedural safeguards in the asylum proceedings are determined by the opinion of organizations which are committed to the realization of a right to asylum shopping, it is tantamount to recognizing a right to choose a country of asylum.
GR1 (Government): As it has been shown by the government in their memorial, that right is not recognized in international law.
GR1 (Government): An explicit recognition of that right by the court would be obviously ultra-virous, and the government considered that the implicit endorsement of that right is also contrary to the object and purposes of the convention.
GR1 (Government): The principles of international law, for instance, the state's consent being necessary to create new obligations for them, and the principles of democratic government, for instance, division of competencies between the legislator and the judiciary.
GR1 (Government): it is the above considerations in the light of which you should examine the applicants' complaints.
GR1 (Government): Article V is not applicable in the present case because the applicants were not deprived of their personal liberty.
GR1 (Government): They did not have the right to enter Hungary without the necessary travel documents, and therefore they had to wait for the determination of their request for leave to enter, made in the form of an asylum application, at the gates of the border fence in the transit zone, where they were offered food and shelter to cater for their most basic human needs while waiting.
GR1 (Government): They were not in confinement or detention in the transit zone.
GR1 (Government): The definition of confinement is the state of being forced to stay in a place which you cannot leave.
GR1 (Government): The applicants entered the transit zone of their own free will and were free to leave any time.
GR1 (Government): They exercised the perpetrated right to asylum shopping, a right to choose a country of asylum, and thus it was their own choice to apply for asylum in Hungary with all the consequences it entailed, including their accommodation in the transit zone, just as it was their own choice not to apply for asylum in other countries, but to avoid the authorities of the transit states because they did not like the terms under which asylum was obtainable in those countries.
GR1 (Government): Naturally, the applicants would have preferred the terms of obtaining asylum to be more favorably in any of the transit states, including Hungary, but nevertheless they accepted the terms of the word available in Hungary and submitted their asylum application there, even if only with a view to obtaining the right of passage to Western Europe.
GR1 (Government): If they were in confinement in the transit zone, as some consider, the applicants had validly consented to it.
GR1 (Government): The government also referred to the judgment of 16th of March 2017 of the German Federal Court of Justice, in which it found that the accommodation at the airport transit zone, which the asylum applicant was free to leave any time, did not constitute deprivation of liberty, at least until up 30 days, and thus didn't require judicial supervision.
GR1 (Government): The government know that the applicants in this case stayed at the transit zone only for 23 days, and they were not even in an airport transit zone, but at the border, which they could leave with even less financial or practical difficulties.
GR1 (Government): This judgment is also significant because it proves that the chamber misunderstood the provisions of EU law governing deprivation of liberty in asylum proceedings, and in fact, as it was argued by the Hungarian government, accommodation in transit zones pending border proceedings were to be distinguished from asylum detention.
GR1 (Government): Should the grand chamber uphold the chamber's judgment, it would render EU law, and apparently German law too, contrary to the convention's requirement.
GR1 (Government): At this point, I would like to briefly point out that the Hungarian judicial decisions filed by the applicant's representatives in annexes number five and six of the latest submissions concern a different legal situation, not governed by the rules of border proceedings applied in the applicant's case, and thus cannot disprove the government's argument in the present case.
GR1 (Government): Contrary to the chamber's findings, the applicants were not compelled to stay in the transit zone by a fear of forfeiting their right to seek asylum.
GR1 (Government): After leaving the transit zone, they remained free to apply for asylum in Serbia, to resubmit their claims in Hungary, or, as the first applicant did, apply for asylum in Germany or any other state they chose.
GR1 (Government): Therefore, the finding that the applicants were deprived from the possibility to pursue a procedural aimed to shelter them from the risk of exposure to treatment in breach of Article 3 of the convention is wrong.
GR1 (Government): Contrary to the applicant's allegations, they were not deported to Serbia but left the transit zone voluntarily when they were ordered to do so.
GR1 (Government): Had they not left voluntarily, they would have been deported and handed over to the Serbian authorities as a measure of enforcement.
GR1 (Government): However, the last thing the applicants wanted was to be handed over to the Serbian authorities that they had chosen to avoid since an application for asylum in Serbia could not bring them closer to reaching their chosen country of destination.
GR1 (Government): Since they were not handed over to the Serbian authorities in readmission proceedings but left voluntarily, they were in the same legal position in Serbia, entering illegally from Hungary, as those asylum seekers who entered illegally from other states, thus they were not prevented from requesting asylum in Serbia by the mere fact that they had returned from Hungary.
GR1 (Government): Although the applicants clearly stated that they had had no intention of seeking asylum in Serbia, their counsel argues that they were denied an effective remedy in Serbia in respect of their claims under Article 3 or that they did not trust the Serbian authorities to give them proper treatment.
GR1 (Government): However, according to the jurisprudence of this court, the prejudices invoked by the applicants' counsel cannot serve as a justification for not having recourse to an effective domestic remedy.
GR1 (Government): When there are doubts about the effectiveness of a domestic remedy, that remedy must be tried.
GR1 (Government): There are no cases in the jurisprudence of the court finding that Serbia was in violation of its obligations under Article 3 and 13 in respect of asylum proceedings.
GR1 (Government): The applicants' counsel refers to some strikeout decision to prove the contrary.
GR1 (Government): However, had those cases truly revealed any structural problem in Serbian law and practice, the court would not have struck those applications out of its list of cases for whatever personal solution of the matter, but would have continued the examination of the application as required by the general interests of human rights protection.
GR1 (Government): Moreover, cases post-dating 2015 are irrelevant in the present case.
GR1 (Government): Therefore, we must conclude that irrespective of the counsel's allegations, it was the applicants who told the truth that they had not intended to all seek asylum in Serbia.
GR1 (Government): Thus, all the alleged deficiencies of the Serbian asylum system are irrelevant in the present case.
GR1 (Government): Furthermore, the government reiterates that in accordance with the court's jurisprudence, the issue under Article 3 is not whether and how the states, including the safe Serb countries, honor their obligations under the Geneva Convention, whether they effectively grant asylum to asylum seekers, even if not requested, as they are called to account for by the reports of the UNHCR, but whether the asylum seekers face a real risk of refoulement to the country which they have fled.
GR1 (Government): Irrespective of Serbia, even the UNHCR acknowledged that it was general practice to allow asylum seekers, even readmitted ones, to continue their journey towards Western Europe instead of taking any measures of deportation.
GR1 (Government): Moreover, contrary to the applicants' arguments, it is not chain return to a safe Serb country, which is prohibited by Article 3, but the chain refoulement to the country of persecution.
GR1 (Government): Although we cannot even speak of a risk of chain refoulement when there is no country of persecution at the end of the chain, as in the applicants' case, the government point out that even the UNHCR acknowledged that since June 2015, adequate guarantees have existed in Macedonia against the risk of refoulement, and therefore no risk of chain refoulement from Serbia to Greece via Macedonia existed in September 2015 for the applicants.
GR1 (Government): As regards the complaint concerning the alleged shortcomings of the procedural safeguards in the asylum proceedings in Hungary, under Article 13 in conjunction with Article 3, please note that it was not communicated to the government and therefore cannot be reintroduced before the ground chamber.