GRAND CHAMBER
CASE OF ILIAS AND AHMED v. HUNGARY
(Application no. 47287/15)
 
 
 
 
 
JUDGMENT
 
STRASBOURG
21 November 2019
 
This judgment is final but it may be subject to editorial revision. In the case of Ilias and Ahmed v. Hungary,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Linos-Alexandre Sicilianos, President,
 Angelika Nußberger,
 Robert Spano,
 Jon Fridrik Kjølbro,
 Ksenija Turković,
 Paul Lemmens,
 Ledi Bianku,
 Işıl Karakaş,
 Nebojša Vučinić,
 André Potocki,
 Aleš Pejchal,
 Dmitry Dedov,
 Yonko Grozev,
 Mārtiņš Mits,
 Georges Ravarani,
 Jolien Schukking,
 Péter Paczolay, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 18 and 19 April 2018 and on 13 March and 3 October 2019,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
1. The case originated in an application (no. 47287/15) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bangladeshi nationals, Mr Ilias Ilias and Mr Ali Ahmed (“the applicants”), on 25 September 2015. 2. The applicants were represented by Ms B. Pohárnok, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 14 March 2017 a Chamber of that Section composed of Ganna Yudkivska, President, Vincent A. De Gaetano, András Sajó, Nona Tsotsoria, Krzysztof Wojtyczek, Gabriele Kucsko‑Stadlmayer and Marko Bošnjak, judges and also of Marialena Tsirli, Section Registrar unanimously declared the application partly admissible and gave judgment. On 14 June 2017 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 18 September 2017 the panel of the Grand Chamber granted that request. 4. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. The President of the Grand Chamber decided that in the interests of the proper administration of justice, the case should be assigned to the same Grand Chamber as the case of Z.A. and Others v. the Russian Federation (applications nos. 61411/15 and 3 others, 28 March 2017) (Rules 24, 42 § 2 and 71). 5. The applicants and the Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the Governments of Bulgaria, Poland and the Russian Federation and, also, from the UNHCR, jointly from the Dutch Council for Refugees, the International Commission of Jurists and the European Commission on Refugees and Exiles and, separately, from five Italian scholars, all of whom had been given leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 6. A hearing took place in public in the Human Rights Building, Strasbourg, on 18 April 2018 (Rule 59 § 3). There appeared before the Court:
(a)  for the respondent Government
Mr Z. Tallódi, Agent,
Mrs A. Lőrincz, Director, Office for Immigration and Asylum,
Mrs M. Weller, Government Co-Agent, Advisers;
(b)  for the applicants
Mrs B. Pohárnok,  Counsel,
Mrs G. Matevzic,
Mrs N. Mole, Advisers. The Court heard addresses and replies to the questions put by the judges by Mr. Tallódi, Mrs Pohárnok and Mrs Matevzic. THE FACTS
THE APPLICANTS’ BACKGROUND AND THEIR TRAVEL TO HUNGARY
7. Both applicants are nationals of Bangladesh. According to information dating from December 2017, the first applicant, Mr Ilias Ilias, lives in Uedem, Germany, and the second applicant, Mr Ali Ahmed, in Barcelona, Spain. 8. On 15 September 2015 the applicants arrived in Hungary from Serbia and entered the Röszke transit zone, situated on Hungarian territory at the border between the two countries. Their asylum requests submitted on the same day were rejected as being inadmissible within several hours and the applicants’ expulsion was ordered. Following the applicants’ appeal, they spent 23 days in the transit zone while the proceedings unfolded. On 8 October 2015, after the final decision rejecting their applications for asylum and ordering their expulsion, they were escorted out of the transit zone and crossed the border back into Serbia. 9. The following summary of the applicants’ background is based on all their submissions to the Court. It appears that certain elements were not present in the allegations made to the Hungarian authorities or were only made in the second of the domestic sets of judicial proceedings or were presented with variations. 10. The first applicant was born in Bangladesh in 1983. At the age of eight he found himself alone in Pakistan, without his family. He lived there until the age of twenty four or twenty five (with the exception of three months at the age of fourteen when he was allegedly expelled to Afghanistan, detained there and then returned to Pakistan). As a child, he worked illegally in a restaurant and later as a fisherman and a tailor. He claims that he suffered abuse in Pakistan, including by the police, and tried to flee to Iran but was repeatedly abused there and returned to Pakistan. In 2009 or 2010 the first applicant went to Bangladesh and stayed there for a year or slightly longer, living homeless and often abused by the police because he had no documents. During this period he distributed pamphlets for the BNP, a political party, and started to receive threats from supporters of another political party. In 2010 or 2011, he was expelled by the police to India, stayed there two weeks and then crossed into Pakistan. After four months in Pakistan he went to Iran, where he lived and worked for 18 months. From there he went to Turkey, worked there for another 18 months and then paid smugglers to bring him to Greece, where he spent two and a half months. In 2015 he crossed on foot into the Former Yugoslav Republic of Macedonia and then on to Serbia by train. He was in Serbia for an unspecified but apparently very short period before entering Hungary. 11. The second applicant, born in 1980, lived in Bangladesh until 2010. He left because the floods of 2008 had destroyed his home and he had become destitute, surviving as a beggar. In 2010 he decided to go to India in search of better opportunities. His family who stayed in Bangladesh were killed in floods in 2010. The second applicant stayed in India for two months and then went to Pakistan, where he spent six months as captive of smugglers. The gang of smugglers eventually flew him to Dubai, made him work there for two years and then transferred him by boat to Iran. In Iran he worked for the same smugglers for two months before being taken by them to Turkey on foot. In Turkey, he was held captive by the smugglers for two weeks, then transferred to Greece. In Greece, the second applicant worked for two years. He there met the first applicant and they left together for the Former Yugoslav Republic of Macedonia, Serbia and Hungary. 12. Both applicants’ mother tongue is the Sylheti dialect of Bengali, the official language of Bangladesh. 13. Both applicants understand spoken Urdu and the first applicant speaks this language. It appears that the applicants declared before the Hungarian asylum authority that they also understood Turkish and English. 14. The first applicant never went to school. The second applicant finished only the first three years of school and can read and write in Sylheti and Bengali at a basic level. THE APPLICANTS’ STAY IN THE TRANSIT ZONE
15. The Röszke transit zone, as it was at the relevant time, was a compound with mobile containers and a narrow open-air area surrounded by approximately four-metre high fencing with barbed wire on the top. The entire zone was guarded by police officers and armed security guards. At the material time, applicants for asylum were held in the designated accommodation area consisting of approximately ten mobile containers (each measuring some 2.5 metres x 5.5 metres) furnished with three to five beds and an electric heater. There was a separate container for sanitary purposes and a bigger container used as a common room furnished with tables and chairs. The accommodation area was surrounded by a narrow open-air strip (approximately 2.5 metres wide and 40-50 metres long). Hot and cold running water and electricity were supplied. Three pork-free meals were available daily to the applicants in a dining-container. 16. According to the applicants, they had no access to social or medical assistance while in the zone. There was no access to television or the Internet, landline telephone or any recreational facilities. 17. According to the Government, medical care was available for two hours daily from doctors of the Hungarian Defence Force. 18. According to the Council of Europe’s Committee for the Prevention of Torture (“the CPT”), beds in the Röszke zone were fitted with clean mattresses, pillows and bedding. The accommodation containers had good access to natural light and artificial lighting. Further, there was a narrow designated area in front of the containers to which foreign nationals had unrestricted access during the day. The sanitary facilities were satisfactory and health care was provided (see paragraph 65 below). 19. The applicants could not leave the zone for the remaining territory of Hungary. It appears that they could leave it for Serbia, but the parties are in dispute as to the legal and practical consequences of such a move. THE APPLICANTS’ ASYLUM REQUESTS AND THEIR EXAMINATIONThe first decision of the asylum authority and the appeal against it

20. The applicants were interviewed by the Citizenship and Immigration Authority (“the asylum authority”) shortly after their arrival, with the assistance of an interpreter who spoke Urdu as a foreign language. The first applicant’s interview lasted two hours and the second applicant’s twenty-two minutes. During the interviews they explained the background to their departure from Bangladesh, and gave some details concerning their journey. The first applicant was provided with a two-page information leaflet in Urdu on asylum procedure. 21. According to the notes taken by the Hungarian authorities during the interviews, Hungary was the first country where both applicants had applied for asylum. In Serbia, the first applicant had not met any official or representative of the authorities, nor had he even envisaged seeking protection in that country. The second applicant had once come across police officers while in Serbia but had not submitted an asylum request. He had insisted on continuing his journey, and the Serbian police had allegedly let him go after having issued him with a document ordering him to leave the country. 22. During the interview, the first applicant was informed that he had three days to provide reasons for his decision not to request protection in Serbia and to explain why he had considered the possibility of seeking asylum in Serbia as non-existent or ineffective. The second applicant was also invited, albeit as an immediate obligation, to explain why he thought that he could not have obtained protection in Serbia. According to the notes of the interview, he answered that he had not asked for asylum there because he wanted to continue his journey. 23. By two separate decisions delivered on the same day, 15 September 2015, the asylum authority (without, in the first applicant’s case, waiting for the three-day period given to him for rebutting the presumption about Serbia as a “safe third country”) rejected both applicants’ asylum applications, declaring them inadmissible on the grounds that Serbia was to be considered a “safe third country” according to Government Decree no. 191/2015(VII.21.) and the applicants had not rebutted that presumption as they had not even considered the possibility of submitting an asylum claim in Serbia. The asylum authority ordered the applicants’ expulsion from Hungary. 24. The applicants challenged the decisions before the Szeged Administrative and Labour Court. The court listed a hearing in both the applicants’ cases for 21 September 2015. 25. The applicants, through UNHCR representatives who had access to the transit zone, authorised two lawyers of the Hungarian Helsinki Committee to represent them in the judicial review proceedings. It appears that the authorities did not allow the applicants’ lawyers to enter the transit zone to consult with their clients until the evening of 21 September 2015, that is, after the court hearing. 26. Nevertheless, on 21 September 2015, the day of the hearing, the applicants’ lawyers made written submissions, running to several pages, and also pleaded their case orally. The lawyers were present in the courtroom in Szeged, whereas the applicants communicated with the court via video link, with the help of an interpreter in Urdu. 27. Both applicants stated that they had received a document from the Serbian authorities written in Serbian, which they could not understand, and that they had been ordered to leave Serbian territory. Both applicants showed the documents which they had received from the Serbian authorities; in the first applicant’s case, that document did not comprise his name, as it had been issued for another person. At the hearing, the second applicant submitted that he had applied for asylum in Serbia, but his application had not been examined. 28. In their written and oral submissions, the applicants’ lawyers argued, in essence, that the asylum authority had violated the provisions of the Asylum Procedures Directive (Directive 2013/32/EU) by failing genuinely to examine the question whether Serbia could be considered a “safe third country” in the applicants’ particular situation. In their view, the decisions had been formalistic and lacked any individualised assessment. The applicants further complained that they had not been allowed to avail themselves of the statutory three-day time-limit to contest the application of the “safe third country” principle, as the asylum authority had adopted its decisions on the very day of the first interviews. They also argued that the decisions had not properly taken into account the relevant country information, in particular the reports of the UNHCR and a statement of the Serbian Minister of Labour and Social Affairs, dated 14 September 2015, according to which Serbia would not take back asylum-seekers from Hungary. 29. On the same day the court annulled the asylum authority’s decisions and remitted the case to it for fresh consideration. It relied on section 3(2) of the Government Decree and argued that the asylum authority should have analysed the actual situation in Serbia regarding asylum procedure more thoroughly. It should also have informed the applicants of its conclusions on that point and afforded them three days to rebut the presumption of Serbia being a “safe third country” with the assistance of legal counsel. The second decision of the asylum authority and the appeals against it
30. In the renewed procedure before the asylum authority, the applicants submitted a written opinion by a psychiatrist, who had visited them in the transit zone on 23 September 2015 and interviewed them with the assistance of an interpreter attending by telephone. The psychiatrist intervened at the request of the applicants’ lawyers and was commissioned by the Hungarian Helsinki Committee. In her opinion the psychiatrist stated that the first applicant had left Bangladesh in 2010 partly because of a flood and partly because two political parties had been trying to recruit him. He had been attacked and suffered injuries because of his refusal to do so. The psychiatrist observed that the first applicant was well-oriented, able to focus and recall memories, but showed signs of anxiety, fear and despair. He was diagnosed with post-traumatic stress disorder (“PTSD”). With regard to the second applicant, the psychiatrist noted that he had fled his country five years earlier and had worked abroad, during which time his whole family had died in a flood. He had then migrated through several countries in order to restart his life. He was found to be well oriented with no memory loss but with signs of depression, anxiety and despair. He was diagnosed with PTSD and as having an episode of depression. The psychiatrist did not mention any need for medical or psychological treatment. However, she was of the opinion that the applicants’ mental state was liable to deteriorate due to the confinement. 31. On 23 September 2015 the asylum authority informed the applicants’ legal representatives by telephone that a hearing would be held two days later. However, the representatives apparently considered that this was not a valid summons and did not attend. 32. At the hearing before the asylum authority on 25 September 2015, the applicants decided not to make any statement since their legal representatives were not present. With the assistance of an Urdu interpreter, the asylum authority informed the applicants that they had three days to rebut the safe-third-country presumption. 33. On 28 September 2015 the applicants’ legal representatives made submissions to the asylum authority protesting against the manner in which they were summoned and requested that a new hearing be held, which they would attend. They also stated that the applicants should be given a proper opportunity to comment on the material on the basis of which Serbia was deemed safe. 34. On 30 September 2015 the asylum authority rejected the applications for asylum. It found that the reports prepared by the psychiatrist had not provided enough grounds 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. As to the status of Serbia being classified as a “safe third country”, the asylum authority had regard to relevant reports by the UNHCR and a non-governmental organisation. It further 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, and therefore that they had been unable to rebut the presumption. The applicants’ expulsion from Hungary was consequently ordered. 35. The applicants sought judicial review by the Szeged Administrative and Labour Court. They argued, in particular, that the asylum authority had based its decisions on selectively chosen and incorrectly interpreted country information. They also submitted that, in their view, the burden of proof was on the asylum authority first of all to show that Serbia was a safe third country for the applicants and to substantiate this finding with relevant country information and other evidence. The applicants argued that the three-day time-limit for their rebuttal of the application of the safe third country principle could not even lawfully begin to run because the asylum authority had failed to meet its obligation to prove its assertions convincingly. The applicants further contended that the asylum authority had failed to verify whether the Serbian authorities would readmit them, this also being a condition for the application of the “safe third country” principle. They also referred to various alleged procedural shortcomings. 36. On 5 October 2015 the court, in separate decisions concerning the first and second applicant respectively, upheld the asylum authority’s decisions. It observed, in particular, that in the resumed procedure the asylum authority had examined, in accordance with the guidance of the court, whether Serbia could be regarded generally as a safe third country for refugees, and had found on the basis of the relevant law and the country information obtained that it was. It had considered the report of the Belgrade Centre for Human Rights published in 2015, the reports of August 2012 and June 2015 issued by the UNHCR concerning Serbia, and also other documents submitted by the applicants. It had established on the basis of those documents that Serbia satisfied the requirements of section 2 (i) of the Asylum Act. The court was satisfied that the asylum authority had established the facts properly and observed the procedural rules, and that the reasons for its decision were clearly stated and were reasonable. The court further emphasised that the statements given by the applicants at the hearings had been contradictory and incoherent. The first applicant had given various reasons for leaving his country and made confusing statements on whether he had received any documents from the Serbian authorities. The document he had finally produced was not in his name, and therefore could not be admitted as evidence. At no point during the administrative procedure had he referred to the conduct of the human traffickers before his hearing by the court. The second applicant’s statements were incoherent on the issue of the duration of his stay in Serbia and the submission of a request for asylum. The applicants had not relied on any specific fact that could have led the authority to consider Serbia unsafe in their regard. They had only contested the safety of Serbia in general, which was insufficient to rebut the presumption. 37. The final decisions were served on the applicants on 8 October 2015. They were written in Hungarian but explained to them in Urdu. During the afternoon of the same day the applicants were escorted by police officers out of the transit zone and then entered Serbia. 38. On 22 October 2015 the transcript of the court hearing held on 5 October 2015 was sent to the applicants’ lawyer. On 10 December 2015 the lawyer received the Bengali translation of the court’s decisions taken at the hearing. On 9 March 2016 the applicants’ petitions for review were dismissed on procedural grounds, since the Kúria held that it had no jurisdiction to review such cases. THE APPLICANTS’ REMOVAL TO SERBIA ON 8 OCTOBER 2015
39. The applicants submitted descriptions of the removal in a note from the UNHCR and a letter from a Serbian non-governmental organisation whose representatives were present, as well as in a video interview with the applicants conducted on the evening of their return to Serbia with the assistance of a lawyer of another Serbian non-governmental organisation via an Urdu interpreter. The respondent Government did not contest the descriptions but maintained that the applicants had left Hungary voluntarily. 40. It transpires from those descriptions that on the morning of 8 October 2015 UNHCR staff met the applicants at the transit zone and explained to them that following the judgment in their case they could return to Serbia voluntarily or appeal, in which case they would be detained for two months. The applicants expressed their wish to appeal and remain in Hungary and signed an appeal. The UNHCR staff left. In the early afternoon the police and the asylum authorities told the applicants, with the help of an Afghan man who could speak some Urdu, that the court had decided that they should go back to Serbia. The applicants replied that they did not want to go to Serbia and that the UN staff had told them that they might be able to stay for two months in Hungary. They handed a copy of the appeal they had signed but the authorities refused to take it. The police insisted and said that the applicants could choose between voluntary departure or detention and forceful handing over to the Serbian police. The applicants felt threatened and thought that they risked violence. They decided to leave. The police told them to cross into Serbia via the forest and not through the official checkpoint. As they were being led out of the transit zone the UNHCR staff arrived and conversed with the police who told them that the applicants had decided to leave Hungary voluntarily and also that they would not be escorted all the way and across to the Serbian side of the border. Serbian border police had informed the UNHCR staff and the Hungarian police officer that the applicants would not be allowed to enter Serbia through the official checkpoint without documents and that the only possibility would be to try to enter through the “green border”. The UNHCR representative made telephone calls to arrange for the applicants to be met at the other side of the border. The applicants were escorted only to the exit of the transit zone and given directions by the Hungarian police to go alone to the right, along the fence. No force was used. The UNHCR staff insisted and were eventually allowed to tell the two applicants that they would be met at the Serbian side of the border for which they had to go in another direction – to the left towards the highway and the Horgos border crossing on the Serbian side. This was communicated to the applicants. The applicants crossed the border as directed by the UNHCR and not through the forest. Serbian police officers were present when they crossed and only told them to wait for the UNHCR staff coming to meet them. The applicants were met by UNHCR staff who helped them. RELEVANT LEGAL FRAMEWORK AND PRACTICE
DOMESTIC LAWDomestic law as in force at the relevant time

41. The relevant provisions of Act no. LXXX of 2007 on Asylum (“the Asylum Act”) provided as follows:
Section 2
“For the purposes of this Act:
...
i)  “safe third country” means a country in respect of which the asylum authority is satisfied that the applicant is treated according to the following principles:
...
ib)  in accordance with the Geneva Convention[1], the principle of non-refoulement is respected;
ic)  the rule of international law prohibiting removal to a country where the person in question would be subjected to conduct defined in Article XIV(2) of the Fundamental Law [that is to say, where would risk to face death penalty, torture or any other form of inhuman treatment or punishment], is respected and applied; and
id)  the possibility exists to apply for recognition as a refugee; and persons recognised as refugees receive protection in accordance with the Geneva Convention; ...
...
k)  persons deserving special treatment: unaccompanied minors or vulnerable persons – in particular minors, elderly or disabled persons, pregnant women, single parents raising minors and persons who were subjected to torture, rape or any other grave form of psychological, physical or sexual violence – who have been found, after an individual assessment, to have special needs.”
Section 5
“(1)  A person seeking recognition shall be entitled to:
a)  stay in the territory of Hungary according to the conditions set out in the present Act ...;
...
c)  work ... at a place of accommodation [designated by the asylum authority] ...”
Section 31/A, entitled “Asylum detention”
“(1)  The asylum authority can, in order to conduct the asylum procedure or to secure the Dublin transfer – taking the restrictions laid down in Section 31/B into account – take the person seeking recognition into asylum detention if his/her entitlement to stay is exclusively based on the submission of an application for recognition where
a)  the identity or citizenship of the person seeking recognition is unclear, in order to establish them,
b)  a procedure is ongoing for the expulsion of a person seeking recognition and it can be proven on the basis of objective criteria – inclusive of the fact that the applicant has had the opportunity beforehand to submit application of asylum - or there is a well-founded reason to presume that the person seeking recognition is applying for asylum exclusively to delay or frustrate the performance of the expulsion,
c)  facts and circumstances underpinning the application for asylum need to be established and where these facts or circumstances cannot be established in the absence of detention, in particular when there is a risk of escape by the applicant,
d)  the detention of the person seeking recognition is necessary for the protection of national security or public order,
e)  the application was submitted in an airport procedure, or
f)  it is necessary to carry out a Dublin transfer and there is a serious risk of escape.
...”
Section 45
“(1)  The principle of non-refoulement prevails if in his or her country of origin, the person requesting recognition would be subject to persecution based on race, religion, nationality, membership of a certain social group or political opinion or would be subject to treatment proscribed by Article XIV (2) of the Fundamental Law ...
... (3)  In the case of a rejection of an application for recognition, or in the case of the withdrawal of recognition, the asylum authority states whether or not the principle of non-refoulement is applicable.”
Section 51
“(1)  If the conditions for the application of the Dublin Regulations are not present, the asylum authority shall decide on the admissibility of the application for refugee status ... (2)  An application is not admissible if
...
d)  the application is repeated and there is no appearance of any new circumstances or facts that would warrant the applicant’s recognition as a refugee or a beneficiary of subsidiary protection;
e)  there is a country that shall be considered a safe third country with respect to the applicant ... (4)  An application may be considered inadmissible pursuant to sub-section (2) e) only if:
a) the applicant resided in a safe third country and he or she had the opportunity in that country to request effective protection in line with section (2) i);
b)  the applicant travelled through a safe third country and he or she could have requested effective protection in line with section (2) i);
c)  the applicant has a family member in that [safe third] country and is allowed to enter the territory thereof; or
d)  the safe third country submitted a request for the extradition of the applicant. (5)  In the case of a situation falling under sub-section (4) a) or b), it is for the applicant to prove that he or she did not have an opportunity to obtain effective protection in that country in line with section (2) i).
... (11)  If section (2) e) ... applies to the applicant, he or she may, immediately after being notified of this, or at the latest three days after the notification, provide evidence that the country in question cannot be considered a safe country of origin or a safe third country in his or her individual case.”
Section 51/A
“If the safe country of origin or the safe third country refuses to admit or to take back the applicant, the asylum authority shall withdraw its decision and shall continue the procedure.”
Section 53
“... (2)  The decision declaring the application inadmissible ... may be challenged in court. Except for a decision based on section 51 (2) e) ... the request for court review shall not have a suspensive effect on the decision’s execution.
... (4)  The court shall deliver its decision within eight days from the time of receipt of the request for review, in non-contentious proceedings, on the basis of the documents available. The review of the court shall cover the examination of both the facts and the whole range of legal issues, as they stood at the time of the administrative authority’s decision. If necessary, [the court may hear the parties in person]. (5)  The court cannot amend the asylum authority’s decision; the unlawful administrative decision ... shall be quashed and, if necessary, the court shall remit the case to the asylum authority for new proceedings. There shall be no remedy against the court’s decision to close the proceedings.”
Section 66
“(2)  The asylum authority shall base its decision on the information at its disposal or discontinue the proceedings if the person requesting recognition
...
d)  has left the designated accommodation or place of residence for more than 48 hours for an unknown destination and does not properly justify his or her absence;
... (4)  The decision terminating the proceedings on one of the grounds enumerated in sub-section (2) points a) to d) above cannot be challenged in court.
... (6)  The applicant may, within nine months from the notification of the discontinuance order, request the continuation of the proceedings terminated under sub-section (2) points b) to d). The applicant may only submit such request in person, before the asylum authority. Upon such request for continuation, submitted in due time, the asylum authority shall continue the proceedings from the procedural stage that preceded the discontinuance. The applicant may request the continuation of the proceedings once.”
Section 71/A
“(1)  If an applicant lodges his or her application before admission to the territory of Hungary, in a transit zone defined by the Act on State Borders, the provisions of this chapter [on the procedure for recognition as a refugee or a beneficiary of subsidiary protection] shall be applied [accordingly, with the differences specified in this section]. (2)  In the border proceedings, the applicant does not have the rights guaranteed under section 5(1) a) and c). (3)  The asylum authority shall decide as to the admissibility of an application in accelerated proceedings, at the latest within eight days from the time of submission thereof. The asylum authority shall promptly communicate the decision adopted in the procedure. (4)  When a decision has not been taken within four weeks, the immigration authority shall grant entry in accordance with the provisions of law. (5)  If the application is not inadmissible, the immigration authority shall grant entry in accordance with the provisions of law. (6)  If the applicant has been granted entry to the territory of Hungary, the asylum authority shall conduct the proceedings applying the general rules. (7)  The rules on proceedings in the transit zone shall not be applied to persons deserving special treatment.
...”
Section 80/A, entitled “Crisis caused by mass immigration”
“(1)  A state of crisis caused by mass immigration may be declared if:
a)  the number of people arriving in Hungary and seeking recognition exceeds
aa)  five hundred per day as an average in a month, or
ab)  seven hundred and fifty per day as an average in two successive weeks, or
ac)  eight hundred as an average in a week;
b)  the number of people staying in a transit zone in Hungary – excluding the persons who contribute to looking after such foreigners – exceeds
ba)  a thousand per day as an average in a month, or
bb)  one thousand and five hundred per day as an average over two weeks, or
bc)  one thousand and six hundred per day as an average in a week;
c)  in addition to the cases specified in points a) and b), any condition evolves in relation to a migration situation that directly jeopardises public safety, public order or public health in a village, town or city, especially if a disturbance breaks out or violent acts are committed at a receiving station or other institution providing accommodation for such foreigners and located at such a place or in its outskirts. (2)  The state of crisis caused by mass immigration may be declared by a Government decree, at the request of the national Chief of Police and the head of the asylum authority, and at the proposal of the minister in charge. The state of crisis caused by mass immigration may be declared in respect of the whole territory of Hungary or a specified part thereof.
...”
42. The Government declared a state of crisis caused by mass immigration as of noon on 15 September 2015 in respect of the territory of Bács-Kiskun and Csongrád counties, where the Röszke transit zone was located. On 18 September 2015 the scope of the state of crisis was extended to the territory of Baranya, Somogy, Zala and Vas counties. On 9 March 2016 the state of crisis was maintained and extended to the whole territory of Hungary, until 7 September 2018. 43. The relevant provisions of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (“the Immigration Act”) provide as follows:
Section 51
“(1)  The refoulement or expulsion shall not be ordered or executed to the territory of a country that fails to satisfy the criteria of a safe country of origin or a safe third country regarding the person in question, in particular where the third-country national is likely to be subjected to persecution on the grounds of his or her race, religion, nationality, social affiliation or political conviction, or to the territory of a country or to the frontier of a territory where there is substantial reason to believe that the refouled or expelled third-country national is likely to be subjected to a treatment proscribed by Article XIV (2) of the Fundamental Law[, notably to death penalty, torture or any other form of inhuman treatment or punishment] (non-refoulement). (2)  If there is a pending asylum procedure in respect of the third-country national, his or her refoulement or expulsion cannot be ordered or executed, provided that he or she is entitled, pursuant to a separate law, to reside on the territory of Hungary.
...”
Section 52
“(1)  The immigration authority shall take into account the principle of non‑refoulement in proceedings relating to the ordering and enforcement of a refoulement or expulsion.
...”
44. Government Decree no. 191/2015. (VII. 21.) on the definition of safe countries of origin and safe third countries provides:
Section 2
“Member States of the European Union and candidates for EU membership (except Turkey)[2], member states of the European Economic Area, all the states of the United States of America which do not apply the death penalty, and the following countries shall be regarded as ‘safe third countries’ within the meaning of section 2 i) of Act no. LXXX of 2007 on Asylum:
1. Switzerland,
2. Bosnia-Herzegovina,
3. Kosovo,
4. Canada,
5. Australia,
6. New Zealand.”
Section 3
“... (2)  If, before arriving in Hungary, the person requesting recognition resided in or travelled through one of the third countries classified as safe by the EU list or by section 2 above, he or she may demonstrate, in the course of the asylum proceedings based on the Asylum Act, that in his or her particular case, he or she could not have access to effective protection in that country within the meaning of section (2) i) of the Asylum Act.”
Changes in domestic law in force since 28 March 2017
45. As of 28 March 2017 the Asylum Act was amended, in particular as regards the rules to be applied when a state of crisis caused by mass immigration is declared. According to the new rules, in such circumstances applications for recognition can only be submitted, with some limited exceptions, in the transit zone and asylum-seekers are required to wait there until the decision is taken after the examination of the merits of their applications (unlike in the situation regulated by section 71/A (5), they are not allowed to leave the transit zone even if the application is not found to be inadmissible). The time-limit for the court appeal against an inadmissibility decision adopted by the asylum authority is three days (as opposed to seven days under the ordinary rules). Unlike in the ordinary border procedure, section 66 (6) of the Asylum Act does not apply and the applicant cannot request the continuation of the procedure if it was discontinued upon his or her leaving the transit zone. 46. In January 2018 the relevant laws were further amended in connection with the entry into force of the new Act on General Public Administration Procedures (Act no. CL of 2016) and the new Code of Administrative Justice (Act no. I of 2017). Another amendment was introduced in July 2018. European Union LAWDirective 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (“the Asylum Procedures Directive”)

47. The Preamble of this Directive, insofar as relevant, reads:
“... (38)  Many applications for international protection are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to provide for admissibility and/or substantive examination procedures which would make it possible for such applications to be decided upon at those locations in well-defined circumstances. (39)  In determining whether a situation of uncertainty prevails in the country of origin of an applicant, Member States should ensure that they obtain precise and up‑to-date information from relevant sources such as EASO, UNHCR, the Council of Europe and other relevant international organisations. Member States should ensure that any postponement of conclusion of the procedure fully complies with their obligations under Directive 2011/95/EU and Article 41 of the Charter, without prejudice to the efficiency and fairness of the procedures under this Directive.
... (43)  Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies for international protection in accordance with Directive 2011/95/EU, except where this Directive provides otherwise, in particular where it can reasonably be assumed that another country would do the examination or provide sufficient protection. In particular, Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country. (44)  Member States should not be obliged to assess the substance of an application for international protection where the applicant, due to a sufficient connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country, and there are grounds for considering that the applicant will be admitted or readmitted to that country. Member States should only proceed on that basis where that particular applicant would be safe in the third country concerned. In order to avoid secondary movements of applicants, common principles should be established for the consideration or designation by Member States of third countries as safe. (45)  Furthermore, with respect to certain European third countries, which observe particularly high human rights and refugee protection standards, Member States should be allowed to not carry out, or not to carry out full examination of, applications for international protection regarding applicants who enter their territory from such European third countries. (46)  Where Member States apply safe country concepts on a case-by-case basis or designate countries as safe by adopting lists to that effect, they should take into account, inter alia, the guidelines and operating manuals and the information on countries of origin and activities, including EASO Country of Origin Information report methodology, referred to in Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, as well as relevant UNHCR guidelines. (47)  In order to facilitate the regular exchange of information about the national application of the concepts of safe country of origin, safe third country and European safe third country as well as a regular review by the Commission of the use of those concepts by Member States, and to prepare for a potential further harmonisation in the future, Member States should notify or periodically inform the Commission about the third countries to which the concepts are applied. The Commission should regularly inform the European Parliament on the result of its reviews. (48)  In order to ensure the correct application of the safe country concepts based on up-to-date information, Member States should conduct regular reviews of the situation in those countries based on a range of sources of information, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations. When Member States become aware of a significant change in the human rights situation in a country designated by them as safe, they should ensure that a review of that situation is conducted as soon as possible and, where necessary, review the designation of that country as safe. ...”
48. Article 31, entitled “Examination procedure” reads, insofar as relevant:
“... 8. Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if:
... (b)  the applicant is from a safe country of origin within the meaning of this Directive ...”
49. Article 33, entitled “Inadmissible applications” reads as follows:
“1. In addition to cases in which an application is not examined in accordance with Regulation (EU) No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU where an application is considered inadmissible pursuant to this Article. 2. Member States may consider an application for international protection as inadmissible only if:
(a)  another Member State has granted international protection;
(b)  a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 35;
(c)  a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 38;
(d)  the application is a subsequent application, where no new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU have arisen or have been presented by the applicant; or
(e)  a dependant of the applicant lodges an application, after he or she has in accordance with Article 7(2) consented to have his or her case be part of an application lodged on his or her behalf, and there are no facts relating to the dependant’s situation which justify a separate application.”
50. Article 34, entitled “Special rules on an admissibility interview”, reads, insofar as relevant:
“1. Member States shall allow applicants to present their views with regard to the application of the grounds referred to in Article 33 in their particular circumstances before the determining authority decides on the admissibility of an application for international protection. To that end, Member States shall conduct a personal interview on the admissibility of the application. Member States may make an exception only in accordance with Article 42 in the case of a subsequent application. ...”
51. Article 35, entitled “The concept of first country of asylum”, reads as follows:
“A country can be considered to be a first country of asylum for a particular applicant if:
(a)  he or she has been recognised in that country as a refugee and he or she can still avail himself/herself of that protection; or
(b)  he or she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement,
provided that he or she will be readmitted to that country. In applying the concept of first country of asylum to the particular circumstances of an applicant, Member States may take into account Article 38(1). The applicant shall be allowed to challenge the application of the first country of asylum concept to his or her particular circumstances.”
52. Article 36, entitled: “The concept of safe country of origin”, reads as follows:
“1. A third country designated as a safe country of origin in accordance with this Directive may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant only if:
(a)  he or she has the nationality of that country; or
(b)  he or she is a stateless person and was formerly habitually resident in that country, and he or she has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection in accordance with Directive 2011/95/EU. 2. Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.”
53. Article 38, entitled “The concept of safe third country”, insofar as relevant, reads as follows:
“1. Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking international protection will be treated in accordance with the following principles in the third country concerned:
(a)  life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
(b)  there is no risk of serious harm as defined in Directive 2011/95/EU;
(c)  the principle of non-refoulement in accordance with the Geneva Convention is respected;
(d)  the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and
(e)  the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention. 2. The application of the safe third country concept shall be subject to rules laid down in national law, including:
(a)  rules requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country[3];
(b)  rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;
(c)  rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances. The applicant shall also be allowed to challenge the existence of a connection between him or her and the third country in accordance with point (a). 3. When implementing a decision solely based on this Article, Member States shall:
(a)  inform the applicant accordingly; and
(b)  provide him or her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance. 4. Where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II ...”
54. Article 39, entitled “The concept of European safe third country”, insofar as relevant, reads as follows:
“1. Member States may provide that no, or no full, examination of the application for international protection and of the safety of the applicant in his or her particular circumstances as described in Chapter II shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2. 2. A third country can only be considered as a safe third country for the purposes of paragraph 1 where:
(a)  it has ratified and observes the provisions of the Geneva Convention without any geographical limitations;
(b)  it has in place an asylum procedure prescribed by law; and
(c)  it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies. 3. The applicant shall be allowed to challenge the application of the concept of European safe third country on the grounds that the third country concerned is not safe in his or her particular circumstances. 4. The Member States concerned shall lay down in national law the modalities for implementing the provisions of paragraph 1 and the consequences of decisions pursuant to those provisions in accordance with the principle of non-refoulement, including providing for exceptions from the application of this Article for humanitarian or political reasons or for reasons of public international law. 5. When implementing a decision solely based on this Article, the Member States concerned shall:
(a)  inform the applicant accordingly; and
(b)  provide him or her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance. 6. Where the safe third country does not readmit the applicant, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II. 7. Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with this Article ...”
55. Article 43, entitled “Border procedures”, reads as follows:
“1. Member States may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the Member State on:
(a)  the admissibility of an application, pursuant to Article 33, made at such locations; and/or
(b)  the substance of an application in a procedure pursuant to Article 31(8). 2. Member States shall ensure that a decision in the framework of the procedures provided for in paragraph 1 is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the Member State in order for his or her application to be processed in accordance with the other provisions of this Directive. 3. In the event of arrivals involving a large number of third-country nationals or stateless persons lodging applications for international protection at the border or in a transit zone, which makes it impossible in practice to apply there the provisions of paragraph 1, those procedures may also be applied where and for as long as these third-country nationals or stateless persons are accommodated normally at locations in proximity to the border or transit zone.”
56. Article 46, entitled “The right to an effective remedy”, insofar as relevant, reads as follows:
“1. Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:
(a)  a decision taken on their application for international protection, including a decision: ... (ii)  considering an application to be inadmissible pursuant to Article 33(2);
(iii)  taken at the border or in the transit zones of a Member State as described in Article 43(1) ... 3. In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance.”
57. In its judgment of 21 December 2011 in the case of N. S. and M.E. (C-411/10 and C-493/10), the ECJ ruled inter alia on the concept of European safe third countries. It found that EU law precludes the application of a conclusive presumption that the Member State, which the Dublin II Regulation indicates as responsible, observes the fundamental rights of the European Union. In particular, the ECJ stated:
“103. ... [T]he mere ratification of conventions by a Member State cannot result in the application of a conclusive presumption that that State observes those conventions. [...]
104. In those circumstances, the presumption [...] that asylum seekers will be treated in a way which complies with fundamental rights [...] must be regarded as rebuttable.”
In paragraph 103 of its judgment, the ECJ explicitly underlined that these findings are applicable to both Member States and third countries. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (“the Reception Conditions Directive”)
58. Article 8, entitled “Detention”, reads as follows:
“1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only:
(a)  in order to determine or verify his or her identity or nationality;
(b)  in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
(c)  in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;
(d)  when he or she is detained subject to a return procedure under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
(e)  when protection of national security or public order so requires;
(f)  in accordance with Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third‑country national or a stateless person. The grounds for detention shall be laid down in national law. 4. Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.”
Agreement between the European Community and the Republic of Serbia on the readmission of persons residing without authorisation
59. This agreement, approved by Council Decision 2007/819/EC of 8 November 2007, provides, in so far as relevant:
“Article 3
Readmission of third-country nationals and stateless persons
1. Serbia shall readmit, upon application by a Member State and without further formalities other than those provided for in this Agreement, all third-country nationals or stateless persons who do not, or who no longer, fulfil the legal conditions in force for entry to, presence in, or residence on, the territory of the Requesting Member State provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that such persons:
 ... (b)  illegally and directly entered the territory of the Member States after having stayed on, or transited through, the territory of Serbia.
... 4. After Serbia has given a positive reply to the readmission application, the Requesting Member State issues the person whose readmission has been accepted the EU standard travel document for expulsion purposes.”
European Commission Recommendation (EU) 2016/2256 of 8 December 2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013
60. The relevant passages of this recommendation read as follows:
“(1)  The transfer of applicants for international protection to Greece under Regulation (EU) No. 604/2013 (hereafter ‘the Dublin Regulation’) has been suspended by Member States since 2011, following two judgments of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU), which identified systemic deficiencies in the Greek asylum system, resulting in a violation of the fundamental rights of applicants for international protection transferred from other Member States to Greece under Regulation (EC) No. 343/2003. ... (8)  In its previous Recommendations, the Commission has noted the improvements that Greece has made to its legislative framework to ensure that the new legal provisions of the recast Asylum Procedures Directive 2013/32/EU and some of the recast Reception Conditions Directive 2013/33/EU have been transposed into the national legislation. A new law (Law 4375/2016) was adopted by the Greek Parliament on 3 April 2016. On 22 June 2016, the Parliament approved an amendment to Law 4375/2016 which, inter alia, modified the composition of the Appeals Committees and the right of asylum seekers to an oral hearing before them. On 31 August 2016, the Greek Parliament also adopted a law regarding school-aged refugee children residing in Greece.
... (33)  The Commission acknowledges the important progress made by Greece, assisted by the Commission, EASO, Member States and international and non-governmental organisations, to improve the functioning of the Greek asylum system since the M.S.S. judgement in 2011. However, Greece is still facing a challenging situation in dealing with a large number of new asylum applicants, notably arising from the implementation of the pre-registration exercise, the continuing irregular arrivals of migrants, albeit at lower levels than before March 2016, and from its responsibilities under the implementation of the EU-Turkey Statement. ... (34)  However, significant progress has been attained by Greece in putting in place the essential institutional and legal structures for a properly functioning asylum system and, there is a good prospect for a fully functioning asylum system being in place in the near future, once all the remaining shortcomings have been remedied, in particular as regards reception conditions and the treatment of vulnerable persons, including unaccompanied minors. It is, therefore, appropriate to recommend that transfers should resume gradually and on the basis of individual assurances, taking account of the capacities for reception and treatment of applications in conformity with relevant EU legislation, and taking account of the currently inadequate treatment of certain categories of persons, in particular vulnerable applicants, including unaccompanied minors. The resumption should, moreover, not be applied retroactively but concern asylum applicants for whom Greece is responsible starting from a specific date in order to avoid that an unsustainable burden is placed on Greece. It should be recommended that this date is set at 15 March 2017.”
COUNCIL OF EUROPE RECOMMENDATIONS AND GUIDELINES
61. In 1997 the Committee of Ministers of the Council of Europe issued Guidelines on the Application of the Safe Third Country Concept[4] to asylum-seekers. The Guidelines provide that, in order to assess whether a country is a safe third country to which an asylum‑seeker can be sent, all the criteria indicated below should be met in each case:
“a)  observance by the third country of international human rights standards relevant to asylum as established in universal and regional instruments including compliance with the prohibition of torture, inhuman or degrading treatment or punishment;
b)  observance by the third country of international principles relating to the protection of refugees as embodied in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, with special regard to the principle of non‑refoulement;
c)  the third country will provide effective protection against refoulement and the possibility to seek and enjoy asylum;
d)  the asylum-seeker has already been granted effective protection in the third country or has had the opportunity, at the border or within the territory of the third country, to make contact with that country’s authorities in order to seek protection there before moving on to the member State where the asylum request is lodged or, that as a result of personal circumstances of the asylum-seeker, including his or her prior relations with the third country, there is clear evidence of the admissibility of the asylum-seeker to the third country.”
62. In addition, the Guidelines indicate that:
“States should adopt modalities to provide for informing the asylum-seeker and, as far as necessary and in accordance with existing data protection legislation or, in absence of such legislation, with the consent of the asylum-seeker, the authorities of the third country that, when a country is considered safe in the above stated manner, applications for asylum are generally not examined in substance.”
63. In 2009 the Committee of Ministers, in its Guidelines on human rights protection in the context of accelerated asylum procedures[5], required that all asylum seekers have an effective opportunity to rebut the presumption of safety of the third country, underlining that the application of this concept did not relieve a State of its obligations under Article 3 of the Convention. It also stated that the criteria mentioned below must be satisfied when applying the safe-third-country concept:
“a.  the third country has ratified and implemented the Geneva Convention and the 1967 Protocol relating to the Status of Refugees or equivalent legal standards and other relevant international treaties in the human rights field;
b.  the principle of non-refoulement is effectively respected;
c.  the asylum seeker concerned has access, in law and in practice, to a full and fair asylum procedure in the third country with a view to determining his/her need for international protection; and
d.  the third country will admit the asylum seeker.”
64. In its Resolution 1471 (2005) on Accelerated Asylum Procedure in Council of Europe Member States, the Council of Europe’s Parliamentary Assembly stated, inter alia:
“... [T]he Parliamentary Assembly invites the governments of the member states of the Council of Europe:
...
8.2.  as regards the concept of safe country of origin, to:
8.2.1.  ensure that clear and demonstrable safeguards are adopted to guarantee an effective access to an asylum determination procedure which can lead to the granting of refugee status or other forms of international protection;
8.2.2.  ensure that the burden of proof does not switch to the applicant to prove that a country is unsafe and that the applicant has an effective opportunity to rebut the presumption of safety;
8.2.3.  take great caution in adopting, in the context of the proposal for a European Council directive, a list of safe countries of origin which may lead to a lowering of standards of protection for asylum seekers from the countries concerned and could undermine the underlying concept of refugee protection, which is based on the individual situation of the asylum seeker rather than a general analysis and judgment on the country ...”
REPORTS OF VISITS AND RESEARCH BY INTERNATIONAL BODIES AND NON‑GOVERNMENTAL ORGANISATIONSAs regards Hungary

65. The Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 21 to 27 October 2015 contains the following passages:
“The CPT notes the efforts made to provide information and legal assistance to foreign nationals in immigration and asylum detention. However, a lack of information on their legal situation, on the future steps in their respective proceedings and the length of their detention was perceived by foreign nationals as a major problem in most of the establishments visited. ... As regards the safeguards to protect foreign nationals against refoulement, the CPT expresses doubts, in view of the relevant legislative framework and its practical operation, whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and whether they involve an individual assessment of the risk of ill-treatment in the case of removal.
... The two transit zones visited by the delegation at Röszke and Tompa were located on Hungarian territory ... Different containers served as offices, waiting rooms, a dining room and sanitary facilities (with toilets, wash basins, showers and hot-water boilers), and approximately ten of them were used for the accommodation of foreign nationals. (In footnote: The sanitary facilities were in a good state and call for no particular comment.)
... All accommodation containers measured some 13 m² and were equipped with two to five beds fitted with clean mattresses, pillows and bedding. They were clean and had good access to natural light and artificial lighting, as well as to electric heating. Further, in both transit zones visited, there was a narrow designated area in front of the containers which was fenced off from the rest of the compound of the transit zone and to which foreign nationals had unrestricted access during the day. As far as the delegation could ascertain, foreign nationals had usually only been held in the transit zones for short periods (up to 13 hours) and hardly ever overnight. That said, if foreign nationals were to be held in a transit zone for longer periods, the maximum capacity of the accommodation containers should be reduced and they should be equipped with some basic furniture.
... On the whole, the delegation gained a generally favourable impression of the health-care facilities and the general health care provided to foreign nationals in all the establishments visited.
... Further, some detained foreign nationals met by the delegation were unaware of their right of access to a lawyer, let alone one appointed ex officio. A few foreign nationals claimed that they had been told by police officers that such a right did not exist in Hungary. Moreover, the majority of those foreign nationals who did have an ex officio lawyer appointed complained that they did not have an opportunity to consult the lawyer before being questioned by the police or before a court hearing and that the lawyer remained totally passive throughout the police questioning or court hearing. In this context, it is also noteworthy that several foreign nationals stated that they were not sure whether they had a lawyer appointed as somebody unknown to them was simply present during the official proceedings without talking to them and without saying anything in their interest.
... However, the majority of foreign nationals interviewed by the delegation claimed that they had not been informed of their rights upon their apprehension by the police (let alone in a language they could understand) and that all the documents they had received since their entry into the country were in Hungarian.
...
... many foreign nationals (including unaccompanied juveniles) complained about the quality of interpretation services and in particular that they were made to sign documents in Hungarian, the contents of which were not translated to them and which they consequently did not understand.
...
... the CPT has serious doubts whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and involve an individual assessment of the risk of ill-treatment in case of removal and thus provide an effective protection against refoulement, bearing also in mind that, according to UNHCR, Serbia cannot be considered a safe country of asylum due to the shortcomings in its asylum system, notably its inability to cope with the increasing numbers of asylum applications ...”
66. The CPT revisited the Röszke transit zone in October 2017. In its report of that visit, the CPT noted that the zone had been enlarged but that asylum-seekers remained free to move only within the sector where their container was located. The premises were maintained in a good state of hygiene, and efforts were being made to allow for activities. However, almost all the containers were used at full capacity, which meant that five persons had to sleep in a 13 m² container. 67. In the 13 October 2017 report (SG/Inf(2017)33) on his fact-finding mission of June 2017, Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees, made, inter alia, the following observations concerning the Rӧszke transit zone. He noted that the area of the zone was surrounded by barbed wire fence and was guarded at all times. It was divided into sections, one of them designated for families and another for single men. The section for single men comprised one row of containers placed adjacent to each other, sharing an approximately 2-metre-wide corridor. Persons who stayed in one section could go to other parts of the zone only to visit the doctor or to attend interviews with the asylum authorities, and were always escorted by guards, even inside the transit zone. Also, at the time of the visit in June 2017 the Hungarian authorities had informed the Special Representative that the average duration of a stay in the zone had been 33 days, but he had spoken with individuals who had mentioned periods of confinement of two and more months. The Special Representative also described the living conditions in the zone and noted that hygiene was good, three meals a day, including one hot meal, were distributed, and there was a doctor’s room where basic medical care was provided. 68. In a report entitled “Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016”, published in May 2016, the UNHCR made the following observations:
“19. Additionally, as noted above in Paragraph 15, the Act on the State Border refers to asylum-seekers being “temporarily accommodated” in the transit zone. The Hungarian authorities claim that such individuals are not “detained” since they are free to leave the transit zone at any time in the direction from which they came. However, as outlined above in Paragraph 16, they are not allowed to enter Hungary. In UNHCR’s view, this severely restricts the freedom of movement and can be qualified as detention. As such, it should be governed inter alia by the safeguards on detention in the EU’s recast Reception Conditions Directive (RCD).
... 71. In any event, UNHCR maintains the position taken in its observations on the Serbian asylum system in August 2012 that asylum-seekers should not be returned to Serbia. While the number of asylum-seekers passing through that country has since greatly increased, leaving its asylum system with even less capacity to respond in accordance with international standards than before, many of UNHCR’s findings and conclusions of August 2012 remain valid. For example, between 1 January and 31 August 2015, the Misdemeanour Court in Kanjiža penalized 3,150 third country nationals readmitted to Serbia from Hungary for illegal stay or illegal border crossing, and sentenced most of them to a monetary fine. Such individuals are denied the right to (re) apply for asylum in Serbia.”
69. A report entitled “Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary” by the European Council for Refugees and Exiles (“ECRE”) prepared on 1 October 2015 contains the following passages:
“In case of expulsion to Serbia [from Hungary], those returned are in practice barred from accessing the asylum procedure and reception conditions in Serbia. Upon return, they are prosecuted for irregular border-crossing, which is a criminal offence punishable by a fine or imprisonment. In practice, most persons are issued a warning and are given no further sentence after conviction. However, the court decision is accompanied by a decision of the Ministry which terminates the asylum seeker’s right to reside on the Serbian territory. Following that decision, asylum seekers are not allowed in one of the refugee camps in the country and, for want of a registered residence, to formally lodge an asylum application in Serbia.
 ...
... [T]ransfers to Hungary are liable to expose applicants to a real risk of chain deportation to Serbia, which may trigger a practice of indirect refoulement sanctioned by human rights law. On that very basis, a number of Dublin transfers to Hungary have been suspended by German and Austrian courts. In view of the (retroactive) automatic applicability of the ‘safe third country’ concept in respect of persons entering through Serbia and the risk of refoulement stemming from their return to Hungary, ECRE calls on Member States to refrain from transferring applicants for international protection to Hungary under the Dublin Regulation.”
70. The ECRE’s “Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary” published in January 2016 contains the following passages:
“An overwhelming amount of recent case law has cited the August and September legislative amendments to the Hungarian Asylum Act when preventing transfers to the country. Moreover, the Hungarian legislative revisions have impacted upon policy changes elsewhere, as evidenced by the Danish Refugee Appeals Board decision in October 2015 to suspend all Dublin transfers to Hungary.
 ... The entry into force in August and September 2015 of legislation creating a legal basis for the construction of a fence on the border between Hungary and Serbia in conjunction with further legislative amendments criminalising irregular entry and damage to the fence has resulted in an extremely hostile environment towards those seeking asylum, violating the right to asylum, the right to effective access to procedures and the non-criminalisation of refugees ... It is the imposition of an admissibility procedure at the transit zones, and in particular the inadmissibility ground relating to the Safe Third Country concept, which has been at the forefront of most jurisprudence. Government Decree 191/2015 designates countries such as Serbia as safe, leading Hungarian authorities to declare all applications of asylum seekers coming through Serbia as inadmissible. Given the location of the transit zones at the Hungarian-Serbian border over 99% of asylum applications, without an in-merit consideration of the protection claims, have been rejected on this basis by the Office of Immigration and Nationality (OIN). Moreover, the clear EU procedural violations that this process gives rise to have been documented by the Hungarian Helsinki Committee as well as ECRE. From the latest statistics this process is still in full swing with the Commissioner for Human Rights submitting that between mid-September and the end of November 2015, 311 out of the 372 inadmissible decisions taken at both the border and in accelerated procedures were found as such on the safe third country concept ground. With a clear lack of an effective remedy against such a decision available and an immediate accompanying entry ban for 1 or 2 years, various actors as well as the judiciary have argued that Hungary is in breach of its non-refoulement obligations.”
71. Amnesty International stated the following in its report of 2015, entitled “Fenced Out, Hungary’s Violations of the Rights of Refugees and Migrants”:
“People who had been stranded at the border crossing Röszke/Horgoš as of 15 September had in theory the option of applying for asylum ... Once or twice an hour, a police officer accompanied by a translator speaking Arabic, Farsi and Urdu opened the door of the container and randomly allowed groups of two to five persons to enter the “transit zone”. People were entering assuming that they would be allowed to proceed to Hungary this way. ... [H]owever, the majority of these were returned straight back to Serbia. The rest was stuck in the border area’s makeshift camp hoping that the border would be opened at some point. Some gave up and left the area immediately, others remained a few days longer before moving on to the Croatia as it became apparent that the border would remain closed indefinitely. A man in a group of 50 Syrians travelling together who left the makeshift camp in Röszke/Horgoš on 16 September 2015 [apparently in the direction of Serbia] told Amnesty International: ‘We did not try [to enter] the “transit zones”. We heard that everyone who tried failed and we feared we could not try anywhere else after [because of getting registered in the Schengen Information System].’”
As regards Serbia
72. Since 2001, Serbia is a party to the 1951 Convention relating to the Status of Refugees and to its 1967 Protocol. 73. A report entitled “Serbia as a Country of Asylum: Observations on the Situation of Asylum-Seekers and Beneficiaries of International Protection in Serbia” prepared in August 2012 by the UNHCR contains the following passages:
“37. The list of safe third countries adopted by the Government of Serbia is, in UNHCR’s view, excessively inclusive and broadly applied ... 38. The Asylum Office applies the “safe third country concept” to all asylum‑seekers who have transited through countries on the list, without ensuring adequate safeguards in the individual case, such as a guarantee of readmission and access to the asylum process in the so-called safe third country.
... 75. The risk of deportation to countries of origin is relatively small for persons transferred to Serbia under readmission agreements. To UNHCR’s knowledge, even though Serbia has readmission agreements with the European Community and a number of bilateral agreements with EU and other States, foreign citizens are transferred to Serbia only from Hungary, Croatia and Bosnia and Herzegovina. Upon reception by the border police in Serbia on their return, third-country nationals are routinely taken to the local courts and sentenced for irregular border crossing with either a short term prison term (10 to 15 days) or a fine (usually equivalent of 50 Euros). They are usually issued an order to leave the territory of Serbia within three days, but this is not enforced. As there is no removal procedure in place, they are generally left to depart on their own, and many resume their journey towards Western Europe. 76. However, UNHCR received reports in November 2011 and again in February 2012 that migrants transferred from Hungary to Serbia were being put in buses and taken directly to the former Yugoslav Republic of Macedonia. ... There have been other reports that the Serbian police have rounded up irregular migrants in Serbia and were similarly sent back to the former Yugoslav Republic of Macedonia.
...
79.  ... Despite some incremental improvements notably with regard to reception standards, Serbia’s asylum system has been unable to cope with the recent increases in the numbers of asylum applicants. This has exposed significant shortcomings in numbers of personnel, expertise, infrastructure, implementation of the legislation and government support. .... The current system is manifestly not capable of processing the increasing numbers of asylum-seekers in a manner consistent with international and EU norms. These shortcomings, viewed in combination with the fact that there has not been a single recognition of refugee status since April 2008, strongly suggest that the asylum system as a whole is not adequately recognizing those in need of international protection. 80. There is a need to set up a fair and efficient asylum procedure that is not only consistent with the existing legislative framework, but is also capable of adequately processing the claims of the increasing number of asylum-seekers in a manner consistent with international standards. ... 81. Until such a system is fully established in Serbia, for the reasons stated above, UNHCR recommends that Serbia not be considered a safe third country of asylum, and that countries therefore refrain from sending asylum-seekers back to Serbia on this basis.”
74. A report entitled “Country Report: Serbia”, up-to-date as of 31 December 2016, prepared by AIDA, Asylum Information Database, published by ECRE stated that the “adoption of the new [Serb] Asylum Act, initially foreseen for 2016, has been postponed”. 75. In his report (SG/Inf(2017)33) of 13 October 2017 of his fact-finding mission of June 2017, Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees, made, inter alia, the following observations concerning Serbia:
“NGOs’ reports ... suggest that in 2016 there were summary and collective expulsions of foreigners from Serbia to “the former Yugoslav Republic of Macedonia” and to Bulgaria. During our mission, the Serbian authorities confirmed that there had been instances of pushbacks of refugees and migrants from Serbia to the above-mentioned neighbouring countries ... It should be underlined that the overwhelming majority of those who have expressed an intention to seek asylum in Serbia do not wish to stay in the country, as their end-goal is to reach other European countries. Consequently, they do not lodge asylum applications in Serbia or abandon the asylum procedures whenever they have done so. In the first six months of 2017, 3 251 persons registered their intention to seek asylum, of whom only 151 applied for asylum. ...”
76. According to the Belgrade Centre for Human Rights, a non‑governmental organisation, during the period 1 April 2008 – 31 December 2014 Serbia’s authorities granted refugee status to six and subsidiary protection to twelve people altogether (BCHR, Right to Asylum in the Republic of Serbia 2014, p. 20). 77. Pursuant to the Serbian Government’s “Decision Determining the List of Safe Countries of Origin and Safe Third Countries”, Official Gazette of the Republic of Serbia, no. 67/2009, which was applicable in 2015, the Former Yugoslav Republic of Macedonia, Greece and Turkey, among others, are considered safe third countries. As regards the Republic of North Macedonia
78. A report entitled “The former Yugoslav Republic of Macedonia As a Country of Asylum” prepared in August 2015 by the UNHCR contains the following passages:
“5. The former Yugoslav Republic of Macedonia has a national asylum law, the Law on Asylum and Temporary Protection. This was substantially amended in 2012, with the amended version having come into force in 2013. UNHCR participated in the drafting process, in an effort to ensure that the legislation is in line with international standards. The law currently incorporates many key provisions of the 1951 Convention. Furthermore, the provisions on subsidiary protection in the law are in conformity with relevant EU standards. The law also provides for certain rights up to the standard of nationals for those who benefit from international protection, as well as free legal aid during all stages of the asylum procedure. Nevertheless, some key provisions are still not in line with international standards. In response to a sharp increase in irregular migration, the Law on Asylum and Temporary Protection was recently further amended to change the previously restrictive regulations for applying for asylum in the former Yugoslav Republic of Macedonia, which exposed asylum‑seekers to a risk of arbitrary detention and push-backs at the border. The new amendments, which were adopted on 18 June 2015, introduce a procedure for registration of the intention to submit an asylum application at the border, protect asylum-seekers from the risk of refoulement and allow them to enter and be in the country legally for a short timeframe of 72 hours, before formally registering their asylum application.
... 46. Despite these positive developments, UNHCR considers that significant weaknesses persist in the asylum system in practice. At the time of writing, the former Yugoslav Republic of Macedonia has not been able to ensure that asylum-seekers have access to a fair and efficient asylum procedure. ... Inadequate asylum procedures result in low recognition rates, even for the minority of asylum-seekers who stay in the former Yugoslav Republic of Macedonia to wait for the outcome of their asylum claim.”
THE LAW
THE RESPONDENT GOVERNMENT’S PRELIMINARY OBJECTIONSObjection concerning the six-month time limit under Article 35 § 1 of the Convention

79. As they did before the Chamber, the respondent Government reiterated their objection that the complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke border transit zone was submitted outside the six‑month time limit laid down in Article 35 § 1 of the Convention. The applicants invited the Grand Chamber to adopt the Chamber’s conclusion that the complaint had been submitted in time and was admissible. 80. Under Article 35 § 4 of the Convention, the Court may dismiss applications which it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible (see, for example, Fábián v. Hungary [GC], no. 78117/13, § 89, 5 September 2017, with the references therein). 81. The Court notes that in the present case the six-month time limit under Article 35 § 1 of the Convention started running in respect of the complaint at issue on 9 October 2015, the day after the applicants left the zone (see paragraph 8 above), and expired on 8 April 2016 (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 44, 29 June 2012). 82. The decisive issue is whether the complaint in question was made out in submissions introduced in time. Before the Chamber the applicants had referred to several passages from their letter of 25 September 2015 and their application form of 13 October 2015, maintaining that they contained the complaint at issue. The Chamber considered that the complaint was formulated in the applicants’ letter of 25 September 2015, and therefore in time (see paragraphs 3 and 92-95 of the Chamber judgment). 83. In particular, the applicants had referred to the following passage from the letter of 25 September 2015 (original in English):
“The domestic provisions of Hungarian law in force do not allow the courts to review the lawfulness of the deprivation of liberty, the conditions under which the applicants/third country nationals are held in the transit zone or to impose a limit on the duration of detention.”
84. The Court notes that this passage appears in a sub-section relating solely to the question whether the stay in the transit zone amounted to deprivation of liberty within the meaning of Article 5 of the Convention. The same letter of 25 September 2015, which runs to 15 pages, contains a separate sub-section about the physical conditions in the transit zone and the alleged violation of Article 3 in that respect but no mention of a complaint about lack of effective remedy can be found there. In these circumstances, it appears that the mention of “conditions under which the applicants ... are held in the transit zone” in the relevant passage cited above meant conditions affecting the question whether there was deprivation of liberty within the meaning of Article 5 and its lawfulness. A reference to Article 13 can only be found in the letter of 25 September 2015 in relation to the remedies against the expulsion order concerning the applicants. 85. Under the Court’s case-law, some indication of the factual basis of the complaint and the nature of the alleged violation of the Convention is required to introduce a complaint and interrupt the running of the six-month period (see Fábián, cited above, § 94; Abuyeva and Others v. Russia, no. 27065/05, § 222, 2 December 2010; and Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001). Under paragraph 7 of the Practice directions on institutions of proceedings, issued by the President of the Court in accordance with Rule 32 of the Rules of Court, as in force at the time the applicants submitted their application form dated 13 October 2015, applicants must set out the complaints and provide information that “should be enough to enable the Court to determine the nature and scope of the application”. Ambiguous phrases or isolated words do not suffice to accept that a particular complaint has been raised. 86. In the present case the Grand Chamber considers that the above cited passage is too ambiguous to be interpreted as raising the complaint at issue. 87. The Grand Chamber has also examined the remainder of the applicants’ submissions of 25 September and 13 October 2015 but is unable to find therein a complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke transit zone. It is significant in this respect that these submissions were made by a lawyer and contained detailed reasoning, organised in separate sub-sections on each complaint made. It is highly unlikely that if the applicants had intended to raise the complaint in question they would have done so without devoting a separate point or sub-section to it. The Court finds, therefore, that this complaint was not introduced by the applicants in September or October 2015. 88. The complaint was mentioned for the first time in the applicants’ observations in reply dated 29 August 2016, well after the expiry of the six‑month time limit. It was formulated again later, in the applicants’ additional submissions of 28 November 2016. 89. It follows that the Government’s preliminary objection must be upheld and that the complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke transit zone, must be declared inadmissible under Article 35 § 4 of the Convention as having been submitted after the expiry of the six‑month time limit under its Article 35 § 1. Objection as to the applicants’ victim status
90. The respondent Government reiterated before the Grand Chamber their objection concerning the applicants’ victim status in relation to their complaint under Article 3 of the Convention about their removal to Serbia. Noting that the applicants had at no stage complained to the Serbian authorities or to the Court about refoulement from or ill-treatment in Serbia, the Government submitted that this fact was conclusive proof that the applicants had not been at risk at the time of the asylum procedure in Hungary, and therefore concluded that they could not have claimed, at any relevant time, to have been victims, within the meaning of Article 34 of the Convention, of the alleged violation of Article 3. 91. The applicants disagreed, as they had done before the Chamber. The Chamber dismissed the Government’s objection and declared the complaint under Article 3 admissible (see paragraphs 103-07 of the Chamber judgment). 92. The Court considers that the issue raised in the Government’s objection – whether or not there was a real risk of ill-treatment in the event of removal to Serbia – potentially concerns the substance of the applicants’ complaint under Article 3 but not the victim-status requirement of Article 34 of the Convention. 93. With regard to that requirement, it is sufficient to observe that the applicants were directly affected by the acts and actions complained of in that the expulsion decision was binding and enforceable and was followed by their removal from Hungary to Serbia. In those circumstances, the applicants could claim that they were the victims of the alleged violation of the Convention in relation to their removal (see the Court’s approach in, for example, Vijayanathan and Pusparajah v. France, 27 August 1992, §§ 43‑47, Series A no. 241-B). 94. Noting, in addition, that the Government have not claimed that there were any other events, such as measures taken by the Hungarian authorities in the applicants’ favour and the acknowledgment of a violation removing their victim status (see Murray v. the Netherlands [GC], no. 10511/10, § 83, 26 April 2016), the Court rejects the Government’s preliminary objection concerning the victim requirement of Article 34 of the Convention. Objection based on the fact that Hungary applied EU law in the present case
95. The respondent Government argued that Hungary had acted in accordance with EU law, which limited the competence of the Court. 96. The Court recalls that even when applying European Union law, the Contracting States remain bound by the obligations they freely entered into on acceding to the Convention. However, when two conditions are met – the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union law – those obligations must be assessed in the light of the presumption of Convention conformity as established in the Court’s case-law (see Avotiņš v. Latvia [GC], no. 17502/07, § 105, 23 May 2016, with the references therein). The State remains fully responsible under the Convention for all acts falling outside its strict international legal obligations (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 157, ECHR 2005-VI). 97. In the present case the relevant EU law (see paragraphs 47-58 above) consists of directives which do not impose on Hungary an obligation to act as they did, including holding the applicants in the transit area, forbidding them to enter Hungary, deciding not to assess the merits of their asylum request, relying on there being a safe third country, and declaring Serbia to be a safe third country. The Hungarian authorities exercised a discretion granted under EU law, and the impugned measures taken by them did not fall within Hungary’s strict international legal obligations. Accordingly, the presumption of equivalent protection by the legal system of the EU does not apply in this case and Hungary is fully responsible under the Convention for the impugned acts (see, for a similar outcome, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 340, ECHR 2011). ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION CONCERNING THE APPLICANTS’ REMOVAL TO SERBIA
98. The applicants alleged that their expulsion to Serbia had exposed them to a real risk of treatment contrary to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Chamber judgment
99. The Chamber observed that between January 2013 and July 2015 Hungary had not considered Serbia as a safe third country, and no convincing explanation or reasons had been adduced by the Government for the reversal of that attitude, especially in the light of the reservations of the UNHCR and highly respected international human rights organisations. The Chamber further noted that the Hungarian authorities had not sought to rule out that if the applicants were removed to Serbia, they might further be expelled to Greece, where the reception conditions for asylum seekers were in breach of Convention standards. Also taking issue with other procedural shortcomings, the Chamber found that the applicants had not enjoyed any effective guarantees to protect them from a real risk of being subjected to inhuman or degrading treatment in breach of Article 3. The parties’ submissionsThe applicants

100. The applicants alleged that their removal to Serbia exposed them to a real risk of treatment contrary to Article 3, because (a) there was a risk that they would not be admitted to Serbia or would not be allowed access to an asylum procedure, (b) there was a risk of chain-refoulement, and (c) there was no prospect of access to adequate reception facilities or to adequate protection taking account of their vulnerability. 101. In particular, the Hungarian authorities knew that the applicants would not be allowed to enter and stay in Serbia, but nevertheless removed them in breach of the procedures under the applicable readmission agreement and without obtaining assurances from the Serbian authorities. On the day of the applicants’ removal the Hungarian authorities left them alone in Hungarian territory, just outside the transit zone, and obliged them to cross into Serbia illegally. There was furthermore a known practice on the part of the Serbian authorities, documented by the Ombudsperson of Serbia in October 2014 and by the UNHCR in 2016, not to allow returnees from Hungary to apply for asylum or have access to reception conditions. Other practices in Serbia noted by the UN bodies and NGOs included penalising readmitted third-country nationals for illegal border crossing despite their asylum-seeker status, and a risk of harassment and abuse. Moreover, the Serbian asylum procedure suffered from serious deficiencies. 102. The applicants, referring to reports by UN bodies and NGOs, submitted that the risk of chain-refoulement and push-backs from Serbia to the Republic of North Macedonia and then to Greece was well‑documented. The Asylum Office of Serbia had confirmed in a letter of October 2016 that the concept of safe third countries was applied without seeking guarantees of access to their territory and asylum procedures. The Serbian list of safe third countries included the Former Yugoslav Republic of Macedonia, Greece and Turkey, and asylum-seekers were routinely, indeed automatically, returned there. 103. The applicants further stated that the Hungarian authorities must have known that persons in their situation would not be given access to reception facilities in Serbia, and that in any event those facilities and conditions were deficient. 104. In the applicants’ view, the relevant Hungarian law and the decision-making process in their case were inadequate, did not provide the requisite safeguards and did not ensure effective remedies in practice. 105. In particular, both the initial and the renewed asylum procedure in the applicants’ case were hastily carried out, and the time-limit for appeals was only seven days, which deprived the applicants of their right to rebut the presumption that Serbia was a safe third country in their case. Furthermore, each applicant was interviewed once in the first procedure, with no opportunity to receive prior information or legal assistance. They were unable to confer with a lawyer before the first hearing took place, and their lawyer was not properly notified of the time of the interview in the second, renewed procedure. The interpretation was not provided in the applicants’ mother tongue and was of a poor quality. The applicants at no stage received adequate procedural information in a language which they understood or information about the evidence that had been used as the basis for applying the safe third country rule to their case. Moreover, both the asylum authority and the Szeged court disregarded the country information and legal arguments submitted to them. In its decision of 5 October 2015, the Szeged court limited its review to the question whether the asylum authority had complied with the previous court ruling. Finally, the applicants were removed from the transit zone without proper notification of the relevant decisions, after their right to file a judicial review request against their potential deportation and expulsion decisions had been denied. 106. In the applicants’ view, their asylum requests were rejected on the sole basis of the automatic application of the Government’s list of safe third countries. The authorities failed to consider widely available reports from reliable sources on the deficiencies of the Serbian asylum system and the realities on the ground and the applicants’ individual circumstances. Although there was a reference to three reports in the asylum authority’s second decision, the conclusions made were at odds with the reports’ findings. Moreover, instead of looking at the risks in the event of a future return to Serbia, the authorities merely noted that the applicants had not provided evidence of past ill‑treatment or denial of effective protection during their transit through Serbia. In view of the medical report on the applicants’ mental health the authorities should have examined the information on inadequate reception conditions, in particular for those returned to Serbia, who were known to be treated differently from new arrivals there. 107. Finally, the applicants submitted that since the authorities’ assessment did not meet Convention standards, the respondent Government could not argue in the present case that there had been no Article 3 risks. They were also estopped from claiming that the applicants had had no arguable claim under Article 3 in relation to their country of origin: this was an unacceptable speculation since the inadmissibility procedure in the applicants’ case had excluded any assessment of the risks in relation to the country of origin. The respondent Government
108. The Government emphasised the importance of the distinction between the right to seek asylum, recognised in international law, and a purported right to be admitted to a preferred country for the purpose of seeking asylum. To avoid feeding the false perception that there was a right to asylum in the country offering the best protection, it was necessary to adopt a careful and realistic interpretation of any alleged risk of refoulement and of the threshold of severity triggering the application of Article 3. 109. In the Government’s view, the UNHCR tried to mitigate the consequences of humanitarian catastrophes by advocating a right to asylum‑shopping and pushing States towards ever higher standards of protection. This was approved by the NGOs and humanitarian organisations, as well as by those seeking cheap labour in Europe. However, in an era of globalisation the perception that everyone had a right to move to the EU to enjoy the benefits of a welfare State spread quickly, and it was becoming impossible to stop fake refugees from entering the EU while observing the standards advocated by the UNHCR. The practical impossibility of removing undocumented migrants who were not entitled to international protection had rendered immigration uncontrollable. This was causing social tension, a feeling of powerlessness and a sense of loss of sovereignty in affected States. Asylum-shopping diverted resources from the search for collective solutions by the international community to the resettlement of refugees or improving their situation in the first safe country. In this respect, asylum-shopping was contrary to Article 17 of the Convention. 110. The Government considered that only a return to the rules of “well‑established international law” could prevent escalation of the European migration crisis. A solution to the global issues of migration could only be found in the collective action of sovereign States if the ability to prevent abuses effectively was restored to them. 111. The Government emphasised that the applicants did not face any danger in their country of origin, Bangladesh. Their accounts of their personal circumstances and their journeys to Western Europe had been contradictory and periodically readapted to suit their claims. Since the applicants had failed to establish a prima facie case of persecution in their country of origin, there was no risk of refoulement from Serbia. 112. The Government stated that the Hungarian legislation adopted in 2015 was based on a possibility provided for under EU law. Hungary regarded Serbia, an EU candidate country, as a safe third country since it had agreed to be bound by all the relevant international treaties and EU requirements and benefited from EU support for reforms and upgraded asylum facilities. In any event, Hungarian law only established a presumption, rebuttable in individual cases. An applicant could only be sent back to a third country if the authorities were satisfied that the return would not lead to direct or indirect refoulement. The 2015 legislative amendment adding Serbia to the list of safe third countries was needed in the face of an unprecedented wave of migration aggravated by ever-increasing abuse of the right to asylum, including fake asylum-seekers and asylum-shopping by genuine asylum-seekers. It served to render the asylum procedures faster and more effective while maintaining the applicable guarantees. 113. The low rate of successful asylum applications in Serbia is not the result of a deficient asylum system but of asylum-seekers leaving Serbia before the conclusion of the procedures. In 2015 (up to 31 July) 66,428 persons had requested asylum in Serbia at the borders and been directed to refugee reception centres, but only 486 of them had reported to those centres. The rest of them had left Serbia before the asylum procedure could be completed, or even started. A similar phenomenon had existed in Hungary until March 2017, when the authorities had begun to initiate the in-merit stage of the asylum procedure in the transit zones at the border: whereas the recognition rate in Hungary had previously been 0.5%, it had soared to 46% since then. 114. Furthermore, there had been no UNHCR reports and no cases before the Court indicating that Serbia had violated the principle of non‑refoulement. The UNHCR report of August 2012, cited in the Chamber judgment, did not state that Serbia had failed to observe the principle of non‑refoulement. On the contrary: paragraph 75 of the report stated that the risk of deportation was relatively small and that asylum-seekers, even readmitted ones, were generally allowed to continue their journey towards Western Europe. The Chamber had ignored that finding. The Chamber had wrongly cited paragraph 76 of the same report, according to which in 2011‑2012 irregular migrants returned to Serbia by the Hungarian authorities had on occasion been returned by the Serbian authorities to the Former Yugoslav Republic of Macedonia: the report did not specify whether those irregular migrants were asylum-seekers or economic migrants or whether they had applied for asylum in Serbia at all. In addition, the UNHCR report had been drawn up in 2012, whereas in 2014 Serbian asylum law had been amended and the asylum system and facilities had been upgraded with the financial support of the EU. Furthermore, the Hungarian asylum authorities had given ample reasoning where they disagreed with some of the findings of the reports relied upon by the applicants, with special regard to the 2012 Report of the UNHCR. 115. The applicants had had an opportunity to rebut the safe third country presumption applied in their case but had only made blanket general objections without invoking an individual risk. This was unsurprising having regard to their contradictory statements on the question whether the first applicant had received any documents from the Serbian authorities, as regards human traffickers mentioned by him for the first time at the last hearing and as regards the length of the second applicant’s stay in Serbia and whether or not he had requested asylum there. Contrary to their allegations, the burden of proof had not been reversed as they had not been required to prove the deficiencies of the asylum situation in Serbia in general. The relevant facts of general knowledge had been taken into account by the Hungarian authorities of their own motion without the applicants having to prove them. The applicants had merely been required to state how they had personally been affected by the alleged deficiencies. 116. The fact that the applicants had not been handed over to the Serbian authorities under a readmission procedure but had simply re-entered Serbia had not prevented them from requesting asylum in Serbia had they so wished: they had been in the same legal position as those asylum-seekers who entered illegally from other States. Moreover, the applicants had made it clear that they had not intended at all to seek asylum in Serbia, which had rendered irrelevant the alleged deficiencies of the Serbian asylum system. 117. Finally, as to the risk of treatment contrary to Article 3 on account of the reception conditions in Serbia, there was nothing to suggest that the applicants would have been left without food, hygiene or shelter. The UNHCR had not observed any serious cases of neglect such as have been noted in Greece. Third-party interveners
118. The Bulgarian Government submitted that in expulsion and removal cases, in order to engage the indirect responsibility of the expelling State, the Court had first to analyse the existence of a real risk of ill‑treatment in the country of origin. If asylum-seekers were returned to a third “intermediate” country, the Court should analyse, in addition, whether the living and detention conditions for asylum-seekers there reached the threshold of severity under Article 3. Finding a violation without a rigorous examination of the above aspects opened the door to an influx of complaints and risked blocking the asylum system. The Bulgarian Government considered that in cases of expulsion to a State party to the Convention, the responsibility of the expelling State should be engaged only in highly exceptional circumstances, such as in M.S.S. v. Belgium and Greece, as far as Greece is concerned. 119. The Polish Government considered, inter alia, that, as regards claims of a risk of ill-treatment in a country of destination, it was, in principle, for the foreigner to adduce the relevant evidence and to submit proof to the national authorities. The national authorities should not be held liable for a breach of their international obligations if they conducted a diligent assessment of the potential risks, with due regard to the principle of non‑refoulement. The Polish Government further submitted that EU Member States were entitled under the Asylum Procedures Directive to enact lists of safe third countries and stressed, in that regard, that the EU legal order secured respect for fundamental rights, including through supervision and control by the EU institutions. 120. The Russian Government stressed that by failing to examine the grounds on which asylum is claimed, the Court was blurring the distinction between migrants and refugees, undermining the protection needed by the latter. 121. The UNHCR provided a summary of the relevant international and EU law regarding the safe third country concept. They submitted, in particular, that that concept could apply where a person could have sought international protection in a “previous” State but had not done so. The removing State had to assess the appropriateness of the removal for each person individually and with full respect for the applicable procedural safeguards, regardless of any general designation of the third country as safe. Such assessment should include questions such as whether the third State would readmit the person, grant him or her access to a fair and efficient procedure for determination of any need of international protection, permit the person to remain and accord him or her treatment in conformity with international law, including the principle of protection from refoulement. 122. In their joint intervention, the Dutch Council for Refugees, the European Council on Refugees and the International Commission of Jurists, offered an overview of the relevant EU and international law on the principle of non-refoulement, the concept of safe third country and deprivation of liberty in the asylum context.

Outcome for Article 3: violation