Council of Europe will baulk Hungary to push back asylum seekers to Serbia?

Following a review of the execution of a group of judgments from the European Court of Human Rights related to violations of the European Convention on Human Rights (ECHR) related to asylum seeking, the Council of Europe’s Committee of Ministers has called on the Hungarian authorities to submit an action plan by June next year.

The group of cases concerns a violation of Article 3 of the ECHR to assess risks of ill-treatment before removing asylum-seeking applicants to Serbia by relying on a general legal presumption of “safe third country” (Ilias and Ahmed; W.A. and others). It also concerns violations of the prohibition of collective expulsion of aliens under Article 4 of Protocol No. 4 to the Convention following the application of the “apprehension and escort” measure introduced by the State Borders Act, authorising the police to remove the asylum-seeking applicants staying illegally in Hungarian territory to the external side of the border fence (on the border with Serbia) without a decision. It furthermore concerns the lack of an effective remedy under Article 13 in respect of the applicants’ removal (Shahzad and H.K.).

The Committee of Ministers reiterates “grave concern” that despite the authorities’ repeated indications that asylum system reform is underway, no information on concrete measures has been communicated and collective expulsions not only continue, but their numbers are reportedly increasing at a “concerning rate.” According to the Hungarian National Police, 158,565 pushbacks to Serbia were reported in 2022. Up to mid-September 2023, the number already stood at approximately 66,000.

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In its Interim Resolution for Hungary – a form of decision adopted by the Committee of Ministers aimed at overcoming more complex situations requiring special attention – the Committee furthermore “strongly urges” the Hungarian authorities to intensify their efforts to reform the asylum system in order to afford effective access to means of legal entry, in particular border procedures in line with Hungary’s international obligations, and invites them to establish a timeline for the legislative process, to present a draft legislative proposal and to keep the Committee informed of all relevant developments in the legislative process.

The Committee of Ministers also “exhorts” the authorities to terminate, without further delay, the practice of removing asylum-seekers to Serbia pursuant to section 5 of the State Borders Act without their identification or examination of their individual situation.

It reiterates its call on the authorities to introduce an effective remedy providing a person alleging that their expulsion procedure is “collective” in nature with an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of their complaints conducted by an independent and impartial domestic forum, in line with the Court’s case-law.

Finally, should Hungary achieve no tangible progress by September 2024, the Committee of Ministers envisages taking “new action” to ensure it abides by its obligations deriving from the Court’s judgments in this group of cases.