Here’s a breakdown of the European Court of Human Rights’ (ECtHR) decision in the case of H.Q. and Others v. Hungary:
1. **Essence of the Decision:**
The ECtHR ruled that Hungary violated the rights of three asylum seekers (from Afghanistan and Syria) due to their removal to Serbia. The Court found that Hungary conducted collective expulsions, failed to properly assess the asylum seekers’ risks in Serbia, and did not provide effective remedies to challenge their removal. The “embassy procedure,” requiring asylum seekers to apply for entry at Hungarian embassies in third countries, was deemed insufficient for providing genuine access to international protection. The Court emphasized Hungary’s obligation to prevent further collective expulsions and ensure access to a fair asylum process.
2. **Structure and Main Provisions:**
* **Introduction and Facts:** The judgment details the applicants’ individual circumstances, including their entry into Hungary, attempts to seek asylum, and the process of their removal to Serbia. It outlines the Hungarian legal framework, including the Asylum Act, the State Border Act, and the “embassy procedure” established by the 2020 Transitional Act.
* **Relevant Legal Framework and Practice:** This section summarizes domestic laws and practices relevant to the case, including provisions on asylum, border control, and administrative justice. It also references relevant international law, EU law, and reports from organizations like the UNHCR and the Council of Europe.
* **Joinder of Applications and Preliminary Issues:** The Court decided to examine the applications jointly due to their similar subject matter. It also addressed preliminary arguments from the Hungarian government regarding the applicants’ alleged lack of interest in pursuing the case and the establishment of facts related to one of the applicants.
* **Article 4 of Protocol No. 4 (Collective Expulsion):** The Court found a violation of this article, determining that the applicants’ removal to Serbia constituted a collective expulsion because their individual circumstances were not reasonably and objectively examined.
* **Article 3 (Risk of Ill-Treatment):** The Court found a violation of the procedural limb of Article 3, as the Hungarian authorities failed to adequately assess the risk that the applicants would face ill-treatment or lack of access to an adequate asylum procedure in Serbia.
* **Article 13 (Effective Remedy):** The Court found a violation of Article 13 in conjunction with Article 4 of Protocol No. 4, as the applicants did not have an effective remedy to challenge their removal and ensure a thorough examination of their complaints.
* **Article 46 (Binding Force and Execution of Judgments):** The Court emphasized Hungary’s obligation to take measures to prevent further collective expulsions and ensure genuine access to international protection.
* **Article 41 (Just Satisfaction):** The Court awarded the applicants compensation for non-pecuniary damage and costs and expenses.
3. **Main Provisions for Use:**
* **Prohibition of Collective Expulsion:** The decision reinforces the principle that expulsions must be based on a reasonable and objective examination of each individual’s circumstances.
* **Duty to Assess Risks in the Receiving Country:** States must thoroughly examine the risk of asylum seekers being denied access to an adequate asylum procedure in the country to which they are being removed.
* **Right to an Effective Remedy:** Individuals facing expulsion must have access to a remedy that allows them to challenge the decision and have their complaints thoroughly examined.
* **Ineffectiveness of the “Embassy Procedure”:** The Court’s criticism of the “embassy procedure” highlights the importance of providing genuine and effective access to asylum procedures within the country’s territory and at its borders.
* **General Measures:** The decision emphasizes the need for Hungary to take immediate measures to prevent further collective expulsions and ensure access to international protection.
**** This decision has implications for Ukraine and Ukrainians as the Hungarian embassy in Kyiv was one of the embassies where a declaration of intent could be made.
