CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 21 novembre 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sE0BAE19D { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; page-break-inside:avoid } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sDFE6704B { width:244.81pt; text-indent:0pt; display:inline-block } .s5D5DC104 { width:5.51pt; text-indent:0pt; display:inline-block } .s82E3A32B { width:93.13pt; text-indent:0pt; display:inline-block } .s6AF1CCA7 { width:206.46pt; text-indent:0pt; display:inline-block } .sE0BCE90E { width:232.51pt; text-indent:0pt; display:inline-block } .s6B505E72 { margin:0pt; padding-left:0pt } .s684237A1 { margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s37839E0D { margin-left:10.75pt; margin-bottom:12pt; text-indent:0pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sAA38361A { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB965C79D { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:14.75pt; text-align:justify; font-size:10pt } .s1E2B8B97 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sC03030BA { margin-left:10.75pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .sE4EB4F8C { margin-top:14pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s6FC64B9D { width:2.78pt; font:7pt 'Times New Roman'; display:inline-block } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s7DEBC00A { margin-top:14pt; margin-left:17pt; margin-bottom:3pt; text-align:justify; font-family:Arial } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2374DD82 { margin-top:36pt; margin-bottom:0pt; text-indent:14.2pt } .s9343D1AB { width:134.56pt; text-indent:0pt; display:inline-block } .s36A88143 { width:163.11pt; text-indent:0pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s74DD8131 { margin-top:0pt; margin-left:7.1pt; margin-bottom:0pt; text-indent:-7.1pt; text-align:justify; font-size:10pt } .s391E78BA { font-family:Arial; background-color:#ffffff } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sADE7E6A5 { margin-top:0pt; margin-left:35.4pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s539148BA { font-family:Arial; font-style:italic; color:#000000 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     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 EXAMINATION The 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 LAW Domestic 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 LAW 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 (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 prote