CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 juillet 2021

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display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   FIRST SECTION CASE OF SHAHZAD v. HUNGARY (Application no. 12625/17)     JUDGMENT   Art 4 P4 • Prohibition of collective expulsion of aliens • Migrant’s push-back to a narrow strip of State territory on external side of a border fence amounting to expulsion • Collective nature of applicant’s removal, after irregular but undisruptive entry, without an individual decision, despite limited access to means of legal entry lacking formal procedure and safeguards • Lack of individual removal decision not a consequence of applicant’s own conduct Art 13 (+ Art 4 P4) • Lack of an effective remedy against removal   STRASBOURG 8 July 2021   FINAL   08/10/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shahzad v. Hungary, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President,   Péter Paczolay,   Krzysztof Wojtyczek,   Alena Poláčková,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   12625/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Pakistani national, Mr   Khurram Shahzad (“the applicant”), on 10 February 2017; the decision to give notice to the Hungarian Government (“the Government”) of the application; the decision to give priority to the application (Rule 41 of the Rules of Court); the observations submitted by the respondent Government and the observations in reply submitted by the applicants; Having deliberated in private on 15 June 2021, Delivers the following judgment, which was adopted on that date: introduction 1.     The case concerns the “apprehension and escort” measure introduced by the Hungarian State Borders Act, which authorised the Hungarian police to remove foreign nationals staying illegally in Hungarian territory to the external side of the Hungarian border fence (on the border with Serbia) without a decision. The applicant, who, together with eleven other migrants was subjected to such a measure in August 2016, complained that he had been part of a collective expulsion, in breach of Article 4 of Protocol No.   4 to the Convention. He also complained that he had not had an effective remedy at his disposal. THE FACTS 2.     The applicant was born in 1986 and lives in Gujrat, Pakistan. He was represented by Ms B. Pohárnok, a lawyer practising in Budapest. 3.     The Government were represented by their Agent at the Ministry of Justice, Mr Z. Tallódi. 4.     The facts of the case, as submitted by the parties, may be summarised as follows.   circumstances prior to THE events complained of 5 .     According to the applicant, he left Pakistan in 2008 or 2009 because he had been repeatedly ill-treated by members of the Pakistani military forces. He subsequently stayed in Greece until 2011, when he tried to enter other European countries but was allegedly pushed back from Serbia and returned to Greece. 6 .     Again travelling through North Macedonia, the applicant arrived in Serbia for a second time in April 2016. He claimed to have attempted to apply for asylum in Krnjača camp and Subotica, but was refused both times without having his asylum claims examined. Subsequently, the applicant attempted to enter Hungary through one of the Hungarian transit zones, and asked the person (an Afghan man) managing the waiting list at the time to put his name on the list. He allegedly refused to do so, telling the applicant that single men could not be added. The applicant stayed in Serbia, in the Subotica area. He was occasionally allowed to stay inside the camp, but for the most part stayed on his own without adequate accommodation and food. 7.     During this period, the applicant tried to enter Hungary irregularly but was apprehended by the Hungarian police and immediately sent back to the external side of the border fence. apprehension of the applicant and his return to Serbia on 12 August 2016 8 .     On the evening of 11 August 2016 the applicant again crossed the Serbian-Hungarian border irregularly, by cutting a hole in the border fence with eleven other Pakistani men. They had walked approximately eight hours before resting in a cornfield between Katymár and Madaras in Bács ‑ Kiskun County. At around 11 a.m. on 12 August 2016 they were intercepted by Hungarian police officers. The group of men were eventually encircled by the officers and asked to hand over their belongings, which were inspected and then returned. The applicant told the officers that he wanted asylum, but one of them replied: “asylum is closed”. Subsequently, two investigating officers arrived, as well as someone who could speak Urdu and Hungarian. The applicant again asked for asylum but was told that he “[could] not ask for asylum”. One of the two investigating officers questioned the group in order to determine whether they were smugglers. The two investigating officers and the person who spoke Urdu then left the scene. The group remained with the other officers, who were later identified (see paragraph 15 below) as police and border control officers from Bácsbokod and two Slovak officers in green uniform conducting border control in the framework of cooperation between the Visegrad Group countries (namely Czechia, Hungary, Poland and Slovakia, also known as the “Visegrad Four” or “V4”). 9 .     The apprehended men were driven about twenty minutes to the border fence. Video footage, which was provided to the applicant’s representative in the course of the criminal investigation (see paragraph 15 below), shows the applicant and the eleven other men standing in front of a green van and the applicant reading a document. They are surrounded by officers in blue as well as dark green and military clothing. After the applicant finishes reading, one of the police officers takes the document and someone is heard saying “understand” and a few seconds later “go”. The applicant and the eleven other men then go through a gate in the fence. According to information provided in the subsequent criminal investigation (see paragraph 15 below), this happened at 3.25 p.m. On the other (external) side of the border fence, several officers in blue uniforms can be seen surrounding the group and giving orders. According to the criminal case file (see paragraph 15 below), these officers were from the Baranya County police (in particular Siklós police station). One of the officers can be heard ordering the men to sit down after crossing the fence. The video recording stops when the last man passes the border gate and sits down as ordered by the police. According to the applicant, the Hungarian police officers subsequently beat up him and the other men in the group and then ordered them to go to Serbia. 10 .     It would appear from the information gathered during the criminal investigation (see paragraph 15 below) that there were at least eleven officers present on the internal and external side of the border fence when the measure in question was being carried out. 11 .     After their removal, the applicant and other men in the group walked about 10 to 15 km to the Serbian village of Bajmok, then took a bus and taxi to the reception centre for migrants in Subotica. From there the applicant was taken by ambulance to a nearby hospital. Later that evening, at 11.30   p.m., he gave a statement to Serbian police at Subotica police station, describing his border crossing and subsequent apprehension, alleged beatings and return to Serbia. 12 .     According to information obtained from the National Police Headquarters (NPH) by the applicant’s representative, there were three cases of “apprehension and escort” in Bács-Kiskun County on 12   August   2016, affecting thirty-seven individuals. Among these were twelve Pakistani nationals who were apprehended at 11.10 a.m. near Katymár and escorted to the external side of the border fence by Hungarian police officers. Images and sound recordings were taken in all cases. 13 .     In official reports and correspondence concerning the applicant’s criminal complaint (see paragraph 15 below), the police officers involved stated that the group, upon exiting the Hungarian border gate, had been directed towards the Hungarian transit zones. However, the statements given during the investigation by the officers who were standing on the external side of the border fence and giving the orders indicate that the group were directed towards Serbian territory. They explained that it had been for security reasons that they had ordered the migrants to sit down and then pointed them away from the fence. According to one of the police officers, migrants were only allowed to leave the area at the same time and in a group. Two officers testified that their superior had ordered them to make sure that all removed migrants left in one direction – into Serbia, preventing them from spreading along the border fence in two directions and potentially attempting to cross the border fence again. Access to the transit zones 14.     During the police procedure in question, the applicant was made to cross the border fence near Katymár. The distance from this location to Tompa transit zone is approximately 40 km. The remaining transit zone, the Röszke transit zone, is 84 km away. According to the applicant, at the time of his removal, Hungary set daily admission limits – fifteen people per transit zone. Furthermore, those wishing to enter had to register on a waiting list managed by one of the migrants (“the list manager”), who was selected by other waiting migrants with the assistance of the Serbian asylum office. The list manager submitted the waiting list to officials at the Hungarian Immigration and Asylum Office (IAO), who returned the updated list daily, with instructions as to who should be allowed to enter the transit zone that day. The list manager communicated this information to the waiting migrants and/or the Serbian asylum office. The selection of those who could enter one of the transit zones was based solely on this waiting list, and there were no other means of having physical access to the transit zones or officials of the IAO. subsequent events 15 .     The applicant’s representative lodged a criminal complaint in relation to the alleged ill-treatment of the applicant. A criminal investigation was opened on 24 October 2016 by the Szeged Regional Investigative Prosecutor’s Office. The evidence gathered confirms that the “apprehension and escort” of the applicant and other men in the group took place on 12   August 2016. In the course of the investigation, fifteen police officers involved in the event gave statements, including the two Slovak officers. On 9   February 2018 a decision to terminate the investigation was upheld by the Department of Terrorism, Money Laundering and Military Affairs of the Prosecutor General’s Office. During the investigation, neither the applicant’s identity nor the existence of his injuries was disputed by the investigative authorities. However, in the authorities’ view, it could not be established beyond all doubt that the injuries had been inflicted by the Hungarian police. 16 .     Following these events, the applicant stayed in Serbia for another three months. He allegedly tried, without success, to have his asylum claim registered in Serbia and to gain access to the Hungarian transit zones. In his submissions to the Court, he corrected his initial statement that he had been subjected to chain refoulement to North Macedonia, explaining that he had in fact gone back to Pakistan voluntarily in late 2016. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law 17 .     The relevant parts of section 5(1) of Act no. LXXXIX of 2007 on State Borders (hereinafter “the State Borders Act”) reads as follows: “(1) In accordance with this [Act], it shall be possible to use, in Hungarian territory, a 60-metre strip [of land] from the external borderline, as defined in Article 2(2) of the Schengen Borders Code, or from the signs demarcating the border, in order to build, establish or operate facilities for maintaining order at the border – including those referred to in section 15/A – and to carry out tasks relating to defence and national security, disaster management, border surveillance, asylum and immigration. (1a) The police may, in Hungarian territory, apprehend foreign nationals staying illegally in Hungarian territory, within an 8-km strip [of land] from the external borderline, as defined in Article 2(2) of the Schengen Borders Code, or from the signs demarcating the border, and escort them through the gate of the nearest facility referred to in [subsection] 1, except where they are suspected of having committed an offence.” 18 .     Section 15/A of the State Borders Act provides as follows: “(1) A transit zone may be created in the area referred to in section 5(1) to serve as a temporary place of stay for persons applying for asylum or subsidiary protection and as the place where asylum and migration control procedures take place and which is equipped with the facilities necessary for that purpose. (2) The applicant for international protection present in the transit zone may enter Hungarian territory if the competent asylum authority takes a decision granting international protection; the conditions for applying the general rules governing the asylum procedure are met, or in the cases specified in section 71/A(4) and (5) of the Asylum Act. (3) In the transit zone, public bodies shall perform their duties and exercise their powers in accordance with the legislative provisions applicable to them.” 19.     Section 71/A of Act no. LXXX of 2007 on Asylum (hereinafter “the Asylum Act”) provides: “(1) If an applicant lodges his or her application before admission to the territory of Hungary or after being intercepted within 8 km of the external borderline as defined by [Article 2(2)] of the Schengen [Borders] Code or of the [signs demarcating] the State border and escorted through the nearest gate in the security border fence facility, in a transit zone defined by the [State Borders Act], the provisions of this chapter [on the procedure for recognition as a refugee or a beneficiary of subsidiary protection] shall apply [accordingly, with the differences specified in this section]. (2) In the border procedure, the applicant shall not have the rights stipulated in section 5(1)(a) and (c) [the right to stay in Hungarian territory and to work under certain conditions]. (3) The asylum authority shall decide on the admissibility of an application as a priority and no later than eight days after it is made. The asylum authority shall promptly communicate the decision adopted in the procedure. (4) If a decision has not been taken within four weeks, the immigration authority shall grant entry in accordance with the provisions of the law. (5) If the application is not inadmissible, the immigration authority shall grant entry in accordance with the provisions of the law. (6) If the applicant has been granted entry to the territory of Hungary, the asylum authority shall conduct the procedure applying the general rules. (7) The rules applicable to the procedure in the transit zone shall not apply to persons requiring special treatment.” 20 .     Following a request for information by the Hungarian Helsinki Committee, the Chief Commissioner of the National Police explained on 20   October 2016 that in the course of applying the measure under section   5 of the State Borders Act, the police informed the persons concerned of the unlawful nature of their entry to Hungarian territory, the purpose of the measure under section 5 and the possibility of applying for asylum in the transit zones, and escorted them through the closest border gate to the other side of the border fence. Furthermore, the police did not register any personal data in the course of the procedure but could take pictures and recordings. European Union law and practice 21.     As regards European Union law and practice, see N.D. and N.T. v.   Spain ([GC], nos. 8675/15 and 8697/15, §§ 41-43, 45-48 and 50-51, 13   February 2020) and the case-law summarised in Khlaifia and Others v.   Italy ([GC], no. 16483/12, §§ 42-45, 15 December 2016). 22.     The relevant provisions of 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 (“the Return Directive”) state as follows: Article 3 - Definitions “For the purpose of this Directive the following definitions shall apply: ... 5. ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State; ...” Article 5 - Non-refoulement, best interests of the child, family life and state of health “When implementing this Directive, Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned and respect the principle of non-refoulement.” Article 6 - Return decision   “1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5. ...” Article 12 - Form “1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.   The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences. ...” Article 13 - Remedies “1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article   12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. ...” 23.     The relevant provisions of 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 (“the Asylum Procedures Directive”) read as follows: Article 3 - Scope “1. This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection. ...” Article 6 - Access to the procedure “1. When a person makes an application for international protection to an authority competent under national law for registering such applications, the registration shall take place no later than three working days after the application is made. If the application for international protection is made to other authorities which are likely to receive such applications, but not competent for the registration under national law, Member States shall ensure that the registration shall take place no later than six working days after the application is made. Member States shall ensure that those other authorities which are likely to receive applications for international protection such as the police, border guards, immigration authorities and personnel of detention facilities have the relevant information and that their personnel receive the necessary level of training which is appropriate to their tasks and responsibilities and instructions to inform applicants as to where and how applications for international protection may be lodged. 2. Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. Where the applicant does not lodge his or her application, Member States may apply Article 28 accordingly. 3. Without prejudice to paragraph 2, Member States may require that applications for international protection be lodged in person and/or at a designated place. 4. Notwithstanding paragraph 3, an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned. 5. Where simultaneous applications for international protection by a large number of third-country nationals or stateless persons make it very difficult in practice to respect the time limit laid down in paragraph 1, Member States may provide for that time limit to be extended to 10 working days.” 24.     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”) applies to all third-country nationals and stateless persons who make an application for international protection on the territory, including at the border, in the territorial waters or in the transit zones of a Member State, as long as they are allowed to remain on the territory as applicants, as well as to family members, if they are covered by such application for international protection according to national law. It governs, among other things, residence and freedom of movement, and the conditions under which the applicants may be detained. 25 .     After repeatedly expressing its concerns as to the compatibility of Hungarian asylum legislation with EU law, the European Commission, on 21   December 2018, brought an action for failure to fulfil obligations before the Court of Justice of the European Union (“CJEU”), seeking a declaration that part of the Hungarian asylum and border control legislation infringed certain provisions of Directives 2008/115/EC , 2013/32/EU and 2013/33/EU. In its action, the Commission criticised Hungary for, in particular, having restricted access to the international protection procedure, established a system of systematic detention of applicants for that protection and forcibly deported, to a strip of land at the border, illegally staying third-country nationals, without observing the guarantees provided for in Directive 2008/115/EC. The CJEU, sitting as the Grand Chamber, assessed Hungary’s compliance with the directives with respect to the period up to 8   February   2018. On 17 December 2020 it upheld most of the Commission’s action (C ‑ 808/18). In addition to the legislation in force at the time of the applicant’s removal in the present case, the CJEU’s judgment also takes account of the legislative changes introduced in 2017, in particular Act no.   XX of 2017 on amending certain laws related to the strengthening of the procedure conducted in the guarded border area. The following findings of the CJEU are of particular relevance to the present case: “ 118     It follows that the Commission has proved, in a sufficiently documented and detailed manner, the existence, at the end of the period laid down in the reasoned opinion, namely 8   February 2018, of a consistent and generalised administrative practice of the Hungarian authorities aimed at limiting access to the transit zones of Röszke and Tompa so systematically and drastically that third-country nationals or stateless persons who, arriving from Serbia, wished to access, in Hungary, the international protection procedure, in practice were confronted with the virtual impossibility of making an application for international protection in Hungary. ... 121     ... it should be noted, first of all, that it is true that that Member State disputes the fact that the administrative instructions sought to limit the daily number of applications for international protection that could be made in each of the transit zones of Röszke and Tompa. 122     However, in addition to the fact that that assertion is formally contradicted by the reports referred to in paragraphs   115 and 116 of the present judgment, Hungary has not explained, to the requisite legal standard, the reason why, in the presumed absence of such instructions, waiting lists   – the existence of which it acknowledges   – had been drawn up in order to establish the order in which persons situated in Serbia, in the immediate vicinity of the transit zones of Röszke and Tompa, and wishing to make an application for international protection in one of those zones, could enter them. 123     In that regard, even if, as Hungary contends, the Hungarian authorities did not participate in the drawing up of those lists or influence the order of access to the transit zones thus established by them, the fact remains that the very existence of the lists has to be seen as the unavoidable consequence of the practice identified in paragraph   118 of the present judgment. 124     Moreover, Hungary’s argument that the gradual dissipation of the long queues at the entrance of those transit zones proves that there is no restriction on entry into those same zones cannot succeed, either. 125     After all, it is undisputed that there is no infrastructure available on the strip of land separating the Serbian-Hungarian border from the entry gate of the transit zones of Röszke and Tompa, meaning that it is extremely difficult to remain there for a long period of time. Furthermore, as the Commission has rightly pointed out, it can be inferred from the reports annexed to its application that the length of the queues at the entrance of each of the transit zones has decreased as from the date on which the waiting lists, mentioned in paragraph   122 of the present judgment, appeared, with only the persons placed in a favourable position on those lists being taken, by the Serbian authorities, to the strip of land separating the Serbian-Hungarian border from the entry gate of the transit zone concerned, on the eve of the date prescribed for those persons to enter that transit zone. 126     It follows that the dissipation of the long queues at the entrance of the transit zones of Röszke and Tompa cannot call into question the finding that the Hungarian authorities decided to limit access to those zones drastically. 127     Lastly, although, as Hungary recalls, it is indeed for Member States to ensure, inter alia , that external borders are crossed legally, in accordance with Regulation 2016/399, compliance with such an obligation cannot, however, justify the Member States’ infringement of Article   6 of Directive 2013/32. 128     It follows from all the foregoing considerations that Hungary has failed to fulfil its obligations under Article   6 of Directive 2013/32, read in conjunction with Article   3 thereof, in providing that applications for international protection from third-country nationals or stateless persons who, arriving from Serbia, wish to access, in its territory, the international protection procedure, may be made only in the transit zones of Röszke and Tompa, while adopting a consistent and generalised administrative practice drastically limiting the number of applicants authorised to enter those transit zones daily. ... 254     In the case at hand, first, it should be noted that Hungary does not dispute that, under [section   5(1b) of the State Borders Act], third-country nationals staying illegally in its territory may be subject to forcible deportation beyond the border fence, without prior compliance with the procedures and safeguards provided for in Article   5, Article   6(1), Article   12(1) and Article   13(1) of Directive 2008/115. In that regard, it must be stated that the safeguards surrounding the intervention of the police services, put forward by Hungary and summarised in paragraph   240 of the present judgment, clearly cannot be regarded as corresponding to the safeguards provided for in Directive 2008/115. 255     Second, contrary to what Hungary contends, the forced deportation of an illegally staying third-country national beyond the border fence erected in its territory must be treated in the same way as a removal from that territory. 256     While it is true that, according to Article   3(5) of Directive 2008/115, removal means the physical transportation out of the Member State in enforcement of an obligation to return, the fact remains that the safeguards surrounding the return and removal procedures provided for in that directive would be deprived of their effectiveness if a Member State could dispense with them, even if it forcibly displaced a third-country national, which is, in practice, equivalent to transporting him or her physically outside its territory. 257     Hungary acknowledges that the space between the border fence   – beyond which illegally staying third-country nationals may be forcibly deported   – and the Serbian-Hungarian border is merely a narrow strip of land devoid of any infrastructure. After having been forcibly deported by the Hungarian police to that narrow strip of land, the third-country national therefore has no choice other than to leave Hungarian territory and go to Serbia in order to be housed and fed. 258     In that regard, it should be noted that, contrary to what Hungary submits, that national does not have the effective possibility of entering, from that strip of land, one of the two transit zones of Röszke and Tompa to make an application for international protection there. 259     As has been noted in paragraph   128 of the present judgment, there was, at least until the end of the period laid down in the reasoned opinion issued by the Commission to Hungary [8 February 2018], a consistent and generalised practice of the Hungarian authorities consisting in drastically reducing access to those transit zones which rendered completely illusory the possibility, for an illegally staying third-country national forcibly deported beyond the border fence, of entering one of those transit areas at short notice. ... 266     It follows from all the foregoing considerations that, in allowing the removal of all third-country nationals staying illegally in its national territory, with the exception of those of them who are suspected of having committed an offence, without observing the procedures and safeguards laid down in Article   5, Article   6(1), Article   12(1) and Article   13(1) of Directive 2008/115, Hungary has failed to fulfil its obligations under those provisions.” 26 .     On 27 January 2021 Frontex, the European Border and Coast Guard Agency, announced that it had suspended all its operational activities on the ground in Hungary until the latter implemented the CJEU’s above judgment. Prior to that, on 14 October 2016, the Fundamental Rights Officer of Frontex also expressed concerns about the potential human rights violations related to the migration policies at the Hungarian border (FRO observations, Situation at the Hungarian-Serbian border, 2016). The situation was described as follows: “The 8-km rule, which allows Hungarian border guards to send migrants stopped within 8 km of the Serbian border directly back to Serbia without any registration or opportunity to apply for international protection, poses serious risks to the right to asylum (Art. 18 [of the EU Charter on Fundamental Rights]), the prohibition of non ‑ refoulment (Art. 19) as Serbia is not a safe country of asylum according to UNHCR; and the prohibition against collective expulsions (Art. 19). The coercive tactics (e.g., beatings, dog bites, pepper spraying) allegedly used to enforce the 8-km rule have led to incidents that jeopardize the right to human dignity (Art. 1); the right to life (Art. 2); the right to the integrity of the person (Art. 3); and the prohibition of inhuman or degrading treatment (Art. 4). Hungary’s entry limit of 30 asylum-seekers per day impedes the right to asylum (Art. 19) of those forced to wait in Serbia, in particular for vulnerable groups for whom no prioritization system exists. Moreover, the dire humanitarian situation on the Serbian side can negatively impact the right to human dignity (Art. 1) and the rights of the child (Art. 24).” COuNCIL OF EUROPE DOCUMENTS 27.     The relevant Council of Europe documents are cited in N.D. and N.T. (cited above, §§ 53, 54 and 59). 28 .     In a report (SG/Inf(2017)33) dated 13 October 2017 of the fact ‑ finding mission in June 2017 by Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on Migration and Refugees, the following observations were made concerning Serbia and the Röszke and Tompa transit zones in Hungary: “Almost every migrant we have met in the asylum and reception centres that we visited in Serbia complained about the long waiting time, in most of the cases lasting for months, before his/her turn on “the list for Hungary” would come up. ... It is my understanding that the waiting list for entry into Hungary is an informal practical tool that governs the migration flow from Serbia into Hungary . The authorities of the two countries do not have formal competence over it, do not play any formal role in its compilation and do not formally communicate with each other on any aspect related to this list. However, several discussions led me to conclude that staff members of the Serbian Commissariat for Refugees and Migration are involved informally in the selection of community leaders as well as in including names in the waiting list. Several people have reported to us that the information about their place on this list is communicated to them by Commissariat staff. There were also several allegations made by migrants and refugees that they had had to pay bribes to be included in or ranked higher on the waiting list. I have also heard that migrants and refugees who had not been able to pay the required fee were ranked further down the list or that their names disappeared completely from it. Despite the lack of any official status, the waiting list for admission into Hungary de   facto determines the amount of time that migrants and refugees actually spend in asylum and reception centres in Serbia, which in most of the cases is several months ... ...   Also, the level of informality and the lack of transparency with which this waiting list is compiled and handled create a lot of suspicion that corruption is involved. Many migrants and refugees prefer dealing with smugglers to waiting for long periods of time until their turn on the list comes up. Hence, the waiting list should be seen as one of the many aspects contributing to a favourable environment for smuggling migrants and refugees in both Serbia and Hungary. ... Pushbacks of migrants and refugees by competent authorities without acknowledging and assessing their asylum claims raise concerns regarding the respect of the principle of non-refoulement, which requires that states refrain from removing asylum-seekers without an individual assessment of their cases. ... Due to the quotas restricting admission into Röszke and Tompa, many migrants and refugees try to enter Hungary illegally ... However, during a state of crisis caused by mass migration declared by the government, asylum applications can only be submitted in the transit zones. Migrants and refugees who have crossed into Hungary illegally and who are apprehended are rarely taken to these zones. During our visit in Serbia, notably in the reception centres of Sombor and Obrenovac, we met several persons, including unaccompanied children, who alleged that they had been apprehended by Hungarian police within Hungarian territory and, thereafter, returned to Serbia without passing through the transit zones. They alleged that violence had been used against them by the police; and they had been beaten or attacked with dogs. ... While it is true that, generally speaking, the objective of migrants and refugees who entered Hungary illegally is only to transit through Hungary towards their countries of destination, it is clear that, in practice, they do not have a real opportunity to express their intention to seek asylum in Hungarian territory and to access the asylum procedure.” OTHER INTERNATIONAL MATERIALS 29.     The relevant international instruments and reports are summarised in N.D. and N.T. (cited above, §§ 62-67). 30 .     In May 2016 the Office of the United Nations High Commissioner for Refugees (UNHCR) issued its observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016 in Hungary concerning refugees and asylum-seekers. It noted, inter alia , the following: “22. After the transit zones became operational on 15 September 2015, the Ministry   of Interior informed UNHCR that a maximum of 10 asylum-seekers would be permitted to enter each transit zone at any one time, and a maximum of 100 asylum ‑ seekers a day per zone would be processed by the OIN between 06:00 and 22:00. On 21 February 2016, the processing capacity was reduced to 50 people a day and, on 22   March, following the introduction of level 2 security level in the whole country, it was further reduced to 30 people a day. However, such ceilings may be incompatible with Hungary’s obligations under EU law. The EU Asylum Procedures Directive (recast) makes express provision to ensure that basic principles and guarantees are respected in the event large numbers of asylum-seekers arrive and need to be dealt with under border procedures. 23.     In practice, OIN did not register 100 asylum applications per day. Between 15   and 19 September 2015, several thousand individuals arrived at Röszke wanting to enter Hungary and they were made to camp out in front of the entry door to the transit zone without water, food or shelter. Many left for Croatia after waiting for two days or more and only 352 individuals were allowed to enter and submit asylum applications. After 22 September 2015, UNHCR observed that single males and persons who were not visibly in need of special treatment were actively discouraged from approaching the transit zones. Official – government contracted – interpreters, told them that their asylum applications would be denied . Vulnerable people are not systematically prioritized and the lack of a clear admission system leads to frustration among the asylum-seekers. Families with small children have to wait outside the transit zone with no shelter, water or food. They are not given information on the procedures and interpretation is not always available.” 31 .     In August 2016 UNHCR, in Europe’s Refugee Emergency Response Update #30, reported the following concerning the pre-transit zone areas at Röszke and Tompa: “Serbian authorities, UNHCR, partners and refugee community leaders continued to encourage asylum-seekers to move to governmental centres instead of camping in open spaces near the Hungarian border. Consequently, the number of asylum-seekers staying outdoors on the Serbian side in front of the Hungarian transit zones at Horgos and Kelebija border-crossings decreased to 280 at the end of the month, compared to its peak of over 1,000 in mid-July. Hungarian authorities continued to admit around 30 asylum-seekers daily through the transit zones in Horgoš and Kelebija [these are the transit zones of Röszke and Tompa]. At the same time, in August, UNHCR and partners encountered over 550 individuals claiming they were pushed back from Hungary without being allowed access to asylum procedures and protection in Hungary. Among those, several cases made serious allegations of use of force during the [pushbacks]. UNHCR remains deeply concerned about the restrictive law, increased reports of violence, and a deterioration of the situation at border with Serbia. Nearly 800 asylum-seekers and migrants entered Hungary in August out of which the police apprehended 345 people inside the country for crossing the border irregularly, while 418 people entered through the transit zones on the border with Serbia. Since the new border regulations came into force on 5 July 2016, allowing the police to return to the other side of the border fence people intercepted within 8 km from the border, the police reported that 8,201 people have been prevented from accessing the Hungarian territory. A total of 4,700 people were blocked entry upon attempting to cross the border irregularly and 3,501 were intercepted inside Hungary and escorted back to the other side of the border fence. ... By the end of August, around 260 asylum-seekers and migrants (170 in Röszke and 80 in Tompa) were in the waiting areas without adequate shelter, awaiting admission into the transit zones while the daily admission rate remained 15 people per day in each transit zone. The average waiting time for families and UACs ranged between 30-70 days in Röszke, 35-50 days in Tompa and for single men up to 90 days. Therefore, many single men are resorting to smugglers to cross the border irregularly.” THE LAW PRELIMINARY issues 32 .     The Government argued that the applicant had failed to prove that he had ever personally suffered the measure complained of. In particular, he had not applied for asylum in Hungary and had therefore not shown even a likelihood that he had been a victim of a violation within the meaning of Article 34 of the Convention. There was also no indication that had been sent back to Pakistan as a result of chain refoulement . 33.     They further argued that the medical certificate issued in Serbian and submitted by the applicant did not contain his name. 34.     The applicant argued that the evidence obtained from the authorities and in the criminal investigation file (see paragraph 15 above) supported beyond reasonable doubt his allegation that he, together with eleven other men, had been escorted by Hungarian officers from Hungary through the border fence towards Serbia on 12 August 2016 on the basis of section 5 of the State Borders Act. He further submitted that his name on the medical report had been misspelled. 35.     According to the Court’s case-law, the distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among other authorities, El Masri v. the former Yugoslav Republic of Macedonia [GC], no.   39630/09, § 151). In the context of the expulsion of migrants, the Court has previously stated that where the absence of identification and personalised treatment by the authorities of the respondent State is at the very core of an applicant’s complain