CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 février 2023

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HUNGARY (Application no. 59435/17)   JUDGMENT   Art 2 + Art 3 (procedural) • Ineffective investigation into the death of the applicant’s brother, a Syrian migrant, who drowned during a border control operation at a river on the Hungarian-Serbian border • No assessment of responsibility for failure to protect right to life • Manner in which domestic justice system operated in response to incident failed to secure the full accountability of State officials or authorities • Ineffective investigation into applicant’s arguable allegations of police ill-treatment Art 2 (substantive) • Life • Positive obligations • Failure to discharge positive obligations by taking operational measures to protect life in circumstances in which it was manifestly at risk Art 3 (substantive) • Court unable to conclude beyond reasonable doubt, largely due to investigation shortcomings, that physical force was used against the applicant   STRASBOURG 2 February 2023   FINAL   02/05/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Alhowais v. Hungary, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Péter Paczolay,   Alena Poláčková,   Lətif Hüseynov,   Ivana Jelić,   Erik Wennerström,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   59435/17) 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 Syrian national, Mr   Abdullah Mohamed Alhowais (“the applicant”), on 4 August 2017; the decision to give notice to the Hungarian Government (“the Government”) of the complaints concerning the alleged violation of Articles   2 and 3 of the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 8 November 2022 and 10 January 2023, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The case concerns the death of F., a Syrian migrant and the applicant’s brother, which occurred during a border control operation at a river on the Hungarian-Serbian border; the applicant’s alleged ill-treatment by the Hungarian police; and the respondent State’s alleged failure to carry out an effective investigation into the incident. THE FACTS 2.     The applicant is a Syrian national who was born in 1996. According to information dating from February 2021, he lives in Leipzig, Germany. He was represented by Mr G. Győző, a lawyer practising in Budapest. 3.     The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 1 June 2016 the applicant, his brother, F., and their cousin, K.A., who were all Syrian nationals; M.M., another Syrian national; and an Iraqi family, K.K. and A.S. with three children, attempted to cross the Tisza River by boat, at the border between Serbia and Hungary. The boat was piloted by a smuggler whose identity could not be established. 6.     The boat could not get to the shore because of dense reeds along it, and the passengers disembarked among the reeds. The boat was pulled back to the Serbian shore by the smugglers. 7.     Police officers stationed in a hunting observation tower some hundred metres from the shore noticed the boat departing from Serbia. According to the applicant, the police officers on the Hungarian shore shouted at the passengers to “Go back to Serbia’”. 8.     The applicant, F., and K.A. decided to turn back, but as the boat had been pulled back by the smugglers to the opposite side of the river, they attempted to swim to the Serbian shore. The applicant and K.A. managed to reach the Serbian shore, but F. disappeared in the water. The Hungarian officers launched a rescue boat to search for him. The water rescue unit found a floating jacket and an empty backpack in the water, but the approximately half hour-long search operation could not find the applicant’s brother. 9.     The Iraqi family managed to get out of the water but could not climb ashore because of a barbed wire barrier deployed along the shore. A rescue boat with a civilian and a police lifeguard found them and took them ashore. The mother and the three children were hospitalised for being at risk of hypothermia. 10.     The body of the applicant’s brother was discovered two days later, on 3   June 2016, by a police officer in a backwater of the Tisza River. 11.     On 1 June 2016 the Serbian authorities questioned the applicant in relation to an investigation into human trafficking. An official note of the questioning was given to the Hungarian authorities. The applicant gave an explanation of the arrival in Serbia and the border crossing at the river, and a detailed description of the smugglers. As regards the incident at the Hungarian shore, the applicant specified that the boat passengers had disembarked in the reeds some metres away from the Hungarian riverbank where the water reached hip height. They had seen that there were officers on the riverbank, and they had also noticed a police motorboat on the river. The officers had thrown stones at them shouting at them to go back to where they had come from. The boat passengers had wanted to pass the children to the officers, who had reacted by shooting tear gas in their direction. The applicant’s brother had started coughing from the tear gas and had said that they would need to swim back to Serbia. The applicant stated that he had noticed his brother having difficulties crossing and had called to the smugglers on the Serbian side of the river for help. The smugglers had fled, and a fisherman on the Serbian shore had shouted to the Hungarian officers for help. 12 .     On the same day, Serbian border control officers met the Hungarian police officers of the Border Control Services of the Csongrád County Police Headquarters. The Serbian authorities provided a summary of the applicant’s statements. The Hungarian authorities provided the information that the Iraqi family had been found by a rescue boat and that the rescue operation for F. was ongoing. They also stated that the Tisza River was a dangerous crossing point and that there had already previously been an incident which had led to migrants being injured while trying to cross the river. They suggested that the border control operations should be enhanced so as not to let anybody enter the river. 13 .     On 1 June 2016 K.K. was questioned by the Southern Great Plain Regional Directorate of the Immigration and Asylum Office. He stated that when the passengers had got out of the boat, the police officers had shouted at them to go back to Serbia. The family could not climb ashore because of the barbed wire; they had waited for approximately half an hour for the police to go away and had then started to swim back into the river, where the rescue boat had finally found them. 14 .     On 2 June 2016 K.K. was questioned again by the Immigration and Asylum Office. He stated that the police officers had told them through a loudspeaker in Arabic to go back to their home countries. He had shouted at the police officers to let them enter Hungary as there were children among them. When he had started to move towards the officers, holding his two ‑ year-old son in his hands, the police had sprayed tear gas at his feet. He had also seen a police officer twice throwing rocks in the direction of the other passengers. 15 .     A.S. was questioned by the Immigration and Asylum Office on the same day. She stated with regard to their arrival in Hungary that the passengers had left Serbia in a rubber dinghy and had disembarked in the reeds close to the Hungarian riverbank, after a five-to-ten-minute boat ride. They had waited for about half an hour for the officers to leave and she had heard the guards shouting, “Go back to Serbia”. They could not get onto the shore because of the barbed wire, and her family had started to swim back in the river when they had been rescued by boat. The other five boat passengers had been left in the water. 16.     On 1 June 2016 M.M. was questioned by the Immigration and Asylum Office. He stated that after leaving the boat, they had hidden in the reeds for about twenty minutes. The Iraqi family had decided to give themselves up and had approached the police officers, and three of the other passengers had started to swim back in the direction of the place where the boat had left them. He maintained that he had stayed in the water for about an hour and had gone ashore when the police had left. He had later been captured. 17.     The report of K.Cs., the police rescue officer on duty on 1 June 2016, stated that at around 6.35 a.m. the rescue boat had taken aboard a family of five Iraqi nationals. The family had been freezing and the body of one of the children had been numb and the child’s face had turned blue. The father had been taken into immigration custody and the mother and the three children had been hospitalised. 18.     On 1 June, Z.F., the sector commander on duty; K.Cs. and A.L., who had been on duty in the motorboat; and D.B., the police officer who had been stationed in the hunting observation tower, submitted their reports. 19.     According to the report of Z.F., the officer stationed in the hunting observation tower some hundred metres from the shore had noticed the boat departing from Serbia at around 5 a.m. The officers on duty had noticed five persons (including three children) approaching the barbed wire from the water, and they had tried to establish contact in English, and had warned the migrants not to approach the barbed wire barrier but to go back to the water where the rescue boat would pick them up. The next day – 2 June 2016 – the commander, Z.F., supplemented his report, stating that the officers on duty had not used any force and had not thrown anything in the water. 20.     D.B. submitted that he had seen three migrants swimming in the direction of Serbia at around 5 a.m. He had seen that the last one of them had sunk a couple of times and, while he could observe the first two persons emerging onto the riverbank in Serbia, he had not seen the third person appearing from the water. 21.     On 2 June 2016 ten police officers who were on duty on the day of the incident submitted reports concerning the events, stating that they had not used force, had not thrown anything at the migrants, and had not engaged in any illegal conduct. Z.F. also added to his previous report a statement that nobody under his command had used force or thrown anything at any of the migrants during the incident. 22 .     On 2 June 2016 M.M. was questioned again by the Immigration and Asylum Office. He specified that the police officers had told them through a loudspeaker in Arabic and English to go back to Serbia. He had seen that two to three stones had been thrown in the water from the shore. 23.     On 2 June 2016 the Szeged Border Control Department prepared a report for the Csongrád County Police Headquarters stating that, according to the evidence and information available and because of the contradictions between the statements of the police officers and the asylum seekers, it could not be established whether the police officers had infringed the rights of the migrants. The report suggested opening investigations into “misconduct during service”. The report relied on the statements of M.M., K.K. and A.S. It also mentioned that the five police officers questioned in the case had unanimously stated that they had not thrown stones at the boat passengers, nor had they used any other force. 24 .     On 3 June 2016 the chief police officer of the Csongrád County Police Headquarters lodged a criminal complaint against unknown police officers alleging   ill-treatment committed in the course of official proceedings ( bántalmazás hivatalos eljárásban ) under Article 171 § 2 of Act no. XIX of 1998 on the Criminal Code. 25 .     On 6 June 2016 an autopsy was carried out on F. According to the autopsy report, there were no external injuries on F.’s body, no pre-existing illness could be detected, and the exact hour of death could not be established, but must have occurred forty-eight to seventy-two hours before the body was found. 26.     On 6 June 2016 the Iraqi family left the reception centre for an unknown place, and they could not be further questioned in the proceedings. 27.     On 7 June 2016 the applicant was questioned at the Szeged police station. He explained that he, together with his brother and cousin, had gone back to the water out of fear of what was happening on the shore, without the Iraqi family or M.M., who could not swim. He stated that his brother was a good swimmer. 28.     On 8 June 2016 the applicant was questioned again in the presence of an interpreter. He stated that a smuggler, presumably of Iraqi origin, had offered to take him, his cousin and his brother to Hungary in a rubber dinghy for 100 euros. They had arrived at the Tisza River a day before the accident, where they had been joined by the Iraqi family. They had set off by boat just before dawn and they had not been able to see the Hungarian shore of the river. Four smugglers had remained on the Serbian shore of the river and one had accompanied them in the boat. They had disembarked on the Hungarian side where the water had reached up until their chests, because they could not reach the shore by boat because of the reeds. From about three metres from the shore, they had noticed four officers, some in military uniforms and others in police uniforms, who had told them through loudspeakers to go home and not to enter Hungary. In the applicant’s assessment, the police officers could not have seen them because of the reeds. The passengers had stopped at about five metres from the officers, and had stayed in hiding, with the exception of the Iraqi family, where the father had advanced with one of the children towards the officers and had asked to be let in. The officers had fired tear gas at K.K. from about one and a half metres away. In the applicant’s recollection, the police officers had thrown stones in their direction, and they had had to protect themselves with their bags. 29.     Having seen these events, A.S. had followed K.K. with the other two children, shouting to the officers to let them in. The remaining passengers had followed A.S. and when they were about three metres away from her, the police officers had fired tear gas at them as well. The applicant’s brother had started coughing. They had attempted three times to climb ashore but each time they had been stopped by tear gas. By this point the boat that had smuggled them had gone. The police officers had thrown rocks at them, shouting at them to go back, and the police dogs were let loose. The applicant’s brother had been hit by a rock on his shoulder blade. The applicant, his brother and his cousin had decided to swim back, all of them being good swimmers. The Iraqi family had decided to give themselves up and M.M. had stayed in hiding, being afraid of the water. By this point the sun had already come up. 30.     The applicant stated that he had been the first person to swim back to Serbia and he had heard his brother shouting at the smugglers to send a boat. When he had arrived at the Serbian shore, the smugglers had run away, and he could not find a boat. He could not see his brother anymore and had asked a nearby fisherman for help. He had also shouted at the Hungarian officers to look for his brother, then he had asked the Serbian officers to help. 31 .     On 15 June 2016 M.M. was questioned at the Szeged police station. He stated that the rubber dinghy smuggling nine people had left Serbia at around 5 a.m. After they had disembarked close to the Hungarian shore, the boat had been pulled back by the smugglers. They had been hiding in the reeds in the water for about one and a half hours when the Iraqi family had decided to go ashore. F. had helped the family to get out of the water and when he had rejoined the remaining passengers, he had said that the officer had sprayed something at him, and he had been coughing. M.M. could not see the officers but had heard them shouting through a loudspeaker in Arabic for them to go back to their home country. He had seen that some objects had been thrown in their direction some four to five times, but none of the passengers had been hit. He said that the applicant, F. and K.A. had decided to swim back to Serbia, but he had not joined them as he could not swim. From where he was hiding, he could not see what had happened to the three of them. He had stayed in the reeds for another one and a half hours and had then gone ashore and had later been captured in a nearby village. 32.     On 10 July 2016 the applicant’s lawyer requested that the Szeged Prosecutor’s Office question K.A. as a witness. He was informed that his request could not be granted, as K.A. had left the reception centre for migrants on 24 June 2016. 33.     On 12 July 2016 some of the officers who had been on duty on 1   June   2016 at the border crossing were questioned as witnesses. Police officer G.O. stated that he could not remember exact details of the events in question or even when they had taken place. He had only arrived at the scene when the Iraqi family had approached the barbed wire and had left before the family was taken on board. During this time, he had not seen anybody using force, throwing things, or letting dogs loose. He remembered that some soldiers and six police officers had been present with dogs. 34.     In his witness testimony, Z.F., who was the sector commander of the police forces, stated that he had been patrolling with officers C.J. and Á.Zs, when he was informed at around 5 a.m. about an unknown number of migrants approaching Hungary through the Tisza River. Besides the three of them, police officers G.O. and M.Sz. had been present, in addition to four to five soldiers. He had instructed two officers patrolling with dogs to come to the border crossing point and the water rescue officers to report on what they had observed. He stated that the Iraqi family had been very nervous, which had only become worse when they had been called to in English not to cross the barbed wire. At this point he had instructed the motorboat to rescue the family on the water. In his recollection, it had taken the motorboat about half an hour to pick the family up. He had been informed by D.B., the officer stationed in the hunting tower, that three migrants had tried to swim back to Serbia and that D.B. had lost sight of one of them. He stated that following D.B.’s warning that one of the persons swimming back to Serbia had disappeared, he had immediately reported the incident to the water rescue officers, and that he had not received any information from them about whether they had seen anybody in the water. He denied the use of a loudspeaker, any recourse to force, the use of tear gas, the throwing of stones and the deployment of dogs. 35 .     According to the witness testimony of police officer Á.Zs., he had been stationed at a border marker with two other officers, Z.F. and C.J., when they had been informed of people hiding in the reeds. When they had arrived at the scene, two unidentified officers had been present with dogs, but they had left shortly afterwards. Subsequently, two other unidentified police officers had arrived and had stationed themselves some four to five metres from the shore with their dogs. He stated that as well as these persons, two other police officers, M.Sz. and G.O., were present, together with a soldier. After checking the barbed wire for signs of intrusion with Z.F., they had returned to the other officers, where they had noticed five persons appearing from the reeds. They had warned those persons first in Hungarian, and then in English, not to approach the barbed wire barrier, however the family had sat down next to it. Z.F. had called for a rescue boat and the police officers had made the family understand that they would be picked up by boat in the water. He also recalled D.B. reporting that three persons had swum back to Serbia, and that one of them had disappeared. In his view, until the rescue operation, the police officers had not been aware of the presence of anybody other than the Iraqi family. Á.Zs. had denied that either the police or the soldiers had used violence or had thrown things at the passengers. 36.     The testimony of police officer M.Sz. gave the same account of the events. He had been in a vehicle patrolling along a backwater of the Tisza River. On the instructions of Z.F., he had arrived at the scene of the incident, with G.O. They had noticed the Iraqi family in the reeds after waiting for about an hour. He also recalled the arrival of Z.F. and Á.Zs., and two officers with dogs. He remembered two soldiers being present at the scene with their commander. They had stayed at the scene for about one and a half hours and had left because they were called to intervene at another incident of an irregular border crossing. He maintained that he had only learned about the other migrants from the news. 37 .     According to the witness testimony of D.B., the officer stationed in the hunting tower, he had noticed persons approaching the Hungarian border at around 5 a.m. Although there had been good visibility, he could not see how many people were coming or whether they had swum or had been in a boat. He had reported this to the commander, Z.F., and the police officers had arrived at the scene in five to ten minutes. Half an hour later, he had noticed three persons swimming in the direction of Serbia, one of whom was struggling and was under water, which he had reported to Z.F. Five to ten minutes later a motorboat had appeared. The motorboat had searched for about half an hour. He had also heard a fisherman shouting that somebody had drowned in the water. He could not see the location where the Iraqi family had tried to go ashore and therefore could not tell if any force had been used. 38.     On 28 July 2016 officer C.J., who was the sector commander of the military forces, testified that four soldiers had been patrolling the area that night, but he could not identify them. He had been present at the scene for about ten minutes, during which time he had noticed persons in the reeds but had not seen either them or the others in the river. 39.     On the same day the list of soldiers on duty from 31 May to 1 June   was transmitted to the investigation authorities. On 30 August 2016 C.J. identified the four soldiers, C.A., B.A., B.D. and T.Z., who had been patrolling in the area in question on the day of the incident. 40.     On 12 September 2016 C.A. and B.A. stated that they had been patrolling about four and a half to five kilometres from the incident and they had only seen the Iraqi family once they had been rescued from the water. They had no direct knowledge of the events and did not know of the three persons who had attempted to swim back to Serbia. They were not aware of any use of force. 41.     Apparently T.Z. did not remember anything of the events. 42 .     On the same day, K.Cs., who was patrolling in the police motorboat with A.L., testified that the guards on the Hungarian shore had noticed around ten to twenty persons gathering at the Serbian side of the river, which was illuminated with spotlights from the Hungarian side. At around 4.30 a.m. he had received the information that some people had tried to cross the river. Despite good visibility, he had not seen anybody crossing the river. After stopping in the water for about half an hour, the motorboat had been returning to the harbour when it had been called to rescue the people hiding in the reeds. The officers on the boat had noticed a jacket and an empty backpack. They had informed Z.F., who had instructed them to look around to see if there was anybody to rescue from the water. While searching, they had heard a fisherman shouting at them in Hungarian from the Serbian border that somebody might have drowned in the water, because he had seen one person sinking and not resurfacing again. They had reported this to Z.F. as well, and on his instructions, they had searched for another half hour. They had informed Z.F. that they could not find anybody. Subsequently, they had been called to take the Iraqi family out from the water. When they had found them, two of the children were almost sinking and the youngest child’s body had turned blue; he was not moving and had had to be resuscitated. The family had not shown any other injuries. K.Cs. had not seen any stones being thrown at the migrants, and although he had heard the dogs barking, he could not tell whether they had been let off the leash or not. 43.     A.L. confirmed the statements of K.Cs. 44 .     On 1 September 2016 a toxicological report was issued stating that no toxic substances, neither drugs nor the active ingredients of tear gas, could be detected in F.’s body. On 27 September 2016 a supplementary forensic expert report was issued which stated that the active ingredients of tear gas could only be detected if samples had been taken from the affected body part directly after the tear gas was used. Since F.’s body had been in the water for several days, further examination could not produce any results to determine whether tear gas had been used. 45.     On 11 October 2016 the applicant’s lawyer submitted his observations to the Szeged Prosecutor’s Office. He noted that although four soldiers who had been patrolling on 1 June 2016 had been identified by C.J., two of them had not witnessed the events at all. In addition, other witness testimony had mentioned the presence of four to five soldiers, who had not been identified. He further submitted that the officers with the dogs had not been identified either. He called the authorities’ attention to the contradictions in the officers’ testimony as regards the search operation. He reiterated that M.M. and K.K. had repeatedly and consistently stated that they had been warned to go back, that stones had been thrown and that the officers had used tear gas. He therefore requested that C.J., the sector commander of the military forces, be questioned again and that the investigation authorities question all the soldiers who were on duty that day. He further requested that the authorities identify the officers with the dogs and question M.M. and K.K. again. 46.     The request of the applicant’s lawyer was dismissed on 19   October   2016. According to the decision of the Prosecutor’s Office, it was not necessary to identify the police officers with the dogs since other witness testimony had already explained in detail the fact that no police dogs had been used during the incident. Furthermore, M.M. and K.K. and his family could not be questioned since they had left Hungary. 47.     On 25 October 2016 the Prosecutor’s Office discontinued the investigations as the commission of a crime could not be established on the basis of the information gathered during the investigation. Reiterating the content of the witness testimony, the Prosecutor’s Office found that it could not be established beyond reasonable doubt that stones had been thrown or tear gas sprayed at the migrants, or that any other force had been used against them. The discrepancies in the testimony could not be resolved and no further evidence could be collected. The Prosecutor’s Office thus concluded that it could not be established or ruled out beyond reasonable doubt that a crime had been committed. 48.     The applicant’s lawyer lodged a complaint, submitted to the Szeged Prosecutor’s Office and addressing the Chief Prosecutor’s Office, requesting the continuation of the proceedings. As well as maintaining that there was evidence of the use of force by the police officers, he submitted that some of the police officers present at the incident, including the unit with the police dogs, had not been questioned at all, whereas other officers, who had clearly been absent, had been questioned. He further complained about the failure to question K.A. or to obtain a second testimony from M.M., and drew attention to the contradictions in the witnesses’ testimony as regards the rescue operation. He put forward the argument that the investigation should have encompassed the crimes of failure to provide aid or assistance ( segítségnyújtás elmulasztása ) and endangering a minor ( kiskorú veszélyeztetése ), and that the Prosecutor’s Office had applied an inappropriate standard of proof (beyond reasonable doubt), which was the legal standard for a conviction. 49 .     The 3 February 2017 the Chief Prosecutor’s Office dismissed the applicant’s complaint. It found that the Szeged Prosecutor’s Office had not erred in the legal characterisation of the facts. It stated that the witness testimony had not corroborated the applicant’s version of events, in particular, that his brother had been hit by a stone, since K.K. had stated that he had seen two stones and M.M. that he had seen four to five objects thrown in the river without hitting the applicant’s brother. The release of police dogs had not been confirmed by any witness statement. The Chief Prosecutor’s Office concluded that both the assessment of evidence and the legal findings by the Szeged Prosecutor’s Office had been well founded. RELEVANT LEGAL FRAMEWORK RELEVANT DOMESTIC LAW 50 .     Act no. C of 2012 on the Criminal Code provides: Article 301 “(1) Any public official who physically abuses another person in the course of official proceedings shall be guilty of a serious offence punishable by imprisonment of between one to five years.” RELEVANT COUNCIL OF EUROPE MATERIAL 51.     In Recommendation Rec(2001)10 on the European Code of Police Ethics, adopted on 19 September 2001, the Committee of Ministers of the Council of Europe stated that “[t]he police shall not inflict, instigate or tolerate any act of torture or inhuman or degrading treatment or punishment under any circumstances” (paragraph   36) and that they “may use force only when strictly necessary and only to the extent required to obtain a legitimate objective” (paragraph   37). Furthermore, “in carrying out their activities, [they] shall always bear in mind everyone’s fundamental rights” (paragraph   43) and “police personnel shall act with integrity and respect towards the public and with particular consideration for the situation of individuals belonging to especially vulnerable groups” (paragraph 44). MATERIAL DESCRIBING THE SITUATION OF MIGRANTS ARRIVING IN hungary European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) 52 .     Between 20-26 October 2017 the CPT, having visited Hungary, reported receiving reliable information substantiated by medical evidence about violent push-back operations by Hungarian police officers. According to that information, before escorting migrants back to Serbia, the police officers assaulted them by beating and kicking them, occasionally also using truncheons. The report of the CPT to the Hungarian Government stated the following: “13. However, a significant number of foreign nationals interviewed by the delegation who had been apprehended in Hungary and escorted by the Hungarian police through the border fence towards Serbia shortly before the CPT’s visit alleged that they had been physically ill-treated by Hungarian police officers in the context of their apprehension and return through the border fence (push-backs). The alleged ill ‑ treatment consisted in particular of kicks and punches to various parts of the body (including the face and/or head) and baton blows (in particular to the knees, shins and calves), in some cases after the persons concerned had been made to lie down on the ground, as well as of spraying pepper spray directly into the face. Further, several allegations were received from foreign nationals that they had been bitten by unmuzzled service dogs set upon them by police officers. It should also be added that a number of foreign nationals met by the delegation displayed recent traumatic injuries which, in the view of the delegation’s doctor, were consistent with the allegations of ill-treatment made.” Commissioner for Human Rights of the Council of Europe 53.     The Commissioner visited Hungary between 4-8 February 2019. She reported the following: “The Commissioner is deeply concerned about repeated and consistent allegations, highlighted by UNHCR and the CPT, of excessive use of force and violence by the Hungarian police during forcible removals. Alleged ill-treatment by the police includes kicks, punches and baton blows to various parts of the body, also to individuals who are made to lie down on the ground, as well as of spraying pepper spray directly into the face. In addition, the allegations describe police officers releasing unmuzzled service dogs to bite people. Such reports were supported by medical evidence gathered by the CPT delegation’s physician during the CPT visit to Hungary in 2017. In December 2018, the NGO Save the Children reported similar violence perpetrated by the Hungarian police against children. Violence against children was also reported to the Special Representative of the Secretary General of the Council of Europe on migration and refugees in 2017. In most cases investigations into the allegations have been closed due to insufficient information or lack of evidence.” UN Human Rights Committee 54.     The Concluding Observations to the Sixth Periodic Report of Hungary of 9 May 2018 (CCPR/C/HUN/CO/6) contains the following: Non-refoulement and excessive use of force “47. While noting the information provided by the State party on the applicable standards and the safeguards against non-refoulement, the Committee is concerned that the State party’s legal framework does not afford full protection against non ‑ refoulement. It notes with concern: (a) the ‘pushback’ law, first introduced in June   2016, which allows the summary expulsion by the police of anyone who crosses the border irregularly and is detained on Hungarian territory within 8 km of the border, a limit that was subsequently extended to the entire territory of the State party; and (b) Decree No. 191/2015 designating Serbia a ‘safe third country’, thereby authorizing pushbacks at the border between Hungary and Serbia. The Committee notes with concern reports that pushbacks have been applied indiscriminately and that individuals subjected to this measure have very limited opportunity to submit an asylum application and virtually no right of appeal. It also notes with concern reports of collective and violent expulsions, allegedly accompanied by heavy beatings, attacks by police dogs and shooting with rubber bullets, which have resulted in severe injuries and, at least in one case, in the death of an asylum seeker (arts. 2, 6, 7, 9 and 13).” UN Committee on the Elimination of Racial Discrimination 55 .     The Concluding Observations on the combined Eighteenth to Twenty ‑ fifth Periodic Reports of Hungary of 6 June 2019 (CERD/C/HUN/CO/18-25) contains the following: Refoulement and the use of force against asylum seekers “24. The Committee is deeply concerned at the reports that the principle of non ‑ refoulement is not fully respected in law and in practice. It expresses deep alarm at the reported excessive use of force and violence by law enforcement officers against third country nationals found anywhere in Hungary, while ‘pushing back’ those found near the border to Serbia, resulting in injuries and bodily harm. 25.The Committee recommends that the State party take all measures to ensure the full respect of the principle of non-refoulement. It also recommends that the State party prevent the excessive use of force and ensure training for, and effective and independent monitoring of, law enforcement personnel involved with refugees, migrants and asylum seekers, to eliminate ill-treatment.” THE LAW PRELIMINARY REMARKS 56.     The Government submitted that the applicant had no known address in Hungary and that it was most likely that he had left Hungary. In their view the applicant’s representative had not demonstrated that he was still in contact with the applicant. In the Government’s understanding, the applicant did not intend to pursue his application, which was to be struck out of the list of cases in accordance with the Court’s case-law in V.M. and Others v.   Belgium ((striking out) [GC], no. 60125/11, 17 November 2016). 57.     The applicant’s lawyer replied by a letter dated 19 February 2021 that he was in contact with the applicant, and he submitted a declaration from the applicant stating that he wished to pursue his case before the Court. 58.     In V.M. and Others v. Belgium   (cited above), the Court specified, in the light of Article 37 § 1 (a), that an applicant’s representative not only had to supply a power of attorney or written authority (Rule 45 § 3 of the Rules   of Court), but that it was also important that contact between the applicant and his or her representative be maintained throughout the proceedings, both in order to learn more about the applicant’s particular circumstances and to confirm the applicant’s continuing interest in pursuing the examination of his or her application. 59.     The Court considers that in the present case there is no reason to doubt the credibility of the information provided by the applicant’s lawyer as to the truth of his contact with the applicant and the wish of the latter to pursue his application. Thus, the Court will pursue the examination of the application. Alleged violation of Articles 2 and 3 of the Convention IN THEIR PROCEDURAL ASPECT 60.     The applicant alleged that no effective investigation had been carried out into F.’s death or into the ill-treatment that he had suffered, in breach of Articles   2 and 3 of the Convention. Admissibility The parties’ submissions 61.     The Government submitted that the complaint concerning the alleged failure to carry out an effective investigation into the death of the applicant’s brother under Article 2 and his related complaint under Article   3 were inadmissible since the applicant had failed to exhaust domestic remedies , namely, to lodge an official liability action. 62.     They argued that the criminal complaint against the alleged perpetrators could not be regarded as an effective remedy against the allegedly unlawful conduct of the investigation authorities of not taking urgent investigative measures. In their understanding, if the criminal liability of the perpetrators had been impossible to establish, it was because of the negligent conduct of the investigation authority. This could only have been remedied by an official liability action. These two types of legal avenues of redress did not have the same objective, as a criminal complaint was meant to establish the criminal liability of perpetrators whereas a civil action was meant to establish the liability of an allegedly negligent authority. The domestic courts were better placed than an international tribunal to assess the effects of any omission by the investigation authorities on the outcome of the proceedings. In the Government’s view, pursuing a criminal remedy against the alleged perpetrators did not exempt the applicant from seeking a civil-law remedy for the alleged breach of his rights under the Convention against the investigation authorities. 63.     The applicant submitted that the crux of his complaint was the alleged ill-treatment by the Hungarian police officers. By pursuing his criminal complaint, he had made use of the only legal avenue that could have provided effective redress for his grievances. 64.     As regards the civil action put forward by the Government, the applicant also noted that the Court had previously rejected arguments of the Government referring to civil lawsuits for damages for illegal acts attributable to the State (see Barta v. Hungary , no. 26137/04, 10 April 2007). He argued that the subject matter of the civil action for damages against the investigation authorities would not have been the criminal responsibility of the perpetrators for ill-treatment but rather the alleged omissions of the investigation authorities. 65.     Furthermore, a civil lawsuit could not be considered as a remedy capable of providing redress in respect of his complaints, because it could have merely resulted in an award of damages. In any event, even if more than one potentially effective remedy was available, he was required to have used only one of them. The Court’s assessment 66.     The Court reiterates that even in cases of non ‑ intentional interferences with the right to life or physical integrity, there may be exceptional circumstances where   an effective criminal investigation is necessary to satisfy the procedural obligation imposed by Article 2. Such circumstances can be present, for example, where a life was lost or put at risk because of the conduct of a public authority which goes beyond an error of judgment or carelessness, or where a life was lost in suspicious circumstances or because of the alleged voluntary and reckless disregard by a private individual of his or her legal duties under the relevant legislation. The Court has held that where it was established that the negligence attributable to State officials or bodies had gone beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity, the fact that those responsible for endangering life had