Judgment H.Q. and Others v. Hungary - Hungary must take measures to prevent further collective expulsions and ensure effective access to the international-protection procedure

issued by the Registrar of the Court   ECHR 154 (2025)   24.06.2025   Hungary must take measures to prevent further collective expulsions and   ensure effective access to the international-protection procedure   In today’s Chamber judgment1 in the case of H.Q. and Others v. Hungary (applications nos. 46084/21,   40185/22 and 53952/22) the European Court of Human Rights held, unanimously, that there had   been:   - a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) to the   European Convention on Human Rights in respect of all three applicants;   - a violation of Article 13 (right to an effective remedy) of the European Convention in conjunction   with Article 4 of Protocol No. 4 to the Convention in respect of all three applicants; and   - a violation of Article 3 (prohibition of inhuman or degrading treatment – procedural aspect) of the   Convention in respect of two of the applicants.   The case concerned the removal – under section 5(1b) of the State Border Act – of the applicants from   Hungary to Serbia without examination of their individual circumstances, and their alleged lack of   access to the international-protection procedure, which – pursuant to the 2020 Transitional Act –   could be initiated only after a successful preliminary procedure at the Hungarian embassy in Belgrade   (the “embassy procedure”). One of the applicants was removed when making a request for asylum   following the expiry of his residence permit; the remaining two applicants, who had entered Hungary   clandestinely, were removed from hospital after being treated for serious accident-related injuries.   The Court noted that the application of the system of automatic removals had led it to find a violation   of Article 4 of Protocol No. 4 in a number of cases against Hungary, and that the system had been   found to contravene EU law by the Court of Justice of the European Union (“the CJEU”). Nevertheless,   the respondent State had continued to maintain it and the authorities had relied on it when removing   the applicants in this case. Consequently, no assessment of the applicants’ situations had been carried   out prior to their removal, leading the Court to conclude that their expulsions had been “collective”   in nature.   Moreover, the Court found that the “embassy procedure”, which was the only means of entry for   those seeking international protection in Hungary, was not clearly regulated and lacked adequate   safeguards.   Under Article 46 (binding force and enforcement of judgments) the Court underlined the urgent need   for the Hungarian authorities to take immediate and appropriate measures to prevent any further   instances of collective expulsions and ensure genuine and effective access to the international-   protection procedure for those seeking such protection.   A legal summary of this case will be available in the Court’s database HUDOC (link).   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any   party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers   whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the   referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   Principal facts   The applicants are two Afghan nationals, H.Q. and Z.A., and a Syrian national, A.S.A. They were born   in 1996, 2006, and 2000, and live in Austria, Serbia and Germany, respectively.   Application No. 46084/21   H.Q. entered Hungary in 2018 with a student residence permit which seemingly expired in 2019. On   14 September 2021, following the seizure of power by the Taliban in Afghanistan, he lodged an asylum   application with the National Directorate-General for Aliens Policing (“the NDGAP”) on the grounds   that, if he returned to Afghanistan, he might be persecuted by the Taliban due to his father’s position   in the previous Afghan government. Three days later, the NDGAP rejected his application without   examining its merits and instructed the police to remove him from the country. That afternoon, he   was driven to the Serbian-Hungarian border and was ordered to walk through a gate in the border   fence, in the direction of Serbia, in accordance with section 5(1b) of the State Border Act. Once in   Serbia, he stayed in the Belgrade Refugee Centre until 14 May 2022 and then entered Austria and   applied for asylum there.   H.Q. complained, unsuccessfully, about his removal under the Police Act. His representative also   lodged an administrative action against the NDGAP and the police, but to no avail.   Application No. 40185/22   Z.A. was smuggled into Hungary via the Serbian-Hungarian border on 16 February 2022 as an   unaccompanied 16-year-old. However, the van in which he was travelling was then involved in a traffic   accident. Seriously injured, Z.A. was taken to a hospital in Szeged, where his spleen and one of his   kidneys were removed.   While in hospital, Z.A. allegedly told a doctor that he wanted to seek asylum in Hungary. The police   took his personal data and told him that he would be transferred to a children’s centre in Fót once he   had recovered. On 14 April 2022 he was discharged from hospital with a prescription for medication   and for an X-ray four weeks later, and was told to keep the weight off his legs.   Police officers then transported Z.A., without his belongings and barefoot, to the Serbian-Hungarian   border fence despite his allegedly telling the officers that he was supposed to go to Fót and that he   was requesting asylum. He was ordered, together with about a dozen Arabic-speaking men, to pass   through the transit zone exit and to cross over to Serbia, which he did.   On 4 November 2022, in accordance with the “embassy procedure” provided for in the 2020   Transitional Act, Z.A. lodged a “declaration of intent” with the Hungarian embassy in Belgrade with a   view to obtaining permission to enter Hungary to claim asylum. He explained that he was afraid to   return to Afghanistan; he had been held in captivity by the Taliban for a few days before escaping the   country, and they had killed his father. On 10 January 2023 the NDGAP replied that they did not   recommend that Z.A. be issued with a travel document for Hungary, but did not give a formal decision   or provide any reasons.   In April 2024, following Z.A.’s administrative action, the Budapest High Court set aside the NDGAP’s   decision issued in remitted proceeding, finding that the NDGAP had not followed the instructions   previously given in Budapest High Court’s judgment of 22 May 2023. Furthermore, the Budapest High   Court referred to judgment no. C-823/21 of the CJEU, Commission v Hungary, and refused to remit   the case to the NDGAP on the basis that the CJEU had found that the “embassy procedure” was   contrary to EU law.   Application No. 53952/22   A.S.A. arrived in Hungary clandestinely on 9 July 2022 via the Serbian-Hungarian border. After being   picked up by a smuggler with a minibus, he was involved in a road accident. He was taken to a hospital   in Budapest, where he was in a coma for six days. On 17 July 2022, with the help of an interpreter, he   2 contacted the Hungarian Helsinki Committee and asked for legal assistance to seek asylum in Hungary,   claiming that he had fled Aleppo owing to the security situation, the threat of persecution, and risk of   ill-treatment related to forced recruitment by the Kurdish military.   During his hospital stay, A.S.A. reportedly told police and medical staff that he wanted to seek asylum.   On 19 July 2022 he was discharged from hospital and prescribed medication and further rehabilitation   treatment as well as advised to return for a check-up in a week’s time. Police officers then handcuffed   him, put a leash around his wrists and took him to a police station, where his personal data was   registered. On the same day, at around 10 p.m., police transferred him to a so-called “collection point”   where he was kept, still handcuffed, with other foreigners until around midnight when he was taken   to the border fence.   In the early hours of 20 July 2022, together with around 40 others, A.S.A. was made to walk through   a gate in the border fence, in the direction of Serbia, in accordance with section 5(1b) of the State   Border Act. On 25 July 2022, after staying in Serbia in a forest, doctors from Médecins Sans Frontières   issued a medical report stating that he was still wearing the neck brace, was apparently in pain, and   had limited movement in his right arm. Two days later A.S.A. was smuggled into Germany, where he   lodged an asylum application. He instituted complaint proceedings under the Police Act against the   relevant Hungarian police departments involved in his removal, but to no avail. He also challenged his   removal before the Budapest High Court. Those proceedings are apparently still pending.   Complaints, procedure and composition of the Court   Relying on Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) to the European   Convention on Human Rights and on Article 13 (right to an effective remedy) of the European   Convention, the three applicants complained that they had been collectively expelled from Hungary,   that the “embassy procedure”, which offered the only means of legal entry, was ineffective, and they   had had no legal avenue to make a complaint in that regard. Relying on Article 3 (prohibition of   torture/inhuman or degrading treatment) of the Convention, two of the applicants  H.Q. and A.S.A.    complained that they had been expelled to Serbia without the consequences of their removal being   assessed.   The applications were lodged with the European Court of Human Rights on 17 September 2021,   12 August 2022 and 17 November 2022 respectively.   Judgment was given by a Chamber of seven judges, composed as follows:   Arnfinn Bårdsen (Norway), President,   Saadet Yüksel (Türkiye),   Jovan Ilievski (North Macedonia),   Péter Paczolay (Hungary),   Oddný Mjöll Arnardóttir (Iceland),   Gediminas Sagatys (Lithuania),   Juha Lavapuro (Finland),   and also Dorothee von Arnim, Deputy Section Registrar.   Decision of the Court   Given the similar subject matter, the Court examined the applications jointly in a single judgment.   Article 4 of Protocol No. 4   The Court noted that the system, whereby foreigners who entered or stayed in Hungary illegally were   automatically removed from the country, had been in place in Hungary since 2016 and had initially   3 applied to a strip of land close to the border (section 5(1a) of the State Border Act). In 2017, during   the declared crisis of mass migration, the system had been extended to be used throughout the State   territory (section 5(1b) of the State Border Act). The state of crisis remained in effect, and automatic   removals were still being carried out across the country. A foreigner staying illegally in Hungary could   be taken by the police to the border fence and made to leave the country without any formal decision   being issued.   The application of the system of automatic removals had led the Court to find a violation of Article 4   of Protocol No. 4 to the Convention in Shahzad v. Hungary and a number of other cases against   Hungary. The CJEU also found that section 5(1b) of the State Border Act contravened Article 5,   Article 6(1), Article 12(1) and Article 13(1) of Directive 2008/115 (see S.S. and Others v. Hungary, § 28).   Despite those rulings, Hungary had continued to maintain the system and its authorities had relied on   it when removing the applicants in this case.   The Court observed that removing the applicants to the external side of the Hungarian border fence   with Serbia, was, in essence, the same measure that had been applied to the applicants in the Shahzad   and S.S. and Others cases in which the Court had found that their removals had amounted to expulsion   within the meaning of Article 4 of Protocol No. 4. As regards the nature of the expulsion, the Court,   having regard to the different ways in which the applicants had entered Hungary and the varying   circumstances of their removal, examined their complaint under Article 4 of Protocol No. 4 separately   for the first applicant on the one hand and for the second and third applicants on the other.   Application no. 46084/21   As regard the fact that H.Q. appeared to have been removed on his own, the Court reiterated that the   decisive criterion in order for an expulsion to be characterised as “collective” was the absence of “a   reasonable and objective examination of the particular case of each individual alien of the group”.   Even when a State expelled somebody on his/her own, the safeguard of Article 4 of Protocol No. 4 had   to still apply if the nature of the measure itself was collective.   The Court further observed that the Hungarian authorities had refused to examine the merits of H.Q.’s   asylum request and had simply removed him to Serbia. The Court found the Government’s suggestion   that H.Q. should have availed himself of the “embassy procedure” provided for in the 2020   Transitional Act irrelevant when assessing the domestic authorities’ compliance with Article 4 of   Protocol No. 4 because, at the very least, he had entered Hungary in an authorised manner. Also, the   Court considered that the fact that H.Q. had previously held a valid residence permit and had   subsequently stayed in Hungary illegally did not absolve the Hungarian authorities from their   obligation under Article 4 of Protocol No. 4. Therefore, and in particular due to the fact that no   assessment of his situation had been carried out, the Court concluded that H.Q.’s expulsion had been   “collective” in nature and had breached Article 4 of Protocol No. 4.   Applications nos. 40185/22 and 53952/22   The Court noted that Z.A. and A.S.A. had been removed without any individual decision. As to whether   they should have availed themselves of the “embassy procedure” provided for in the 2020 Transitional   Act, instead of crossing the border unlawfully into Hungary, the Court observed that the original aim   of the “embassy procedure” had referred to the COVID-19 situation. However, removing asylum-   seekers from Hungary for them to undergo the procedure in Serbia was difficult to reconcile with the   objective of preventing the spread of COVID-19. The Court further noted that the subsequent   extension of the “embassy procedure” under the 2023 Extension Act had been intended to constrain   migratory flows by ensuring that asylum applications were lodged and assessed before entry into the   territory of the European Union and to combat migrant smuggling.   While the Court noted that managing migrant flows, tackling abuse of the asylum system and   combating migrant smuggling were legitimate objectives, those problems could not justify recourse   to practices which were not compatible with the Convention or its Protocols. Any system which a State   4 adopted to control entry into its territory should ensure the right to request international protection   in a genuine and effective manner, particularly protection requested on the basis of Article 3 of the   Convention.   Noting that the CJEU had considered that the “embassy procedure” under the 2020 Transitional Act,   which did not comply with Article 6 of the Asylum Procedures Directive, could not be regarded as valid   compliance with the 2020 Commission v. Hungary judgment, the Court further noted that it was not   clearly regulated and lacked adequate safeguards, leading to uncertainty, a lack of transparency and,   most importantly, a risk of being applied arbitrarily.   The Court further noted that access to means of legal entry should in principle be provided at border   crossings. It was undisputed that this had been impossible in the present case because applications   for international protection could no longer be made through the border procedure at border   crossings with Hungary. While States may provide additional means of access to their territory through   procedures available at their embassies and/or consular representations, this generally meant that   the person requesting asylum was outside the State’s jurisdiction. Moreover, such procedures might   not provide immediate protection for those claiming to be in need of it, as had been the case for the   applicants in this case.   Therefore, the Court considered that the “embassy procedure” did not provide for “genuine and   effective access to means of legal entry”. Given that this was the only means of entry for those seeking   international protection in Hungary, the lack of an individual expulsion decision could not be   attributable to Z.A.’s and A.S.A.’s own conduct. This made it unnecessary for the Court to examine   whether their expulsion would qualify as collective even if such access had been provided. The Court   concluded that there had been a violation of Article 4 of Protocol No. 4 to the Convention also in   respect of Z.A. and A.S.A.   Article 3   The Hungarian authorities’ decision to remove H.Q. and A.S.A. had been unrelated to the merits of   their asylum claims, which they had not examined.   The Court reiterated that in all cases of removal of an asylum-seeker from a Contracting State to a   third country without examination of the asylum application on the merits, it was the duty of the   removing State to thoroughly examine the question of whether or not there was a real risk of the   asylum-seeker being denied access, in that third country, to an adequate asylum procedure protecting   him or her against refoulement. Nothing showed that H.Q.’s or A.S.A.’s removal had been underpinned   by any assessment of the access to the asylum procedure in Serbia and the adequacy of that   procedure. Their removal had been based on the premise that they would be able to apply for entry   to Hungary at the Hungarian embassy in Belgrade. However, there was nothing to suggest that the   national authorities had satisfied themselves that H.Q. and A.S.A. would be able to effectively access   the asylum procedure at the embassy and, in any case, as the Court had already found, the “embassy   procedure” had not been an effective means of doing so.   The Court reiterated that from the perspective of Article 3, a Contracting State could not deny an   asylum-seeker access to its territory or remove him or her, even on the assumption that that person   might be able to return through some other means of entry, without a proper evaluation of the risks   that such a denial or removal might have for his or her rights protected under Article 3.   Therefore, Hungary had failed to fulfil its procedural obligation under Article 3 of the Convention as   regards H.Q. and A.S.A.   Article 13 in conjunction with Article 4 of Protocol No. 4   The Court noted that the national legislation provided no specific legal avenue by which to challenge   removal under section 5(1b) of the State Border Act. Moreover, H.Q.’s and A.S.A.’s cases had   5 demonstrated that such removals could also not be effectively challenged in a complaint procedure   under the Police Act. With respect to lodging a legal action with an administrative court, the Court   observed certain positive jurisprudential developments but found nothing in the relevant decisions of   the Kúria to show that, in an action before an administrative court, an affected migrant could   effectively complain of a failure to examine his or her personal situation prior to his or her removal. It   seemed that such an examination was precluded by section 5(1b) of the State Border Act itself, as the   removal of a foreigner staying illegally in the country fell within the discretionary power of the police.   What was more, given the nature of the applicants’ allegations, the authorities were required to   provide them with a remedy with suspensive effect. However, removal under section 5(1b) of the   State Border Act was carried out immediately once law-enforcement officers considered that the   person in question fell within the ambit of this provision. Therefore, even if remedies existed, they   could not prevent removal, including in situations where the individuals concerned had expressed that   they feared treatment contrary to Articles 2 or 3 of the Convention.   Therefore, there had been a breach of Article 13 taken in conjunction with Article 4 of Protocol No. 4.   Article 46 (enforcement and binding force of judgments)   The Court considered that the Convention violations found in this case stemmed directly from the   application of the national legislation. As a result of this, tens of thousands of individuals had been   removed from Hungary in the past few years, with the number of removals increasing and amounting   to more than 150,000 in 2022. Furthermore, although the relevant provisions of the 2020 Transitional   Act were no longer in force, a decree, adopted on 28 November 2024, together with the State Border   Act, upheld the same system of collective expulsions and denial of access to the asylum procedure   which was incompatible with the guarantees enshrined in the Convention.   Reiterating its findings regarding Hungary’s ongoing failure to comply with the Convention, the Court   underlined the urgent need for the Hungarian authorities to take immediate and appropriate   measures to prevent any further instances of collective expulsions and ensure genuine and effective   access to the international-protection procedure for those seeking such protection.   Just satisfaction (Article 41)   The Court held that Hungary was to pay H.Q. 10,000 euros (EUR), Z.A. EUR 8,000, and A.S.A. EUR 5,000   in respect of non-pecuniary damage, and EUR 5,000 to H.Q. and Z.A. jointly, and EUR 3,000 to A.S.A.   in respect of costs and expenses.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. 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