The applicant, a Syrian national, along with his brother, F., and other persons, crossed the Tisza River from Serbia to Hungary by boat in 2016, with the aid of smugglers. The applicant alleged that Hungarian border guards forced them to turn back to Serbia and used force to prevent them from disembarking in Hungary (tear gas was sprayed and stones were thrown at them, and police dogs were released when they tried to reach the shore). His brother was later found drowned, allegedly when trying to swim back from Hungary to Serbia. The applicant complained before the ECtHR under Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment), that his brother, F., had died as a result of a border control operation conducted by the Hungarian authorities, that the conduct of the police when he was returned to Serbia failed to comply with the obligation to protect his brother’s right to life and that there was a lack of an effective investigation into these allegations.

The court recalled that the Hungarian authorities, faced with “arguable” claims of police ill-treatment, had a duty under Article 3 of the Convention to take necessary measures without delay to assess the credibility of the claims and to investigate whether police failed to take necessary and sufficient measures to avert the risks to F.’s life.

The court also observed that although an official investigation was opened, its substantive scope remained limited and did not inquire into the alleged failure of the authorities to do enough to protect F.’s life; the purpose of the investigation was to establish whether police officers could be held liable for “ill-treatment committed in the course of official proceedings” (for the acts of throwing of stones, spraying of tear gas and deployment of police dogs) so not for life-endangering acts or the protection of the right to life within the meaning of Article 2. The court further noted that the institutional responsibility of the police was never considered and the way in which the Hungarian justice system operated in response to the event did not secure the full accountability of authorities for their role in conducting the border control operation.

The court conclude that the authorities did not discharge their duty under Article 2 of the Convention to investigate the case.

The court further found that the Hungarian authorities in charge of the proceedings did not deploy reasonable efforts to gather the evidence and establish the facts with regard to the allegation of ill-treatment by the police officers during disembarkation. The court found that overall, the response of the domestic authorities were in violation of their procedural obligations under Articles 2 and 3 of the Convention.

The court recalled that Article 2 of the Convention lays down a positive obligation on the authorities to take appropriate steps to safeguard the lives of those within their jurisdiction and applies in the context of any activity, whether public or not, in which the right to life may be at stake. In the context of policing operations the authorities must take appropriate care to ensure that any risk to life was minimised, that they were not negligent in their choice of action and that policing operations were sufficiently regulated by national law, within a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident. As regards rescue operations, the court noted that the degree of scrutiny will depend on the extent to which the authorities were in control of the situation and other relevant constraints inherent in the operational decision-making.

The court further observed that although it cannot find that F. was subjected to the use of force and harm by the police officers, the authorities were aware of the real and imminent risk to the life of migrants trying to cross the river and the necessity to safeguard their lives. The court noted that it was known to the authorities that the Tisza River was a dangerous crossing point and that there was at least one incident which had led to the injury of migrants trying to cross the river. Police was aware of the migrants arriving on the Hungarian side of the river and noticed people trying to cross the river. The court further noted the vulnerable condition of the persons, who were smuggled and left in the water, with some of them in critical condition in hospital after being rescued.

While accepting that the high influx of people at the border represented a challenge to the authorities trying to prevent migrants circumventing border protection in Hungary, the court noted that the circumstances of the present case were not exceptional, but rather a more or less routine border control operation, so that the Hungarian authorities had sufficient knowledge to evaluate the risk and to carefully organise their border operations.

The court could not find any evidence that the authorities followed any operational plan developed for the purpose of dealing with search and rescue situations to ensure that the life of those trying to cross the border were protected. The court concluded that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life which they knew was liable to arise.

The court also noted that the rescue capacities present at the incident did not correspond to the requirements of the emergency situation as it developed and no attempts to call for assistance were made, so the authorities failed to act rapidly and decisively to protect F’s life. Thus, the court found a violation of Article 2 of the Convention in its substantive aspect.

As to the applicant’s allegation under Article 3 of the Convention, about being subjected to physical assault during the border control operation, the ECtHR noted that it cannot conclude beyond reasonable doubt that physical force was used. Thus, it could not establish a violation of the substantive limb of Article 3 of the Convention.