H.Q. and Z.A., two Afghan nationals, and A.S.A., a Syrian national are the applicants in this case, which concerned their removal, under section 5(1b) of the State Border Act, from Hungary to Serbia without examination of their individual circumstances. 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 the hospital after being treated for serious accident-related injuries. They had all expressed their wish to seek asylum on several occasions, and one of them claimed to be an unaccompanied minor.

Following their removal, two of the applicants filed a complaint against the police authorities under the Police Act, which was unsuccessful. The other applicant, after unsuccessfully lodging a “declaration of intent” in the “embassy procedure” in Serbia, filed an administrative action before the Budapest High Court, which ruled that Hungary’s “embassy procedure” for asylum was unlawful under EU law, but did not grant him authorisation to enter.

Before the European Court of Human Rights (ECtHR), the applicants invoked Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) and Article 13 of the European Convention (right to an effective remedy). They claimed that the “embassy procedure” under the 2020 Transitional Act was ineffective and hence prevented their access to the international protection procedure, and that they had had no legal avenue to make a complaint in that regard. Moreover, relying on Article 3 (prohibition of torture/inhuman or degrading treatment) of the Convention, two of the applicants complained that they had been expelled to Serbia without the consequences of their removal being assessed.

The ECtHR ruled that there had been a violation of Article 4 of Protocol No. 4 and Article 14 of the European Convention in all three cases, and a violation of Article 3 in the cases of two of the applicants. It also concluded that Hungary must take measures to prevent further collective expulsions and ensure effective access to the international protection procedure.

First, the court noted that the application of the system of automatic removals had previously led to violations of Article 4 of Protocol No. 4 (e.g. Shahzad v Hungary), and that the system had been found to contravene EU law by the CJEU in European Commission v Hungary (C-808/18, 17 December 2020). Nevertheless, Hungary had maintained the system, and the authorities had relied on it when removing the applicants in these cases. Consequently, the court examined the nature of each removal to determine whether they constituted “collective” expulsions, that is, expulsions without a reasonable and objective examination of each individual case. Regarding the applicant who was removed after requesting asylum, the court observed that the authorities had refused to examine the merits of his application, and had simply removed him to Serbia, which amounted to a “collective” expulsion in nature, even if he was expelled on his own. As to the other two applicants, they had also been removed without an individual decision, leading the court to conclude that their expulsions had also been “collective”, in violation of Article 4 of Protocol No. 4.

Second, 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, leading to a risk of being applied arbitrarily. In that regard, the court referred to the previously mentioned CJEU case (C-808/18), in with the CJEU considered that this procedure did not comply with Article 6 of the recast Asylum Procedures Directive. Therefore, the court considered that the “embassy procedure” did not provide for “genuine and effective access to means of legal entry”. Given that this had been the only means of entry for those seeking international protection in Hungary, the lack of an individual expulsion decision could not be attributable to the applicants’ conduct.

Third, regarding the alleged violation of Article 3, the court reiterated that when an applicant is removed to a third country without a merits-based examination of their application, the removing State must assess whether there is a real risk of the individual being denied access to an adequate asylum procedure in that country. As Hungary failed to conduct such an assessment, it breached its procedural obligation under Article 3 of the Convention.

Fourth, regarding the alleged violation of Article 13, the court found that the national legislation provided no specific legal remedy to challenge removal under section 5(1b) of the State Border Act. The applicants’ attempt to contest the removal under the Police Act also proved ineffective. As to the possibility of filing a legal action with an administrative court, the court observed certain positive jurisprudential developments but found nothing in the Kúria’s decisions indicating that an affected migrant could effectively challenge a failure to examine their personal situation prior to their removal. Furthermore, removals under section 5(1b) were carried out immediately after the police authorities decided so. Thus, even if remedies existed, they could not prevent removal. Accordingly, there was a violation of Article 13 in conjunction with Article 4 of Protocol No. 4.

Finally, 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. It highlighted that tens of thousands of individuals had been removed from Hungary in the past few years (more than 150,000 in 2022) and while the provisions of the 2020 Transitional Act were no longer in force, Hungary had adopted a decree on 28 November 2024, together with the State Border Act, to uphold the same system of collective expulsions and denial of access to the asylum procedure.