ECtHR - Alhowais v. Hungary, Application No. 59435/17, 02/02/2023

Facts:

The applicant, a Syrian national, attempted to cross the Tisza River from Serbia to Hungary in June 2016 with his brother (F) and others, facilitated by a smuggler. The boat could not reach the shore due to dense reeds, so some individuals attempted to swim. Hungarian Police on the shore shouted for them to return to Serbia. Several of the individuals alleged that police threw stones, used tear gas and released police dogs, which prompted the applicant and F to attempt to swim back. F disappeared in the water, prompting a search that found his body two days later. The applicant claimed they tried to pass children to the police, who responded by releasing tear gas. Serbian authorities had questioned the applicant regarding human trafficking allegations and shared this information with Hungarian authorities.

Serbian and Hungarian border control authorities exchanged summaries of the applicant’s statements. Hungarian authorities stressed the risks of the river crossing and proposed enhanced border control measures.

Despite officers denying the use of force, the Border Control Department recommended investigating potential misconduct. A criminal complaint was filed against unknown officers for alleged ill-treatment. Further questioning of passengers was hindered as some had left Hungary.

The applicant’s lawyer’s request for further investigation and questioning of officers was denied. A subsequent complaint alleged an inappropriate standard of proof. The Chief Prosecutor’s Office emphasised that witness testimonies did not support the applicant’s version of events and dismissed the complaint.

The applicant alleged to the ECtHR that no effective investigation had been carried out into F’s death or into the ill-treatment he had suffered, resulting in a breach of Articles 2 and 3 of the European Convention on Human Rights.

Decision & reasoning:

The Court considered the procedural aspects of Articles 2 and 3 together. It emphasised that, even in cases of non-intentional interference with the right to life or physical integrity, exceptional circumstances may require an effective investigation under Article 2. Here the procedural obligation required a criminal investigation into F’s death. The Court rejected the government’s argument regarding the admissibility of the claim due to lack of exhaustion of domestic remedies, stating that the criminal-law proceedings initiated by the applicant were appropriate.

In considering the substantive aspect of Article 2, the Court considered the applicant’s claim that the death resulted from the Hungarian authorities’ actions during the operation. It rejected the Government’s assertion that F’s death was not attributable to them, stating that the positive obligations under Article 2 extended beyond intentional acts. The Court highlighted the authorities’ awareness of the dangerous river crossing, the routine nature of the operation, and the failure to take adequate measures to minimise the risk to life in finding the State responsible. The absence of a clear plan in the rescue operation also contributed to a failure to protect F’s life.

The Court finally considered the substantive aspect of Article 3 and the applicant’s argument that ill-treatment by police constituted a violation. The Court rejected the Government’s objection, noting that the applicant’s complaint focused on the use of force rather than the psychological effects of the treatment. However, due to a lack of conclusive evidence from an effective investigation, the Court could not establish a violation of Article 3 in its substantive aspect.

Outcome:

The Court unanimously decided as follows:

1.      Held that there was a violation of the procedural aspect of Articles 2 and 3.

2.      Held that there was a violation of the substantive aspect of Article 2

3.      Held that there was no violation of the substantive aspect of Article 3

The Court awarded the applicant EUR 34,000 for non-pecuniary damage and granted the requested EUR 5,600 for costs and expenses.

Observations/comments:

This summary was written by Rachel Murphy in the context of her participation in the Human Rights and Migration Law Clinic of the University of Gent.

Other sources:

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Hungarian Government on the Visit to Hungary Carried Out from 20 to 26 October 2017, 18 September 2018, CPT/Inf (2018) 42.

Council of Europe Commissioner for Human Rights, Report Following Her Visit to Hungary from 4 to 8 February 2019, 21 May 2019, CommDH(2019)13.

United Nations Human Rights Committee, Concluding Observations on the Sixth Periodic Report of Hungary, 9 May 2018, CCPR/C/HUN/CO/6.

United Nations Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Eighteenth to Twenty-Fifth Periodic Reports of Hungary, 6 June 2019, CERD/C/HUN/CO/18-25.