In the case of H.Q. and Others v. Hungary (46084/21, 40185/22 and 53952/22, 24.6.2025), the ECtHR found violations of Articles 4 of Protocol No. 4 (prohibition of collective expulsion of aliens), as well as Articles 13 (right to an effective remedy) and 3 (prohibition of ill-treatment – procedural aspect) of the Convention, in respect of two Afghan nationals and one Syrian national who had applied for asylum in Hungary.

This judgment is only the last in a long series of Strasbourg and Luxembourg judgments dealing with the flaws of the Hungarian asylum system, especially the lack of access of asylum seekers to an effective asylum procedure. After the so-called “transit zone system” was found, notably in Ilias and Ahmed v. Hungary, Shahzad v. Hungary, S.S. and Others v. Hungary and European Commission v. Hungary (Reception of applicants for international protection) (C-808/18) to breach the Convention and Union law, the Hungarian authorities replaced it by the so-called “embassy procedure”, which is at the heart of H.Q. and Others. According to this procedure, an international-protection procedure could be initiated only after a successful preliminary procedure at the Hungarian embassy in Serbia or Ukraine. A failure to proceed in this way entailed as a consequence the automatic removal of the asylum seeker concerned from Hungary to Serbia without examination of the individual circumstances.

The Hungarian embassy procedure was already examined by the CJEU in European Commission v. Hungary (Procedure for international protection) (C-823/21) and found to be in breach of Articles 6 (access to the procedure) and 9 (right to remain in the Member State pending the examination of the application) of the Asylum Procedures Directive (2013/32) as well as of Article 18 of the EU-Charter (right to asylum).

In dealing with H.Q and Others, the ECtHR relied on European Commission v. Hungary (Procedure for international protection) and, in substance, shared its conclusions, but with some differences, as set out below.

The fundamental rights dimension

As already noted in a previous post concerning European Commission v. Hungary (Procedure for international protection), one key difference lies in the fact that, by being addressed by the ECtHR as matters of fundamental rights, the issues raised in H.Q. and Others v. Hungary are given a different character and greater significance: they are not merely breaches of secondary European law, but violations of fundamental rights. This imparts greater authority and urgency to the obligations that must be fulfilled.

Access to international protection

Yet, as regards access to international protection, the outcome of the analysis by the ECtHR is rather similar to the one by the CJEU, though with some specifications and particularities.

In European Commission v. Hungary (Procedure for international protection), the CJEU requires an “effective, easy and rapid access to the procedure for granting international protection” (§§ 46 and 51) and considers the embassy procedure to be “a manifestly disproportionate interference with the right of those persons to make an application for international protection upon their arrival at a Hungarian border, as enshrined in Article 6 of Directive 2013/32, and their right to be able, in principle, to remain in the territory of that Member State during the examination of their application, in accordance with Article 9(1) of that directive.” (§ 59)

The access issue is addressed by the ECtHR under Article 4 of Protocol No 4 (prohibition of collective expulsion), which requires States to ensure access to legal entry and to secure the right to request international protection in a genuine and effective manner, particularly protection requested on the basis of Article 3 of the Convention (§§ 120-121). In this connection, the ECtHR also notes:

“The “embassy procedure” – from the time when a declaration of intent is submitted to the time when a decision on entry is issued – is not clearly regulated and lacks adequate safeguards, leading to uncertainty, a lack of transparency and, most importantly, the risk of arbitrary application. … The Court is particularly struck by the fact that there appears to be no requirement in domestic law for a decision refusing entry to Hungary in order to apply for asylum to be reasoned, and that the factors intended to determine the outcome of the process remain unclear.” (§ 122, emphasis added) Moreover, the ECtHR reiterates that access to means of legal entry should in principle be provided at border crossings for those arriving at the border (§ 123).

Suspensive effect

As regards the right for an applicant for international protection to remain in the territory of a Member State during the examination of his or her application (Art. 9 of the Asylum Procedures Directive), a similar right is in effect being acknowledged under Article 13 of the Convention which states the right to an effective legal remedy and requires, when, as in H.Q. and Others, there is a risk of expulsion and ill-treatment in the country of destination, that remedy to have automatic suspensive effect (§ 158).

Non-refoulement

Unlike the CJEU, the ECtHR in H.Q. and Others also addresses the principle of non-refoulement. It arose in respect of two of the applicants, who complained that they had been expelled to Serbia without any assessment of the consequences of their removal for their right enshrined in Article 3 (prohibition of ill-treatment), in breach of the procedural obligations under this provision.

The ECtHR found a violation of Article 3, in its procedural aspect. It 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, regardless of whether that third country is a State Party to the Convention, it is the duty of the removing State to examine thoroughly the question of whether there is 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 (§ 136).

Article 46

Last but not least, in view of the large scale of the shortcomings of the Hungarian asylum procedure, and given that the violations found stem directly from the application of the domestic legislation, the ECtHR, in a rather exceptional move, decided to make an indication under Article 46 of the Convention (binding force and execution of judgments) and to stress “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.” (§ 164) It will be for the Committee of Ministers of the Council of Europe, acting under Article 46 of the Convention, to step up the pressure on the Hungarian authorities accordingly.

Faced with a similar failure by Hungary to implement European Commission v. Hungary (Reception of applicants for international protection), the European Commission too decided to increase the pressure on Hungary by instituting infringement proceedings under Article 258 TFEU, which gave rise to European Commission v Hungary (Reception of applicants for international protection II). In this judgment, the CJEU ordered Hungary to pay a fine of 200 million euros, in addition to a daily penalty payment of 1 million euros, owing to the systematic breach of EU legislation concerning the reception of applicants for international protection.

It remains to be seen whether in the end financial sanctions are more effective than a procedure before the Committee of Ministers of the Council of Europe in disciplining a recalcitrant State. What is sure, though, is that both protection systems ultimately rely on respect for the rule of law and that no procedure can compensate for the lack of such respect in the long run. Upholding this respect is therefore a major challenge for the protection of fundamental rights in the years to come.

Conclusion

Both European Courts appear united in fighting for an effective access to procedures of international protection. In spite of the different legal bases relied on, they broadly agree on the substance of the requirements which this access entails. Yet, by examining the facts through the lens of fundamental rights, the Strasbourg judgments provide added value by underscoring the particular significance of the issues at stake, not only for the individuals, but also for the legal systems concerned. This alone should be sufficient reason for national judges and prosecutors to take both approaches into account.