Strasbourg Observers

H.M. and Others v. Hungary: Immigration Detention, Burden of Proof and Principle of Necessity: Weakening Safeguards at the Borders?

August 19, 2022

By Lorenzo Bernardini


How high is the burden of proof on the foreigner who claims to have suffered degrading treatments? In which cases may the authorities adopt coercive methods against a foreigner already detained? The European Court of Human Rights (‘the Court’, ‘the ECtHR’ or ‘the Strasbourg Court’) was called upon to answer these questions in a recent case (H.M. and Others v. Hungary) concerning, once again, the Hungarian foreigners’ detention policies within transit zones, at the border with Serbia. Indeed, following R.R. and Others v. Hungary, and M.B.K. v. Hungary (Committee), for the third time in just over a year, the Strasbourg Court again acknowledges a violation of Articles 3 and 5 ECHR vis-à-vis a family of asylum seekers.

Overview of the facts

A six-member family (father, mother and four minors), the applicants arrived in Hungary at Tompa transit zone (on the border of Serbia) on 3rd April 2017, after a long travel from Iraq, their country of origin. At their arrival, they immediately submitted asylum requests, thus gaining the status of ‘applicants for international protection’ (§ 6).

In the meanwhile, the applicants stayed within the family section (i.e., a container) of the transit zone’s facilities, under the constant and strict control of borders police, to the point that they cannot go out autonomously, except for certain appointments (e.g. medical visits). They made the authorities aware of their status of extremely vulnerable persons. In particular, the applicant father alleged to be a torture survivor but, albeit psychological support was asked, no treatment was arranged for him. Secondly, the authorities were informed about the situation of the applicant mother, who was pregnant at the time, and experienced complications – accordingly, she received medical attention several times, since her pregnancy was deemed to be of high-risk (§ 7). The needs of the four children were also revealed to the Hungarian authorities (§ 6).

Moreover, the applicant father reported that on 13th April 2017, he was the subject of a controversial incident. He was allowed to go to hospital with his wife—on the occasion of a medical examination—with handcuffs on his wrists and tied to a leash, according to the witness of one of his children. He also remained handcuffed during the hospital check-up. Then, on 23rd June 2017, the applicant father again accompanied his wife to the hospital, again under the control of public security officers; this time he was not handcuffed. He remained, however, the whole night inside the hospital ‘guarded by police officers’ (§ 8).

Finally, on 24th August 2017, the IAO granted subsidiary protection to the applicants, who were transferred from the Tompa transit zone to an ‘open’ reception centre (§ 6). Hence, the period of time actually spent in Tompa amounted to more than four months.

Main findings of the ECtHR

The Court’s unanimous decision addressed two features: (a) the breach of Article 3 ECHR in relation to the conditions of detention the applicants had endured; (b) the violation of Article 5(1)(f) ECHR (unlawfulness of detention) in conjunction with Article 5(4) ECHR (lack of habeas corpus guarantees).

First, the Court scrutinises the complaints about the family’s detention conditions. Given the peculiarity of the situations to be considered, the Court began its reasoning by focusing on the situation of the children. After recalling the leading case Khlaifia and Others v. Italy, and the aforementioned R.R. and Others, the Strasbourg Court compared the Röszke transit area—the subject of the last-mentioned judgment—with that of Tompa. It concluded that the conditions of detention are ‘very similar’, the two locations having ‘essentially the same design and the same services’ (§ 17). The facts are therefore analogous, and the Court saw no reason to conclude otherwise—and thus find a violation of Article 3 ECHR—, also with reference to the passage of time which is a particularly relevant factor when dealing with children placed in administrative detention. Interestingly, this part of the reasoning is identical in wording to M.B.K. and Others (§ 6).

The Hungarian government had also subjected the mother to inhuman and degrading treatment, the Court held, in the light of her ‘high-risk’ pregnancy, the repeated complications relating to it and the various ‘limitations’ suffered during her confinement. Situations which had caused her anxiety and psychological suffering and which, given her degree of vulnerability, exceeded the minimum threshold of severity required by Article 3 ECHR. The fact that she had received the ‘necessary medical attention’ does not change, in the view of the ECtHR, the finding of a violation of the aforementioned provision (§ 18).

Finally, the Court addressed the situation of the applicant father, in the light of his alleged vulnerability. The ECtHR was ready to accept that he was ‘not more vulnerable’ than other adult asylum seekers in the transit zone. Moreover, it found no evidence that he asked for psychiatric support due to his mental health problems. Differently, as to the use of handcuffs and leash on one occasion, the Court deemed that the behaviour of the authorities gave rise to a breach of Article 3 ECHR. Here, the burden of proof is met. On the one hand, the ECtHR acknowledged that it was common practice for guards in the transit zone to escort asylum-seekers and, on the other hand, that it would be difficult for the applicant to produce evidence of the ill-treatment suffered. Also, the Court emphasised that the Hungarian Government did not specifically contest these allegations (§ 21).

After recalling its established case-law on the violation of Article 3 ECHR when police activities are at issue—in particular when instruments of coercion such as handcuffs are used (see Svinarenko and Slyadnev, § 117 and Bouyid, §100)—the Court emphasised inter alia that it is essential, in every case, to ascertain the necessity of such an afflictive intervention against an individual, especially when it is carried out by ‘law-enforcement officers’ (§§ 22-23). Bearing in mind that the detention suffered by the applicants did not comply with the canon of ‘lawfulness’ carved out in Article 5 ECHR—being unsupported by a formal measure, and because of the lack of express justification by the respondent State for the use of handcuffs and a leash in the present case—it was clear, in the Court’s eyes, that such coercive measures had not been taken in the context of a ‘lawful arrest’ (§ 24).

Moreover, there was no evidence from the dossier that the migrant was dangerous. Also, as to the timing of the handcuffing (restraints were used on only one occasion and for a short time), the ECtHR reiterated that the ‘chronological brevity’ is not relevant in this regard (Pranjić-M-Lukić v. Bosnia and Herzegovina, § 77). Here, the focus lies in the principle of necessity, which was therefore not satisfied in the present case (§ 25).

A list of a number of aggravating circumstances concluded the ECtHR judgment: (i) the presence of other persons during the handcuffing (e.g. medical staff), which probably caused feelings of humiliation in the applicant; (ii) the detriment to the parental image in front of the children, caused by the ‘public nature’ of the treatment suffered.

In conclusion, the ECtHR accepted that a breach of Article 3 ECHR in respect of the applicant father equally occurred in the present case.

Briefly, concerning the violation of Article 5(1)(f) and (4) ECHR, it was sufficient for the Court to recall R.R. and Others (§§ 87-92; 97-99), in that neither a legal basis for detention existed at the time within domestic law, nor a formal document complete with reasons for the detention had been issued vis-à-vis the applicants, nor, finally, an effective remedy had been at their disposal to challenge the lawfulness of the custodial measure. Accordingly, a blatant violation of those provisions occurred in the material case.


Onus probandi and detained migrants: critical remarks.

In H.M. and Others, the Court did not find it substantiated that the applicant had asked for psychological support to the border’s authorities. This aspect of the line of reasoning calls into question the issue of onus probandi before the ECtHR, which should be weighed in the light of the ‘specificity of the facts, the nature of the allegation made and the Convention right at stake’ (N.D. and N.T. v. Spain, § 85). Indeed, it could be very complex for migrants to prove that they have suffered a violation of their fundamental rights. This holds true a fortiori when it comes to assessing the situation of migrants held in detention within transit zones facilities.

Paragraph 20 of the judgment reads as follows: ‘as regards his alleged mental health problems which were related to his treatment in Iraq, it has not been shown that the first applicant sought any assistance in this connection from the staff in the transit zone’ (emphasis added). Evidently, the burden of proof is totally reversed to the disadvantage of the migrant concerned.

It is the individual who should prove, the Court seemed to suggest, that a request for psychological assistance had been lodged. Yet, it is apparent that this circumstance may constitute a probatio diabolica for the applicant concerned – how could the foreigner produce concrete evidence that he requested for assistance? In this regard, the ECtHR should have followed the principles evoked in G.B. and Others v. Turkey – a shift of the burden of proof might be permissible from the individual to the respondent Government, especially ‘where the Government alone have access to information capable of corroborating or refuting allegations’ (ibid., § 115). In the material case, not only was the applicant father in an empirically difficult situation to produce the necessary documents (eventually owned by the borders authorities), but it is also noteworthy that the respondent Government had never expressly denied such an allegation. Thus, the ECtHR should have held this circumstance to be proved.

The argument backed by the ECtHR with regard to burden of proof was indeed contradictory not only in parte qua. Astonishingly, in the next paragraph, it made a U-turn in its line of reasoning and re-established the standard rules on onus probandi, with reference to other degrading treatments suffered by the applicant father. With regard to the latter, in fact, after recalling the practices in force in the transit area and after noting that the Government had contended nothing to challenge these allegations, the Court set forth that: ‘taking into account the fact that the first applicant could not be expected to provide material proof of handcuffs and leash being used on him, the Court accepts his statement to be sufficiently substantiated’ (§ 21). The question remains as to why the ECtHR used different evidentiary standards for two circumstances—the request for psychological assistance and the handcuffing suffered—equivalently challenging to prove in rerum natura by the applicant. Finally, it might be unconvincing that, given his vulnerability, the foreigner never asked to receive psychiatric support in the face of his past illnesses (and the torture he suffered in Iraq).

A twin-track assessment of the principle of necessity?

With reference to Article 5 ECHR, a very brief consideration must be made with regard to respect for the principle of necessity. Within the ECtHR’s case-law, the assessment of the latter is not required with regard to immigration detention (see Saadi [GC], §§ 72-73). Since all the other forms of deprivation of liberty shall be necessary in concreto under Article 5(a)-(e) ECHR, a lower standard has been de facto created vis-à-vis migrants, with the paradox that an ‘unnecessary’ detention can be considered legitimate in their regard, not only under Article 5(1)(f) ECHR but also under Article 3 ECHR, since it does not in itself constitute ‘inhuman’ and ‘degrading’ treatment either.

The recent decision S.Z. v. Greece may indirectly prove this approach – the Court, while having doubts as to the necessity in concreto of the detention measure imposed on the migrant (§ 58, in fine), found a violation of Article 3 ECHR (only) in relation to the ill-suitable conditions of detention suffered by the applicant. The lack of necessity of the measure concerned was not deemed relevant in defining the latter as an inhuman or degrading treatment.

That being said, the notion of ‘necessity’ is evoked several times in H.M. and Others (§§ 22, 23 and 25). The Court reiterates that the use of afflictive measures by the police must be essential in concreto, on pain of degrading the human dignity of the person concerned (see Bouyid v. Belgium [GC], § 100), notwithstanding the impact that such a measure may have had on him/her (see Pranjić-M-Lukić v. Bosnia and Herzegovina, § 73).

Here, the line of reasoning of the ECtHR might reveal its inconsistency. If my reading is correct, handcuffing a person and detaining a foreigner are de facto analogous measures, depriving the individual of his/her personal freedom. Yet, the Court is ready to assess the compliance with the necessity principle by national authorities only with regard to handcuffing (as per Article 3 ECHR) and not with regard to detention (as per Articles 5(1)(f) and 3 ECHR).

In other words – administrative detention of foreigners is in principle compliant with both Articles 3 and Article 5 ECHR, in spite of its alleged necessity in concreto. Differently, the handcuffing imposed on them must comply with the ground of necessity as per Article 3 ECHR. Such an approach proves to be nuanced, as it could generate situations of difficult legal definition.

It is worth mentioning paragraph 23 of the judgment: ‘where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention’ (emphasis added).

It is odd, however, that immigration detention measures can be imposed without being necessary in the material case, this circumstance not leading per se to a violation of Article 3 ECHR. Thus, the aforementioned paragraph leads to the—disputable—conclusion that a deprivation of liberty vis-à-vis foreigners may also not meet the ground of necessity ab origine, while the further use of force—when not necessary—could raise criticism under Article 3 ECHR.


Albeit the judgment found a violation of Articles 3 and 5 ECHR vis-à-vis the applicants, certain criticism should be voiced. In particular, the burden of proof required on the applicant father as per Article 3 ECHR seems worryingly high – to prove the request for psychiatric support could represent a too weighty responsibility on his part. It is worth recalling that the issue of onus probandi proves to be central in immigration detention cases. It is apparent that an excessively high threshold required to the applicant could hinder the effectiveness of the protection afforded by the ECHR, as happened in H.M. and Others when the allegations of the applicant father in parte qua were set aside very briefly.

Additionally, the judgment provides the occasion to reflect upon the relevance of the principle of necessity under Articles 3 and 5 ECHR. The framework does not seem coherent – an ‘unnecessary’ detention, which is allowed as per Article 5(1)(f) ECHR, does not analogously raise concerns per se under Article 3 ECHR. Conversely, an unnecessary handcuffing could constitute, in itself, a breach of the latter provision. This approach should be revisited for the sake of clarity and consistency.

Finally, it is noteworthy that H.M. and Others could not be the last judgment rendered by the ECtHR concerning detention of foreigners within transit zones facilities, between Hungary and Serbia – a similar case is currently pending before the Court and the findings should not be different. As the Hungarian Helsinki Committee has reported, the applicants faced severe traumas during transit zones detention. And many others are in the same situation.

In brief, the findings of H.M. and Others could be applauded, as they may strengthen the acknowledgement of fundamental rights vis-à-vis migrants in Europe, held in transit zones. Yet, some criticisms, which could thwart the protection afforded by the Convention to individuals, ought to be fixed in the following decisions.

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