By: Christina Bradic

Impunity Watch News Staff Writer

STRASBOURG, France – On February 22, 2024, the European Court of Human Rights (ECHR) ruled that Hungary violated Article 5 § 1 of the European Convention of Human Rights, the right to liberty and security, by detaining two child migrants applying for asylum.

The case, M.S. and S.B v. Hungary, involves two of 13 migrant children who were detained in Hungary in 2016. The minors were discovered during an inspection by the Hungarian Helsinki Committee, a local NGO human rights organization and a member of the International Helsinki Federation for Human Rights and the European Council on Refugees and Exiles. The organization’s concern was that the children were in prison-like facilities rather than the Children’s Home for Unaccompanied Minors in the town of Fót.

Both children were 16 years old. The first child, identified as M.H., was apprehended in May 2016 while illegally crossing the border on a route from Afghanistan into Hungary. He said he wanted to seek asylum and was fleeing from the Taliban. In the first interview, he lied about his age, fearing he would be separated from the community he was travelling with. Three days later, he produced his Afghan identity papers showing he was a minor. Authorities did not conduct translation or a physical age assessment. After reporting his age as 20 during a government interview, authorities told M.H. that he would have to cover costs of a physical exam to determine his age. He was detained for three months.

The second minor involved in the case, S.B., was also detained after illegally crossing the border. He was accompanied by a cousin, also a minor, and fled after his father and two cousins were killed by terrorist groups, who then threatened other family members. Authorities deemed him an adult and, like M.H., said he would be responsible for the costs for a physical assessment to determine his age. A few weeks into his detention he said he would pay the cost but was told the exam was not possible. He was detained for two months.

In both cases, the Kiskunhalas District Court in Hungary supported the continued detentions under the Asylum Act, specifically II (1)(d), which states that “the person seeking recognition in the absence of authentic documents suitable for identification shall be required to make best efforts for the clarification of his/her identity, thus, in particular, to contact his/her family members, relatives, legal representative, and – in the event of non-state or non-state linked actors of persecution – with the authorities of his/her country of origin.”

In ruling against Hungary, the ECHR said, “the court finds it particularly concerning that the domestic authorities, instead of giving the benefit of the doubt to the applicants and considering their best interests … presumed them to be adults simply on the account of their having changed their statements as to their age. They moreover placed the burden of rebutting that presumption on them … in disregard of the fact that for detained asylum-seekers, let alone children, obtaining the necessary evidence to prove their age could be a challenging and potentially even impossible task…”

In late January, the ECHR heard a similar case involving a youth migrant from Iraq, who Hungarian authorities forcibly deported back into Serbia. In that case, the court said, “the court cannot ignore that at the time of his removal, the applicant was an unaccompanied minor, and therefore in a situation of extreme vulnerability,” it added, noting that the age of asylum seekers “should take precedence” over the child’s status as an illegal migrant.

While refugee advocates and NGOs applaud the court’s decisions, policy in Hungary regarding unaccompanied minors continues to be scrutinized. This includes recent passage of the Act on the Entry and Stay of Third Country Nationals, a law that classifies migrants over 16 as adults and declares detention lawful.

For further information, please see:

European Court on Human Rights – Case of M.H. and S.B. v. Hungary – 22 Feb 2024

European Interest – The European Court of Human Rights ruled against Hungary for arbitrarily detaining unaccompanied children – 29 Feb 2024

Hungarian Helsinki Committee – The European Court of Human Rights condemns Hungary again, this time for the push-back of an asylum-seeking child – 23 Jan 2024

Jurist – ECHR rules Hungary authorities arbitrarily detained minors – 23 Feb 2024

By: Johannah Brown

 Impunity Watch News Staff Writer

THE HAGUE, The Netherlands – On February 2, 2024, the International Court of Justice (ICJ) issued a preliminary ruling in the Ukraine vs. Russian Federation regarding the interpretation, application, and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). The Court ruled that it has jurisdiction to rule on whether or not Ukraine has committed genocide in the Donbas but ruled against Ukraine’s claim that Russia violated the terms of the Genocide Convention.  

Ukraine’s application to the ICJ, filed on February 26, 2022, stemmed directly from Russia’s actions in the eastern regions of Ukraine. Armed conflict began there in 2014 between Ukrainian forces and entities linked to Russia that refer to themselves as the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR). On February 21, 2022, Vladimir Putin formally recognized the regions as independent states, justifying the move on claims that Ukraine was committing genocide. The following day Russia signed treaties with the DPR and LPR and two days later announced it would conduct a “special military operation” with the purpose of protecting the population from genocide.

In its filing, Ukraine, joined by 33 states as intervenors, accused Russia of violating the Article I and IV of the Genocide Convention by wrongly justifying its recognition of DPR and LPR and subsequent invasion on claims that Ukraine was committing genocide in the region.  In order to prove that Russia has acted in bad faith, Ukraine had also asked the court to determine if Ukraine has committed genocide.  

The Court first addressed the request for a determination by the Court that Ukraine did not commit genocide. Russia objected on several procedural grounds and the court rejected all of them.  Citing prior jurisprudence, it held that the ICJ had the ability to issue a declaratory judgement “to ensure recognition of a situation at law, once and for all and with binding force as between the parties, so that the legal position thus established cannot again be called in question…”

In addressing whether Russia violated Article I and IV of the Genocide Convention, the Court ruled that abusively invoking the Genocide Convention is not a violation of the obligations therein. The Court held that the actions taken by Russia based on the alleged abusive use of the Convention (falsely claiming prevention of genocide to justify actions) do not fall under the scope or ratione materia of the Convention but would be, if proven, a matter of violation of international law and not governed by the Genocide Convention. 

The case will go forward on the issue of whether or not Ukraine has committed genocide.

For further information, please see:

International Court of Justice – Judgement Ukraine v. Russian Federation in Allegations of Genocide – 02 Feb. 2024.

International Court of Justice – Summary of the Judgement of Ukraine v. Russian Federation in Allegations of Genocide – 02 Feb. 2024.

Jurist – ICJ Rules that it has jurisdiction over some of Ukraine’s genocide case against Russia – 03 Feb. 2024.

Lawfare – ICJ issues Judgment on Preliminary Objections in Ukraine v. Russia – 06 Feb. 2024.

United Nations – Convention on the Prevention and Punishment of the Crime of Genocide – 1951.