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