ECTHR, 22 September 2022, H.K. v. Hungary, appl. No. 18531/17 & 13 October 2022, T.Z. and Others v. Poland, appl. No. 41764/17


You shall not pass! Poland and Hungary and the routine of collective expulsions at their borders

Collective Expulsions of Aliens – Poland – Hungary – Rule of Law – Refoulement.

With the judgments delivered in H.K. v. Hungary and T.Z. and Others v. Poland the European Court of Human Rights has found, once again, a violation of the prohibition of collective expulsions of aliens, established under Article 4, Protocol No. 4, of the European Convention on Human Rights. Such a breach of the Convention by Poland and Hungary does not appear to be purely episodic. Rather, as acknowledged by the Court itself, it represents a systemic practice, implemented according to recurring and precise patterns. Collective expulsions and denial of asylum procedures at the Polish and Hungarian borders, thus, have turned into a routine and a “normal” form of migration management.

Francesco Luigi Gatta


Within a few weeks in September and October 2022 the European Court of Human Rights (“ECtHR” or “the Court”), sitting as a Committee, delivered two judgments concerning systemic practices of collective expulsions by Poland and Hungary. Since the two cases present a number of similarities, from both a legal and factual point of view, it is worth examining them together.

A. Facts and Ruling

1. Facts

H.K. v. Hungary (Appl. No. 18531/27)

H.K. is an Iranian national who left his country of origin and arrived in Serbia in 2016. He then tried to enter Hungary and was put on the “waiting list” of the migrants being admitted as a daily quota to a transit zone located in the national territory. Being recorded as no. 102 on the list, he repeatedly tried to irregularly enter Hungary instead of waiting for his turn, but was summarily removed back to Serbia every time, without any decision or proceedings. In a further attempt, he eventually managed to enter the Hungarian territory, but was later apprehended by police officers, handcuffed, put on a van and escorted to the border, where he was expelled to Serbia without any information or documents.

T.Z. And Others v. Poland (Appl. No. 41764/17)

The applicants are a family of Russian nationals: mother, father and four children. Between August 2016 and March 2017, they repeatedly tried (on 22 occasions) to apply for asylum at the Polish-Belarusian border of Terespol. They clearly stated – also in writing – their intention to lodge an asylum application and pointed out the fear for their safety if returned to Belarus and, by way of chain refoulement, to Russia, where they suffered persecution due to their Chechen origin. Each time the applicants presented themselves at the border crossing point, they were turned away on the basis of administrative decisions stating that they did not have any documents authorizing their entry into Poland as they were “trying to emigrate for economic reasons” (§ 3). In June 2017, the family was eventually admitted into the Polish territory due to the ECtHR’s interim measure, pursuant to Rule 39 of the Rules of the Court, ordering Poland not to remove the applicants to Belarus. The applicants finally applied for asylum, but the competent Polish authorities refused to grant international protection.

2. Complaints and Decisions of the Court

Applicants in both cases invoked a violation of the prohibition of collective expulsions of aliens (Article 4, Protocol No. 4, ECHR) and of the right to an effective remedy (Article 13 ECHR) in relation to their continuous pushbacks at the borders, in breach of procedural guarantees and in the absence of any remedies. In T.Z. and Others v. Poland, moreover, the family with children also invoked a violation of the prohibition of torture, inhuman and degrading treatment (Article 3 ECHR) due to their removal to Belarus coupled with the impossibility of lodging an asylum application. In both cases the Court unanimously declared a violation of all the invoked provisions of the Convention.

B. Discussion

1. Poland & Hungary: European “Champions” of Collective Expulsions

Both the applications brought against Poland and Hungary have been dealt with in the ECtHR by a Committee of three judges. Such a judicial formation is employed when a “case is considered to be a repetitive case, which raises an issue on which the Court has already ruled in a number of cases”. Therefore, put differently: that Poland and Hungary expel aliens collectively at their borders is no longer new, it is now a fact. They simply do it, and they do it systematically.

Looking at the applications in which, so far, the Court has declared a violation of Article 4, Protocol No. 4, ECHR, Poland now takes the lead in the Council of Europe (five violations in total: M.K. and Others; D.A. and Others; A.B. and Others; A.I. and Others; and T.Z. and Others). Hungary (two violations) follows immediately after Italy and Russia (with three violations each).

The Polish-Hungarian duo is probably destined to consolidate its “leadership” in the field of collective expulsions, since many other additional applications are pending before the Court. And the Court is now procedurally treating these cases as repetitive ones, which are linked with violations “under well-established case-law”.

In general, this Polish-Hungarian case-law is rather recent. It has been developing between 2020 and 2022, and appears as characterized by some consistent and recurring patterns. Applications have been lodged in the first half of 2017, and concern pushbacks performed during 2016-2017, that is, the period in which migratory flows were particularly intense along the so-called Balkan route. That was a period of legal-political tensions within the EU: the EU-Turkey Statement had just been implemented; the relocation mechanism had triggered many controversies, leading, in particular, to a “judicial saga” whose protagonists, Hungary and Poland, had fiercely – but unsuccessfully – challenged their solidarity obligations before the Court of Justice of the EU (“CJEU”). Both countries, moreover, were (and still are) experiencing an alarming phenomenon of Rule of law backsliding, with “reforms” and judicial decisions that have seriously compromised the domestic systems of rights and freedoms and that has been worsening ever since (see, for example, the recent Resolution of the European parliament of 15 September 2022 on “the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded”).

Against this background, Poland and Hungary have implemented an openly unlawful policy of collective expulsions of migrants: asylum requests are not registered and applicants are removed to non-EU countries: in the former case towards Belarus (which is not even a member of the Council of Europe, nor a Party to the ECHR), and towards Serbia in the latter. This practice has been widely documented by numerous international observers and human rights actors. Such a list also includes, since 2020-2021, a growing number of judgments by the Court of Strasbourg.

a) Collective expulsions in Poland

More specifically, with regard to Poland, the case-law on collective expulsions mainly concerns Russian nationals of Chechen origin (often families with children), who have been systematically pushed back at the Polish-Belarusian border of Terespol. Violations of Article 4, Protocol No. 4, ECHR have been associated with those of Article 3, since the Polish border authorities not only expelled applicants without any procedural guarantees, but also refused to register asylum applications. And sometimes they did so even openly disregarding the ECtHR’s interim measures ordered ex Rule 39 of the Rules of Court.

This line of case-law was inaugurated with the landmark judgment delivered in 2020 in the case M.K. and Others v. Poland. Here not only did the Court declare the first violation of the prohibition of collective expulsions with regard to Poland, but it also, and especially, certified “the existence of a systemic practice of misrepresenting the statements given by asylum-seekers … at the border checkpoints between Poland and Belarus” (§ 174); further explaining that “the applicants’ cases constituted an exemplification of a wider State policy of refusing entry to foreigners coming from Belarus” (§ 208); and thus concluding in the sense of “the existence of a wider State policy of not accepting for review applications for international protection and of returning individuals seeking such protection to Belarus” (§ 209).

In the subsequent judgment in D.A. and Others v. Poland delivered in 2021, the Court reiterated the same conclusions, unanimously finding a violation of the prohibition of collective expulsions. This time the applicants were Syrian nationals.

b) Collective expulsions in Hungary

As regards Hungary, the case-law on collective expulsions concerns the transit zones of Röszke and Tompa, located at the borders with Serbia. These are designed as “waiting areas” and filtering structures, where asylum seekers are detained and kept under control before either being admitted to the national territory (rarely) or being removed to Serbia (frequently). Hungarian transit zones have been initially addressed in a case-law concerning refoulement to Serbia and deprivation of liberty, being thus examined under Articles 3 and 5 ECHR. With regard to the latter profile, interestingly, both European courts (and both in the highest judicial formation of Grand Chamber) have addressed the issue: while the ECtHR in Ilias and Ahmed v. Hungary excluded the applicability of Article 5, thereby considering that the applicants kept in the transit zone were not in detention, the Court of Justice in FMS and Others ruled that the stay in the very same transit zone amounts to a deprivation of liberty.

As to Article 3 and the possibility of requesting asylum, the CJEU, in Commission v. Hungary, in ruling on the compatibility with EU Law of the border procedures applied in transit zones, has concluded in the sense of “a consistent and generalised administrative practice of … limiting access to the transit zones of Röszke and Tompa so systematically and drastically that third-country nationals … in practice were confronted with the virtual impossibility of making an application for international protection in Hungary” (§ 118). Similarly, the Commissioner for Human Rights of the Council of Europe has recently stressed that access to asylum and to any form of international protection in Hungary has become virtually impossible due to multiple measures taken by the government since 2015.

With regard to collective expulsions, the leading case is represented by Shahzad v. Hungary, decided in 2021, which marked the first violation of Article 4, Protocol No. 4 on the part of Hungary. The case concerned the denial of access to an asylum procedure and the forced removal of a Pakistani national by Hungarian police officers. In addition to the prohibition of collective expulsion, the ECtHR unanimously found a violation of the right to an effective remedy under Article 13 ECHR.

2. Collective expulsions under “well-established case-law”

In 2022 the Court found additional violations of the prohibition of collective expulsions. In T.Z. and Others v. Poland the violation is declared on the basis of “a well-established case-law”. The reference is to the judgments delivered in M.K. and Others and D.A. and Others. What is relevant of those cases, in particular, is that the ECtHR had applied the test of the “own culpable conduct”, previously coined by the Grand Chamber in N.D. & N.T. v. Spain: that is an exception, according to which, a collective expulsion by a State may be “excused” if the expelled aliens have tried to irregularly and violently enter the State’s territory, without making use of available means of legal entry. In all the Polish cases, contrary to N.D. & N.T., the Court specifically highlighted the applicant’s irreprehensible conduct: they attempted to enter the territory in a legal manner, orderly presenting themselves at the official border checkpoint, without any clandestine or aggressive behavior, and subjecting themselves to the prescribed border checks and procedures. The exception of the own culpable conduct, thus, does not apply, and the collective expulsion is considered inexcusable.

In H.K. v. Hungary, similarly, the violation of Article 4, Protocol No. 4 is declared by essentially recalling the judgment in Shahzad. In that case, in particular, the Court focused on the issue of the informal waiting list in use at the transit zones at the Hungarian-Serbian borders and employed as a tool for establishing the order of entering therein. It found, in this respect, that such a list represented the only means of legal entry in Hungary, but that it could not have been considered to be effective in view of the limited access (daily quota) and lack of any formal procedure accompanied by appropriate safeguards. In H.K. v. Hungary the Court, once again, deals with the issue of the waiting list, highlighting a difference with Shahzad: while in the latter case the applicant had not been included in the list, in the former the applicant was put on the list and, after a few months, was actually admitted to the transit zone where he could later apply for asylum. Despite such a difference, however, significantly the Court does not change its approach as regards the accessibility of asylum procedures in Hungary and the collective nature of the applicant’s expulsion: indeed, “the mere fact that he later managed to enter the transit zone could not make his removal from Hungary compliant with the Convention” (§ 12).

3. Concluding Remarks

Frontline Visegrad countries like Poland and Hungary provide very weak asylum and reception systems. Yet, a “surprising” manifestation of solidarity has been recently displayed towards (Ukrainian) refugees by countries that are typically and generally hostile towards (all other) refugees.

In Poland, collective expulsions have been in place for a few years now, being systematically implemented as a precise, recurring administrative state practice. The Polish state has rapidly become the first country in the Council of Europe for a number of violations of Article 4, Protocol No. 4 ECHR. And this trend will likely continue to increase.

In Hungary, the right to asylum basically exists only on paper. Transit zones represent a filtering mechanism that has proven to be incompatible with both EU law and the ECHR, as the respective courts have made clear. Additionally, violations of the prohibition of collective expulsions have been recently declared by the ECtHR, with a number of other “repetitive” cases that are pending in Strasbourg.

Collective expulsions may be regarded as especially emblematic violations of human rights and they represent the overall deterioration of the rule of law in Poland and Hungary well. Collective expulsions, indeed, characterize themselves for the lack of an individualized examination, which would enable the concerned person to highlight their specific vulnerabilities, protection needs and bring argumentation against their removal. With a collective expulsion, thus, the person is dehumanized, loses his or her individual dignity and becomes purely a number, part of an indefinite group of people that have to be removed from the State.

By systematically expelling migrants, Poland and Hungary blatantly disrespect the most basic guarantees of an effective protection of the human dignity, denying access to justice and to legal remedies. They are not alone in this: applications are equally pending before the ECtHR in cases of pushbacks allegedly performed in, among others, Croatia, Serbia and Latvia. Possible collective expulsions, moreover, have been taking place not only at the European external borders of the EU, but also within the EU itself, in the framework of bilateral agreements and return arrangements being disguised as Dublin procedures.

Collective expulsions, thus, may have different shapes and features, being often employed as standard forms of border control. What is tragically problematic is that, in too many EU countries, this is, for a while now, the normality.

C. Suggested Reading

To read the cases

Case law


To cite this contribution: F.L. Gatta, “You shall not pass! Poland and Hungary and the routine of collective expulsions at their borders”, Cahiers de l’EDEM, November 2022.

Publié le 09 décembre 2022