Jurist ECHR rules Hungary authorities arbitrarily detained minors

[Dadparvar]

The European Court of Human Rights (ECHR) ruled Thursday in M.H. and S.B. v. Hungary that Hungarian authorities violated Article 5 of the European Convention on Human Rights by arbitrarily detaining two minors who crossed the Hungarian border in 2016. Hungarian authorities detained the minors for about three and two months, respectively.

The first minor was convicted of illegally crossing the Hungary border on April 30, 2016. He claimed to be an adult until he requested to be released from detention and transferred to an open reception facility five days later. The Office of Immigration and Nationality did not assess his age. The office told the minor that it did not doubt the minor’s age when he claimed to be an adult during asylum proceedings.

The second minor claimed to be an adult upon apprehension by the Hungarian authorities on June 16, 2016. He then stated that he was a minor in requesting to be transferred from the detention center to an open reception facility seven days later. The office did not assess his age and told him that it could not conduct an age assessment for “private individuals” when he offered to pay for the age assessment.

While the minors initially claimed to be adults, the court held that the authorities should have taken appropriate steps to verify their ages. The court stated that child migrants may understandably fear disclosing their real ages and that their status as vulnerable minors should take precedence over their status as irregular migrants. The court also said that the Hungarian authorities did not explain why less coercive measures were not appropriate.

Furthermore, the court disagreed with the Hungarian authorities in assuming that the minors were truthful when they claimed to be adults. The court wrote:

The [c]ourt 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.

Relatedly, on June 22, 2023, the European Court of Justice held that Hungary’s asylum laws breached EU law. The court found that the law “deprives the third-country nationals or stateless persons concerned of the effective enjoyment of their right to seek asylum from Hungary, as enshrined in the Charter of Fundamental Rights of the European Union.”

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