Case of Shahzad v. Hungary (No. 2), (Application no. 37967/18)

A selection of key paragraphs can be found below the judgment.

58. The Court takes note of the statements made by police officers involved in the applicant’s apprehension and removal and by other State authorities in general (see paragraphs 23 and 41 above), according to which every return of foreign nationals through the border fence is supposed to be video-recorded in order to protect police officers against false allegations of ill-treatment. In the present case, however, the video-recording stops when the last man passes through the border gate and the rest of the group is sitting on the ground, surrounded by the police officers. Therefore, no video footage recorded the entirety of the measures taken by the Hungarian police, including when and how they ordered the members of the group to stand up and leave the area. The fact that the video-recording ends abruptly while the police operation is still ongoing sits uncomfortably with the declared purpose of the recording and had, moreover, not been addressed in the investigation. It is particularly striking that the investigative authority did not question T.H. – the officer who had recorded the return – in this regard.

63. Therefore, it can be concluded that the investigation was mainly confined to the interviews of the police officers involved in the apprehension and escort measure and to a review of the police records drawn up by the Hungarian and Serbian police officers. As a result, when establishing the facts, the authorities mostly relied on the statements of the alleged perpetrators and other police officers who were not present during the alleged incident. These statements were relied on despite the fact that – while concordant in denying the use of force – they were divergent concerning certain aspects of the police measure (such as who had been present at the border gate and for how long, why the migrants were made to sit down, where they were directed to). At the same time, the authorities questioned the credibility of the applicant’s statements, finding them to be contradictory, and concluding that his version of events was not corroborated by evidence that would have proved its veracity beyond reasonable doubt. No explanation has been provided for this somewhat inconsistent approach of the authorities to the assessment of the credibility of the parties’ statements (see Alhowais, cited above, § 89).

72. The Court notes that in the present case the applicant showed signs of physical injuries following his contact with the Hungarian police officers. While at the beginning of the removal measure the applicant was apparently unhurt, fifty minutes later he was bleeding from the injuries he had sustained, as supported by photographic evidence. Furthermore, a medical certificate issued a few hours after the alleged incident recorded two wounds measuring 10 cm and 4 cm in length on the applicant’s head, as well as bleeding and bruises all over his body.

78. The foregoing considerations are sufficient to enable the Court to conclude that the authorities have not provided any plausible explanation as to the cause of the applicant’s injuries. Thus, the Government have not satisfactorily established that the applicant’s injuries were caused by anything other than the treatment alleged by the applicant.

79. As to whether the use of force against the applicant was rendered strictly necessary by his conduct, the Court observes that nothing in the circumstances of the case or in the case file indicates that the use of force was necessary at all.

80. Accordingly, the Court finds that the applicant has been subjected to ill-treatment prohibited by Article 3 of the Convention, and that there has been a violation of that provision in its substantive aspect.