On the 2nd of February 2023, the European Court of Human Rights (ECtHR) delivered its judgment in Alhowais v Hungary, no. 59435/17. The case concerned an applicant, Syrian national, who crossed the Tisza River from Serbia to Hungary by boat with several others, including his brother and an Iraqi family. The boat could not reach to the shore because of dense reeds, and so the passengers disembarked among them. The Hungarian police officers noticed them and allegedly shouted “Go back to Serbia”, let their dogs loose, sprayed tear gas, and threw stones at them. The applicant and his brother decided to swim back to Serbia, but the brother drowned. The Hungarian authorities investigated the incident, however, the Prosecutor’s officer discontinued the investigations as it could not be established beyond reasonable doubt that crimes had been committed.

The ECtHR first examined the alleged violations of the procedural limb of Articles 2 and 3 of the European Convention on Human Rights (ECHR). It noted that the Hungarian Csongrád County Police opened a criminal investigation on the ill-treatment by the police officers but the scope of this investigation was limited to examining whether they could be liable for allegedly throwing stones, spraying tear gas and deploying police dogs. The investigation disregarded other elements of the operation and did not provide any assessment on the state’s responsibility to protect the right to life in violation of Article 2.

The Court further noted that the Prosecutor’s decision to discontinue the investigation was based to a significant extent on oral testimonies (mostly of the officers) and contradictions in the migrant’s statements concerning the factual circumstances of the incident. However, the mother of the affected family was not interviewed, and the authorities did not try locating other affected migrants who left Hungary or exploring other options to resolve the factual contradictions. Moreover, Hungary failed to identify other police officers present at the scene and take statements from them. These deficiencies limited the investigation and undermined its effectiveness hence the procedural limb of Article 3 was violated.

The ECtHR further ruled that Hungary failed to respect the substantive aspect of Article 2. In assessing whether Hungary satisfied its positive obligations, the Court first noted that Hungary had sufficient knowledge to evaluate the dangers of the river-crossing and organise their border operations accordingly. However, Hungary did not have organised operations in place as officers did not follow an operational plan when search and rescue situations arose. The Court therefore concluded that the authorities did not do everything that is reasonably expected to avoid a real and immediate risk to life which they knew was liable to arise. Second, the Court stated that Hungarian authorities did not take operational measures which could have been reasonably expected of them in order to protect the brother’s life once they received information about one of the migrants being in distress. For instance, the officers had knowledge that the migrants were approaching Hungary, but they did not prepare a rescue operation. The rescue boat was instructed to help the disembarkation of the Iraqi family, however, no attempt was made to verify whether other persons needed assistance.  Moreover, the authorities did not make other efforts to search for the brother after the rescue boat left the spot where he apparently disappeared. In addition, the rescue capacities present did not correspond to the requirements of the emergency and no evidence showed attempts to call for assistance.