ECHR Ruling of March 02, 2021 in the case "R.R. and Others v. Hungary (R.R. and Others v. Hungary)" (aplication No. 36037/17).
In 2017, the applicants were assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Hungary.
The aplication of unlawful detention in the transit zone, taking into account the length of detention and the degree of restriction of freedom of movement, was successfully considered in the case. The case involved a violation of the requirements of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants, an Iranian-Afghan family including three minor children, were held in the transit zone of Roszke on the border between Hungary and Serbia for almost four months, awaiting the results of the examination of their asylum applications. The second applicant was pregnant at the time. Initially, the applicants were held in a section intended for families, and then they were transferred to isolated sections for medical reasons.
Regarding compliance with article 5 of the Convention. The European Court has already analyzed the living conditions of adult applicants who were asylum seekers in the Reske transit Zone in the Judgment in the case "Ilias and Ahmed v. Hungary" (Judgment of the Grand Chamber of the European Court of November 21, 2019, Complaint No. 47287/15 (See: Precedents of the European Court of Human Rights. Special Issue. 2020. N 1.)) and concluded that in the said case they had not reached the level of severity necessary for the application of article 3 of the Convention. However, in the present case, the applicants' situation was characterized by the fact that the first applicant had the status of a person who had applied for asylum again, the applicant children were minors, and the second applicant, their mother, was pregnant and in a serious condition.
(a) The sufficiency of the first applicant's food supplies. The first applicant allegedly spent almost four months in extreme poverty, unable to get enough food. The authorities refused to provide him with free meals throughout the entire period of his stay in the transit zone. At the appropriate time, he could be considered a person who had applied for asylum again, and, as a general rule, in accordance with EU legislation, the Hungarian authorities could decide to reduce or even refuse to provide living conditions on this basis. However, in this regard, a reasoned decision should have been made taking into account the principle of proportionality, which was not done in the present case.
Although people who applied for asylum again were allowed to receive food aid, it was not always provided, and there were no legal agreements or guarantees between the Hungarian authorities and organizations allegedly providing such assistance in the transit zone that would ensure the legal certainty of the existing mechanisms. In addition, there was no information and documentation confirming the Hungarian authorities' general claims that the first applicant had enough food. The applicant could leave the transit zone only in the direction of Serbia, and in this case he would lose the right to consider his application for asylum in Hungary. He was completely dependent on the Hungarian authorities to meet his basic needs and was under their control.
The Hungarian authorities did not properly take into account the applicant's dependent status in the transit zone and were unable to provide him with basic means of livelihood.
The case involved a violation of the requirements of article 5 of the Convention (adopted unanimously).
(b) The vulnerability of the second applicant and the applicants' children. As a general rule, in accordance with the EU Directive on Admission Conditions (Directive of the European Parliament and of the Council of June 26, 2013 N 2013/33/EC, which establishes standards for the reception of persons who have applied for international protection (in a new version).) The Hungarian authorities were obliged to take into account the special situation of minors and pregnant women, as well as to assess and monitor any reception needs related to their vulnerable situation throughout the duration of the asylum procedure. According to Hungarian law, the authorities were also required to conduct an individual assessment of their special needs, which was not done. The European Court, in carrying out its assessment, took into account the following factors.
Physical conditions. For several months, the applicants suffered from heat in a residential container in the family area, which lacked air conditioning or proper ventilation.
The suitability of facilities and structures for children to live in. The applicant children were seven months, six and seven years old, respectively. The beds were not adapted for children, and for a month and a half after the family was transferred to the isolation unit, the applicant children did not have access to the playground. In addition, there were no events specially organized for children. After their placement in the detention facility, the applicants also had no contact with other families of asylum seekers or representatives of non-governmental human rights organizations.
Medical care and the availability of psychological assistance. There was no medical documentation concerning the youngest child, and it was not disputed that the girl had not been given all the vaccinations recommended at her age. Medical care outside the premises in the presence of police officers (male) also had to cause the applicants some discomfort, especially during gynecological examinations of the second applicant. In addition, the second applicant, who for a long period had psychological problems related to the trauma, which was known to the authorities, did not receive any psychological or psychiatric treatment. The presence of elements resembling the conditions of detention in a correctional institution and the restrictions inherent in detention should also have caused alarm to the applicant children, caused them psychological trauma and contributed to the humiliation of the image of the parent in the eyes of the children.
Duration of stay. The applicants had been in the transit zone for almost four months. Although the above-mentioned conditions may not reach the level of severity necessary for the application of article 3 of the Convention, in the case of a short-term detention, their repetition and accumulation over a long period will inevitably have harmful consequences for those exposed to them.
In view of the above, the applicant children and the second applicant, their mother, were subjected to treatment that exceeded the required level of severity.
The case involved a violation of the requirements of article 5 of the Convention (adopted unanimously).
Regarding compliance with paragraph 1 of article 5 of the Convention. (a) Whether the applicants have been deprived of their liberty (applicability of article 5, paragraph 1, of the Convention). In the above-mentioned Judgment in the case "Ilias and Ahmed v. Hungary" (Ilias and Ahmed v. Hungary), the European Court ruled that the applicants' stay in the Reske transit zone for 23 days did not amount to de facto deprivation of liberty and, consequently, Article 5 of the Convention was not applicable. It was necessary to analyze whether the special situation of the applicants in the present case allowed for a different conclusion, taking into account the following factors.
Individual situation and choice of applicants. The applicants entered the transit zone on their own initiative and voluntarily in order to apply for asylum in Hungary.
The applicable legal regime, its purpose and duration. In contrast to the above-mentioned Ruling in the case of Ilias and Ahmed v. Hungary, the present case did not apply a provision limiting the maximum duration of an asylum seeker's stay in the zone to four weeks, and there was also no other provision of domestic legislation that would establish the maximum duration of the applicants' stay in the transit zone. The processing of the applicants' applications for asylum did not meet the deadlines set by domestic legislation and was not fast. The applicants spent almost four months in the transit zone waiting for the result. Moreover, there were no indications that the applicants themselves did not comply with the applicable legal norms or acted in bad faith at any time during their stay in the transit zone.
The nature and extent of the restrictions actually applied/transferred by the applicants. The applicants could leave the transit zone in the direction of Serbia at any time. However, their freedom of movement was severely restricted during their stay in the transit zone, similar to what is typical for detention in some light-regime detention facilities, and became even more restricted after their transfer to the isolation unit. In addition, it was found that their living conditions were contrary to article 3 of the Convention.
In these circumstances, the applicants' stay in the transit zone was equivalent to de facto deprivation of liberty. Consequently, paragraph 1 of article 5 of the Convention was applicable in the case.
(b) Whether the detention was lawful. In the present case, there was no clearly defined legislative framework for the applicants' detention, which the authorities based on an overly broad interpretation of the general provision of domestic legislation. The applicants were de facto detained: the authorities did not take any official decision of legal significance indicating the reasons for the detention, including an individual assessment and consideration of alternatives that would be less coercive. The procedure applied did not comply with the requirements set out in the case-law of the European Court and could not be considered "lawful".
The case involved a violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted by six votes in favor with one against).
The European Court also ruled by six votes in favor, with one against, that there had been a violation of Article 5, paragraph 4, of the Convention, since the applicants did not have at their disposal any mechanisms to appeal against the legality of their de facto detention.
In the application of article 41 of the Convention. The European Court awarded the first applicant and the second applicant 4,500 euros each, as well as 6,500 euros to each of the applicant children as compensation for non-pecuniary damage.