ECHR judgment of 14 March 2017 in the case of Ilias and Ahmed v. Hungary (application No. 47287/15).
In 2015, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Hungary.
In the case, the applicants successfully complained about their detention in the transit zone for a long period of time. The case involved a violation of the requirements of Article 3, Article 5, paragraph 4, and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants, citizens of Bangladesh, arrived in a transit zone on the border between Hungary and Serbia and applied for asylum. Their petitions were rejected, and they were returned to Serbia. In the conventional proceedings, they complained, inter alia, that their deprivation of liberty in the transit zone was illegal, that the conditions for their allegedly unlawful deprivation of liberty were inadequate and that their expulsion to Serbia exposed them to a real threat of inhuman and degrading treatment.
ISSUES OF LAW
Concerning compliance with Article 3 of the Convention. (a) Conditions of detention in the transit zone. The applicants were held in a fenced area of approximately 110 square meters. m for 23 days. Next to this zone, they were provided with a room in one of several containers. There were five beds in the room, but in the period relevant to the circumstances of the case, the applicants were the only residents. In its report to the Government of Hungary, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) found that the sanitary equipment provided did not require comment and that the medical facilities produced a generally favorable impression. The applicants were no more vulnerable than any other asylum-seeker detained at the time. Indeed, there were no proper legal grounds for their detention, and the absence of a legal basis for their deprivation of liberty could contribute to the feeling of inferiority prevailing in the conditions challenged, but given satisfactory material conditions and a relatively short period of stay, the appeal complained of did not reach the minimum level of severity necessary for that , to constitute inhuman treatment.
The requirements of Article 3 of the Convention were not violated (unanimously).
(b) Expulsion to Serbia. The Hungarian authorities referred to a schematic reference to the list of third countries' secure third countries. They did not take into account the country reports and other evidence submitted by the applicants and placed an unfair and excessive burden of proof on them. Owing to the first applicant's error, the interpreter was interviewed with a Dari, a language he did not speak, and the immigration authority provided him with an information leaflet on the asylum procedure also in Dari. In this regard, his chances of actively participating in the proceedings and explaining the details of his flight from the country were extremely limited. The applicants were illiterate, nevertheless all the information they received about the asylum proceedings was contained in the leaflet. Thus, it appears that the authorities did not provide the applicants with sufficient information on the procedure. The decision on their case was transferred to their lawyer two months after the relevant decision was made when they had already left Hungary. The applicants did not enjoy effective safeguards that could protect them from exposure to a real threat of inhuman or degrading treatment in violation of article 3 of the Convention.
The violation of the requirements of Article 3 of the Convention (unanimously) was committed in the case.
Concerning compliance with article 5, paragraph 1, of the Convention. (a) Admissibility of the complaint. The Court had to determine whether the detention of the applicants in the transit area amounted to deprivation of liberty within the meaning of Article 5 § 1 of the Convention. To determine whether a person is deprived of his or her freedom, the starting point should be his specific situation and a number of factors must be taken into account.
The concept of deprivation of liberty contains objective and subjective elements. The objective element includes the type, duration, consequences and method of application of this measure, the possibility to leave a restricted area, the degree of supervision and control over the movement of a person and the degree of isolation. The subjective element includes whether the person gave a valid consent to this content.
The difference between deprivation and restraint of freedom affected degree or intensity, and not nature and being. The fact that the applicants could leave the transit zone voluntarily did not exclude the violation of the right to freedom.
The applicants were held for more than three weeks. They were kept in a protected settlement, in which there was no access from outside. They did not have the opportunity to enter the territory of Hungary outside the zone. Accordingly, the applicants did not choose to stay in the transit zone and therefore could not be considered to have given consent to the deprivation of their liberty. If the applicants had left the territory of Hungary, their applications for refugee status would have been rejected in the absence of a chance to be examined on the merits. Consequently, their maintenance in the transit zone amounted to actual deprivation of liberty.
(b) Merits. The first aspect of Article 5 § 1 (f) of the Convention allows the detention of an asylum seeker or other immigrant before the authorization of the State to enter. Such detention should be compatible with the general purpose of Article 5 of the Convention, which was to ensure the right to freedom and that no one should be deprived of liberty in an arbitrary manner. In order not to be qualified as arbitrary, detention in accordance with Article 5 § 1 (f) of the Convention must be carried out in good faith and be closely related to the prevention of unauthorized entry of a person into the country. The place and conditions of detention should be adequate in view of the fact that the measure is applicable not to the perpetrators, but to foreigners who, often fearing for their lives, have left their country, and the duration of such detention should not exceed the reasonably required for the persecuted goals.
The applicants' detention lasted 23 days. Applicable rules were not formulated with sufficient precaution and predictability. The content of the applicants in custody appears to have been de facto as a practical settlement. The applicants were deprived of their liberty in the absence of a formal decision by the authorities solely because of a broad interpretation of the general rule of law, the procedure of which did not meet the requirements set out in the Court's case-law.
The violation of the requirements of Article 5 of the Convention (unanimously) was committed in the case.
The Court also unanimously found violations of Article 5 § 4 of the Convention and Article 13 of the Convention in conjunction with Article 3 of the Convention.
In the application of Article 41 of the Convention. The Court awarded each applicant 10,000 euros in respect of non-pecuniary damage.