CEDH · CASELAW;CLIN;ENG — 2 mars 2021

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Hungary - 36037/17 Judgment 2.3.2021 [Section IV] Article 5 Article 5-1 Deprivation of liberty Unlawful de facto detention in transit zone in light of duration of confinement and extent of restrictions on free movement: violation Article 3 Degrading treatment Transit zone conditions for dependent repeat asylum-seeker and vulnerable pregnant woman and minors, confined for nearly four months, exceeding threshold of severity: violation Facts – The applicants, an Iranian-Afghan family including three minor children, were confined in the Röszke transit zone at the border of Hungary and Serbia for almost four months while awaiting the outcome of their requests for asylum. The second applicant was pregnant at the time. The family was initially kept in the section designated for families, but was later moved to the isolation section for health-related reasons.    Law – Article 3 (substantive aspect): The Court had already analysed the living conditions experienced by applicants as adult asylum-seekers in the Röszke transit zone in Ilias and Ahmed v. Hungary and had concluded that they had not reached the Article 3 threshold in that case. However, in the present case, the applicants’ situation had been characterised by the first applicant’s repeat asylum-seeker status, the applicant children’s young age and the applicant mother’s pregnancy and serious health condition. (a)     Sufficiency of food supplies for the first applicant – The first applicant had allegedly spent almost four months living in a state of the most extreme poverty, unable to obtain sufficient food. The authorities had refused to provide him with free meals throughout his stay in the zone. At the time, he could be considered to be a repeat asylum-seeker and, in principle, under EU law, Hungary had been allowed to decide to reduce or even withdraw material reception conditions on that basis. However, that had been subject to a reasoned decision, taking into account the principle of proportionality, which had not been forthcoming in the present case.    While repeat asylum applicants had been allowed to receive food assistance, that had not always been delivered, and there was a lack of any legal agreements or safeguards between the Government and the organisations allegedly supplying food assistance in the zone, which would have ensured legal certainty of the current arrangements. There was also lack of information and documentation to support the Government’s general statements that the first applicant had had sufficient food supplies. The applicant could only have left the transit zone in the direction of Serbia, and would have thereby forfeited the examination of his asylum claim in Hungary had he done so. He had been fully dependent on the Hungarian authorities for his most basic needs and had been under their control. The Government had failed to have due regard to the applicant’s state of dependency at the transit zone and had failed to secure his basic subsistence there. Conclusion : violation (unanimously). (b)     The vulnerability of the second applicant and applicant children – The authorities had in principle been obliged, under the EU Reception Conditions Directive, to take into account the specific situation of minors and pregnant women and to assess and monitor any special reception needs linked to their vulnerable status throughout the duration of their asylum procedures. They had also been obliged under domestic law to provide an individualised assessment of their special needs, which had not been carried out. The Court took into account a number of factors in the overall assessment of conditions: –     Physical conditions: For several months, the applicants had been made to suffer the heat in the family section’s accommodation container, which did not have air-conditioning or proper ventilation. –     Suitability of facilities for children: The applicant children were seven months, six years and seven years old. The beds had not been fit for use by children and for a month and a half,   after the family had been moved to the isolation section, there had been no playground accessible to the applicant children and no activities specifically organised for children. The applicants had also had no contact with other asylum-seeking families or NGO representatives after the move. –     Medical services and availability of psychological assistance: There had been a lack of medical documentation for the youngest child and it had not been disputed that she had not been given the vaccines recommended at her age. Outside medical treatment, in the presence of (male) police officers, must also have caused a degree of discomfort to the applicants, particularly during the second applicant’s gynaecological examinations. Further, the second applicant, who had had trauma-related mental health problems for a long time and which had been brought to the attention of the authorities, had not received any psychological or psychiatric treatment. The presence of elements resembling a prison environment and the constraint inherent during confinement must have also caused the applicant children anxiety and psychological disturbance and created degradation of the parental image in the eyes of the child. –     Duration of stay: The applicants had been held for nearly four months at the zone. While the above-mentioned conditions might not attain the threshold of severity required to engage Article 3 where the confinement was of a short duration, their repetition and accumulation during a longer period would necessarily have had harmful consequences for those exposed to them. In light of the foregoing, the applicant children and applicant mother had been subjected to treatment which had exceeded the required threshold of severity. Conclusion : violation (unanimously). Article 5 § 1: (a)     Whether the applicants were deprived of their liberty (applicability) – In Ilias and Ahmed , the Court had held that the applicants’ stay of twenty-three days in the Röszke transit zone had not constituted a de facto deprivation of liberty and, consequently, that Article 5 had not been applicable. It had to examine whether the applicants’ specific situation warranted a different conclusion in the present case, taking into account the following factors: –     The applicants’ individual situation and choices: The applicants had entered the zone of their own initiative, and of their own free will, with the aim of seeking asylum in Hungary. –     The applicable legal regime, its purpose and duration: Unlike in Ilias and Ahmed , the provision limiting the maximum duration of an asylum seeker’s stay in the zone to four weeks had not applied in the present case and there had been no other domestic provision fixing the maximum duration of the applicant’s stay in the zone. Moreover, the processing of the applicants' asylum claims had   not respected the time-limits laid down in domestic law and had been anything but speedy. The applicants had spent almost four months there awaiting the outcome. Furthermore, there was no indication that the applicants themselves had failed to comply with the legal regulations in place or had not acted in good faith at any time during their stay in the zone. –     The nature and degree of the restrictions actually imposed/experienced: The applicants could have left the transit zone in the direction of Serbia at any time. However, their freedom of movement had been severely restricted while living in the transit zone, in a manner similar to that characteristic of a certain type of light-regime detention facility, and it had become even more restrictive after moving to the isolation section. Further, the living conditions had been found to be in violation of Article 3. In those circumstances, the applicants’ stay in the transit zone had amounted to a de facto deprivation of liberty. Article 5 §   1 was therefore applicable. (b)     Whether the detention was lawful – There had been no strictly defined statutory basis for the applicants’ detention in the present case, which the authorities had based on an overly broad interpretation of a general provision of domestic law. The applicants’ detention had occurred de facto : the authorities had not issued any formal decision of legal relevance complete with reasons for the detention, including an individual assessment and consideration of alternatives that would have been less coercive. The procedure had fallen short of the requirements enounced in the Court’s case-law and could not be considered “lawful”. Conclusion : violation (six votes to one). The Court also held, by six votes to one, that there had been a violation of Article 5 § 4, in that the applicants had not had at their disposal any proceedings to challenge the lawfulness of their de facto detention. Article 41: EUR 4,500 each to the first and second applicants and EUR 6,500 to each of the applicant children in respect of non-pecuniary damage. (See also Ilias and Ahmed v. Hungary [GC], 47287/15, 21   November 2019, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes