EHRM, 02-03-2021, nr. 36037/17

S.H. (‘the applicant mother’) claims that she was a victim of torture in Afghanistan; she was allegedly captured, burned and raped by the Taliban, who killed her first husband. On an unknown date between 2012 and 2014 she fled Afghanistan to Iran together with her two daughters from her first marriage, M.H. and R.H. She met R.R. (‘the first applicant’) there, and entered into a religious marriage with him.

R.R., S.H. and her two children left Iran in the beginning of 2016, allegedly escaping reprisals because R.R. had deserted the Iranian army. Having left Iran, they travelled together through Turkey to Greece, where they were separated. R.R. made it to Austria, but allegedly decided to join his family, who were returned to Greece after being arrested in North Macedonia. On 11 March 2016 R.R. was apprehended at Sopron railway station in Hungary. He applied for asylum. On 21 March 2016 he withdrew his asylum application and the asylum proceedings were terminated. Pending enforcement of his expulsion to Iran, the first applicant was held in immigrant detention, where he submitted his second asylum application. On 3 August 2016 he left for an unknown destination and the asylum proceedings were terminated.

Subsequently, the applicant family were reunited in Serbia. They spent several months in different camps around the country. On 16 October 2016 A.R., the first biological child of R.R. and S.H., was born.

On 19 April 2017 the applicants arrived in Hungary from Serbia and entered the Röszke transit zone, which is situated on Hungarian territory at the border between the two countries. They applied for asylum on the same date.

On 19 April 2017 the Office for Immigration and Asylum (hereinafter ‘the IAO’) issued a ruling ordering that the applicants be accommodated in the Röszke transit zone under section 80/J(5) of the Asylum Act (see paragraph 24 below).

Since 2015 the two transit zones located at the border with Serbia have been significantly enlarged (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 15, 21 November 2019). According to data collected by the Government in July 2017, at the time in question the Röszke transit zone had an official capacity of 460 places and was accommodating 291 foreign nationals. The sections of the transit zone were rectangular in shape, with accommodation ‘containers’ placed adjacent to each other on three sides and a wire mesh fence on the fourth. There was razor wire on the roofs of the containers. People staying in one section could only go to other parts of the zone to see a doctor, a lawyer or IAO staff, and were always escorted by guards.

The applicants initially stayed in the section of the Röszke transit zone designated for families. They were placed together in a 13-square-metre living container, which had three bunk beds without child safety rails and five lockable cabinets. According to the Government, a cot bed was provided to families with small children. According to the applicants, the containers were extremely hot in summer and without air conditioning; for ventilation they had to open the window and door, which made the room draughty and allowed insects in. An awning over the front door (to offer shade) and fans were provided in August 2017.

In the middle of the family section there was a communal courtyard with a small playground for children, ping-pong table, badminton net, basketball court and goals for football. According to the applicants, there was no shade or greenery in the outdoor area. The section also had a playroom, study room, room for religious worship and common room equipped with a television. The NGOs working within the zone organised activities for children, such as drawing and crafts, once or twice a week for one to two hours. From September 2017 an education programme for children in the transit zone was provided.

On 29 June 2017 the applicants were moved to an isolation section within the transit zone because the applicant mother and children had hepatitis B. The isolation section consisted of approximately ten mobile containers placed in a row and a narrow (approximately 2.5 metres wide and 40 to 50 metres long) open-air area surrounded by fencing. Their living container, which was equipped with air conditioning, was furnished with one bunk bed, two single beds (no cot bed for A.R.) and a chest of drawers. There was no refrigerator, microwave or washing machine in the section. The applicants were given sand for the children to play with. There was no playground and no activities were organised for the children in the isolation section. The applicants had access to a television in the common area container and a ping-pong table.

The police regularly carried out morning (6 a.m.) checks — headcounts. The applicants submitted that the police officers/guards had often raided their living containers to perform security checks.

Free wireless Internet was available in the transit zone. According to the applicants, the connection was poor and could only be used for messaging.

According to the Government, children were, in addition to the three meals provided to adult asylum-seekers, provided with two snacks each per day. Like pregnant women, they were also entitled to dairy products and fruit. Children under the age of one were provided infant nutrition and baby food. The applicants submitted that the children had been given chocolate bars for snacks and that fruit had only been provided occasionally. They submitted that the food provided to the children had been inadequate for their age.

Upon their arrival at the transit zone, families were provided with a sanitary package, including essential baby hygiene products such as disposable nappies. An additional monthly sanitary package was provided to asylum-seekers and, in justified cases, additional items were provided on request. According to the Government, clothing was provided to asylum-seekers who did not have appropriate clothing for the season. The applicants submitted that the applicant mother had not been provided with maternity clothes, so she had had to sew a dress for herself using bed linen.

The applicants received medical treatment on several occasions during their stay in the transit zone. The Government submitted that asylum-seekers were entitled to basic and emergency medical care, including specialist medical treatment, according to their needs. If justified by their health condition, the resident medical staff could transfer them to hospitals or clinics to obtain urgent or specialist care. On 24 April 2017 the applicant mother was examined by a gynaecologist of a Szeged hospital. On 25 April 2017 she was referred to the emergency department of the hospital because of sickness. On 28 April 2017 she was taken to the hospital to have her pregnancy determined. She underwent blood and laboratory tests in relation to her hepatitis B and was prescribed medication for a urinary tract infection. On the same date she was taken to the emergency department of the hospital because of vomiting and cramps. She spent the night there. On 26 May 2017 she attended a prenatal check-up in the hospital and was found to have a high-risk pregnancy. On 13 and 14 June 2017 she was taken to the hospital and prescribed medication for epigastric (abdominal) pain. On 3 July 2017 she had another check-up in the hospital and a consultation took place in relation to her hepatitis B. On 9 August 2017 she attended an ultrasound appointment and was taken to the emergency department of the hospital. She was recommended a high fluid intake and adequate nutrition (fruit), and was prescribed medication for anaemia. Following the family's release from the transit zone, the applicant mother attended two more medical check-ups. On 24 April and 6 July 2017 the two eldest applicant children were taken to the paediatrics department of the hospital in Szeged. Their hepatitis B was confirmed following blood tests taken during their second visit to the hospital and the doctor suggested a further examination at the hepatology department. On 29 June 2017 the eldest applicant child, M.H., was examined at the ear, nose and throat department of the hospital in Szeged because of frequent nosebleeds. On 16 August 2017 she was taken to the emergency department of a hospital in Győr by ambulance and was subsequently treated at the ear, nose and throat department. The applicants submitted that, although requested, the youngest applicant child had not been given the vaccines recommended at six months. It appears from the case file that she had received some vaccines in Serbia and that the next vaccination appointment was scheduled for 8 April 2017.

The applicants submitted that no interpreter had been present in the course of S.H.'s medical examinations and that no anamnesis (medical history) could be collected from her due to the language constraints (she spoke only in her mother tongue). At her hospital visit of 9 August 2017 a ‘heteroanamnesis’ was taken by questioning an interpreter using English and Dari at the doctor's request. The applicants also submitted that they had always been taken to the hospital in an unsuitable police van and escorted by armed police officers, who had remained present during the medical examinations. In particular, (male) armed police officers had been present (standing by her side) during the second applicant's gynaecological examination.

As regards psychological assistance in the transit zone, the applicants submitted that there had been no assistance for traumatised asylum-seekers. They drew the Court's attention to their lawyer's submissions in the asylum procedure of 26 and 27 July 2017. With respect to the applicant mother, the lawyer submitted, inter alia, that she had been subjected to serious ill-treatment in Afghanistan, the consequences of which she was still suffering, and that she was in need of specialist treatment. In this connection, the lawyer also submitted that, given her mental health problems, the applicant mother had been under psychiatric treatment (medication and psychotherapy) during her stay in Serbia and requested that she be examined by a psychiatrist. In their application form, the applicants submitted that S.H. had had to stop taking that medication because of her pregnancy. The Government submitted that during the period in question the Hungarian Calvinist Charity Service and specialists from Sirius Help had provided psychosocial assistance in the transit zone, the latter specifically for children. On 24 August 2017, at the request of the applicants' lawyer for the purposes of their legal (asylum) procedures, the applicant mother was examined by a psychiatrist, who diagnosed her with major depressive disorder and post-traumatic stress disorder (‘PTSD’). The psychiatrist recommended that the applicant mother undergo medical, psychiatric and psychotherapeutic treatment, as otherwise suicidal urges and impulsive reactions were likely to occur. On the same date the two eldest applicant children were examined, at their lawyer's request, by a psychologist, who observed that they showed signs of PTSD related to their experience in the transit zone and opined that psychological support should be made available to them.

As R.R. had already applied for asylum in Hungary before entering the transit zone with his family (see paragraph 6 above), he was considered by the IAO not to be entitled to material reception conditions under the Asylum Act (see paragraph 24 below). He was assigned accommodation together with his family but was not given free meals. The hot meals provided to the other applicants could not be taken out of the canteen where they ate their lunch. The applicants submitted that the NGO Sirius Help, which had operated in the zone until the end of May 2017, had twice organised food shopping for R.R. from outside at the beginning of his stay. He had initially been able to get food by paying other asylum-seekers, who had bought the food in Serbia and delivered it to him upon their arrival at the zone. According to the applicants, such arrangements were difficult to achieve and R.R. was forced to eat his family's leftovers, beg other asylum-seekers for food and search for edible things in the rubbish bins. He could only recall two occasions when Charity Council organisations and the Hungarian Red Cross had provided him with non-perishable food packages. According to the Government, the other applicants were distributed sufficient amounts of long-life food which they could share with R.R. They also submitted that R.R. had several times bought food with the assistance of social workers and that members of the Charity Council had taken care of his needs, in terms of food, toiletries and clothing. According to the Government, R.R. refused to accept food several times, stating that the family had sufficient supplies. On 31 July 2017 the IAO sent an email to the applicants' lawyer noting, in particular, that under the applicable Hungarian law the applicants were not entitled to food in the transit zone; they had the possibility to buy food for themselves, which they had done on multiple occasions, and charity organisations were handing out food. The IAO further noted that it did not appear that the first applicant had lost any weight during his stay in the zone.

The applicants were represented by a lawyer of their choice in the asylum proceedings. The adult applicants were heard by the IAO on 19 April 2017 (both), on 8 June 2017 (only S.H.) and on 10 May and 6 June 2017 (only R.R.). In the course of the asylum proceedings, the IAO, inter alia, requested an expert opinion on their marriage certificate, which was delivered on 3 July 2017. On 20 June 2017 the IAO also requested a DNA test to verify that R.R. was the father of S.H.'s third child. The results of the test, which confirmed his paternity, were received on 14 August 2017.

On 15 August 2017 the applicants were granted leave to enter and temporarily stay in the territory of Hungary (admitted alien status, befogadott). They were accommodated in the Vámosszabadi Reception Centre the same day. The IAO however refused to recognise them as refugees or persons in need of subsidiary protection. The applicants requested a judicial review of the part of the decision rejecting their applications. Subsequently, on 23 August 2017 the IAO issued a ruling withdrawing the decision on the merits. On 8 September 2017 it issued a new decision on the merits, recognising the applicants as persons in need of subsidiary protection. In the meantime, on 25 August 2017 the applicants left for Germany, where they were later granted international protection.

The relevant provisions of Act no. LXXX of 2007 on Asylum (‘the Asylum Act’) are outlined in the case of Ilias and Ahmed (cited above, §§ 41 and 45). For the purposes of the Asylum Act, persons deserving special treatment include vulnerable persons, in particular minors and pregnant women, who have been found to have special needs after an individual evaluation (section 2k)). According to section 4 of the Act, the best interests and rights of the child shall be a primary consideration when implementing the provisions. Moreover, provisions of the Asylum Act must be applied to persons requiring special treatment with due consideration of the specific needs arising from their situation (section 4(3)). When a crisis situation caused by mass immigration is declared, section 80/J of the Asylum Act, as amended on 28 March 2017, applies and provides as follows:

The provisions of the Asylum Act regulating border procedure, including section 71/A, which limits border procedure and stay in the transit zone to four weeks, do not apply. If a person seeking recognition submits another asylum application following the adoption of a final decision rejecting or terminating his or her earlier application, he or she is not entitled to care, assistance and accommodation (section 80/K(11)).

All asylum applications submitted in the transit zones are processed either in an accelerated or standard procedure, depending on the circumstances of each case. Under the standard procedure, a decision on an asylum application must be taken by the IAO within sixty days; if the accelerated procedure is applied or if an application is to be declared inadmissible, the IAO must take a decision within fifteen days. Unless refugee status was granted, the decision of the IAO can be appealed against to a court. If the initial decision was taken in the standard asylum procedure, the court has sixty days to decide the appeal; if an appeal was lodged against a decision taken in the accelerated procedure, or in the event that the asylum application was rejected as inadmissible, the court decision must be taken within eight days.

The relevant provisions of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (‘the Asylum Procedures Directive’) are outlined in the case of Ilias and Ahmed (cited above, §§ 47-55).

The relevant provisions of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (‘the Reception Conditions Directive’) provide as follows:

CHAPTER II

GENERAL PROVISIONS ON RECEPTION CONDITIONS

Article 8

Detention

Article 11

Detention of vulnerable persons and of applicants with special reception needs

Article 17

General rules on material reception conditions and health care

Article 19

Health care

CHAPTER III

REDUCTION OR WITHDRAWAL OF MATERIAL RECEPTION CONDITIONS

Article 20

Reduction or withdrawal of material reception conditions

CHAPTER IV

PROVISIONS FOR VULNERABLE PERSONS

Article 21

General principle

Article 22

Assessment of the special reception needs of vulnerable persons

Article 23

Minors

Article 25

Victims of torture and violence

In its judgment of 14 May 2020 in the case of FMS and Others v. Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság (C-924/19 PPU and C-925/19 PPU) the Court of Justice of the European Union ruled inter alia that the conditions, in which asylum-seekers that had arrived in Hungary via Serbia had been kept in the Röszke transit zone, amounted to a deprivation of liberty:

Article 22 of the Convention on the Rights of the Child of 20 November 1989 (ratified by Hungary on 7 October 1991) reads as follows:

Article 22

The Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (‘CPT’) from 20 to 26 October 2017 contains the following passages:

The report on the fact-finding mission of June 2017 of the Special Representative of the Secretary General of the Council of Europe on migration and refugees, Ambassador Tomáš Boček, concerning the Rӧszke transit zone (SG/Inf(2017)33) is summarised in the judgment of Ilias and Ahmed (cited above, § 67). As regards the conditions in the zone, the following observations are also relevant:

The Court notes that at the time when notice of the application was given to the Government, the ‘Subject matter of the case’ provided as follows:

It further notes that the questions to the parties were formulated in the singular (‘applicant’) owing to a clerical error.

In their observations, the Government raised this issue and argued that, although the application had been lodged by five applicants, only the first applicant's complaints had been communicated to them. They therefore focused their observations on his case and covered the situation of the family only to the extent that it was relevant to his complaints. The applicants, in their reply, maintained that all five of them were the applicants in the present case, which was clear from the ‘Subject matter of the case’, as well as from the application form and the authority forms which they had forwarded to the Court in August 2017.

The Court notes that when the applicants lodged their application with the Court, they submitted a single application form with the first page of the form filled in only with respect to the first applicant. By contrast, in other parts of the application form, continuous reference was made to ‘applicants’ in the plural, including each family member's dates and places of birth and facts/complaints relevant to each of them. Furthermore, the ‘Subject matter of the case’, which was forwarded to the parties together with the above-mentioned questions and the application form, referred to the application as concerning ‘the confinement … of an Iranian-Afghan family’. The Court also notes that the two Rule 39 requests submitted in the present case and the corresponding decisions indicating interim measures to the Government (see paragraphs 102 and 104 below) were made in respect of the whole family (five applicants).

While the Court regrets the clerical error on its part as regards the formulation of the questions to the parties, it considers that all the references to the applicants as a family of five in documents forwarded to the Government (see paragraph 34 above) made it sufficiently evident that the application was lodged by all five applicants and that it was communicated to the parties as such.

The applicants complained that the conditions of their confinement in the Röszke transit zone had been incompatible with the guarantees of Article 3 of the Convention, which reads as follows:

The applicants alleged that there had been no effective remedy at their disposal to complain about the living conditions in the transit zone. They also claimed that the denial of reception conditions in the first applicant's case had been automatic, without any decision being made in that regard or remedies to challenge the denial. They relied on Article 13 read in conjunction with Article 3 of the Convention, which reads as follows:

The Government submitted that the applicants had no arguable claim under Article 3 of the Convention and that their Article 13 complaint should therefore be declared inadmissible ratione materiae. Alternatively, they argued that this complaint was manifestly ill-founded as the applicants had had several remedies available to them in respect of the material conditions in the transit zone; they could, in particular, have lodged a complaint with the asylum authority, a request to be transferred to another pre-entry accommodation facility and a civil-law action for violation of personality rights.

The Court has declared admissible the applicants' complaint under Article 3 in respect of the conditions of detention and found a violation of that provision (see paragraphs 57 and 65 above). The complaints in question were therefore ‘arguable’ for the purposes of Article 13 of the Convention (see Khlaifia and Others, cited above, §§ 268-69) and the complaint under Article 13 of the Convention must thus be declared admissible.

Having found a violation of Article 3 of the Convention (see paragraphs 57 and 65 and above), and in view of the fact that the alleged procedural shortcomings have been sufficiently examined under that Article (see paragraphs 54 and 58 above), the Court does not find it necessary to examine the complaint under Article 13 regarding those same alleged shortcomings.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicants submitted that because they had not received a formal decision on their detention, they could not challenge the lawfulness of the measure in any kind of procedure and could not request their release before a judicial body.

The Government submitted that there was an effective judicial remedy against the unlawful silence of the asylum authority and arbitrariness of ‘pre-entry detention’ of asylum-seekers in the transit zone under section 20 of the Administrative Procedure Act (see Lokpo and Touré v. Hungary, no. 10816/10, § 13, 20 September 2011).

The Court reiterates its above finding that the applicants' detention consisted of a de facto measure, not supported by any decision specifically addressing the issue of deprivation of liberty (see paragraph 90 above). Moreover, the administrative remedy suggested by the Government concerned the applicants' asylum applications rather than the question of personal liberty. In these circumstances, the Court does not find it established that the applicants could have sought a judicial review of their detention in the transit zone — which itself had not taken the form of a formal decision.

The Court must therefore conclude that the applicants did not have at their disposal any proceedings by which the lawfulness of their detention could have been decided speedily by a court.

It follows that there has been a violation of Article 5 § 4 of the Convention.

The applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage.

The Government argued that the claim was excessive.

Having regard to the circumstances of the present case and the nature of the violations found, the Court considers it reasonable to award each of the adult applicants (the first and second applicants) the amount of EUR 4,500 and each of the applicant children the amount of EUR 6,500 in respect of non-pecuniary damage.

With respect to the proceedings before the Court, the applicants claimed EUR 18,070 for 121 hours of legal work at the hourly rate of EUR 150 plus EUR 80 in clerical expenses. The lawyer indicated that she had agreed with the applicants that the latter would pay her if they won the case before the Court.

The Government submitted that the expenses claimed had not been necessarily incurred and were not reasonable as to quantum, given the number of irrelevant submissions made by the applicants and their similarity to the submissions made in other cases.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicants.

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.