CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 25 août 2022

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AND OTHERS v. HUNGARY (Application no. 36896/18)             JUDGMENT   STRASBOURG 25 August 2022     This judgment is final but it may be subject to editorial revision. In the case of W.O. and Others v. Hungary, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Alena Poláčková, President,   Péter Paczolay,   Davor Derenčinović, judges, and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   36896/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 August 2018 by four Afghan nationals, listed in the appended table, (“the applicants”) who were represented by Ms Pohárnok, a lawyer practising in Budapest; the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice; the decision not to have the applicants’ names disclosed; the decision to give priority to the application (Rule 41 of the Rules of Court); the decision to indicate an interim measure to the respondent Government under Rule   39 of the Rules of Court, which was subsequently lifted ; the parties’ observations; Having deliberated in private on 28 June 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the confinement of the applicant family in the Hungarian transit zone. 2.     The first and second applicants are the mother and father, respectively, and the third and fourth applicants are their children, who were three and one year old at the time of the events in question (see the appended table). The family stayed at the Röszke transit zone at the border of Hungary and Serbia between 23 April and 19 November 2018. 3 .     The applicants submitted asylum requests upon their arrival to the transit zone. The asylum proceedings were suspended because of the attempted forced return of the applicants to Bulgaria. The return had not taken place and the asylum proceedings were resumed on 23 May 2018. On 13   August 2018 the Immigration and Asylum Office (“the IAO”) rejected the applicants’ asylum requests and ordered their expulsion. The applicants challenged this decision in the judicial review proceedings, where they also made a request to be moved to an open reception facility as a matter of interim measure. They were unsuccessful. Their subsequent appeals were rejected for having been lodged out of time. Following their objection, the Metropolitan Court, on 31 October 2018, annulled the previous court decisions and the case was re-assessed by the Metropolitan Court. On 14 November 2018 the Metropolitan Court granted the applicants’ request for an interim measure and ordered that the execution of the expulsion decision be suspended and that the applicants be moved to a more appropriate accommodation. On 19   November 2018 the applicants were transferred to an open reception facility. On 10 January 2019 the Metropolitan Court dismissed the applicants’ appeals concerning the dismissal of their asylum requests and their placement in the transit zone, which the court found to have been lawful. The applicants in the meantime left Hungary and now live in Germany. 4.     In the Röszke transit zone the applicants stayed in the family section, except for a few days when, after the initial dismissal of the applicants’ asylum requests, they were placed in the deportation section. They were housed in one container with a separate bed and a wardrobe for each one of them. The general conditions and services provided in the Röszke transit zone are described in R.R. and Others v. Hungary (no.   36037/17, §§ 10-12, 14-17 and   30-31, 2 March 2021). 5 .     In addition to describing the general conditions, the applicants submitted that the first and third applicants had suffered from medical problems related to, inter alia , their past domestic abuse and distress due to their living condition. They repeatedly requested to be moved to an open reception facility and provided appropriate assistance. The first applicant met with a psychologist on fifteen occasions; however, the assistance was allegedly inadequate and conducted in a language she did not understand . She also was repeatedly treated by a psychiatrist with the assistance of an interpreter and was provided with prescribed medication for her mental ‑ health issues throughout her stay in the transit zone. She allegedly attempted suicide on 26   August 2018. 6 .     In the deportation section, where the applicants remained for less than a week, the space within which the applicants could move freely had been much smaller than that in the family section, with no facilities, such as TV or toys. The second applicant was not provided any food while in the deportation section. The remaining applicants had to eat their meals outside that section and were not allowed to take food to the second applicant. 7.     The applicants complained that the conditions of their confinement in the Röszke transit zone had been incompatible with the guarantees of Articles   3 and 8 of the Convention. Under Article 13 in conjunction with Articles 3 and 8 of the Convention they complained that there had been no effective remedy to complain about those conditions. Moreover, they complained that they had been detained in the transit zone in violation of Article 5 §§ 1 and   4 of the Convention. Lastly, they alleged that the respondent State had failed to comply with the interim measure indicated by the Court in violation of Article 34 as regards the first applicant and the applicant children. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 8.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 9.     The general principles concerning the confinement and living conditions of asylum-seekers have been summarised in Khlaifia and Others v.   Italy ([GC], no.   16483/12, §§ 158-69, 15   December 2016) and with respect to the confinement of minors in R.R. and Others (cited above, § 49). It notes that the present case is similar to that of R.R. and Others where, emphasising the primary significance of the passage of time for the application of Article   3 in this type of situations, the Court found a violation of this provision on account of the conditions to which the applicant children and mother had been subjected during their almost four-months-long stay in the Röszke transit zone (see R.R. and Others , cited above, § 65). It also found a violation of that provision with respect to the applicant father to whom the authorities provided no food during the stay in the transit zone (ibid., § 57). The Court notes that R.R. and Others concerned the confinement in the period between April and August 2017, that is about a year before the applicants’ stay in the Röszke transit zone. However, there is nothing suggesting that the conditions in the transit zone had significantly changed in the meantime. 10.     As regards the applicant children, who were one and three years old at the relevant time, the Court considers that given the conditions and constrains inherent during the confinement, the length of their stay in the Röszke transit zone must have caused them psychological suffering and had harmful consequences for their well-being (see R.R. and Others , cited above, §§   63-65). 11.     As regards the adult applicants, the Court notes that they, together with their children, stayed in the transit zone over the entire summer of 2018. Given the size of the container, the lack of proper ventilation and the limited outdoor space, which was moreover exposed to sun, the Court accepts that the heat during the summer aggravated their situation and is thus relevant for the assessment under Article 3 (see R.R. and Others , cited above, § 60). This is so even if the applicants were provided a fan and the courtyard was occasionally watered, as alleged by the Government. 12.     The Court further finds that the first applicant was particularly vulnerable (see paragraph 5 above). The Metropolitan Court when granting the applicants’ request for an interim measure (see paragraph 3 above) took account of, inter alia , the vulnerability of the first applicant because of her mental-health problems which persisted throughout her detention in the transit zone. In view of that, the Court considers that the conditions of confinement, the related constraints and insecurity must have caused the first applicant significant psychological suffering, of which the authorities must have been aware. It moreover notes that she had been exposed to these conditions for almost seven months. 13.     As regards the second applicant, the Court, on 2 November 2018, decided to indicate to the Government, under Rule 39 of the Rules of Court, to provide him with food during his stay in the deportation section. It has not been disputed by the parties that the authorities provided him with no food while being held there. While there appear to be some ambiguity as regards the duration of the applicants’ stay in the deportation section, the Court having regard to the detailed account provided by the applicants, which was not refuted by any evidence from the Government, finds it established that they were held there between 31 October and 5 November 2018. It considers that the authorities failed to have due regard to the state of dependency in which the second applicant lived during this period ( see R.R. and Others , cited above, § 57). 14.     Having regard to all the above considerations, the Court considers that the situation complained of subjected the applicants to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention ( see R.R. and Others , cited above, §§ 57 and 65). There has therefore been a violation of that provision. Alleged violation of article 5 §§ 1 and 4 of the Convention 15.     The applicants’ complaint that they had been confined to the transit zone in violation of Article 5 §§ 1 and 4 of the Convention is similar to the one examined in the case R.R. and Others , where the Court found that the applicants’ stay for almost four months in the transit zone amounted to a de   facto deprivation of liberty (cited above, §§ 74-83). The Court, having regard to all the relevant circumstances, does not consider that the present case warrants a different conclusion. Article   5 is therefore applicable. This part of the application, which is not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention, nor inadmissible on any other grounds, must therefore be declared admissible. 16.     Having examined all the material before it, the Court concludes that the above complaints disclose a violation of Article 5 §§ 1 and 4 of the Convention in the light of its findings in R.R. and Others (cited above, §§   87 ‑ 92 and 97-99). OTHER COMPLAINTS 17.     The applicants also complained that the condition of their stay in the transit zone had given rise to a violation of Article 8 of the Convention and that the Government had failed to comply with Article 34 of the Convention with respect to the first applicant and the applicant children. Moreover, the applicants raised complaints under Article 13 read in conjunction with Articles 3 and 8 of the Convention. 18.     Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaints (see, among many other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (GC), no. 47848/08, §   156, ECHR 2014, and Azer Ahmadov v. Azerbaijan , no. 3409/10, § 79, 22   July 2021). APPLICATION OF ARTICLE 41 OF THE CONVENTION 19.     The applicants each claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage and 6,330 euros (EUR) in respect of costs and expenses incurred before the Court. 20.     The Government argued that the claims were excessive. 21.     Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, EUR   15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 22.     Having regard to the documents in its possession, the Court considers it reasonable to award the applicants, jointly, EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to the applicants. 23.     The Court further 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the complaints under Article 3 and Article 5 §§ 1 and 4 of the Convention admissible; Holds that there has been a violation of Article 3 of the Convention; Holds that there has been a violation of Article 5 §§ 1 and 4 of the Convention; Holds that there is no need to examine separately the admissibility and merits of the remaining complaints; Holds (a)   that the respondent State is to pay the applicants jointly, within three months, the following amounts , to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)   EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 25 August 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Liv Tigerstedt   Alena Poláčková   Deputy Registrar   President     APPENDIX List of applicants   No. Applicant’s Name Gender Year of birth 1. W.O. F 1992 2. O.G.O. M 1988 3. I.O. M 2015 4. I.M.O. M 2017