CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 20 juin 2024

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HUNGARY (Application no. 37641/19)             JUDGMENT   STRASBOURG 20 June 2024   This judgment is final but it may be subject to editorial revision. In the case of H.L. v. Hungary, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President ,   Lado Chanturia,   Kateřina Šimáčková , judges , and Sophie Piquet, Acting Deputy Section Registrar, Having regard to: the application (no.   37641/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 July 2019 by an Iraqi national, H.L. (“the applicant”), who was born in 1999, lives in Aflenz and was represented by Mr R. Miskolczi, a lawyer practising in Nyíregyháza; 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 applicant’s name disclosed; the decision to give priority to the application (Rule 41 of the Rules of Court); the parties’ observations;   Having deliberated in private on 30 May 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The application concerns the confinement of a rejected asylum seeker in the Tompa transit zone between 9 July 2019 and 21 May 2020, pending expulsion. 2.     The applicant is an Iraqi national who travelled to Hungary with his family – two parents and 10 minor siblings – through Türkiye, Bulgaria and Serbia. 3.     They entered the Tompa transit zone on 27 July 2018 and applied for asylum immediately. As the applicant was already 19 years old at that time, his application was treated separately by the Immigration and Asylum Office (IAO). 4.     Following two remittals by the administrative and labour court, the IAO rejected his application for asylum on 2 May 2019 and expelled him to Iraq. His deportation was ordered to take place with official escort. The decision was upheld by the court on 2 July 2019. As his expulsion became final, on 9 July 2019 alien policing proceedings were initiated against him. 5.     Between 27 July and 19 October 2018 the applicant remained in the Tompa transit zone. On the latter date he was transferred to the Balassagyarmat Community Shelter which he left on 28 October 2018. He was arrested near Hungary’s border with Austria on 22 November 2018, following which he was placed in asylum detention for being a flight risk. He was released from detention on 22 May 2019, when the length of his detention reached the statutory maximum of six months. He was first placed in the Balassagyarmat Community Shelter, from where he was transferred back to the Tompa transit zone on 9 July 2019. His placement was ordered on the basis of sections 62(1) (f) and 62(3a) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (“the Immigration Act”). He remained in the transit zone until 21 May 2020 when the facility was closed down. 6.     During his stay in the transit zone, he was accommodated in a 5-bed container in the alien policing sector. He submitted that he had been unable to leave his sector for any purpose unless he was escorted by armed police or security officers. Neither the representatives of the Office of the United Nations High Commissioner for Refugees, nor other humanitarian NGOs (which have access to asylum seekers living in the other sectors) could enter the alien policing sector of the transit zone. 7.     From 9 to 17 July 2019, the applicant was not provided with any food by the Hungarian authorities. As his siblings were still in the transit zone, they could share some of their food with him. He only received food from the authorities following the Court’s decision of 17 July 2019, by which his request for interim measure under Rule   39 of the Rules of the Court had been granted and the Government had been asked to provide the applicant with food during his stay in the transit zone. 8.     The applicant submitted that the authority’s failure to provide him food for seven days and the conditions of his confinement in the Tompa transit zone breached the prohibition of torture and inhuman or degrading treatment under Article   3 of the Convention. The detention conditions had also been incompatible with Article   8 of the Convention. Under Article   13 in conjunction with Articles   3 and   8 of the Convention he complained that there had been no effective remedy to complain about those conditions. Moreover, he complained that he had been detained in the transit zone in violation of Article   5§§   1 and   4 of the Convention. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 9.     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. 10.     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). 11.     In R.R. and Others v.   Hungary (no. 36037/17, §   52, 2   March 2021) the Court found a violation of Article   3 with respect to the applicant father who had not been provided with food by the authorities (ibid., § 57). Similarly, in W.O. and Others v.   Hungary ([Committee], no.   36896/18, §   13, 25   August 2022) and O.Q. v.   Hungary ([Committee], no.   53528/19, §   13, 5   October 2023) the Court found a violation of Article 3 on account of food deprivation for six days. 12.     As to the situation of the present applicant, the Court notes that he was given no food by the Hungarian authorities between his arrival in the transit zone on 9 July 2019 and the communication of the Court’s decision to grant the applicant’s interim measure request on 17 July 2019. It considers that by refusing to give him food, the authorities failed to have due regard to the state of dependency in which he lived during this period (see R.R. and Others , cited above, § 57, and W.O. and Others v. Hungary [Committee], cited above, §   13), and subjected him to treatment exceeding the threshold of severity required to engage Article 3 of the Convention ( R.R. and Others , cited above, §§   57 and 65). In light of this, the Court considers that there is no need to examine the applicant’s other complaints (such his prolonged detention and the general material conditions) which might also be relevant for the assessment under Article 3. 13.     There has accordingly been a violation of Article 3 of the Convention. Alleged violation of article 5 §§ 1 and 4 of the Convention 14.     The Court notes that the applicant’s complaint concerns his placement in the transit zone during the alien policing procedure, that is between 9   July   2019 and 21 May 2020. He was placed there on the basis of sections 62(1) (f) and 62(3a) of the Immigration Act. According to section 62(1) (f), the immigration authority can order a third-country national to reside in a specific place when that person has been ordered to be expelled and has neither the material resources necessary for his or her subsistence nor accommodation. Section 62(3a) allows for the designation of one of the transit zones as such a specific (compulsory) place of stay during the crisis situation related to the mass migration. 15 .     The measure of “designation of a compulsory place of stay” under section 62 is distinct from the transit zone placement during the asylum proceedings. Nevertheless, as regards the applicability of Article 5 of the Convention, the applicant’s expulsion detention in the transit zone was in the relevant aspects similar to the asylum detention of the applicants in R.R.   and   Others . Having regard to, in particular, the fact that the applicant was escorted to the alien policing sector by the police officers in enforcement of an expulsion decision; the lack of any domestic legal provisions fixing the maximum duration of his stay, the excessive duration of his confinement (more than ten months) and the conditions in which he was held in the zone, it considers that – irrespective of the classification in domestic law – the applicant was deprived of his liberty within the meaning of Article 5 in the transit zone during the alien policing procedure (see R.R. and Others, cited above, §   83). Article 5 § 1 is therefore applicable. 16.     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. 17.     As regards the lawfulness of the applicant’s confinement to the alien policing sector of the transit zone, even though the placement order under sections 62(1) (f) and 62(3a) of the Immigration Act resulted in the applicant’s de facto detention (see paragraph 15 above), the provisions regulating such a placement did not provide for sufficient guarantees against arbitrariness. By the designation of a transit zone as compulsory place of stay, the applicant’s de facto detention could be brought about without a formal and reasoned decision on his detention, and in the absence of any provision setting a limit to the length of such placement, for an indeterminate time ( see Louled Massoud v. Malta , no. 24340/08, § 71, 27 July 2010; and with regards to transit zone detention during the asylum proceedings see R.R. and Others , cited above, §§ 88-90). Furthermore, as to the judicial review of the placement decision, the Court observes that only a failure by the ordering authority to comply with its obligation to provide information to the person about his or her rights and obligations could be challenged before the courts, in the form of an objection, but not the substance of the decision. Namely, the domestic law did not provide the applicants with the possibility to contest the lawfulness and length of their detention (see Louled Massoud, cited above, §   71). 18.     In view of the above, the Court finds that the national law which served as the basis for the applicants’ detention did not meet the standard of “lawfulness” set by the Convention and did not provide the applicants with effective safeguards against arbitrariness. 19.     There has accordingly been a violation of Article 5 §§   1 and   4 of the Convention. OTHER COMPLAINTS 20.     The applicant also complained under Article   8 and Article   13 read in conjunction with Articles   3 and   8 of the Convention about the food deprivation, the conditions of his detention, and the lack of an effective remedy in this regard. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v.   Romania [GC], no.   47848/08, §   156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.     The applicant claimed 15,000   euros (EUR) in respect of non ‑ pecuniary damage and EUR 4,800 in respect of costs and expenses incurred before the Court. 22.     The Government considered the applicant’s claim to be excessive. 23.     Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR   3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. 24.     Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR   1,500 covering costs for the proceedings before the Court, plus any tax that may be chargeable to him. 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 applicant, 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 3,000 (three 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 June 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Sophie Piquet   Stéphanie Mourou-Vikström   Acting Deputy Registrar   President