CASE OF A.A.A. AND OTHERS v. HUNGARY

 

 

FIRST SECTION

CASE OF A.A.A. AND OTHERS v. HUNGARY

(Application no. 37327/17)

 

 

 

 

 

JUDGMENT
 

STRASBOURG

9 June 2022

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of A.A.A. 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,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 37327/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 May 2017 by six Iraqi 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 parties’ observations;

Having deliberated in private on 17 May 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 father and mother, respectively, and the third to sixth applicants are their four children who at the time of the events in question were all minors (see the appended table). The family stayed at the Tompa transit zone at the border of Hungary and Serbia between 29 March 2017 and 11 August 2017.

3.  The applicants’ asylum requests, which they had submitted on the day of their arrival to the transit zone, were rejected on 16 May 2017. Further to their request for judicial review, the Immigration and Asylum Office (“the IAO”) rejected their asylum requests again on 30 June 2017. The applicants appealed. The Szeged Administrative and Labour Court quashed the IAO’s decision, and a new set of asylum proceedings was initiated on 8 September 2017. Their asylum requests were rejected again on 7 November 2017. In the meantime, on 11 August 2017, the applicants were transferred to an open reception facility (community shelter). This would appear to have been done in response to the second applicant’s frequent health-related problems. On 24 August 2017 the applicants left the community shelter. They currently reside in Germany.

4.  In the Topma transit zone the applicants stayed in the family section, where they were housed in a container. They could not leave their section, other than when taken to medical or other appointments, escorted by guards or police officers. In addition to describing the general conditions in the Tompa transit zone, the applicants alleged that the second applicant had suffered from depression and anxiety as well as other medical problems – some relating to her heart condition and some resulting in her losing consciousness. The first applicant was allegedly a torture survivor who had required but had not received any psychiatric or psychological treatment in the transit zone.

5.  The applicants complained that the conditions of their confinement in the Tompa transit zone had been incompatible with the guarantees of Articles 3 and 8 of the Convention. Under Article 13 in conjunction with Article 3 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.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION as regards the applicant children

6.  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.

7.  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 v. Hungary (no. 36037/17, § 49, 2 March 2021). As regards the applicant children, the present case is similar to that of R.R. and Others where the Court, emphasising the primary significance of the passage of time for the application of Article 3 in situations such as the present one, found a violation of this provision on account of the conditions to which the applicants children were subjected during their almost four-months-long stay in the Röszke transit zone (see R.R. and Others, cited above, §§ 58-60 and 63‑65, compare M.B.K. and Others v. Hungary [Committee], no. 73860/17, § 6, 24 February 2022). Having regard to the evidence before it and noting that general conditions in the Tompa transit zone appear to have been very similar to those in Röszke transit zone, the two zones having essentially the same design and services provided to those staying in them (see N.A. and Others v. Hungary (dec.) [Committee], no. 37325/17, § 9, 1 February 2022), the Court sees no reasons to find otherwise in the present case in which the applicant children stayed in the Tompa transit zone for over four months.

8.  There has accordingly been a violation of Article 3 of the Convention with respect to the applicant children.

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION as regards the adult applicants

9.  The Court refers to its above finding that the general conditions in the Tompa transit zone appear to have been very similar to those in the Röszke transit zone. The Court has previously considered that the living conditions in the latter in terms of accommodation, hygiene and access to food and medical care were generally acceptable for holding asylum-seekers for a limited period of time (see R.R. and Others, cited above, § 52, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 186-94, 21 November 2019). Although the adult applicants in the present case stayed in the transit zone for over four months, the evidence in the case file does not show that the otherwise acceptable conditions in the transit zone were particularity ill‑suited in their circumstances (compare M.B.K. and Others, cited above, § 8). The Court notes that the adult applicants were not separated from their children during the detention (see, for instance, Popov v. France, nos. 39472/07 and 39474/07, § 105, 19 January 2012).

10.  As regards the alleged mental health problems of the first applicant relating to his treatment in Iraq, the Court does not find it substantiated that these were brought to the attention of the Hungarian authorities during the applicants’ stay in the transit zone. As regards the second applicant, it follows from the documents in the case file that she was taken from Tompa transit zone to a hospital on four occasions. She received frequent medical attention and repeatedly underwent diagnostic tests – especially between 8 July and 11 August 2017 – due to recurring chest pain, breathing difficulties, syncope and anxiety. It would also appear that she had been prescribed medicine but, on several occasions, refused to take it, and was also referred to certain medical examinations, such as gynaecological exam and echocardiogram, which she failed to attend. Her syncope seems to have continued also after she arrived in Germany, where she was likewise prescribed medication.

11.  Having regard to the documents in the case file, the Court finds the second applicant’s complaint that she received inadequate medical attention in the transit zone unsubstantiated. Furthermore, the Court takes note of the second applicant’s health-related difficulties. However, having regard to the medical assistance provided to her and to the information in its possession, it does not see sufficient basis for the conclusion that the conditions of her stay in the transit zone attained the threshold of severity required to engage Article 3 of the Convention. The Court also notes that the possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, § 151, 31 January 2019, and R.R. and Others, cited above, § 62).

12.  In view of other above-mentioned circumstances, the Court finds that the threshold of severity required for Article 3 to come into play has not been attained with respect to the adult applicants. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4 of the Convention.

Alleged violation of article 5 §§ 1 and 4 of the Convention

13.  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.

14.  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

15.  Having declared the complaint under Article 3 regarding the adult applicants inadmissible, the adult applicants have no arguable claim for the purposes of Article 13 of the Convention. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a). It must be rejected in accordance with Article 35 § 4 of the Convention.

16.  The applicants also raised complaints under Article 13 read in conjunction with Article 3 with respect to the applicant children. Furthermore, they complained that the condition of their stay in the Tompa 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 with respect to all applicants. 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. It thus considers that the applicants’ remaining complaints are admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and R.R. and Others, cited above, §§ 69 and 107).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicants claimed each 15,000 euros (EUR) in respect of non‑pecuniary damage and, jointly, EUR 7,700 in respect of costs and expenses incurred before the Court.

18.  The Government argued that the claims were excessive.

19.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

20.  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.

21.  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 alone and in conjunction with Article 13, in so far as they concern the applicant children, as well as the complaints under Article 5 §§ 1 and 4, Article 8 and Article 34 of the Convention, relating to all applicants, admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 3 of the Convention as regards the applicant children;Holds that there is no need to examine the complaint under Article 3 in conjunction with Article 13 as regards the applicant children;Holds that there is no need to examine the complaints under Articles 8 and 34 of the Convention;Holds that there has been a violation of Article 5 §§ 1 and 4 of the Convention with respect to all applicants;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 12,500 (twelve thousand five hundred 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 9 June 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

Nationality

1.

A.A.A.

M

1978

Iraqi

2.

R.A.A.

F

1976

Iraqi

3.

A.A.S.

M

2000

Iraqi

4.

B.A.A.A.

F

2008

Iraqi

5.

L. A.A.A.

F

2010

Iraqi

6.

S.A.A.

F

2014

Iraqi

 

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