CASE OF F.O. AND OTHERS v. HUNGARY

FIFTH SECTION

CASE OF F.O. AND OTHERS v. HUNGARY

(Application no. 9203/18)

JUDGMENT
 

STRASBOURG

20 June 2024

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

In the case of F.O. and Others 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. 9203/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 February 2018 by three Afghan nationals (“the applicants”), relevant details listed in the appended table, who were represented by Mr T. Fazekas, 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 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 three members of an Afghan family in the Röszke transit zone between 11 July and 17 August 2017.

2.  The first applicant is the mother of two children: the second applicant who was five-year-old and the third applicant who was five-month-old at the time of the relevant events.

3.  The first and second applicants fled Afghanistan after the first applicant’s husband converted to Christianity. They travelled through Iran, Türkiye, Bulgaria, and Serbia. They submitted their first application for asylum in Hungary in May 2016, but left the country for Austria before the termination of the proceedings. The first and second applicants were transferred to Bulgaria in September 2016 from where they went to Serbia. The third applicant was born there.

4.  On 11 July 2017 they entered the Röszke transit zone where they immediately asked for asylum. As the first applicant’s husband and oldest child were in Germany, they requested family reunification. On the same day, the Immigration and Asylum Office (the IOA) designated the Röszke transit zone as their accommodation.

5.  Since the first and the second applicants had already applied for asylum but left the country before the conclusion of the proceedings, they were considered as “repeated” applicants. During her interview with the IAO on 11 July 2017 the first applicant was informed that by virtue of Section 80/K (1) of Act no. LXXX of 2007 on Asylum, she and the second applicant were not entitled to be given food by the IAO.

6.  On 8 August 2017 the Dublin Coordination Department of the IAO concluded that Germany was responsible for the processing of the applicants’ asylum request. On 17 August 2017 the applicants were placed in the Balassagyarmat Community Centre, from where they were transferred to Germany on 14 December 2017. In view of this, on 15 December 2017 the Hungarian asylum proceedings were terminated.

7.  During their stay in the transit zone the applicants were accommodated in the family sector. Besides the general conditions which have been described in R.R. and Others v. Hungary (no. 36037/17, §§ 10-12, 14-17 and 30-31, 2 March 2021) the applicants also complained about the heat during July and August, that the first and second applicants did not receive food or medical assistance and that the third applicant was not provided with vaccinations. The first applicant also claimed that despite her being in need of immediate psychological assistance, no such service had been available in the transit zone at the material time.

8.  During their entire stay in the transit zone, the first and the second applicants did not receive food from the authorities. During the first week, they ate the leftovers of other asylum seekers. Later, they were given food by charity organisations. Allegedly as a consequence, the first applicant was unable to breastfeed the third applicant. According to the first applicant, despite her repeated requests, the IAO refused to provide them with the kind of baby food that the third applicant would eat.

9.  Relying on Articles 3 of the Convention, taken alone and in conjunction with Article 13, the applicants complained about the allegedly inhuman or degrading conditions in which they were held in the transit zone and the lack of an effective remedy in this respect. They also complained under Article 5 §§ 1 and 4 of the Convention about their confinement to the transit zone for thirty-seven days. Lastly, they complained under Article 8 of the Convention that their confinement in the transit zones resulted in the violation of their private and family life.

THE COURT’S ASSESSMENT

10.  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.

11.  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).

12.  In Ilias and Ahmed v. Hungary ([GC], no. 47287/15, §§ 186-94, 21 November 2019) and R.R. and Others v. Hungary (no. 36037/17, § 52, 2 March 2021) the Court made an assessment of the general living conditions in the Röszke transit zone. In the latter case it also 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 violations of Article 3 on account of food deprivation for six days.

13.  As to the applicants’ circumstances, the Court notes that the applicant mother and the five-year-old applicant were not provided with food by the Hungarian authorities during their five-week-long stay in the transit zone. It appears that, as a consequence, the five-month-old applicant could not be breastfed by her mother, and, according to their unrebutted allegations, did not receive the type of baby food he would eat. The Court considers that by refusing to give the applicants food for a longer period of time, the authorities failed to have due regard to their vulnerability and the state of dependency in which they 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 them 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 does not find it necessary to examine the applicants’ other complaints (such as their exposure to heat and the alleged failure to provide medical care, including vaccinations to the third applicant) which might also be relevant for the assessment under Article 3.

14.  There has accordingly been a violation of Article 3 of the Convention.

15.  In Ilias and Ahmed (cited above, §§ 219-49) the Grand Chamber examined a comparable complaint and held that the applicants’ twenty‑three‑day-long stay in the Röszke transit zone did not constitute a de facto deprivation of liberty and, consequently, that Article 5 was not applicable. In the present case, due to legislative changes, the provision setting the maximum duration of an asylum-seeker’s stay in the transit zone did not apply (see R.R. and Others, cited above, § 79). However, the length of the applicants’ stay in the transit zone, that is thirty-seven days, did not exceed significantly the time needed for the examination of their asylum request (see Ilias and Ahmed, cited above, §§ 228-29). In particular, it has not been shown that the time-limits for processing their asylum claim were exceeded or that the Hungarian authorities failed to act in a speedy and diligent manner (compare and contrast to R.R. and Others, cited above, §§ 79 and 80). In view of the foregoing and also noting that the applicants could have left the transit zone in the direction of Serbia at any moment, which question have been addressed already in the cases of Ilias and Ahmed (cited above, §§ 220-23 and 231‑48) and R.R. and Others (cited above, §§ 75 and 81), the applicants’ stay in the transit zone could not be considered as deprivation of liberty within the meaning of Article 5 of the Convention.

16.  It follows that the applicants’ complaints under Article 5 §§ 1 and 4 of the Convention are incompatible ratione materiae with its provisions within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4 of the Convention.

17.  The applicants also complained under Article 8 and Article 13 taken in conjunction with Article 3 of the Convention about the conditions of 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 complaint (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

18.  The applicants claimed 18,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,400 in respect of costs and expenses incurred before the Court.

19.  The Government contested these claims as being excessive.

20.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, EUR 7,5000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants.

21.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicants, jointly, EUR 1,500 covering costs for the proceedings before the Court, plus any tax that may be chargeable to them.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(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 7,500 (seven 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;

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

APPENDIX

List of applicants:

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.

F.O.

1987

Afghan

Herxheim, Germany

2.

S.O.

2012

Afghan

Herxheim, Germany

3.

K.O.

2017

Afghan

Herxheim, Germany