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

FIFTH SECTION

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

(Application no. 16217/19)

JUDGMENT
 

STRASBOURG

19 December 2024

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

In the case of M.D.A. and Others v. Hungary,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Gilberto Felici,
 Kateřina Šimáčková, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 16217/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 March 2019 by six Afghan nationals, whose details listed in the appended table (“the applicants”), who were represented by Ms G. Matevžič, senior legal officer at the Hungarian Helsinki Committee 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 parties’ observations;

Having deliberated in private on 28 November 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applicants are a family of six. The first and second applicants (the father and the mother) are originally from Afghanistan. Their children (the third, fourth, fifth and sixth applicants) were born in Iran.

2.  The family fled Iran in 2016. Travelling through several countries, they arrived at the Röszke transit zone in Hungary on 9 January 2019 where they applied for asylum. On the same day, the asylum authority ordered that the applicants be accommodated in the Röszke transit zone pending the asylum proceedings.

3.  On 12 February 2019 the asylum authority dismissed the applicants’ asylum requests as inadmissible and ordered their expulsion from Hungary.

4.  The applicants applied for judicial review of the decision. On 27 February 2019 the Budapest Administrative and Labour Court rejected their request concerning the inadmissibility decision. At the same time, it quashed the authority’s decision to place the applicants in the transit zone, with effect from 6 February 2019. The court held that their placement had been unlawful as of that date, since it had exceeded the four-week period allowed by Article 43(2) 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).

5.  On 26 March 2019 the applicants requested the Court to grant an urgent interim measure under Rule 39 of the Rules of Court. On the same day the Court indicated to the Government to take all necessary measures to ensure that the environment where the family was placed should comply with the requirements of Article 3 of the Convention, taking into account the presence of minors.

6.  The asylum authority’s decision on the applicants’ expulsion having become final, the immigration authority initiated immigration proceedings with a view to returning the applicants to Serbia. By its decision of 28 March 2019 their designated place of residence remained the Röszke transit zone but they were moved to the alien policing (deportation) sector. Their 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”).

7.  They alleged that the first and second applicants had not received any food on the evening of 28 March. The next day they submitted a request under Rule 39 of the Rules of Court, asking the Court to indicate to the Hungarian Government that they were to be provided with food by the authorities during their stay in the transit zone. The first and second applicants received food again from the authorities from that evening. On 1 April the Court indicated to the Government the measure requested by the applicants.

8.  They stayed in the transit zone until 7 May 2019 when they were removed to Serbia by the Hungarian authorities.

9.  In the present case, the applicants complained about the conditions in which they were held in the transit zone and the lack of an effective remedy in this respect. They relied on Articles 3 and 8 of the Convention, taken alone and in conjunction with Article 13. They also complained about their confinement to the transit zone under Articles 5 §§ 1 and 4 of the Convention. Lastly, they complained under Article 34 of the Convention about the lack of measures taken by the Government in response to the Court’s indication of 26 March 2019 under Rule 39 of the Rules of Court.

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) and with respect to the confinement of minors in S.F. and Others v. Bulgaria, (no. 8138/16, §§ 78-83, 7 December 2017), M.H. and Others v. Croatia, (nos. 15670/18 and 43115/18, §§ 183-186, 18 November 2021) and R.R. and Others (no. 36037/17, § 49, 2 March 2021).

12.  In R.R. and Others v. Hungary (cited above, §§ 52, 60-64) the Court has already examined the physical conditions in the Röszke transit zone, the suitability of the facilities for adults and children and the provision of medical services at the material time. It concluded that those conditions might not attain the threshold of severity required to engage Article 3, where the confinement was of a short duration, however, in the case of a longer period, their repetition and accumulation would necessarily have harmful consequences for those exposed to them (ibid., § 64). The Court has repeatedly held in this connection that the passage of time is of primary significance for the application of Article 3 of the Convention (ibid., § 64 and see also M.H. and Others, cited above, § 199).

13.  As regards the third, fourth, fifth and sixth applicants, who were seventeen, thirteen, six and four years old at the relevant time, the present case is similar to that of R.R. and Others. In that case the Court found a violation of Article 3 on account of the conditions to which the applicant children were subjected during their almost four-month-long stay in the Röszke transit zone (see R.R. and Others, cited above, §§ 58-60 and 63‑65). In the present case, where the four minor applicants stayed in the Röszke transit zone for the same amount of time as the minor applicants in R.R. and Others, the Court sees no reasons to find otherwise and concludes that there has been a violation of Article 3 in that regard.

14.  The Court further notes that the parents alleged to have been given no food by the authorities from 28 March until the evening of 29 March 2019. The Government made contradictory statements about whether the denial of food had affected only the first applicant or both. They nevertheless confirmed that the refusal to provide meals had covered a period between lunchtime on 28 March and dinnertime on 29 March 2019. They argued that shopping facilities had been available in the transit zone and the applicants had been allowed to obtain food at their own expense. In the case of R.R. and Others the Court found a violation of Article 3 with respect to the applicant father who had not been provided with food by the authorities for weeks, noting that the Government’s arguments (similar to the ones submitted in the present case) were unable to change the fact that the domestic authorities had not provided the applicant with food despite the state of dependency in which he had lived in the transit zone (cited above, § 57). Similarly, in S.AB. and S.AR. v. Hungary ([Committee], no. 17089/19, § 17, 30 November 2023) the Court found a violation of Article 3 on account of food deprivation for three days and in A.P. v. Hungary ([Committee], no. 18581/19, § 14, 3 October 2024) for almost two days. In the present case the Court considers that by refusing to give the first and second applicants food for more than twenty-four hours (compare S.F. and Others v. Bulgaria, cited above, § 87), the authorities failed to have due regard to the state of dependency in which they lived during this period (see R.R. and Others, cited above, § 57), and subjected them to treatment exceeding the threshold of severity required to engage Article 3 of the Convention (ibid).

15.  There has accordingly been a violation of Article 3 of the Convention concerning the first and the second applicant, on account of the denial of food.

16.  The Government argued that the applicants’ stay in the transit zone during the asylum proceedings and the alien policing procedure had not constituted deprivation of liberty.

17.  Concerning the applicants’ placement in the transit zone during the asylum proceedings, the Court notes that their complaint that they were 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. In that case 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 circumstances, does not consider that the present case warrants a different conclusion.

18.  Concerning the applicants’ placement in the transit zone during the alien policing procedure, the Court notes that it was based on 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 at a specific place when that person has been ordered to be expelled from the country and has neither financial resources nor accommodation. Section 62 (3a) allows for the designation of one of the transit zones as such a specific place of stay during the crisis situation related to mass migration. Thus, the applicants’ transit zone placement during the alien policing procedure served a different purpose and was based on a different legal provision to that of their transit zone placement during the asylum proceedings. As regards the applicability of Article 5 of the Convention, their detention was nevertheless similar in the relevant aspects to the asylum detention of the applicants in R.R. and Others. Having regard to the fact that the applicants were escorted to the alien policing sector by police officers in enforcement of an expulsion decision; the lack of any domestic legal provisions fixing the maximum duration of their confinement; the excessive duration of their stay (four months) and the conditions in which they were held, the Court considers that – irrespective of the classification in domestic law – the applicants were deprived of their liberty within the meaning of Article 5 in the transit zone in the alien policing sector (compare R.R. and Others, cited above, § 83). Article 5 § 1 is therefore applicable.

19.  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.

20.  As regards the applicants’ placement in the transit zone during the asylum proceedings, the Court notes that on 27 February 2019 the Budapest Administrative and Labour Court found that the applicants’ detention was unlawful from 6 February 2019 (see paragraph 4 above) (mutatis mutandis, X.Y. v. Hungary, no. 43888/08, §§ 28‑29, 19 March 2013). This period of detention therefore did not take place “in accordance with a procedure prescribed by law”.

21.  As regards the applicants’ placement in the transit zone during the alien policing procedure, even though the placement order under sections 62 (1) (f) and 62 (3a) of the Immigration Act resulted in their de facto detention (see paragraph 18 above), these provisions did not provide for sufficient guarantees against arbitrariness. By the designation of a transit zone as compulsory place of stay, the applicants’ de facto detention could be brought about without a formal and reasoned decision on their 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 regard 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, not the substance of the decision. Consequently, 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) and as such did not provide the applicants with effective safeguards against arbitrariness.

22.  These considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 §§ 1 and 4 of the Convention regarding the applicants’ stay in the transit zone during the asylum proceedings and the alien policing procedure.

23.  The applicants further complained under Article 8 and Article 13 read in conjunction with Articles 3 and 8 of the conditions of their detention and the lack of any effective remedy in this regard. They also made complaints under Article 34 (see paragraph 9 above). In view of 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

24.  The applicants jointly claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. They did not submit any claim in respect of the costs for the proceedings before the Court.

25.  The Government considered the applicants’ claim to be excessive.

26.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants jointly EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, jointly, within three months, at the rate applicable at the date of settlement, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 19 December 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: