CASE OF M.S.H. v. HUNGARY

FIFTH SECTION

CASE OF M.S.H. v. HUNGARY

(Application no. 44283/19)

JUDGMENT
 

STRASBOURG

27 February 2025

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

In the case of M.S.H. 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. 44283/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 August 2019 by an Iranian national, M.S.H., born in 1994 and living in Rotenburg a. d. Fulda (“the applicant”) who was represented by Mr Sz.M. Sánta, 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 applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 30 January 2025,

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

SUBJECT MATTER OF THE CASE

1.  The applicant fled Iran, his country of origin, fearing persecution by the authorities for being an activist in the Arabic minority movement. On 18 January 2018 he arrived at the Tompa transit zone on the border of Hungary and Serbia where he sought asylum.

2.  On the same day the asylum authority ordered that the applicant be accommodated in the Tompa transit zone pending the examination of his asylum claim.

3.  His asylum request was rejected on 14 March 2018. The appeal court quashed this decision and remitted the case to the asylum authority. In the resumed proceedings, on 1 June 2018 the authority ordered the applicant to be accommodated in the Tompa transit zone and on 21 August 2018 it rejected the applicant’s asylum request. On 12 February 2019 the Debrecen Administrative and Labour Court quashed the authority’s decision and remitted the case to the authority. It also found that, by the time the asylum authority had designated the Tompa transit zone as the applicant’s place of accommodation for the second time on 1 June 2018, the length of the asylum proceedings had already exceeded what could be considered reasonable. The court specified that in resumed proceedings the authority could not designate the transit zone as the applicant’s place of accommodation.

4.  On 15 February 2019 the asylum authority ordered the applicant’s transfer to Balassagyarmat Community Accommodation. On 6 March 2019 the applicant left for an unknown location. According to information dated September 2021 he now resides in Germany.

5.  In the Tompa transit zone the applicant had been placed in a container with his brother and sister. Each of them had a separate bed and a wardrobe. They could not leave their section, other than when taken to medical or other appointments, escorted by guards or police officers. Besides the general material conditions, the applicant also complained in particular of the heat, his alleged weight loss due to the poor quality of food provided in the transit zone and the high level of noise during the night in the family section which made it difficult to sleep.

6.  The applicant submitted that the conditions of his confinement in the Tompa transit zone had been incompatible with the guarantees of Article 3 of the Convention. Under Article 13, in conjunction with Article 3 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

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).

8.  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 a thorough assessment of the general living conditions in the Röszke transit zone. It found that, in terms of accommodation, hygiene and access to food and medical care, the living conditions were generally acceptable for holding asylum-seekers for a short period of time, in which case these conditions might not attain the threshold of severity required to engage Article 3. However, in the case of a longer period, the Court found that their repetition and accumulation would necessarily have harmful consequences for those exposed to them (ibid., § 64; compare and contrast Ilias and Ahmed, cited above, § 193). 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 (see R.R. and Others, cited above, § 64 and M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, § 199, 18 November 2021).

9.  The Court takes into account its previous finding that the general conditions in the Tompa transit zone had been very similar to those in the Röszke transit zone, the two zones having essentially the same design and providing the same services to those staying in them (see H.M. and Others v. Hungary, no. 38967/17, § 17, 2 June 2022; N.A. and Others v. Hungary (dec.) [Committee], no. 37325/17, § 9, 1 February 2022, A.A.A. and Others v. Hungary [Committee], no. 37327/17, §§ 7 and 9, 9 June 2022).

10.  Concerning the applicant’s individual situation, the Court notes that he stayed in the transit zone over the summer of 2018. It refers to its previous findings in R.R. and Others v. Hungary (cited above, § 60) that suffering from heat cannot be underestimated, as such conditions may affect one’s well-being and in extreme circumstances affect health. 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 the applicant’s situation and is thus relevant for the assessment of the conditions of his detention under Article 3 (compare W.O. and Others v. Hungary [Committee], no. 36896/18, § 11, 25 August 2022).

11.  The Court also takes note of the fact that the applicant had to live in the above detailed conditions (see paragraphs 5 and 10 above) for thirteen months. The Court finds such duration to be particularly lengthy. It refers to the CPT report cited in R.R. and Others (cited above, § 30) according to which the living conditions in both transit zones had not been adequate for holding foreign nationals for prolonged periods – namely for longer than several weeks.

12.  Thus, due to the combination of the above two factors – the particularly long period of time that the applicant had to spend in the conditions detailed above, which the CPT did not consider appropriate for a longer period of detention –, the Court finds that the situation complained of subjected the applicant to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention (compare ibid., § 201, compare and contrast Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 194, 21 November 2019).

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

14.  The applicant’s complaint that he 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 only difference in the present case is that the applicant’s stay in the transit zone was even longer (13 months). Thus, the Court does not consider that it warrants a different conclusion. Article 5 is therefore applicable. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

15.  Having regard to all the relevant circumstances, 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).

16.  The applicant also complained under Article 13 read in conjunction with Article 3, of the lack of an effective remedy with respect to the conditions of his detention. 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

17.  The applicant claimed 9,500 euros (EUR) in respect of non-pecuniary damage and 1,000 euros (EUR) in respect of costs and expenses incurred before the Court.

18.  The Government contested these claims as being excessive.

19.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 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 applicant EUR 1,000 for the proceedings before the Court, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(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 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, 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 27 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President