FIRST SECTION
DECISION
Application no. 37325/17
N.A. and Others
against Hungary
The European Court of Human Rights (First Section), sitting on 1 February 2022 as a Committee composed of:
Raffaele Sabato, President,
Péter Paczolay,
Davor Derenčinović, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 37325/17) 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 the applicants 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’ name disclosed;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the decision to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court which was subsequently lifted;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT-MATTER OF THE CASE
1. The first and second applicants are the father and mother, respectively, and the third to seventh applicants are their five minor children (see the appendix).
2. After leaving Syria, crossing several other countries, and staying in Serbia for seven months, the applicant family arrived at the Tompa transit zone at the border between Hungary and Serbia on 3 May 2017. This was one of the two transit zones operating in Hungary at that time. On the same day they applied for asylum and were interviewed by the Immigration and Asylum Office. The latter issued a ruling ordering that they be accommodated in the Tompa transit zone on the basis of section 80/J (5) of the Asylum Act.
3. The applicants were staying in the section designated for families. They could not leave their section, other than when taken to medical or other appointments, escorted by guards or police officers. They, together with the second applicant’s brother, were given a 13‑square‑metre living container, in which an extra bed was added for the new-born (see paragraph 4 below).
4. On 5 and 17 May 2017 the second applicant was taken to the hospital, escorted by police officers. On the latter occasion she gave birth to the seventh applicant. She stayed in the hospital for four days after which she was taken back to the transit zone by police van escorted by police officers.
5. During their stay in the transit zone one of the applicant children allegedly suffered from tooth pain but was not provided with any relief by the staff in the transit zone.
6. On 30 May 2017 the applicants were granted subsidiary protection and were transferred to an open reception facility inside Hungary. From there the applicants left Hungary and currently live in Germany. They alleged that they left Hungary due to the lack of integration support.
7. The applicants complained that the conditions of their stay in the Tompa transit zone had been incompatible with 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. They also complained that they had been confined to the transit zone, in violation of Article 5 §§ 1 and 4 of the Convention.
THE COURT’S ASSESSMENT
Complaint under Article 3 of the Convention8. The Court has summarised the relevant principles regarding the confinement and living conditions of asylum-seekers in Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 158-69, 15 December 2016) and as regards the confinement of minors in R.R. and Others v. Hungary (no. 36037/17, § 49, 2 March 2021).
9. The 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. As regards the latter zone the Court has already considered that the living conditions 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 Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 186-94, 21 November 2019, and R.R. and Others, cited above, § 52). In R.R. and Others, which concerned the confinement of a family with young children to the transit zone for almost four months, the Court noted that the conditions in the transit zone, depending on the circumstances of the case, may not attain the threshold of severity required to engage Article 3, where the confinement was of a short duration (cited above, § 64). It however considered that, in the case of a longer period, their repetition and accumulation would necessarily have harmful consequences for those exposed to them (ibid).
10. In the present case the applicants stayed in the transit zone twenty‑seven days. There is no indication that handcuffs or other restraint devices were used on them. There is also no indication that they suffered from medical or psychological problems which they brought to the attention of the Hungarian authorities during their stay in the transit zone, except for the alleged tooth pain of one of the applicant children. This by itself could not be considered as attaining the minimum level of severity necessary to fall within the scope of Article 3. As regards the alleged exposure to heat, the Court notes that the applicants were able to move freely within the family section, had unrestricted access to the outdoor yard and communal rooms and, in particular, did not stay in the transit zone during the summer.
11. The second applicant arrived in the transit zone in the advanced stage of pregnancy and was twice taken to the hospital, including when she was in labour. There is no indication that the treatment and care she received would be inadequate or insufficient (contrast R.R. and Others, cited above, §§ 62 and 63). As regards the lack of contact with her while she was in the hospital, the remaining applicants must have been aware that she was in labour when she was taken there. She was hospitalised for four days which does not seem unusual for the labour and subsequent recovery.
12. The Court also takes into account that the second applicant, who was pregnant upon arrival, and the applicant children could be considered particularly vulnerable. The presence of elements resembling a prison environment even in the sections of the transit zone designated for families and the constraints inherent during confinement, which are particularly arduous for a young child, must have caused them anxiety and psychological disturbance (see R.R. and Others, cited above, § 63). However, the applicant children, who throughout the stay remained with their parents, had access to certain facilities designated for playing and were able to participate in occasional activities organised specifically for children in the family section. Moreover, the applicants were not confined to the transit zone for a prolonged period of time (see Ilias and Ahmed, cited above, §§ 192-94, and contrast R.R. and Others, cited above, § 64, where the applicants were confined to the transit zone for three months and twenty-seven days), they were accommodated in the family section throughout their stay (contrast R.R. and Others, cited above, § 61, where the applicants were moved to the isolation section) and were all provided with food and other necessities (contrast R.R. and Others, cited above, §§ 53-57, where the applicant father was not provided with food).
13. Taking into account the applicants’ individual circumstances, the material conditions in the zone and, in particular, the length of the applicants’ stay there, the Court finds that the situation complained of did not reach the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. 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.
Complaint under Article 5 §§ 1 and 4 of the Convention14. The factors relevant to determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in transit zones and reception centres for the identification and registration of migrants were summarised in Ilias and Ahmed (cited above, §§ 217-18) and R.R. and Others (cited above, § 74). In Ilias and Ahmed (cited above, §§ 219-49) the Grand Chamber examined a complaint similar to the present one 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 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 twenty-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 (contrast 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 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.
15. 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.
Other complaints16. The applicants also alleged under Article 13 read in conjunction with Article 3 that there was no effective remedy at their disposal to complain about the conditions in the transit zone. Furthermore, in their observation of 2 March 2018, the applicants invoked Article 8 with respect to the living conditions in the transit zone.
17. Having declared the complaint under Article 3 of the Convention inadmissible, the Court concludes that the 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) and must be rejected, in accordance with Article 35 § 4 of the Convention.
18. The Court further considers that in so far as the applicants’ complaint under Article 8 does not in substance overlap with that of Article 3 (see Ilias and Ahmed, cited above, §§ 180-81) it fails to comply with the six-month rule set out in Article 35 § 1 of the Convention. It observes that the applicants left the transit zone on 30 May 2017 and complained under Article 8 only on 2 March 2018 (compare R.M. and Others v. France, no. 33201/11, §§ 94-96, 12 July 2016). It thus follows that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 February 2022.
Liv Tigerstedt Raffaele Sabato
Deputy Registrar President
Appendix
No.
Applicant’s Name
Gender
Year of birth
Nationality
1.
N. A.
M
1975
Syrian
2.
M. A.
F
1982
Syrian
3.
S. A.
F
2008
Syrian
4.
A. A.
M
2009
Syrian
5.
O. A.
M
2012
Syrian
6.
M. A.
F
2015
Syrian
7.
N. A.
M
2017
Syrian