Confinement of a family of asylum seekers in a container in a transit zone. Poor housing conditions. Conviction for degrading treatment and deprivation of personal liberty
JUDGMENT
W.O. and others v. Hungary 25.08.2022 (app. no. 36896/18)
SUMMARY
The applicants submitted asylum applications on arrival in the transit zone. The asylum procedure was suspended due to the attempted forced return of the applicants to Bulgaria. On 13 August 2018 the Immigration and Asylum Service rejected the applications and ordered their deportation. On 19 November 2018 the applicants were transferred to an open reception structure.
In the Röszke transit zone the applicants remained in the family department. They were housed in a container with a separate bed and wardrobe for each of them.
The applicants complained that the conditions of their confinement in the Röszke transit zone were incompatible with the guarantees of Article 3. They also complained, invoking Article 13 in conjunction with Articles 3 of the ECHR, that there was no effective remedy. In addition, they alleged that they had been detained in the transit zone in breach of Article 5 §§ 1 and 4. Finally, they claimed that the respondent State had failed to comply with the provisional measure referred to by the Court in breach of Article 34 in respect of the first applicant and the children of.
With regard to the alleged violation of Article 3 (degrading treatment), the ECtHR found that the applicants’ conditions of confinement, related restrictions and insecurity must have caused them significant psychological suffering. In addition, the government did not provide them with food during their stay in the container. The ECtHR found a violation of Article 3 (degrading treatment) of the ECHR.
As regards the complaint under Article 5 §§ 1 and 4 of the ECHR, the Court found that the applicants’ stay of almost four months in the transit zone amounted to a de facto deprivation of liberty. It therefore found that there had been a violation of Article 5 §§ 1 and 4.
The ECtHR awarded the applicants jointly 15,000 euros for moral damage and 1,500 euros for legal costs.
PROVISIONS
Article 3
Article 5 par. 1
Article 5 par. 4
PRINCIPAL FACTS
The case concerns the confinement of the applicant family in the Hungarian transit zone.
The first and second applicants are the mother and father, respectively, and the third and fourth applicants are their children, who were three and one year old at the time of the events in question. The family stayed at the Röszke transit zone at the border of Hungary and Serbia between 23 April and 19 November 2018.
The applicants submitted asylum requests upon their arrival to the transit zone. The asylum proceedings were suspended because of the attempted forced return of the applicants to Bulgaria. The return had not taken place and the asylum proceedings were resumed on 23 May 2018. On 13 August 2018 the Immigration and Asylum Office (“the IAO”) rejected the applicants’ asylum requests and ordered their expulsion. The applicants challenged this decision in the judicial review proceedings, where they also made a request to be moved to an open reception facility as a matter of interim measure. They were unsuccessful. Their subsequent appeals were rejected for having been lodged out of time. Following their objection, the Metropolitan Court, on 31 October 2018, annulled the previous court decisions and the case was re-assessed by the Metropolitan Court. On 14 November 2018 the Metropolitan Court granted the applicants’ request for an interim measure and ordered that the execution of the expulsion decision be suspended and that the applicants be moved to a more appropriate accommodation. On 19 November 2018 the applicants were transferred to an open reception facility. On 10 January 2019 the Metropolitan Court dismissed the applicants’ appeals concerning the dismissal of their asylum requests and their placement in the transit zone, which the court found to have been lawful. The applicants in the meantime left Hungary and now live in Germany.
In the Röszke transit zone the applicants stayed in the family section, except for a few days when, after the initial dismissal of the applicants’ asylum requests, they were placed in the deportation section. They were housed in one container with a separate bed and a wardrobe for each one of them. The general conditions and services provided in the Röszke transit zone are described in R.R. and Others v. Hungary (no. 36037/17, §§ 10-12, 14-17 and 30-31, 2 March 2021).
In addition to describing the general conditions, the applicants submitted that the first and third applicants had suffered from medical problems related to, inter alia, their past domestic abuse and distress due to their living condition. They repeatedly requested to be moved to an open reception facility and provided appropriate assistance. The first applicant met with a psychologist on fifteen occasions; however, the assistance was allegedly inadequate and conducted in a language she did not understand. She also was repeatedly treated by a psychiatrist with the assistance of an interpreter and was provided with prescribed medication for her mental‑health issues throughout her stay in the transit zone. She allegedly attempted suicide on 26 August 2018.
In the deportation section, where the applicants remained for less than a week, the space within which the applicants could move freely had been much smaller than that in the family section, with no facilities, such as TV or toys. The second applicant was not provided any food while in the deportation section. The remaining applicants had to eat their meals outside that section and were not allowed to take food to the second applicant.
The applicants complained that the conditions of their confinement in the Röszke transit zone had been incompatible with the guarantees of Articles 3 and 8 of the Convention. Under Article 13 in conjunction with Articles 3 and 8 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 as regards the first applicant and the applicant children.
THE DECISION OF THE COURT…
- ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
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.
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 (cited above, § 49). It notes that the present case is similar to that of R.R. and Others where, emphasising the primary significance of the passage of time for the application of Article 3 in this type of situations, the Court found a violation of this provision on account of the conditions to which the applicant children and mother had been subjected during their almost four-months-long stay in the Röszke transit zone. It also found a violation of that provision with respect to the applicant father to whom the authorities provided no food during the stay in the transit zone. The Court notes that R.R. and Others concerned the confinement in the period between April and August 2017, that is about a year before the applicants’ stay in the Röszke transit zone. However, there is nothing suggesting that the conditions in the transit zone had significantly changed in the meantime.
As regards the applicant children, who were one and three years old at the relevant time, the Court considers that given the conditions and constrains inherent during the confinement, the length of their stay in the Röszke transit zone must have caused them psychological suffering and had harmful consequences for their well-being.
As regards the adult applicants, the Court notes that they, together with their children, stayed in the transit zone over the entire summer of 2018. 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 their situation and is thus relevant for the assessment under Article 3. This is so even if the applicants were provided a fan and the courtyard was occasionally watered, as alleged by the Government.
The Court further finds that the first applicant was particularly vulnerable. The Metropolitan Court when granting the applicants’ request for an interim measure took account of, inter alia, the vulnerability of the first applicant because of her mental-health problems which persisted throughout her detention in the transit zone. In view of that, the Court considers that the conditions of confinement, the related constraints and insecurity must have caused the first applicant significant psychological suffering, of which the authorities must have been aware. It moreover notes that she had been exposed to these conditions for almost seven months.
As regards the second applicant, the Court, on 2 November 2018, decided to indicate to the Government, under Rule 39 of the Rules of Court, to provide him with food during his stay in the deportation section. It has not been disputed by the parties that the authorities provided him with no food while being held there. While there appear to be some ambiguity as regards the duration of the applicants’ stay in the deportation section, the Court having regard to the detailed account provided by the applicants, which was not refuted by any evidence from the Government, finds it established that they were held there between 31 October and 5 November 2018. It considers that the authorities failed to have due regard to the state of dependency in which the second applicant lived during this period
Having regard to all the above considerations, the Court considers that the situation complained of subjected the applicants to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention. There has therefore been a violation of that provision.
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. 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.
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.
Just Satisfaction (Article 41)
The ECtHR jointly awarded the applicants 15,000 euros for non-pecuniary damage and 1,500 euros for legal costs
