Degrading treatment<\/strong><\/p>\nTransit zone conditions for dependent repeat asylum-seeker and vulnerable pregnant woman and minors, confined for nearly four months, exceeding threshold of severity: violation<\/p>\n
Facts \u2013 The applicants, an Iranian-Afghan family including three minor children, were confined in the R\u00f6szke transit zone at the border of Hungary and Serbia for almost four months while awaiting the outcome of their requests for asylum. The second applicant was pregnant at the time. The family was initially kept in the section designated for families, but was later moved to the isolation section for health-related reasons.<\/p>\n
Law<\/p>\n
Article 3: The Court had already analysed the living conditions experienced by applicants as adult asylum-seekers in the R\u00f6szke transit zone in Ilias and Ahmed v. Hungary and had concluded that they had not reached the Article 3 threshold in that case. However, in the present case, the applicants\u2019 situation had been characterised by the first applicant\u2019s repeat asylum-seeker status, the applicant children\u2019s young age and the applicant mother\u2019s pregnancy and serious health condition.<\/p>\n
(a)\u00a0\u00a0Sufficiency of food supplies for the first applicant \u2013 The first applicant had allegedly spent almost four months living in a state of the most extreme poverty, unable to obtain sufficient food. The authorities had refused to provide him with free meals throughout his stay in the zone. At the time, he could be considered to be a repeat asylum-seeker and, in principle, under EU law, Hungary had been allowed to decide to reduce or even withdraw material reception conditions on that basis. However, that had been subject to a reasoned decision, taking into account the principle of proportionality, which had not been forthcoming in the present case.<\/p>\n
While repeat asylum applicants had been allowed to receive food assistance, that had not always been delivered, and there was a lack of any legal agreements or safeguards between the Government and the organisations allegedly supplying food assistance in the zone, which would have ensured legal certainty of the current arrangements. There was also lack of information and documentation to support the Government\u2019s general statements that the first applicant had had sufficient food supplies. The applicant could only have left the transit zone in the direction of Serbia, and would have thereby forfeited the examination of his asylum claim in Hungary had he done so. He had been fully dependent on the Hungarian authorities for his most basic needs and had been under their control.<\/p>\n
The Government had failed to have due regard to the applicant\u2019s state of dependency at the transit zone and had failed to secure his basic subsistence there.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
(b)\u00a0\u00a0The vulnerability of the second applicant and applicant children \u2013 The authorities had in principle been obliged, under the EU Reception Conditions Directive, to take into account the specific situation of minors and pregnant women and to assess and monitor any special reception needs linked to their vulnerable status throughout the duration of their asylum procedures. They had also been obliged under domestic law to provide an individualised assessment of their special needs, which had not been carried out. The Court took into account a number of factors in the overall assessment of conditions:<\/p>\n
\u2013\u00a0\u00a0Physical conditions: For several months, the applicants had been made to suffer the heat in the family section\u2019s accommodation container, which did not have air-conditioning or proper ventilation.<\/p>\n
\u2013\u00a0\u00a0Suitability of facilities for children: The applicant children were seven months, six years and seven years old. The beds had not been fit for use by children and for a month and a half,\u00a0 after the family had been moved to the isolation section, there had been no playground accessible to the applicant children and no activities specifically organised for children. The applicants had also had no contact with other asylum-seeking families or NGO representatives after the move.<\/p>\n
\u2013\u00a0\u00a0Medical services and availability of psychological assistance: There had been a lack of medical documentation for the youngest child and it had not been disputed that she had not been given the vaccines recommended at her age. Outside medical treatment, in the presence of (male) police officers, must also have caused a degree of discomfort to the applicants, particularly during the second applicant\u2019s gynaecological examinations. Further, the second applicant, who had had trauma-related mental health problems for a long time and which had been brought to the attention of the authorities, had not received any psychological or psychiatric treatment. The presence of elements resembling a prison environment and the constraint inherent during confinement must have also caused the applicant children anxiety and psychological disturbance and created degradation of the parental image in the eyes of the child.<\/p>\n
\u2013\u00a0\u00a0Duration of stay: The applicants had been held for nearly four months at the zone. While the above-mentioned conditions might not attain the threshold of severity required to engage Article 3 where the confinement was of a short duration, their repetition and accumulation during a longer period would necessarily have had harmful consequences for those exposed to them.<\/p>\n
In light of the foregoing, the applicant children and applicant mother had been subjected to treatment which had exceeded the required threshold of severity.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
Article 5 \u00a7 1<\/p>\n
(a)\u00a0\u00a0Whether the applicants were deprived of their liberty (applicability) \u2013 In Ilias and Ahmed, the Court had held that the applicants\u2019 stay of twenty-three days in the R\u00f6szke transit zone had not constituted a de facto deprivation of liberty and, consequently, that Article 5 had not been applicable. It had to examine whether the applicants\u2019 specific situation warranted a different conclusion in the present case, taking into account the following factors:<\/p>\n
\u2013\u00a0\u00a0The applicants\u2019 individual situation and choices: The applicants had entered the zone of their own initiative, and of their own free will, with the aim of seeking asylum in Hungary.<\/p>\n
\u2013\u00a0\u00a0The applicable legal regime, its purpose and duration: Unlike in Ilias and Ahmed, the provision limiting the maximum duration of an asylum seeker\u2019s stay in the zone to four weeks had not applied in the present case and there had been no other domestic provision fixing the maximum duration of the applicant\u2019s stay in the zone. Moreover, the processing of the applicant\u2019s asylum claims had\u00a0 not respected the time-limits laid down in domestic lad and had been anything but speedy. The applicants had spent almost four months there awaiting the outcome. Furthermore, there was no indication that the applicants themselves had failed to comply with the legal regulations in place or had not acted in good faith at any time during their stay in the zone.<\/p>\n
\u2013\u00a0\u00a0The nature and degree of the restrictions actually imposed\/experienced: The applicants could have left the transit zone in the direction of Serbia at any time. However, their freedom of movement had been severely restricted while living in the transit zone, in a manner similar to that characteristic of a certain type of light-regime detention facility, and it had become even more restrictive after moving to the isolation section. Further, the living conditions had been found to be in violation of Article 3.<\/p>\n
In those circumstances, the applicants\u2019 stay in the transit zone had amounted to a de facto deprivation of liberty. Article 5 \u00a7\u00a01 was therefore applicable.<\/p>\n
(b)\u00a0\u00a0Whether the detention was lawful \u2013 There had been no strictly defined statutory basis for the applicants\u2019 detention in the present case, which the authorities had based on an overly broad interpretation of a general provision of domestic law. The applicants\u2019 detention had occurred de facto: the authorities had not issued any formal decision of legal relevance complete with reasons for the detention, including an individual assessment and consideration of alternatives that would have been less coercive. The procedure had fallen short of the requirements enounced in the Court\u2019s case-law and could not be considered \u201clawful\u201d.<\/p>\n
Conclusion: violation (six votes to one).<\/p>\n
The Court also held, by six votes to one, that there had been a violation of Article 5 \u00a7 4, in that the applicants had not had at their disposal any proceedings to challenge the lawfulness of their de facto detention.<\/p>\n
Article 41: EUR 4,500 each to the first and second applicants and EUR 6,500 to each of the applicant children, in respect of non-pecuniary damage.<\/p>\n
(See also Ilias and Ahmed v. Hungary [GC], 47287\/15, 21\u00a0November 2019, Legal Summary)<\/p>\n