{"id":21262,"date":"2023-10-05T09:26:23","date_gmt":"2023-10-05T09:26:23","guid":{"rendered":"https:\/\/laweuro.com\/?p=21262"},"modified":"2023-10-05T09:26:23","modified_gmt":"2023-10-05T09:26:23","slug":"case-of-m-a-and-others-v-hungary-58680-18","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21262","title":{"rendered":"CASE OF M.A. AND OTHERS v. HUNGARY – 58680\/18"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF M.A. AND OTHERS v. HUNGARY<\/strong>
\n(Application no. 58680\/18)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n5 October 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of M.A. and Others v. Hungary,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, President,
\nLado Chanturia,
\nMattias Guyomar, judges,
\nand Sophie Piquet, Acting Deputy Section Registrar,
\nHaving regard to:
\nthe application (no.\u00a058680\/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 28 November 2018 by five Afghan nationals, relevant details listed in the appended table (\u201cthe applicants\u201d), who were represented by Ms B. Poh\u00e1rnok, a lawyer practising in Budapest;
\nthe decision to give notice of the application to the Hungarian Government (\u201cthe Government\u201d), represented by their Agent, Mr Z. Tall\u00f3di, of the Ministry of Justice;
\nthe decision not to have the applicants\u2019 names disclosed;
\nthe parties\u2019 observations;<\/p>\n

Having deliberated in private on 14\u00a0September 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The first and second applicants are the father and mother, respectively, and the third to fifth applicants are their three children who at the time of the events in question were all minors (see the appended table). The family stayed at the R\u00f6szke transit zone at the Serbian-Hungarian border between 20\u00a0February and 31 May 2018.<\/p>\n

2. The applicants applied for asylum on the day of their arrival on 20\u00a0February 2018. As the first applicant had already been registered in the Eurodac system, the Office for Immigration and Asylum (\u201cthe IAO\u201d) concluded that he was subject to a Dublin procedure. It therefore suspended the asylum proceedings until 7 March 2018 when Hungary\u2019s responsibility for examining the asylum request was established. The applicants were interviewed by the authority on three occasions: on 20 February, 20 April and 26\u00a0April 2018. The IAO recognised the first applicant and his family members as refugees by its decision of 29\u00a0May 2018.<\/p>\n

3. The family was transferred to the V\u00e1mosszabadi reception centre (open facility) on 31\u00a0May 2018. They left Hungary on an unknown date and they are currently residing in Germany.<\/p>\n

4. In the R\u00f6szke transit zone the applicants were accommodated in the separate sector for families, in a container of 13 square metres with a capacity of five persons. The container was furnished with beds and lockers for all of them. They had access to the common areas, including gravel courtyard and a \u201cplayroom\u201d container. The general material conditions in which the applicants had to live have been described in R.R. and Others v.\u00a0Hungary (no.\u00a036037\/17, 2 March 2021, \u00a7\u00a7 10-12, 14-17 and 30-31). Besides these, the applicants also complained about the heat, the inadequate quality and insufficient quantity of the food, the children\u2019s loss of weight and the family members\u2019 deteriorating mental health as a consequence of their confinement to the transit zone.<\/p>\n

5. The applicants submitted that the first and the fourth applicants were in need of specialised mental health support. The first applicant repeatedly informed the officers of the asylum authority about his mental health conditions (depression and panic disorder) and the names of the medications taken and most recently prescribed in Serbia. During his stay in the transit zone he met a psychologist five times or so and had taken some medications (without further precision). The fourth applicant had allegedly refused to eat, which in the applicant parents\u2019 view had to be connected to certain psychological problems. On 23 April 2018 they had requested vegetarian food for their son which was approved by the IAO on the same day.<\/p>\n

6. The applicants complained under Articles 3 and 8 of the Convention about the conditions of their confinement in the transit zone. Moreover, 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. Lastly, they complained that they had been detained in the transit zone in violation of Article 5 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION as regards the THIRD TO FIFTH applicants<\/strong><\/p>\n

7. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

8. The general principles concerning the confinement and living conditions of asylum-seekers have been summarised in Khlaifia and Others v.\u00a0Italy ([GC], no. 16483\/12, \u00a7\u00a7 158-69, 15 December 2016) and with respect to the confinement of minors in R.R. and Others (cited above, \u00a7 49), S.F. and Others v.\u00a0Bulgaria (no. 8138\/16, \u00a7\u00a7 78-83, 7 December 2017) and M.H. and Others v.\u00a0Croatia (nos. 15670\/18 and 43115\/18, \u00a7\u00a7 183-186, 18\u00a0November 2021).<\/p>\n

9. As regards the third to fifth applicants, who were respectively four months, eight and ten years old at the relevant time, the present case is similar to that of R.R. and Others. In that case the Court, emphasising the primary significance of the passage of time for the application of Article 3 in situations such as the present one, found a violation of this provision on account of the conditions to which the applicants children were subjected during their almost four-months-long stay in the R\u00f6szke transit zone (cited above, \u00a7\u00a7\u00a058-60 and\u00a063\u201165). Having regard to the evidence before it, the Court sees no reasons to find otherwise in the present case in which the applicant children stayed in the R\u00f6szke transit zone for more than three months (compare H.M. and Others v.\u00a0Hungary, no. 38967\/17, \u00a7 17, 2 June 2022 and A.A.A. and Others v.\u00a0Hungary [Committee], no. 37327\/17, \u00a7 7, 9 June 2022).<\/p>\n

10. Therefore, the Court finds that the situation complained of subjected the applicants children to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention (see R.R. and Others, cited above, \u00a7\u00a065).<\/p>\n

11. There has accordingly been a violation of that provision with regards to the applicant children.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION as regards the FIRST and second applicants<\/strong><\/p>\n

12. The Court has already considered that the living conditions in the R\u00f6szke transit zone 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 R.R. and Others, cited above, \u00a7 52, and Ilias and Ahmed v.\u00a0Hungary [GC], no. 47287\/15, \u00a7\u00a7 186-94, 21\u00a0November 2019). Even though the adult applicants in the present case stayed in the transit zone for over three months, the evidence in the case file does not show that the otherwise acceptable conditions in the transit zone were particularity ill\u2011suited in their circumstances (compare M.B.K. and Others v.\u00a0Hungary [Committee], no. 73860\/17, \u00a7 8, 24 February 2022 and A.A.A. and Others v.\u00a0Hungary, cited above, \u00a7 9). The Court notes that the adult applicants were not separated from their children during the stay (see, for instance, Popov v.\u00a0France, nos. 39472\/07 and 39474\/07, \u00a7 105, 19\u00a0January 2012).<\/p>\n

13. As regards the first applicant\u2019s situation, it has been undisputed by the parties that he was a vulnerable individual with certain mental health issues. However, in view of the mental health support admittedly having been provided to him in the transit zone and the information in its possession, the Court does not see sufficient basis for the conclusion that the effect of the conditions of his stay in the transit zone was such as to attain the threshold of severity required to engage Article 3 of the Convention.<\/p>\n

14. As regards the situation of the second applicant, the evidence in the case file does not show that at the time of her confinement to the transit zone she was more vulnerable than any other adult asylum seeker staying there. There is no indication in the case file that she was experiencing any health-related problems which she brought to the attention of the Hungarian authorities while she was in the transit zone (compare A.A.A. and Others, cited above, \u00a7\u00a010).<\/p>\n

15. Therefore, the Court finds that the threshold of severity required for Article 3 to come into play has not been attained with respect to the adult applicants. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) and must be rejected under Article\u00a035 \u00a7\u00a04 of the Convention.<\/p>\n

III. Alleged violation of article 5 \u00a7\u00a7 1 and 4 of the Convention<\/strong><\/p>\n

16. The applicants\u2019 complaint that they had been confined to the transit zone in violation of Article 5 \u00a7\u00a7 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\u2019 stay for almost four months in the transit zone amounted to a de\u00a0facto deprivation of liberty (cited above, \u00a7\u00a7\u00a074-83). The Court, having regard to all the relevant circumstances, does not consider that the present case warrants a different conclusion. Article\u00a05 is therefore applicable (see also H.M. and Others v. Hungary, no. 38967\/17, \u00a7 30, 2 June 2022, and A.A.A. and Others, cited above, \u00a7\u00a013). This part of the application, which is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7 3 (a) of the Convention, nor inadmissible on any other grounds, must therefore be declared admissible.<\/p>\n

17. Having examined all the material before it, the Court concludes that the above complaints disclose a violation of Article\u00a05\u00a0\u00a7\u00a7\u00a01 and 4 of the Convention in the light of its findings in R.R. and Others (cited above, \u00a7\u00a7\u00a087\u201192 and 97-99).<\/p>\n

IV. OTHER COMPLAINTS<\/p>\n

18. The applicants also complained under Article\u00a08 alone and Article\u00a013 taken in conjunction with Articles\u00a03 and 8 of the Convention.<\/p>\n

19. Having declared the complaint under Article\u00a03 regarding the first and second applicant inadmissible, they had 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\u00a035\u00a0\u00a7\u00a03\u00a0(a). It must be rejected in accordance with Article 35 \u00a7 4 of the Convention.<\/p>\n

20. As regards the remaining complaints, 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 them (see Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu v.\u00a0Romania [GC], no.\u00a047848\/08, \u00a7\u00a0156, ECHR\u00a02014).<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

21. The applicants jointly claimed 28,500 euros (EUR) in respect of non\u2011pecuniary damage and EUR 4,200 in respect of costs and expenses incurred before the Court.<\/p>\n

22. The Government considered the applicants\u2019 claims to be excessive.<\/p>\n

23. Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, EUR 11,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.<\/p>\n

24. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants, jointly, EUR 1,500 covering costs for the proceedings before the Court, plus any tax that may be chargeable to them.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the complaints under Article 3 of the Convention, in so far as they concern the third to fifth applicants, as well as the complaints under Article 5 \u00a7\u00a7 1 and 4 of the Convention, relating to all applicants, admissible and the complaints under Article 3 alone and in conjunction with Article 13, in so far as they concern the first and second applicant, inadmissible;<\/p>\n

2. Holds that there has been a violation of Article 3 of the Convention as regards the third to fifth applicants;<\/p>\n

3. Holds that there has been a violation of Article 5 \u00a7\u00a7 1 and 4 of the Convention as regards all applicants;<\/p>\n

4. Holds that there is no need to examine the complaint under Article\u00a03 in conjunction with Article 13 as regards the third to fifth applicants;<\/p>\n

5. Holds that there is no need to examine the complaints under Article\u00a08 alone and in conjunction with Article 13 of the Convention as regards all applicants;<\/p>\n

6. Holds<\/p>\n

(a) that the respondent State is to pay the applicants jointly, 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:<\/p>\n

(i) EUR\u00a011,000 (eleven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii) EUR\u00a01,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n

(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;<\/p>\n

7. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 5 October 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Sophie Piquet \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0St\u00e9phanie Mourou-Vikstr\u00f6m
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

____________<\/p>\n

APPENDIX<\/strong><\/p>\n

List of applicants:<\/p>\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplicant\u2019s Name<\/strong><\/td>\nYear of birth\/registration<\/strong><\/td>\nNationality<\/strong><\/td>\nPlace of residence<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\nM. A.<\/td>\n1982<\/td>\nAfghan<\/td>\nGermany<\/td>\n<\/tr>\n
2.<\/td>\nF.A.<\/td>\n1980<\/td>\nAfghan<\/td>\nGermany<\/td>\n<\/tr>\n
3.<\/td>\nM.A.A.<\/td>\n2007<\/td>\nAfghan<\/td>\nGermany<\/td>\n<\/tr>\n
4.<\/td>\nM.O.A.<\/td>\n2009<\/td>\nAfghan<\/td>\nGermany<\/td>\n<\/tr>\n
5.<\/td>\nD.A.<\/td>\n2017<\/td>\nAfghan<\/td>\nGermany<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n