{"id":21792,"date":"2023-11-30T11:09:11","date_gmt":"2023-11-30T11:09:11","guid":{"rendered":"https:\/\/laweuro.com\/?p=21792"},"modified":"2023-11-30T11:09:11","modified_gmt":"2023-11-30T11:09:11","slug":"case-of-s-ab-and-s-ar-v-hungary-17089-19","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21792","title":{"rendered":"CASE OF S.AB. AND S.AR. v. HUNGARY – 17089\/19"},"content":{"rendered":"

European Court of Human Rights
\nFIFTH SECTION
\nCASE OF S.AB. AND S.AR. v. HUNGARY<\/strong>
\n(Application no. 17089\/19)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n30 November 2023<\/p>\n

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

In the case of S.AB. and S.AR. 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.\u00a017089\/19) 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 29 March 2019 by two Iranian nationals, S.AB. and S.AR., born in 1982 and 2009 respectively and living in Hungary (\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 9 November 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 applicants are a father (the first applicant) and his minor child (the second applicant), both Iranian nationals.<\/p>\n

2. On 5 December 2018 the applicants entered the R\u00f6szke transit zone and submitted a request for asylum.<\/p>\n

3. The Office for Immigration and Asylum (\u201cthe IAO\u201d) declared their request inadmissible on 12 February 2019, stating that Serbia was a safe third country and the applicants should have applied for asylum there.<\/p>\n

4. On 5 March 2019 the Budapest Administrative and Labour Court dismissed the applicants\u2019 appeal against the inadmissibility decision and against their placement in the transit zone.<\/p>\n

5. As a result, the IAO proceeded with the alien policing procedure with the view of returning the applicants to Serbia. The IAO also ruled that their compulsory place of stay during the alien policing procedure should be the R\u00f6szke transit zone.<\/p>\n

6. Pending their return to Serbia, from 27 March 2019 the first applicant was not receiving food from the authorities. He was only given food following the Court\u2019s decision of 29 March 2019, by which the first applicant\u2019s request for interim measure under Rule 39 of the Rules of the Court had been granted and the Government had been asked to provide him with food during his stay in the transit zone.<\/p>\n

7. On 16 August 2019, the applicants submitted a court action, arguing that the alien policing authority failed to place them in an open accommodation facility and to issue a formal decision on their de\u00a0facto detention in the transit zone.<\/p>\n

8. On 18 December 2019, the Szeged Regional Court initiated an urgent preliminary reference procedure before the Court of Justice of the European Union (\u201cthe CJEU\u201d). On 14 May 2020, the CJEU issued its judgment (C\u2011924\/19 PPU and C-925\/19 PPU, see R.R. and Others v.\u00a0Hungary (no.\u00a036037\/17, 2 March 2021, \u00a7 28)).<\/p>\n

9. On 22 March 2022, the Szeged Regional Court adopted its decision, upholding the applicants\u2019 claims. Based on the findings in the CJEU\u2019s above judgment, the domestic court found that the IAO had acted unlawfully, as it had failed to designate the applicants\u2019 place of stay outside the transit zone. It ruled that the applicants\u2019 placement in the transit zone pending the asylum proceedings and the alien policing procedure was unlawful because of the absence of a formal reasoned detention order and in view of the lack of legal remedies.<\/p>\n

10. In the meantime, in December 2019, the applicants submitted a renewed asylum application. Following two remittals, the IAO decided to recognise the applicants as refugees on 11 August 2021.<\/p>\n

11. The applicants had remained in the transit zone until 20 May 2020, when it was closed by the Hungarian authorities. They were then transferred to an open accommodation facility. Since 14 January 2021, they have been living in a private accommodation in Hungary.<\/p>\n

12. In the transit zone, the applicants had been accommodated in the family sector and then, on 27 March 2019, transferred to the alien policing (expulsion) sector. Besides the general material conditions, they also complained about the length of their confinement, the alleged deterioration of their mental health and the lack of food provided to the first applicant during three days of his confinement.<\/p>\n

13. The applicants submitted that the conditions of their confinement in the transit zone had been incompatible with Articles 3 and 8 of the Convention and that under Article 13 in conjunction with Articles 3 and 8 of the Convention 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 \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<\/strong><\/p>\n

14. 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

15. 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. Bulgaria, (no. 8138\/16, \u00a7\u00a7 78-83, 7 December 2017) and M.H. and Others v. Croatia, (nos. 15670\/18 and 43115\/18, \u00a7\u00a7 183-186, 18 November 2021).<\/p>\n

16. As regards the second applicant, who was nine 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 (see R.R. and Others, cited above, \u00a7\u00a7 58-60 and\u00a063\u201165, compare M.B.K. and Others v. Hungary [Committee], no.\u00a073860\/17, \u00a7 6, 24 February 2022 and W.O. and Others v. Hungary [Committee], no.\u00a036896\/18, \u00a7\u00a7 9-10, 25 August 2022). Having regard to the evidence before it, the Court sees no reasons to find otherwise in the present case in which the second applicant stayed in the R\u00f6szke transit zone for more than a year.<\/p>\n

17. As regards the first applicant, the Court notes that he was given no food by the Hungarian authorities during three days in total while he was in the deportation section. In the case the Court found a violation of Article\u00a03 with respect to the applicant father who had not been provided with food by the authorities (R.R. and Others, cited above, \u00a7 57). Similarly, in W.O. and Others v. Hungary (cited above, \u00a7 13) the Court found a violation of Article\u00a03 on account of food deprivation for six days. In the present case the Court considers that by refusing to give the first applicant food, the authorities failed to have due regard to the state of dependency in which he lived during this period (see R.R. and Others, cited above, \u00a7 57 and W.O. and Others v.\u00a0Hungary, cited above, \u00a7 13), and subjected him to treatment exceeding the threshold of severity required to engage Article 3 of the Convention (R.R. and Others, cited above, \u00a7 57).<\/p>\n

18. In light of this, the Court considers that there is no need to examine the applicants\u2019 other complaints (their prolonged isolation and the alleged deterioration of their mental health) that might also be relevant for the assessment under Article 3.<\/p>\n

19. There has accordingly been a violation of Article 3 of the Convention.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 5 \u00a7\u00a7 1 and 4 OF THE CONVENTION<\/strong><\/p>\n

20. The Court notes that the applicants were placed in the transit zone during the asylum proceedings and the alien policing procedure.<\/p>\n

21. Concerning the applicants\u2019 placement in the transit zone during the asylum proceedings, their 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. In that case 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 74-83). The Court, having regard to all the relevant circumstances, does not consider that the present case warrants a different conclusion.<\/p>\n

22. Concerning the applicants\u2019 placement in the transit zone during the alien policing procedure, the Court notes that it served a different purpose and was based on different domestic legal basis compared to the transit zone placement during the asylum proceedings. It finds that the applicants\u2019 expulsion detention was nevertheless in the relevant aspects similar to the asylum detention of the applicants in R.R. and Others. Having regard to, in particular, the lack of any domestic legal provisions fixing the maximum duration of the applicants\u2019 stay, the excessive duration of such stay (more than a year) and the conditions in which the applicants were held in the zone, it considers that the applicants were deprived of their liberty within the meaning of Article 5 also during the alien policing procedure (see R.R. and Others, cited above, \u00a7 83). Article 5 \u00a7 1 is therefore applicable.<\/p>\n

23. This part of the application, which is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7\u00a03\u00a0(a) of the Convention, nor inadmissible on any other grounds, must therefore be declared admissible.<\/p>\n

24. Concerning the applicants\u2019 placement in the transit zone during the asylum proceedings, having examined all the material before it, the Court concludes that the above complaints disclose a violation of Article 5 \u00a7\u00a7\u00a01 and\u00a04 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

25. As regards the applicants\u2019 placement in the transit zone during the alien policing procedure, the Court notes that on 22 March 2022 the Szeged Regional Court found that the applicants\u2019 expulsion detention was unlawful and that they had no legal remedies at their disposal (see paragraph 9 above). These considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 \u00a7\u00a7 1 and 4 of the Convention also in this respect (compare, mutatis mutandis, X.Y. v. Hungary, no. 43888\/08, \u00a7\u00a7 28\u201129, 19\u00a0March 2013).<\/p>\n

III. OTHER COMPLAINTS<\/strong><\/p>\n

26. The applicants also complained under Articles 8 and 13 read in conjunction with Articles 3 and 8 of the Convention. 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 C\u00e2mpeanu v.\u00a0Romania [GC], no.\u00a047848\/08, \u00a7\u00a0156, ECHR 2014).<\/p>\n

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

27. The applicants jointly claimed 22,000 euros (EUR) in respect of non\u2011pecuniary damage and 2,100 euros (EUR) in respect of costs and expenses incurred before the Court.<\/p>\n

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

29. Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, 17,500 EUR in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants.<\/p>\n

30. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants, jointly, 1,500 EUR 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 and Article 5 \u00a7\u00a7 1 and 4 of the Convention admissible;<\/p>\n

2. Holds that there has been a violation of Article 3 of the Convention;<\/p>\n

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

4. Holds that there is no need to examine separately the admissibility and merits of the remaining complaints;<\/p>\n

5. 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 17,500 (seventeen thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii) EUR 1,500 (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

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

Done in English, and notified in writing on 30 November 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

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

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European Court of Human Rights FIFTH SECTION CASE OF S.AB. AND S.AR. v. HUNGARY (Application no. 17089\/19) JUDGMENT STRASBOURG 30 November 2023 This judgment is final but it may be subject to editorial revision. In the case of S.AB. and…<\/p>\n

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