ECtHR – R.R. and others v. Hungary, Application no. 36037/17, 2 March 2021

Facts:

The applicants, an Iranian-Afghan family of five, arrived in Hungary from Serbia and applied for asylum at the Röszke transit zone.

During their stay at the transit zone members of the family faced different medical problems and received treatment. They remained in an isolation zone due to a hepatitis infection and complained that services in that zone were inadequate, food provision was not age-appropriate and police services were conducting frequent invasive checks. They complained that interpretation during medical appointments was scarce, police was present during medical check-ups and the younger child had not been vaccinated.

Moreover, as the father had applied for asylum in Hungary before entering the transit zone with his family, he was assigned accommodation there but was not given free meals. Although the applicant try to find food by paying other applicants, or with the help of an NGO, he complained that he had to eat the leftovers of his family.

Finally, following an initial rejection of their application for asylum, the applicants were recognised as beneficiaries of subsidiary protection.

Decision & reasoning:

Article 3

The Court first acknowledged that the complaint was twofold: the mother and the children complained that the conditions in the transit zone had been inadequate in light of their vulnerabilities and the father complained of food deprivation. The Court also distinguished the facts in the present case from those of Ilias and Ahmed v. Hungary by highlighting the particular vulnerability of the applicants in the present case owing to R.R’s repeat asylum seeker status, the children’s young age and S.H’s pregnancy and serious health condition.

On account of R.R.’s (the father) lack of access to food and his situation of extreme poverty, the Court emphasised that the applicant could not leave the transit zone and as a result, was fully dependent on the Hungarian authorities for his most basic human needs. In response to the Government’s argument that charity organisations had provided food, the Court noted that, even if this may have been the case, the absence of any legal agreements between the Government and these organisations did not ensure legal certainty on the alleged arrangements on provision of care. Consequently, the Court concluded that the Government failed to assess the applicant’s state of dependency and subjected him to Article 3 treatment by not providing food during his four-months stay in the zone.

In reference to S.H. (the mother) and the children’s complaint under Article 3, the ECtHR pointed to the obligations under the Reception Conditions Directive that require the specific situation of minors and pregnant women to be taken into account, along with any special reception needs linked to their status throughout the duration of the asylum procedure. It reiterated that the fact that the children are accompanied by their family do not exempt the Government from these obligations.

No individualised assessment of the special needs of the applicants were carried out by the Hungarian authorities. The physical conditions of the container were inadequate and the lack of proper ventilation made the family suffer from the heat. Moreover, the facilities were unsuitable for children in the isolation section with no organised activities, no playground and no contact with other families or NGO staff. The provision of medical services was also problematic in respect of the lack of vaccination for the youngest child and the presence of police officers during medical consultation appointments, in particular gynaecological examinations. The absence of professional psychological support was also found to be concerning, given that the carceral character of the isolation zone must have created significant anxiety for the children. Lastly, the Court cited the findings of the Committee on the Prevention of Torture regarding the prolonged stay of families at the Röszke transit zone and found that the duration of the family’s stay (three months and 27 days) further supported the finding of treatment contrary to Article 3.

Article 3 in conjunction with Article 13

Having found a violation of Article 3, the Court did not consider it necessary to examine the complaint under Article 13 regarding the same procedural issues.

Article 5

The ECtHR reiterated the factors set out in Ilias and Ahmed that should be taken into consideration when determining the applicability of Article 5 in the context of the confinement of individuals in transit zone and reception centres.

Although the applicant’s had entered the zone of their own initiative and Hungary was entitled to verify their situation before admitting them, the Court was concerned with the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the excessive duration of their stay and their inability to exit the zone to Serbia without forfeiting their asylum claims in Hungary (and given their fears regarding insufficient access to asylum procedures in Serbia.) Lastly, the Court noted that it could not ignore the fact that almost half of the time they remained in the isolation section of the transit zone in even more restrictive conditions. It therefore concluded that the situation amounted to a de facto deprivation of liberty.

Looking into whether this deprivation of liberty was “in accordance with the procedure prescribed by law”, the Court concluded that there was no strictly defined statutory basis for the applicants' detention and no formal decision complete with reasons for detention had been issued by the Hungarian authorities. As such, the applicants detention could not be considered lawful under Article 5(1) ECHR. Lastly, the applicants did not have avenue in which the lawfulness of their detention could have been decided promptly by a court, thereby violating Article 5(4) ECHR.

Article 34

The applicants also complained that the authorities failed to comply with the interim measures indicated by the Court. Given that the Court examined the main legal issues raised in respect of their situation in the zone, it considered that it does not need to address the complaint separately under Article 34.

Outcome:

Violation of Article 3 ECHR.

Violation of Article 5 (1) and (4) ECHR.

No need to examine complaint under Article 3 in conjunction with Article 13 and under Article 34.

Other sources:

Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“CPT”) from 20 to 26 October 2017

The report on the fact-finding mission of June 2017 of the Special Representative of the Secretary General of the Council of Europe on migration and refugees, Ambassador Tomáš Boček, concerning the Rӧszke transit zone (SG/Inf(2017)33)