European Court of Human Rights

 

 

FIFTH SECTION

CASE OF A.P. v. HUNGARY

(Application no. 18581/19)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

3 October 2024

 

This judgment is final but it may be subject to editorial revision.

In the case of A.P. v. Hungary,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Stéphanie Mourou-Vikström, President,
          Lado Chanturia,
          Kateřina Šimáčková, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 18581/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 5 April 2019 by an Iranian national, A.P. ("the applicant"), who was born in 1982, lives in Siófok and was represented by Mr G. Győző, a lawyer practising in Budapest;

the decision to give notice of the application to the Hungarian Government ("the Government"), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice,

the decision not to have the applicant's name disclosed;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties' observations;

Having deliberated in private on 12 September 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applicant is an Irani national, who fled his country of origin to avoid persecution due to his conversion to Christianity.

2.  He entered the Hungarian transit zone at Röszke on 24 September 2018 to apply for asylum. Once he submitted his asylum application, the asylum authority ordered him to be accommodated in the transit zone, for the duration of the asylum procedure.

3.  On 13 February 2019 the asylum authority rejected his asylum application as inadmissible, arguing that Serbia had been a safe transit country where he could have sought asylum. The authority ordered the applicant to be expelled to Serbia.

4.  The applicant challenged the decision before the administrative and labour court which rejected his appeal against the inadmissibility decision but quashed the asylum authority's decision ordering the applicant to stay in the transit zone. The court argued that, based on Article 43(2) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), ordering the applicant to stay for more than four weeks in the transit zone is unlawful.

5.  As the rejection of his asylum claim became final, the immigration authority conducted an alien policing procedure to enforce the applicant's expulsion. As a result, on the same day, the immigration authority ordered his continued placement in the Röszke transit zone on the basis of sections 62(1) (f) and 62(3a) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals ("the Immigration Act"). The applicant was transferred to the alien policing sector within the transit zone.

6.  During the alien policing proceedings the applicant submitted a new asylum application. Following two remittals, the asylum authority granted him a refugee status on 23 June 2020.

7.  He was staying in the transit zone until his release on 8 October 2019.

8.  During his stay, he was accommodated in a five-bed container both in the asylum and alien policing sector. He complained about the prison-like environment and submitted that he had been unable to leave his sector for any purpose unless he was escorted by armed police or security officers. He also complained about the lack of space in the containers, the quality of internet connection and the lack of meaningful activities for adults.

9.  Once being transferred to the alien policing sector on 4 April 2018, the applicant was not provided any food by the Hungarian authorities. He only received food from the authorities on 6 April 2018, following the Court's decision to grant his request for interim measure under Rule 39 of the Rules of the Court and ask the Government to provide him with food during his stay in the transit zone. He further complained that neither the representatives of the Office of the United Nations High Commissioner for Refugees, nor other humanitarian NGOs (which have access to asylum seekers living in the other sectors) could enter the alien policing sector of the transit zone.

10.  The applicant submitted that the authority's failure to provide him food for two days and the conditions of his confinement in the transit zone breached the prohibition of torture and inhuman or degrading treatment under Article 3 of the Convention. The detention conditions had also been incompatible with Article 8 of the Convention. Under Article 13 in conjunction with Articles 3 and 8 of the Convention he complained that there had been no effective remedy to complain about those conditions. Moreover, he complained that he had been detained in the transit zone in violation of Article 5 §§ 1 and 4 of the Convention.

THE COURT'S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

11.  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.

12.  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).

13.  In R.R. and Others v. Hungary (no. 36037/17, § 52, 2 March 2021) the Court found a violation of Article 3 with respect to the applicant father who had not been provided with food by the authorities (ibid., § 57). Similarly, in W.O. and Others v. Hungary ([Committee], no. 36896/18, § 13, 25 August 2022) and O.Q. v. Hungary ([Committee], no. 53528/19, § 13, 5 October 2023) the Court found a violation of Article 3 on account of food deprivation for six days and in S.AB. and S.AR. v. Hungary (no. 17089/19, § 17, 30 November 2023) for three days.

14.  Based on the uncontested assertion of the applicant, he was given no food by the Hungarian authorities between the afternoon of 4 April 2018 and the morning of 6 April 2018. The Court considers that by refusing to give him food, the authorities failed to have due regard to the state of dependency in which he lived in the transit zone (see R.R. and Others, cited above, § 57, and W.O. and Others v. Hungary [Committee], cited above, § 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, §§ 57 and 65). In light of this, the Court considers that there is no need to examine the applicant's other complaints under Article 3 concerning the general material conditions in the transit zone (see paragraph 8 above).

15.  There has accordingly been a violation of Article 3 of the Convention.

II.     Alleged violation of article 5 §§ 1 and 4 of the Convention

16.  The Government argued that the applicant's stay in the transit zone during the asylum proceedings and the alien policing procedure had not constituted deprivation of liberty.

17.  Concerning the applicant's placement in the transit zone during the asylum proceedings, the Court notes that his complaint that he was 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. In that case the Court found that the applicants' stay for almost four months in the transit zone amounted to a de facto deprivation of liberty (cited above, §§ 74-83). The Court, having regard to all circumstances, does not consider that the present case warrants a different conclusion.

18.  Concerning the applicant's placement in the transit zone during the alien policing procedure, the Court notes that it was based on sections 62(1) (f) and 62(3a) of the Immigration Act. According to section 62(1) (f), the immigration authority can order a third-country national to reside at a specific place when that person has been ordered to be expelled from the country and has neither financial resources nor accommodation. Section 62(3a) allows for the designation of one of the transit zones as such a specific place of stay during the crisis situation related to mass migration. Thus, the applicant's transit zone placement during the alien policing procedure served a purpose, and was based on a legal provision, different from those of his transit zone placement during the asylum proceedings. As regards the applicability of Article 5 of the Convention, his detention was nevertheless similar in the relevant aspects to the asylum detention of the applicants in R.R. and Others. Having regard to the fact that the applicant was escorted to the alien policing sector by the police officers in enforcement of an expulsion decision; the lack of any domestic legal provisions fixing the maximum duration of his confinement; the excessive duration of his stay (more than one year) and the conditions in which he was held, the Court considers that - irrespective of the classification in domestic law - the applicant was deprived of his liberty within the meaning of Article 5 in the transit zone in the alien policing sector (see R.R. and Others, ibid., § 83). Article 5 § 1 is therefore applicable.

19.  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.

20.  As regards the applicant's placement in the transit zone during the asylum proceedings the Court concludes, having examined all the material before it, 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 (ibid., §§ 87‑92 and 97-99).

21.  As regards the applicant's placement in the transit zone during the alien policing procedure, even though the placement order under sections 62(1) (f) and 62(3a) of the Immigration Act resulted in his de facto detention (see paragraph 18 above), these provisions did not provide for sufficient guarantees against arbitrariness. By the designation of a transit zone as compulsory place of stay, the applicant's de facto detention could be brought about without a formal and reasoned decision on his detention, and in the absence of any provision setting a limit to the length of such placement, for an indeterminate time (see Louled Massoud v. Malta, no. 24340/08, § 71, 27 July 2010; and with regards to transit zone detention during the asylum proceedings see R.R. and Others, cited above, §§ 88-90). Furthermore, as to the judicial review of the placement decision, the Court observes that only a failure by the ordering authority to comply with its obligation to provide information to the person about his or her rights and obligations could be challenged before the courts, but not the substance of the decision. Namely, the domestic law did not provide the applicant with the possibility to contest the lawfulness and length of his detention (see Louled Massoud, cited above, § 71).

22.  In view of the above, the Court finds that the national law which served as the basis for the applicant's detention did not meet the standard of "lawfulness" set by the Convention and did not provide the applicant with effective safeguards against arbitrariness.

23.  There has accordingly been a violation of Article 5 §§ 1 and 4 of the Convention.

III.   OTHER COMPLAINTS

24.  The applicant also complained under Articles 8 and 13 read in conjunction with Articles 3 and 8 of the Convention on account of the conditions of his detention and a lack of any effective remedy in this regard. In view of 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 Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage and EUR 3,800 in respect of costs and expenses incurred before the Court.

26.  The Government considered the applicant's claim to be excessive.

27.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

28.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 1,500 covering costs for the proceedings before the Court, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints under Article 3 and Article 5 §§ 1 and 4 of the Convention admissible;

2.      Holds that there has been a violation of Article 3 of the Convention;

3.      Holds that there has been a violation of Article 5 §§ 1 and 4 of the Convention;

4.      Holds that there is no need to examine separately the admissibility and merits of the remaining complaints;

5.      Holds

(a)  that the respondent State is to pay the applicant, 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:

(i) EUR 5000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

6.      Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 3 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Sophie Piquet                                          Stéphanie Mourou-Vikström
    Acting Deputy Registrar                                                President