Excerpt
The European Court of Human Rights (ECtHR) held that Hungary had violated the law in its treatment of a family of five asylum seekers, including three young children. The Iranian Afghan family was held in a Röszke transit zone for several months since 2017.
Background
A family of five, including an Iranian and four Afghans, entered Hungary in 2017. S.H. (the applicant mother) claims that she was a victim of torture in Afghanistan; she was allegedly captured, burned, and raped by the Taliban, who killed her first husband. Sometime between 2012 and 2014, she fled Afghanistan to Iran with her two daughters, namely, M.H. and R.H., in pursuit of a better life. There she met with R.R. (the first applicant) and entered into a religious marriage with him. R.R. and S.H. along with her two daughters left Iran in 2016, allegedly escaping reprisals because R.R. had deserted the Iranian army. Before they arrived in Hungary, the couple had been separated and their asylum applications to Hungary had been terminated for several reasons. On 16th October 2016, A.R., the first biological child of R.R. and S.H. was born.
In April 2017, the applicants arrived in Hungary from Serbia and entered through the Röszke transit zone, which was situated on the Hungarian territory at the border of the two countries. They applied for asylum on the date of their arrival, and it was approved by the Hungarian Office for Immigration and Asylum (IAO) the same day. Subsequently, they were accommodated in the family section of the Röszke transit zone under s.80/J(5) of the Asylum Act. They were accommodated in a living container spanning 13-square meters, which had three bunk beds without child safety rails and five lockable cabinets. The applicants stated that the containers were extremely hot in the summer and without air conditioning; forcing them to open up windows and doors, which made the room draughty and allowed insects in.
On 29th June 2017, the applicants were shifted to an isolation section within the transit zone because the applicant mother and children had hepatitis B. The isolation section consisted of approximately ten mobile containers placed in a row and a narrow (roughly 2.5 meters and 40 to 50 meters long) open-air surrounded by fencing. The living containers were furnished with one bunk bed, two single beds (no cot bed for A.R.), and a chest of drawers. There was no refrigerator, microwave, or washing machine in the section. The applicants were given sand for the children to play with.
Police security checks were done regularly at 6 am and free wireless Internet was available albeit the connection was poor and was only used for messaging. Although the Government gave three meals to the children with two snacks each day, the applicants submitted that the food provided was inadequate for their age. Besides, the Government also claimed that they had provided a sanitary package, including essential baby hygiene products and other seasonal amenities to asylum seekers. However, the applicant mother stated that she had not been provided with maternity clothes, so she had to sew a dress for herself using bed linen.
The applicants received medical treatment on several occasions during their stay in the transit zone. This included basic and emergency medical needs such as hepatitis B and gynaecological examination. During those medical examinations, the applicants were escorted by armed police officers. Furthermore, regarding psychological assistance at the transit zone, no such facilities were provided by the Government. Subsequent assessments established that the applicant mother had suffered from PTSD while fleeing from Afghanistan.
In the case of R.R., he had already applied for asylum before entering Hungary. According to the IAO, he was not entitled to material reception under the Asylum Act. He was assigned accommodation with his family, but his meals were not free. He had initially been able to get food by paying other asylum seekers, who had bought the food in Serbia and delivered it to him upon their arrival at the zone. However, R.R. stated that such arrangements were difficult and that he would often be forced to eat the family’s leftovers or beg other asylum-seekers for food and search for edible things in the rubbish bins.
Following examination of their application, the applicants were granted a leave to enter and a temporary stay in Hungary. On 25th August 2017, the applicants left for Germany, where they were later granted international protection. Shortly afterwards, they filed a case at the European Court of Human Rights (ECtHR) relying on Art 3 (prohibition of inhuman or degrading treatment), Art 13 (right to an effective remedy), and Art 5 (right to liberty and security), and Art 34 (right of an individual petition) under the European Convention of Human Rights (ECHR). In essence, the complaints stated that Hungary had breached its duties under the ECHR while the applicants were staying at the transit zone, that Hungary did not give the family a legal remedy to complain about the conditions while they were in detention at the transit zone, there was a lack of judicial review of their detention, and of the authority’s failures to comply with an interim measure concerning them.
Decision of the European Court of Human Rights
The ECtHR composed of seven Justices sitting in the Chamber, and a dissenting judgment by Judge Mourou-Vikström, held that Hungary violated multiple rights of the asylum-seeking family during their stay at the Röszke transit zone. Regarding Art 3 (prohibition of inhuman or degrading treatment), the Court reiterated that confinement of minors raised particular issues since children, whether accompanied or not, was extremely vulnerable. Besides, the Court also held that Art 3 could not be interpreted as entailing any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living. Furthermore, in the case of R.R. in particular, he had not had adequate food. As a repeat asylum-seeker, the Government had had in principle allowed to decide to reduce or withdraw material aid for him. However, such a decision should have contained reasons for the withdrawal or reduction and should have taken into account the principle of proportionality. The Court was not aware of such a decision. Moreover, the Court noted that the applicant had not been able to leave the transit zone without forfeiting his asylum application and thus had been dependent on the Hungarian authorities. As a whole, the authorities had not sufficiently assessed R.R.’s circumstances before denying him food; and thus, leading to a violation of his right under Art 3.
As for the Art 3 violations against the applicant mother and her children, the Court held that the Hungarian authorities were obliged to take into consideration the individual situation of the minors and the pregnant woman. However, on the Court’s findings, no such assessments were taken or considered. The Court made particular notice of the fact that the heat and lack of ventilation in the applicant’s accommodation. It also considered the bed that had been unsuitable for children and they had no access to activities for part of their stay while in isolation, and the lack of adequate medical and psychiatric provision, the presence of male officers at the gynaecological examinations, and the constant security checks. As such, in the view of the applicant children’s young age, the applicant mother’s pregnancy and health situation, and the length of the applicant’s stay in the conditions in the transit zone, the Court found that the situation complained of had subjected the applicant children and the applicant mother to treatment in breach of the Convention.
Regarding Art 5 (right to liberty and security), the Court found that having particular notice of the lack of domestic legal provisions fixing the maximum duration of the applicants’ stay in the transit zone, the excessive duration of that stay, and the considerable delays in the domestic examination of the applicants’ asylum claims, as well as the conditions in which the applicants were detained during their stay at the transit zone, amounted to a de facto deprivation of liberation.
According to the Government, section 80/J of the Asylum Act stated that the asylum applicants could only be submitted, with certain exceptions, in the transit zone, and that the asylum seekers were required to wait until a final decision was taken on their asylum applications. However, the Court considered that without any formal decision of the authorities and solely by an overly broad interpretation of a general provision of the law, the applicants’ detention could not be considered to have been lawful. As such, the Court held that the Hungarian Government violated the rights of the applicants under Art 5.
Although claims were raised for violations of Art 13 and Art 34 of the ECHR, the Court did not find any such violations. As per the violations established under just satisfaction (Art 41), the Court held that Hungary was to pay the applicant children €6,500 each and the adults €4,500 each in respect of non-pecuniary damage, and €5,000 overall in respect of costs and expenses.
A copy of the judgment can be found here.
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