FIRST SECTION

DECISION

Application no. 34883/17 A.S. and Others against Hungary

The European Court of Human Rights (First Section), sitting on 17 May 2022 as a Committee composed of:

Alena Poláčková, President, Péter Paczolay, Davor Derenčinović, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 34883/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 May 2017 by the applicants listed in the appended table (“the applicants”) who were represented by Ms Pohárnok, 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 applicants’ names disclosed;

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

the decision to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court which was subsequently lifted;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the confinement of the applicant family in one of the Hungarian transit zones.

2. The first and second applicants are the mother and father, respectively, and the third and fourth applicants are their minor children (see the appended table).

3 . After leaving Afghanistan and crossing several other countries, the applicant family arrived at the Röszke transit zone at the border between Hungary and Serbia on 10 April 2017. On the same day they applied for asylum and were interviewed by the Immigration and Asylum Office. The latter issued a ruling ordering that they be accommodated in the Röszke transit zone on the basis of section 80/J (5) of the Asylum Act.

4 . The applicants were staying in the section designated for families. They were given a 13 ‑ square ‑ metre living container. They could not leave their section, other than when taken to medical or other appointments, escorted by guards or police officers.

5 . On 16 April 2017 the first applicant, after complaining of pain, was taken to the hospital where several diagnostic tests were carried out. On 4 May 2017 she was taken there again, this time for a prenatal check ‑ up.

6 . On 27 April 2017 the applicants appointed a lawyer to represent them. The latter, on 17 May 2017, submitted an objection to the County Court of Szeged requesting that the applicants be “released” from the transit zone. On 19 May 2017 the applicants were granted subsidiary protection and were transferred to an open reception facility in Hungary. From there the applicants left Hungary on 22 May 2017. The proceedings concerning their request for international protection were later reopened.

7. The applicants complained that the conditions of their stay in the Röszke transit zone had been incompatible with Article 3 of the Convention. Under Article 13 in conjunction with Article 3 of the Convention they complained that there had been no effective remedy to complain about those conditions. They also complained that they had been confined to the transit zone, in violation of Article 5 §§ 1 and 4 of the Convention.

THE COURT’S ASSESSMENT

8. In their observations, the Government pointed out that, although the application had been lodged by four applicants, the questions put to the parties had been formulated in the singular (“applicant”). The Court does not find it necessary to address this issue as the application is in any event inadmissible for the following reasons.

9. The Court has already considered that the living conditions in terms of accommodation, hygiene and access to food and medical care in the Röszke transit zone, were generally acceptable for holding asylum-seekers for a limited period of time (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 186-94, 21 November 2019, and R.R. and Others v. Hungary no. 36037/17, § 52, 2 March 2021). In R.R. and Others , which concerned the confinement of a family with young children to the transit zone for almost four months, the Court noted that the conditions in the transit zone, depending on the circumstances of the case, may not attain the threshold of severity required to engage Article 3, where the confinement was of a short duration.

It emphasised the primary significance of the passage of time for the application of this Article and considered that, in the case of a longer period, the repetition and accumulation of the conditions in the transit zone would necessarily have harmful consequences for those exposed to them (cited above, § 64).

10. In the present case the applicants stayed in the transit zone forty days. There is no indication that handcuffs or other restraint devices were used on them. As regards the alleged mental health problems of the first and fourth applicants, the Court does not find it substantiated that these were brought to the attention of the Hungarian authorities during the applicants’ stay in the transit zone. It also does not find any indication that the first applicant, who was pregnant upon arrival and no doubt required particular assistance, was denied prenatal medical care or that the care she received would have been inadequate or insufficient (contrast R.R. and Others , cited above, §§ 62 and 63). It notes in this connection that the possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11 , § 151, 31 January 2019, and R.R. and Others , cited above, § 62). As regards the alleged exposure to heat, it notes that the applicants were able to move freely within the family section, had unrestricted access to the outdoor yard and communal rooms and, in particular, did not stay in the transit zone during the summer. The Court furthermore understands that the transport of the first applicant in a police van on 16 April 2017 (see paragraph 5 above) was uncomfortable but finds that this by itself could not be considered as attaining the minimum level of severity necessary to fall within the scope of Article 3.

11. The Court also takes into account that the applicant children could be considered particularly vulnerable. In several cases it has found a violation of Article 3 with respect to the conditions in which accompanied minors had been kept in immigration detention for the duration shorter than the one in the present case (see, for instance, Popov v. France , nos. 39472/07 and 39474/07, §§ 92-103, 19 January 2012; A.B. and Others v. France , no. 11593/12, §§ 111-15, 12 July 2016; and A.M. and Others v. France , no. 24587/12, §§ 48-53, 12 July 2016). However, it notes that the present case differs from these cases in that the applicant family stayed in the transit zone awaiting the processing of their requests for international protection and was not held there with a view to being removed. The applicants were allowed to leave the reception facility in the direction of Serbia at any time (see paragraph 15 below).

12. The Court moreover notes that the applicants stayed in the section adapted for families, in which the conditions could be considered acceptable from the standpoint of Article 3 for a stay of short duration (see R.R. and Others , cited above, §§ 30 and 64, and contrast Popov , cited above, §§ 95 and 96, where the detention facility had not been properly suited for holding children). Apart from the presence of prison-like elements (see R.R. and Others , cited above, § 63), the Court, in the present case, does not discern any significant factors adversely affecting the well-being of the applicant children, such as lack of privacy or exposure to noise or other disturbances (contrast R.M. and Others v. France , no. 33201/11, §§ 72-76, 12 July 2016; A.B. and Others v. France , cited above, §§ 111-15; A.M. and Others v. France , cited above, §§ 48-53; R.K. and Others v. France , no. 68264/14, §§ 70-71, 12 July 2016; and R.C. and V.C. v. France , no. 76491/14, §§ 36 ‑ 40, 12 July 2016). The Court furthermore observes that the applicant children throughout the stay remained with their parents who took care of them and that the family had their own, albeit small, living space. While not being able to attend school during their forty-day-long stay, they had access to certain facilities designated for playing and were able to participate in activities organised specifically for children in the family section.

13. As regards the length of the stay, the Court notes that unlike in R.R. and Others where the applicant family stayed in the transit zone for almost four months and was for a part of their stay accommodated in particularly restrictive conditions in the isolation section, the applicant family in the present case remained in the section designated for families throughout their stay (compare N.A. and Others v. Hungary (dec.) [Committee], no. 37325/17, §§ 2, 6 and 12, 1 February 2022). It notes further that the family was transferred to an open reception facility as soon as they were granted subsidiary protection.

14. Taking into account the applicants’ individual circumstances, the material conditions in the zone and the length of the applicants’ stay there, the Court finds that the situation complained of did not reach the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4 of the Convention.

15. In Ilias and Ahmed (cited above, §§ 219-49) the Grand Chamber examined a complaint similar to the present one and held that the applicants’ twenty-three-day-long stay in the Röszke transit zone did not constitute a de facto deprivation of liberty and, consequently, that Article 5 was not applicable. In the present case the provision setting the maximum duration of an asylum ‑ seeker’s stay in the transit zone did not apply (see R.R. and Others , cited above, § 79). However, the length of the applicants’ stay in the transit zone, that is forty days, did not exceed significantly the time needed for the examination of their asylum request (see paragraphs 3 to 6 above, and Ilias and Ahmed , cited above, §§ 228-29). In particular, it has not been shown that the time-limits for processing their asylum claim were exceeded or that the Hungarian authorities failed to act in a speedy and diligent manner (contrast R.R. and Others , cited above, §§ 79 and 80). In view of the foregoing and also noting that the applicants could have left the transit zone in the direction of Serbia at any moment, which have been addressed already in the cases of Ilias and Ahmed (cited above, §§ 220-23 and 231 ‑ 48) and R.R. and Others (cited above, §§75 and 81) , the applicants’ stay in the transit zone could not be considered as deprivation of liberty within the meaning of Article 5 of the Convention.

16. It follows that the applicants’ complaints under Article 5 §§ 1 and 4 of the Convention are incompatible ratione materiae with its provisions within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4 of the Convention.

17. The applicants also alleged under Article 13 read in conjunction with Article 3 that there was no effective remedy at their disposal to complain about the conditions in the transit zone.

18. Having declared the complaint under Article 3 of the Convention inadmissible, the Court concludes that the applicants have 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 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 June 2022.

Liv Tigerstedt Alena Poláčková Deputy Registrar President

APPENDIX

No.

Applicant’s Name

Gender

Year of birth

Nationality

1.A. S.

F

1985Afghan

2N. N.

M

1988Afghan

3.H. N.

F

2007Afghan

4.E. N.

M

2009Afghan