European Court of Human Rights

FIFTH SECTION

CASE OF P.S. AND A.M. v. HUNGARY

(Application no. 53272/17)

JUDGMENT
 

STRASBOURG

5 October 2023

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

In the case of P.S. and A.M. v. Hungary,

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

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

Having regard to:

the application (no. 53272/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 26 July 2017 by two Iraqi nationals, P.S. and A.M., born in 1986 and 2012 respectively and living in Iraq ("the applicants") who were represented by Ms B. 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 parties' observations;

Having deliberated in private on 14 September 2023,

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

SUBJECT MATTER OF THE CASE

1.  The applicants are a mother (the first applicant) and her minor child (the second applicant), both Iraqi nationals. They complain about their four-months confinement in a Hungarian transit zone and the degrading and inhuman conditions therein.

2.  They allegedly fled domestic abuse and physical violence inflicted on them by the first applicant's husband.

3.  On 30 March 2017 the applicants entered the Tompa transit zone and submitted an application for asylum.

4.  They stayed there until 26 July 2017 when the Office for Immigration and Asylum placed them in an open reception centre in Kiskunhalas. The applicants left Hungary in August 2017 and have been, according to the latest available information, residing in Iraq.

5.  In the Tompa transit zone the applicants were accommodated in the separate sector for families. The general conditions in which the applicants had to live were very similar to that of the Röszke transit zone which have been described and examined in R.R. and Others v. Hungary (no. 36037/17, §§ 10-12, 14-17 and 30-31, 2 March 2021). Besides these, the applicants also complained about the heat during summer months, the state authorities' ignorance of their vulnerable status, the second applicant's food allergy and their deteriorating mental health as a consequence of their confinement in the transit zone. The first applicant claimed that despite her being in need of immediate psychological assistance, she could not ask for such support during her entire stay in the transit zone.

6.  Relying on Article 3 of the Convention, taken alone and in conjunction with Article 13, the applicants complained about the allegedly inhuman or degrading conditions in which they were held in the transit zone and the lack of an effective remedy in this respect. They also complained about their four-months confinement to the transit zone under Article 5 §§ 1 and 4 of the Convention.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

7.  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.

8.  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) and with respect to the confinement of minors in R.R. and Others (cited above, § 49), S.F. v. Bulgaria (no. 8138/16, §§ 78-83, 7 December 2017) and M.H. and Others v. Croatia (nos. 15670/18 and 43115/18, §§ 183-186, 18 November 2021).

9.  As regards the second applicant, the present case is similar to that of R.R. and Others where 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 Röszke transit zone (R.R. and Others, cited above, §§ 58-60 and 63-65). Having regard to the evidence before it and to the fact that the conditions in Röszke transit zone and Tompa transit zone were very similar (H.M. and Others v. Hungary, no. 38967/17, § 17, 2 June 2022), the Court sees no reasons to find otherwise in the present case in which the second applicant stayed in the Tompa transit zone for four months (compare M.B.K. and Others v. Hungary [Committee], no. 73860/17, § 6, 24 February 2022 and A.A.A. and Others v. Hungary [Committee], no. 37327/17 § 7, 9 June 2022).

10.  As regards the applicant mother, it seems to be undisputed by the parties that she had been in need of mental health care during her stay in the transit zone. They only disagreed as to whether or not this care had been provided to her. The first applicant maintained that the Hungarian authorities had been aware of her history of domestic abuse and vulnerable situation, as well as her deteriorating mental health, soon after her arrival to the transit zone. She also maintained that she had not met a psychologist or psychiatrist during her stay in the transit zone. In fact, the asylum authority only started to employ a psychologist from mid-November 2017, that is after the applicants' stay in the transit zone. The Government submitted that the deterioration of the first applicant's mental health had been reported to the authorities only on 24 July 2017. They also submitted that she had been given sedatives on several occasions and her condition and behaviour had raised concerns of a suicide risk. The Government alleged that the first applicant had been examined by a doctor - who had ordered her to be closely monitored - and, in view of her mental state, the asylum authority decided to transfer the family to an open reception centre (see paragraph 4 above).

11.  In this connection, the Court wishes to refer back to its earlier findings in R.R. and Others v. Hungary where it already found substantiated that at the material time of the present case, professional psychological assistance was not available in the transit zones (cited above, §§ 30, 46 and 63). Be that as it may, the Government did not explain why the first applicant, whose condition had been brought to the attention of the authorities, had not been examined by a psychiatrist in a local hospital. They also did not provide any record of medical consultations or examinations concerning the first applicant or anything indicating that the authorities had not been aware of her problems earlier than on 24 July 2017. In fact, the Government acknowledged that the first applicant had been repeatedly given sedatives and had been considered at risk. The Court is thus not convinced that she was provided with the adequate care and considers that the conditions of confinement, the related constraints and insecurity must have caused the first applicant significant psychological suffering, of which the authorities must have been aware (compare W.O. and Others v. Hungary [Committee], no. 36896/18, § 12, 25 August 2022).

12.  Having regard to the Court's findings in R.R. and Others (cited above, §§ 30, 46 and 63) and the account provided by the first applicant which was not refuted by any evidence from the Government, the Court is not convinced that domestic authorities complied with their obligations flowing from Article 3 of the Convention with regards to providing appropriate health care to the first applicant.

13.  In view of the above, the Court finds that the situation complained of subjected the applicants to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention (see R.R. and Others, cited above, § 65).

14.  There has therefore been a violation of Article 3 of the Convention.

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

15.  The applicants' complaint that they had been 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, where 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 the relevant circumstances, does not consider that the present case warrants a different conclusion than it had reached in R.R. and Others. Article 5 is therefore applicable (see also H.M. and Others v. Hungary, no. 38967/17, § 30, 2 June 2022, and compare A.A.A. and Others v. Hungary [Committee], cited above, § 13). 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.

16.  Having examined all the material before it, the Court concludes 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 (cited above, §§ 87-92 and 97-99).

3. OTHER COMPLAINTS

17.  The applicants also complained under Article 13 taken in conjunction with Article 3 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 Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicants claimed 13,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,100 in respect of costs and expenses incurred before the Court.

19.  The Government considered these claims to be excessive.

20.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning 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 the admissibility and merits of the remaining complaint;
5. Holds

(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:

(i)  EUR 6,000 (six 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 applicants, 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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President