European Court of Human Rights

FIFTH SECTION

CASE OF O.Q. v. HUNGARY

(Application no. 53528/19)

JUDGMENT
 

STRASBOURG

5 October 2023

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

In the case of O.Q. 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. 53528/19) 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 October 2019 by a Syrian national, O.Q., born in 1998 and living in the Netherlands ("the applicant") who was 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 applicant's name disclosed;

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 in private on 14 September 2023,

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

SUBJECT MATTER OF THE CASE

1.  The applicant fled Syria in March 2017. He entered the Tompa transit zone at the Serbian-Hungarian border on 19 July 2018 to seek asylum.

2.  On 9 August 2018 his asylum application was rejected as inadmissible by the Office for Immigration and Asylum ("the IAO") without the examination of the merits. At the same time he was expelled to Serbia. He requested the judicial review of the IAO's decision.

3.  On 12 March 2019 he submitted a request for "immediate legal protection" ("azonnali jogvédelem iránti kérelem") to the Budapest Administrative and Labour Court to place him in an accommodation outside of the transit zone. He complained about the prison-like conditions, the extreme length of his detention (8 months) and his deteriorating mental health.

4.  On 3 April 2019 the Budapest Administrative and Labour Court granted the applicant's request and instructed the IAO to immediately provide him with accommodation outside the transit zone, noting that the duration of the applicant's stay in the transit zone had exceeded the limit of four weeks and was thus unlawful.

5.  The IAO had decided to place the applicant in an open reception centre in Balassagyarmat to where he was transferred on 5 April 2019. The applicant left the centre on 22 April 2019 for an unknown destination. He currently resides in the Netherlands.

6.  In the Tompa transit zone the applicant was first placed in Sector D for single men. On 9 August 2018 he was transferred to the alien policing (expulsion) sector for about two weeks before being placed back in the sector for asylum seekers (Sector C).

7.  He was accommodated in a container of 13 square metres, furnished with beds and lockers, which he shared with other people (the exact number of which varied from period to period). Besides the general material conditions, he also complained about the heat, his prolonged isolation and the alleged deterioration of his mental health. He submitted that he did not receive adequate level of medical and psychological assistance.

8.  During his stay in the alien policing sector, between 9 and 11 August and between 14 and 16 August 2018 (for a total of six days), the applicant was not provided with any food by the Hungarian authorities. The applicant received food following the Court's decision of 16 August 2018, by which the applicant's request for interim measure under Rule 39 of the Rules of the Court had been granted and the Government had been asked to provide the applicant with food during his stay in the transit zone (for administrative reasons, the interim measure request was registered with application no. 38679/18).

9.  The applicant submitted that the conditions of his confinement in the Tompa transit zone had been incompatible with Articles 3 and 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

1. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

10.  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.

11.  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).

12.  In 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) the Court made a thorough assessment of the general living conditions in one of the transit zones. In the latter case it also 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) the Court found a violation of Article 3 on account of food deprivation for six days.

13.  As to the applicant's circumstances, the Court notes that he was given no food by the Hungarian authorities during six days in total while he was in the deportation section. It considers that by refusing to give him food, the authorities failed to have due regard to the state of dependency in which he lived during this period (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 (such as the exposure to heat, his prolonged isolation and the alleged deterioration of his mental health) which might also be relevant for the assessment under Article 3.

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

2. ALLEGED VIOLATION of Article 5 §§ 1 AND 4 OF THE CONVENTION

15.  The applicant's complaint that he 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 of almost four months in the transit zone amounted to a de facto deprivation of liberty (cited above, §§ 74-83). The applicant in the present case was confined in the transit zone for a period of eight month. Article 5 is therefore applicable (compare W.O. and Others v. Hungary [Committee], no. 36896/18, §§ 4 and 15, 25 August 2022). 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 applicant also complained under Article 8 and Article 13 read in conjunction with Articles 3 and 8 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 applicant claimed 9,000 euros (EUR) in respect of non-pecuniary damage and EUR 4,200 in respect of costs and expenses incurred before the Court.

19.  The Government argued that the claims were excessive.

20.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 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 applicant EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to him.

22.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

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 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 4,500 (four thousand five hundred 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 5 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President