European Court of Human Rights

FIFTH SECTION

CASE OF S.H. v. HUNGARY

(Application no. 47321/19)

JUDGMENT
 

STRASBOURG

20 June 2024

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

In the case of S.H. 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. 47321/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 4 September 2019 by an Iranian national, S.H., born in 1991 and living in Ehrenberg, Germany ("the applicant") who was represented by Mr Sz.M. Sánta, 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 parties' observations;

Having deliberated in private on 30 May 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applicant, fleeing Iran with her brothers on account of their involvement in the Arab minority movement, entered the Tompa transit zone at the Serbian-Hungarian border on 18 January 2018 to seek asylum.

2.  Her asylum application was rejected on 14 March 2018. She sought judicial review of the decision. On 21 January 2019 the administrative and labour court suspended the examination of her case as it submitted a preliminary reference to the Court of Justice of the European Union (CJEU).

3.  While in the transit zone, the applicant was initially staying with her two brothers. They were accommodated in the family sector, sharing a container of 13 square metres, furnished with beds and lockers. Besides the general material conditions, she complained about noise, heat, prolonged isolation and the alleged deterioration of her mental health. She submitted that she was subjected to verbal harassment from male asylum-seekers, and following the release of her brothers from the transit zone on 7 and 19 February 2019, she felt unprotected, isolated and had suicidal thoughts.

4.  On 19 February 2019, after her brothers' departure, she was transferred to the health care sector, which was normally used for the isolation of people with contagious diseases. She was alone there in a container and was kept under surveillance 24 hours a day. According to her, at around 11.00 p.m. during her first night there, several police officers entered the container, shouting, switching the lights on and instructing her to keep them turned on. The door of the container had to remain open as well.

5.  Protesting against the separation from her brothers, the conditions and the excessive length of her detention, the applicant went on a hunger strike. A psychologist visited her, but according to the applicant, she "was provided no treatment, only advised her to eat" and to accept the rules.

6.  On 15 February 2019 her legal representative submitted an urgent request to the Immigration and Asylum Office ("the IAO"), asking for her immediate transfer to an open reception centre, referring to her harassment and the risk of further abuse and self-harm.

7.  On 25 February 2019 the applicant's legal representative sought an interim measure from the administrative and labour court, requesting her release from the transit zone. On 26 February 2019 the court granted her request, ordering the IAO to provide the applicant, without delay, with accommodation outside the transit zone. The court referred to Article 43(2) of the 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 and section 71/A (4) of Act no. LXXX of 2007 on Asylum, on the basis of which asylum-seekers may only stay in a transit zone for four weeks. As this period had clearly expired in the applicant's case, the court concluded that she was unlawfully required by the authorities to remain in the Tompa transit zone.

8.  The applicant was released to the Balassagyarmat community shelter on 4 March 2019. Two days later she left for an unknown destination. She currently resides in Germany.

9.  Relying on Article 3 of the Convention, taken alone and in conjunction with Article 13, she complained about the allegedly inhuman or degrading conditions in which she had been held in the transit zone and the lack of an effective remedy in this respect. She also complained about her thirteen-month 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

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) and with respect to state authorities' obligation to protect the mental health of persons deprived of liberty in Keenan v. the United Kingdom (no. 27229/95, §§ 90-93, ECHR 2001-III).

12.  It is undisputed by the parties that the applicant's mental health condition and behaviour, especially following the departure of her brothers, had indicated a risk of her committing a suicide. They only disagreed as to whether the authorities had adequately responded to her situation and her mental health support needs.

13.  The applicant submitted that she agreed to being placed in the health care sector to avoid the harassment and the risk of being raped by men in the family sector. However, the conditions therein resembled those of solitary confinement. She maintained that her transfer to the isolation sector further added to her suffering.

14.  The Government contended that the applicant's placement in the isolation sector was necessary in her own interest as she had threatened to commit suicide. They submitted that she had been consulted prior to the placement and had agreed to it and that she had been visited daily by social workers.

15.  Be that as it may, the Government did not explain why the applicant, whose mental health 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 applicant, despite acknowledging that she had been at risk of harming herself. Furthermore, in R.R. and Others, the Court already found that the living conditions in the isolation sector had been more restrictive than in the family sector (cited above, §§ 13, 82). Nevertheless, the Government failed to rebut the applicant's allegations as regards the distressing and intimidating nature of her surveillance in that sector (see paragraph 4 above). In the Court's view, while the applicant's isolation might have mitigated the risk of harassment and abuse, at the same time, without providing her appropriate support, it must had had a deteriorating effect on her mental health.

16.  The Court is thus not convinced that the applicant was provided with the adequate care, and considers that the conditions of confinement, the related constraints and insecurity must have caused her 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 and P.S. and A.M. v. Hungary [Committee], no. 53272/17, § 11, 5 October 2023).

17.  The above considerations are sufficient to enable the Court to conclude that the domestic authorities failed to comply with their obligations flowing from Article 3 of the Convention with regards to providing appropriate mental health care to the applicant. In light of this, the Court considers that there is no need to examine the applicant's other complaints (such as her exposure to heat and her prolonged isolation) which might also be relevant for the assessment under Article 3.

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

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

19.  The applicant's complaint that she 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 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 O.Q. v. Hungary [Committee], no. 53528/19, § 15, 5 October 2023). 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.  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

21.  The applicant 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 admissibility and merits of 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

22.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,000 in respect of costs and expenses incurred before the Court.

23.  The Government contested these claims as being excessive.

24.  Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 3,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

25.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicant the full sum she claimed in respect of costs, that is EUR 1,000 for the proceedings before the Court, plus any tax that may be chargeable to her.

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 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 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand 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 20 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President