EGMR

[...]

I. Alleged Violation of Article 5 § 1 of the Convention [...]

A. Admissibility [...]

54. The applicants in the present case were confined for over three weeks to the border zone – a facility which, for the Court, bears a strong resemblance to an international zone, both being under the State’s effective control irrespective of the domestic legal qualification. They were confined in a guarded compound which could not be accessed from the outside, even by their lawyer. Unlike the applicants in the case of Mogoş v. Romania ((dec.), no. 20420/02, 6 May 2004), who were free to enter Romanian territory at any time but chose to stay in an airport transit zone, the applicants in the present case – similarly to those in the cases of Amuur, and Riad and Idiab (cited above) and Shamsa v. Poland, nos. 45355/99 and 45357/99, § 47, 27 November 2003 – did not have the opportunity to enter Hungarian territory beyond the zone. Accordingly, the Court considers that the applicants did not choose to stay in the transit zone and thus cannot be said to have validly consented to being deprived of their liberty (see, mutatis mutandis, Austin and Others, cited above, § 58).

55. The mere fact that it was possible for them to leave voluntarily returning to Serbia which never consented to their readmission cannot rule out an infringement of the right to liberty (see Riad and Idiab, cited above, § 68). The Court notes in particular that pursuant to section 66 (2) d) of the Asylum Act (see paragraph 31 above) if the applicants had left Hungarian territory, their applications for refugee status would have been terminated without any chance of being examined on the merits. Consequently, the Court cannot accept at face value the Government’s argument concerning the possibility of leaving the transit zone voluntarily. Owing to the circumstances, the applicants could not have left the transit zone in the direction of Serbia without unwanted and grave consequences, that is, without forfeiting their asylum claims and running the risk of refoulement.

56. Having regard to the above considerations, the Court concludes that the applicants’ confinement to the transit zone amounted to a de facto deprivation of liberty (see, mutatis mutandis, Riad and Idiab, ibidem). Article 5 § 1 of the Convention therefore applies. To hold otherwise would void the protection afforded by Article 5 of the Convention by compelling the applicants to choose between liberty and the pursuit of a procedure ultimately aimed to shelter them from the risk of exposure to treatment in breach of Article 3 of the Convention. [...]

B. Merits [...]

65. The applicants’ detention in the transit zone lasted from 15 September 2015 to 8 October 2015, that is, 23 days. According to the Government, section 71/A (1) and (2) of the Asylum Act provided sufficent legal basis for the measure. In turn, these rules refer back to section 5 of the same Act, under which provision asylum-seekers subjected to the border procedure were not entitled to stay in the territory of Hungary or seek accommodation at a designated facility.

66. The Court is not persuaded that these rules circumscribe with sufficient precision and foreseeability the prospect that asylum-seekers such as the applicants were liable to be committed to the transit zone – a measure which, under the circumstances, amounts to deprivation of liberty irrespective of its domestic characterisation. Indeed, it finds it quite difficult to identify in the provisions at hand any reference to the possibility of detention at the transit zone. The Government’s submissions, according to which the applicants’ stay at the transit zone, although it did not amount to detention, had nevertheless a compelling basis in national law (see paragraph 60 above) only cast doubt on the clarity and the foreseeability of the domestic provisions in question.

67. At any rate, the Court notes that the applicants’ detention apparently occurred de facto, that is, as a matter of practical arrangement. This arrangement was not incarnated by a formal decision of legal relevance, complete with reasoning.

68. The motives underlying the applicants’ detention may well be those referred to by the Government in the context of Article 5 § 1 (f) of the Convention, that is to counter abuses of the asylum procedure. However, for the Court the fact remains that the applicants were deprived of their liberty without any formal decision of the authorities and solely by virtue of an elastically interpreted general provision of the law – a procedure which in the Court’s view falls short of the requirements enounced in the Court’s case-law. The conditions of Article 31/A of the Asylum Act were not met and no formal decision was taken; furthermore no special grounds for detention in the transit zone were provided for in Article 71/A. In this connection the Court would reiterate that it has considered the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time, as in the present case to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1 (see Stašaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002; Nakhmanovich v. Russia, no. 55669/00, § 70, 2 March 2006; Belevitskiy v. Russia, no. 72967/01, § 91, 1 March 2007, and Mooren v. Germany [GC], no 11364/03, § 79, 9 July 2009).

69. It follows that the applicants’ detention cannot be considered "lawful" for the purposes of Article 5 § 1 of the Convention. Consequently, there has been a violation of that provision.

II Alleged Violation of Article 5 § 4 of the Convention [...]

B. Merits [...]

75. The Court observes that the applicants’ detention consisted in a de facto measure, not supported by any decision specifically addressing the issue of deprivation of liberty (see paragraph 67 above). Moreover, the proceedings suggested by the Government concerned the applicants’ asylum applications rather than the question of personal liberty. In these circumstances, it is quite inconceivable how the applicants could have pursued any judicial review of their committal to, and detention in, the transit zone – which itself had not been ordered in any formal proceedings or taken the shape of a decision.

76. The Court therefore must conclude that the applicants did not have at their disposal any "proceedings by which the lawfulness of [their] detention [could have been] decided speedily by a court".

77. It follows that there has been a violation of Article 5 § 4 of the Convention.

III. Alleged Viiolation of Article 3 of the Convention based on the Conditions at the Röszke Border Transit Zone [...]

B. Merits [...]

(b) Application of these principles in the present case

84. In its Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, that is, soon after the applicants had left the transit zone, the CPT described acceptable conditions regarding the accommodation containers in use in Röszke. It nevertheless suggested that that if foreign nationals were to be held in a transit zone for longer periods, the maximum capacity of the accommodation containers should be reduced and they should be equipped with some basic furniture (see paragraph 36 above).

85. For 23 days, the applicants were confined to an enclosed area of some 110 square metres and, adjacent to that area, they were provided a room in one of the several dedicated containers. According to the CPT, the ground surface of these rooms was 13 square metres. The applicants’ room contained beds for five but it appears that at the material time they were the only occupants. Sanitary facilities were provided in separate containers; and the CPT found that their standard did not call for any particular comment. The applicants submitted that no medical services were available; however, a psychiatrist was granted access to them; and the CPT gained a generally favourable impression of the health-care facilities. The applicants were provided three meals daily. Although they complained of the absence of recreational and communication facilities, there is no indication that the material conditions were poor, in particular that there was a lack of adequate personal space, privacy, ventilation, natural light or outdoor stays.

86. That being said, the Court takes cognisance of the opinion of the psychiatrist who found that the applicants suffered from posttraumatic stress disorder. In the applicants’ submissions, this condition may have qualified as demonstrating that they had undergone "a grave form of psychological, physical ... violence" within the meaning section 2(k) of the Asylum Act which, in turn, should have pre-empted the application of border procedure in their case, pursuant to section 71/A (7) of the same Act (see paragraph 31 above).

87. Independently of the characterisation of the applicants’ condition under the domestic law – in regard to which it cannot substitute its own assessment for that of the national authorities – the Court notes that the alleged events in Bangladesh appear to have occurred years before the applicants’ arrival in Hungary. They spent only a short time in Serbia (see paragraph 9 above), and did not refer to any incidents in other countries. While it is true that asylum seekers are considered particularly vulnerable because of everything they might have been through during their migration and the traumatic experiences they were likely to have endured previously (see M.S.S. v. Belgium and Greece, cited above, § 232), for the Court, the applicants in the present case were not more vulnerable than any other adult asylum-seeker detained at the time (see, Mahamed Jama v. Malta, no. 10290/13, § 100, 26 November 2015, and, a contrario, Aden Ahmed v. Malta, no. 55352/12, §§ 97-99, 23 July 2013).

88. It is true that there were no proper legal grounds for the applicants’ confinement (see paragraphs 49 to 57 above); and that the lack of legal basis for their deprivation of liberty may have contributed to the feeling of inferiority prevailing in the impugned conditions. However, there is an inevitable element of suffering and humiliation involved in custodial measures, and this as such, in itself, will not entail a violation of Article 3 (see Stanev v. Bulgaria [GC], no. 36760/06, § 204, ECHR 2012).

89. In view of the satisfactory material conditions and the relatively short time involved, the Court concludes that the treatment complained of did not reach the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention.

90. Having regard to the foregoing considerations, it finds that there has been no violation of Article 3 of the Convention.

IV. Alleged Violation of Article 13 of the Convention Read in Conjunction with Article 3 Based on the Conditions at the Röszke Border Transit Zone [...]

B. Merits [...]

99. The Court has declared admissible the applicants’ complaint under the substantive head of Article 3 in respect of the conditions of detention (see paragraph 79 above). Although, for the reasons given above, it has not found a violation of that provision, it nevertheless considers that those complaints raised by the applicants were not manifestly ill-founded and raised serious questions of fact and law requiring examination on the merits. The complaints in question were therefore "arguable" for the purposes of Article 13 of the Convention (see Khlaifia and Others, cited above, §§ 268-269).

100. The Court further observes that the Government have not indicated any remedies by which the applicants could have complained about the conditions in which they were held in the transit zone.

101. It follows that there has been a violation of Article 13 taken together with Article 3 of the Convention.

V. Alleged Violation of Article 3 of the Convention Based on the Risk of Inhuman and Degrading Treatment [...]

B. Merits [...]

(b) Application of these principles to the present case

117. The Court has to establish whether at the time of their removal from Hungary on 8 October 2015, the applicants could arguably assert that their removal to Serbia would infringe Article 3 of the Convention.

118. The Court observes that the applicants were removed from Hungary on the strength of the Government Decree listing Serbia as a safe third country and establishing a presumption in this respect. The individualised assessment of their situation with regard to any risk they ran if returned to Serbia took place in these legal circumstances. Indeed, it involved a reversal of the burden of proof to the applicants’ detriment including the burden to prove the real risk of inhuman and degrading treatment in a chain-refoulement situation to Serbia and then the former Yugoslav Republic of Macedonia, eventually driving them to Greece. However, it is incumbent on the domestic authorities to carry out an assessment of that risk of their own motion when information about such a risk is ascertainable from a wide number of sources. Not only that the Hungarian authorities did not perform this assessment in the determination of the individual risks but they refused even to consider the merits of the information provided by the counsel, limiting their argument to the position of the Government Decree 191/2015.

119. It is of note at this point that Articles 31 § 8 (b), 33, 38 § 1 and 43 of Directive 2013/32/EU (see paragraph 34 above) allow for accelerated/border procedure for asylum-seekers from a "safe country of origin". However, as to the question whether, and to what extent, Hungarian law corresponds to those provisions, the Court cannot embark on a scrutiny on how the domestic authorities implement the law of the European Union.

120. The Court observes that between January 2013 and July 2015 Serbia was not considered a safe third country by Hungary (see paragraph 46 above). This was so in accordance with reports of international institutions on the shortcomings of asylum proceedings in Serbia (see, for example, Mohammadi, cited above, § 29). However, the 2015 legislative change produced an abrupt change in the Hungarian stance on Serbia from the perspective of asylum proceedings (see the UNHCR and ECRE reports quoted in paragraphs 37 to 39 above). The altered position of the Hungarian authorities in this matter begs the question whether it reflects a substantive improvement of the guarantees afforded to asylum-seekers in Serbia. However, no convincing explanation or reasons have been adduced by the Government for this reversal of attitude, especially in light of the reservations of the UNHCR and respected international human rights organisations expressed as late as December 2016 (see paragraph 41 above).

121. This is of particular concern to the Court, since the applicants arrived in Hungary through the former Yugoslav Republic of Macedonia, Serbia and Greece (see paragraph 9 above). The Court observes that in 2012 the UNHCR urged States not to return asylum-seekers to Serbia (see paragraph 40 above), notably because the country lacked a fair and efficient asylum procedure and there was a real risk that asylum seekers were summarily returned to the former Yugoslav Republic of Macedonia.

122. In regard to the latter country, in 2015 the UNCHR found that, despite positive developments, significant weaknesses persisted in the asylum system in practice; that the country had not been able to ensure that asylum-seekers have access to a fair and efficient asylum procedure; and that inadequate asylum procedure resulted in low recognition rates, even for the minority of asylum-seekers who stay in the country to wait for the outcome of their asylum claims. Although the UNCHR found that asylum-seekers arriving in the country were protected from the risk of refoulement by the introduction, as of June 2015, of a procedure for registration of the intention to submit an asylum application at the border, the Court cannot but notice that the Hungarian authorities did not seek to rule out that the applicants, driven back through Serbia, might further be expelled to Greece, notably given the procedural shortcoming and the very low recognition rate in the former Yugoslav Republic of Macedonia (see paragraph 42 above).

123. In regard to Greece, the Court found that the reception conditions of asylum seekers, including the shortcomings in the asylum procedure, amounted to a violation of Article 3, read alone or in conjunction with Article 13 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 62 to 86, 231, 299 to 302 and 321). Although recent developments (see paragraph 43 above) demonstrate an improvement in the treatment of asylum-seekers in Greece conducive to the gradual resumption of transfers to the country, this was not yet the case at the material time.

124. While the Court is concerned about the above shortcomings, it is not called in the present case to determine the existence of a systemic risk of ill-treatment in the above countries as the procedure applied by the Hungarian authorities was not appropriate to provide the necessary protection against a real risk of inhuman and degrading treatment. Notably, they relied on a schematic reference to the Government’s list of safe third countries (see paragraph 33 above), disregarded the country reports and other evidence submitted by the applicants and imposed an unfair and excessive burden of proof on them. Moreover, the Court observes that, owing to a mistake, the first applicant was interviewed with the assistance of an interpreter in Dari, a language he does not speak, and the asylum authority provided him with an information leaflet on asylum proceedings that was also in Dari (see paragraph 13 above). As a consequence, his chances of actively participating in the proceedings and explaining the details of his flight from his country of origin were extremely limited. The applicants are illiterate, nonetheless all the information they received on the asylum proceedings was contained in a leaflet. It thus appears that the authorities failed to provide the applicants with sufficient information on the procedure – an occurrence aggravated by the fact that they could not meet their lawyer prior to the court hearing in order to discuss their cases in detail (see paragraph 16 above). Moreover, a translation of the decision in their case was produced to their lawyer only two months after the relevant decision had been taken, at a time when they were outside Hungary already for two months (see paragraph 30 above).

125. Having regard to the above considerations, the Court finds that the applicants did not have the benefit of effective guarantees which would have protected them from exposure to a real risk of being subjected to inhuman or degrading treatment in breach of Article 3 of the Convention. There has accordingly been a violation of that provision in this regard. [...]