I incorrectly predicted that there's no violation of human rights in M.B.K AND OTHERS v. HUNGARY.

Judgment

FIRST SECTION
CASE OF M.B.K AND OTHERS v. HUNGARY
(Application no. 73860/17)

JUDGMENT

STRASBOURG
24 February 2022

This judgment is final but it may be subject to editorial revision. In the case of M.B.K and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Raffaele Sabato, President, Péter Paczolay, Davor Derenčinović, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 73860/17) 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 October 2017 by six Afghan nationals, listed in the appended table, (“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 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 in private on 1 February 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The first and second applicants are the father and mother, respectively, and the third to sixth applicants are their four children who at the time of the events in question were all minors (see the appended table). The family stayed at the Röszke transit zone at the border of Hungary and Serbia between 30 March 2017 and 24 October 2017. 2. The applicants’ asylum requests were rejected on 5 May 2017. Further to their request for judicial review, the Immigration and Asylum Office (“the IAO”) reconsidered the case of its own motion and rejected their asylum requests again on 15 June 2017. The Szeged Administrative and Labour Court quashed the IAO’s decision on 16 August 2017. It also quashed the ruling designating the Röszke transit zone as the applicants’ place of accommodation due to insufficient reasoning. Subsequently, on 22 September 2017, the IAO modified the reasoning of that decision by stating that the applicants did not have special needs that could not been taken care of in the transit zone. On 20 October 2017 the applicants were granted refugee status. On 24 October 2017 they were transferred to the Vámosszabadi Reception Centre. On 28 October 2017 the applicants left Hungary. They currently reside in Switzerland. 3. In the Röszke transit zone the applicants stayed in the family section, where they were housed in one container with a separate bed and a wardrobe for each one of them. The general conditions and services provided in the Röszke transit zone are described in R.R. and Others v. Hungary (no. 36037/17, §§ 10-12, 14-17 and 30-31, 2 March 2021). In addition to describing the general conditions, the applicant alleged that the applicant father suffered from impaired hearing, back pain and mental-health problems but was given only painkillers. They also alleged that on one occasion the third applicant, who was still a minor, had been handcuffed and escorted by police when accompanying patients to a hospital in order to assist with interpretation. The fifth applicant experienced symptoms of anhelation. 4. The applicants complained that the conditions of their confinement in the Röszke transit zone had been incompatible with the guarantees of Articles 3 and 8 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. Moreover, they complained that they had been detained in the transit zone in violation of Article 5 §§ 1 and 4 of the Convention. Lastly, they alleged that the respondent State had failed to comply with the interim measure indicated by the Court in violation of Article 34. THE COURT’S ASSESSMENT
5. 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. 6. 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). As regards the applicant children, 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, the Court sees no reasons to find otherwise in the present case in which the applicant children stayed in the transit zone for almost seven months. 7. There has accordingly been a violation of Article 3 of the Convention with respect to the applicant children. 8. The Court has already considered that the living conditions in the Röszke transit zone in terms of accommodation, hygiene and access to food and medical care were generally acceptable for holding asylum-seekers for a limited period of time (see R.R. and Others, cited above, § 52, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 186-94, 21 November 2019). Although the adult applicants in the present case stayed in the transit zone for almost seven months, the evidence in the file does not show that they were more vulnerable than any other adult asylum seeker confined to the transit zone and that the otherwise acceptable conditions in the transit zone were particularity ill-suited in their circumstances. The adult applicants seem to rely particularly on the effect the confinement of their children had on them. The Court has examined a similar issue in Muskhadzhiyeva and Others v. Belgium (no. 41442/07, § 66, 19 January 2010) and Popov v. France (nos. 39472/07 and 39474/07, § 105, 19 January 2012). It notes that the confinement of the adult applicants with their children could have created a feeling of powerlessness together with anxiety and frustration. However, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings (see, for instance, Popov, cited above, § 105). Therefore and in view of other above-mentioned circumstances the Court finds that the threshold of severity required for Article 3 to come into play has not been attained. 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. 9. 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. Article 5 is therefore applicable. 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. 10. 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). 11. The applicants left the transit zone on 24 October 2017 and only raised their complaint under Article 8 in their observations of 16 July 2018. In so far as this complaint does not in substance overlap with the complaint under Article 3 (see Ilias and Ahmed, cited above, §§ 180-81), it fails to comply with the six-month rule set out in Article 35 § 1 of the Convention. It must thus be rejected pursuant to Article 35 § 4 of the Convention. 12. The applicants also raised complaints under Article 13 read in conjunction with Article 3 and under Article 34. Having declared the complaint under Article 3 regarding the adult applicants inadmissible, the adult 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). It must be rejected in accordance with Article 35 § 4 of the Convention. The Court considers that the remaining complaints, namely the complaint under Article 13 read in conjunction with Article 3 concerning the applicant children and the complaint under Article 34 relating to all applicants, are admissible but, referring to its considerations in R.R. and Others (§§ 69 and 107), does not find it necessary to examine them separately. APPLICATION OF ARTICLE 41 OF THE CONVENTION
13. The applicants claimed each 15,000 euros (EUR) in respect of non‐pecuniary damage and, jointly, EUR 9,640 in respect of costs and expenses incurred before the Court. 14. The Government argued that the claims were excessive. 15. Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, EUR 17,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 16. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants, jointly, EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to the applicants. 17. 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,
(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 17,000 (seventeen 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;

Done in English, and notified in writing on 24 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Raffaele Sabato Deputy Registrar President

APPENDIX

No. Applicant’s Name
Gender
Year of birth
Nationality
1. M. K.
M
1976
Afghan
2. F. R.
F
1982
Afghan
3. S. K.
F
2002
Afghan
4. S. K.
M
2004
Afghan
5. S. K.
M
2006
Afghan
6. M. K.
M
2012
Afghan

FIRST SECTION
CASE OF M.B.K AND OTHERS v. HUNGARY
(Application no. 73860/17)

JUDGMENT

STRASBOURG
24 February 2022

This judgment is final but it may be subject to editorial revision. In the case of M.B.K and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Raffaele Sabato, President, Péter Paczolay, Davor Derenčinović, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 73860/17) 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 October 2017 by six Afghan nationals, listed in the appended table, (“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 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 in private on 1 February 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The first and second applicants are the father and mother, respectively, and the third to sixth applicants are their four children who at the time of the events in question were all minors (see the appended table). The family stayed at the Röszke transit zone at the border of Hungary and Serbia between 30 March 2017 and 24 October 2017. 2. The applicants’ asylum requests were rejected on 5 May 2017. Further to their request for judicial review, the Immigration and Asylum Office (“the IAO”) reconsidered the case of its own motion and rejected their asylum requests again on 15 June 2017. The Szeged Administrative and Labour Court quashed the IAO’s decision on 16 August 2017. It also quashed the ruling designating the Röszke transit zone as the applicants’ place of accommodation due to insufficient reasoning. Subsequently, on 22 September 2017, the IAO modified the reasoning of that decision by stating that the applicants did not have special needs that could not been taken care of in the transit zone. On 20 October 2017 the applicants were granted refugee status. On 24 October 2017 they were transferred to the Vámosszabadi Reception Centre. On 28 October 2017 the applicants left Hungary. They currently reside in Switzerland. 3. In the Röszke transit zone the applicants stayed in the family section, where they were housed in one container with a separate bed and a wardrobe for each one of them. The general conditions and services provided in the Röszke transit zone are described in R.R. and Others v. Hungary (no. 36037/17, §§ 10-12, 14-17 and 30-31, 2 March 2021). In addition to describing the general conditions, the applicant alleged that the applicant father suffered from impaired hearing, back pain and mental-health problems but was given only painkillers. They also alleged that on one occasion the third applicant, who was still a minor, had been handcuffed and escorted by police when accompanying patients to a hospital in order to assist with interpretation. The fifth applicant experienced symptoms of anhelation. 4. The applicants complained that the conditions of their confinement in the Röszke transit zone had been incompatible with the guarantees of Articles 3 and 8 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. Moreover, they complained that they had been detained in the transit zone in violation of Article 5 §§ 1 and 4 of the Convention. Lastly, they alleged that the respondent State had failed to comply with the interim measure indicated by the Court in violation of Article 34. THE COURT’S ASSESSMENT
5. 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. 6. 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). As regards the applicant children, 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, the Court sees no reasons to find otherwise in the present case in which the applicant children stayed in the transit zone for almost seven months. 7. There has accordingly been a violation of Article 3 of the Convention with respect to the applicant children. 8. The Court has already considered that the living conditions in the Röszke transit zone in terms of accommodation, hygiene and access to food and medical care were generally acceptable for holding asylum-seekers for a limited period of time (see R.R. and Others, cited above, § 52, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 186-94, 21 November 2019). Although the adult applicants in the present case stayed in the transit zone for almost seven months, the evidence in the file does not show that they were more vulnerable than any other adult asylum seeker confined to the transit zone and that the otherwise acceptable conditions in the transit zone were particularity ill-suited in their circumstances. The adult applicants seem to rely particularly on the effect the confinement of their children had on them. The Court has examined a similar issue in Muskhadzhiyeva and Others v. Belgium (no. 41442/07, § 66, 19 January 2010) and Popov v. France (nos. 39472/07 and 39474/07, § 105, 19 January 2012). It notes that the confinement of the adult applicants with their children could have created a feeling of powerlessness together with anxiety and frustration. However, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings (see, for instance, Popov, cited above, § 105). Therefore and in view of other above-mentioned circumstances the Court finds that the threshold of severity required for Article 3 to come into play has not been attained. 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. 9. 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. Article 5 is therefore applicable. 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. 10. 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). 11. The applicants left the transit zone on 24 October 2017 and only raised their complaint under Article 8 in their observations of 16 July 2018. In so far as this complaint does not in substance overlap with the complaint under Article 3 (see Ilias and Ahmed, cited above, §§ 180-81), it fails to comply with the six-month rule set out in Article 35 § 1 of the Convention. It must thus be rejected pursuant to Article 35 § 4 of the Convention. 12. The applicants also raised complaints under Article 13 read in conjunction with Article 3 and under Article 34. Having declared the complaint under Article 3 regarding the adult applicants inadmissible, the adult 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). It must be rejected in accordance with Article 35 § 4 of the Convention. The Court considers that the remaining complaints, namely the complaint under Article 13 read in conjunction with Article 3 concerning the applicant children and the complaint under Article 34 relating to all applicants, are admissible but, referring to its considerations in R.R. and Others (§§ 69 and 107), does not find it necessary to examine them separately. APPLICATION OF ARTICLE 41 OF THE CONVENTION
13. The applicants claimed each 15,000 euros (EUR) in respect of non‐pecuniary damage and, jointly, EUR 9,640 in respect of costs and expenses incurred before the Court. 14. The Government argued that the claims were excessive. 15. Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicants, jointly, EUR 17,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 16. Having regard to the documents in its possession, the Court considers it reasonable to award the applicants, jointly, EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to the applicants. 17. 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,
(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 17,000 (seventeen 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;

Done in English, and notified in writing on 24 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Raffaele Sabato Deputy Registrar President

APPENDIX

No. Applicant’s Name
Gender
Year of birth
Nationality
1. M. K.
M
1976
Afghan
2. F. R.
F
1982
Afghan
3. S. K.
F
2002
Afghan
4. S. K.
M
2004
Afghan
5. S. K.
M
2006
Afghan
6. M. K.
M
2012
Afghan