R.R. and others v Hungary: ECtHR rules that asylum seeking family’s rights under Article 3 and Article 5 were violated in Röszke transit zone

On 2 March 2021, the European Court of Human Rights published its judgment in R.R. and others v Hungary (application no. 36037/17) concerning the confinement of an Iranian-Afghan family, including three minor children, to the Röszke transit zone at the border of Hungary and Serbia between 19 April and 15 August 2017.
 
The ECtHR assessed the applicants’ complaints under Article 3 ECHR concerning the conditions of their confinement in the Röszke transit zone and acknowledged that the complaint was twofold. Firstly however, the Court distinguished the facts in the present case from that of Ilias and Ahmed by highlighting the particular vulnerability of the applicants in the present case owing to R.R’s repeat asylum seeker status, the children’s young age and S.H’s pregnancy and serious health condition.

With regard to R.R.’s lack of access to food and his situation of extreme poverty, the Court emphasised that the applicant could not leave the transit zone and as a result, was fully dependent on the Hungarian authorities for his most basic human needs. In that regard, the living conditions which R.R. had been subjected to were incompatible with Article 3 ECHR.

In reference to S.H. and the applicant children’s complaint under Article 3, the ECtHR pointed to the obligations under the Reception Conditions Directive that require the specific situation of minors and pregnant women to be taken into account, along with any special reception needs linked to their status throughout the duration of the asylum procedure. It observed that no individualised assessment of the special needs of the applicants were carried out by the Hungarian authorities. It found that in view of, inter alia, the physical conditions of the containers in which the applicants were accommodated, the unsuitability of the facilities for children, the lack of professional psychological assistance and the duration of the stay in the transit zone, the threshold of severity required to engage Article 3 had been reached and therefore violated the provision.
 
The ECtHR reiterated the factors set out in Ilias and Ahmed that should be taken into consideration when determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of the confinement of individuals in transit zone and reception centres. It considered that owing to, inter alia, the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the excessive duration of the applicants’ stay and the conditions in the transit zone, the applicant's stay amounted to a de facto deprivation of liberty. The ECtHR reiterated that any deprivation of liberty must be “in accordance with the procedure prescribed by law.” It continued to conclude that there was no strictly defined statutory basis for the applicants detention and no formal decision complete with reasons for detention had been issued by the Hungarian authorities. As such, the ECtHR was satisfied that the applicant's detention could not be considered lawful under Article 5(1) ECHR. Moreover, it considered that the applicants did not have avenue in which the lawfulness of their detention could have been decided promptly by a court, thereby violating Article 5(4) ECHR.

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