Verurteilung der ungarischen Regierung zu Entschädigung wegen der schlechten und haftähnlichen Unterbringung im Flüchtlingslager Röszke (Transitzone):
1. Die Haftbedingungen im Flüchtlingslager Röszke stellen - soweit die Unterbringung nicht nur für kurze Zeit erfolgt - eine unmenschliche und erniedrigende Behandlung im Sinne von Art. 3 EMRK dar. Dies betrifft insbesondere die fehlende Ausstattung der Wohnräume für die Bedürfnisse von Kindern, ihren fehlenden Zugang zu Spielgeräten und anderen Kindern.
2. Es stellt eine Verletzung von Art 13 EMRK (effektiver Rechtsschutz) dar, dass Betroffene keine ausreichende Möglichkeit haben, gegen die oben beschriebene Behandlung vorzugehen.
3. Auch die regelmäßige und mehrmonatige Inhaftierung Asylsuchender, die mangels anderer Feststellungen allein aus praktischen Gründen erfolgt und nicht auf einer rechtsmittelfähigen behördlichen oder gerichtlichen Entscheidung beruht, stellt eine Verletzung von Art. 5 EMRK dar.
4. Mangels einer rechtsmittelfähigen Entscheidung über die Haft steht den Betroffenen auch kein wirksames Mittel zur gerichtlichen Überprüfung der Inhaftierung zur Verfügung. Dies stellt eine Verletzung von Art. 4 EMRK dar.
5. Die fehlende Umsetzung der vom Gerichtshof getroffenen vorläufigen Maßnahmen stellt eine erneute Verletzung der oben genannten Rechte dar.
6. Aufgrund dieser Rechtsverletzungen haben die Beschwerdeführer*innen Anspruch auf Entschädigung (hier in Höhe von 6.500 € pro Person für einen Zeitraum vom 19.04. bis 15.08.2017) bewilligt, statt der beantragten 15.000 €)
(Leitsätze der Redaktion)
[...]
57. Having regard to the above, the Court considers that the Government's arguments (see paragraph 45 above) are unable to change the fact that the domestic authorities did not provide the first applicant with food during his four-months stay in the transit zone without duly assessing his circumstances and giving a reasoned decision in that regard. In short, they failed to have due regard to the state of dependency in which he lived there. The foregoing considerations are sufficient to enable the Court to conclude that, as a result of the failings of the Hungarian authorities in securing his basic subsistence in the transit zone, the first applicant found himself for several months in a situation incompatible with Article 3 of the Convention. [...]
61. As regards the suitability of the facilities for children, the Court observes that the applicants' living containers in both sections contained basic furniture and childcare equipment. However, the Government did not submit any evidence to disprove the applicants' allegation that the beds had not been fit for use by children (see paragraph 11 above, and S.F. and Others v. Bulgaria, cited above, § 88). What is more, while the applicant children had access to facilities designated for playing and were able to participate in certain activities organised specifically for children in the family section, the situation changed once the family was moved to the isolation section – for a period of a month and a half no activities were organised and there was no playground accessible to the applicant children (see paragraph 13 above and Popov, cited above, §§ 95 and 102). The Court notes in this connection that, in the isolation section, the applicants, including the applicant children, had no contact with other asylum-seeking families or NGO representatives in the zone.
62. As regards the provision of medical services, the Court notes that the applicant children and mother received medical (including specialist) treatment on several occasions during their stay in the transit zone (see paragraph 18 above). It does not find it established that the arrangements in place in the zone, such as the system of medical referrals to the local hospital and the transportation arrangement (see paragraph 19 above), were such as to raise an issue under Article 3 of the Convention. As regards the lack of interpretation during the applicant mother's medical examinations (see paragraph 19 above), the Court notes that the possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, § 151, 31 January 2019). [...] What it finds disconcerting, however, is the lack of medical documentation with respect to the youngest applicant child and the applicants' undisputed allegation, confirmed also by the CPT report (see paragraph 30 above), that she had not been given the vaccines recommended at her age. It also accepts that outside medical treatment in the presence of (male) police officers, an allegation not disputed by the Government, must have caused a degree of discomfort to the applicants, particularly during the second applicant's gynaecological examinations (see paragraph 19 above; see also Aden Ahmed, cited above, § 95).
63. Of further concern to the Court is the fact that at the material time there was no professional psychological assistance available for traumatised asylum-seekers in the transit zone. It takes note of the applicants' argument that the second applicant (the applicant mother) had had mental health problems for a long time because of trauma in Afghanistan and had been receiving help in Serbia, but had not received any psychological or psychiatric treatment in the transit zone. The Government did not explain why, in particular, the applicant mother, whose condition had been brought to the attention of the authorities, was not examined by a psychiatrist. The Court further finds, without having to rely on the medical certificate produced by the applicants (see paragraph 20 above), that the presence of elements resembling a prison environment even in the sections of the Röszke transit zone designated for families (see paragraph 30 above) and the constraints inherent during confinement, which are particularly arduous for a young child, must have caused the applicants' children anxiety and psychological disturbance. The situation must have also created degradation of the parental image in the eyes of the children (see, mutatis mutandis, A.B. and Others v. France, § 113, and Popov, § 101, both cited above). For example, the applicants, including the applicant children, were accompanied by guards when moving between the sections even if only for the purpose of medical appointments, and armed police officers if they had to leave the zone (see paragraph 19 above). In addition, they were constantly subjected to security checks (see paragraph 14 above).
65 [...] The Court is of the view that the above-mentioned conditions, depending on the circumstances of the case, may not attain the threshold of severity required to engage Article 3, where the confinement is of a short duration. It considers that, in the case of a longer period, their repetition and accumulation would necessarily have harmful consequences for those exposed to them (compare and contrast Ilias and Ahmed, cited above, § 193). [...]
65. Accordingly, in view of the applicant children's young age, the applicant mother's pregnancy and health situation and the length of the applicants' stay in the transit zone in the conditions set out above, the Court finds that the situation complained of subjected the applicant children and the applicant mother to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention (compare and contrast Ilias and Ahmed, cited above, § 194). [...]
89. Turning to the present case, the Court notes that the applicants' detention in the transit zone lasted from 19 April to 15 August 2017, that is, three months and twenty-seven days. According to the Government, section 80/J of the Asylum Act provided the legal basis for the measure (see paragraph 24 above). This provision states that asylum applications can only be submitted, with certain exceptions, in the transit zone, and that asylum seekers are required to wait in there until a final decision is taken on their asylum applications. The Court, for its part, cannot identify in the provision in question any reference to the possibility of detention in the transit zone nor any indication of the maximum duration of asylum seekers' detention in the zone. Accordingly, it concludes that in the present case there was no strictly defined statutory basis for the applicants' detention (see, mutatis mutandis, Z.A. and Others v. Russia, cited above, § 164).
90. The Court further notes that the applicants' detention occurred de facto, that is, as a matter of practical arrangement. The Hungarian authorities did not issue any formal decision of legal relevance complete with reasons for the detention, including an individual assessment and consideration of any alternative measures that would have been less coercive than detention for the applicant family (see, mutatis mutandis, A.B. and Others v. France, cited above, §§ 123-24; see also Article 8 of the Reception Conditions Directive in paragraph 27 above).
91. 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. However, the fact remains that the applicants were deprived of their liberty without any formal decision of the authorities and solely by virtue of an overly broad interpretation of a general provision of the law – a procedure which in the Court's view falls short of the requirements enounced in its case-law.
92. It follows that the applicants' detention cannot be considered "lawful" for the purposes of Article 5 § 1 of the Convention. There has accordingly been a violation of that provision. [...]
97. The Court reiterates its above finding that the applicants' detention consisted of a de facto measure, not supported by any decision specifically addressing the issue of deprivation of liberty (see paragraph 90 above). Moreover, the administrative remedy suggested by the Government concerned the applicants’ asylum applications rather than the question of personal liberty. In these circumstances, the Court does not find it established that the applicants could have sought a judicial review of their detention in the transit zone – which itself had not taken the form of a formal decision.
98. The Court must therefore 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.
99. It follows that there has been a violation of Article 5 § 4 of the Convention.
100. The applicants alleged under Article 34 of the Convention that the authorities had failed to comply with the interim measure indicated by the Court on 19 May 2017. [...]
104. The Court notes that on 7 July 2017 the Court decided to apply a second interim measure in the case, reiterating the first Rule 39 measure and, additionally, indicating that the Hungarian Government should "ensure regular meals also for the first applicant and interpretation for the second applicant during her medical check-ups". [...]
