FIFTH SECTION
CASE OF K.K.S. v. HUNGARY
(Application no. 32660/18)
JUDGMENT
STRASBOURG
3 October 2024
This judgment is final but it may be subject to editorial revision.
In the case of K.K.S. 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. 32660/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 July 2018 by an Afghan national, K.K.S. (“the applicant”), who was born in 2002, lives in Fót, Hungary, and was represented by Mr T. Fazekas, 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 12 September 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant left Afghanistan in 2016, fleeing from the Taliban. He entered the Hungarian transit zone in Röszke on 19 October 2017 and applied for asylum.
2. An age assessment found that the age of the applicant could have been between 14 and 18 years.
3. As he was unaccompanied, the asylum authority appointed an ad hoc guardian (eseti gyám) for him to ensure his legal representation during the asylum procedure. The applicant submitted that he had met his guardian only once.
4. As an unaccompanied minor he was placed in special sections reserved for unaccompanied boys. He shared a container with four other boys.
5. On 27 December 2017 the applicant was granted subsidiary protection and on 8 January 2018 he was transferred to a children’s home in Fót.
6. Relying on Articles 3 of the Convention, taken alone and in conjunction with Article 13, the applicant complained about the allegedly inhuman or degrading conditions in which he had been held in the transit zone and the lack of an effective remedy in this respect. He also complained under Article 5 §§ 1 and 4 of the Convention about his confinement to the transit zone for two months and twenty-one days. Lastly, he complained under Article 8 of the Convention that his confinement in the transit zones resulted in the violation of his private and family life.
7. The applicant submitted that he had not had any organised activities in the transit zone apart from the daily Hungarian classes from 9 am to 11 am. He complained about the cold during winter, alleging that the heater provided by the authorities had been out of order and he had not been provided with winter clothing. He further complained about the presence of cameras and police officers which had been particularly frightening for him, allegedly having been ill-treated by police officers five times on his way to Hungary. He complained about insufficient medical care and only getting one hot meal a day.
8. The Government submitted that the applicant was placed in the segregated and reserved sector for unaccompanied minors in the transit zone for a period not exceeding the time strictly necessary for the determination of his asylum claim, which, in accordance with domestic law, is approximately two months. The Government further argued that asylum seekers had received medical care in case of any health problem if reported to the social workers. However, the applicant did not indicate any during his stay.
9. The main findings of the visit of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in the two Hungarian transit zones between 20 and 26 October 2017 have been summarised in the judgment of R.R. and Others v. Hungary (no. 36037/17, § 30, 2 March 2021). In addition to these, the CPT further observed that the school classes had targeted kindergarten-age and young school-age children and that hardly any educational activities had been offered to older juveniles. Furthermore, it also emphasised that “as a matter of principle, unaccompanied minors should not be held in a closed immigration detention facility, but they should always be provided with special care and accommodated in an open (or semi-open) establishment specialised for juveniles (e.g. a social welfare/educational institution for juveniles)” (CPT/Inf (2018) 42).
THE COURT’S ASSESSMENT
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. According to the Court’s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Muršić v. Croatia [GC], no. 7334/13, § 97, 20 October 2016).
12. 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 immigration detention of minors in M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, §§ 184-186, 18 November 2021.
13. In R.R. and Others v. Hungary (no. 36037/17, 2 March 2021) the Court has already examined the physical conditions in the Röszke transit zone, the suitability of the facilities for children and the provision of medical services at the material time. It concluded that such conditions may not attain the threshold of severity required to engage Article 3, where the confinement is of a short duration, however, in the case of a longer period, their repetition and accumulation would necessarily have harmful consequences for those exposed to them (ibid., §§ 60-64). The Court has repeatedly held in this connection that the passage of time is of primary significance for the application of Article 3 of the Convention (see ibid., § 64 and M.H. and Others, cited above, § 199).
14. The applicant’s stay in the transit zone lasted for two months and twenty-one days. The Government argued that this period had not exceeded the time strictly necessary for the determination of the applicant’s right of entry to Hungary. However, in light of the fact that under the domestic legislation the time limit for the asylum procedure is two months (see R.R. and Others, cited above, §§ 25 and 79), with the condition that in the case of unaccompanied minors the procedure needs to be conducted with priority, the Court cannot accept this argument.
15. The Government further asserted that the asylum authority put the applicant’s best interests at the forefront of its decision-making concerning his placement and asylum application. Be that as it may, the Government did not explain how his placement in a facility which, in many aspects, resembles a prison environment had been in the applicant’s best interest (see R.R. and Others, cited above, § 63). In this connection, the Court also refers to statements made by various international bodies calling for the provision of accommodation and care adapted for the needs of asylum-seeker minors as opposed to their detention which is to be eradicated (see paragraph 9 above and M.H. and Others, cited above, § 200).
16. It is of further concern to the Court that the Government failed to rebut the applicant’s assertion that during his time in the transit zone he was freezing, was not provided with proper education and had been visited only once by his ad hoc guardian. As regards education, the Court finds it important to emphasise that access to education is crucial for every child’s development, especially in a situation of vulnerability, as in the applicant’s case. The Court refers to the observations made by the CPT (see paragraph 9 above) and Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees (see R.R. and Others, cited above, § 31), according to which there had been no educational programmes adapted to the particular needs and age of juveniles staying in the transit zones. The Government failed to rebut these allegations with details provided on the nature and frequency of classes held for adolescents of the applicant’s age.
17. As the Court has already concluded in M.H. and Others, the combination of the above elements of confinement, in case of a protracted period, would necessarily have harmful consequences for children, exceeding the threshold of severity required to engage Article 3 of the Convention (M.H. and Others, cited above, § 199).
18. Therefore, as the applicant was made to stay for almost three months in an institution with prison-type elements, without sufficient adult supervision or support and without appropriate educational and recreational activities being provided to him, the Court finds that the situation complained of subjected the applicant to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention (compare ibid., § 201, compare and contrast Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 194, 21 November 2019).
19. There has accordingly been a violation of Article 3 of the Convention.
20. The Government submitted that the applicant had not been deprived of his liberty in the transit zone but he entered and stayed there voluntarily. The Court notes that the applicant’s complaint that he 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. In that case 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.
21. 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).
22. The applicant also complained under Article 8 about the violation of his private and family life and under Article 13 read in conjunction with Article 3 of the Convention about the lack of an effective remedy with respect to the conditions of his detention. 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 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
23. The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,100 in respect of costs and expenses incurred before the Court.
24. The Government contested these claims as being excessive.
25. Having regard to the circumstances of the present case, and ruling on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
26. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to him.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(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 3,000 (three 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 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;
Done in English, and notified in writing on 3 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sophie Piquet Stéphanie Mourou-Vikström
Acting Deputy Registrar President