Violation of the Convention by ill-treatment of asylum seekers a family with children and pregnant mother

In the case H.M. and Others v. Hungary (application no. 38967/17, 02.06.2022) the European Court of Human Rights held, unanimously, that there had been:

  • a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human In addition
  • a violation of Article 5 §§ 1 (right to liberty and security) and 4 (right to have lawfulness of detention decided speedily by a court) of the Convention 

The case concerned an Iraqi family’s detention in a transit zone at the border between Hungary and Serbia after fleeing Iraq. The applicant family left Iraq after the father had allegedly been tortured by the national security services. After travelling through several countries, they arrived at the Tompa transit zone at the border between Hungary and Serbia on 3 April 2017, and submitted asylum requests. At the transit zone, they were housed in a container in the family section which they were only allowed to leave in order to attend medical or other appointments, and always under police escort. The mother was pregnant and, as there were some complications, her pregnancy was considered to be high risk. On 3 July 2017, the Immigration and Asylum Office (“the IAO”) was ordered to examine the family’s asylum requests. The applicants repeatedly asked the IAO to speed up the proceedings, referring to the mother’s complicated pregnancy and the needs of the children. On 24 August 2017, their fifth child was born, and the family was transferred from the Tompa transit zone to an open reception facility.

The Court considered that, while the mother appeared to have received the necessary medical attention, the constraints she had suffered throughout her advanced stage of pregnancy had to have caused anxiety and mental health issues which, given her vulnerability, were serious enough to engage Article 3 of the Convention. As regards the children, in keeping with previous case-law, the Court found a violation of Article 3 on account of the conditions they had faced during their more than four-month-long stay in the transit zone. The Court found that, in contrast to the mother, the father had been no more vulnerable than any other adult asylum-seeker confined to the transit zone. However, the Court concluded that the use of handcuffs and leash had not been “imposed in connection with lawful arrest or detention”. Moreover, the father was an asylum-seeker and had been taken to hospital to assist his pregnant wife. There was no evidence that he had posed any danger to himself or to anyone else. Even if the handcuffs and leash had been used on only one occasion, there was no basis to think that the measure had been justified. For those reasons, the Court considered that there had been a violation of Article 3 of the Convention also in the father’s case.

In accordance with its previous case-law, the Court found that the family’s stay for over four months in the transit zone had amounted to deprivation of liberty. It concluded that their detention could not be considered “lawful” and that it had not been possible for them to have their situation examined in a timely way by a court. There had therefore been a violation of Article 5 §§ 1 and 4 of the Convention.

Reference from the official website of the European Court of Human Rights