EHRM, 21-11-2019, nr. 47287/15

The applicants were interviewed by the Citizenship and Immigration Authority (‘the asylum authority’) shortly after their arrival, with the assistance of an interpreter who spoke Urdu as a foreign language. The first applicant's interview lasted two hours and the second applicant's twenty-two minutes. During the interviews they explained the background to their departure from Bangladesh, and gave some details concerning their journey. The first applicant was provided with a two-page information leaflet in Urdu on asylum procedure.

According to the notes taken by the Hungarian authorities during the interviews, Hungary was the first country where both applicants had applied for asylum. In Serbia, the first applicant had not met any official or representative of the authorities, nor had he even envisaged seeking protection in that country. The second applicant had once come across police officers while in Serbia but had not submitted an asylum request. He had insisted on continuing his journey, and the Serbian police had allegedly let him go after having issued him with a document ordering him to leave the country.

During the interview, the first applicant was informed that he had three days to provide reasons for his decision not to request protection in Serbia and to explain why he had considered the possibility of seeking asylum in Serbia as non-existent or ineffective. The second applicant was also invited, albeit as an immediate obligation, to explain why he thought that he could not have obtained protection in Serbia. According to the notes of the interview, he answered that he had not asked for asylum there because he wanted to continue his journey.

By two separate decisions delivered on the same day, 15 September 2015, the asylum authority (without, in the first applicant's case, waiting for the three-day period given to him for rebutting the presumption about Serbia as a ‘safe third country’) rejected both applicants' asylum applications, declaring them inadmissible on the grounds that Serbia was to be considered a ‘safe third country’ according to Government Decree no. 191/2015(VII.21.) and the applicants had not rebutted that presumption as they had not even considered the possibility of submitting an asylum claim in Serbia. The asylum authority ordered the applicants' expulsion from Hungary.

The applicants challenged the decisions before the Szeged Administrative and Labour Court. The court listed a hearing in both the applicants' cases for 21 September 2015.

The applicants, through UNHCR representatives who had access to the transit zone, authorised two lawyers of the Hungarian Helsinki Committee to represent them in the judicial review proceedings. It appears that the authorities did not allow the applicants' lawyers to enter the transit zone to consult with their clients until the evening of 21 September 2015, that is, after the court hearing.

Nevertheless, on 21 September 2015, the day of the hearing, the applicants' lawyers made written submissions, running to several pages, and also pleaded their case orally. The lawyers were present in the courtroom in Szeged, whereas the applicants communicated with the court via video link, with the help of an interpreter in Urdu.

Both applicants stated that they had received a document from the Serbian authorities written in Serbian, which they could not understand, and that they had been ordered to leave Serbian territory. Both applicants showed the documents which they had received from the Serbian authorities; in the first applicant's case, that document did not comprise his name, as it had been issued for another person. At the hearing, the second applicant submitted that he had applied for asylum in Serbia, but his application had not been examined.

In their written and oral submissions, the applicants' lawyers argued, in essence, that the asylum authority had violated the provisions of the Asylum Procedures Directive (Directive 2013/32/EU) by failing genuinely to examine the question whether Serbia could be considered a ‘safe third country’ in the applicants' particular situation. In their view, the decisions had been formalistic and lacked any individualised assessment. The applicants further complained that they had not been allowed to avail themselves of the statutory three-day time-limit to contest the application of the ‘safe third country’ principle, as the asylum authority had adopted its decisions on the very day of the first interviews. They also argued that the decisions had not properly taken into account the relevant country information, in particular the reports of the UNHCR and a statement of the Serbian Minister of Labour and Social Affairs, dated 14 September 2015, according to which Serbia would not take back asylum-seekers from Hungary.

On the same day the court annulled the asylum authority's decisions and remitted the case to it for fresh consideration. It relied on section 3(2) of the Government Decree and argued that the asylum authority should have analysed the actual situation in Serbia regarding asylum procedure more thoroughly. It should also have informed the applicants of its conclusions on that point and afforded them three days to rebut the presumption of Serbia being a ‘safe third country’ with the assistance of legal counsel.

In the renewed procedure before the asylum authority, the applicants submitted a written opinion by a psychiatrist, who had visited them in the transit zone on 23 September 2015 and interviewed them with the assistance of an interpreter attending by telephone. The psychiatrist intervened at the request of the applicants' lawyers and was commissioned by the Hungarian Helsinki Committee. In her opinion the psychiatrist stated that the first applicant had left Bangladesh in 2010 partly because of a flood and partly because two political parties had been trying to recruit him. He had been attacked and suffered injuries because of his refusal to do so. The psychiatrist observed that the first applicant was well-oriented, able to focus and recall memories, but showed signs of anxiety, fear and despair. He was diagnosed with post-traumatic stress disorder (‘PTSD’). With regard to the second applicant, the psychiatrist noted that he had fled his country five years earlier and had worked abroad, during which time his whole family had died in a flood. He had then migrated through several countries in order to restart his life. He was found to be well oriented with no memory loss but with signs of depression, anxiety and despair. He was diagnosed with PTSD and as having an episode of depression. The psychiatrist did not mention any need for medical or psychological treatment. However, she was of the opinion that the applicants' mental state was liable to deteriorate due to the confinement.

On 23 September 2015 the asylum authority informed the applicants' legal representatives by telephone that a hearing would be held two days later. However, the representatives apparently considered that this was not a valid summons and did not attend.

At the hearing before the asylum authority on 25 September 2015, the applicants decided not to make any statement since their legal representatives were not present. With the assistance of an Urdu interpreter, the asylum authority informed the applicants that they had three days to rebut the safe-third-country presumption.

On 28 September 2015 the applicants' legal representatives made submissions to the asylum authority protesting against the manner in which they were summoned and requested that a new hearing be held, which they would attend. They also stated that the applicants should be given a proper opportunity to comment on the material on the basis of which Serbia was deemed safe.

On 30 September 2015 the asylum authority rejected the applications for asylum. It found that the reports prepared by the psychiatrist had not provided enough grounds to grant the applicants the status of ‘persons deserving special treatment’ since they had not revealed any special need that could not be met in the transit zone. As to the status of Serbia being classified as a ‘safe third country’, the asylum authority had regard to relevant reports by the UNHCR and a non-governmental organisation. It further noted that the applicants had not referred to any pressing individual circumstances substantiating the assertion that Serbia was not a safe third country in their case, and therefore that they had been unable to rebut the presumption. The applicants' expulsion from Hungary was consequently ordered.

The applicants sought judicial review by the Szeged Administrative and Labour Court. They argued, in particular, that the asylum authority had based its decisions on selectively chosen and incorrectly interpreted country information. They also submitted that, in their view, the burden of proof was on the asylum authority first of all to show that Serbia was a safe third country for the applicants and to substantiate this finding with relevant country information and other evidence. The applicants argued that the three-day time-limit for their rebuttal of the application of the safe third country principle could not even lawfully begin to run because the asylum authority had failed to meet its obligation to prove its assertions convincingly. The applicants further contended that the asylum authority had failed to verify whether the Serbian authorities would readmit them, this also being a condition for the application of the ‘safe third country’ principle. They also referred to various alleged procedural shortcomings.

On 5 October 2015 the court, in separate decisions concerning the first and second applicant respectively, upheld the asylum authority's decisions. It observed, in particular, that in the resumed procedure the asylum authority had examined, in accordance with the guidance of the court, whether Serbia could be regarded generally as a safe third country for refugees, and had found on the basis of the relevant law and the country information obtained that it was. It had considered the report of the Belgrade Centre for Human Rights published in 2015, the reports of August 2012 and June 2015 issued by the UNHCR concerning Serbia, and also other documents submitted by the applicants. It had established on the basis of those documents that Serbia satisfied the requirements of section 2 (i) of the Asylum Act. The court was satisfied that the asylum authority had established the facts properly and observed the procedural rules, and that the reasons for its decision were clearly stated and were reasonable. The court further emphasised that the statements given by the applicants at the hearings had been contradictory and incoherent. The first applicant had given various reasons for leaving his country and made confusing statements on whether he had received any documents from the Serbian authorities. The document he had finally produced was not in his name, and therefore could not be admitted as evidence. At no point during the administrative procedure had he referred to the conduct of the human traffickers before his hearing by the court. The second applicant's statements were incoherent on the issue of the duration of his stay in Serbia and the submission of a request for asylum. The applicants had not relied on any specific fact that could have led the authority to consider Serbia unsafe in their regard. They had only contested the safety of Serbia in general, which was insufficient to rebut the presumption.

The final decisions were served on the applicants on 8 October 2015. They were written in Hungarian but explained to them in Urdu. During the afternoon of the same day the applicants were escorted by police officers out of the transit zone and then entered Serbia.

On 22 October 2015 the transcript of the court hearing held on 5 October 2015 was sent to the applicants' lawyer. On 10 December 2015 the lawyer received the Bengali translation of the court's decisions taken at the hearing. On 9 March 2016 the applicants' petitions for review were dismissed on procedural grounds, since the Kúria held that it had no jurisdiction to review such cases.

The relevant provisions of Act no. LXXX of 2007 on Asylum (‘the Asylum Act’) provided as follows:

Section 2

Section 5

Section 31/A, entitled ‘Asylum detention’

Section 45

Section 51

Section 51/A

Section 53

Section 66

Section 71/A

Section 80/A, entitled ‘Crisis caused by mass immigration’

The Government declared a state of crisis caused by mass immigration as of noon on 15 September 2015 in respect of the territory of Bács-Kiskun and Csongrád counties, where the Röszke transit zone was located. On 18 September 2015 the scope of the state of crisis was extended to the territory of Baranya, Somogy, Zala and Vas counties. On 9 March 2016 the state of crisis was maintained and extended to the whole territory of Hungary, until 7 September 2018.

The relevant provisions of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (‘the Immigration Act’) provide as follows:

Section 51

Section 52

Government Decree no. 191/2015. (VII. 21.) on the definition of safe countries of origin and safe third countries provides:

Section 2

Section 3

As of 28 March 2017 the Asylum Act was amended, in particular as regards the rules to be applied when a state of crisis caused by mass immigration is declared. According to the new rules, in such circumstances applications for recognition can only be submitted, with some limited exceptions, in the transit zone and asylum-seekers are required to wait there until the decision is taken after the examination of the merits of their applications (unlike in the situation regulated by section 71/A (5), they are not allowed to leave the transit zone even if the application is not found to be inadmissible). The time-limit for the court appeal against an inadmissibility decision adopted by the asylum authority is three days (as opposed to seven days under the ordinary rules). Unlike in the ordinary border procedure, section 66 (6) of the Asylum Act does not apply and the applicant cannot request the continuation of the procedure if it was discontinued upon his or her leaving the transit zone.

In January 2018 the relevant laws were further amended in connection with the entry into force of the new Act on General Public Administration Procedures (Act no. CL of 2016) and the new Code of Administrative Justice (Act no. I of 2017). Another amendment was introduced in July 2018.

The Preamble of this Directive, insofar as relevant, reads:

Article 31, entitled ‘Examination procedure’ reads, insofar as relevant:

Article 33, entitled ‘Inadmissible applications’ reads as follows:

Article 34, entitled ‘Special rules on an admissibility interview’, reads, insofar as relevant:

Article 35, entitled ‘The concept of first country of asylum’, reads as follows:

Article 36, entitled: ‘The concept of safe country of origin’, reads as follows:

Article 38, entitled ‘The concept of safe third country’, insofar as relevant, reads as follows:

Article 39, entitled ‘The concept of European safe third country’, insofar as relevant, reads as follows:

Article 43, entitled ‘Border procedures’, reads as follows:

Article 46, entitled ‘The right to an effective remedy’, insofar as relevant, reads as follows:

In its judgment of 21 December 2011 in the case of N. S. and M.E. (C-411/10 and C-493/10), the ECJ ruled inter alia on the concept of European safe third countries. It found that EU law precludes the application of a conclusive presumption that the Member State, which the Dublin II Regulation indicates as responsible, observes the fundamental rights of the European Union. In particular, the ECJ stated:

In paragraph 103 of its judgment, the ECJ explicitly underlined that these findings are applicable to both Member States and third countries.

Article 8, entitled ‘Detention’, reads as follows:

This agreement, approved by Council Decision 2007/819/EC of 8 November 2007, provides, in so far as relevant:

The relevant passages of this recommendation read as follows:

The Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) from 21 to 27 October 2015 contains the following passages:

The CPT revisited the Röszke transit zone in October 2017. In its report of that visit, the CPT noted that the zone had been enlarged but that asylum-seekers remained free to move only within the sector where their container was located. The premises were maintained in a good state of hygiene, and efforts were being made to allow for activities. However, almost all the containers were used at full capacity, which meant that five persons had to sleep in a 13 m² container.

In the 13 October 2017 report (SG/Inf(2017)33) on his fact-finding mission of June 2017, Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees, made, inter alia, the following observations concerning the Rӧszke transit zone. He noted that the area of the zone was surrounded by barbed wire fence and was guarded at all times. It was divided into sections, one of them designated for families and another for single men. The section for single men comprised one row of containers placed adjacent to each other, sharing an approximately 2-metre-wide corridor. Persons who stayed in one section could go to other parts of the zone only to visit the doctor or to attend interviews with the asylum authorities, and were always escorted by guards, even inside the transit zone. Also, at the time of the visit in June 2017 the Hungarian authorities had informed the Special Representative that the average duration of a stay in the zone had been 33 days, but he had spoken with individuals who had mentioned periods of confinement of two and more months. The Special Representative also described the living conditions in the zone and noted that hygiene was good, three meals a day, including one hot meal, were distributed, and there was a doctor's room where basic medical care was provided.

In a report entitled ‘Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016’, published in May 2016, the UNHCR made the following observations:

A report entitled ‘Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary’ by the European Council for Refugees and Exiles (‘ECRE’) prepared on 1 October 2015 contains the following passages:

The ECRE's ‘Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary’ published in January 2016 contains the following passages:

Amnesty International stated the following in its report of 2015, entitled ‘Fenced Out, Hungary's Violations of the Rights of Refugees and Migrants’:

Since 2001, Serbia is a party to the 1951 Convention relating to the Status of Refugees and to its 1967 Protocol.

A report entitled ‘Serbia as a Country of Asylum: Observations on the Situation of Asylum-Seekers and Beneficiaries of International Protection in Serbia’ prepared in August 2012 by the UNHCR contains the following passages:

A report entitled ‘Country Report: Serbia’, up-to-date as of 31 December 2016, prepared by AIDA, Asylum Information Database, published by ECRE stated that the ‘adoption of the new [Serb] Asylum Act, initially foreseen for 2016, has been postponed’.

In his report (SG/Inf(2017)33) of 13 October 2017 of his fact-finding mission of June 2017, Ambassador Tomáš Boček, Special Representative of the Secretary General of the Council of Europe on migration and refugees, made, inter alia, the following observations concerning Serbia:

According to the Belgrade Centre for Human Rights, a non-governmental organisation, during the period 1 April 2008 – 31 December 2014 Serbia's authorities granted refugee status to six and subsidiary protection to twelve people altogether (BCHR, Right to Asylum in the Republic of Serbia 2014, p. 20).

Pursuant to the Serbian Government's ‘Decision Determining the List of Safe Countries of Origin and Safe Third Countries’, Official Gazette of the Republic of Serbia, no. 67/2009, which was applicable in 2015, the Former Yugoslav Republic of Macedonia, Greece and Turkey, among others, are considered safe third countries.

78. A report entitled ‘The former Yugoslav Republic of Macedonia As a Country of Asylum’ prepared in August 2015 by the UNHCR contains the following passages:

As they did before the Chamber, the respondent Government reiterated their objection that the complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke border transit zone was submitted outside the six-month time limit laid down in Article 35 § 1 of the Convention. The applicants invited the Grand Chamber to adopt the Chamber's conclusion that the complaint had been submitted in time and was admissible.

Under Article 35 § 4 of the Convention, the Court may dismiss applications which it considers inadmissible ‘at any stage of the proceedings’. Therefore, even at the merits stage and subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible (see, for example, Fábián v. Hungary [GC], no. 78117/13, § 89, 5 September 2017, with the references therein).

The Court notes that in the present case the six-month time limit under Article 35 § 1 of the Convention started running in respect of the complaint at issue on 9 October 2015, the day after the applicants left the zone (see paragraph 8 above), and expired on 8 April 2016 (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 44, 29 June 2012).

The decisive issue is whether the complaint in question was made out in submissions introduced in time. Before the Chamber the applicants had referred to several passages from their letter of 25 September 2015 and their application form of 13 October 2015, maintaining that they contained the complaint at issue. The Chamber considered that the complaint was formulated in the applicants' letter of 25 September 2015, and therefore in time (see paragraphs 3 and 92–95 of the Chamber judgment).

In particular, the applicants had referred to the following passage from the letter of 25 September 2015 (original in English):

The Court notes that this passage appears in a sub-section relating solely to the question whether the stay in the transit zone amounted to deprivation of liberty within the meaning of Article 5 of the Convention. The same letter of 25 September 2015, which runs to 15 pages, contains a separate sub-section about the physical conditions in the transit zone and the alleged violation of Article 3 in that respect but no mention of a complaint about lack of effective remedy can be found there. In these circumstances, it appears that the mention of ‘conditions under which the applicants … are held in the transit zone’ in the relevant passage cited above meant conditions affecting the question whether there was deprivation of liberty within the meaning of Article 5 and its lawfulness. A reference to Article 13 can only be found in the letter of 25 September 2015 in relation to the remedies against the expulsion order concerning the applicants.

Under the Court's case-law, some indication of the factual basis of the complaint and the nature of the alleged violation of the Convention is required to introduce a complaint and interrupt the running of the six-month period (see Fábián, cited above, § 94; Abuyeva and Others v. Russia, no. 27065/05, § 222, 2 December 2010; and Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001). Under paragraph 7 of the Practice directions on institutions of proceedings, issued by the President of the Court in accordance with Rule 32 of the Rules of Court, as in force at the time the applicants submitted their application form dated 13 October 2015, applicants must set out the complaints and provide information that ‘should be enough to enable the Court to determine the nature and scope of the application’. Ambiguous phrases or isolated words do not suffice to accept that a particular complaint has been raised.

In the present case the Grand Chamber considers that the above cited passage is too ambiguous to be interpreted as raising the complaint at issue.

The Grand Chamber has also examined the remainder of the applicants' submissions of 25 September and 13 October 2015 but is unable to find therein a complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke transit zone. It is significant in this respect that these submissions were made by a lawyer and contained detailed reasoning, organised in separate sub-sections on each complaint made. It is highly unlikely that if the applicants had intended to raise the complaint in question they would have done so without devoting a separate point or sub-section to it. The Court finds, therefore, that this complaint was not introduced by the applicants in September or October 2015.

The complaint was mentioned for the first time in the applicants' observations in reply dated 29 August 2016, well after the expiry of the six-month time limit. It was formulated again later, in the applicants' additional submissions of 28 November 2016.

It follows that the Government's preliminary objection must be upheld and that the complaint under Article 13 in conjunction with Article 3 regarding the alleged lack of remedies in respect of the living conditions in the Röszke transit zone, must be declared inadmissible under Article 35 § 4 of the Convention as having been submitted after the expiry of the six-month time limit under its Article 35 § 1.

The respondent Government reiterated before the Grand Chamber their objection concerning the applicants' victim status in relation to their complaint under Article 3 of the Convention about their removal to Serbia. Noting that the applicants had at no stage complained to the Serbian authorities or to the Court about refoulement from or ill-treatment in Serbia, the Government submitted that this fact was conclusive proof that the applicants had not been at risk at the time of the asylum procedure in Hungary, and therefore concluded that they could not have claimed, at any relevant time, to have been victims, within the meaning of Article 34 of the Convention, of the alleged violation of Article 3.

The applicants disagreed, as they had done before the Chamber. The Chamber dismissed the Government's objection and declared the complaint under Article 3 admissible (see paragraphs 103-07 of the Chamber judgment).

The Court considers that the issue raised in the Government's objection — whether or not there was a real risk of ill-treatment in the event of removal to Serbia — potentially concerns the substance of the applicants' complaint under Article 3 but not the victim-status requirement of Article 34 of the Convention.

With regard to that requirement, it is sufficient to observe that the applicants were directly affected by the acts and actions complained of in that the expulsion decision was binding and enforceable and was followed by their removal from Hungary to Serbia. In those circumstances, the applicants could claim that they were the victims of the alleged violation of the Convention in relation to their removal (see the Court's approach in, for example, Vijayanathan and Pusparajah v. France, 27 August 1992, §§ 43–47, Series A no. 241-B).

Noting, in addition, that the Government have not claimed that there were any other events, such as measures taken by the Hungarian authorities in the applicants' favour and the acknowledgment of a violation removing their victim status (see Murray v. the Netherlands [GC], no. 10511/10, § 83, 26 April 2016), the Court rejects the Government's preliminary objection concerning the victim requirement of Article 34 of the Convention.

The respondent Government argued that Hungary had acted in accordance with EU law, which limited the competence of the Court.

The Court recalls that even when applying European Union law, the Contracting States remain bound by the obligations they freely entered into on acceding to the Convention. However, when two conditions are met — the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union law — those obligations must be assessed in the light of the presumption of Convention conformity as established in the Court's case-law (see Avotiņš v. Latvia [GC], no. 17502/07, § 105, 23 May 2016, with the references therein). The State remains fully responsible under the Convention for all acts falling outside its strict international legal obligations (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 157, ECHR 2005-VI).

In the present case the relevant EU law (see paragraphs 47–58 above) consists of directives which do not impose on Hungary an obligation to act as they did, including holding the applicants in the transit area, forbidding them to enter Hungary, deciding not to assess the merits of their asylum request, relying on there being a safe third country, and declaring Serbia to be a safe third country. The Hungarian authorities exercised a discretion granted under EU law, and the impugned measures taken by them did not fall within Hungary's strict international legal obligations. Accordingly, the presumption of equivalent protection by the legal system of the EU does not apply in this case and Hungary is fully responsible under the Convention for the impugned acts (see, for a similar outcome, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 340, ECHR 2011).

The Chamber observed that between January 2013 and July 2015 Hungary had not considered Serbia as a safe third country, and no convincing explanation or reasons had been adduced by the Government for the reversal of that attitude, especially in the light of the reservations of the UNHCR and highly respected international human rights organisations. The Chamber further noted that the Hungarian authorities had not sought to rule out that if the applicants were removed to Serbia, they might further be expelled to Greece, where the reception conditions for asylum seekers were in breach of Convention standards. Also taking issue with other procedural shortcomings, the Chamber found that the applicants had not enjoyed any effective guarantees to protect them from a real risk of being subjected to inhuman or degrading treatment in breach of Article 3.

The Bulgarian Government submitted that in expulsion and removal cases, in order to engage the indirect responsibility of the expelling State, the Court had first to analyse the existence of a real risk of ill-treatment in the country of origin. If asylum-seekers were returned to a third ‘intermediate’ country, the Court should analyse, in addition, whether the living and detention conditions for asylum-seekers there reached the threshold of severity under Article 3. Finding a violation without a rigorous examination of the above aspects opened the door to an influx of complaints and risked blocking the asylum system. The Bulgarian Government considered that in cases of expulsion to a State party to the Convention, the responsibility of the expelling State should be engaged only in highly exceptional circumstances, such as in M.S.S. v. Belgium and Greece, as far as Greece is concerned.

The Polish Government considered, inter alia, that, as regards claims of a risk of ill-treatment in a country of destination, it was, in principle, for the foreigner to adduce the relevant evidence and to submit proof to the national authorities. The national authorities should not be held liable for a breach of their international obligations if they conducted a diligent assessment of the potential risks, with due regard to the principle of non-refoulement. The Polish Government further submitted that EU Member States were entitled under the Asylum Procedures Directive to enact lists of safe third countries and stressed, in that regard, that the EU legal order secured respect for fundamental rights, including through supervision and control by the EU institutions.

The Russian Government stressed that by failing to examine the grounds on which asylum is claimed, the Court was blurring the distinction between migrants and refugees, undermining the protection needed by the latter.

The UNHCR provided a summary of the relevant international and EU law regarding the safe third country concept. They submitted, in particular, that that concept could apply where a person could have sought international protection in a ‘previous’ State but had not done so. The removing State had to assess the appropriateness of the removal for each person individually and with full respect for the applicable procedural safeguards, regardless of any general designation of the third country as safe. Such assessment should include questions such as whether the third State would readmit the person, grant him or her access to a fair and efficient procedure for determination of any need of international protection, permit the person to remain and accord him or her treatment in conformity with international law, including the principle of protection from refoulement.

In their joint intervention, the Dutch Council for Refugees, the European Council on Refugees and the International Commission of Jurists, offered an overview of the relevant EU and international law on the principle of non-refoulement, the concept of safe third country and deprivation of liberty in the asylum context.

The Chamber, noting, in particular, the findings of the Committee for the Prevention of Torture concerning the satisfactory material conditions at the zone and the relatively short period spent by the applicants there, found that there had been no violation of Article 3.

The applicants considered that the Chamber had attached undue weight to the general material conditions, failed to have regard to the fact that the CPT had found them acceptable for a very short stay only and had not sufficiently taken into consideration the applicants' vulnerability. In respect of the latter, the applicants submitted to the Grand Chamber additional information, alleging, in particular, harsh conditions and ill-treatment endured by the first applicant during the 1990's and until 2010 or 2011 in Pakistan, Afghanistan, Iran and Bangladesh and, as regard the second applicant, in Pakistan, Dubai, Iran and Turkey between 2010 and 2013 (see paragraphs 10 and 11 above). Alternatively, the applicants invited the Grand Chamber to examine under Article 8 their complaint of the conditions in the transit zone and find a violation of that provision.

The respondent Government agreed with the Chamber's application of the threshold of severity rule and its finding that the applicants were not more vulnerable than any other adult asylum-seeker. Distinguishing the present case from the situation that led the Court to find violations of Article 3 in M.S.S. v. Belgium and Greece, the Hungarian Government pointed out that the applicants' basic needs, such as food, hygiene, shelter and access to medical aid had been taken care of. Even if those conditions were considered to fall short of some of the requirements of the EU's Reception Conditions Directive, that would not constitute a violation of Article 3. The Government warned against elevating the requirements of that provision in the reception context beyond the requisite catering for the most basic human needs, given, in particular, that transit zones provide only temporary accommodation. As regards the applicants' allegations concerning their suffering in a number of Asian countries, the Government observed that they were articulated for the first time before the Grand Chamber and were unverifiable.

Some of the intervening third parties also provided relevant comments. The UNHCR submitted factual information about the Rӧszke transit zone and summaries of relevant law and international standards regarding reception of asylum-seekers. In their joint intervention, the five Italian scholars dealt with the concept of vulnerability with emphasis on international and human rights law. They demonstrated that variants of this concept had been used in different contexts without a definition of vulnerability and urged the Court to develop relevant principles in this regard.

It is undisputed that while at the Röszke transit zone, the applicants were fully dependent on the Hungarian authorities for their most basic human needs and were under their control.

In these circumstances, it was the responsibility of the Hungarian authorities not to subject them to such conditions as would constitute inhuman and degrading treatment contrary to Article 3 of the Convention (see M.S.S. v. Belgium and Greece, cited above, §§ 216-22 and 263).

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. In the context of confinement and living conditions of asylum-seekers, the Court has summarised the relevant general principles in the case of Khlaifia and Others (cited above, §§ 158-69).

The Grand Chamber endorses the Chamber's analysis in the present case regarding the physical conditions in which the applicants lived while confined to the transit zone. The Chamber stated the following, in particular, in paragraphs 84 and 85 of its judgment:

The fact that the hygienic conditions were good and that persons staying at the Röszke zone were provided with food of a satisfactory quality and medical care if needed, and could spend their time outdoors was also confirmed at a later date, in the report of 13 October 2017 of the Special Representative of the Secretary General of the Council of Europe (see paragraph 67 above).

Turning to the applicants' vulnerability argument, the Court must examine the available evidence to establish whether, as alleged by them, they could be considered particularly vulnerable and, if so, whether the conditions in which they stayed at the Röszke transit zone in September and October 2015 were incompatible with any such vulnerability to the extent that these conditions constituted inhuman and degrading treatment with specific regard to the applicants.

The Grand Chamber endorses the Chamber's view that while it is true that asylum-seekers may be considered vulnerable because of everything they might have been through during their migration and the traumatic experiences they were likely to have endured previously (see M.S.S. v. Belgium and Greece, cited above, § 232), there is no indication that the applicants in the present case were more vulnerable than any other adult asylum-seeker confined to the Röszke transit zone in September 2015 (see paragraph 87 of the Chamber judgment). In particular, their allegations about hardship and ill-treatment endured in Pakistan, Afghanistan, Iran, Dubai and Turkey concern a period of time which ended in 2010 or 2011 for the first applicant and in 2013 for the second applicant (see paragraphs 10 and 11 above). Also, the Court does not consider that the psychiatrist's opinion (see paragraph 30 above) submitted by the applicants is decisive: having regard to its context and content, and taking into consideration that the applicants stayed at the Röszke transit zone for the relatively short period of 23 days, the psychiatrist's observations cannot lead to the conclusion that the otherwise acceptable conditions at the Röszke transit zone were particularly ill-suited in the applicants' individual circumstances to such an extent as to amount to ill-treatment contrary to Article 3.

The Court also considers that even if the applicants must have been affected by the uncertainty as to whether they were in detention and whether legal safeguards against arbitrary detention applied, the shortness of the relevant period and the fact that the applicants were aware of the procedural developments in the asylum procedure, which unfolded without delays, indicate that the negative effect of any such uncertainty on them must have been limited.

In sum, taking into consideration, in particular, the material conditions at the zone, the length of the applicants' stay there, and the possibilities for human contact with other asylum-seekers, UNHCR representatives, NGOs and a lawyer, the Court finds that the situation complained of did not reach the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. Therefore, there has been no violation of that provision.

The Chamber held that the applicants' confinement to the transit zone constituted a de facto deprivation of liberty. It took into account the fact that the applicants were placed in a guarded compound which could not be accessed from the outside and which they could not leave towards Hungary, nor towards Serbia without forfeiting their asylum claims and running the risk of refoulement. As to the merits of the complaint under Article 5 § 1, the Chamber held that the applicants' detention could not be considered ‘lawful’, as the underlying domestic rules were not sufficiently precise and foreseeable and the detention had occurred de facto, as a matter of practical arrangement, without a formal decision and therefore without providing reasons. The Chamber also found a violation of Article 5 § 4 because, in the absence of a decision which they could have challenged, the applicants could not seek any judicial review of their detention.

The Polish Government considered that placement in a facility from which a foreigner may freely move should not be automatically treated as de facto deprivation of liberty. They also noted that the present case concerned the practice of EU Member States in the difficult times of the migration crisis and stressed, in that regard, that the EU legal order secures respect for fundamental rights, including through supervision and control by the EU institutions.

The Russian Government criticised the Amuur judgment for having introduced a new criterion in the assessment whether the deprivation of liberty was arbitrary or not: the ‘place and conditions’ of detention. No such a criterion was to be found in Article 5. Only Article 3 was concerned with conditions of detention. Furthermore, the Court's approach wrongly assimilated refusal to allow entry to the State territory to a deprivation of liberty. In the Russian Government's view, by failing to make distinctions based on the grounds on which asylum is claimed, the Court was blurring the distinction between migrants and refugees, undermining the protection the latter need.

The UNHCR provided factual information about the Röszke transit zone and summaries of the relevant Hungarian law, EU law and international standards regarding reception of asylum-seekers.

The Chamber awarded 10,000 euros (EUR) to each applicant on account of non-pecuniary damage.

Before the Grand Chamber the applicants claimed, as they did before the Chamber, EUR 15,000 each in respect of non-pecuniary damage. The Government invited the Court to reject the applicants' claim as being excessive.

The Court considers that the applicants must have suffered non-pecuniary damage as a result of the procedural violation of Article 3 of the Convention found in the present case. Having regard to the relevant circumstances of the case, it awards EUR 5,000 to each applicant in respect of non-pecuniary damage.

Before the Chamber the applicants claimed EUR 8,705 for 57.5 hours of legal work at the hourly rate of EUR 150 plus EUR 80 in clerical expenses. The Chamber awarded this claim in full.

Before the Grand Chamber the applicants reiterated the above claim and also claimed, in respect of the Grand Chamber proceedings, an additional EUR 17,625 for 117.5 hours of legal work at the hourly rate of EUR 150. They submitted a time sheet indicating the sum of hours without further detail. The applicants' claim in respect of cost and expenses thus amounted to EUR 26,330 in total.

The Government submitted that the expenses claimed were neither necessarily incurred nor reasonable as to quantum having regard to the number of irrelevant submissions made by the applicants.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria and taking into consideration that most of the applicants' complaints have been rejected, the Court considers it reasonable to award EUR 18,000 in respect of all costs and expenses.

The Court 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.

The Government were of the view that since the applicants had been free to leave the territory of the transit zone in the direction of Serbia, they in fact had not been deprived of their personal liberty. Article 5 of the Convention was therefore inapplicable.

The applicants contested this view, pointing it out that departure from the transit zone would have resulted in the forfeiture of their asylum applications, a very serious consequence.

For the Court, the Government's objection must be understood to suggest the incompatibility ratione materiae of the complaint with the provisions of the Convention.

It must be determined in the first place whether the placing of the applicants in the transit zone constituted a deprivation of liberty within the meaning of Article 5 of the Convention. The Court has already found that holding aliens in an international zone involves a restriction upon liberty which is not in every respect comparable to that obtained in detention centres. However, such confinement is acceptable only if it is accompanied by safeguards for the persons concerned and is not prolonged excessively. Otherwise, a mere restriction on liberty is turned into a deprivation of liberty (see Amuur v. France, 25 June 1996, § 43, Reports of Judgments and Decisions 1996-III, and Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 68, 24 January 2008).

Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4. In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors (see De Tommaso v. Italy [GC], no. 43395/09, § 80, 23 February 2017). The notion of deprivation of liberty within the meaning of Article 5 § 1 contains both an objective element of a person's confinement in a particular restricted space for a not negligible length of time, and an additional subjective element in that the person has not validly consented to the confinement in question (see Stanev v. Bulgaria [GC], no. 36760/06, § 117, ECHR 2012). The objective elements include the type, duration, effects, and manner of implementation of the measure in question, the possibility to leave the restricted area, the degree of supervision and control over the person's movements and the extent of isolation (see, for example, Guzzardi v. Italy, 6 November 1980, § 95, Series A no. 39; H.M. v. Switzerland, no. 39187/98, § 45, ECHR 2002 II; H.L. v. the United Kingdom, no. 45508/99, § 91, ECHR 2004 IX; and Storck v. Germany, no. 61603/00, § 73, ECHR 2005-V). The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance (see Creangă v. Romania [GC], no. 29226/03, § 91, 23 February 2012, Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012 and the references contained therein). The mere fact that it was possible for the applicants to leave voluntarily cannot rule out an infringement of the right to liberty (see Riad and Idiab, cited above, § 68).

The applicants in the present case were confined for over three weeks to the border zone — a facility which, for the Court, bears a strong resemblance to an international zone, both being under the State's effective control irrespective of the domestic legal qualification. They were confined in a guarded compound which could not be accessed from the outside, even by their lawyer. Unlike the applicants in the case of Mogoş v. Romania ((dec.), no. 20420/02, 6 May 2004), who were free to enter Romanian territory at any time but chose to stay in an airport transit zone, the applicants in the present case — similarly to those in the cases of Amuur, and Riad and Idiab (cited above) and Shamsa v. Poland, nos. 45355/99 and 45357/99, § 47, 27 November 2003 — did not have the opportunity to enter Hungarian territory beyond the zone. Accordingly, the Court considers that the applicants did not choose to stay in the transit zone and thus cannot be said to have validly consented to being deprived of their liberty (see, mutatis mutandis, Austin and Others, cited above, § 58).

The mere fact that it was possible for them to leave voluntarily returning to Serbia which never consented to their readmission cannot rule out an infringement of the right to liberty (see Riad and Idiab, cited above, § 68). The Court notes in particular that pursuant to section 66 (2) d) of the Asylum Act (see paragraph 31 above) if the applicants had left Hungarian territory, their applications for refugee status would have been terminated without any chance of being examined on the merits. Consequently, the Court cannot accept at face value the Government's argument concerning the possibility of leaving the transit zone voluntarily. Owing to the circumstances, the applicants could not have left the transit zone in the direction of Serbia without unwanted and grave consequences, that is, without forfeiting their asylum claims and running the risk of refoulement.

Having regard to the above considerations, the Court concludes that the applicants' confinement to the transit zone amounted to a de facto deprivation of liberty (see, mutatis mutandis, Riad and Idiab, ibidem). Article 5 § 1 of the Convention therefore applies. To hold otherwise would void the protection afforded by Article 5 of the Convention by compelling the applicants to choose between liberty and the pursuit of a procedure ultimately aimed to shelter them from the risk of exposure to treatment in breach of Article 3 of the Convention.

It follows that this part of the application is not incompatible ratione materiae with the provisions of the Convention. Moreover, it is not manifestly ill-founded within the meaning of the same provision. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

The Court must next examine the compatibility of the deprivation of liberty found in the present case with paragraph 1 of Article 5 of the Convention.

The applicants alleged that the impugned measure lacked any basis in the domestic law. They further submitted that Hungary, a Member State of the European Union, was under an obligation to act in accordance with Article 8 § 1 of Directive 2013/33/EU (see paragraph 35 above) according to which Member States should not hold a person in detention for the sole reason that he or she was an asylum-seeker. Subparagraph 3 of Article 8 contained an exhaustive list of grounds for the detention of asylum-seekers, and none of those was applicable in the present case. The applicants stressed that detention was subject to individual assessment and had to be necessary and proportionate. A Member State could only have recourse to it if non-coercive alternatives to detention could not be applied.

The Government submitted that, even if Article 5 of the Convention was applicable to the case, the deprivation of liberty was justified under the first limb of Article 5 § 1 (f). They further offered section 71/A (1) and (2) of the Asylum Act (see paragraph 31 above) as legal basis in domestic law for the detention.

The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which individuals may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, for example O.M. v. Hungary, no. 9912/15, § 40, 5 July 2016, and Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). It considers that in the present case the only provision that is capable of producing justification for the measure complained is Article 5 § 1 (f) of the Convention.

The first limb of Article 5 § 1 (f) permits the detention of an asylum-seeker or other immigrant prior to the State's grant of authorisation to enter. Such detention must be compatible with the overall purpose of Article 5, which is to safeguard the right to liberty and ensure that no one should be dispossessed of his or her liberty in an arbitrary fashion (see Saadi v. the United Kingdom, cited above, § 66).

The Court reiterates that in relation to whether a detention was ‘lawful’, including whether it was in accordance with ‘a procedure prescribed by law’, Article 5 § 1 of the Convention refers not only to national law but also, where appropriate, to other applicable legal norms, including those which have their source in international law (see Medvedyev and Others v. France [GC], no. 3394/03, § 79, ECHR 2010; Takush v. Greece, no. 2853/09, § 40, 17 January 2012; and Kholmurodov v. Russia, no. 58923/14, § 84, 1 March 2016). Those norms may clearly also stem from European Union law. In this respect, the Court reiterates that it is primarily for the national authorities, especially the courts, to interpret and apply domestic legislation, if necessary in conformity with the law of the European Union. Unless the interpretation is arbitrary or manifestly unreasonable (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 86, ECHR 2007-I), the court's role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015; see also, specifically in respect of EU law, Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 54, 20 September 2011, and Jeunesse v. the Netherlands [GC], no. 12738/10, § 110, 3 October 2014). Furthermore, the Convention also requires that any deprivation of liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Riad and Idiab, cited above, § 71 and the authorities cited therein).

As to the notion of arbitrariness in this field, the Court refers to the principles enounced in its case-law (see in particular Saadi v. the United Kingdom, cited above, §§ 67 to 73) and emphasises that to avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Lokpo and Touré v. Hungary, no. 10816/10, § 22, 20 September 2011). The Court further notes that Member States of the European Union should not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (see paragraph 34 above).

The applicants' detention in the transit zone lasted from 15 September 2015 to 8 October 2015, that is, 23 days. According to the Government, section 71/A (1) and (2) of the Asylum Act provided sufficent legal basis for the measure. In turn, these rules refer back to section 5 of the same Act, under which provision asylum-seekers subjected to the border procedure were not entitled to stay in the territory of Hungary or seek accommodation at a designated facility.

The Court is not persuaded that these rules circumscribe with sufficient precision and foreseeability the prospect that asylum-seekers such as the applicants were liable to be committed to the transit zone — a measure which, under the circumstances, amounts to deprivation of liberty irrespective of its domestic characterisation. Indeed, it finds it quite difficult to identify in the provisions at hand any reference to the possibility of detention at the transit zone. The Government's submissions, according to which the applicants' stay at the transit zone, although it did not amount to detention, had nevertheless a compelling basis in national law (see paragraph 60 above) only cast doubt on the clarity and the foreseeability of the domestic provisions in question.

At any rate, the Court notes that the applicants' detention apparently occurred de facto, that is, as a matter of practical arrangement. This arrangement was not incarnated by a formal decision of legal relevance, complete with reasoning.

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, that is to counter abuses of the asylum procedure. However, for the Court the fact remains that the applicants were deprived of their liberty without any formal decision of the authorities and solely by virtue of an elastically interpreted general provision of the law — a procedure which in the court's view falls short of the requirements enounced in the court's case-law. The conditions of Article 31/A of the Asylum Act were not met and no formal decision was taken; furthermore no special grounds for detention in the transit zone were provided for in Article 71/A. In this connection the Court would reiterate that it has considered the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time, as in the present case to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1 (see Stašaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002; Nakhmanovich v. Russia, no. 55669/00, § 70, 2 March 2006; Belevitskiy v. Russia, no. 72967/01, § 91, 1 March 2007, and Mooren v. Germany [GC], n^o 11364/03, § 79, 9 July 2009).

It follows that the applicants' detention cannot be considered ‘lawful’ for the purposes of Article 5 § 1 of the Convention. Consequently, there has been a violation of that provision.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicants submitted that, for want of a formal decision on their detention, they could not possibly challenge the lawfulness of the measure in any kind of procedure.

The Government submitted that the asylum authorities' decision on the applicability of the rules of border proceedings, including the applicants' ineligibility to preferential treatment, had been subject to judicial review which had taken place only six days after their arrival in the transit zone.

The Court observes that the applicants' detention consisted in a de facto measure, not supported by any decision specifically addressing the issue of deprivation of liberty (see paragraph 67 above). Moreover, the proceedings suggested by the Government concerned the applicants' asylum applications rather than the question of personal liberty. In these circumstances, it is quite inconceivable how the applicants could have pursued any judicial review of their committal to, and detention in, the transit zone — which itself had not been ordered in any formal proceedings or taken the shape of a decision.

The Court therefore must 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’.

It follows that there has been a violation of Article 5 § 4 of the Convention.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Government claimed that the applicants had not raised this issue in their application, and certainly not within six months counted from their departure from the transit zone. Therefore, in their view, this complaint had been lodged outside the six-month time-limit laid down in Article 35 § 1 of the Convention.

The applicants contested that view, arguing that their request made under Rule 39 of the Rules of Court had already contained this complaint.

The Court observes that in their request for an interim measure of 25 September 2015, which was brought before the Court in good time, the applicants argued that there was no legal remedy available to them in regard to the conditions of their confinement at the transit zone (see paragraph 3 above). Given that this complaint was brought to the court's attention before the applicants' departure from the transit zone on 8 October 2015, the Government's objection must be dismissed.

The Court further 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.

The Government argued that since the applicants had already returned to Serbia but had submitted no complaint against that country in respect of the conditions of reception or of an impending expulsion to yet another country, they could not claim to be victims, for the purposes of Article 34, of a violation of their rights under Article 3 of the Convention on account of their expulsion to Serbia.

The applicants contested that view, arguing in particular that the main issue was whether the Hungarian authorities had fulfilled their substantive and procedural obligations in the asylum proceedings concerning the assessment of a risk related to Article 3. The fact that they had not been subjected to treatment contrary to Article 3 in Serbia did not eliminate the respondent State's responsibility for the failure to comply with its obligations.

When an applicant has already been expelled, the Court considers whether at the time of removal from the respondent State a real risk existed that the applicant would be subjected to treatment proscribed by Article 3 in the State to which he or she was expelled (see, for example, Muminov v. Russia, no. 42502/06, §§ 91–92, 11 December 2008). This is in line with the previous findings of the Court according to which, since the nature of the Contracting States’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the applicant's leaving the country. The Court is not precluded, however, from having regard to information which comes to light subsequent to this date. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party of the well-foundedness or otherwise of an applicant's fears (see, for example, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005-I).

Furthermore, the Court noted on several occasions that not even a decision or measure favourable to the applicant is in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Murray v. the Netherlands [GC], no. 10511/10, § 83, ECHR 2016). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, for example, Arat v. Turkey, no. 10309/03, § 46, 10 November 2009).

Therefore, the mere fact that the applicants have already been expelled from Hungary does not release the Court from its duty to examine their complaints under Article 3 of the Convention, since neither an acknowledgement of a violation has taken place nor any redress has been afforded to the applicants. The Court thus considers that the applicants have retained their status of victim for the purposes of Article 34 of the Convention. It further 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.

The applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage.

The Government contested this claim.

The Court considers that the applicants must have suffered some non-pecuniary damage and awards them each EUR 10,000.

The applicants also claimed jointly EUR 8,705 for the costs and expenses incurred before the Court. That sum corresponds to 57.5 hours of legal work billable by their lawyer at an hourly rate of EUR 150, plus EUR 80 in clerical costs.

The Government contested this claim.

According to the court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed.

The Court 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.