Victor Davio,* PhD Researcher at the
Institute for European Law, KU Leuven and Assistant in Constitutional Law at
University Saint-Louis Brussels
That
Europe has gone from one crisis to another over the past decade has become
almost self-evident. Since the economic and financial crisis of 2008-2010, the
European continent has been shaken not only by an identity crisis through the
British departure, but also by a rule of law crisis and an unprecedented
sanitary crisis. Most of these crises have called for drastic measures on the
part of governments to address these unexpected situations, frequently putting
fundamental rights under severe strain.
The
migration crisis is a case in point. In response to the influx of asylum-seekers
into Europe in the mid-2010s, the EU institutions and the Member States
introduced highly questionable measures. If the EU-Turkey
deal might be a telling example, another that has recently been in the
spotlight is that of the so-called ‘transit zones’ in Hungary. In the last two
years, the European Court of Human Rights (‘ECtHR’) and the Court of Justice of
the European Union (‘CJEU’) have rendered several groundbreaking judgments on
this issue.
At
first glance, it is perhaps not surprising that both courts have had to deal
with this highly sensitive question. Depicted as a crowded house, the European
fundamental rights architecture is characterised by the coexistence of several
layers of norms and institutions that protect fundamental rights. In recent
years, EU law has become a prominent source of fundamental rights. Since 2000
for instance, the EU has its own Bill of Rights, the Charter of Fundamental
Rights (‘Charter’). This has inevitably led to an intensification of
fundamental rights litigation before the EU courts and an ever-growing overlap
with Strasbourg.
More
striking in the judicial saga surrounding the Hungarian transit zones is that,
for once, the EU legal order seems to offer a higher level of protection of
fundamental rights than the ECHR system. As will be discussed below, this
appears to be the case in particular with regard to the concept of detention, a
major component of the right to security and liberty protected by Article 5 of
the ECHR and Article 6 of the Charter. This may seem somewhat unexpected. Traditionally,
the EU legal order has lagged behind the ECHR system as regards the protection
of fundamental rights and has often sought to accommodate its specificities,
such as the principle of mutual trust.
The
aim of this short contribution is twofold. Firstly, I will highlight the
differences in the interpretation of the concept of detention between
Strasbourg and Luxembourg in their case-law on the Hungarian transit zones. Secondly,
I will take this judicial saga as an invitation to reflect on the interactions
between the ECHR and the EU in light of the growing role of the latter in the
field of fundamental rights.
The Start of the Journey: From
Hungary to Strasbourg
Our
legal journey starts in Hungary in 2015. Amidst the rise of asylum applications
in Europe, Hungary adopted a series of measures to limit drastically migrants’
access to its territory. One of these measures consisted of the establishment
of transit zones. Located on the southern border between Hungary and Serbia,
these no-man’s-lands were not only the place where asylum-seekers had to apply
for asylum but also where they were accommodated during their asylum
application. The living conditions in these areas were spartan, to say the
least. The largest transit zone, Röszke, was reported to be ‘a compound with
mobile containers and a narrow open-air area surrounded by approximately
four-metre high fencing with barbed wire on the top. The entire zone was
guarded by police officers and armed security guards.’ (ECtHR(GC) Ilias and Ahmed, §15)
It
was not long before the legality of stay in these transit zones was contested
before the ECtHR in the Ilias and Ahmed
v. Hungary case. Ilias and Ahmed, two Bangladeshi nationals, arrived in
Hungary from Serbia and entered the Röszke transit zone. On the day of their
arrival, their asylum requests were rejected as being inadmissible since Serbia
was deemed to be a safe third country. Following an appeal against these
decisions, they spent 23 days in the transit zone while the procedure was
underway. The rejections were upheld on appeal and the applicants were then
escorted out of the transit zone. One of the most significant legal issues was
whether the stay of asylum-seekers in the transit zone was to be considered as
‘detention’ under Article 5 of the ECHR, thereby triggering a series of
important procedural guarantees.
While
the
Chamber of the European Court of Human Rights found this to be the case, the
Grand
Chamber of the Court, in a landmark judgment of 21 November 2019, held that
Article 5 of the ECHR was not applicable since the applicants could not be
deemed in detention. To reach this conclusion, the Grand Chamber gave special
emphasis to the following elements:
-
The applicants entered the Röszke transit zone of their own initiative, with the aim of
seeking asylum in Hungary (ECtHR(GC) Ilias
and Ahmed, §220);
-
The duration of the
stay, namely 23 days, was not unreasonable for the purpose of examining the
asylum applications (ECtHR(GC) Ilias and
Ahmed, §226-227);
-
The applicants had a concrete
and effective possibility to leave the transit zone and go to Serbia (ECtHR(GC)
Ilias and Ahmed, §237).
This
part of the judgment was fiercely criticised.
Not only is it difficult to grasp how one may consider that migrants chose to
come to Hungary or that they were free to leave, but the ruling is also hardly
reconcilable with the previous case-law of Strasbourg. In particular, in its well-known
Amuur
v. France (1996) judgment
on stay in airport transit zones, the ECtHR held that: ‘The mere fact that it
is possible for asylum-seekers to leave voluntarily the country where they wish
to take refuge cannot exclude a restriction on liberty, the right to leave any
country, including one’s own’ (ECtHR Amuur
v. France, §48).
The Bumpy Road: From Strasbourg to
Luxembourg
Shortly
afterwards, the legal journey resumed and arrived in Luxembourg in 2020 in the Országos case. The facts were fairly
similar to those in the Ilias and Ahmed
case. In late 2018 and early 2019, two Iranian and two Afghan nationals arrived
in Hungary from Serbia and submitted applications for asylum from the Röszke
transit zone. All four applications were rejected as inadmissible and return
decisions to Serbia were adopted. However, Serbia refused the readmission of
these persons, which led the Hungarian authorities to change the country of
destination mentioned in the original return decisions to the country of origin
of the persons. Subsequently, the four persons brought an action before a
Hungarian court where they argued among other things that their stay in the
Röszke transit zone constituted unlawful detention. The Hungarian court
referred several preliminary questions to the CJEU, including one on the concept
of detention.
In
this respect, both the CJEU, sitting in Grand Chamber, and the Advocate
General Pikamaë depart from the ECtHR approach in the Ilias and Ahmed case. The CJEU does so implicitly: it mentions the
Strasbourg judgment (CJEU Országos, §71)
but does not take into account the interpretation of Article 5 of the ECHR
proposed in it. The AG is more explicit and states, for instance, that: ‘The
Court can therefore leave aside the case-law of the [ECtHR] and examine the
questions referred in the light of the Charter, provided its interpretation of
the rights (…) leads to a higher level of protection than that guaranteed by
the ECHR. I invite the Court to take that approach in the present case.’ (AG Országos,
§150-151)
In
a nutshell, the CJEU defines the concept of detention, both within the meaning
of the Receptions
Conditions Directive and the Return
Directive, as a ‘coercive measure that deprives [the] applicant of his or
her freedom of movement and isolates him or her from the rest of the
population, by requiring him or her to remain permanently within a restricted
and closed perimeter’ (CJEU Országos,
§223). The obligation imposed on a third-country national to remain permanently
in a transit zone with a restricted and closed perimeter, within which the
movements of that national are limited and controlled, and which he or she
cannot legally leave voluntarily meets this definition (CJEU Országos, §231).
The
CJEU expressly rejects the idea that the applicants were free to leave the
Röszke transit zone to go to Serbia (CJEU Országos,
§228-231). In this regard, the CJEU relies on two arguments, namely that any
entry of these applicants into Serbia would be considered illegal (CJEU Országos, §229), and that, if they had
left Hungarian territory, they would have risked losing any chance of obtaining
refugee status in Hungary (CJEU Országos,
§230). This is in stark contrast to the approach of Strasbourg which
acknowledges these two elements but considers them not to be decisive
(ECtHR(GC) Ilias and Ahmed, §238 and
§247).
The
consequences of characterising the stay in the Hungarian transit zones as
detention are not minor. From that moment onwards, the numerous guarantees
regarding detention, provided for in particular in the above-mentioned
directives, are applicable. In the Országos
case, the CJEU judged, for instance, that the Receptions Conditions Directive
precludes an applicant for international protection from being detained on the
sole ground that he or she is unable to provide for his or her needs (CJEU Országos, §256).
The Next Journey: Back to Strasbourg?
A
few days after the Országos case on
21 May 2020, Hungary decided to dismantle its transit zones. More recently, the
CJEU has reiterated its reasoning on the concept of detention in the Commission
v. Hungary (C-808/18) case. Taken together, the overall picture is that
of a happy ending. Yet, one may be a little sceptical about this conclusion. In
particular, it can be argued that significant risks may arise from the
discrepancies between Strasbourg and Luxembourg case-law. Not only may these
rulings create conflicting signals for national judges who are bound to apply both
EU law and the ECHR, but they can also serve as a ‘false excuse’ for
recalcitrant States to refuse to comply with the judicial decision unfavourable
to them, arguing that they respect the other one.
While
the issue of diverging fundamental rights standards is by
far not new in Europe, the specific feature of the transit zones judicial
saga is that EU law seems to offer a higher level of protection than the ECHR
system. This phenomenon is likely to increase in the future given the proactive
stance of the EU legislator in the field of fundamental rights. Although the EU
does not have a general competence dedicated to fundamental rights, the EU
legislator has increasingly developed fundamental rights standards in areas
ranging from criminal law to data protection. The recent Whistleblower
Directive is one example among many.
How
should Strasbourg (re)act in such a situation? The most logical way might be to
align itself with the CJEU case-law, which would allow for a process of mutual
enrichment between the two legal orders. The ECtHR has already taken this path.
For instance, in its landmark Bayatyan v. Armenia (2011)
case, it referred to several instruments, including Article 9 of the Charter,
to establish an emerging consensus on the right of conscientious objection to
military service. Similarly, Article 49(1) of the Charter was the key factor in
recognising the retroactivity of the more lenient criminal law under Article 7 of
the ECHR in the Scoppola v. Italy (No.
2) (2009) case. Yet, despite its power of attraction, the incorporation of EU
fundamental rights standards into the Strasbourg case-law is not an obvious
process. In particular, the reception of these standards entails the risk of
marginalisation of the non-EU Council of Europe States. If EU standards were to
be incorporated systematically into the definition of the ECHR rights, these
States would be bound by EU standards without having been able to participate
in the deliberative process, which points to a clear danger of majority
hegemony. This is all the more so given that the value of EU fundamental rights
standards as an indicator of consensus at pan-European level is not limitless.
By way of illustration, it suffices to recall that the Charter binds the EU Member
States only when they are implementing Union law (Article 51(1) of the Charter).
An
avenue that could be used as a way out in the event of such a conflict is
Article 53 of the ECHR, which reads as follows: ‘Nothing in this Convention
shall be construed as limiting or derogating from any of the human rights and
fundamental freedoms which may be ensured under the laws of any High
Contracting Party or under any other agreement to which it is a party.’ In
light of the proliferation of EU fundamental rights standards, there is nothing
to prevent national judges from considering EU law as one of the sources that
can go further than the ECHR within the meaning of this provision. Although
this could lead to the development of a ‘differentiated Europe’ of fundamental
rights where the EU and non-EU Council of Europe States abide by different
rules, relying on this provision would ensure that one of the foundational
principles of the ECHR system is respected, namely the principle of
subsidiarity. The latter entails not only that the Council of Europe States
have the primary responsibility to guarantee the ECHR rights, but also that
they enjoy a certain discretion to regulate and restrict these rights according
to their national preferences. Given the high sensitivity of fundamental
rights, it may sometimes be preferable for the EU and non-EU Council of Europe
States to move at different speeds.
[*] I would like to thank Prof. Elise Muir, Cécilia
Rizcallah, Gérald Fierens and Alicja Slowik for their insightful comments. This
blog post is part of the RESHUFFLE research project, supported by the European
Research Council (European Union’s Horizon 2020 research and innovation
programme, grant agreement No 851621).
JHA4:
chapter I:6
Barnard
& Peers: chapter 26
Photo
credit: Rebecca Harms, via Wikimedia
Commons
Photographer: Bence Jardany
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