Friday 4 June 2021

But What’s Detention After All? Strasbourg, Luxembourg and the Hungarian Transit Zones


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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