The European Court of Human Rights rules that placement in the transit zones following the legal changes of 2017 qualifies as unlawful detention

The Court joined the broad consensus regarding the nature of placement in the Hungarian transit zones and found that the family had been unlawfully detained. The Court also found that the conditions in which the family had to endure their asylum procedure, including that the father was not provided with meals, were in violation of the prohibition of inhuman or degrading treatment. The applicants were represented by the Hungarian Helsinki Committee. 

Following the ECtHR’s Grand Chamber (GC) judgment in the case of Ilias and Ahmed v. Hungary of 21 November 2019, this is the Court’s first ruling that deals with the alleged detention of asylum seekers in the two Hungarian land border transit zones. The facts of today’s judgment and the applicable legal framework, that changed after 28 March 2017, are however radically different, justifying the Court’s decision arriving at a different conclusion on the nature of the placement in the transit zone and finding that the applicants were deprived of their liberty within the meaning of Article 5.

The case concerns the inhuman treatment and unlawful detention of a vulnerable Iranian-Afghan family with severe medical conditions, in the transit zone. The Iranian father who did not receive any food for months, only shelter, his wife, the torture survivor Afghan mother of three minor children and six-month pregnant with the fourth were all kept behind the barbed wire fence of the Röszke transit zone at the Hungarian-Serbian border. The family spent 3 months and 26 days days in the transit zone.

The applicants complained that their placement in the Röszke transit zone amounted to  unlawful detention and that the conditions they had to endure were inhuman and degrading, unacceptable for small children. They had no access to effective remedy against this situation, which amounted to a breach of Article 5 (1) and 5 (4), as well as Articles 3 and 13 of the Convention.

Considering the highly inadequate detention conditions and the prolonged suffering of the family, the HHC has already turned to the ECtHR on two occasions requesting interim measures while the family was detained in the transit zone. In these interim measures, the Court instructed the Government to place the applicants in an environment adequate for the children and the pregnant mother, as well as to provide meals to the father and interpretation to the mother during medical examinations. The Government did nothing to improve the applicants’ circumstances, apart from giving food to the father. The applicants were only released from the transit zones because of the decision delivered on their asylum claim, when Hungary eventually recognized their need for international protection.

The transit zones were closed in May 2020, following the judgment of the Court of Justice of the European Union (CJEU) that qualified placement in the transit zone as detention. That judgment fit into the broad professional consensus among key human right bodies, all finding that placement in the two land border transit zones in Hungary constituted deprivation of liberty. The ECtHR today finally joined this international consensus.

The Hungarian Helsinki Committee welcomes the Court’s ruling that recognized the factual and legal realities of the case and arrived at a conclusion that is different from Ilias and Ahmed and is not at variance with the EU law standards echoed in the CJEU judgment of 14 May 2020 clearly establishing that this type of transit zone placement qualifies as detention.