ECtHR Holds No Art. 5 Violation for Migrants Who Could Have Left Detention Area [1]
On November 21, 2019, the Grand Chamber of the European Court of Human Rights announced its judgment [3] in Ilias and Ahmed v. Hungary. This was the first time the Court was asked to apply the European Convention on Human Rights [4] (ECHR) to a transit zone located on a land border between two Council of Europe states where asylum-seekers stay pending the outcome of their applications. According to a press release [5] issued by the Court, the case involved two migrants from Bangladesh who, after transiting through several countries, including Serbia, arrived at a Hungarian land border transit zone and requested asylum. Pending their application, they were held in the Hungarian transit zone, adjacent to Serbia. Following the rejection of their asylum applications, expulsion orders to Serbia (determined as a safe third country by the Hungarian authorities) were made against them. The applicants challenged the decision to send them to Serbia under Article 3 ECHR, arguing that the authorities had failed to properly examine their claim that they faced a real risk of ill treatment in Serbia. They also challenged their detention under Article 5(1) and Article 5(4), the latter argument being that the lawfulness of their detention was not speedily reviewed. With regard to Article 3, the Grand Chamber held that Hungary "failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision before removing the applicants from Hungary." However, the Court did not find a violation of Article 5. It reasoned that there was not a de facto deprivation of liberty because the applicants could have easily and realistically returned to Serbia from the transit zone. The Court did not rule on the substantive issue of whether Serbia was indeed a safe third country, as that is not the role of the Court.