Case summaries
The absence of food provision raised an issue of Article 3 in respect of the first applicant, given his state of total dependency on the Hungarian government during his stay at the Röszke transit zone. The physical conditions of the container in which the family stayed in, the unsuitable facilities for children, irregularities in the provision of medical services, and the prolonged stay in the area amounted to a violation of Article 3 in respect of the applicant mother and the children.
The family’s stay at the Röszke transit zone amounted to deprivation of liberty due to, inter alia, the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the excessive duration of the applicants’ stay and the conditions in the transit zone. Their deprivation of liberty was unlawful under Article 5 (1), as there was no strictly defined statutory basis for the applicants’ detention and no formal decision complete with reasons for detention had been issued by the Hungarian authorities.
Article 5 (4) was also violated because he applicants did not have avenue in which the lawfulness of their detention could have been decided promptly by a court.
1. A change of the destination country in a return decision by an administrative authority should be regarded as a new return decision requiring an effective remedy in compliance with Article 47 CFREU.
2. The national legislation providing for a safe transit country ground applicable in the present case is contrary to EU law.
3. The obligation imposed on a third-country national to remain permanently in a closed and limited transit zone, within which their movement is limited and monitored, and which the latter cannot legally leave voluntarily, in any direction whatsoever, constitutes a deprivation of liberty, characterised as "detention" within the meaning of the Reception Conditions (RCD) and Returns Directives (RD).
4. Neither the RCD nor Article 43 of the Asylum Procedures Directive authorise detention in transit zones for a period exceeding four weeks.
5. Detention under the RCD and the RD must comply with the relevant guarantees under EU law including being based on a reasoned detention decision; consisting of a measure of last resort, following an individualised assessment of the case, its necessity and proportionality; and effective judicial review should be available. An applicant for international protection cannot be held in detention solely on the ground that they cannot support themselves. Where detention is found to contravene EU law, domestic courts may release the applicant and order the authorities to provide accommodation in line with the RCD provisions. They are empowered to do so, even if they have no clear jurisdiction under national law.
When State Parties do not examine an application for international protection in its mertis based on a safe third country clause, Article 3 still requires that they apply a thorough and comprehensive legal procedure to assess the existence of such risk by looking into updated sources regarding the situation in the receiving third country. Hungary violated Article 3 by failing to conduct an efficient and adequate assessment when applying the safe third country clause for Serbia.
Article 5 cannot be considered as ratione materiae applicable to the Röszke transit zone; the applicants' stay there involved a short waiting time in order for Hungary to verify their right to enter, they had entered on their own initiative and they were free to leave the area in the direction of Serbia. The conditions in the transit zone were not found to breach Article 3 because of the restrictive measure's short duration, the possibility for human contact and the applicants' awareness of the procedure.
The authorities followed an incorrect interpretation of the Dublin Regulation 604/2013 failing to take into account that the older applicant is the brother of the minor and should remain in Hungary under Article 10 of the Regulation, despite having lodged an application in Bulgaria.