In the case of FMS and Others (C-924/19 PPU and C-925/19 PPU, 14.5.2020), the CJEU ruled on several aspects of the situation of asylum seekers in the Röszke transit zone, which is located on Hungarian territory, at the border with Serbia. One of the findings by the CJEU is that the accommodation in this transit zone amounts to a de facto detention of asylum seekers (§ 231). Yet, in the case of Ilias and Ahmed v. Hungary (see on this page, the post on this case), the ECHR found the same living conditions experienced by the applicants in the same transit zone not to have amounted to a deprivation of liberty within the meaning of Article 5 of the Convention, with the consequence that this provision was declared inapplicable.

Does it follow from this that EU law better protects asylum seekers from detention in transit zones? Not necessarily. The qualification as detention of the accommodation in a transit zone is indeed a pre-condition for the start of the four weeks deadline set by Article 43(2) of the Procedures Directive as the maximum length of detention of asylum seekers in such a zone. This means, in practical terms, that a detention of up to four weeks is in principle acceptable under EU law, regardless of individual circumstances.

By contrast, even if Article 5 of the Convention does not in principle apply from the very beginning of a stay in a transit zone such as Röszke, at the border of two States, this can change any time in view of individual circumstances, i.e. from the moment when restrictions to the liberty of movement of asylum seekers exceed what is strictly necessary for the processing of their asylum applications (see § 233 of the Ilias and Ahmed judgment). There is no reason why this could not occur before the expiry of a four weeks period, with the consequence that Article 5 would then most likely also be breached and require an immediate lifting of the impugned restrictions (see, mutatis mutandis, CEDH 23.2.2012, Creanga v. Romania, 29226/03, §§ 97 and 100).

Thus, this comparison clearly demonstrates the methodological differences between the two systems. While EU law operates on the basis of an abstract deadline of four weeks to be triggered by the finding of the existence of a detention from the beginning of the stay concerned, Article 5 of the Convention allows for a case-by-case assessment of the living conditions in transit zones and an “activation” of the ban on arbitrary detentions from the moment when those conditions exceed what is strictly necessary in the circumstances.

Consequently, domestic courts of EU Member States should not confine themselves to examining such situations under only one of the legal systems concerned. For depending on the circumstances, either of them can provide the higher protection against unlawful detention of asylum seekers. In such a situation, domestic courts of EU Member States are indeed bound to apply the higher protection (Article 52(3) of the EU-Charter).