Degrading treatment and deprivation of liberty in the Röszke transit zone – judgment of the European Court of Human Rights in the case of R.R. and Others v. Hungary

In the case of R.R. and Others v. Hungary (2.3.2021, 36037/17, not final), the European Court of Human Rights found several breaches of the Convention on account of the de facto deprivation of liberty (Art. 5) and the living conditions of asylum-seekers (Art. 3) in the Röszke transit zone, on the Hungarian-Serbian border.

The ECHR distinguished the circumstances prevailing in this case from those which had recently lead it, in the case of lias and Ahmed v. Hungary (21.11.2019, 47287/15), to find no violation of these provisions of the Convention (see below, the post on this judgment). Significant differences indeed lay in the fact that the applicants, an Iranian-Afghan family of five with three young children, were particularly vulnerable and that their stay in the transit zone had by far exceeded the time needed for the examination of an asylum request, due to inaction on the part of the Hungarian authorities.

Interestingly, the ECHR in its reasoning also relied on several prescriptions of the EU Reception Directive (2013/33) which in its opinion had not been complied with by the authorities (§§ 54 and 58).

With regard to the question whether there has been a deprivation of liberty, the judgment confirms the case-by-case approach followed by the ECHR in such matters, which is in contrast with the more abstract approach resulting from the application of Union law, as illustrated by the rulings of the CJEU in the cases of FMS and Others (C-924/19 PPU and C-925/19 PPU) and Commission v. Hungary (C-808/18; see below, the posts on these judgments). There is nonetheless some valuable interaction between the two approaches. Not only did the ECHR rely on Union law in its reasoning, making its requirements relevant in assessing compliance with the Convention, but by doing so it indirectly also provided some ex post assessment as to whether Union law was respected in the present case, along with its findings on whether the Convention was violated or not.