Detention of asylum seekers in the Röszke transit zone: judgment by the CJEU in the case of FMS and Others

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).

On the notion of safe third country: judgment of the CJEU in the case of Bevándorlási és Menekültügyi Hivatal

The case of Bevándorlási és Menekültügyi Hivatal, adjudicated by the CJEU on 19 March 2020, is very similar to the case of Ahmed and Ilias v. Hungary (see below, on this page) which was decided a few months earlier, on 21 November 2019, by the ECHR. In both cases the main issue was the way Hungarian courts had made use of the possibility, provided for by article 33.2 (c) of the Procedures Directive, to declare a request for international protection inadmissible on the ground that a country which is not a Member State is considered as a safe third country for the applicant.

The CJEU found the domestic legislation not to have adequately transposed the Directive by omitting to incorporate some of its basic requirements, including the principle of non-refoulement. It thereby came, in substance, much to the same conclusion as the ECHR, which for its part had found, inter alia, Hungarian courts to have breached the procedural obligations flowing from Article 3 of the Convention.

Interestingly, however, and in contrast with the ECHR ruling, the CJEU elaborated on the requirement, for a third country to be able to be considered safe, that there be a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country (Art. 38.2 (a) of the Directive). In its opinion, the mere fact of transiting through a specific country could not be considered as amounting to such a connection.

No such requirement flows from the Convention. In this respect, EU law would appear to offer a higher protection standard. This, however, is in line with Article 53 of the Convention, which allows States to exceed the minimum Convention protection standard, including on the basis of EU law (see, on this latter aspect, mutatis mutandis, M.N. v. Belgium (dec.), no. 3599/18, 5.5.2020, § 140).

Judgment of the CJEU in the case of “AGRO IN 2001”

In the case of AGRO IN 2001, a Bulgarian judge asked the CJEU whether under EU law he could lawfully order the confiscation of the assets of persons on account of criminal offences – embezzling of funds – the same persons had been charged with in criminal proceedings which were still pending. The CJEU ruled that the relevant legal instrument, Framework Decision 2005/212 on the confiscation of crime-related proceeds, instrumentalities and property (“the FD”), was not applicable in the present case, since the scope of the FD was limited to criminal proceedings, whereas under Bulgarian law the confiscation proceedings at stake were civil proceedings. Consequently, EU law did not preclude such confiscations.

What is somewhat striking about this ruling is that at no point the CJEU seems to have asked the question whether those confiscation proceedings, classified as civil under Bulgarian law, were not in fact criminal in nature, with totally different consequences, as is indeed suggested by the recent case-law of the ECHR in the case of G.I.E.M. S.R.L. and Others v. Italy (28.6.2018), which concerned a similar problem, i.e. confiscation measures applied without prior formal conviction for unlawful site developments.

In the latter case, rather than the formal approach based on domestic classifications, followed by the CJEU, a Grand Chamber of the ECHR went for a substantive approach guided by an autonomous interpretation of the relevant notions. Applying Article 7 of the Convention, which precludes the imposition of a penalty without a prior formal declaration of liability, the ECHR had to determine whether the impugned confiscations amounted to such a penalty. It thereby ruled that the domestic characterisation of confiscation measures or proceedings was, as such, not decisive in determining whether they were criminal or not. Rather, other criteria, such as the nature and purpose of such measures as well as their severity had also to be taken into account. The ECHR stated in particular:

The Court concludes that the impugned confiscation measures can be regarded as “penalties” within the meaning of Article 7 of the Convention. This conclusion, which is the result of the autonomous interpretation of the notion of “penalty” within the meaning of Article 7, entails the applicability of that provision, even in the absence of criminal proceedings within the meaning of Article 6. Nevertheless, … it does not rule out the possibility for the domestic authorities to impose “penalties” through procedures other than those classified as criminal under domestic law. (§ 233)

Consequently, such confiscation measures being criminal in nature, despite their different characterisation under domestic law, they could not have been lawfully ordered without a prior formal declaration of liability. This could also have been the answer under Convention law to the question asked by the referring court in the present case before the CJEU.

Had the CJEU adopted a similar, more substantive approach in determining the notion and scope of civil and/or criminal proceedings for the purpose of the FD, it could have extended the scope of the FD so as to cover the “civil” confiscations at stake, thereby allowing the safeguards relating to the protection of fundamental rights (Art. 4 and 5 of the FD) to apply in the present case. Instead, it would appear that in a case like this, only the Convention can help.

Negotiations on EU Accession postponed

In the wake of the measures applied by the Council of Europe with a view to preventing the further spread of the Corona virus, it was decided to cancel the start of the new round of negotiations on EU Accession to the European Convention on Human Rights scheduled to take place on 24 March. A new date will be set as soon as circumstances permit.

Judgment of the ECHR in the case of O.C.I. and Others v. Romania

The case of O.C.I. and Others v. Romania concerned decisions by the Romanian courts acting under the Hague Convention on the Civil Aspects of International Child Abduction and the Brussels II bis Regulation (No. 2201/2003) and ordering the return to Italy of two children who had been abducted to Romania by their mother because their Italian father had allegedly used violence against them. In its judgment of 21.5.2019, the ECHR found a violation of Article 8 of the Convention (right to respect for family life) on account of the fact that the domestic courts should have given more consideration to the potential risk of ill-treatment for the children if they were returned to Italy. After reiterating that a child’s return cannot be ordered automatically or mechanically (§§ 35 and 46), the ECHR held in particular:

In the context of an application for return, which is distinct from custody proceedings, it is primarily for the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties, to establish the best interests of the child and evaluate the case in the light of the exceptions provided for by the Hague Convention. (§ 40) …

As member States of the European Union, both States are parties to the Brussels II bis Regulation, which is thus applicable in the case (see K.J. v. Poland, cited above, § 58). That Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States (see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018). However, in the Court’s view, the existence of mutual trust between child-protection authorities does not mean that the State to which children have been wrongfully removed is obliged to send them back to an environment where they will incur a grave risk of domestic violence solely because the authorities in the State in which the child had its habitual residence are capable of dealing with cases of domestic child abuse. Nothing in the Hague Convention or in the Brussels II bis Regulation allows the Court to reach a different conclusion. (§ 45)

This approach would appear to be in some contrast with the one followed by the CJEU, notably in the Povse case (C-211/10).

Judgment of the ECHR in the case of Sanofi Pasteur v. France

In the case of Sanofi Pasteur v. France (13.2.2020) the ECHR recapitulated its case-law on the need for domestic courts which, under Article 267 TFEU, are in principle obliged to make a reference to the CJEU for a preliminary ruling, to give reasons when they reject an application to that effect by one of the parties to the proceedings. In the present case, it found that the French Court of cassation had breached Article 6 of the Convention by limiting its reasoning to finding that there was no need to call the CJEU.

Judgment of the ECHR in the case of N.D. & N.T. v. Spain

In the case of N.D. & N.T. v. Spain (13.2.2020) a Grand Chamber of the ECHR ruled inter alia that the two applicants, migrants from Mali and Côte d’Ivoire who had attempted to cross the fences of the Melilla enclave and had been immediately returned to Morocco by the Spanish border guards, had not been the victim of a collective expulsion prohibited by Article 4 of Protocol no. 4 to the Convention. A key element of the Court’s reasoning is the obligation on the States to make available genuine and effective access to means of legal entry to their territory. In stating that principle, the ECHR referred to the Schengen Borders Code and the EU Procedures Directive, in the following terms:

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4(1) of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution.

However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (see also Article 6 of the EU Procedures Directive …). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons …, to comply with these arrangements by seeking to cross the border at a different location, especially, as happened in this case, by taking advantage of their large numbers and using force. (§§ 209-210)

Judgment of the CJEU in the case of Deutsche Umwelthilfe

In the case of Deutsche Umwelthilfe (19.12.2012) a Grand Chamber of the CJEU ruled on the question whether the right to an effective remedy (Art. 47(1) of the EU-Charter) required domestic courts to impose coercive detention on senior political representatives or senior officials of Bavaria on account of the persistent refusal of the Bavarian government to comply with an injunction granted by the Munich Administrative Court pursuant to Directive 2008/50 on ambient air quality and cleaner air for Europe.

In answering that question the CJEU recalled, interpreting Article 47 of the EU-Charter in the light of the case-law of the ECHR on Article 6 § 1 of the Convention, that the right to an effective remedy would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain ineffective to the detriment of one party (§ 36-37). As, however, the right to an effective remedy is not absolute, it had to be weighed against the right to liberty (Art. 6 of the EU-Charter) which required, in accordance with the case-law of the ECHR on Article 5 of the Convention, the legal basis for a limitation on the right to liberty to be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risks of arbitrariness (§§ 45-46).