PARTLY DISSENTING OPINION OF JUDGE BIANKU, JOINED BY JUDGE VUČINIĆ

(Translation)

In this case I agree with the majority as regards Articles 3 and 13. Unfortunately I can follow neither their reasoning nor their conclusions as regards the applicability of Article 5 and the complaints under that provision.

The two applicants spent twenty-three days in the Rözske transit zone on the border between Hungary and Serbia. The living conditions in that zone are described in paragraph 15 of the judgment. The majority conclude that Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) is not applicable in the present case.

In paragraphs 212 to 216 of the judgment, the majority set out the usual recapitulation of relevant principles concerning the applicability of Article 5: “ In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5, the starting-point must be his or her specific situation in reality and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question ... The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance .” [7]

In their analysis, in order to find that Article 5 is inapplicable in the instant case, the majority take into account three criteria, which I consider problematic. I shall briefly discuss each of those criteria in turn.

Firstly , the majority expound the criterion of the applicants’ personal situation and choices in paragraphs 220 to 223. In my view, the approach adopted by the majority concerning the latter point gives pause for thought. In support of their approach, first of all, the majority refer to case-law which has nothing to do with asylum-seekers. The cases cited in paragraph 221 of the judgment did not relate to asylum-seekers, never mind any choice on the part of such persons to agree to detention. It should also be emphasised that the word “choice” means something completely different in connection with asylum-seekers from when it is used in the cases cited by the majority in paragraph 221. An asylum-seeker wants protection, and his asylum request concerns the protection of a right secured under the Convention, namely the right not to suffer treatment contrary to Article 3, or else Article 2. This process concerns a necessity, not a choice. We can see from European history that such “choices” have cost hundreds of people their lives [8] . I therefore find it difficult to conceive of the fact of asylum-seekers crossing a border as a “choice”. The majority seem here to be adopting a position rejected by the Court in its Amuur judgment [9] . For those reasons I consider that the Chamber, in the judgment which it delivered on 14 March 2017 in the present case, was right to reach the following conclusion as set out in paragraph 56 of its judgment:

“To hold otherwise [that is to say to conclude that Article 5 was inapplicable] would void the protection afforded by Article 5 of the Convention by compelling the applicants to choose between liberty and the pursuit of a procedure ultimately aimed to shelter them from the risk of exposure to treatment in breach of Article 3 of the Convention.”

The majority’s conclusion would also mean that Article 5 could only be deemed applicable in the event of a finding of a violation of Article 3. Yet that is not necessarily the case as regards either the conditions of detention or the existence of possible risks in the country of destination [10] .

Although it might be said that in the instant case, returning the applicants to Serbia would not have subjected them to any direct risk of death or torture [11] , such a conclusion could only be reached following a sufficiently substantiated individual analysis of the possible danger to the applicants. Furthermore, the Grand Chamber unanimously found a violation, albeit only a procedural one, of Article 3, on the grounds that the Hungarian authorities had decided to return the applicants to Serbia without conducting a prior detailed individual assessment [12] . It chose not to pronounce on the merits of the question whether the applicants would have suffered treatment contrary to Article 3 had they been returned to Serbia. I therefore consider that to conclude that the applicants would have faced no risks is mere speculation [13] . In my view, this no-risk finding as set out in paragraph 223 is conjectural, or indeed contradictory, if we consider paragraph 165 of the judgment. In my view the majority is circumventing the subsidiarity principle in order to reach a conclusion, which should have been a matter for the Hungarian national authorities, on the risks likely to be faced by the applicants in Serbia.

In my opinion, those are the reasons why, in the light of the case-law of the Court, the majority has misinterpreted this subjective criterion [14] .

Secondly , in determining the applicability of Article 5 of the Convention, the majority takes account of the applicable legal regime, the objective pursued, the period of retention of the applicants in the zone and the applicable procedural safeguards.

As regards the applicable legal regime, the Court has reiterated on many occasions that it does not consider itself bound by the domestic courts’ legal conclusions as to the existence of a deprivation of liberty. It conducts its own assessment of the situation (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 71, 15 December 2016, and Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012).

In connection with the purpose of the applicable regime, it is true that the Commission used to refer to this matter in assessing the existence of detention [15] . Nevertheless, the Court abandoned this line of authority many years ago, and the purpose of measures by the authorities depriving applicants of their liberty no longer appears decisive for the Court’s assessment of whether there has in fact been a deprivation of liberty. There is a long-established line of case-law to the effect that the Court takes this aspect into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention (see Saadi , cited above, § 74; Creangă , cited above, § 93; Tabesh , cited above; Osypenko v. Ukraine , no. 4634/04, §§ 51-65, 9 November 2010; Salayev v. Azerbaijan , no. 40900/05, §§ 41-42, 9 November 2010; Iliya Stefanov v. Bulgaria , no. 65755/01, § 71, 22 May 2008; Soare and Others v. Romania , no. 24329/02, § 234, 22 February 2011; Rozhkov v. Russia (no. 2), no. 38898/04, § 74, 31 January 2017, etc.). In Khlaifia , cited above, the Grand Chamber clearly stated the following:

“... the applicability of Article 5 of the Convention cannot be excluded by the fact, relied on by the Government, that the authorities’ aim had been to assist the applicants and ensure their safety (see paragraphs 58-59 above). Even measures intended for protection or taken in the interest of the person concerned may be regarded as a deprivation of liberty.” [16]

On this point, the majority has clearly opted for an interpretation which turns the clock back many years on the interpretation of Article 5.

As regards the length of detention issue, the majority emphasise that the applicants only spent twenty-three days in the Rözske transit zone. However, it should be remembered that in situations similar to that of the applicants, the Court has considered that periods of twenty days (see Amuur , cited above [17] ), fourteen 14 days (see Shamsa v. Poland , nos. 45355/99 and 45357/99, § 47, 27 November 2003), eleven and fifteen days (see Riad and Idiab v. Belgium , nos. 29787/03 and 29810/03, 24 January 2008), seven days (see Saadi , cited above) and nine hours (see Nolan and K v. Russia , no. 2512/04, §§ 93-96, 12 February 2009) constituted periods of detention.

As regards safeguards, I have trouble pinpointing in the judgment any actual analysis of the Article 5 procedural safeguards implemented in the instant case! At no point in the proceedings was the two applicants’ stay in the Rözske transit zone assessed by a national court with a view to determining the necessity of the measure or whether or not the latter had been arbitrary. On that point, I do not consider the judgment very convincing in the light of the very specific criticisms levelled by the Chamber at the domestic proceedings [18] .

Thirdly , the majority refer to the nature and degree of the restrictions actually imposed on or experienced by the applicants.

As regards the nature and degree of the restrictions imposed in the Rözske transit zone, the United Nations Working Group on Arbitrary Detention (UNWGAD), in a statement published after it had been refused access to transit zones in Hungary, pointed out that “there can be no doubt that holding migrants in these ‘transit zones’ constitutes deprivation of liberty in accordance with international law.” [19] I do not think that the majority relied on any factual evidence or expert opinions in order to refute that conclusion, reached by a special group of experts who had heard a range of credible witness statements concerning the lack of safeguards against arbitrary detention in the zone in which the applicants were held [20] .

In paragraph 236 of the judgment the majority choose to draw a distinction between the situation of persons arriving at a country’s land border and that of individuals arriving on an island or at an airport. This distinction drawn by the majority, as compared to previous judgments, from Amuur (cited above) to J.R. and Others v. Greece (no. 22696/16, §§ 83-87, 25 January 2018) and, more recently, Kaak and Others v. Greece (no. 34215/16, §§ 83-90, 3 October 2019), through Khlaifia (cited above), seems to me to be quite artificial. In my view, the majority have adopted an erroneous interpretation of paragraph 48 of the Amuur judgment, which they quote in paragraph 239 of the judgment and which I feel I must reproduce here:

“The mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty, the right to leave any country, including one’s own, being guaranteed, moreover, by Protocol No. 4 to the Convention (P4). Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in.”

My reading of this paragraph leads me to conclude that the mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge is linked not to the practical aspects of the implementation of that possibility but to the question whether another country is prepared to take them in and provide them with protection comparable that which they hoped to enjoy in the country where they sought asylum. This paragraph does not concern the means of transport used, contrary to what paragraphs 240 and 241 of the judgment might suggest, but rather relates to a fundamental aspect of Article 3 in this sphere, namely the absence of any risk in the event of return. The Grand Chamber concludes that the applicants could not have lawfully entered Serbia [21] and that the Hungarian authorities failed duly to assess the real risks which the applicants would have faced had they been returned to Serbia [22] . Yet it accepts that the applicants had a practical possibility of returning to Serbia, to a situation of illegality in which they could have been exposed to risks under Article 3. This reasoning leads me to conclude that the applicability of Article 5 also depends on the means of transport chosen by the asylum ‑ seeker to reach the border [23] !

I consider that the majority’s approach in the present case is contrary to Article 28 (Detention) of Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person [24] , and to Article 8 (Detention) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (revised) [25] . These texts, both of which are applicable in Hungary, provide that Member States cannot place a person in detention on the sole grounds that he or she is an asylum-seeker. The Court of Justice of the European Union (“CJEU”) interpreted the provisions in question in its judgment delivered on 15 March 2017 in the case of Al Chodor and Others (C-528/15). It stated the following:

“... the detention of applicants, constituting a serious interference with those applicants’ right to liberty, is subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness.”

The CJEU reached that conclusion on the basis of Article 6 of the Charter of Fundamental Rights of the European Union. I find it difficult, nay impossible, to reach a different conclusion on the basis of Article 5 of the Convention [26] . In December 2015 the European Commission brought infringement proceedings before the CJEU against Hungary relating to its asylum legislation [27] , and the Commission has on several occasions decided to renew the proceedings, also extending it to the issue of the detention of asylum-seekers in the transit zones [28] .

That having been said, I support the position that States have “the undeniable sovereign right to control aliens’ entry into and residence in their territory” (see Abdulaziz, Cabales and Balkandali v. the United Kingdom , 28 May 1985, § 59, Series A no. 94; Chahal v. the United Kingdom , 15 November 1996, § 73, Reports of Judgments and Decisions 1996 V; Saadi , cited above, § 64; Khlaifia , cited above, § 89; and F.G. v. Sweden [GC], no. 43611/11, § 111, ECHR 2016). That right may also induce them to detain persons who attempt unlawfully to cross the border, who attempt to escape or who are dangerous, and to ensure their return, provided that they would not be exposed to any risks. That is the ultimate purpose of Article 5 § 1 (f). However, to rule out the applicability of Article 5 in such a situation as that of the present applicants would have the effect of rendering Article 5 § 1 (f) nugatory and impeding the member States’ control of events at their land borders and, ultimately, weakening their ability to deal with issues concerning the arbitrariness, necessity and proportionality of detention at national borders.

Those are the reasons why I voted in favour of the applicability of Article 5 in the instant case. Having thus found the provision applicable, I concur with the reasoning and conclusions of the Chamber in its judgment of 17 March 2017, to wit that there has been a violation of Article 5 § 1 in the present case [29] .

[1] . The United Nations Convention Relating to the Status of Refugees, adopted in 1951 in Geneva (“the Geneva Convention”).

[2] . Serbia has been a candidate country since March 2012 and the Republic of North Macedonia since December 2005. The exception concerning Turkey, still in force at the material time, was abrogated as of 1 st April 2016.

[3] . As regards the connection between the applicant and the third country and whether it is therefore reasonable for the applicant to go to that country, the European Commission has stated that factors such as whether the applicant has transited through the safe third country in question, or whether the third country is geographically close to the country of origin of the applicant, can be taken into account (Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration, 10 February 2016, COM(2016) 85 final, p. 18). However, in the UNHCR’s view, transit alone is not a ‘sufficient connection’ within the meaning of Article 38(2) of Directive 2013/32/EU, unless there is a formal agreement for the allocation of responsibility for determining refugee status between countries with the comparable asylum systems and standards (UNHCR, Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU ‑ Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept, 23 March 2016, p. 6: “Transit is often the result of fortuitous circumstances and does not necessarily imply the existence of any meaningful link or connection.”)

[4] . Recommendation No. R (97) 22 of the Committee of Ministers to Member States containing Guidelines on the Application of the Safe Third Country Concept, 25 November 1997.

[5] . Committee of Ministers, Guidelines on human rights protection in the context of accelerated asylum procedures, 1 July 2009, section VI. See also the Explanatory Memorandum, 28 May 2009, CM(2009)51 add3.

[6] . The Court observes that these statements also mention, however, that the Hungarian officers had told the asylum-seekers that they should queue again for entry, which the persons in question did not try.

[7] . See judgment, § 212.

[8] . See Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96 and 2 others, §§ 13 and 47 in fine , ECHR 2001 ‑ II.

[9] . See Amuur v. France , no. 19776/92, § 46-49, 25 June 1996.

[10] . See, for example, Tabesh v. Greece , no. 8256/07, 26 November 2009, and Louled Massoud v. Malta , no. 24340/08, 27 July 2010. See also Harris, O’Boyle and Warbrick, Law on the European Convention on Human Rights , Second Edition, p. 130.

[11] . See judgment, § 223.

[12] . Ibid., §§ 163 and 164.

[13] . Ibid. , § 165.

[14] . See, generally, Stork v. Germany , no. 61603/00, § 74, ECHR 2005-V, Stanev v. Bulgaria , [GC], no. 36760/06, § 117, ECHR 2012, and more specifically, Saadi v. the United Kingdom , [GC], no. 13229/03, § 74, ECHR 2008.

[15] . See, for example, X. v. Germany , no. 8819/79 , decision of 19 March 1981, (DR) vol. 24, p. 158; Guenat v. Switzerland (dec.), no. 24722/94 , decision of 10 April 1995; and E.G. v. Austria , no. 22715/93 , decision of 15 May 1996.

[16] . See paragraph 71, second sentence.

[17] . See Amuur, cited above, § 44.

[18] . See Chamber judgment, §§ 66 to 68.

[19] . See “UN human rights experts suspend Hungary visit after access denied”, UNWGAD, 15 November 2018, available at https://bit.ly/2B7X5Pu .

[20] . Ibid.

[21] . See judgment, § 237.

[22] . Ibid., § 164.

[23] . I am convinced that if it had been a question of transport, the Member States would, as they have in fact done on several occasions, have organised the return of the rejected asylum-seekers to safe third countries. The problem is finding such countries, because it is easy to find an aircraft or a vessel to transport such persons.

[24] . This Article provides:

“1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.

2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.

3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out”. OJEU 2013, L 180, p. 31.

[25] . Quoted in paragraph 58 of the judgment.

[26] . See also El Dridi , C-61/11 PPU, 28 April 2011, and J.N. against Staatssecretaris van Justitie en Veiligheid , C-601/15 PPU, 15 February 2016.

[27] . IP/15/6228.

[28] . IP/17/5023, IP/18/4522, and as regards the latest decision (25 July 2019), IP/19/4260.

[29] . See Chamber judgment, §§ 58 to 69.