Article 5(1)

The applicants G.A. and K.B. they argue that the Hungarian authorities violate Article 5 (1)
because, in fact, the confinement of the applicants in the Röszke transit zone constitutes a
deprivation of liberty.
The applicants were placed in a fenced area and monitored for 25 days. In a similar case, the
Court in the 2019 judgment of Ilias and Ahmed v. Hungary felt that such "confinement" is
detrimental to the physical freedom contemplated by Article 5 (1) of the Convention.
In another similar case to that of the applicants, in the past, the Court in the case of Riad
and Idiab v. Belgium in 2008 had declared that the permanence of asylum seekers in the
transit areas is equivalent, in fact, to a deprivation of liberty and the Court concluded by
affirming that the detention of a person constitutes the greatest damage to individual
freedom.
For determine if someone has been deprived of his freedom as contemplated to Article 5 (1)
of the Convention, it is necessary to take into account the specific situation and a whole
series of factors such as: the duration, the space of circulation, the degree of intensity.
As for the duration, the applicants spent 25 days in the Rözske transit area. However, it
should be remembered that in similar situation to that of the applicants, the Court held that
periods of twenty days, such as the case see Amuur v. France, eleven and fifteen days in
the thing of Riad and Idiab c. Belgium, and nine hours as in the case of Nolan and K v.
Russia have been equated with forms of detention.
As for the circulation space, the freedom of movement of the Rözske area was limited to a
very significant degree and similar to some types of detention structures. Therefore, the area
was surrounded by a fence and was supervised.
As for the degree of intensity of the restrictions, there is no doubt that detaining migrants in
these transit areas constitutes a deprivation of liberty in accordance with international law.
Thesis confirmed by the United Nations Working Group on Arbitrary Detention.
As for the reasons for detention, it is important to recall Article 28 of Regulation (EU) n.
604 \ 2013 of the European Parliament which establishes the criteria and mechanisms for
determining the Member State responsible for examining an application for international
protection lodged in a Member State by a third-country national and Article 8 of Directive
2013 \ 33 EU that governing the rules for the reception of applicants for international
protection.
These texts, both applicable in Hungary, stipulate that Member States cannot detain a person
for the sole reason that they are an asylum seeker.
In a similar case to that of the applicants, for example the Amuur v. France, the Court held
that the Contracting States have "the undeniable sovereign right to control the entry and
residence of foreigners in their territory."
The Court, in this case, had held that this right must be exercised in accordance with the
provisions of the Convention, including Article 5 (1) that in invoking the right to liberty,
Article 5 paragraph 1 contemplates the "liberty of the person" and its purpose is to ensure
and guarantee that nobody is arbitrarily deprived of this freedom. This because, the article 5
(1) of the Convention has not only the purpose to ensure and guarantee the freedom of the
natural person but it is also to protect the individual against arbitrariness.
Therefore, the applicants complain that the Hungarian authority had violated the provisions
of Directive 2013/32 (Directive on asylum procedures) p. 39 that literally say: (39) "When
determining whether uncertainty prevails in an applicant's country of origin, Member States
should ensure that they obtain accurate and up-to-date information from relevant sources
such as EASO, UNHCR, the Council of Europe and other organizations.”
The Hungarian authorities have violated this directive by failing to examine individually the
question if Serbia could be considered a safe third country for the peculiar situation of the
applicants. The decision taken by the Hungarian authority is superficial and devoid of
individualistic evaluation. Claiming that repatriation to Serbia would not have subjected
them to any direct risk of death or torture was said superficially. This conclusion could only
be reached following a detailed individual analysis, but this analysis was not made by the
Hungarian authorities. Therefore, the applicants stated that they would also have risked
chain - refoulement” which constitutes a violation of Article 3 of the Convention.
The Court has already found Hungary guilty of this violation of the Convention in many
similar cases to that of the applicants, such as the case of Amuur v. France, where the
Court decided unanimously that there had been a violation of Article 5 paragraph 1 of the
Convention stating that: “detaining the applicants in the transit area of the Paris orli
airport is in practice equivalent, in view of the restrictions suffered, a deprivation of
liberty”and Article 5 (1) was deemed applicable to the case. Then the Court already stated
in 1996 that holding refugees in a transit area constitutes a deprivation of liberty, having
been placed in a fenced and guarded area for fa certain period of time. Finally, the right to
liberty is a fundamental right and considering “the confinement" as an in facto limitation of
the individual's freedom, the decision should remain the same. And make Article 5 (1)
inapplicable would cancel the protection offered by that article.