Although detention represents, and has historically represented, an instrument which has been frequently used by the authorities in the management of migratory flows, the issue of the deprivation of freedom of foreign citizens in transit zones has long remained on the sidelines of public debate.
On 21 November 2019, the Grand Chamber of the European Court of Human Rights issued a significant ruling concerning the stay of asylum seekers in the Hungarian transit zone for the purpose of assessing the admissibility of their application for protection, finding a violation of Article 3 of the ECHR due to the risk of push-back of two asylum seekers in Serbia. However, the Court found no breach of Article 3 with regard to the conditions in the transit zone where the applicants were detained for 23 days. Furthermore, the Court rejected the application of Article 5.
An important aspect of this judgment concerns the Court’s failure to consider this stay as a deprivation of liberty, the possibility of leaving the transit area located on the land border with Serbia was considered to be concrete and the applicants’ stay there, therefore, voluntary. In assessing this, the Court makes a distinction with respect to cases of foreign nationals detained in airport transit zones, referring to its established case law on the matter since the Amuur v. France case.
We propose below a summary of the findings of the ECtHR, a highly critical decision which represents a clear step backwards in the Court’s approach to this issue. In fact, it seems useful to deepen the jurisprudence in order to structure law enforcement actions also through judicial channels, both before internal and international courts, of the violations observed from time to time in the use of transit zones as an informal tool used by the authorities for the selection of foreign citizens entering the territory.