According to the ruling of the Court of Justice of the European Union dated 23 April 2020, Hungary is illegally detaining asylum seekers in the transit zone of Röszke. As an antecedent to the ruling, the Szeged Administrative and Labour Court turned to the EU body based in Luxembourg in the case of the Iranian and Afghan asylum seekers filing a lawsuit against the Hungarian state. The Advocate General, noting the Opinion, asked the Court in the proceedings to “provide a higher level of protection under EU law for asylum seekers accommodated in this transit zone than is guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms”.

The four men’s asylum applications were rejected by the Hungarian authorities between the end of 2018 and the beginning of 2019, since in their judgment, they arrived in Hungary via a “safe transit country”. Under Hungarian law, these applications shall be rejected without a substantive examination, therefore the Hungarian authorities subsequently contacted the competent Serbian authorities to readmit the persons concerned. Serbia refused to do so, and the Hungarian authorities ordered their deportation to Iran and Afghanistan, respectively. Currently they are still situated in the transit zone.

Regarding the assessment of the concept of a “safe transit country”, in another case, the European Court of Justice ruled on 19 March that it was contrary to EU law, because, according to its reasoning, it is unknown to the relevant Community legislation, this term is not used. Here, the Court found that, by referring to this concept, Hungary cannot disregard the examination of asylum applications.

Hungarian law recognizes and uses a number of legal institutions (related terminus technicus) that are not known in EU law (such a concept is lineal inheritance, for example). Law, legislation, monitors social change and reflects thereon from time to time with new concepts and legal instruments. Such is, for example, the concept of safe transit countries, with which the Hungarian legislator wanted to clarify the contradictions arising during the asylum procedure, wishing to create a clear regulation for authorities applying the law.

The European Court of Justice, and the institutions of the European Union in general, should abandon the arrogant and coercive approach that, in the case of countries outside the European Union, cannot recognise the humanitarian or other development and the suitability of the given state, or can do so only with difficulty. This legal approach, which can also be seen in the law application of the European Court of Justice, may originate from the fact that Western countries with a dominant influence in leading EU institutions (such as the Court of Justice) are less aware of the key role of the Balkans and Southeast Europe, judging the eastern Member States of the Community and some of their neighbours by the double standard of liberal human rights practice.

The transit zone is not a detention area, but provides a place and opportunity to enforce certain rights. In a transit zone, in times of crisis caused by mass immigration, aliens arriving there can duly initiate the asylum procedure and use the services provided there until the procedure is finished. The asylum seekers involved in the lawsuit also had the opportunity to leave the transit zone freely towards Serbia, of their own free will. Accordingly, no support can be given to one of the main arguments of the European Court of Justice that the asylum seekers accommodated in the transit zone are physically cut off from the outside world and forced to live in isolation.

The position of the Advocate General of the European Court of Justice contradicts the ruling of the Grand Chamber of the European Court of Human Rights of 21 November 2019, in the case of Ilias and Ahmed v. Hungary, in which the body based in Strasbourg found that being in a designated place in the transit zone does not constitute detention, it merely intends to guarantee the smooth conduct of the proceedings and the safety of Hungarian citizens at the same time.

While, according to the judgment of the Grand Chamber of the ECHR last November, staying in a transit zone does not constitute false imprisonment, the conditions of being accommodated here do not conflict with the prohibition of inhuman treatment, the Advocate General of the Court of Justice has ruled that it is illegal to detain migrants in the transit zone for more than 28 days.

Although the Advocate General is forced to admit that the concept of a “safe transit country” cannot be considered equivalent to the concept of a “safe third country” included in the Asylum Procedure Directive of the 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, still, according to him, it is similar to it. It is worth noting here that a correct, precise interpretation can only be based on the linguistic term of the legal norm and its application to the specific case. The Advocate General taking a stand on the specific case should clarify the source of analogy regarding his arguments on the basis of unchallengeable professional argumentation, and being aware thereof, the existence of the similarity between the concept (definition) to be decided and its strength.

The person at the European Court of Justice formulating the proposal has not done so and exceeded the institutional freedom of interpretation provided by the EU legal system. His decision is therefore incompatible with the Charter of Fundamental Rights of the European Union, because the rights enshrined therein and guaranteed in accordance with the European Convention on Human Rights (ECHR) should be interpreted in such a way that the content and scope of those rights are the same as the content and scope of the rights guaranteed by the aforesaid Convention (ECHR).