The European Court of Human Rights continues undermining its own prestige and authority – this time with a controversial judgment condemning Hungary for having illegally “detained” two asylum seekers from Bangladesh in the transit zone next to the country’s border to neighbouring Serbia. The judgement is not yet final, as Hungary can still ask for the referral of the case to a Grand Chamber. The Hungarian government, which has criticised the Decision in sharp words, is expected to ask for such referral, but very possibly will not comply with the Decision anyway, even if it should be confirmed.
The Hungarian Government holds the view that no “detention” or “deprivation of liberty” has taken place. The applicants in fact were prevented from illegally continuing their travel into Hungarian territory; however, they were at all times free to return to Serbia, from where they had come. The ECtHR, by contrast, holds that the fact that “the applicants did not choose to stay in the transit zone” is sufficient to speak of a “deprivation of liberty”.
This is comparable to the difference between (a) not letting someone into your house, and (b) locking someone into your house.
In lieu of an argument, the Court says that:
“The mere fact that it was possible for them to leave voluntarily returning to Serbia which never consented to their readmission cannot rule out an infringement of the right to liberty…”
Not ruling out something is not the same as adducing proof for something. It seems that the Court is making the task rather easy for itself.