Fragen des EGMR hinsichtlich der Inhaftierung Minderjähriger in den Transitzonen

The application concerns the possible transfer of the five minor applicants between the ages of 14 and 18 to the guarded transit zone situated on the border between Hungary and Serbia. By force of Government Decree no. 36/2017 (6 March) the Hungarian Government announced a “state of emergency due to mass migration” until 7 September 2017. Several sections of Act no. LXXX of 2007 on Asylum have been modified. The amended law entered into force on 28 March 2017. According to section 1 of the amending act during the “state of emergency due to mass migration”, unaccompanied minors between the ages of 14 and 18 are to be treated as adult migrants and thus they will be transferred to guarded transit zones. Unaccompanied minors under the age of 14 will be allowed to stay in the child protection system outside these zones. According to section 7 of the amending act, during the “state of emergency due to mass migration”, all asylum-seekers will be placed in the transit zone until the asylum proceedings are terminated or until they are transferred to another EU member state under the Dublin Regulation. They are allowed to leave the transit zone only in the direction of Serbia. Furthermore, based on section 9 of the same act, the new provisions shall be applied retrospectively, even with regard to asylum-seekers whose cases were already pending at the entry into force of the new regulation. As a consequence, the transfer of the applicants to the transit zone is likely to take place.
They claim that given their vulnerable status (minors), the prevailing conditions and the risk of chain-refoulement (to Serbia and then the former Yugoslav Republic of Macedonia, eventually driving them to Greece), their confinement in the transit zone for an unknown period of time would amount to inhuman treatment in breach of Article 3 read alone and in conjunction with Article 13 of the Convention. Furthermore, their possible deprivation of liberty in the transit zone would be unlawful and could not be remedied by appropriate judicial review, in breach of Article 5 §§ 1 and 4 of the Convention. Based on the above, on 24 March 2017 the applicants submitted a request for an interim measure under Rule 39 of the Rules of Court. On 27 March 2017 their request was granted.


1. Would the detention of the applicants, minors, in particular the material conditions at the transit facility in its present state amount to inhuman treatment (see, mutatis mutandis, Popov v. France, nos. 39472/07 and 39474/07, § 102, 19 January 2012)?

2. Before deciding on their expulsion to Serbia, would the authorities consider the applicants’ claim that they would be exposed to a risk of chain-refoulement amounting to inhuman or degrading treatment?

3. Would the applicants have at their disposal an effective domestic remedy for their Convention complaints under Article 3 (see Question 1 above), as required by Article 13 of the Convention, to complain about the material conditions of their detention in the transit zone?

4. Would the applicants be deprived of their liberty in breach of Article 5 § 1 of the Convention in the transit zone (see, mutatis mutandis, Amuur v. France, 25 June 1996, § 38-49, Reports of Judgments and Decisions 1996‑III)?

5. Would the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, if any (see Question 4 above), as required by Article 5 § 4 of the Convention?