The Court found in particular that the Hungarian authorities had failed in their duty under Article 3 to assess the risks of the applicants not having proper access to asylum proceedings in Serbia or being subjected to chain-refoulement, which could have seen them being sent to Greece, where conditions in refugee camps had already been found to be in violation of Article 3.
In a development of its case-law, it held that Article 5 was not applicable to the applicants’ case as there had been no de facto deprivation of liberty in the transit zone. Among other things, the Court found that the applicants had entered the transit zone of their own initiative and it had been
possible in practice for them to return to Serbia, where they had not faced any danger to their life or health.
Their fears of a lack of access to Serbia’s asylum system or of refoulement to Greece, as expressed under Article 3, had not been enough to make their stay in the transit zone involuntary.
This case was referred to the Grand Chamber, see UNHCR's submission of 8 January 2018 and the final decision of 21 November 2019, including the partly dissenting opinion of Judge Bianku, joined by Judge Vučinić.
