Detention in the Hungarian Transit Zones: a Case of Higher Fundamental Rights Protection by EU Law vis-à-vis the ECHR

• Autores: Victor David
• Localización: European law review, ISSN 0307-5400, Nº 3, 2022, págs. 393-409
• Idioma: inglés
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• Resumen

  • In recent years, the concept of detention has been at the centre of important judicial discussions at the ECtHR and the ECJ. The two European courts have issued several landmark judgments on the threshold at which a situation constitutes a detention in the context of the Hungarian transit zones. A salient feature of the judicial saga of the Hungarian transit zones is that EU law seems to offer a higher level of fundamental rights protection than the ECHR. This article proposes to study the judicial saga as a case study to explore the phenomenon of higher protection under EU law. It is submitted that EU law offers a higher level of protection of the right to liberty and security in this judicial saga. It is argued that the phenomenon of higher protection under EU law is not in itself problematic, since both EU law and the ECHR are equipped to deal with such situations and, on the contrary, this may lead to a virtuous cycle between the two legal systems. However, it is suggested that the two European courts should enter into dialogue in such situations with a view to facilitating the role of domestic courts. This seems all the more important as such situations may become more frequent in view of the growing role of the EU as a fundamental rights standard-setter.