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In its February Newsletter, AEDH had echoed the concerns of Hungarian civil society with respect to the government’s proposal to detain all asylum seekers. On 7 March, Hungarian members of parliament overwhelmingly approved this project (with 138 votes for, 6 against and 22 abstentions). The implementation of this law will strengthen the existing legislative arsenal in Hungary as well as the measures adopted to “secure” its border with Serbia, in order to oppose the arrival of migrants and asylum seekers, and resulting in the detention (for up to three years) for irregular border crossings.
In principle, this text should only be implemented in cases of a “crisis situation due to mass immigration”, as the one declared in September 2015. However, not only is the latter intended to last until September 2017, but the new legislation passed by the Hungarian Parliament lowers the threshold for invoking a crisis situation.
Detention without judicial review or remedy offered as a greeting
Henceforth, the implementation of this new legislation should lead to:
– Systematic detention in the transit zones of all asylum seekers who arrive at the country’s borders. An obvious attempt to legally justify a practice suspended in 2013 by the Hungarian Prime Minister Viktor Orbàn under pressure from the European Union, as well as UNHCR, and which recently resulted in a strong conviction from the European Court of Human Rights – ECHR (Ilias and Ahmed v. Hungary – 14 March 2017)
– Limit the examination of applications for international protection only to those persons present in the transit zones, on the understanding that transit zones include not only container camps currently implemented at the country’s borders, but also any zone located inside the country and qualified as such by the Hungarian authorities
– The continued detention in these zones during the entire examination procedure and in conditions described as appalling in the different reports published by NGOs and international organisations, that also indicate daily police brutality.
These measures will apply to all asylum seekers, including those who are already in the country, including unaccompanied minors above the age of 14. This age limit does not apply to minors accompanied by their parents or an adult. Furthermore, the law does not provide for an assessment of each applicant’s individual situation and thus, their potential vulnerability (pregnant women, aged, sick…) would not be considered as a criterion for exemption from detention.
Finally, since the 28-days maximum time-limit for the duration of detention has been deleted, it will de facto become indefinite. Furthermore, the new legislation makes no provision for judicial review or legal remedy, which will lead to arbitrary detention and cruel, degrading and inhumane treatment – the European Committee for the prevention of torture’s hobbyhorse…
A botched asylum procedure for a widely rejected protection
As for the asylum procedure, it was already far from meeting the standards laid down in the European directives, as evidenced by the observations made by Nils Muižnieks, the Council of Europe Human Rights Commissioner during his visit to Hungary in November 2015 : “an accelerated asylum procedure lacking essential safeguards and used in practice for the great majority of applicants”, even “extremely accelerated asylum procedure (referred to as border procedure) [where] asylum applications are hardly ever examined on the merits”. (…) “Some asylum-seekers have seen their claim processed in less than a day and sent back to Serbia directly from Röszke transit zone”.
The processing of applications will become even faster since asylum seekers whose applications are rejected or declared inadmissible will have to lodge an appeal within three days. This deadline, which is much too short in “normal” circumstances, constitutes a serious denial of the right to appeal, given both conditions under which individuals will have to prepare their files and the difficulties to benefit from legal aid. As Marta Pardavi, co-president of the Hungarian Helsinki Committee points out: “a refugee will only have three days to lodge an appeal; how is he supposed to succeed while he is in a container camp, does not speak Hungarian and is not sure he will receive any legal aid ?”.
It may be tempting to justify this promptness by the fact that Hungary is facing an emergency situation due to a very strong migratory pressure. However, that is no longer true – and for good reason. The number of asylum seekers dramatically decreased between 2015 and 2016: 28 215 against 174 435, according to Eurostat latest figures. The recognition rate for refugees also declined: from 15% in 2005, it fell to 8.4% in 2016.
In fact, if there was an emergency, the Hungarian authorities would probably not have decided to limit the entry of migrants in transit zones to only ten persons per day, but more importantly, to register only 5 applications daily as of January 2017… In reality, the objective is to reduce access to international protection, as they do not have the power to suppress it completely…
Deportations and refoulement
The other aspect of the new legislation aims to support this new Hungarian strategy.
As the erection of so-called “smart” barriers based on modern technologies (i.e. electrified wire netting equipped with heat and movement sensors, infrared cameras, loudspeakers broadcasting threatening warnings in multiple languages) fails to stop all arrivals, the police is authorized to “escort” beyond the fence at the Southern border, any person arrested in an irregular situation over the whole territory of Hungary. To date, this measure was only applicable to migrants found within 8 kilometres from the border.
These arrests are not accompanied with the guarantee that asylum applications will be examined, nor do they provide for any judicial review or possibility of appeal.
Given that asylum seekers will be summarily deported – because it is important to call these illegal practices by their real name – to Serbia, which is known for its failure to absorb migrants at its border, this measure is tantamount to sending asylum seekers back (refoulement) to a country that does not offer the necessary guarantees against serious rights violations. In that sense, it contravenes the Geneva Convention as well as the different European standards in that area. However, the Hungarian government does not seem to be concerned by this issue… just as it does not seem to be concerned by the fact that this measure will plunge Serbia and migrants into dismay.
In 2012, supporting the call of several organisations of Hungarian civil society, AEDH had expressed concerns about the entry into force of a new Constitution (called “Fundamental Law”), that seriously infringed democracy and rule of law in Hungary, and was in flagrant contradiction with the fundamental values of the European Union.
In 2013, our association echoed the concerns expressed by the Hungarian Helsinki Committee as it denounced a hasty and extreme interpretation by Hungarian law of the possibilities to detain asylum seekers under the common European system in preparation.
Since 2015, and the exceptional influx of migrants seeking international protection in the EU, Hungary has taken the lead of a “rejection front” with respect to the solidarity expected from Member States and has not accepted to “relocate” any of the refugees that arrived in Greece or Italy (it is true that it also rejected the “relocation” of refugees that have already reached its country…).
Thus, the Hungarian government and its Prime Minister at the forefront are trying to make us believe that their aim is, above all, to protect the Schengen borders. However, one may ask whether their real purpose is not rather to “dismantle European law” in order to reinforce and legitimise the climate of xenophobia and the hunt of foreigners, encouraged by the swearing-in official ceremonies of “border-hunters”.
In this context, AEDH may only endorse the terms of the Resolution adopted by the European Parliament on 10 June 2015 and, notably, “urge the Commission to activate the first stage of the EU framework to strengthen the rule of law, and therefore to initiate immediately an in-depth monitoring process concerning the situation of democracy, the rule of law and fundamental rights in Hungary”.
AEDH immediately calls upon the Member States to decide, without delay, on the suspension of transfers to Hungary under the Dublin Regulation. Returning asylum seekers to a country where ‘refoulement’ practices are widespread, detention of persons seeking international protection systematic, the examination of asylum procedures botched, recognition rate the lowest in the whole EU, and appeal procedures dummy simply cannot be envisaged. This would be tantamount to knowingly put in danger the asylum seekers concerned.
Some might say that Hungary will then have won the battle to protect itself from undesirable foreigners… But the Member States would do themselves credit by losing this battle until Hungary has not given evidence that it is worthy of staying in the European Union and sharing its core values.
For further information:
– Council of Europe: “Hungary’s response to refugee challenge falls short on human rights”; Report on the visit of Nils Muižnieks the Council of Europe Human Rights Commissioner, in Hungary, in November 2015 [ENG] [FR]
– CPT: Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21 to 27 October 2015 ; Strasbourg, 3 November 2016 (in English)
– Amnesty International, Annual Report, Hungary 2016/2017
– ECHR: Ilias and Ahmed v. Hungary; 14 March 2017. See also the Court’s press release (in French and English)
 See the report of the Hungarian Helsinki Committee on reforms that took effect on 1 July 2013 and the main amendments introduced by legislative reforms of July and September 2015 : Boldizsár Nagy (Central European University), « Parallel realities : refugees seeking asylum in Europe and Hungary’s reaction », 4 November 2015
 Amnesty International, “Hungary : container camp bill is flagrant violation of international law”, 7 March 2017
 See for example the fifth ECRI Report on Hungary, Council of Europe, 19 March 2015 and Amnesty International : « Hongrie : des demandeurs d’asile dans des conteneurs » (only available in French), 9 March 2017
 Council of Europe, “Hungary’s response to refugee challenge falls short on human rights”, 27 November 2015 and the CPT report published on 3 November 2016
 Statements reported by Florence La Bruyère, Libération’s correspondent in Hungary. See « La Hongrie va remettre tous les migrants en prison », Libération, 7 March 2017
 Eurostat, “1.2 million first time asylum seekers registered in 2016”, News release – 16 March 2017
 See Eurostat, “First instance decisions on asylum applications by type of decision – annual aggregated data”, last update 15.03.2017
 Florence La Bruyère, op. cit.
 « Hungarian police can send illegal immigrants back across border », About Hungary, 13 June 2016
 Helsinki Hungarian Committee as quoted by Florence La Bruyère, op. cit.