“Hungary is breaking all the rules for asylum seekers transiting through Serbia, summarily dismissing claims and sending them back across the border,” said Lydia Gall, Balkans and Eastern Europe researcher at Human Rights Watch. “People who cross into Hungary without permission, including women and children, have been viciously beaten and forced back across the border.”
EU member states should refrain from returning any asylum seekers to Hungary until it ensures meaningful access to asylum, including adequate time for a substantive in-country appeal and should halt violent and other summary returns of asylum seekers to Serbia, Human Rights Watch said.
Aus dem ECRE-Newsletter vom 8.7.2016:
On 5 July 2016, the European Court of Human Rights ruled against Hungary, in the case of O.M. v Hungary. O.M., an Iranian national represented by a Hungarian Helsinki Committee lawyer, had fled Iran because of his homosexuality and was detained in Hungary for nearly two months before being recognised as a refugee. The Court unanimously ruled that the asylum seeker’s detention was arbitrary and unjustified, in violation of Article 5 of the European Convention on Human Rights, guaranteeing the right to liberty and security. In particular, the Court found that the Hungarian authorities had failed to take into account the applicant’s vulnerability in the detention facility based on his sexual orientation.
- Termination of monthly cash allowance of free use for asylum-seekers
- Termination of school-enrolment benefit previously provided to child-asylum-seekers
- Terminating theintegration support scheme for recognised refugees and beneficiaries of subsidiary protection introduced in 2013, without replacing it with any alternative measure
- Irregular migrants (regardless of whether or notthey claim asylum) who are arrested within 8 km (5 miles)of eitherthe Serbian-Hungarian or the Croatian-Hungarian borderwill be “escorted” by the police to the external side of theborder fence, without assessing their protection needs or even registering them
Though a number of EU Member States intend to send migrants back to Hungary, no one can be sent back here. People must be sent back to Greece, János Lázár, the Minister heading the Prime Minister’s Office said at the press conference Governmentinfo 51 which he held jointly with Government Spokesperson Zoltán Kovács. The Minister heading the Prime Minister’s Office stated at his press conference held on Thursday: a variety of Member States intend to send some 52,000 people back to Hungary, most of them from Germany. Hungary, however, informed all of its partners that these people arrived in Hungary via Greece, and even if they were not registered there, it does not mean that they should be sent back to Hungary, he said […].
The UNHCR criticised Hungary for doing this “despite the fact that no other EU member state applies a presumption of safety to those countries and that UNHCR has recommended that asylum-seekers should not be returned to them.” Ms Pardavi said Hungarian officials were now pushing for asylum seekers to be returned to Greece, which is already struggling to cope with 50,000 migrants stuck on its territory.
In UNHCR’s view, legislation and related Decrees adopted by Hungary in July and September 2015, and progressively implemented between July 2015 and 31 March 2016, have had the combined effect of limiting and deterring access to asylum in the country. These include, most notably, the following.
(a) the erection of a fence along Hungary’s borders with Serbia and Croatia, accompanied by the introduction of a procedure in which individuals arriving at the border who wish to submit an asylum application in Hungary must do so in special “transit zones” in which the asylum procedure and reception conditions are not in accordance with European Union (EU) and international standards, in particular concerning procedural safeguards, judicial review and freedom of movement. (See Section D below). In addition, the government plans to erect a fence along the Romanian-Hungarian border beginning at the Serbian-Hungarian-Romanian triple border.
(b) the application of the ‘safe third country’ concept to countries on the principal route followed by asylum-seekers to Hungary – namely Greece, the former Yugoslav Republic of Macedonia and Serbia – without adequate procedural safeguards, and despite the fact that no other EU Member State applies a presumption of safety to those countries 6 and that UNHCR.
(c) the criminalization of irregular entry into Hungary through the border fence, punishable by actual or suspended terms of imprisonment of up to ten years – and/or the imposition of an expulsion border. Prison sentences, at variance with the EU Return Directive, are imposed following fast-tracked trials of questionable fairness, and are not suspended in the event that the concerned individual submits an asylum application. The proper consideration of a defence under Article 31 of the 1951 Convention that the individual had come directly from a territory where his or life or freedom was threatened in the sense of Article 1 of that Convention is thus prevented.
There has also been a reduction of permanent open reception capacity for asylum-seekers through the closure of the centre in Debrecen, which had been the largest open asylum reception centre in the country, at the very time when substantially increased reception capacity for asylum-seekers is needed and the opening of an asylum detention centre in Kiskunhalas. These measures and development should also be considered in the context of the wider use of detention in generally inadequate conditions based on previous laws and practices adopted prior to the period covered by this paper.
In conclusion, UNHCR considers these significant aspects of Hungarian law and practice raise serious concerns as regards compatibility with international and European law, and may be at variance with the country’s international and European obligations.
This fact sheet is devoted to jurisprudence preventing transfers under Regulation 604/2013 (Dublin III Regulation) to Hungary. Its scope is limited to case law from European Union Member States supported by policy and non-governmental material to illustrate the grounds on which the judiciary are suspending transfers to Hungary. In light of the substantial amount of case law on the topic, the note in no way purports to be a fully comprehensive review of Member State practice, nonetheless the jurisprudence included serves as a unique tool for practitioners to consult and use in their own respective litigation. It is to be seen against the backdrop of the Commission’s infringement proceedings against Hungary and the new systematic monitoring process outlined in the European Agenda on Migration, as well as several cases pending before the European Court of Human Rights and an urgent preliminary reference to the Court of Justice of the European Union lodged by Debrecen Administrative and Labour Court in the context of asylum law. The note therefore provides a further layer of examination and analysis, one which is jurisprudential in nature and which should be borne in mind when evaluating the adherence of Hungary to European and
international legal obligations.
Firstly, regarding the asylum procedures, the Commission is concerned that there is no possibility to refer to new facts and circumstances in the context of appeals and that Hungary is not automatically suspending decisions in case of appeals – effectively forcing applicants to leave their territory before the time limit for lodging an appeal expires, or before an appeal has been heard. The recast Asylum Procedures Directive establishes common procedures for granting and withdrawing international protection and sets clear rules on how to apply for asylum. It applies to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States.
Secondly, regarding rights to translation and interpretation, the Commission is concerned the Hungarian law on fast-tracked criminal proceedings for irregular border crossings does not respect provisions of the Directive on the right to interpretation and translation in criminal proceedings, which ensures that every suspect or accused person who does not understand the language of the proceedings is provided with a written translation of all essential documents, including any judgment.
Thirdly, on the fundamental right to an effective remedy and to a fair trial under Article 47 of the Charter of Fundamental Rights of the EU, there are concerns as to the fact that under the new Hungarian law dealing with the judicial review of decisions rejecting an asylum application a personal hearing of the applicants is optional. Judicial decisions taken by court secretaries (a sub-judicial level) lacking judicial independence also seem to be in breach of the Asylum Procedures Directive and Article 47 of the Charter.
Human Rights Watch encountered several asylum seekers who said they had been returned to Hungary from Austria, Germany, and Slovakia under the Dublin III Regulation, which allows an EU country to return most asylum seekers to the first EU country to which they arrived. This is despite the lack of meaningful access to asylum under Hungary’s abusive border regime and its routine detention of asylum seekers, including vulnerable people, in poor conditions.
Hungary is detaining vulnerable asylum seekers and migrants under its new border regime for weeks at a time, sometimes in poor conditions, Human Rights Watch said today.
Pregnant women, accompanied and unaccompanied children, and people with disabilities were among those detained for long periods, with women and families with young children in some cases sharing facilities with unrelated men.
Under the new border regime, asylum claims are determined through accelerated procedures, and most are rejected. Rejected asylum seekers and people convicted by Hungarian courts of irregular entry are held in immigration detention indefinitely, pending removal mainly to Serbia, though it has refused in most cases to accept such returns.
Although all three directors claimed they were holding no unaccompanied children, nine unaccompanied young people interviewed told Human Rights Watch that they were under 18 and said they had had either no age assessment or a cursory one.
Detainees in both sections of the Nyirbator detention center said the facilities were infested with bedbugs, and Human Rights Watch researchers observed rashes and bites on detainees in both parts of the facility. Staff said that eradicating the problem would be too costly.
Der „Dutch Council of State“ (das höchste niederländische Gericht in Asylangelegenheiten) hat in zwei Fällen die Rückführung nach Ungarn untersagt.