Nach der Überzeugung der Kammer bestehen in Ungarn aktuell grundlegende Defizite sowohl hinsichtlich des Zugangs zum Asylverfahren als auch in Bezug auf dessen Ausgestaltung sowie im Hinblick auf die Aufnahmebedingungen während des
Asylverfahrens, die in ihrer Gesamtheit die Annahme rechtfertigen, dass der Klägerin bei einer Überstellung mit beachtlicher Wahrscheinlichkeit eine unmenschliche oder
erniedrigende Behandlung im Sinne von Art. 4 EUGrCh bzw. Art. 3 EMRK droht […].
Diese Annahme beruht insbesondere auf den gesetzlichen Entwicklungen in Ungarn der letzten Jahre. Nach der am 1. Juli 2013 in Kraft getretenen Änderung des Asylgesetzes, die die Möglichkeit einer lnhaftierung von Asylbewerbern vorsah, kam
es ab Sommer 2015 zu weiteren Gesetzesänderungen betreffend unter anderem die Einführung eines beschleunigten Verfahrens, den Rechtsschutz und die lnhaftierung sowie die Aufnahme von Serbien in eine nationale Liste sicherer Drittstaaten mit der Folge der Unzulässigkeit von Asylanträgen bei Einreise über Serbien […].
Im September 2015 wurde mit der Errichtung von Grenzzäunen zu Serbien und Kroatien ein Grenzverfahren in dort eingerichteten Transitzonen etabliert […].
Im Fall von Unzulässigkeit und im beschleunigten Verfahren ist vom Amt für Einwanderung und Staatsbürgerschaft (OIN) innerhalb von 15 Tagen zu entscheiden, im regulären Verfahren innerhalb von zwei Monaten […].
Unter Beibehaltung der im Juli 2013 eingeführten Asylhaft im Allgemeinen wurde die zulässige Haftdauer für Grenzankömmlinge ohne Papiere auf 24 statt bisher 12 Stunden heraufgesetzt und die Haftanordnung im Dublin-Verfahren erleichtert. Im Allgemeinen kann Asylhaft erstmalig maximal für 72 Stunden sowie aufgrund eines
Verlängerungsantrags um maximal 60 Tage aus im Einzelnen genannten Gründen angeordnet werden, insbesondere bei unklarer Identität und Gefahr des Untertauchens. Zuvor ist zu prüfen, ob ein milderes Mittel zur Anwendung kommen kann […]. Die maximale Dauer der Asylhaft beträgt 6 Monate, bei Folgeanträgen 12 Monate und bei Familien mit Kindern 1 Monat […]
Dublin-Rückkehrer, über deren Erstantrag bei Rückkehr noch nicht entschieden wurde, werden als Erstantragsteller behandelt. Grundsätzlich hat die Asylbehörde in Fällen, in denen Asylantragsteller während eines laufenden Asylverfahrens in einen Mitgliedstaat weiterreisen, in jedem Verfahrensstadium die Möglichkeit, entweder auf Basis der zur Verfügung stehenden Informationen eine Sachentscheidung zu treffen oder aber das Asylverfahren einzustellen. Regelmäßig wird das Asylverfahren ohne Entscheidung in der Sache eingestellt […].
Die Wiederaufnahme des Verfahrens kann bis zu neun Monate nach Einstellung des Verfahrens beantragt werden. Danach wird die Einstellung endgültig und der Asylbewerber wird wie ein Folgeantragsteller behandelt, wobei Änderungen dergestalt in Planung seien, dass der Asylantrag auch in diesem Fall vollumfänglich geprüft werde.
Angesichts dieser Ausgangslage, die nach dem vorliegenden Erkenntnismaterial ab dem Jahr 2013 bis zum jetzigen Zeitpunkt durch eine fortschreitende (gesetzliche) Intensivierung und Verschärfung gekennzeichnet ist, besteht für die Klägerin insbesondere die Gefahr, in Ungarn ohne ausreichende gesetzmäßige Anordnung und ohne effektive Rechtsschutzmöglichkeiten inhaftiert zu werden. Die Anordnung der Asylhaft ist schon nach den gesetzlichen Vorgaben in großem Umfang zulässig. Danach kann Asylhaft angeordnet werden 1. bei unklarer ldentität oder Staatsangehörigkeit, 2. bei Ausländern, die sich im Ausweisungsverfahren befinden und einen Asylantrag stellen, obwohl sie diesen zweifelsfrei bereits zuvor hätten stellen können oder um eine drohende Aufenthaltsbeendigung zu verzögern oder abzuwenden, 3. wenn der Sachverhalt des Asylbegehrens aufgeklärt werden muss und eine Aufklärung nicht ohne Haft möglich ist, speziell wenn die Gefahr des
Untertauchens besteht, 4. wenn der Asylbewerber eine Gefahr für die öffentliche Sicherheit und Ordnung darstellt, 5. wenn der Asylantrag im Flughafenbereich gestellt wurde oder 6. zur Sicherstellung der Durchführung des Dublin-Verfahrens,
wenn die ernsthafte Gefahr des Untertauchens besteht […].
Diese Formulierung der Haftgründe ist sehr weit gefasst und lässt damit Raum für eine weitreichende lnhaftierung von Asylbewerbern. Auch die tatsächliche Praxis der lnhaftierung in Ungarn wird schon länger in vielen Punkten erheblich kritisiert. So solle das OIN vor einer Haftanordnung zwar prüfen,
ob Alternativen zur Haft bestünden, hiervon würde jedoch nur in Ausnahmefällen Gebrauch gemacht; Verlängerungen würden automatisch für den Höchstzeitraum beantragt und die Haftanordnungen seien nicht individualisiert […].
Seit dem Jahr 2013 soll die Inhaftierungsquote deutlich angestiegen sein und Anfang November 2015 soll sie CHR zufolge sogar 52% gegenüber 11% im Jahr 2014 betragen haben. Schließlich wies HHC im Juni 2016 nochmals ausdrücklich darauf hin, dass Ungarn einer der wenigen Staaten in Europa sei, in dem Asylantragsteller in der Regel für mehrere Monate inhaftiert würden. Dublin-Rückkehrer würden in der Praxis regelmäßig inhaftiert […]; Zudem lässt sich den Erkenntnisquellen nicht entnehmen, dass ein effektiver
Rechtsschutz existieren würde. Insbesondere bestehen für das OIN und auch die Gerichte sehr restriktive Fristenregelungen zur Entscheidung. Diese sind nicht ausreichend, um die Durchführung eines rechtsstaatlichen Verfahrens zu
gewährleisten. Bei Fristen im Tagebereich wie dargestellt können die unverzichtbaren Anforderungen an ein solches Verfahren einschließlich Dolmetscher, Anhörung, (individualisierter) Herkunftslandinformationen etc. nicht
eingehalten werden […]; Gleiches gilt für die Rechtmittelfristen. Weiter gibt es zwar Zugang zu Rechtsberatung, in der Praxis ist diese aber den Auskünften zufolge mangels entsprechender staatlicher Finanzierung nicht verfügbar. Soweit überhaupt staatliche Anwälte bestellt seien, agierten diese passiv. Außerdem ist gegen die Verhängung von „Asylhaft“ kein gesetzlicher Rechtsbehelf vorgesehen, sondern nur eine sogenannte „Einspruchsmöglichkeit“. Nach den Informationen von UNHCR werde aber auch hiervon aus Unkenntnis kein Gebrauch gemacht. Gegen die „Einwanderungshaft“ gebe es ebenfalls keinen Rechtsbehelf, nur eine automatische
Überprüfung. Die gerichtliche Haftüberprüfung erfolge in einem „automatisierten“ Prozess alle 60 Tage durch dieselben (Straf—) Richter, die die Erstprüfung durchgeführt hätten. In der täglichen Praxis würden Entscheidungen für 5 bis 15 Häftlinge innerhalb von 30 Minuten gefällt, ohne dass eine individuelle Prüfung erfolgen könne. Die Entscheidungen seien schematisch, das Verfahren nicht individualisiert und es erfolge keine Überprüfung, ob die Haft das einzige Mittel sei. Angesichts dieser gravierenden Missstände kann der Rechtsschutz damit insgesamt gesehen nicht mehr als wirksam bezeichnet werden […].
Zwischenzeitlich ist in Ungarn am 28. März 2017 eine Gesetzesänderung in Kraft getreten, nach der für alle Asylbewerber, die älter als 14 Jahre sind, auch für diejenigen, die nicht über die serbisch-ungarische Grenze eingereist sind, das gesamte Asylverfahren – nicht wie bisher, lediglich die Zulässigkeitsprüfung über maximal 28 Tage – in den Transitzonen an der serbischen Grenze abgewickelt wird […].
Mit einer Pressemitteilung vom 10. April 2017 rief der UNHCR auf, Dublin-Überstellungen nach Ungarn auszusetzen. Es sei am 28. März 2017 ein neues Gesetz (Gesetz T/13976 über die Anpassung mehrerer Gesetze zur Verschärfung der Verfahren in den Grenzzonen) in Kraft getreten, das Asylsuchende zwangsweise interniere. Auch werde ihnen durch physische Hindernisse und eine restriktive Politik effektiv der Zugang zum Territorium und damit zum Asyl verwehrt.
Aufgrund des Vorstehenden ist das Gericht zu der Überzeugung gelangt, dass die Ablehnung des Asylantrages als unzulässig sich wegen der systemischen Mängel des Asylverfahrens und der Aufnahmebedingungen in Ungarn als rechtswidrig darstellt und daher aufzuheben ist.
Die ungarische Regierung verschärft die Gesetze in der Flüchtlingskrise – und die Bundesregierung ist alarmiert. Können Asylsuchende noch nach Ungarn zurückgeschickt werden? Offenbar hat das Bundesinnenministerium (BMI) Zweifel, ob die ungarischen Behörden die EU-Regeln zur Unterbringung von Flüchtlingen und die EU-Standards für die Asylverfahren noch erfüllen. Laut einem Erlass des BMI vom 6. April schickt das Bundesamt für Migration und Flüchtlinge (BAMF) Schutzsuchende für ein EU-Asylverfahren nur noch in das östliche EU-Land zurück, sofern dortige Behörden dem BAMF die EU-Standards in jedem Einzelfall vorab garantieren.
UNHCR, the UN Refugee Agency, today called for a temporary suspension of all transfers of asylum-seekers to Hungary from other European States under the Dublin Regulation. The Dublin regulation is an EU instrument that determines which European State is responsible for examining an asylum seeker’s application.
“The situation for asylum-seekers in Hungary, which was already of deep concern to UNHCR, has only gotten worse since the new law introducing mandatory detention for asylum-seekers came into effect,” said Filippo Grandi, United Nations High Commissioner for Refugees.
“Given the worsening situation of asylum-seekers in Hungary, I urge States to suspend any Dublin transfer of asylum-seekers to this country until the Hungarian authorities bring their practices and policies in line with European and international law,” he added.
The High Commissioner said that he was “encouraged” by the decision taken by the European Commission to work with the Hungarian authorities with a view to bringing the new legislation and Hungary’s practice in line with EU law, but noted that “urgent measures are needed to improve access to asylum in Hungary.”
UNHCR has repeatedly raised its concerns over the situation of refugees and asylum-seekers arriving to Hungary with the authorities and the EU, stressing that physical barriers and restrictive policies have resulted in effectively denying access to territory and asylum.
Hungary’s “emergency measures” under the amended law on asylum expand mandatory detention of asylum seekers and lead to the expulsion from the country of anyone who enters the country irregularly, in violation of the country’s obligations under international law.
Since it came into force on 28 March, new asylum-seekers, including children, are detained in shipping containers surrounded by high razor fences at the border for the entire length of their asylum procedures. As of 7 April, there were 110 people, including four unaccompanied children and children with their families, held there.
“While acknowledging the authorities’ recent efforts to address police violence, we remain very concerned about highly disturbing reports of serious incidents of ill-treatment and violence against people crossing the border into Hungary, including by State agents,” Grandi said. “These unacceptable practices must be brought to an end and I urge the Hungarian authorities to further investigate any allegation of abuse and violence,” he added.
Back in December, UNHCR presented a series of proposals to the EU and Member States to improve the distribution of asylum claims among Member States. The High Commissioner also called for the European Union to adopt a simplified asylum system that would identify, register and process arrivals swiftly and efficiently. “This is key to ensure access to protection for those who need it and to restore public trust,” he said.
“It is important that asylum systems as well as reception conditions are further improved in many EU and candidates States. This will help reduce irregular onward movements and the increasing reliance on smugglers. It will also help to reduce current pressure at the Hungary’s southern border. Investing in the integration of asylum seekers and refugees must also be an integral part of the equation,” said Grandi.
Der Senat hat mit Beschluss vom heutigen Tag in dem Verfahren – OVG 3 N 136.16 – die Berufung zugelassen, weil die Rechtssache nach den Darlegungen des Klägers grundsätzliche Bedeutung hat […]. Denn sie wirft danach die – vom Verwaltungsgericht verneinte – klärungsbedürftige Tatsachenfrage auf, ob das Asylverfahren und die Aufnahmebedingungen in Ungarn systemische Mängel aufweisen, die im Rahmen der Verordnung (EU) Nr. 604/2013 des Europäischen Parlaments und des Rates vom 26. Juni 2013 zur Festlegung der Kriterien und Verfahren zur Bestimmung des Mitgliedstaats, der für die Prüfung eines Drittstaatsangehörigen oder Staatenlosen in einem Mitgliedstaat gestellten Antrags auf internationalen Schutz zuständig ist (Dublin III-VO), beachtlich sind.
49. The Government were of the view that since the applicants had been free to leave the territory of the transit zone in the direction of Serbia, they in fact had not been deprived of their personal liberty. Article 5 of the Convention was therefore inapplicable.
52. It must be determined in the first place whether the placing of the applicants in the transit zone constituted a deprivation of liberty within the meaning of Article 5 of the Convention. The Court has already found that holding aliens in an international zone involves a restriction upon liberty which is not in every respect comparable to that obtained in detention centres. However, such confinement is acceptable only if it is accompanied by safeguards for the persons concerned and is not prolonged excessively. Otherwise, a mere restriction on liberty is turned into a deprivation of liberty (see Amuur v. France, 25 June 1996, § 43, Reports of Judgments and
Decisions 1996-III, and Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 68, 24 January 2008).
68. The motives underlying the applicants’ detention may well be those referred to by the Government in the context of Article 5 § 1 (f) of the Convention, that is to counter abuses of the asylum procedure. However, for the Court the fact remains that the applicants were deprived of their liberty without any formal decision of the authorities and solely by virtue of an elastically interpreted general provision of the law – a procedure which in the Court’s view falls short of the requirements enounced in the Court’s case-law. The conditions of Article 31/A of the Asylum Act were not met and no formal decision was taken; furthermore no special grounds for detention in the transit zone were provided for in Article 71/A. In this connection the Court would reiterate that it has considered the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time, as in the present case to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1 (see Stašaitis v. Lithuania, no. 47679/99, § 67, 21 March 2002; Nakhmanovich v. Russia, no. 55669/00, § 70, 2 March 2006; Belevitskiy v. Russia, no. 72967/01, § 91, 1 March 2007, and
Mooren v. Germany [GC], no 11364/03, § 79, 9 July 2009).
69. It follows that the applicants’ detention cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. Consequently, there has been a violation of that provision.
75. The Court observes that the applicants’ detention consisted in a de facto measure, not supported by any decision specifically addressing the issue of deprivation of liberty (see paragraph 67 above). Moreover, the proceedings suggested by the Government concerned the applicants’ asylum applications rather than the question of personal liberty. In these circumstances, it is quite inconceivable how the applicants could have pursued any judicial review of their committal to, and detention in, the transit zone – which itself had not been ordered in any formal proceedings or taken the shape of a decision.
76. The Court therefore must conclude that the applicants did not have at their disposal any “proceedings by which the lawfulness of [their] detention [could have been] decided speedily by a court”.
77. It follows that there has been a violation of Article 5 § 4 of the Convention.
89. In view of the satisfactory material conditions and the relatively short time involved, the Court concludes that the treatment complained of did not reach the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention.
90. Having regard to the foregoing considerations, it finds that there has been no violation of Article 3 of the Convention.
100. The Court further observes that the Government have not indicated any remedies by which the applicants could have complained about the conditions in which they were held in the transit zone.
101. It follows that there has been a violation of Article 13 taken together with Article 3 of the Convention.
118. The Court observes that the applicants were removed from Hungary on the strength of the Government Decree listing Serbia as a safe third country and establishing a presumption in this respect. The individualised assessment of their situation with regard to any risk they ran if returned to Serbia took place in these legal circumstances. Indeed, it involved a reversal of the burden of proof to the applicants’ detriment including the burden to prove the real risk of inhuman and degrading treatment in a chain-refoulement situation to Serbia and then the former Yugoslav Republic of Macedonia, eventually driving them to Greece. However, it is incumbent on the domestic authorities to carry out an assessment of that risk of their own motion when information about such a risk is ascertainable from a wide number of sources. Not only that the Hungarian authorities did not perform this assessment in the determination of the individual risks but they refused even to consider the merits of the information provided by the counsel, limiting their argument to the position of the Government Decree 191/2015.
125. Having regard to the above considerations, the Court finds that the applicants did not have the benefit of effective guarantees which would have protected them from exposure to a real risk of being subjected to inhuman or degrading treatment in breach of Article 3 of the Convention. There has accordingly been a violation of that provision in this regard.
The most concerning changes include:
- The grounds on which the Government may order a ‘state of crisis due to mass migration’ are extended to include vaguely defined requirements [Bill, Article 6].
- The Government plans to extend the existing state of crisis by a further 6 months, it has announced, until 7 September 2017.
- If any foreigner who has no right to stay in Hungary is apprehended anywhere in the country, s/he shall be “escorted” back by the police to the external side of the border fence along the southern border. Migrants affected by this push-back measure will not be given access to seek asylum or to challenge their removal from the country, an action that makes the otherwise prohibited collective expulsion the norm, and breaches the EU Returns Directive. No registration or individual documentation of persons “escorted” back across the fence is carried out, neither are their protection needs assessed [Bill, Article 7].
- Asylum applications can only be submitted in person within the transit zones [Bill, Article 7]. This proposal is especially problematic and worrying as since 23 January 2017 the number of admitted asylum seekers to each of the now operational two transit zones along the Serbian border has been reduced to 5-5 persons per working day.
- All those who are accomodated at open reception facilities or detained in asylum or immigration detention facilities at the time the bill enters into force will be transferred to the transit zones [Bill, Articles 3, 4 and 9].
- All asylum-seekers, including all vulnerable persons and unaccompanied asylum-seeking children over 14 years of age, will be detained in the transit zones [Bill, Articles 4, 7 and 9]. The detention of unaccompanied minor children between the age of 14-18 years is clearly against the best interest of the child and breaches human rights and EU law.
- The placement of asylum-seekers in the transit zones is “effectively detention”, as even the Government admits it in the reasoning of the Bill [General reasoning, para. 4]. However, no detention order would be issued and consequently no legal remedy would be available against the detention. The current maximum 28 days of stay in the transit zone would be eliminated, rendering the de facto detention of asylum seekers indefinite [Bill, Article 12].
- The deadline to seek judicial review of inadmissibility decisions and rejections of asylum applications would be drastically shortened to 3 days, hindering the applicant’s ability to challenge these decisions in court [Bill, Article 7].
- Judicial clerks, who are not appointed fully qualified judges, would also be involved in making court decisions in the asylum procedure [Bill, Article 6].
- Personal interviews in the judicial review of asylum decisions could be carried out remotely via telecommunication devices [Bill, Article 6].
- Asylum seekers in the transit zones would be obliged to cover the costs of their detention unless they are granted protection status [Bill, Article 3].
Zusammenfassung des Berichts:
In the O.M. v. Hungary judgment of 5 October 2016, the ECtHR found that detention was not assessed in a sufficiently individ ualised manner and that the authorities did not exercise particular care in order to avoid situations facing an asylum seeker on account of his sexual orientation, which risked reproducing the plight that forced him to flee. Further on, detention for the purpose of establishing the asylum seeker’s identity does not fall under the scope of Article 5(1)(b) of ECHR, when asylum seeker makes reasonable efforts to clear his/her identity, because there is no legal obligation for asylum seekers in Hungary to provide documentary evidence of their identity.
Integration support: As a result of legislative changes in April and June 2016, all forms of integration support were eliminated. Since the entry into effect of Decrees 113/2016 and 62/2016 and the June 2016 amendment to the Asylum Act, beneficiaries of international protection are no longer eligible to any state support such as housing support, additional assistance and others.There is no specific code of conduct for interpreters in the context of asylum procedures. Many interpreters are not professionally trained on asylum issues. There is no quality assessment performed on their work, nor are thereany requirements in order to become an interpreter forthe IAO. The IAO is obliged to select the cheapest interpret from the list, even though his quality would not be the best.For example, in the Vámosszabadi refugee camp, the HHC lawyer reported that in all his cases regarding Nigerian clients, none of the English interpreters understood fully what the clients said; the lawyer had to help the interpreter. The same happened at the court. There was another case, where the interpreter did not speak English well enough to be able to translate; for example, he did not know the word„asylum“. In another case before the Budapest court, the interpreter was from Djibouti, and the client from Somalia did not understand her. The interpreter said the client was lying and the judge decided that there would be no interview.In another case the client claimed that he converted to Christianity and the interpreter was Muslim. He did not know the expressions needed for the interview, not even in Farsi,not to mention Hungarian; for example: disciples, Easter, Christmas and so on. The lawyer had to help him.
A decision must be communicated orally to the person seeking asylum in his or her mother tongue or in another language he or she understands. Together with this oral communication, the decision shall alsobe made available to the applicant in writing, but only in Hungarian. The HHC’s attorneys working at the transit zones and Kiskunhalas observe that most of decisions are not translated to the clients by interpreters. Instead the IAO uses case officers or even other clients to announce the main points of the decision. The justification for a decision reached is never explained to the asylum seeker.
The following situations are applicable to Dublin returnees:
(a) Persons who had not previously applied in Hungary and persons whose applications are still pending are both treated as first-time asylum applicants.
(b) For persons whose applications are considered to have been tacitly withdrawn (i.e. they left Hungary and moved on to another EU Member State) and the asylum procedure had been terminated, the asylum procedure may be continued if the person requests such a continuation within 9 months of the withdrawal of the original application. Where that time-limit has expired, the person is considered to be a subsequent applicant (see section on Subsequent Applications). However, imposing a deadline in order for the procedure to be continued is contrary to the Dublin III Regulation, as the second paragraph of Article 18(2) states that when the Member State responsible had discontinued the examination of an application following its withdrawal by the applicant before a decision on the substance has been taken at first instance, that Member State shall ensure that the applicant is entitled to request that the examination of his or her application be completed or to lodge a new application for international protection, which shall not be treated as a subsequent application as provided for in the recast Asylum Procedures Directive. This is also recalled in Article 28(3) of the Recast Asylum Procedures Directive, which explicitly provides that the aforementioned 9-month rule on withdrawn applications “shall be without prejudice to [the Dublin III Regulation].”
(c) Persons who withdraw their application in writing cannot request the continuation of their asylum procedure upon return to Hungary; therefore they will have to submit a subsequent application and present new facts or circumstances (see section on Subsequent Applications). This is also
not in line with above-described second paragraph of Article 18(2) of the Dublin III Regulation, which should be applied also in cases of explicit withdrawal in writing and not only in cases of tacit withdrawal. This is problematic in the view of recent practices in Hungary when detained asylum seekers withdraw their applications in order to be released from asylum detention. By imposing detention on asylum seekers returned under the Dublin III Regulation, in practice the IAO promotes the option of withdrawal amongst them. This practice can be interpreted as a disciplinary use of detention against those who lodge an asylum claim in Hungary.
(d) The asylum procedure would also not continue, when the returned foreigner had previously received a negative decision and did not seek judicial review. This is problematic when the IAO issued a decision in someone’s absence. The asylum seeker who is later returned under the Dublin procedure to Hungary will have to submit a subsequent application and present new facts and evidence in support of the application (see section on Subsequent Applications). According to Article 18(2) of the Dublin III Regulation, the responsible Member State that takes back the applicant whose applicat
ion has been rejected only at the first instance shall ensure that the applicant has or has had the opportunity to seek an effective remedy against the rejection. According to the IAO, the applicant only has a right to request a judicial review in case the decision has not yet become legally binding. Since a decision rejecting the application becomes binding once the deadline for seeking judicial review has passed without such a request being submitted, the HHC believes that the Hungarian practice is in breach of the Dublin III Regulation because in such cases Dublin returnee applicants are not afforded an opportunity to seek judicial review after their return to Hungary.
Especially problematic will be the case of returned asylum seekers who have crossed Serbia before arriving in Hungary. In case they will have to submit a subsequent application, their application will be likely declared inadmissible based on an application of the “safe third country” notion, without the possibility for these persons to be heard beforehand. Since there is no effective remedy against the unlawful decision of the IAO, such transfers to Hungary are exposing applicants to a real risk of chain deportation to Serbia, which may trigger a practice of indirect refoulement.
Since the enactment of legislative amendments to the Asylum Act in 2015 and ensuing practice, administrative authorities and courts in at least 15 countries have ruled against Dublin transfers to Hungary. At least 6 countries (Czech Republic, Finland, Italy, the Netherlands, Slovakia, United Kingdom) have suspended transfers to Hungary as a matter of policy.
The fact is that since 15 September 2015, Serbia is not taking back third-country nationals under the readmission agreement except for those who hold valid travel/identity documents and are exempted from Serbian visa requirements. Therefore actual returns to Serbia are not possible. Between January and November 2016, only 182 irregular migrants were officially returned to Serbia. Neither the refusal of the asylum applications in the transit zones, nor the “legalised” push-backs since 5 July 2016 result in such official readmissions. Among the readmitted persons, there were 84 Serbian, 35 Kosovar and 27 Albanian citizens. None of the returnees were Syrian, Afghan, Iraqi or Somali citizens. Despite this fact, the IAO still issues inadmissiblity decisions based on safe third country grounds.
Where the safe third country fails to take back the applicant, the refugee authority shall withdraw its decision and continue the procedure. This provision is not respected in practice. Even though it is clear that Serbia will not accept back asylum seekers from Hungary, the IAO does not automaticaly withdraw the inadmissiblity decision, but the person needs to apply for asylum again. According to the HHC’s experience asylum seekers have to go through the admissibility assessment for two or even three times and only after submitting the third or fourth asylum application would their case not be declared inadmissible. This results in extremely lenghty procedures which leave people in great depair. Sometimes asylum seekers would be even detained after receiving a final rejection based on Serbia being a safe third country, despite the fact that deportations to Serbia are not taking place.
A request for judicial review against the IAO decision declaring an application inadmissible has no suspensive effect, except for judicial review regarding inadmissible applications based on safe third country grounds. The court may not alter the decision of the refugee authority; it shall annul any administrative decision found to be against the law, with the exception of the breach of a procedural rule not affecting the merits of the case, and it shall oblige the refugee authority to conduct a new procedure.
In practice, asylum seekers may face obstacles to lodging a request for judicial review against inadmissibility decisions for the following reasons:
– The 7-day deadline for applying for judicial review appears to be too short for an applicant to be able to benefit from qualified and professional legal assistance, and does not appear to satisfy the requirements of Article 13 ECHR on the right to an effective remedy. Without a functioning and professional legal aid system available for asylum seekers, the vast majority of them have no access to legal assistance when they receive a negative decision from the IAO. Many asylum seekers may fail to understand the reasons for the rejection, especially in case of complicated legal arguments, such as the safe third country concept, and also lack awareness about their right to turn to court. The excessively short deadline makes it difficult for the asylum seeker to exercise her or his right to an effective remedy.
– The procedure is in Hungarian and the decision on inadmissibility is only translated once i.e. upon its communication to the applicant, in his or her mother tongue or in a language that the applicant may reasonably understand. This prevents the asylum seeker from having a copy of his or her own decision in a language he or she understands so that later he or she could recall the specific reasons why the claim was found inadmissible. The judge has to take a decision in 8 days on a judicial review request. The 8-day deadline for the judge to deliver a decision is insufficient for “a full and ex nunc examination of both facts and points of law” as prescribed by EU law. Five or six working days are not enough for a judge to obtain crucial evidence (such as digested and translated country information, or a medical/psychological expert opinion) or to arrange a personal hearing with a suitable interpreter.
– The lack of an automatic suspensive effect on removal measures is in violation of the principle established in the consistent case-law of the European Court of Human Rights, according to which this is an indispensable condition for a remedy to be considered effective in removal cases. While rules under EU asylum law are more permissive in this respect and allow for the lack of an automatic suspensive effect in case of inadmissibility decisions and accelerated procedures, the lack of an automatic suspensive effect may still raise compatibility issues with the EU Charter of Fundamental Rights. The lack of an automatic suspensive effect is in clear violation of EU law with regard to standard procedures, as the Asylum Procedures Directive allows for this option only in certain specific (for example accelerated) procedures. In all cases where the suspensive effect is not automatic, it is difficult to imagine how an asylum seeker will be able to submit a request for the suspension of her/his removal as she/he is typically without professional legal assistance and subject to an unreasonably short deadline to lodge the request. To make it even worse for asylum seekers, the rules allowing for a request to grant a suspensive effect to be submitted are not found in the Asylum Act itself, but they emanate from general rules concerning civil court procedures. The amended Asylum Act lacks any additional safeguards for applicants in need of
special procedural guarantees with regard to the automatic suspensive effect, although this is clearly required by EU law.
– Finally, asylum seekers often lack basic skills and do not understand the decision and the procedure to effectively represent their own case before the court, which only carries out a non-litigious procedure based on the files of the case and where an oral hearing is rather exceptional. Applicants are not informed that they have to specifically request a hearing in their appeal. The unreasonably short time limit and the lack of a personal hearing may reduce the judicial review to a mere formality, in which the judge has no other information than the documents provided by the IAO.
The European Commission launched an infringement procedure against Hungary for the violation of asylum-related EU law in December 2015, after a record fast preparatory process. Regarding the asylum procedure, 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. Further on, the Commission is also concerned 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 recast Asylum Procedures Directive and Article 47 of the Charter. The infringement procedure is still not closed.
A subsequent application is considered as an application following a final termination or rejection decision on the former application. New circumstances or facts have to be submitted in order for a subsequent application to be admissible. For persons whose applications are considered to have been tacitly withdrawn (i.e. they left Hungary and moved on to another EU
Member State) and the asylum procedure had been terminated, the asylum procedure may be continued if the person requests such a continuation within 9 months of the withdrawal of the original application. Where that time-limit has expired, the person is considered to be a subsequent applicant. Persons who withdraw their application in writing cannot request the continuation of their asylum procedure upon return to Hungary; therefore they will have to submit a subsequent application and present new facts or circumstances.
According to the HHC, detention of asylum seekers in Hungary often does not comply with the requirements of ECHR. Asylum seekers in detention in Hungary receive a humanitarian permit while they are in detention, which means that they are explicitly authorised to stay in Hungary during the asylum procedure. Since this is the case, their detention cannot fall under the Article 5(1)(f) of the Convention, because their detention does not pursue the two purposes mentioned in this provision, namely detention for the purpose of deportation and detention in order to prevent unauthorised entry. Further on, detention for the purpose of establishing their identity also cannot fall under Article 5(1)(b) of the Convention since, under current legislation in Hungary, there is no obligation for asylum seekers to provide documentary evidence of their identity. Therefore detention for the purpose of establishing their identity is unlawful, when asylum seekers make reasonable efforts to clear their identity. All the above is reflected in the O.M. v. Hungary judgment of the ECtHR that became final on 5 October 2016. The judgment also finds that detention was not assessed in a sufficiently individualised manner and that in case of the applicant, who belonged to a vulnerable group, the authorities did not exercise particular care in order to avoid situations which may reproduce the plight that forced him to flee.
In Békéscsaba and Nyírbátor, when escorted from the facility to court for hearings, or on other outings (such as to visit a hospital, bank or post office), detained asylum seekers are handcuffed and escorted on leashes, which are normally used for the accused in criminal proceedings.
Recognised refugees and beneficiaries of subsidiary protection can stay in the reception centre for 30 days more after their recognition.
NGOs and social workers have reported extreme difficulties for refugees moving out of reception centres and integrating into local communities in practice. Accommodation free of charge
is provided exclusively by civil society organisations and churches. They run homes mostly in Budapest yet the number of places provided is not sufficient. As a result of the lack of places, many of the beneficiaries of international protection are forced to rent apartments or to become homeless. Due to the lack of apartments on the market, the rental fees are too high to be affordable for beneficiaries who have just been granted status. In addition to these difficulties, landlords prefer to let their apartments to Hungarian rather than foreign citizens.
The recommendations contained in this report are as always made in a constructive spirit and the CPT looks forward to pursuing its dialogue with the Hungarian authorities in order to improve the situation of foreign nationals deprived of their liberty in Hungary.
The majority of detained foreign nationals interviewed by the delegation stated that they had been treated correctly by police/prison officers and/or armed guards. That said, a considerable number of foreign nationals claimed that they had been subjected to physical ill-treatment by police officers. These allegations concerned mainly slaps and punches to the face or abdomen, as well as baton blows, at the moment of apprehension (even when the persons concerned were allegedly not resisting apprehension or after they had been brought under control), during transfer to a police establishment and/or during subsequent police questioning. It is of particular concern that some of these allegations were made by foreign nationals who claimed to be unaccompanied minors. In addition, a few allegations were received of physical ill-treatment by police officers and/or armed guards working in immigration or asylum detention facilities. Moreover, some allegations were received of verbal abuse and disrespectful behaviour on the part of police officers and armed guards (such as swearing, mocking and spitting at foreign nationals); these allegations concerned all stages of deprivation of liberty.
Particular reference should be made to an incident which occurred at the Nagyfa Prison Unit on 23 October 2015, the first day of the delegation’s visit to the establishment. During the weeks preceding the visit there had apparently been a tense atmosphere, accompanied by an increasing number of instances of self-harming, suicide attempts, destruction of property and hunger-strikes. These tensions escalated on 23 October when a large number of foreign nationals staged a protest by damaging the premises and equipment of the detention unit. At the same time, several of the foreign nationals barricaded themselves in two rooms and threatened to harm themselves or commit suicide if the staff attempted to enter. At the request of the prison management, two special police intervention forces (MEKTO and Bevete’si Osztaly) were called in. The officers remained outside in black riot gear, in buses parked directly in front of the detention unit, in full view of many of the immigration detainees, during the afternoon and early evening. In the late evening, after the delegation had left the establishment, the special intervention forces entered the detention unit. When returning to the establishment the next day, the delegation was informed that, following the police intervention the night before, 29 foreign nationals involved in the protest had been transferred to various other establishments, including several police detention facilities in
Szeged. Approximately two-thirds of them had first been taken to the Detention Facility of Csongrád County Police Headquarters and then to the Detention Facility of the Border Police in Szeged (Moscow street), while the others had immediately been transferred to other places of detention and the airport (for immediate deportation). The delegation was also shown closed circuit television (CCTV) footage of the intervention, which covered certain parts of the Unit and of the outside courtyard. However, the delegation was informed that some of the CCTV cameras were not functioning properly at the time of the intervention and it also became clear that they did not cover the entire premises of the prison unit. One of the ‘blind spots’ was the area where foreign nationals entered the special police buses to be transferred to other police establishments. Subsequently, the delegation went to various police establishments in order to interview those foreign nationals who had been involved in the above-mentioned incident or had witnessed the intervention of the special police forces. In interviews carried out separately, many of the foreign nationals concerned made consistent and detailed allegations of physical ill-treatment by the special police forces. The alleged ill-treatment took the form of violently pushing the heads and faces of inmates against a wall and punching them in the abdomen and face, as well as directing baton blows to the head while the persons concerned were handcuffed behind their backs. Several allegations were also received of excessively tight handcuffing and of persons being lifted by the handcuffs from the ground. The ill-treatment allegedly took place in the yard of the facility, in areas not covered by the CCTV. In addition, many of the foreign nationals who had been transferred after the incident to various police stations (in particular, in Szeged) claimed that they had been ill-treated by local police officers upon arrival at the police establishment (for example, violently pushed against the wall and/or punched in the abdomen and kidneys). It should be noted in this context that some of the foreign nationals interviewed by the delegation displayed injuries which were consistent with the allegations of ill-treatment/excessive use of force made, such as a lacerated wound on the head, pain on palpation of the abdomen and the back of the head and parallel linear-shaped bruises on both wrists.
Zusammenfassung des Berichts:
Fences, teargas, and draconian legislation: over the last year the Hungarian authorities have baulked at little in their determination to keep refugees and migrants out of the country. The government’s programme of militarization, criminalization and isolation – that it touts as “Schengen 2.0” – has ushered in a set of measures which have resulted in violent push-backs at the border with Serbia, unlawful detentions inside the country and dire living conditions for those waiting at the border. While the Hungarian government has spent millions of Euros on a xenophobic advertising campaign, refugees are left to languish.
The Hungarian government’s anti-refugee campaign will reach a new nadir on 2 October 2016 when Hungarians will be asked to vote on the mandatory relocation of asylum-seekers in Hungary. But the real questions are bigger; is Hungary prepared to accept refugees at all? Is it prepared to work within the framework of EU rules to find shared solutions to an EU-wide challenge? The government’s intentional blurring of the lines between seeking asylum and other forms of migration goes hand in hand with its labelling refugees and migrants as “illegal” and as threats to national security. The toxic rhetoric of the Prime Minister Viktor Orbán, calling asylum-seekers “poison”, has trickled down to the level of local government and often permeates the context in which police and local asylum centres operate.
Hungary has erected a series of legal and physical barriers around the country to keep refugees and migrants out. It has constructed a border fence at its southern border with Serbia and Croatia, and criminalized irregular entry across it. Within a year, close to three thousand refugees and migrants were penalized. Thousands of people have also been denied entry or returned forcibly to Serbia since the law was changed in July 2016 to allow the immediate return of those caught at the border fence or up to 8 km inside Hungarian territory.
The Hungarian government has not been content to isolate itself behind its fences. Prime Minister Viktor Orbán has, instead, invested considerable energy into convincing EU colleagues of the merits of “Schengen 2.0”. He has even found some support. This briefing documents some of the pernicious consequences of Hungary’s current policies and gives a taste of what awaits refugees seeking sanctuary in Europe if other countries seek to replicate them. This briefing documents the plight of refugees and migrants as they wait in dire conditions to enter the country; as they get pushed back to Serbia, sometimes violently and without access to any procedure; as they are routinely detained in centres where they are “treated like animals” and as they make their way through an asylum procedure designed to reject them.
The only way to enter Hungary regularly and apply for asylum is through its “transit zones”, a set of metal containers set up at the border following the completion of the border fence. Only 30 people are admitted to the “transit zones” each day; others languish in substandard conditions in makeshift camps at the border area, or in overcrowded centres across Serbia waiting for their turn to arrive to enter Hungary, based on an “entering plan” submitted by asylum-seekers themselves. Hungary fails to ensure that those who can’t be admitted to the asylum procedure immediately receive humane treatment, including access to sanitation, medical care and adequate accommodation conditions.
With such heavy restrictions on regular entry to the country, many choose to cross the border irregularly after months of waiting. They are stopped and returned immediately, without any consideration of their needs for protection or particular vulnerabilities. Refugees and migrants told Amnesty International about excessive use of force, including beatings, kicking and chasing back with dogs and unlawful returns (or “push backs”) to Serbia. Inside the “transit zone” containers, authorities unlawfully detain without ground most men traveling without family for up to four weeks. Most of them have their asylum applications declared inadmissible on the grounds that they came through Serbia, a “safe third country”, where they should have applied for asylum.
As Serbia does not formally take them back and does not provide access to a fair and individualized asylum process, those pushed back out of the containers have little other option than to attempt a different route to the EU. Those who do get into the country risk a multitude of further rights violations. The detention of asylum-seekers has become routine. In early August, over half of the twelve hundred asylum-seekers residing in Hungary were in asylum detention. Despite repeated requests, Amnesty International was not allowed to visit the asylum detention centres to document the conditions asylum-seekers were kept in. However, the organization has interviewed several former detainees in the Körmend tent camp and in Austria, who reported beatings and threats of violence by the police and security guards inside the detention centre. They also spoke of the frustration and trauma among the asylum-seekers locked up without having committed a crime. Amnesty International interviewed several asylum-seekers who harmed themselves in desperation.
Families and vulnerable persons are taken from “transit zones” to open reception centres inside the country where they face a different set of challenges. They languish in conditions which are often unsuitable for long-term accommodation, and where information on and assistance with asylum applications are lacking and support to access essential services is minimal. These centres barely provide education, activities for children and healthcare. The lack of translators and a lengthy, complex asylum process create often insurmountable obstacles to their asylum cases.
Hungary is, on multiple counts, in flagrant breach of international human rights and refugee law and EU directives on asylum procedures, reception conditions, and the Dublin regulation. The Hungarian authorities continue to intentionally undermine any agreement that could protect the rights of refugees and migrants to safely and legally arrive in the European Union, be treated with dignity, and have a fair and individual opportunity to make their cases heard. This briefing makes the case for the European Commission to take the infringement proceedings it has started against Hungary further and hold Hungary accountable and bring the country’s migration and asylum policies in line with EU and international law obligations.
“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.