Archiv der Kategorie: Bezugnahme auf (drohende) Inhaftierung

EGMR / Az.: 9912/15 / Ungarn


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.

Neuer UNHCR-Bericht zu Ungarn


Executive Summary:

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.


Europäischer Flüchtlingsrat: Case Law Fact Sheet – Prevention of Dublin Transfers to Hungary (January 2016)


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.

HRW Bericht zu Ungarn


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.

BBC: Migrant crisis – Hungarian jails crowded by ‚illegal‘ refugees

More than 1,000 refugees, most of them from war zones in Syria, Afghanistan and Iraq, are detained in overcrowded Hungarian prisons or detention facilities. As of 10 November, almost 700 had been sentenced to expulsion by Hungarian courts for crossing the razor-wire fence along its southern borders. More than 200 others are detained, awaiting trial. Around 500 people are in asylum detention, a separate category under Hungarian law. The Serbian government is refusing to accept most deportees from Hungary, in protest against the fence.

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Aida Bericht zu Ungarn


As discussed in Chapter III of this report, the retroactive application of the “safe third country” concept on all applicants having transited through Serbia, against the unchanged recommendation of UNHCR not to consider Serbia as a safe third country because of the lack of access to effective protection in that country, also has further implications for the operation of the Dublin Regulation. As the asylum applications of Dublin returnees may be declared inadmissible on that basis upon return in Hungary, this presents a real risk of indirect refoulement. Consequently, EU Member States must refrain from effecting transfers to Hungary, as recommended in this report.

The Hague District Court (Niederlande) / Ungarn


This case relates to a Ukrainian national and her two young children, who claimed asylum in the Netherlands in April 2015. This was rejected as they had previously applied for asylum in Hungary in January 2015, and the Hungarian authorities had accepted their responsibility to process the claim pursuant to the Dublin III Regulation. The Hague District Court had granted a preliminary injunction to prevent the applicants’ removal and now considered the merits of her appeal.

With regard to the applicant’s argument that the amendments to Hungarian law of 1 August 2015 contained serious procedural shortcomings, and exposed her and her children to the risk of detention the Court considered the Hungarian asylum law was not in violation of European law. In any event, she had an effective remedy to complain to a Hungarian Court and if necessary, to lodge a complaint before the CJEU or ECtHR.

Citing Tarakhel v. Switzerland the Court emphasised the need for special protection of asylum seekers, in particular families with children, whose reception conditions must be adapted to their specific needs. It referred to the Hungarian Helsinki Committee Information Note dated 7 August 2015 which indicated that recent developments in Hungary, including the significant increase in asylum seekers to Hungary, meant that its asylum system could not deal with vulnerability, there was no screening mechanism to identify those with special needs, and the reception system was overcrowded and unhygienic. As such, there was a real risk of many Dublin transferees to Hungary being accommodated in unacceptable conditions, similar to the reception situation in Italy as discussed in Tarakhel. Given that the applicant, a single mother with young children was particularly vulnerable, guarantees should be requested from the Hungarian authorities in line with Tarakhel to avoid the risk of Article 3 ill-treatment. As the Dutch authorities failed to do so, its decision to transfer the applicants to Hungary was set aside.

The applicant in this case is a national of Afghanistan who travelled via Iran, Turkey, Greece and Hungary before claiming asylum in the Netherlands. His asylum claim was dismissed by the Secretary of State of Security and Justice and a decision was made to transfer him to Hungary pursuant to the Dublin III Regulation.

Based on the information before it, the Hague District Court considered that upon transfer to Hungary the applicant’s asylum claim would be considered under the new asylum legislation that entered into force on 1 August 2015. The Court referred extensively to the Hungarian Helsinki Committee Information Note of 7 August which set out a number of criticisms of the new Hungarian asylum law.  It considered that the contents of this report had not been refuted by the Secretary of State. It concluded that the Hungarian asylum procedure, in view of the designation of Serbia as a safe third country, did not meet the requirements of the ECtHR, as there was no effective remedy against negative first instance decisions, no real access to professional legal assistance, interpreters are not available and the short deadlines and set by the Hungarian asylum procedure prevented applicants from preparing a proper defence. It concluded that the procedure did not meet the minimum requirements as set out in Article 46 of the recast Asylum Procedures Directive.

In conclusion, transfer of the applicant to Hungary would amount to a real risk of violation of Article 3 ECHR as there were systemic deficiencies in the new asylum procedure that the minimum standards as set out in M.S.S. v. Belgium and Greece were not met. The decision was set aside and the Secretary of State is now obliged to make a new decision taking into consideration this ruling.

Amnesty-Bericht zu Ungarn


Aktueller Bericht von Amnesty International zu Ungarn. Titel des Berichts: Fenced Out – Hungary’s Violations Of The Rights Of Refugees And Migrants.

Spon: Sonderjustiz – Ungarn urteilt Flüchtlinge im Schnellverfahren ab

Richter und Anwälte eilen hektisch hin und her, Polizisten führen Gruppen von Angeklagten in Handschellen über die Flure des Amtsgerichts von Szeged. Sogenannte Grenzverletzer, Flüchtlinge, die Ungarns Grenze illegal übertreten haben, werden in der südungarischen Stadt wie am Fließband verurteilt. Die Sonderjustiz gegen Flüchtlinge findet im Mehrschichtsystem statt, sieben Tage die Woche.

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Update (15.10.2015): Sonderjustiz gegen Flüchtlinge in Ungarn (Beitrag in den Tagesthemen)

EGMR / Az.: 62116/12 / Ungarn


36. The Court observes that the applicants’ expulsion was ordered on 6 November 2011. Simultaneously, the execution of this measure was suspended, and the applicants’ detention was ordered with a view to their eventual deportation, that is, the execution of the expulsion order.

37. Regarding the first three days of the applicants’ detention (that is, up until 8 November 2011), the Court is satisfied that the measure served the purpose of detaining a person “against whom action is being taken with a view to deportation”, within the meaning of the second limb of Article 5 § 1 (f) (cf. the order of 6 November 2011 (see paragraph 7 above), making reference to section 54(1)(b) of the Immigration Act, quoted in paragraph 15 above). Indeed, at that point in time the applicants had not yet requested asylum and were no more than illegal border-crossers without identity documents. For the Court, this phase of the applicants’ detention discloses no appearance of any arbitrariness (see Saadi, cited above, §§ 65-66).

38. As regards the applicants’ further detention, the Court emphasises that detention “with a view to deportation” can only be justified as long as the deportation is in progress and there is a true prospect of executing it (see paragraph 29 above). It notes that the applicants applied for asylum on 9 November 2011, formal asylum proceedings started on 10 November 2011, and the case was admitted to the “in-merit” phase on 12 December 2011. For the Court, the pending asylum case does not as such imply that the detention was no longer “with a view to deportation” – since an eventual dismissal of the asylum applications could have opened the way to the execution of the deportation orders. The detention nevertheless had to be in compliance with the national law and free of arbitrariness.

39. As regards compliance with the domestic law, the Court notes that on 8 November, 29 November and 30 December 2011, 1 February and 3 March 2012 the Kiskunhalas and the Nyírbátor District Courts reviewed the lawfulness of the applicants’ deprivation of liberty. However, all the decisions up to, and including, the one of 1 February 2012 were only concerned with the endorsement of the Csongrád County Police department’s original decision of 6 November 2011. According to this latter, the applicants were to be detained because they had entered the country illegally and without documents, and were deemed to be potentially frustrating their expulsion. Moreover, the decisions of 29 November and 30 December 2011 did not mention the on-going asylum case at all, and the one of 1 February 2012 only made a factual reference  to it.

40. For the Court, the period until the prolongation of 3 March 2012 raises a serious question of lawfulness in terms of compliance with the relevant rules of the domestic law. Under sections 54(1)(b), 54(2) and 54(6)(b) of the Immigration Act (see paragraph 15 above) – read in conjunction and in the light of the circumstances of the case – to validly prolong the applicants’ detention, the domestic authorities had to verify that they were indeed frustrating the enforcement of the expulsion; that alternative, less stringent measures were not applicable, and whether or not the expulsion could eventually be enforced.

41. Instead of these criteria having been addressed, the applicants’ continuing detention was in essence based on the reasons contained in the first detention order by the Csongrád County Police Department, that is, the risk that they might frustrate their expulsion. However, very little reasons, if any, were adduced to show that the applicants were actually a flight risk. Moreover, none of these decisions dealt with the possibility of alternative measures or the impact of the on-going asylum procedure. The extension decision of 1 February 2012 was indeed the first one to state that the expulsion had been suspended due to the asylum application, but the court drew no inference from this fact as to the chances to enforce, at one point in time, the expulsion.

42. For the Court, it does not transpire from the reasoning of the decisions given between 8 November 2011 and 1 February 2012 that the domestic courts duly assessed whether the conditions under the national law for the prolongation of the applicants’ detention were met, with regard to the specific circumstances of the case and the applicants’ situation.

43. Since the requisite scrutiny as prescribed by the law was not carried out on these occasions of prolonging the applicants’ detention, the Court considers that it is not warranted to examine the applicants’ other arguments or whether the detention could otherwise be characterised as arbitrary, for example, because the actual progress of the expulsion process was not demonstrated.

44. The above considerations enable the Court to conclude that there hasbeen a violation of Article 5 § 1 of the Convention in the period between 8 November 2011 and 3 March 2012.