Access to the territory and push backs

Hungary

Author

Hungarian Helsinki Committee

Regular entry through transit zones

The barbed-wire fence along the 175km long border section with Serbia was completed on 15 September 2015. A similar barbed-wire fence erected a month later, on 16 October 2015, at the border with Croatia. So-called “transit zones” have been established, actually as parts of the fence. The two transit zones along the Serbian border are located in Tompa and Röszke, while Beremend and Letenye are the transit zones along the Croatian border. They consist of a series of containers which host actors in a refugee status determination procedure (see Border Procedure). The chain of authorities inhabiting the linked containers starts with the police who record the flight route, then, if an asylum application is submitted, a refugee officer to accept it, and finally, a judge (or a court clerk) in a “court hearing room”, who may only be present via an internet link.1 After the construction of the fences, the number of asylum seekers arriving in Hungary dropped significantly. Despite all of the measures taken with the explicit aim of diverting refugee and migrant flows from the Serbian border, this border section continues to be the third biggest entry point to Europe.

According to government statements, on 15-16 September 2015 only 185 asylum seekers were allowed to enter the transit zones, while in Röszke many hundreds of others – mainly Syrian war refugees – were waiting outside, without any services (food, shelter etc.) provided by either the Serbian or the Hungarian state. The HHC witnessed that only very few asylum seekers were allowed to enter the transit zone, sometimes literally not a single person was let in for hours. In 2015 only 20-30 persons per day were let in at each transit zone. From 2 November 2015, only 10 persons are let in per day and only through working days, due to the changes in working hours of the IAO. From January 2017, only 5 persons are let in per day in each transit zone. The above-described policy hinders access to the asylum procedure for most asylum seekers arriving at this border section of the EU.2

The IAO decides exactly who can enter the transit zone on a particular day. Since March 2016, an ever-growing number of migrants continue to gather in the “pre-transit zones”, which are areas partly on Hungarian territory that are sealed off from the actual transit zones by fences in the direction of Serbia. Here, migrants wait in the hope of entering the territory and the asylum procedure of Hungary in a lawful manner. Approximately one-third of those waiting to access the transit zones are children younger than 18 years. Although parts of the pre-transit zones are physically located on Hungarian soil, they are considered to be in “no man’s land” by Hungarian authorities, who provide little to nothing to meet basic human needs or human rights. In the Tompa pre-transit area, migrants wait idly in makeshift tents made of blankets distributed by the UNHCR, which can provide some shade from the sun but do not protect the migrants from the rain and cold. In Röszke, the authorities allow the use of real tents. However, the cold and rain take their toll on people in both pre-transit areas.3 Toilets were set up only during late summer by UNHCR following months of advocacy by Médecins sans Frontières (MSF) and other organisations. Governmental institutions such as the Serbian Commissariat for Refugees and the Ministry of Health also supported the initiative and helped persuade the Ministry of Interior of Serbia to let UNHCR set toilets up in both pre-transit areas. UNHCR, along MSF and volunteer groups, provide humanitarian relief to the tired and destitute migrants. MSF doctors visit every day, while UNHCR distributes blankets, clothes and food packages to those waiting.

The clear factors that determine who is allowed access to the transit zone are time of arrival and extent of vulnerability. The other determining factors are not so clear. In Röszke there are three separate lists for those waiting: one for families, one for unaccompanied minors and one for single men. In Tompa there is a single list containing the names of all three groups. Both lists are managed by a so-called community leader or list manager who is chosen by the people waiting at the given place and who communicates both with the Serbian and Hungarian authorities. The HHC already received a complaint of an asylum seeker about serious violations committed by one of such community leader (forced sex and beating allegations). The Hungarian authorities allow people into the transit zones based on these lists. Families with small children enjoy priority over single men and usually some unaccompanied minors are also allowed entry on any given day. However, there are other determining factors when it comes to entry, which are not so clear and not knowing them further frustrates those waiting. The HHC believes that these lists should be considered as expressions of intention to seek asylum in Hungary and according to the recast Asylum Procedures Directive, Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible.4 Having to wait for months in order to be let in the transit zone is therefore clearly against the recast Asylum Procedures Directive.

The inhuman material conditions, the lack of transparency when it comes to allowing access to the transit zones in addition to the limited access of humanitarian relief organisations and volunteers to these areas, make the migrants in the pre-transit zones, among them many children, especially vulnerable.        

 

Irregular entry

Irregular entry into Hungary through the border fence is punishable by actual or suspended terms of imprisonment of up to ten years – and/or the imposition of an expulsion order. The criminal procedure is not suspended when the defendant has made an asylum application during the court hearing, which could have permitted consideration by the court of a defence under Article 31 of the 1951 Refugee Convention. Motions requesting suspension of the criminal proceedings that were submitted by the defendants’ legal representatives were systematically rejected by the court on the grounds that eligibility for international protection was not a relevant issue to criminal liability. Individuals who made an asylum application in court were only referred to the IAO after being convicted and sentenced to expulsion. While their asylum applications have suspensive effect, and a “penitentiary judge” can impose a prohibition on enforcement of a court sentence of expulsion where the individual concerned is entitled to international protection,5 that prohibition does not annul the penal sentence, let alone the conviction. UNHCR thus considers that Hungary’s law and practice in relation to the prosecution of asylum seekers for unauthorised crossing of the border fence is likely to be at variance with obligations under international and EU law.6

The criminalisation of illegal entry targeting asylum seekers ceased to be of relevance with the 5 July entry into force of the “8-km rule” discussed below. Between 15 September 2015 and 10 July 2016, over 2,800 criminal procedures started at the Szeged Criminal Court under the new Criminal Code for illegally crossing the border fence. In 2,843 cases the decisions became final. Since 10 July 2016, only seven cases have been tried for “illegally crossing the border fence”.

Legal amendments that entered into force on 5 July 2016 allow the Hungarian police to automatically push back asylum seekers who are apprehended within 8 km of the Serbian-Hungarian or Croatian- Hungarian border to the external side of the border fence, without registering their data or allowing them to submit an asylum claim, in a summary procedure lacking the most basic procedural safeguards (e.g. access to an interpreter or legal assistance).7 Legalising push-backs from deep within Hungarian territory denies asylum seekers the right to seek international protection, in breach of international and EU law,8 and according to the HHC constitute a violation of Article 4 of Protocol 4 ECHR. It is basically impossible to control whether push-backs “only” occur within the 8-km zone. In any other case, those concerned have no means to prove that they were pushed back from further inside the country’s territory, nor do they have the necessary information and practical opportunities to file a complaint.

As a result of the legalisation of push-backs by the “8-km rule”, in the period of 5 July and 31 December 2016, 19,057 migrants were denied access (prevented from entering or escorted back to the border) at the Hungarian-Serbian border.9 These migrants were not only denied the right to apply for international protection, despite most of them coming from war zones such as Syria, Iraq or Afghanistan, but many of them were also physically abused by personnel in uniforms and injured as a consequence.

Since 5 July 2016, the HHC and other organisations working with migrants and refugees, including UNHCR and MSF, have received reports and documented hundreds of individual cases of violence perpetrated against would-be asylum seekers on and around the Hungarian-Serbian border. Common to these accounts is the indiscriminate nature of the violence and the claim that the perpetrators wore uniforms consistent with the Hungarian police and military. The best known case is that of a young Syrian man who drowned in the river Tisza while attempting to cross into Hungary on 1 June 2016.10 His surviving brother is represented by the HHC and a criminal investigation has been launched in relation to the tragic incident. The fact that violence against potential asylum seekers is on the rise is further testified by the report of Human Rights Watch, published on 13 July 2016, citing various testimonies about brutality against migrants at the border.11 Amnesty International researchers interviewed 18 people who entered Hungary irregularly in an attempt to claim asylum, often in groups, and who were pushed back, several violently. None of them had their individual situation assessed to determine the risks to the person or establish their asylum needs first. They were all sent back to Serbia across the border fence – sometimes through the hole they had cut themselves, sometimes through service doors – without any formal procedure. Most of them were informed in English that they needed to wait to enter the “transit zones”, if they wished to seek asylum in Hungary, and that this is the only lawful way to enter the country. Some of the interviewees reported that they were shown an information note in their own language, advising them of the same. Most of them were photographed or filmed by police. Accounts from several interviewees suggest that Hungarian police do not restrict the application of the measures to 8 kilometres from the border line, in violation not only of international law, but also of Hungarian law.12 The doctors of MSF in Serbia treat injuries caused by Hungarian authorities on a daily basis. This shocking reality is evidenced by a set of video testimonies recorded by a Hungarian news portal on 24 August 2016 in English.13 A Frontex spokesperson has described the situation in an article of the French newspaper Libération on 18 September 2016 as “well-documented abuses on the Hungary-Serbia border”.14 UNHCR also expressed its concerns about Hungary pushing asylum seekers back to Serbia.15

In light of the unprecedented amount of reports about violence committed around the Hungarian-Serbian border, the HHC sent an official letter to the Police, urging investigations into the allegations already on 14 June 2016.16 The letter referred to, among others, testimonies given by unaccompanied minor asylum seekers, who told the HHC that the Hungarian Police hit and kicked them, and used gas spray against them. One of these children had visible injuries on his nose that he claimed were the result of an attack by a police dog released on him already after being apprehended. The HHC requested the Police to immediately launch an investigation and that steps be taken to ensure that police measures are lawful in all cases. On 23 June 2016, the Police responded by claiming that it “guarantees humane treatment and the insurance of fundamental human rights in all cases”. The letter failed to address any of the reported abuses but promised to “pay particular attention” to instruct those on duty at and around the border to guarantee the lawfulness of police measures.17

  • 1. B Nagy, ‘Parallel realities: Refugees seeking asylum in Europe and Hungary’s reaction’, 4 November 2015, available at: http://bit.ly/1LjTg3S.
  • 2. HHC, No country for refugees, Information Note, 18 September 2015, available at: http://bit.ly/1iQP8SC.
  • 3. HHC, Destitute, but waiting: Report on the visit to the Tompa and Röszke Pre-Transit Zone area on the Serbian-Hungarian border, 22 April 2016, available at: https://goo.gl/vc6BPr.
  • 4. Article 6(2) recast Asylum Procedures Directive.
  • 5. See Section 301(6) Act CCXL of 2013 on the implementation of criminal punishments and measures, and Sections 51 and 52 Act II of 2007 on the entry and residence of third-country nationals. See also Section 59(2) Criminal Code, which provides that: “Persons granted asylum may not be expelled.”
  • 6. UNHCR, Hungary as a country of asylum, May 2016, paras 60-62.
  • 7. HHC, Hungary: Access denied, Information Note, 14 July 2016, available at: https://goo.gl/tEMB9O.
  • 8. Ibid.
  • 9. HHC, Key asylum figures as of 1 January 2017, available at: https://goo.gl/KdTy4V.
  • 10. UNHCR, ‘UNHCR alarmed at refugee death on Hungary-Serbia border’, 6 June 2016, available at: https://goo.gl/T20fj9.
  • 11. Human Rights Watch, ‘Hungary: Migrants abused at the border’, 13 July 2016, available at: http://bit.ly/29xIOuU; ‘Hungary: Failing to Protect Vulnerable Refugees’, 20 September 2016, available at: https://goo.gl/aP7Pjs.
  • 12. Amnesty International, Stranded hope: Hungary’s sustained attack on the rights of refugees and migrants, September 2016, available at: https://goo.gl/SK9RVd.
  • 13. HVG, ‘Hat év a tranzitzónában? Akkor inkább az illegális út – riport a határról’, 24 August 2016, available in Hungarian at: https://goo.gl/SR8rEY.
  • 14. Libération, ‘A la frontière serbe, Frontex s’embourbe dans la galère hongroise’, 18 September 2016, available in French at: https://goo.gl/U7LwHv.
  • 15. UNHCR, ‘UNHCR concerned Hungary pushing asylum seekers back to Serbia’, 15 July 2016, available at: https://goo.gl/T6GxCZ.
  • 16. HHC, Letter to the Hungarian Police, 14 June 2016, available in Hungarian at: https://goo.gl/AeLGzN.
  • 17. See the Police’s response in Hungarian at: http://bit.ly/29EdbiN.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti