Response to the Hungarian Government’s spokesperson’s blog entry

The Hungarian Government’s spokesperson published a blog post on 28 February 2018 to give “some examples of NGOs facilitating illegal migration in Hungary and Europe“. Out of the examples cited as evidence of “aiding and abetting illegal immigration”, three refer to applications lodged by the Hungarian Helsinki Committee (HHC) at the European Court of Human Rights (ECtHR). Mr Kovacs attempts to put the blame on these cases, which all concern the unlawful detention of asylum-seekers, for the refugee crisis of 2015. Mr Kovacs argues that it was due to the judgments of the ECtHR in two cases that the Hungarian authorities were unable to place asylum-seekers in open reception facilities in the summer of 2015.

This argument, however, is completely flawed, for three reasons:

1.     The cited Strasbourg court cases on the unlawful detention of asylum-seekers have absolutely nothing to do with the way the Hungarian government mismanaged the humanitarian crisis in the summer of 2015.

Concretely, the  ECtHR decided the cited cases either three years prior to the refugee crisis of 2015 or, in the case of Ilias and Ahmed v Hungary, two years afterwards in 2017.

The first case, Hendrin Ali Said and Aras Ali Said v. Hungary, application no. 13457/11 (wrongly cited as Said and company in the blog post), concerned two Iraqi asylum-seekers who had been transferred to Hungary from the Netherlands under the Dublin procedure and were detained in alien policing detention. Contrary to the spokesperson’s claims,

• it was not their placement in an open refugee camp, but rather their months-long unlawful detention that the applicants challenged at the Court,
• the applicants did not disappear, the lawyer was in contact with them throughout;
• they did receive the damages the Court ordered Hungary to pay to them for unlawfully depriving them of their liberty for a prolonged period.

The second case, Al-Tayyar Abdelhakim v. Hungary, application no. 13058/11, also concerned the alien policing detention of an asylum-seeker. Contrary to the spokesperson’s claim,

• it was not his placement in an open refugee camp, but rather his months-long unlawful detention that the applicant challenged at the Court,
• the Hungarian immigration authority did not contest the validity of Mr Abdelhakim’s travel document issued by the Lebanese government for Palestinian refugees.
• the applicant did not disappear: he not only received the damages the Court ordered Hungary pay to him for unlawfully depriving him of his liberty. Rather, he was recognised as a refugee in Hungary by the Hungarian immigration office.

The third case, Ilias and Ahmed v. Hungary, application no. 47287/15, concerns, among others, the unlawful detention of two asylum-seekers in the Röszke transit zone in September-October 2015. Contrary to the spokesperson’s claim,

• the applicants did not disappear and they are maintaining contact with their lawyer;
• the reason why Hungary did not pay damages to them yet is that the Government requested the case to be referred to the Grand Chamber of the ECtHR. Hence the judgment is not final and the Grand Chamber hearing will take place on 18 April 2018.

The ECtHR judgments of the first two cases were also quoted by the Curia, the highest instance court in Hungary, in the study on the case-law of alien policing detention. These non-binding guidelines recommend that Hungarian judges deciding on alien policing detention of foreigners should apply the standards set by the ECtHR in these judgments. Moreover, the National Office for the Judiciary also ran a project for Hungarian judges to enhance  in reviews of the lawfulness of alien policing detention. In this project, Hungarian judges expert in this field also wrote a case manual for all Hungarian judges on the standards for legal review of alien policing detention. In this case, the National Office of the Judiciary reminds Hungarian judges of another case where asylum-seekers had been unlawfully detained in alien policing detention, a further case that the Helsinki Committee brought before the ECtHR.

2.     In the summer of 2015, Hungarian asylum law did not prohibit the detention of asylum-seekers. The provisions on asylum detention, i.e. that asylum-seekers could be detained, if certain criteria were met, were introduced on 1 July 2013 – made possible by none other than the EU’s directive on reception conditions for asylum-seekers. In fact, during the summer of 2015, three asylum detention centres were operating in Hungary.

3.     The HHC is convinced that judgments of the European Court of Human Rights should be used to improve the standards based on which Hungarian judges are deciding on the detention of migrants or asylum-seekers. Judicial decision-making which complies with human rights standards that apply all across the European Union serves both the rule of law and the interest of Hungarian society as a whole.