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7th Oct 2022

Hungary illegally detained migrants, court says

  • In 2015, the government hastily erected a fence on the Serbian border to stop migrants (Photo: Freedom House)

The European Court of Human Rights ruled on Tuesday (14 March) that Hungary unlawfully kept two migrants in a transit zone on its border with Serbia, in a decision that could affect the country's new plans to automatically detain all asylum seekers in border camps.

Two Bangladeshi citizens, Ilias Ilias and Ali Ahmed, filed a suit against Hungary in September 2015, shortly after the government erected a fence on its southern borders and created two transit zones for asylum seekers to stop and control the flow of migrants.

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Following asylum proceedings, they were removed from Hungary, based on a 2015 government decree that listed neighbouring Serbia as a safe third country.

They were detained at Roszke transit zone for 23 days between Hungary and Serbia. The pair could not leave in the direction of Hungary, as the zone was fenced off and guarded, making it inaccessible from the outside - even for their lawyer.

The Strasbourg-based court ruled that their detention in the transit zone was unlawful under the European Convention of Human Rights.

The court also doubted that the applicants would have voluntarily left the transit zone towards Serbia, as suggested by the Hungarian government. If this were the case, they would have run the risk of losing their asylum claim and right to non-refoulement, and basically have been pushed back.

The ruling added that their detention had not been ordered in any formal proceedings, meaning the two Bangladeshis could not legally fight their detention.

However, the court, which is based in the Council of Europe, a separate entity from the EU, also ruled that there was "no violation of the convention in respect of the conditions of detention at the transit zone."

The court pointed out that the applications from the two men were not assessed individually. It also found the government's sudden change of position in 2015, on deeming Serbia a safe third country, of "particular concern".

The court also noted that one of the applicants was interviewed and given an information leaflet on asylum proceedings in a language he did not understand, and was unable to read since he was illiterate.

Hungary will have to pay €10,000 each to the two men, and a further €8,705 to cover their expenses and costs under the ruling.

The ruling is subject to appeal.

Blanket detention

The decision comes almost a week after Hungary passed a law that aims to keep all migrants in detention camps on the border, until their asylum requests are processed.

The UN's refugee agency and human rights groups have strongly criticised the new legislation.

The UNHCR said in a statement that the law "violates Hungary's obligations under international and EU laws, and will have a terrible physical and psychological impact on women, children and men who have already greatly suffered."

According to the new law, all asylum seekers would be in detention centres dotted around the transit zones. The government argues that they are not detention centres, as asylum seekers are free to leave in the direction of Serbia.

It also argues that the law aims to stop secondary movement of migrants, meaning asylum seekers moving onto different European countries before their asylum process has been closed.

"Migration is the Trojan wooden horse of terrorism," Hungary’s prime minister Viktor Orban said last week. "The people that come to us don't want to live according to our culture and customs but according to their own, at European standards of living."

Orban outlined the detention law to his fellow EU leaders at last week's summit, but other EU leaders had no reaction.

German chancellor Angela Merkel told journalists that the issue was "addressed very briefly" and that asylum procedures in Hungary were "carried out according to European laws".

European Commission vice president Frans Timmermans said last month said that the EU executive would have to study the new law once it is adopted, but that member states have to adhere to EU and international rules on asylum.

Human rights groups say the new law is just as unlawful as previous detentions at the transit zones.

The Hungarian Helsinki Committee, which represented the migrants' case in the court, said that the European Court of Human Rights' ruling "made it clear that contrary to the government's claims, placement at the transit zones is in fact detention, by which asylum seekers are deprived of their personal freedom. And because it is not regulated, it is unlawful."

"Based on the new law passed last week, the only accommodation for asylum seekers would be the transit zones, where, according to the court's ruling, basic human right have been violated already," it said in a statement.

In 2016, Hungary accepted 425 asylum-seekers. In the same year Germany took in 280,000 people.

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