Declaring Serbia a safe third country was the first of Hungarian repeated violations of human rights. Hungary turned the humanitarian crisis into a purely political issue. It seems that Europe too will choose to follow the politics of closed doors.
Refugee and asylum policies in Hungary had not been much in the public focus until January 2015, when the terrorist attack on Charlie Hebdo led the Hungarian government to launch a hate campaign, causing unbelievable damage that still has not come to an end. Indeed, it may not be an exaggeration to characterise this damage as constituting massive human rights violations. A billboard campaign lasting for several months and a national consultation - merging terrorists and refugees fleeing from war and terrorism into the same category - were only the start. In the summer, the government began to modify laws and closed the Serbian-Hungarian border with a new fence, thereby completely undermining the right to asylum. Recently, the fence has been extended along the Croatian border as well, and unfortunately the Hungarian government has not been the most constructive when it comes to finding a humane and legal solution to the refugee crisis. The European Union is not dealing with the situation particularly well either, however, even though the task is not as impossible as politicians might make it seem.
It is a fact that more refugees are arriving in Europe this year than in previous years - so far about 709.913 by sea according to the IOM and some more on land (the exact numbers are unclear due to lack of registration), which is roughly twice last year’s figure (according to the Eurostat there were 627,780 asylum seeker last year) - so the numbers are not so high so as to justify the accompanying hysteria. The EU countries, however - with Hungary in the lead - have turned this humanitarian crisis into a purely political issue, even though the situation is an expected consequence of the civil war in Syria and the rise of ISIS. We could have better prepared ourselves to receive a greater number of asylum seekers by establishing a system that would guarantee their basic rights. The situation has grown so chaotic, however, that refugees are now being transported from one country to another by state-financed shuttles, in many cases without even registering them until they reach their destination (usually Germany).
Politics of closed doors
It seems likely that instead of addressing the situation in accordance with the law, Europe too will choose to follow the politics of closed doors. Recent news reports suggest that Greece may close its border with Turkey on the Aegean Sea, even though this may trigger unforeseen consequences. A majority of the refugees are entitled to asylum, as more than 90 percent of them are still coming from Syria, Iraq and Afghanistan. Given these facts, they cannot be considered "economic migrants": people fleeing a conflict zone are entitled to protection under all circumstances, even if they are ultimately not recognised as refugees.
The 1951 Convention relating to the Status of Refugees defines a refugee as a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". This does not necessarily mean that one can only receive refugee status if fleeing a war zone, however. One can unfortunately become victimised in any country for one of the reasons listed above, so it is not at all impossible for someone from, let’s say, Bangladesh, to become eligible for refugee status. It may be the case, however, that someone fleeing Syria decides to embark on the journey not because of personal persecution, but simply because of the circumstances of the conflict in that region. In this case, they are eligible for subsidiary protection under the Qualification Directive of the Council of the European Union. This directive ensures protection for those fleeing from a conflict zone and whose lives are under "serious and individual threat (...) by reasons of indiscriminate violence" (but who do not qualify as a refugee under any of the above listed conditions), or who would face capital punishment, torture, or inhumane treatment upon returning to their home countries.
The majority of refugees who have recently arrived in Europe are eligible for this type of protection, and thus it is illegal for Hungary to send them back to a location where their safety is at risk. At the moment, this criterion is not being respected; Hungary violates it on a regular basis by not providing access to asylum or legal remedies, and instead automatically rejects asylum requests and sends refugees back to Serbia, where they also lack sufficient protection.
The Hungarian government passed an amendment in July which provides the legal basis for declaring Serbia a safe third country. This was the first firm step in a still ongoing process, and was followed by a series of other amendments which have led to repeated violations of human rights. As a matter of fact, Serbia is not regarded as a safe third country by either international or Hungarian expert organisations, due to its lack of a supply system that would guarantee refugees’ rights to safety and humane treatment. The situation is well-documented by Helsinki Committee statistics: in the past 7 years, only 22 people have been granted any kind of legal status in Serbia. In July, construction began on a 175-kilometre-long, 4-metre-high barbed wire fence along the Serbian-Hungarian border which has since been completed and in October they finished the same fence along the Croatian-Hungarian border (348 km). With this, the Hungarian government has laid the foundations for illegal expulsions that began only on 15 September, after passage of the relevant amendments.
The declaration of a state of emergency
In August, Hungary’s interior minister initiated an amendment that, among other things, has laid the groundwork for the subsequent declaration of a state of emergency due to the enormous influx of refugees, making it possible to suspend provisions of basic law in order to maintain the security of the state. The Eötvös Károly Institute has published its concerns about this, as this manner of addressing crisis situations is very reminiscent of special legal orders that have formed the bases of dictatorships in the course of history. Therefore, such a measure can only be implemented in conjunction with very serious constitutional guarantees, such as a timely duration, which was not the case in Hungary. According to the amendment, a state of emergency can be declared based on a very small number of criteria, and can be implemented indefinitely. It is presently in effect in 6 counties in Hungary, initially for a period of 6 months, but this can be extended without limitation merely by reporting to the National Assembly’s Committee of Defence and Law Enforcement, which is far from a sufficient constitutional guarantee. The same amendment introduced three new offences into the Penal Code: illegal crossing of closed borders, impairing the border fence, and obstructing the progress of building the border fence. With these provisions, it is now possible to bring a legal prosecution against anyone who crosses the border. The maximum penalty is 20 years’ imprisonment, and in all cases expulsion from Hungary and consequently also the territory of the EU and the Schengen zone for at least two years. In addition, as actual practice demonstrates, even those who request asylum in the transit zones are expelled.
The right to due process is being violated in other ways as well: in the case of injunctive relief, it is the head of the National Judicial Office who appoints the judges, who in turn are allowed to direct the proceedings without assessors, while access to remedies has been made so complicated that at the moment it is practically an empty right. When this amendment came into force on 15 September, the Serbian-Hungarian border was closed right away, starting a series of human rights violations. Substantive access to the right of asylum may not be limited by closed borders or even by a fence: if someone enters Hungary and signals even verbally that they wish to request asylum, the competent authorities are required to start the procedure and the asylum seeker cannot be punished for crossing borders (Geneva Convention, Article 31). It is already evident, however, that the Hungarian practice is quite the opposite. People trying to cross the fence are charged with committing a crime and are deported, while those requesting asylum in the transit zones face expulsion as well (with very few exceptions), as Serbia is now considered a safe third country.
Thus, in Hungary the right to asylum has practically ceased to exist, while the right to due process and the right to counsel are also being violated. A large number of expert organisations and NGOs have raised their voices against these practices (the Hungarian Helsinki Committee, for instance, has even pointed out that the expulsion and transport of asylum seekers to the Serbian border also violates an agreement between the EU and Serbia). In addition to the civil society sphere, a group of lawyers under the name "Lawyers for a Constitutional State" also published a declaration on 15 September, stating that "these newly passed laws go against every international agreement signed by Hungary as well as against European community rights directly in force in Hungary and also the Hungarian Fundamental Law and basic concepts of law." Subsequently, the Hungarian parliament also passed amendments to the National Defence Law, authorising the army to use live ammunition during a state of emergency not only in the border areas but throughout the country.
The amended laws and their enforcement thus violate the rights of refugees to such an extent that it is no exaggeration to characterise them as multitudinous human rights violations. In the very near future, we will see whether the EU will follow the Hungarian example and proceed with closing its borders, or whether EU states will stand up for a more humane political approach and take shared responsibility for those who, in theory and by law, are entitled to protection.
Translation from Hungarian by Zsófia Deák
Proofreading by Evan Mellander