Alternatives to detention

Hungary

Author

Hungarian Helsinki Committee

Alternatives to detention, called “measures ensuring availability”, are available in the form of:

(a)   Bail;1

(b)   Designated place of stay; 2 and

(c)   Periodic reporting obligations. 3

Asylum detention may only be ordered on the basis of assessment of the individual’s circumstances and only if its purpose cannot be achieved by applying less coercive alternatives to detention. However, the HHC’s experience shows that the detention orders lack individual assessments and alternatives are not properly and automatically examined. Decisions ordering and upholding asylum detention are schematic, lack individualised reasoning with regard to the lawfulness and proportionality of detention, and fail to consider the individual circumstances (including vulnerabilities) of the person concerned. The necessity and proportionality tests are not used. The orders only state that alternatives are not possible in a concrete case, but there is no explanation why.4 According to the Supreme Court (Kúria) opinion, contrary to the current practice, alternatives must be considered not only in the course of the initial one, but also in subsequent decisions on extension.

Following his visit to Hungary in July 2014, the Council of Europe (CoE) Human Rights Commissioner also criticised the lack of individual assessment and reported detentions according to criteria such as the availability of places in detention centres or the nationality of the asylum seeker.5

The O.M. v. Hungary case of 5 October 2016 also established that the detention order of a vulnerable asylum seeker was not sufficiently individualised.

UNHCR has observed that the assessment of applicability of alternatives to detention is largely restricted in practice to the applicability of asylum bail, while the other two alternative measures such as the regular reporting requirement and the designated place of accommodation are rarely or not applied as standalone measures.6

The scope of application of the bail as an alternative to detention is not sufficiently defined and may lead to the non-application of this measure in practice. The amount of the bail can vary between €500 and 5,000, but the conditions of assessment are not properly defined by law, thereby casting doubts on its transparent and coherent application. According to the law, the amount of bail should depend on the personal conditions and situation of the applicants as determined by the authority. Unfortunately, in practice there is no individualised approach used in determining the amount of bail. The average amount of bail ordered so far was €1,000. The application of bail remains very rare in practice in 2016. The HHC’s attorneys reported that the IAO does not examine the possibility of applying bail automatically, which is not in line with the recast Reception Conditions Directive. Bail is examined only if the asylum seeker asks for it and is rejected in most of the cases. If the asylum seeker or his or her representative makes the request for bail at the court in Békéscsaba, the court would reject such a request, stating that this decision has to be taken by the IAO. The HHC’s attorney has witnessed cases where the IAO wrote in the detention order that the asylum seeker did not have any money for the bail, despite the fact that the possession of money was written on the document which officially records the belongings of asylum seekers. The IAO does not transmit this document to the court. When this fact was raised by the attorney at the court, the court again said that this should be decided by the IAO and that the court does not have any competence in this. 

According to the statistics provided by the IAO, between 1 January and 31 December 2015 bail was applied in 264 cases, while in 2016 this number was 283. A designated place of stay was defined in 10,866 cases between 1 January and 30 June 2015, while it was ordered in 54,615 cases throughout the year of 2016:







Asylum detention and alternatives to detention: 2016

Type of measure

Number of cases

Alternatives to detention

54,898

Bail

283

Designated place of stay

54,615

Asylum detention

2,621

Source: IAO.

 

“House arrest” following criminal proceedings

On 15 September 2015, the Government introduced an amendment to the Act on Criminal Proceedings in order to allow for “house arrest” of third country nationals, including asylum seekers, in reception and asylum/immigration detention centre in the event that criminal proceedings have been initiated in connection with border fence offences.7 If a third country national or asylum seeker has crossed the border fence in an unauthorized manner, or if he or she has destroyed the border fence or in any way hindered the building or erecting of the fence, and criminal proceedings have been instituted against him or her, the person may be kept under house arrest in the asylum/immigration detention centre or other facility where he or she is accommodated, during the period where a crisis situation caused by mass immigration prevails.

UNHCR believes that holding asylum seekers in closed detention centres is at odds with the ordinary purpose of “house arrest”. Since the specific, more favourable conditions that are otherwise applicable in the context of house arrest,8 such as greater freedom of movement and more flexible communication with the outside world, cannot be ensured in detention, in UNHCR’s assessment, house arrest implemented in an immigration or asylum detention facility for immigration-related purposes essentially amounts to detention. As such, it would not appear to constitute a less coercive alternative to detention, which Member States are required to apply under Article 8(2) of the Reception Conditions Directive, before resorting to detention.9 UNHCR is particularly concerned about the regime applied to families under house arrest in asylum/immigration detention facilities, as the principle of family unity is not upheld in all cases. Sometimes, family members of individuals under house arrest are detained in different locations. Children are sometimes separated from their parents and placed in a children’s home. This situation is clearly at odds with the requirement contained in the amendment itself, which provides that house arrest in asylum/immigration detention centres is made possible to respect the interest of children.10

  • 1. Sections 2(lc) 31/H Asylum Act.
  • 2. Section 2(lb) Asylum Act.
  • 3. Section 2(la) Asylum Act.
  • 4. HHC, Information Note on asylum-seekers in detention and in Dublin procedures in Hungary, May 2014, 6-7.
  • 5. CoE Commissioner for Human Rights, Report by Nils Muižnieks Commissioner for human rights of the Council of Europe following his visit to Hungary from 1 to 4 July 2014, CommDH(2014)21, available at: http://bit.ly/1e8pS8w.
  • 6. UNHCR, UNHCR comments and recommendations on the draft modification of certain migration, asylum-related and other legal acts for the purpose of legal harmonisation, January 2015, available at: http://bit.ly/1HZH0tt.
  • 7. Chapter XXVI/A relevant to crimes related to the border fence (introduced by Act CXL of 2015 As of 15 September 2015). Section 542/H provides that “[i]n case of criminal procedures initiated because of crimes stipulated in Section 542/D (i.e. unauthorized crossing of the border fence [Criminal Code Section 352/A], destroying the border fence [Criminal Code Section352/B] and the hindering the building/erecting of the border fence [Criminal Code Section 352/C], during a crisis situation caused by mass immigration, as a matter of priority, house arrest shall be ordered, in order to respect the interests of minors, and it shall be implemented in facilities providing reception conditions and detention covered by the Asylum Act and the Aliens Act.” [Unofficial translation].
  • 8. See Section 138 of Act XIX of 1998 on Criminal Proceedings.
  • 9. UNHCR, Hungary as a country of asylum, May 2016, 24.
  • 10. See Section 542/H of Act XIX of 1998 on Criminal Proceedings.

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