Regular entry through transit zones
The barbed-wire fence along the 175 km long border section with Serbia was completed on 15 September 2015. A similar barbed-wire fence was erected a month later, on 16 October 2015, at the border with Croatia. So-called “transit zones” have been established 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 (these two were never operational). They consist of a series of containers, which host actors in a refugee status determination 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 in a “court hearing room”, who may only be present via a videoconference; in the past, a court clerk could also have issued the judgment, but as of 2018 they are no longer entitled to do so. After the construction of the fences, the number of asylum seekers arriving in Hungary dropped significantly. However, this is not due to the people not wishing to enter Hungary because of the fence, but due to the entry quota imposed by the NDGAP and former IAO, as discussed below. 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 fourth 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 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 2016, only 20-30 persons per day were let in at each transit zone. From November 2016, only 10 persons were let in per day and only through working days, due to the changes in working hours of the former IAO. In 2017, only 5 persons were let in per day in each transit zone. From 23 January 2018 until the end of 2019, only one person was let in each transit zone per day, and sometimes even this low quota was not followed. For example in the first week of July 2018, no asylum seeker was allowed to enter into the transit zones and since mid-December 2019 no asylum seeker is allowed to enter the Tompa transit zone. The above-described policy hinders access to the asylum procedure for most asylum seekers arriving at this border section of the EU.
On 19 July 2018, the European Commission decided to refer Hungary to the Court of Justice of the European Union (CJEU) for non-compliance of its asylum and return legislation with EU law. Among other issues, the Commission considers that Hungarian legislation falls short of the requirements of the recast Asylum Procedures Directive as it only allows asylum applications to be submitted within such transit zones where access is granted only to a limited number of persons and after excessively long waiting periods.
The NDGAP decides exactly who can enter the transit zone on a particular day. Beginning in March 2016, an ever-growing number of migrants continued 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 waited 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 were children. 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 provided little to nothing to meet basic human needs or human rights. Migrants waited idly in dire conditions.
In autumn 2016, the Serbian authorities decided to terminate the practice of waiting in the pre-transit zone and now all asylum seekers that wish to be put on the waiting list in order to be let to the transit zone in Hungary need to be registered in one of the temporary reception centres in Serbia and wait there until it is their turn to enter the transit zone. The only person staying in the pre-transit zone for longer periods of time is the community leader, as discussed below. People who are about to enter the transit zone are brought to the pre-transit zone usually one day in advance of their entry. Since April 2018, the role of the community leader in the pre-transit zone is shared between the fathers of the families from the Subotica reception centre. They rotate, with each staying for about 4 days in the pre-transit zone. This is necessary in order to prevent people from accessing pre-transit area and jumping the list. In addition, since there is no direct communication between Hungarian and Serbian authorities, fathers are used for communication between the authorities. The fathers stay in the heated tent in Röszke and in the abandoned duty free shop in Tompa. Hungarian authorities give them food once a day.
The clear criteria that determine who is allowed access to the transit zone are time of arrival and 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 children and one for single men. In Tompa there is a single list containing the names of all three groups. The names are put on the list by the Serbian Commissariat for Refugees, once the people register at the temporary reception centres in Serbia. The list is then communicated to the so-called community leader (an asylum seeker) who is chosen by the Commissariat and who is placed in the pre-transit zone. The community leader then communicates the list to the Hungarian authorities. The Hungarian authorities allow people into the transit zones based on these lists and communicate the names of the people entering the transit zone in the following days to the community leader, who then informs the Commissariat who then informs the people. There is no official communication between the Hungarian and Serbian authorities on this matter. The HHC observes that the waiting time in Serbia is already exceeding a year.
Several abuses were reported regarding the use of the list. Families with small children enjoy priority over single men and usually some unaccompanied children are also allowed entry each Thursday. However, there are other determining factors when it comes to entry, which are not so clear and this lack of clarity 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. Having to wait for more than a year in order to be let in the transit zone is therefore clearly against the recast Asylum Procedures Directive. Information on waiting lists was confirmed in several reports.
Irregular entry and police violence
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 former 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, 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.
The criminalisation of illegal entry targeting asylum seekers ceased to be of relevance with the 5 July 2016 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”. In 2017, no such case was reported. The HHC is not aware of any case in 2018 and the National Judicial Office did not provide any information in this regard, as they do not have relevant statistics. According to the Police, there was one criminal procedure started with the charge of illegal crossing of the border fence in 2019. As for the outcome of the procedure (i.e. the judicial judgment) the Police does not have data.
Legal amendments that entered into force on 5 July 2016 allowed the Hungarian police to automatically push back asylum seekers who were 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). Legalising pushbacks from within Hungarian territory denies asylum seekers the right to seek international protection, in breach of international and EU law, and according to the HHC constitutes a violation of Article 4 of Protocol 4 of the European Convention on Human Rights (ECHR). Those pushed back have no practical opportunities to file a complaint. As a result of the legalisation of pushbacks 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. 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. Two HHC cases on collective expulsion addressing the unlawful pushbacks were communicated in 2017 by the European Court of Human Rights (ECtHR).
The Human Rights Committee has criticised this practice and recommended to the Hungarian Government to repeal the pushback law established in June 2016 and the amendments thereto, and to legally ensure that the removal of an individual is always consistent with the State party’s non-refoulement obligations and to refrain from collective expulsion of aliens and ensure an objective, individualised assessment of the level of protection available in “safe third countries”; and to ensure that force or physical restraint is not applied against migrants, except under strict conditions of necessity and proportionality, and ensure that all allegations of use of force against them are promptly investigated, that perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, and that victims are offered reparation.
GRETA noted that irregular migrants and asylum seekers are groups, which are particularly vulnerable to trafficking. As a consequence, collective expulsions negatively affect the detection of victims of trafficking amongst them and raise grave concerns as regards Hungary’s compliance with certain obligations of the Council of Europe Convention on Action against Trafficking in Human Beings, including the positive obligations to identify victims of trafficking and to refer them to assistance, and to conduct a pre-removal risk assessment to ensure compliance with the obligation of non-refoulement.
One of the key elements of the amendments that entered into force on 28 March 2017 is that when the state of crisis due to mass migration is in effect, irregularly staying migrants found anywhere in Hungary are to be escorted to the external side of the border fence with Serbia, thus extending the 8-km zone to the entire territory of Hungary. This includes the migrants who have never even been to Serbia before and have entered Hungary through Ukraine or Romania. Migrants who arrive at the airport and ask for asylum there, are also pushed back to Serbia, although they have never even been there, since they arrived by plane from another country.
In 2017, 9,136 migrants were pushed back from the territory of Hungary to the external side of the border fence and 10,964 migrants were blocked entry at the border fence. 4,151 pushbacks happened in 2018. The police in Hungary apprehended some 840 migrants in an irregular situation between 1 September and 31 October 2018; this occurred close to the border in all cases. According to the data of the National Headquarters of the Police, these persons were escorted back to the outer side of the fence at the Hungarian-Serbian border. In 2019, 11,101 migrants were pushed back from the territory of Hungary to the external side of the border fence and 961 were blocked entry at the border fence.
The European Committee for the Prevention of Torture (CPT) concluded in its latest report on Hungary that although authorities often took photos of the apprehended migrants while escorting them back to the gates along the border fence, such photos were taken randomly and did not serve the purpose of registration. Also in Hungary, the police and the army prevented 241 people from crossing the border into Hungary via the border fence, the National Headquarters of the Police reported.
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. His surviving brother is represented by the HHC and since a criminal investigation in relation to the tragic incident has been closed, the case is now pending at the ECtHR.
The fact that violence against potential asylum seekers has been 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. 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. 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. 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”. UNHCR also expressed its concerns about Hungary pushing asylum seekers back to Serbia. In 2017, the following reports addressing these issues were published: a HHC report published jointly with regional partners entitled “Pushed Back at the Door”, the Oxfam report “A Dangerous ‘game’”, the MSF report “Games of violence”, and the report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees to Serbia and two transit zones in Hungary. The CPT published a report on their visit to Hungary in autumn 2017, which confirmed ill-treatment of migrants along the Hungarian-Serbian borders. Several migrants interviewed by the CPT confirmed that they had been physically mistreated by Hungarian police officers in the context of their apprehension and escorting back through the border fence. The CPT delegation observed the signs of the recent traumatic injuries, which, in the view of the delegation’s doctor, were consistent with the allegations of mistreatment.
The Commissioner for Human Rights of the Council of Europe Dunja Mijatović wrote in the report following her visit to Hungary from 4 to 8 February 2019 that, “Human rights violations in Hungary have a negative effect on the whole protection system and the rule of law. They must be addressed as a matter of urgency”. This includes the arbitrary detention of asylum seekers in transit zones along the Hungarian-Serbian border and “repeated reports of excessive violence by the police during the forcible removals of foreign nationals”. On 8 June 2019, the Parliamentary Assembly of the Council of Europe published a report on Pushback policies and practice in Council of Europe member States. Pushbacks and violent policing practices in the Balkan Region remain a serious matter of concern in 2019, according to a report published by the Border Violence Monitoring Network.
In 2019, ECtHR communicated another case addressing ineffective investigation of police violence during a push back. In light of the unprecedented number 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 made on 14 June 2016. 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 after he had been apprehended. The HHC requested that the Police launch an investigation immediately, 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 they “guarantee 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.
In 2017, despite the fact that as many as 56 reports on abuse committed against migrants at the border have been filed and that the prosecutor’s office has launched 50 investigations, only one member of the police and one member of the army have been convicted (fined) in court.
On 19 July 2018, the European Commission decided to refer Hungary to the CJEU for non-compliance of its asylum and return legislation with EU law. The Commission considers that within its territory, Hungary fails to provide effective access to asylum procedures as irregular migrants are escorted back across the border, even if they wish to apply for asylum.
 Section 94 of Act CXLIII of 2017 amending certain acts relating to migration.
 Info Park, ‘Hungary reduces quota for regular entry into asylum procedures’, 25 January 2018, available at: http://bit.ly/2Fiaq8i; UNHCR, ‘Hungary: UNHCR dismayed over further border restrictions and draft law targeting NGOs working with asylum-seekers and refugees’, 16 February 2018, available at: https://bit.ly/2SbVVaV; FRA, Periodic data collection on the migration situation in the EU, November 2018, available at: https://bit.ly/2To4QI2.
 See e.g. Council of Europe Lanzarote Committee, Special report further to a visit to transit zones at the Serbian/Hungarian border, T-ES(2017)11, 30 January 2018, available at http://bit.ly/2C6bYyZ, 13.
 Article 6(2) recast Asylum Procedures Directive.
 Council of Europe, Report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees to Serbia and two transit zones in Hungary, 12-16 June 2017, available at http://bit.ly/2nLosa8; Heinrich Böll Stiftung, ‘The game of hope – Asylum seekers at the Serbian-Hungarian border’, 11 December 2017, available at: https://bit.ly/2DQkKV0; FRA, Periodic data collection on the migration situation in the EU, February 2018, available at: https://bit.ly/2UyOywb; GRETA, Report on Hungary, GRETA(2018)13, 27 April 2018, available at: https://bit.ly/2GxAEY0.
 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.”
 Information provided by the National Judicial Office, 8 February 2019.
 Information provided by the Police, 17 January 2020.
 ECtHR, Khurram v. Hungary, Application No 12625/17; H.K. v. Hungary, Application No 18531/17, Communicated on 21 December 2017.
 Information provided by the Police.
 UNHCR, ‘UNHCR alarmed at refugee death on Hungary-Serbia border’, 6 June 2016, available at: https://bit.ly/2VIiBoC.
ECtHR, Alhowais v. Hungary, Application No. 59435/17, http://bit.ly/2NI7nf0.
 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.
Oxfam et al., A dangerous ‘game’: The pushback of migrants, including refugees, at Europe’s borders, April 2017, available at: https://bit.ly/2x4Uyq1.
 Council of Europe, Report of the fact-finding mission by Ambassador Tomáš Boček, Special Representative of the Secretary General on migration and refugees to Serbia and two transit zones in Hungary, 12-16 June 2017, available at http://bit.ly/2nLosa8.
 Commissioner for Human Rights of the Council of Europe Dunja Mijatović; Report following the visit to Hungary from 4 to 8 February 2019, 21 May 2019, http://bit.ly/2TwWsIO.
 Council of Europe, Parliamentary Assembly: Pushback policies and practice in Council of Europe member States [Doc. 14909], 8 June 2019, http://bit.ly/30pgxm8.
 Border Violence Monitoring Network, https://www.borderviolence.eu/.
Shahzad Khurram v. Hungary, Appl. No. 37967/18, http://bit.ly/30BPXWV.