Use of medical reports
A medical expert opinion could be required to determine whether the asylum seeker has specific needs but there are no procedural rules on the use of such medical reports. However, no criteria are set out in law or established by administrative practice indicating when a medical examination for the purpose of drafting a medical report should be carried out.
In case the asylum seeker’s statements are incoherent and contradictory, it is possible to prove with the aid of a medical expert report that this is due to the applicant’s health or psychological condition or due to previous trauma. Therefore, the credibility of the asylum seeker should not be doubted based on his or her statements.
The HHC’s experience shows that medical reports were frequently used in practice but mostly at the request of the applicant. The former IAO and NDGAP has the possibility to order a medical examination ex officio in case the applicant consents to it. However, this was rarely the case. It was usually the legal representative who obtained and submitted the medical opinion in order to substantiate the applicant’s well-founded fear of persecution. In case the applicant obtained a private medical opinion, he or she has to cover the costs; the NDGAP covers the costs only for medical opinions it requests itself. The only NGO that deals with psychosocial rehabilitation of torture victims is the Cordelia Foundation, which prepares medical reports on applicants’ conditions in line with the requirements set out in the Istanbul Protocol. The psychiatrists of this NGO, however, are not forensic experts and in some cases their opinion was not recognised by the former IAO or courts, since according to the Act CXL of 2004 on the General Rules of Public Administration Procedures (in effect at the material time), the expert opinion may only be delivered by a forensic expert registered by the competent ministry. For the reasons above (the lack of an official forensic expert standing in proceedings), sometimes both the former IAO and the courts disregarded the medical opinion issued by the Cordelia Foundation.
Since all asylum seekers with the exception of unaccompanied children below the age of 14 – and those applied for asylum having lawful residence –are held in the transit zone, to which Cordelia Foundation has no access, medical reports are no longer used in the asylum procedures in the transit zones. Medical reports provided by the Cordelia Foundation remain to be used in asylum and Dublin procedures of unaccompanied children below the age of 14 and in Dublin procedures, with the aim of providing proof of their special vulnerability to the receiving Member State such as in those cases who apply for asylum within the territory of Hungary thus have access to the services of Cordelia Foundation.
The HHC lawyers report that in the transit zones the NDGAP does not take the medical reports into account at all. Moreover, the legal representative has no access to them; neither the client gets a copy of them, but can ask for it. The medical reports are not stored together with the case files so many times the case officers do not even know about the medical problem if the asylum seeker did not mention it during the interview. Once the former IAO did not know about the pregnancy of a woman who was already in her 6th month.
In January 2018, the CJEU ruled that asylum seekers may not be subjected to a psychological test in order to determine their sexual orientation as this would mount to disproportionate interference in their private life.
 Section 3(2) Asylum Decree.
 Section 59 Asylum Act.
 Section 58(3) Asylum Act.