Judicial review of the detention order

Hungary

Country Report: Judicial review of the detention order Last updated: 30/11/20

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Hungarian Helsinki Committee Visit Website

Asylum seekers are informed of the reasons of their detention and their rights orally in a language that they understand, but the detention order is given to them in Hungarian. Asylum seekers often complain that they were not properly informed, or they did not understand the grounds of their detention and the length thereof.[1] The CPT confirmed this and made an explicit recommendation to the Hungarian government regarding this issue.[2]

CPT further finds that: “[…] many foreign nationals (including unaccompanied juveniles) complained about the quality of interpretation services and in particular that they were made to sign documents in Hungarian, the contents of which were not translated to them and which they consequently did not understand.”[3] And that:

“[A] number of the foreign nationals interviewed during the visit claimed that they had not been informed upon their arrival at the establishment of their rights and obligations in a language they could understand (let alone in writing) and that they had been made to sign documents which they had not understood. They were also uncertain, for example, whether and to whom they could lodge complaints. The examination by the delegation of a number of personal files of detained foreign nationals revealed that some of the files contained a copy of information materials provided to the foreign national concerned. However, in all cases, they were in Hungarian and only some of them were signed by the foreign national concerned and/or an interpreter.”[4]

There are no separate legal remedies against the asylum and immigration detention orders since the NDGAP’s decision on detention cannot be appealed. The lawfulness of detention can only be challenged through an automatic court review system. Section 31/C(3) of the Asylum Act, however, provides that asylum seekers can file an objection against an order of asylum detention.  

In recent years, the effectiveness of judicial review has been criticised by the CoE Commissioner for Human Rights expressed concern as to the lack of effective judicial review,[5] UNHCR[6] and the UNWGAD.[7]

 

Automatic judicial review

Judicial review of the administrative decision imposing detention on a foreigner is conducted by first instance courts in case of a decision for the purpose of extending the duration of detention. Detention may initially be ordered by the NDGAP for a maximum duration of 72 hours, and it may be extended by the court of jurisdiction upon the request of the NDGAP, which should be filed within 24 hours from the time it has been ordered. The court may grant an extension of asylum detention for a maximum duration of 60 days. Every 60 days, the NDGAP needs to request the court for another prolongation, 8 working days prior to the due date for extension. The court can prolong detention for 60 days repeatedly up to 6 months. The court has to decide on prolongation before the date of expiry of the detention order.

The hearing in the judicial review procedure is mandatory in the first prolongation procedure (after 72 hours of detention) or if the detained person asks for it when he or she files an objection against the detention order. The court shall appoint a lawyer for the asylum seeker if he or she does not speak Hungarian and is unable to arrange his or her representation by an authorised representative. Asylum seekers are often not informed that they can request a hearing. The HHC’s lawyers reported that it often happened that, where an asylum seeker requested a hearing, the court reacted in a discouraging way, asking why he or she has requested a hearing if no change has occurred since the detention was ordered.

Judicial reviews of immigration and asylum detention are conducted mostly by criminal law judges. Judicial review of immigration detention has been found to be ineffective, as Hungarian courts fail to address the lawfulness of detention in individual cases or to provide individualised reasoning based upon the applicant’s specific facts and circumstances. HHC’s analysis of 64 court decisions from February 2014 (as does the experience of HHC lawyers in 2015) confirmed that the judicial review of asylum detention is ineffective because of several reasons:[8]

Firstly, the proceeding courts systematically fail to carry out an individualised assessment as to the necessity and the proportionality of detention and rely merely on the statements and facts presented in the former IAO’s detention order, despite clear requirements under EU and domestic law to apply detention as a measure of last resort, for the shortest possible time and only as long as the grounds for ordering detention are applicable.[9] As an extreme example demonstrating the lack of individualisation, 4 decisions of the Nyírbátor District Court analysed by the HHC contained incorrect personal data (name, date of birth or citizenship of the applicant).[10] The judges are only able to make their decisions on the basis of the unilateral information in the motions submitted by the NDGAP, because the documents supporting those motions are not submitted to the courts. Therefore, it is not really possible to have individualised decisions on each case, resulting in a formulaic nature of the courts’ statements of reasons.

Moreover, 4 court decisions contained a date of birth which indicates an age lower than 18 years.[11] Nevertheless, none of the decisions questioned the lawfulness of detention of the persons concerned, nor did they refer to any age assessment process or evidence proving the adult age of the asylum seeker concerned.

According to a survey conducted by the Hungarian Supreme Court, out of some 5,000 decisions made in 2011 and 2012, only 3 discontinued immigration detention, while the rest simply prolonged detention without any specific justification.[12] The HHC’s attorneys report that if the asylum seeker is not represented by an attorney who is not an ex officio attorney, the chances of success at the court are equal to zero. If the asylum seeker is represented, then there is a very slim chance that he or she would be released. The same findings apply for 2018.

The 60-day interval for automatic judicial review per se excludes the use of detention only for as short a period as possible and only until the grounds for detention are applicable, as it would be required by EU law.[13] If for any reason, the relevant grounds for detention cease to be applicable, for example, one week after the last judicial review, this fact is extremely unlikely to be perceived by the detaining authority and the detainee will only have the first chance to bring this change to the attention of the district court and request to be released only 53 days later. Therefore, the 60-day intervals cannot be considered as “reasonable intervals” in the sense of Article 9(5) of the Recast Reception Conditions Directive.

The Asylum Working Group of the Supreme Court adopted a summary opinion on 13 October 2014, which, based on a vast analysis of cases and consultations with judges and experts, dealt with a number of different issues including the judicial review of asylum detention. Such summary opinions constitute non-binding guidance to courts, aimed at the harmonisation of judicial practices, and are not related to a particular individual case. The Kúria confirmed HHC’s concerns with regard to the ineffectiveness of the judicial review of asylum detention in all aspects, and concluded that “the judicial review of asylum detention is ineffective”, for the same reasons as in the case of immigration detention.

The Kúria especially pointed out inter alia that judicial decisions are completely schematic and limit themselves to the mere repetition of the arguments submitted by the authority ordering detention; judges are overburdened, insufficiently qualified and not in a position to conduct an individualised assessment, nor able to verify whether or not detention was ordered as a “last resort”.

Despite the Supreme Court’s very positive analysis and guidance, nothing has changed since then in the practice. The same is true for the similar summary conclusions on immigration detention published in September 2013, which put forward very positive standards, with yet no visible impact on anything. 

Judges are overburdened, and the irrationally high number of cases they are assigned makes it impossible to provide effective judicial review. A systemic change is desperately needed in order to remedy the situation.

The Committee of Ministers of the Council of Europe did not close any of the Hungarian cases, where the judgment was delivered on the arbitrariness of detention of asylum seekers, as they are aware that Hungary did not implement any systemic changes.[14] In 2019, 7 cases concerning arbitrary detention of asylum seekers were communicated by the ECtHR.[15]

 

Objection

According to Section 31/C(3) of the Asylum Act, an asylum seeker may file an objection against the ordering of asylum detention and the denial of certain rights of detainees during detention e.g. right to use a phone, right to special diets etc. The amendments to the Asylum Act that entered into force in January 2018 prescribe that objections should be submitted within 3 days after the issuance of the detention order.[16] The objection must be decided upon by the local court within 8 days.[17] Based on the decision of the court, the omitted measure shall be carried out or the unlawful situation shall be terminated.[18]

In practice, however, the effectiveness of this remedy is highly questionable for a number of reasons. Firstly, an objection can only be submitted against the ordering of asylum detention (i.e. the decision of the NDGAP, ordering detention for 72 hours). Following the first 72 hours, asylum detention can only be upheld by the local District Court for a maximum period of 60 days. Thus, the legal ground for detention will not be the NDGAP’s decision, but that of the court. This means that only the first type of decision (that of the NDGAP) can be “objected” against. The objection can therefore still not be regarded as a stand-alone judicial remedy against the detention order, as following the 72-hour period asylum detention is subject to regular period review by the court, yet the period is too long (courts can prolong detention for a maximum of 60 days). Accordingly, the asylum seeker is left with no legal means to challenge the detention order at his or her own initiative (not only during the mandatory periodic judicial review).

Secondly, during the first 72 hours of detention, detained asylum seekers do not have access to professional legal aid. The Asylum Act ensures a case guardian for asylum seekers in asylum detention (who is an attorney at law appointed by the authority), but only for the regular prolongation of detention at 60-day intervals and the judicial assessment of an “objection” that has already been submitted to the court. No case guardian or ex officio appointed legal representative is present when asylum detention is ordered, nor is such assistance provided in the first 72 hours of detention. Therefore, no legal professional can help the detainee file an objection.

Thirdly, there are also serious general concerns about the effectiveness of information provision upon issuing the detention order. The law provides for an interpreter that the asylum seeker can reasonably be expected to understand. However, asylum seekers in asylum detention unanimously stated to HHC during its monitoring visits in the past that the information provision was more or less limited to the fact that a person is detained and the explanation about the specific grounds or other details, or appeal possibilities were not understood or not even provided.

No review of placement in transit zones

The NDGAP issues a ruling (“végzés”) ordering the applicant’s place of residence in the transit zone based on Sections 80/J(5) and 5(2)(c) of the Asylum Act.[19] This ruling is not a detention order, as transit zones are not considered places of detention by the government. There is no possibility to seek legal remedy against the ruling. It can only be challenged within the potential judicial review request against the future decision of the NDGAP on the asylum application.

Such a remedy is ineffective for several reasons. On the one hand, asylum seekers granted desired status do not have any interest in appealing a positive decision. Persons who receive protection are released and therefore the appeal against the placement in the transit zone is deprived of meaning since asylum seekers cannot complain about the conditions in the transit zone since they are no longer detained there. Additionally, the HHC is aware of cases where the Szeged Court did not adjudicate on the lawfulness of the asylum seekers’ past placement in the transit zone, arguing that there was no need for that since the asylum seeker had been already released from the transit zone.

The HHC is also aware of cases where this type of remedy has already been proved ineffective even in case of those who had a – successful – judicial review performed in relation to the former IAO’s ruling (as well as the in-merit decision) and who had to stay in the transit zone for the duration of the appeal. Although the Szeged Court found that the former IAO’s ruling on placement in the transit zone was unlawful and therefore annulled the ruling and ordered the former IAO to deliver a new ruling on the placement in the re-opened asylum procedure, the court had not carried out any assessment as to whether the plaintiff’s placement in the transit zone was appropriate and met the legal requirements under the recast Reception Conditions Directive and Article 3 ECHR. More importantly, since the court has no reformatory powers, it cannot issue a ruling that would remedy the asylum seeker’s situation to avoid future violations. Even in case of annulment, the former IAO still avoided compliance with the court’s order. The HHC is aware of several cases where despite the court ruling that placement in the transit zone was unlawful and ordering that asylum seekers should be placed in another open camp, the former IAO ignored the court’s decision and re-appointed the transit zone as a place of stay in the repeated procedure.[20]

In 2018, the Szeged Administrative and Labour Court annulled several transit zone placement decisions,[21] and the former IAO actually respected the court decisions and placed the applicants in the open community shelter in Balassagyarmat. The Szeged Court adopted a position that according to the Article 43(2) of the Asylum Procedures Directive, a placement in a transit zone at the border can last maximum 4 weeks and annulled all the placement orders that were appealed (appeal can only be made together with the appeal against a decision on the asylum case), where asylum seekers were held there for longer. Unfortunately, this practice lasted only until February 2019. From then on, the Metropolitan Court started to have exclusive jurisdiction to adjudicate the cases from the transit and Metropolitan Court did not adopt the same position on the legality of placement in the transit zone. The HHC attorneys were involved in more than 200 asylum cases at the Metropolitan court in 2019 and they are only aware of 5 interim measures ordering the release of asylum seekers from the transit zone, that were granted by three judges all together. Families with small children have been detained for extensive period of time in the transit zones and interim measures are categorically refused.

The HHC attorneys brought actions for omission to the Szeged Administrative and Labour Court, claiming that the NDGAP is in omission by not applying necessary detention related procedural safeguards to people detained in the transit zones. The Szeged Court granted an interim measure, ordering a release of a father and his 8 years old son, who have been detained in the transit zone for almost a year. The NDGAP did not execute the interim measure, but instead appealed to the Regional Court. The Upper Court annulled the interim measure, therefore the father and the son are still in the transit zone, now for over a year already. These omission cases are currently suspended because of a preliminary reference referral, asking amongst others also whether the placement in the transit zone is a deprivation of liberty.[22]

 


[1]Cordelia Foundation et al., From Torture to Detention, January 2016.

[2]CPT, Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, 3 November 2016, paras 58 and 63.

[3]Ibid, para 59.

[4]Ibid, para 62.

[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: https://bit.ly/2Ts4hOs.

[7]UN Working Group on Arbitrary Detention, Hungary: UN experts concerned at overuse of detention and lack of effective legal assistance, 2 October 2013, available at: https://bit.ly/3akzkCA.

[8]HHC, Information Note on asylum-seekers in detention and in Dublin procedures in Hungary, May 2014.

[9]Articles 8(2) and 9(1) recast Reception Conditions Directive; Section 31/A(2) Asylum Act.

[10]Nyírbátor District Court, Decisions Nos 1.Ir.214/2014/3., 9.Ir.350/2014/3., 1.Ir.728/2013/5., 9.Ir.335/2014/3.

[11]Nyírbátor District Court case 1.Ir.46/2014/3., Debrecen District Court cases 68.Beü.94/2014/4-I.,68.Beü.108/2014/4, 68.Beü.104/2014/4., 68.Beü.1087/2014/4.

[12]Supreme Court, Advisory Opinion of the Hungarian Supreme Court adopted on 30 May 2013 and approved on 23 September 2013.

[13] Article 9(1) recast Reception Conditions Directive.

[14]The two leading cases are Nabil and Others v. Hungary, Appl. No. 6116/12, 22 September 2015 and Lokpo and Toure v. Hungary, Appl. No. 10816/10, 20 September 2011.

[15]Ahmed AYAD v. Hungary and 4 other applications, Appl. Nos. 7077/15, 26250/15, 26819/15, 32038/15, 48139/16, http://bit.ly/36bs0a2; S.B. v. Hungary, Appl. No. 15977/17, http://bit.ly/2uYkyC7 and Dragon DSHIJRI v. Hungary, Appl. No. 21325/16, http://bit.ly/2uYkyC7.

[16]Section 31/C(3) Asylum Act.

[17]Section 31/C(4) Asylum Act.

[18]Section 31/C(5) Asylum Act.

[19]Section 80/J(5)Asylum Act: “The refugee authority shall appoint the territory of the transit zone for the person  seeking recognition as place of residence for the period until the adoption of a final decision: this cannot be challenged by way of applications for remedy or when an order on a Dublin transfer becomes enforceable. The person seeking recognition can leave the territory of the transit zone via the exit gate. ”Section 5(2) Asylum Act: “A person seeking asylum is required: c) to stay and live in the place of accommodation designated by the refugee authority in due compliance with this Act, and to abide by the rules of conduct in such designated place of accommodation.”

[20]HHC, The Immigration and asylum office continues to ignore court decisions and interim measures, 14 December 2018.

[21]See e.g. District Court of Szeged, Decisions No 6.K.27.060/2018/8 and 44.K.33.689/2018/11.

[22]C-924/19 and 925/19, referred on 18 December 2019.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation