Judicial review of the detention order

Hungary

Country Report: Judicial review of the detention order Last updated: 10/07/24

Author

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]

The CPT further found 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 who expressed concern as to the lack of effective judicial review,[5] along with 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.

A 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 they file an objection against the detention order. The court shall appoint a lawyer for the asylum seeker if they do not speak Hungarian and are unable to arrange their 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 they had requested a hearing if no change had occurred since the detention was ordered.

In January 2021, a client of the HHC was placed in asylum detention and despite the request for a hearing and an obligation to hold a hearing in the first prolongation procedure, the Nyírbator court refused to hear the applicant stating that due to COVID restrictions and the state of health this was not possible. According to the Asylum Act, the hearing during the first prolongation procedure can only be omitted only if a) the person seeking asylum is unfit or unable to be interviewed owing to being hospitalised, or b) the complaint or the motion does not originate from a party entitled to do so.[8] The applicant was not in a hospital and therefore not holding a hearing was clearly unlawful.

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. The HHC’s analysis of 64 court decisions from February 2014 (and the experience of HHC lawyers in 2015) confirmed that the judicial review of asylum detention is ineffective because of several reasons.[9] According to the HHC the below shortcomings were still observed in 2020, 2021 and 2022.

Firstly, the proceeding courts systematically fail to carry out an individualised assessment regarding the necessity and 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.[10] 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).[11] 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 the 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.[12] 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.

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 they will be released. The same findings apply today.

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 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’s first chance to bring this change to the attention of the district court and request their released will be 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,[14] 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 the 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.

The Committee of Ministers of the Council of Europe, who monitors the execution of ECtHR judgments, has not closed any of the Hungarian cases where the judgment was delivered on the arbitrariness of detention of asylum seekers, as they are aware that Hungary has not implemented any systemic changes.[15] In 2019, 7 cases concerning arbitrary detention of asylum seekers were communicated by the ECtHR[16] and one in 2021.[17]

When an asylum seeker is detained based on being considered a risk to national security, the reasons for such classification are classified data to which the detainee or their representative does not have access (not even to the essence of it). The judge reviewing detention could have access to the classified data, but they never ask for it, therefore, such detention is often prolonged automatically, without any chance to effectively challenge it.

 

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.[18] The objection must be decided upon by the local court within 8 days.[19] Based on the decision of the court, the measure shall be carried out or the unlawful situation shall be terminated.[20]

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 only subject to regular period review by the court, and 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 their 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 would issue 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.[21] That would not be qualified as a detention order, as transit zones were not considered places of detention by the government. There was no possibility to seek legal remedy against the ruling, which could only be challenged within the potential judicial review request against the future decision of the NDGAP on the asylum application. The HHC attorneys were involved in more than 900 transit zone detention cases, with diferent outcomes, as explained in past AIDA reports.[22]

 

 

 

 

[1] Cordelia Foundation et al., From Torture to Detention: Access of Torture Survivor and Traumatised Asylum-Seekers to Rights and Care in Detention, Hungary and Bulgaria, January 2016, available at: https://bit.ly/2wnwOgs.

[2] CPT, Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, 3 November 2016, available at: https://bit.ly/3IRZSiW, 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] Asylum Act, Section 31/D (7).

[9] HHC, Information Note on asylum-seekers in detention and in Dublin procedures in Hungary, May 2014, available at: https://bit.ly/3ISJ8Io.

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

[11] 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.

[12] 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.

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

[14] The Asylum Working Group of the Supreme Court summary opinion, 13 October 2014, https://bit.ly/3XDzzlk.

[15] The leading case is Lokpo and Toure v. Hungary, Appl. No. 10816/10, 20 September 2011.

[16] Ahmed AYAD v. Hungary and 4 other applications, Appl. Nos. 7077/15, 26250/15, 26819/15, 32038/15, 48139/16, available at: http://bit.ly/36bs0a2; S.B. v. Hungary, Appl. No. 15977/17, available at: http://bit.ly/2uYkyC7 and Dragon DSHIJRI v. Hungary, Appl. No. 21325/16, available at: https://bit.ly/3r2vsl5.

[17] L. v. Hungary, Appl. No.  6182/20, available at: http://bit.ly/3Sqzy2i.

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

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

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

[21] 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.’

[22] For further information about the situation prior to that, see previous updates of this report, available at: http://bit.ly/41vZs9h.

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