Author
The court has to appoint a legal representative and an interpreter in the detention review procedure for any asylum seeker who does not understand the Hungarian language and is unable to procure the services of a legal representative on their own.[1]
Even though the presence of an officially appointed lawyer is obligatory, the HHC has witnessed that lawyers usually do not object to the prolongation of detention. Officially appointed lawyers often provide ineffective legal assistance when challenging immigration detention, which is caused by their failure to meet their clients before the hearing, study their case file, or present any objections to the extension of the detention order. Besides, this ex officio legal assistance is only provided at the first court prolongation of the detention order (after 72 hours). This is corroborated by the Hungarian Supreme Court 2014 summary opinion, finding that the ex officio appointed legal guardians’ intervention is either formal or completely lacking and therefore the ‘equality of arms’ principle is not applied in practice. The CPT observed that:
‘[S]ome detained foreign nationals met by the delegation were unaware of their right of access to a lawyer, let alone one appointed ex officio. A few foreign nationals claimed that they had been told by police officers that such a right did not exist in Hungary. Moreover, the majority of those foreign nationals who did have an ex officio lawyer appointed complained that they did not have an opportunity to consult the lawyer before being questioned by the police or before a court hearing and that the lawyer remained totally passive throughout the police questioning or court hearing. In this context, it is also noteworthy that several foreign nationals stated that they were not sure whether they had a lawyer appointed as somebody unknown to them was simply present during the official proceedings without talking to them and without saying anything in their interest.’[2]
These statements remain true for 2022 as no changes have been implemented.
Since the cooperation agreements were revoked by the authorities in the summer of 2017, HHC lawyers do not have direct access to the detention centres or transit zones. HHC lawyers can only represent clients if the asylum seekers explicitly communicate the wish to be represented by the HHC lawyer to the NDGAP (they sign a special form). Once this form is received by the NDGAP, HHC lawyers can meet the client in a special room/container located outside the living sector of the detention centre/transit zone. This way legal aid in the asylum detention and transit zones is seriously obstructed, as free legal advice does not reach everyone in the facility, but only those explicitly asking for it.
In autumn 2020, a HHC lawyer was denied access to Nyírbator asylum detention centre due to COIVD-related restrictions. The HHC wrote a letter to the head of the NDGAP’s border guards department and after a while the access was granted again. As of February 2022, a HHC lawyer was again denied access to detention centre due to COVID-related restrictions. Later on there was no issue with the access.
Asylum seekers can contact their lawyers, if they have one, and meet them in privacy.
[1] Section 31/D(4) Asylum Act.
[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, para 55.