Asylum seekers in asylum detention have the same rights regarding legal assistance as those not detained. The same shortcomings apply to the provision of legal assistance (see section on Regular Procedure: Legal Assistance).
Since the cooperation agreements were revoked by the authorities in summer 2017, the HHC lawyers do not have direct access to the detention centres or transit zones. The HHC lawyers can only represent the 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, the HHC lawyers can meet the client in a special room/container located outside the living sector of the detention centre/transit zone. This way the 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 2016, the HHC lawyers provided legal advice to 997 asylum seekers detained and represented 178 clients during their judicial review of detention. For 2017, 2018 and 2019 data is only available for the number of all representation by the HHC lawyers at courts.
Asylum seekers can contact their lawyers, if they have one, and meet them in privacy.
Even though the presence of an officially appointed lawyer is obligatory, HHC has witnessed that the 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.”
In all other instances of the review of detention, the detainees have the right to free legal assistance under the state legal aid scheme, but this assistance in not available in practice.
CPT, Report to the Hungarian Government on the visit to Hungary carried out from 21 to 27 October 2015, 3 November 2016, para 55.