By Martha Schillmöller 

The harsh anti-immigration stance of the Hungarian government has been slowly deteriorating the respect for human rights and international law in the country. This development has worsened the situation of the most vulnerable population, notably asylum seekers. Hungary is situated in the Eastern and South-Eastern migration routes, with the Western Balkan route being the most active. Controversially, the right-wing government of Prime Minister Viktor Orban installed a system under which asylum seekers are detained in transit zones indefinitely. Thereby, Hungary’s policies have been subject to criticism by national and international NGOs as well as the European Commission. This article looks at the impact and challenges of independent monitoring mechanisms on national asylum policy and the treatment of asylum seekers.

The CPT Report: Restricted Access to the Hungarian Asylum Process

On September 18, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) – a body of the Council of Europe – published its report on their visit to Hungary. For a week in October 2017, the CPT’s delegation visited two transit zones at Röszke and Tompa situated on the border with Serbia. The visit was both, a follow-up to the recommendations made in their last report and an observation of the practical implementation of amendments to Hungarian legislation concerning foreign nationals, which de facto abolished the right to asylum.

According to the 1951 Refugee Convention, a refugee is someone “unable or unwilling to return to country of origin … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership to social group, or political opinion”. In turn, an asylum seeker “might be a refugee” while its refugee claim has yet to be processed.

Since March last year, people in an “irregular situation” in Hungary can apply for asylum only within transit zones in order to systematically reduce the number of asylum applications. Today, the de-facto chances of being granted asylum are extremely low. Hungary regards Serbia as a safe third country and since this summer, asylum claims are automatically inadmissible if the claimant entered Hungary via a country qualified as “safe”.

In its findings, the CPT raises concerns over the inhuman and degrading treatment, suffered by asylum seekers that are pushed back to Serbia, as well as the asylum procedures applied inside the transit zones. The report further criticizes a lack of effective remedies available for complaints.

The Hungarian government received the report earlier this year in April and insisted that its response was published jointly with the actual report. Refuting many of the concerns, the government sought to distract from its misbehavior. As such, it justified measures inducing a “reduction in the number of applications for asylum applications“ with the claim that the “German and Austrian governments have initiated similar measures”. Yet, Hungary’s transit-zone system and violent push-back policies portray a more radical approach which make it almost impossible to host an asylum claim.

The Recurrence of Human Rights Violations

In the landmark ruling MSS v Belgium and Greece, the European Court of Human Rights (ECtHR) asserted strong duties to protect human rights on all transferring States. As the UNHCR does not consider Serbia a safe third country, Hungary is discarding these obligations exposing migrants to possible chain-refoulement, which means the expulsion to countries where individuals could be at risk of refoulement to their country of origin: The CPT concluded that due to “the legal amendments (…) all foreign nationals irregularly entering Hungary (…) are subject to automatic forcible removal to Serbia“. In its response, the Hungarian Government argued, “the Report contains large number of findings that are contrary to facts, which makes its nature political rather than professional”. Thereby, the government discharges the findings as fake and deems human rights to be mere politicized issues.

Two main issues illustrate Hungary’s current behavior:

1. In 2017, Ilias Ahmed v. Hungary, called out the possible exposure of two asylum seekers to inhuman and degrading treatment in the event of chain-refoulement to Greece. It further found a lack of effective complaint mechanisms to report their detention condition. The judgement, even though a small, constitutes a decisive step for the improvement of human rights conditions in Hungary However, the government continues to refute allegations of arbitrary detention arguing that individuals could leave the zone at any time (meaning to Serbia). This is clearly a distortion of reality considering that leaving the zones will certainly result in a rejection of asylum.

2. In August this year, the Hungarian Helsinki Committee issued an emergency report stating that asylum seekers in the Hungarian transit zone had been deprived of food. Hence, it requested interim measures through the ECtHR – these measures apply in situations of “imminent risk of irreparable harm”. Consequently, the families were again provided regular meals. Considering the government reaction to the CPT report, the deprivation of food appears “consistent” with measures to reduce the number of asylum applicants. Depriving people of food as “incentives” to leave is intolerable.

Barrier in Hungarian-Serbian border. (Wikimedia Commons)

The Importance of Effective and Adequate Enforcement Mechanisms

Hungary’s policies reveal a deficiency in its perception of universal human rights. The government must be reminded of international agreements that require the government to provide asylum seekers and irregular migrants (regardless of their status) with food. Hungary signed the European Social Charter, which urges the state to assure the “right to social and medical assistance” to anyone.

The follow-up of the Ilias Ahmed vs. Hungary judgement will be of great importance. In theory, the ECtHR provides adequate enforcement mechanisms and monitoring strategies. Yet, the effectiveness in assuring compliance in practice remains key.

The longer and the more obstinate a country refuses to comply with human rights, the more political the issue becomes. The violation of human rights must not go unseen on the international stage and hence may affect inter-state relations. In theory, there should be incentives to comply with human rights, i.e. to guarantee legitimacy through internal and external ramifications, to avoid “naming and shaming” and condemnation by supranational courts and lastly, to rely on the principle of reciprocity vis-à-vis other states.

Governments appear to have a strong incentive to join the ECHR system to get access to a platform of state discourse and international recognition. However, once part of the community, they are often reluctant to comply with ECtHR judgments. Reason for this behavior roots in the blurriness of sanctions including the proceedings for non-compliance. It does not help that non-compliance with judgments or recommendations affects none of the remaining states, neither economically nor militarily, which could be a reason to refrain from violations to stay in good terms with other member states.

Alternative Mechanisms to Achieving Accountability

Hungary’s request to publish its response together with the CPT report itself shows a little concern about reputation. This reinforces the political nature of human rights implications. The ability of governments and civil society to recognize and take stock of the ECtHR judgments and recommendations is critical. “Naming and shaming” combined with other soft-law tools such as the CPT reports can be more effective than financial retribution. Moral retribution can have internal as well as external political consequences.

Clear communication and publication of reports, judgments and recommendations may have a two-fold beneficial effect: visibility can generate public information as well as pressure on the government in question. A decisive factor of the Helsinki Committee’s success on the issue of food deprivation in transit zones was not merely the granted interim measures. The impact was based on a concise report about their proceedings published on their website and awareness-raising campaigns on social media.

The solicited response of civil society organisations constitutes a subtle, yet powerful means to be the human rights consciousness of policy-makers. Hungary is not indifferent about its status on a European level as shows, for example, the implementation of certain recommendations concerning housing conditions. External pressure does influence how a country is perceived and therefore can be a driver of internal change. Increasing visibility of human rights violations by states is a first step towards achieving accountability. ♦

Martha Schillmöller is currently enrolled in the Master program Human Rights and Humanitarian Action at Sciences Po and the Freie Universität.