Hungarian army officers patrol with their dogs along the newly finished razor-wire fence erected on the border with Serbia. Sept. 13, 2015.

© 2015 Zalmaï for Human Rights Watch

(Budapest) – Hungary’s new border regime denies access to asylum and exposes vulnerable people to violence and prosecution, Human Rights Watch said today.

Thousands of asylum seekers and migrants have been trapped in Serbia as a result of the de facto closure of the Hungarian border since September 15, 2015, when a new border regime came into force and a border fence was completed. Riot police repulsed people trying to cross a closed border point with water cannons and teargas. Half of 98 asylum applications received at the Serbian border on September 15, as the new system was put into operation, were rejected by the end of September 16. At least 46 people who have tried to enter from Serbia irregularly since September 15 have been arrested and prosecuted for irregular entry.

“Hungary’s new border regime has a clear aim – to keep asylum seekers out of the country,” said Lydia Gall, Eastern Europe and Balkans researcher at Human Rights Watch. “It is reprehensible that Budapest is willing to use riot police and the criminal courts to avoid offering protection to people fleeing war and human rights abuse.”

The new regulations, in combination with the other amendments made to the asylum law in August, seriously impede access to asylum in Hungary, Human Rights Watch said. As a result of the legal changes, the government declared a state of emergency on September 16 due to “mass immigration.” This means criminal proceedings related to irregular border crossing or destruction of the fence will take precedence over other procedures, including adjudicating asylum claims.

The new border regime has three key elements:

  • A law that restricts access to asylum in Hungary for those who enter from Serbia and permits quick returns of asylum seekers to Serbia on the ground that it is deemed a “safe country” for asylum seekers; 
  • National authorities are allowed to declare a state of emergency and close border crossing points. They have already taken that step in four counties with the crossing points; and
  • Irregular entry is now a criminal offense, allowing authorities to imprison people who cross the border irregularly for up to eight years, deport them, and bar their reentry.

Taken together these measures make it nearly impossible for asylum seekers to get protection in Hungary, a violation of the country’s international obligations, Human Rights Watch said. The European Union Charter of Fundamental Rights guarantees the right to asylum. The United Nations refugee agency, UNHCR, has raised concern about penalizing asylum seekers who cross a border irregularly to seek protection, in light of Hungary’s obligations under the Refugee Convention, with High Commissioner for Refugees Antonio Guterres noting that, “It is not a crime to cross a border to seek asylum.”

Under the new rules, claims by asylum seekers who manage to enter Hungary via official crossing points from Serbia can be rejected in under 15 days through an accelerated procedure. Asylum seekers whose claims are refused can be forcibly returned to Serbia.

On September 16, Prime Minister Viktor Orban’s security adviser, Gyorgy Bakondi, said at a news conference that 48 of the 98 asylum applications submitted at the border between 4:30 p.m. and midnight on September 15 had already been rejected, with 7 under appeal. The location of those whose claims were rejected is unclear. It is also unclear whether any rejected asylum seekers have subsequently been forcibly returned to Serbia.

Available evidence indicates that Serbia should not be considered a safe country of asylum. In April, Human Rights Watch documented serious police abuse of asylum seekers and migrants in Serbia and shortcomings in the Serbian asylum system. Human Rights Watch found that only 16 people had been awarded protection since 2008 and that Serbia had failed to provide special protection to unaccompanied children. Amnesty International documented similar problems in July. On September 17, UNHCR stated that the asylum system in Serbia “is not able to cope with the magnitude of the current inflow of people who require effective protection.”

Media reports said that the clashes at one of the closed border points, Roszke, on September 16 began when asylum seekers and migrants tried to break through a fence. A journalist who was present during the clashes told Human Rights Watch on September 17 that police from the counter terrorism unit, TEK, started beating people indiscriminately with their police batons, including women and children. While police are allowed under international law to use reasonable force against violent crowds, the seemingly indiscriminate nature of the force suggests it may have been excessive. The UN High Commissioner for Human Rights, Zeid Ra’ad al Hussein, said on September 17 that some of the force used by Hungarian authorities against migrants and asylum seekers had been disproportionate.

Hungarian authorities should immediately investigate the alleged excessive use of force and discipline any officers found to have used such force, Human Rights Watch said.

Graphic on Hungary asylum seeker policies. 

(c) Human Rights Watch

Hungary’s criminalization of irregular entry is made especially problematic by the weak due process safeguards for those subject to prosecution, Human Rights Watch said. No written translations of indictments or decisions are needed, a violation of criminal law due process standards under EU law and the European Convention of Human Rights. The new rules do not provide special protection for unaccompanied children, and there is no requirement under the law to appoint a legal guardian to act in the best interests of the child, a breach of international obligations pertaining to children’s rights.

The court in Szeged that has tried asylum seekers and migrants for irregular entry since September 16 has handed down some decisions in an hour or less, Hungarian media reports said. In the first case, an Iraqi man charged with crossing the fence through an existing hole was sentenced to expulsion with a one year re-entry ban, the minimum sentence. The potential punishment of up to eight years in prison is a disproportionate sanction, notwithstanding any state of emergency, Human Rights Watch said.  

The de facto closure of the Hungarian border has led asylum seekers and migrants in Serbia to cross into Croatia to try to reach Western Europe. Since then at least 13,000 asylum seekers and migrants have crossed the border into Croatia. By September 18, the Croatian authorities had closed seven of its eight border crossings from Serbia.

“Though countries are entitled to protect their borders, Hungary’s new border regime punishes people who ought to be offered protection, and risks encouraging other governments to do the same,” Gall said. “Hungarian authorities have an obligation to ensure that those who flee war and persecution can present their claims in a fair, transparent way.”