EU Magistrate Calls Hungary Refugee Detention Illegal

An advocate general for the European Court of Justice said conditions in the border detention area are similar to those in a prison.  

A Hungarian police officer stands guard at Serbia’s border with Hungary near a makeshift camp for migrants in 2017. (AP Photo/Darko Vojinovic, File)

LUXEMBOURG (CN) — Refugees stuck in a Hungarian transit zone at the Serbian border are being unlawfully detained, an adviser to Europe’s top court said Thursday. 

Barbed wire-topped fences, limited movement and needing permission to see their lawyers. Those are the conditions of people living in the Röszke transit zone.

“This detention must be classified as illegal,” Advocate General Priit Pikamäe wrote in his nonbinding advisory opinion for the European Court of Justice. The opinion was not available in English.

Thursday’s opinion joins two separate cases: one involving an Iranian father and son who arrived in Hungary in 2018 and one involving a married Afghan couple who arrived in 2019. Both crossed the border into Hungary from Serbia and applied for refugee status. 

Budapest denied the request, arguing that because they had crossed through the “safe” country of Serbia, they should apply for asylum there. Hungary is a member of the European Union, while Serbia is not. 

Serbia refused to readmit the refugees, leaving them stuck in an area on the border between the two central European countries. Hungary has argued they are there voluntarily as they could return to Serbia, but if they did so they would lose the right to apply for asylum in Hungary. 

In May 2019, the European Court of Human Rights ordered Hungary to provide the people in the Röszke transit zone with food. It later found, however, that people in the area were not deprived of their liberty since they could go to Serbia if they wished. 

On Thursday, the magistrate included a lengthy summation in his opinion of why the Court of Justice could rule independently from the Court of Human Rights. The latter court is based on the European Convention on Human Rights and includes countries that are not members of the 27-member EU. When it was created in 1959, many questions were raised about whether it would interfere with the mandate of the Court of Justice, which has the final say in the application of EU law. 

The anti-immigration Hungarian government, led by far-right Prime Minister Viktor Orbán, planned to return the four refugees to their respective home countries. The group filed a lawsuit in Hungarian court to prevent their deportation. 

Under the EU’s Reception Conditions Directive, people awaiting asylum claims must have access to basic necessities and cannot be held in indefinite detention. Human rights watchdog Amnesty International called the shipping containers where they are forced to live a “flagrant violation of international law.”

“The high degree of restriction on the freedom of movement of asylum seekers is such that this situation is comparable to an ordinary prison regime,” Pikamäe wrote in his advisory opinion.

The Court of Justice is currently closed in light of the Covid-19 pandemic but is still issuing judgments in cases it heard before the outbreak began.

Though not required, rulings from the Court of Justice often follow the same legal reasoning as advisory opinions. The Luxembourg-based court has begun its deliberations in the case and a ruling is expected later this year.

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