WHERE ARE THE LEGAL AND LEGITIMATE LIMITS TO SECURITIZE HUMANITARIANISM?
4. Safe third country
The Hungarian government introduced a national list of ‘safe countries of origin’
and ‘safe third countries of transit’35. Most of the countries on the Hungarian list clearly meet the criteria of safe country but there are some that arguably do not.
The fact that Serbia is on the list and as such it is regarded safe by the government makes a remarkable change for Hungary as 99 per cent36 of asylum seekers and migrants came to Hungary via Serbia. Using this list, Hungary closed its borders lawfully as now asylum claims are denied without any examination on the basis that they came from a safe country and send asylum seekers back to Serbia.
The concept of safe country is determined in Article 27 of the Asylum Proce-dures Directive (APD). It has four criteria: 1) life or freedom is not threatened in the sense of Article 1 of the Refugee Convention; 2) non-refoulement is respect-ed; 3) freedom from torture and cruel, inhuman or degrading treatment is re-spected; 4) and the possibility to receive protection in accordance with the Refugee Convention.37 Serbia must have been evaluated accordingly; Human Rights Watch, UNHCR and Serbian NGOs all consistently state that Serbia does not meet the criteria of a safe country. In Serbia, the asylum system does not function proper-ly–it does not ensure access to asylum nor the right to a fair trial. In addition, reports about Serbia state that authorities often mistreat asylum seekers and asylum support services are not secured at all.38 Further illustrating the insuffi-ciency of the Serbian system, the Hungarian Helsinki Committee notes that only 22 persons have received protection as asylum seekers in Serbia since 2008.39
33 ibid.
34 ibid.
35 Hungary tried to do the same in 2012 but the Supreme Court found it illicit because UNHCR reports claimed that Serbia is not safe. According to the Supreme Court UNHCR reports must take into account so the Court denied the legislation then. Nonetheless the Hungarian government put Serbia on the list of safe countries.
36 Hungarian Helsinki Committee: “No country for refugees – New asylum rules deny protection to refugees and lead to unprecedented human rights violations in Hungary (Information Note)”. 2015 http://helsinki.hu/wp-content/uploads/HHC_Hungary_Info_
Note_Sept_2015_No_country_for_refugees.pdf (Accessed: 11-01-2021) 37 Art. 27, APD
38 Köves: o.c.
39 Hungarian Helsinki Committee: o.c.
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Secondly, the validity of the actual list itself must be examined; as it is not ac-cepted internationally, it is thus highly questionable and problematic to use it in an international context. Moreover, the wording of Article 33 makes clear that a case-by-case evaluation is required when expelling or returning a refugee. In this manner, group refoulement on the grounds that they came from Serbia is a breach of international law and a prudent examination should precede individual re-foulement as well. In practice, however, Serbia usually does not take back refugees from Hungary, thus expulsion (which could lead to chain-refoulement) is not implemented. In these cases, refugees end up in detention centers or in prisons in Hungary.40 This outcome, on the other hand, clearly violates Article 31 of the Convention. In conclusion, both the legislation and its implementation violate the rights of asylum seekers but not in the same way; the legislation violates the non-refoulement clause and the practice implemented breaches the non-penal-ization clause.
5. Conclusion
The right to non-penalization is violated by the amendment to the Criminal Code which makes illegal border crossing a felony. Although Hungary is obligated un-der the Refugee Convention not to impose penalties on the ground of illegal entry or presence, both Hungarian law41 and practice42 reveal the opposite: asylum seekers are punished with imprisonment and expulsion for illegally entry into Hungary. When arriving lawfully and submitting an asylum claim immediately at transit zones, the right to a fair trial is violated as asylums seekers receive a de-cision (usually in an hour)43 about their expulsion to Serbia since it was declared as safe country; this occurs without a hearing, any evidence and a case-by-case evaluation. This is a clear breach of Article 31 since traveling through a safe coun-try does not mean that the applicant does not fall within the scope of Article 31 anymore. Expelling a refugee on these grounds is a breach of international refu-gee law and is against the object and purpose of the Convention. On the other hand, such practices may lead to chain-refoulement, thereby contravening Article 33 of 40 Tanács István: “Mind nálunk ragadnak a kitoloncoltak”. (All the deportees stuck in Hungary) 2015. http://web.archive.org/web/20160324132243/http://nol.hu/belfold/
mind-nalunk-ragadnak-a-kitoloncoltak-1572657 (Accessed: 11-01-2021) 41 Act CXL of 2015
42 Gergely Zsófia: “Ez is egy feladat’ – A bírókon nem fog múlni a migráns-Btk. alkalmazá-sa” (‘This is only a task’ – judges will apply the migrant-criminal code). 2015. http://hvg.
hu/itthon/20150922_A_birakon_nem_fog_mulni_a_migransok_megbu (Accessed: 11-01-2021)
43 Hungarian Helsinki Committee: o.c.
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the Convention. Moreover, Serbia, as well as a number of other countries on the Hungarian list, does not qualify as a safe third country according to the criteria of safe countries.44 This practice demonstrates that refugee crisis for the Hungarian government has not been approached as a humanitarian issue rather it is one directly related to national security. This attitude and balancing on the border of lawfulness alone makes it questionable whether Hungary is acting in good faith45 as the Vienna Convention prescribes. The measures analyzed above, whether or not they are deemed to be breaches of international law, are clearly hostile steps which make travel for refugees and asylum seekers more dangerous and as such are against the object and purpose of the Convention. Furthermore, Hungarian Government takes advantage of the vagueness of certain clauses within the Ref-ugee Convention, misinterpreting these in a way that keep refRef-ugees out of the country. Some Hungarian legal amendments discussed here clearly violate rights recognized by the Refugee Convention: the right to non-penalization, non-re-foulement has been violated by the new regulations and the practice as well. The fact that fundamental principles of the Refugee Convention are violated by both regulations and practices implemented, results in essential human rights not being respected and an overwhelming attitude of refugees as a danger to nation-al security rather than as victims of a humanitarian crisis.
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