This report is based on the talk and discussion on an event on of the Röszke trials in Hungary, on refugees accused of violating the border fence during a riot/mass disturbance - which was held in Auróra, Budapest 24th 2016. As our guest, we had Tamas Fazekas, who works for the refugee program at the Hungarian Helsinki Committee. Fazekas is a criminal lawyer, the defendant of three of the accused, and works for the HHC since 2001. The views expressed in the event and in this blogpost are his own and not representative of the HHC. HHC has unique access to all refugee camps and detention centers in Hungary. They are independent from the Hungarian government and do not receive any project money the EU, and provide free legal aid for people seeking international protection in Hungary.
The Background
The happenings in Röszke on September 16th came after a long summer of migration, at a time in which the Hungarian government had taken up migration to be the number one message increase their popularity. The Röszke events were seen as a great opportunity by the government to continue their xenophobic campaigns and to fish for votes, which Fidesz at the time was losing. By the end of the summer 2015, there were two aspects of the border closing of the government: the legal closure of the borders and the physical closure of the borders. The Röszke happenings, dubbed in the Hungarian media as “the Battle of Röszke”.
As a background, it is important to know that the criminal code has been changed and the asylum law has been made more severe. Similar to the practice of previous years and against the recommendation of UNHCR, Serbia was declared a safe third country. The government also decided to make “illegal” entry to the country a crime, and in this sense the Hungarian asylum law is now very unique. For a detailed overview of the developments in Hungary in the last year, we recommend this recent report by UNHCR. Criminalization of seeking asylum is prevalent in all European countries, but criminalizing entrance to the country in order to seek asylum not only clearly contradicts the Geneva Convention, but but is also uniquely brutal.
Since the autumn of 2015, there are also so called transit zones where in theory people should be able to cross into Hungary and seek asylum. In practice they don’t work, as the number of people allowed to enter is severely limited, there is very restricted access to legal aid, and the procedure at the border is flawed. Considering the transit zones with its four entry points (of which only two are active) and the criminalization of crossing the border fence, the government seems to only want to create the appearance that there is a “legal” and and an “illegal” way to come in.
When the fence was completed in Autumn 2015, already hundreds of thousands of people had gone through Hungary. At the time, every day thousands of people were crossing the border, and as the Hungarian and global media were reporting, the Fidesz government was completely unable to handle the situation. This, then, was the situation in which the government decided to criminalize entering the country. The punishment is 1-5 years in jail depends: the basic sentence is 1-3 years of imprisonment, 1-5 if the crime is committed during a riot or with weapons, and if we combine the latest two (with weapons and during a riot) then it's 2-8. In practice, in most cases the punishment is turned into an expulsion from the Schengen zone, although Hungary has managed to deport only a few people back to Serbia.
The events
The new law entered into force on September 15th. It is important to note that on the 16th of September, most of the people on the border have had no chance to get to know what was happening and that the Hungarian border would close legally and physically. The way that thousands of people had crossed into Hungary by simply walking across the border or by climbing over or crawling under the fence had been alright the previous day, but was going to be illegal from the next.
There are two border crossings in Röszke. After the first Röszke crossing was closed on that day, people were sent away. People then went to the second Röszke crossing, which was finally dramatically closed with by blocking the unused railway road by driving a “Mad Max” train on the tracks. The situation became very tense, and for people waiting on the Serbian side of the fence no legal information was provided. Young and old, healthy and ill, single people as well as families, were waiting as the situation began to escalate. It is important to mention that, even though on the Serbian side of the fence, the people were waiting on Hungarian territory. The Fidesz government conveniently forgets to mention that also the Serbian side of the fence is Hungarian territory, totally overlooking its legal responsibility to provide shelter for people seeking asylum in the country.
The situation escalated as desperate people did not understand what was happening, and started throwing sticks and stones at the police. The police responded with tear gas and later with water cannons. Several people from the crowd were injured, and also some policemen were injured. It is important to note that the Hungarian police has professional guidelines on the situations when to use water cannons and tear gas, and it is perfectly clear in this that such measures can never be used against a crowd that has children and vulnerable people. Even when considering the people throwing stones at the police, the reaction was of the police was totally blown out of proportion.
After some time, the fence was broken by the crowd, and the situation became even more tense. The first front rows of the crowd were men, one of whom was trying to communicate with a megaphone with the police as well as with the crowd. His role was also to communicate news and recent developments: when to negotiate with the police, when to withdraw, etc. This continued for 1,5 hours until things calmed down. A message was then spread from the side of the police that the people could now enter Hungary. This was celebrated as a victory, followed by chanting of thank you-slogans for Hungary as people organized in two different queues, one for young men, another one for families and vulnerable people, in order to enter Hungary through the crossing.
The people tried to organize: they started walking, and made it for 150 meters, and the riot police allowed them to go onwards. The problems, began when the an unmarked, unidentifiable unit of the counterterrorist police, attacked the crowd not only with police batons, which are regular and legal weapons, but also with special telescopic metal batons. There is much documentation of this event, and also international journalists e.g. from Australia and the Netherlands were among those injured. The unit was trying to catch people, but of course the young and more healthy people were able to escape, and the vulnerable people could not escape and were seized by the authorities. This, then, is the honourable way in which is how the Hungarian state picked the 11 accused people: but who exactly apprehended them, at what time, where, is not known.
The three people that Fazekas represents in the trial were among this crowd. The first one is a young Syrian man is in a wheelchair, after being paralyzed in Aleppo in a bombing. The second defendant is a taxi driver from Damascus who is missing the articulation from his hip, and has one finger amputated due to vasoconstriction. The third one, an old lady, is half blind and diabetic. They were all on the second crossing on the 16th September - the men were alone, and the the elderly woman with her son and grandchildren. Her son was the one holding the megaphone, who is now accused of organizing a “terror attack”. Importantly, this son also has a residence permit in Cyprus, and is therefore legally residing in EU territory. The defendants did not join the crowd in the beginning of the situation, but waited until the situation cleared out, and only then joined when the queues were being formed. In the end, they suffered injuries from both the police, the counterterrorist unit but also from the fleeing people in the middle of the chaos who were stepping on them. Ironically, the police “rescued” them from the crowd, and afterwards arrested them. Many more people were also arrested, but those who were subsequently placed in open camps have since left Hungary. There are eight more people accused, who held in pre-trial detention in Hungary, and who are represented by qualified state lawyers.
Hungarian counterterrorist police catching a woman and a child in Röszke, 16th September. Picture by The Times.
The situation of the 11 accused
The three defendants of Fazekas have, since their arrest, been placed in house arrest. According to the latest criminal code, house arrest can take place in closed immigration detention centers. Apart from “normal” prison facilities, in Hungary there are two kinds of detention specifically for asylum seekers: the so-called immigrants’ detention and the so-called asylum detention. Asylum detention is applied to asylum-seekers waiting for the decision of their application, and immigration detention is for those asylum-seekers who have received a negative decision and are waiting for deportation (which often cannot happen) or for those foreign nationals who have not applied for asylum in the first place.
Actually, according to the Hungarian law, house arrest as in the case of the three defendants should be understood as the traditional way of house arrest, as not being allowed to leave one’s house. The state claims that the three defendants do not have a house, so they are held behind bars in one of the mentioned immigration detention centers: the Kiskunhalas immigration detention. Even though the three defendants can in theory move a bit within the detention centre, in practice this is not the case and the setting in the Kiskunhalas immigration center are extremely bad for people in their health conditions.
The eight other defendants are held in pre-trial detention in Szeged and Kecskemét. Being in an actual prison with extremely limited access to information, also their ability to follow e.g. religious practices and customs is extremely limited. The situation is much more serious and difficult to bear for these eight accused, especially when they are surrounded by people who are convicted of crimes that are defined, while their only “crime” was to seek safety, which is legal under international law. The Hungarian prison system is absolutely not capable of meeting the requirements of people seeking protection in the prisons, and the eight accused people are in extremely bad condition mentally, as well as to a certain extend physically. They have limited access to psychological support and are closed up for 23 hours a day. Other detainees in similar conditions have attempted to commit suicide.
Also the three accused people, defended by Fazekas, are in a very bad condition. They do receive very basic healthcare, but over the months that they have been locked up in Kiskunhalas, Fazekas has witnessed the worsening mental- and physical health conditions of all his clients, especially the elderly woman. The Syrian student in a wheelchair has even stated he would rather go back to Syria than bear this horrible situation in detention any longer. Representatives of the Hungarian Helsinki Committee visits them 1-2 times week.
There are severe issues in the ways in which the concept of “house arrest” is applied in this case, and the HHC will bring the case into the European Court of Human Rights in Strasbourg. The Hungarian court decides on how long the house arrest should be continued, and Fazekas. The papers that Fazekas, as the defense lawyer, has received from the court have been completely mixed, with severe mistakes regarding issues like dates, etc.
The three defendants of Fazekas have applied for asylum. The Syrian elderly woman received the subsidiary protection status, while in the case of the other two it was denied. The Hungarian Helsinki Committee appealed in the case, and won in the court. Unfortunately, however, another peculiarity of the Hungarian asylum system is that the court can only annul the decisions of the Office of Immigration and Nationality (OIN), and send a case back with guidelines. What is happening, however, is that the OIN does not follow the recommendation of the court and and simply issues another negative decision again. This can be appealed, again, and such “ping pong” can go on for a very long time.
Some of the rest of the accused have also applied for asylum, but the majority of them not. This is also problematic: even if a person does not say the words “I want to apply for asylum,” they should still be considered asylum seekers, if they express it in other words. But this is not followed in Hungary, and only those are who go through the very bureaucratic official procedure are considered to have applied for asylum.
The trials
There are 11 people in the Szeged court. The hearing is taking place in a very small room with limited space for translation and lawyers. Physically this makes it very difficult for the general public to follow and monitor the trials. There is also very limited place for the press, that needs to register. The excuse from the authorities is that this is the only place accessible for somebody with a wheelchair.
HHC receives plenty of media requests from big international media outlets from BBC to the Economist, who would like to join the trial, and the space is a real problem. The lack of access for the press is totally surreal. HHC has worked to improve this by securing places for UNHCR to be there continuously.
The trial will happen with translation. Previously there has been big problems with translation, but now the translators have been checked and can be trusted. Previously during the investigation period there have been allegedly manipulated translations on paper in this case, and a whole paragraph was added to the testimony of one of the defendants: e.g. where the original written testimony said that “we will go towards the border to cross it” it was translated as “we will go to the border to violently break through it no matter what” to make them look like they confessed a crime they did not actually do. The false translation has triggered a process and an investigation, and we hope will end up in court.
The indictment of the accused is very chaotic, and mistakes sometimes even the nationality of the defendants. For all the 11 people, the whole paper is only 1,5 pages with absolutely no information of the context and the circumstances in which everything happened. When did they cross the border? Did they suffer injuries? Was the defendant holding a microphone? At what point did they cross? Who arrested them? When were they arrested? None of this information or these details is provided, and this is professionally miserable level of prosecution. In Hungarian law there is no collective punishment, only individual punishment, but this is clearly unspecified collective case.
There is additionally to the described extremely problematic aspects of the cases, something very important missing from the whole description: the actions of the Hungarian counterterrorist police and their attack on the crowd. There is much TV and journalistic footage, also by the police themselves, about the events. Fazekas has first not been allowed to watch this footage because of legal details related to them being open or closed evidence and was not attached to the case but treated separately. It took the Szeged court four months to allow access to them, even if they turned out useless for the defence as they only show the three defendants just standing on the ground.
The underlying reason why they are being hidden is because this footage does not show much. If they would show the defendants clearly committing crimes, they would have been shared in the first place. All the appr. 90 policemen who gave testimonies during the investigation supposed to be summoned according to the notion of the public prosecutor tiring out the defendants. That sad, only 10-12 of them actually were cross examined in court. The police officers did not have too many details of the cases, and the absolute majority of them cannot identify people. Considering the chaotic situation in which the police had tears running from their eyes from their own tear gas. There were a few that were important for the judge, etc. one policemen who claims to have seen the man in a wheelchair kicking the fence - which is of course wrong, what the police finally admitted. All in all, many policemen have been listened to, although some of them were not heard live.
There have been 6 court hearings so far, and the next ones will be done by July 1st. As the defense lawyer, Fazekas is positive and believes there will be a good decision. All in all, it is very clear that this is a show trial, aiming to portrait asylum seekers as dangerous.
The quality of the prosecution is pathetic. We will see what the decision will be next week. In case they they are found to be innocent they would get reparations for the house arrest.
If found guilty, the 3 defendants of Fazekas still cannot be sent back to Serbia as one has already been granted the status of subsidiary protection and two are already registered as asylum seekers, and there is a court case that declares that Serbia is not a safe third country of them. In the case of the rest of the accused, who are not asylum seekers it is a bit more complicated, but in practice the Hungarian state would probably not be able to deport them back to Serbia. The cynical thing is, that even if the 8 that are now held in pre-trial detention would be found innocent, they will still be considered illegal immigrants and sent to the next prison - the immigration detention.
What is sure, no matter what the result will be, is that the case will be brought further to the European Court of Human Rights regarding unlawful house arrest.
The three defendants of Fazekas have, since their arrest, been placed in house arrest. According to the latest criminal code, house arrest can take place in closed immigration detention centers. Apart from “normal” prison facilities, in Hungary there are two kinds of detention specifically for asylum seekers: the so-called immigrants’ detention and the so-called asylum detention. Asylum detention is applied to asylum-seekers waiting for the decision of their application, and immigration detention is for those asylum-seekers who have received a negative decision and are waiting for deportation (which often cannot happen) or for those foreign nationals who have not applied for asylum in the first place.
Actually, according to the Hungarian law, house arrest as in the case of the three defendants should be understood as the traditional way of house arrest, as not being allowed to leave one’s house. The state claims that the three defendants do not have a house, so they are held behind bars in one of the mentioned immigration detention centers: the Kiskunhalas immigration detention. Even though the three defendants can in theory move a bit within the detention centre, in practice this is not the case and the setting in the Kiskunhalas immigration center are extremely bad for people in their health conditions.
The eight other defendants are held in pre-trial detention in Szeged and Kecskemét. Being in an actual prison with extremely limited access to information, also their ability to follow e.g. religious practices and customs is extremely limited. The situation is much more serious and difficult to bear for these eight accused, especially when they are surrounded by people who are convicted of crimes that are defined, while their only “crime” was to seek safety, which is legal under international law. The Hungarian prison system is absolutely not capable of meeting the requirements of people seeking protection in the prisons, and the eight accused people are in extremely bad condition mentally, as well as to a certain extend physically. They have limited access to psychological support and are closed up for 23 hours a day. Other detainees in similar conditions have attempted to commit suicide.
Also the three accused people, defended by Fazekas, are in a very bad condition. They do receive very basic healthcare, but over the months that they have been locked up in Kiskunhalas, Fazekas has witnessed the worsening mental- and physical health conditions of all his clients, especially the elderly woman. The Syrian student in a wheelchair has even stated he would rather go back to Syria than bear this horrible situation in detention any longer. Representatives of the Hungarian Helsinki Committee visits them 1-2 times week.
There are severe issues in the ways in which the concept of “house arrest” is applied in this case, and the HHC will bring the case into the European Court of Human Rights in Strasbourg. The Hungarian court decides on how long the house arrest should be continued, and Fazekas. The papers that Fazekas, as the defense lawyer, has received from the court have been completely mixed, with severe mistakes regarding issues like dates, etc.
The three defendants of Fazekas have applied for asylum. The Syrian elderly woman received the subsidiary protection status, while in the case of the other two it was denied. The Hungarian Helsinki Committee appealed in the case, and won in the court. Unfortunately, however, another peculiarity of the Hungarian asylum system is that the court can only annul the decisions of the Office of Immigration and Nationality (OIN), and send a case back with guidelines. What is happening, however, is that the OIN does not follow the recommendation of the court and and simply issues another negative decision again. This can be appealed, again, and such “ping pong” can go on for a very long time.
Some of the rest of the accused have also applied for asylum, but the majority of them not. This is also problematic: even if a person does not say the words “I want to apply for asylum,” they should still be considered asylum seekers, if they express it in other words. But this is not followed in Hungary, and only those are who go through the very bureaucratic official procedure are considered to have applied for asylum.
The trials
There are 11 people in the Szeged court. The hearing is taking place in a very small room with limited space for translation and lawyers. Physically this makes it very difficult for the general public to follow and monitor the trials. There is also very limited place for the press, that needs to register. The excuse from the authorities is that this is the only place accessible for somebody with a wheelchair.
HHC receives plenty of media requests from big international media outlets from BBC to the Economist, who would like to join the trial, and the space is a real problem. The lack of access for the press is totally surreal. HHC has worked to improve this by securing places for UNHCR to be there continuously.
The trial will happen with translation. Previously there has been big problems with translation, but now the translators have been checked and can be trusted. Previously during the investigation period there have been allegedly manipulated translations on paper in this case, and a whole paragraph was added to the testimony of one of the defendants: e.g. where the original written testimony said that “we will go towards the border to cross it” it was translated as “we will go to the border to violently break through it no matter what” to make them look like they confessed a crime they did not actually do. The false translation has triggered a process and an investigation, and we hope will end up in court.
The indictment of the accused is very chaotic, and mistakes sometimes even the nationality of the defendants. For all the 11 people, the whole paper is only 1,5 pages with absolutely no information of the context and the circumstances in which everything happened. When did they cross the border? Did they suffer injuries? Was the defendant holding a microphone? At what point did they cross? Who arrested them? When were they arrested? None of this information or these details is provided, and this is professionally miserable level of prosecution. In Hungarian law there is no collective punishment, only individual punishment, but this is clearly unspecified collective case.
There is additionally to the described extremely problematic aspects of the cases, something very important missing from the whole description: the actions of the Hungarian counterterrorist police and their attack on the crowd. There is much TV and journalistic footage, also by the police themselves, about the events. Fazekas has first not been allowed to watch this footage because of legal details related to them being open or closed evidence and was not attached to the case but treated separately. It took the Szeged court four months to allow access to them, even if they turned out useless for the defence as they only show the three defendants just standing on the ground.
The underlying reason why they are being hidden is because this footage does not show much. If they would show the defendants clearly committing crimes, they would have been shared in the first place. All the appr. 90 policemen who gave testimonies during the investigation supposed to be summoned according to the notion of the public prosecutor tiring out the defendants. That sad, only 10-12 of them actually were cross examined in court. The police officers did not have too many details of the cases, and the absolute majority of them cannot identify people. Considering the chaotic situation in which the police had tears running from their eyes from their own tear gas. There were a few that were important for the judge, etc. one policemen who claims to have seen the man in a wheelchair kicking the fence - which is of course wrong, what the police finally admitted. All in all, many policemen have been listened to, although some of them were not heard live.
There have been 6 court hearings so far, and the next ones will be done by July 1st. As the defense lawyer, Fazekas is positive and believes there will be a good decision. All in all, it is very clear that this is a show trial, aiming to portrait asylum seekers as dangerous.
The quality of the prosecution is pathetic. We will see what the decision will be next week. In case they they are found to be innocent they would get reparations for the house arrest.
If found guilty, the 3 defendants of Fazekas still cannot be sent back to Serbia as one has already been granted the status of subsidiary protection and two are already registered as asylum seekers, and there is a court case that declares that Serbia is not a safe third country of them. In the case of the rest of the accused, who are not asylum seekers it is a bit more complicated, but in practice the Hungarian state would probably not be able to deport them back to Serbia. The cynical thing is, that even if the 8 that are now held in pre-trial detention would be found innocent, they will still be considered illegal immigrants and sent to the next prison - the immigration detention.
What is sure, no matter what the result will be, is that the case will be brought further to the European Court of Human Rights regarding unlawful house arrest.
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