On 3rd of July, the European Court of Human Rights (ECHR) ruled that Austria’s deporting Mr. Qadam Shah Mohammadi, an asylum seeker, to Hungary would not lead to a violation of the Convention. Mr. Mohammadi alleged that deportation would lead to inhuman and degrading treatment, could subject him to detention under deplorable conditions, and that he would run the risk of being deported from Hungary to Serbia. We apologize to our readers that our reflections on the verdict come only now, two months later, but we feel like it is absolutely crucial for us to share our thoughts, because the verdict may carry significant consequences for people's lives for years to come and also because ECHR judgements about the Hungarian asylum system are rather rare. First, let's start with some background:
Who is Mohammadi?
Before we go into our actual critique and thoughts regarding the verdict, let's look at the background of the case. Mohammadi, born probably in 1995 (he does not know his exact date of birth), is from Ghazni, Afghanistan. Six years after his father died, he fled Afghanistan and made a big part of his trip to Europe by foot. In Greece, where the asylum system has been dysfunctional for many years, Mohammadi was not registered as an asylum seeker. Instead, he continued his way to Hungary, where he applied for asylum shortly after crossing the border. He says there was no effective, proper age assessment completed. After a short while in an open refugee camp in Hungary, Mohammadi continued his way to Austria, and applied for asylum in Austria.
The influence of the ECHR lies in the fact that by its rulings, the court does not only judge the state of asylum policies in Europe, but it effectively also creates asylum policy by setting directions. For example, the court's ruling in 2011 to prevent an asylum seeker from being deported to Greece in practice resulted in a hault of deportations to Greece from all over Europe.
Now, let's take a look at the actual ruling, and share our observations and opinions on it. The most worrying part about the ruling for Migszol is that clearly, in this specific case, theory (law) seems to be more important than practice. In the words of ECHR:
"[D]espite the alarming nature of the reports published in 2011 and 2012 in respect of Hungary as a country of asylum and in particular as regards transferees, in the light of recent changes to Hungarian legislation pertaining to asylum-seekers, the applicant’s transfer to Hungary under the Dublin II Regulation would not amount to a breach of Article 3 of the Convention."
In English: many reports state that the system in Hungary is not working, the government made a new law to show that Hungary is committed to doing better. The ECHR believes that Hungary might do better, even though the new law and Hungary's track record provide no basis for this.So far, the only big change is the law, not the way Hungary treats its asylum seekers.
Too bad that states don't always follow their own laws. The Hungarian Helsinki Committee recently published a detailed report, explaining how Hungary fails in this regard. Sadly, this report was not taken into account in the judgment because it was published a little bit too late. Migszol believes that decisions that have such a big effect on someone's life, should be grounded in the reality of the presence, not on the hope that things will get better in the future.
There is age assessment and minors are not detained
To know whether minors are detained, age assessment is crucial. But:
“According to the HHC’s long-standing experience based on individual cases, age assessment practices in Hungary are not of a multidisciplinary character and ignore the difference between various populations of the world with regard to pubescence, the psychological and emotional development of the child, as well as her/his cultural background.“
A good example of the lack of proper assessment, is the case of eight boys with the same date of birth. Another alarming reality, is the fresh case where the Hungarian Helsinki Committee managed to get four teenagers out of the jail. Besides these four, they stated that they met several other minors in detention facilities in Hungary (citation from the mentioned report):
Detention is only ordered if there has been an individual assessment of the asylum seeker’s case.
No. To cite UNHCR from 2013:
"In practice detention is often mechanically applied without any prior individualised assessment taking place, this concern has also been shared by the Parliamentary Commissioner for Human Rights."
There is an alternative to detention, the bail.
This means that an asylum seeker pays between 500€ and 5000€ to get out of prison. In reality, bail is not an alternative for Mohammadi, who is illiterate, 19, and doesn't have such money. In fact, to call the bail an "alternative" to detention is outrageous, as it introduces a clear element of class into the system of detention: rich asylum seekers don't have to go to jail, poor do. (On the other hand, there is the other side of the story too: we have also met with an asylum seeker who is relatively well off, and who thinks he was put into jail exactly because he had money to bail himself out).
There is no unlawful detention of asylum seekers.
Ironically, this is true, the law is so vague and arbitrary that it basically allows the detention of all asylum seekers. In the words of UNHCR:
“UNHCR, however, notes with concern that the grounds for detention in the Draft are far too vaguely formulated leaving much room for interpretation, thereby jeopardizing legal certainty, an overriding principle confirmed, inter alia, by the European Court of Human Rights.”
Also, we would like to make a small remark on the weight that the court gives to UNHCR in determining asylum policy:
"69. Moreover, the Court notes that the UNHCR never issued a position paper requesting EU member States to refrain from transferring asylum-seekers to Hungary under the Dublin II or Dublin III Regulation (compare the situation relating to Greece discussed in M.S.S. v. Belgium and Greece, cited above, § 195, and the UNHCR recommendation of 2 January 2013 to halt transfers to Bulgaria).”
While the work of UNHCR is extremely important, it is also problematic that the ECHR gives so much weight to a UNHCR position paper, given that the first interest of UNHCR is to strengthen the asylum-system in the respective country and not to support the freedom of movement of asylum seekers. Their position in Hungary inherently means that they have to be (or are,) strategic (and/or diplomatic) about the way they put forward their points (for another approach, see this ECRE report on the Dublin regulation.)
To conclude, for Migszol, this ruling is a clear example of moments when we need to remember that laws can, and should be criticized: we should not always look to the law to decide what is right and wrong. What is more, to have ruled that detention in Hungary leads to inhuman treatment would also have been a ruling against the deportation of Mohammadi to Hungary. This, in turn, could signify a move against the Dublin Regulation and deportation of asylum seekers to Hungary: and for the court to take such a decision would have had major political ramifications. Migszol is extremely disappointed at the ruling exactly because of the consequences it could have had for so many people's lives.
1. However well-written and well-meaning the law might be, it's nothing more than a piece of paper if it isn't properly implemented. In this case, it isn't, and that has real consequences for real people.
2. This verdict is problematic because it gives off the impression that a new law is the solution, and that the Hungarian government has done well because of it. Facts on the ground are completely different, and ECHR should have let those prevail.
There have been struggles in history to fight for the right to vote without owning private property, for women’s rights, rights of sexual minorities, not to mention the civil rights movement in US, against apartheid in South Africa, and countless more. Campaigning against detention, Migszol sees, is a continuation of these struggles in the 21st century.
In other words: if the law says detention is justified, we think the law is wrong.
PS. Migszol has just received another example of instances where in the eyes of the European Union, law and words supersede reality. In February 2013, an Afghan refugee in Hungary filed a complaint at the European Union on the integration prospects of recognized refugees. He got a reply no less than 1,5 years after, in August 2014 - read the below document yourself to see!