Why does Orban want the army in the refugee crisis?

Border-crossing as a crime, simplified criminal procedures for refugees and migrants, transit zones on the Serbian side of the border fence and the use of the armed forces: Hungary makes way for authoritative action in asylum policy and the evasion of international standards on refugees.

Photo: Gergely Botár

The Hungarian Parliament passed the latest bill to apply further restrictions on asylum-seekers 1 (or, as official government communication tends to call them, economic immigrants) last Friday, hours before the government openly gave up the fight to protect Schengen acquis by helping nearly 5,000 refugees and migrants to cross the Austrian-Hungarian border 2. So even after the lack of action by Hungarian authorities – along with many other factors – paved the way for the chaotic events of the last few days, Prime Minister Viktor Orbán still promises ‘the start of new era’ in the migration situation within days, as the new rules enter into force 3.

The package was submitted by the Government for an extraordinary sitting of the Parliament, where the bill passed with the votes of MPs from the governing parties and the far-right Jobbik. It consists of amendments to more than a dozen existing acts, while some modifications of cardinal acts requiring a two-thirds majority 4 are scheduled to be discussed next week, as the lack of support from the left-wing opposition made earlier adoption impossible.

The main element of the legal changes is the introduction of a ‘mass immigration crisis situation’, which is to be declared by the Government for a renewable period of 6 months. There are no exact criteria for the declaration: indicative numbers were set up (500 asylum applications per day and 1000 people in the transit zones), but ‘any event endangering the public safety’ of a single municipality can also form the basis of the decision and the renewal.

The declaration of the crisis situation will make way for derogations from the general legal order and the rights of individuals, from building requirements to increased powers of the police to find illegal migrants. Permission for the armed forces to take part in guarding the border and keeping public order is also a major change; the possibility of using the army with the right to use their weapons for internal security purposes was previously restricted to special legal orders by constitutional rules, all requiring events capable of endangering life and property on a massive scale. From now on, during any mass immigration crisis situation, it will be possible to use the army without those requirements.

The main goal of declaring the crisis situation was obviously the creation of the new transit zones at the Serbian border as fast as possible, making way for prompt government action with exceptions from public procurement, appropriation rules and several other legal requirements. These zones are planned to be operated right at the border for the interim placement of asylum-seekers and the performance of asylum procedures, and the government plans to open them only in the direction of Serbia. A simplified procedure for decisions on granting asylum (similar to the procedure at the airport transit zones) will be carried out there, making judicial supervision possible without even letting the asylum-seeker beyond the border fence.

Still, the most questionable elements of the legislation are changes to the criminal and criminal procedure codes. ‘Forbidden crossing of a border blockade’, ‘damaging of a border blockade’ and ‘obstruction the building works of a border blockade’ are three brand-new criminal offences which can easily be seen as angry political answers to the apparent failure of the border fence in stopping the wave of refugees and migrants. As a result of imposing these new offences, anybody who ‘enters the territory of Hungary protected by the establishment guarding the order of the state border without authorization’ will be considered a criminal suspect, with those who dealt any damage to the fence already threatened with five years of imprisonment.

Especially cynical procedural amendments will put the icing on the cake, as they will apply only to the procedures for these new crimes. Expulsion is compulsory for at least twice the time of the prison sentence, while the latter can be suspended for more severe sentences than in normal cases (5 years in prison can also be suspended instead of the normal 3-year limit). If we add the fact that if the suspect is in an unknown place, these procedures will simply be closed, we can clearly understand the essence of this legislation. The aim is not to punish criminal offenders, but to have a legal basis to send anybody back to Serbia who crossed the border blockade.

The goal of the legislators was said to be no less than to stop the mass refugee wave at the southern border of the country entirely: a result which was already attributed to earlier, also controversial governmental measures. As the immigration wave reached new peaks after the construction of the infamous border fence and the Hungarian declaration that Serbia qualifies as a safe transit country, the official governmental expectation is now that the new, urgently passed legislation will help the border fence and existing restrictive measures to operate properly 5.

While most of the experts believe that no measure in an EU-wide crisis at the level of a Member State is suited to reach any result, Hungarian authorities will now clearly have the powers, procedures and the legal basis (however problematic might they all be) to deny the right to stay for any refugee in Hungary. It is more of an illusion of control than real control, and time will tell whether the Orbán cabinet will risk individual decisions and practice directly contradicting European human rights standards or the Geneva Convention on refugees. But the obstacles under Hungarian legislation are no longer in place.

Notes:

  1. Parliament of Hungary, proposal T/5983 on modifying certain acts in relation to the handling of mass immigration.
  2. The Guardian, Hungary to take thousands of refugees to Austrian border by bus,, September 04, 2015.
  3. Portfolio, Millions of migrants could swarm Europe, Hungarian PM Orbán warns, September 04, 2015.
  4. Parliament of Hungary, proposal T/5985 on modifying certain acts in relation to guarding the state border of Hungary and the handling of mass immigration
  5. HVG,  Lázár: Minősíthetetlen, amit a németek csinálnak, September 04, 2015. 
Tibor Sepsi

Tibor Sepsi

is an attorney-at-law, constitutional lawyer, a member of the legal team of atlatszo.hu centre for investigative journalism.