BUDAPEST (2 October 2013) – The United Nations Working Group on Arbitrary Detention today urged the Government of Hungary to effectively address the excessive use of detention and the lack of effective legal assistance as safeguards against arbitrary detention. The experts revealed that up to 28% of the prison population in Hungary were pre-trial detainees, including juvenile or young offenders.
“The regular use of pre-trial detention, as under international human rights law, should be an exceptional measure” said human rights expert El Hadji Malick Sow*, who currently heads the Working Group, at the end of a ten-day official visit to Hungary.
“The pre-trial detention of minors should be avoided whenever possible and focus should be on education and reintegration, not mere punishment,” Mr. Sow stressed. In the two detention centers for minors the Group’s delegation visited, there were 320 minors in detention.
The UN expert warned that “the problem of excessive detention is worsened by severe lack or absence of effective legal assistance to detainees,” and raised concerns regarding prosecutors enjoying far more power and influence than defence lawyers.
Mr. Sow noted that pre-trial detentions were often prolonged almost automatically at the prosecutors’ request making it difficult for them to successfully challenge the extension and to request release. Over 90% of cases brought to court in relation to pre-trial detention were approved in favour of the prosecution raising concerns about the lack of proper assessment of the individual circumstances of the person.
“Effective legal assistance and the opportunity to adequately challenge the legality of detention are fundamental safeguards against arbitrary detention,” said Vladimir Tochilovsky, the other member of the Group’s delegation visiting Hungary.
“Unfortunately,” he stressed, “the lack of efficient lawyers assigned to the detainees, regular extension of detentions without rigorous judicial review and disparities between the powers of the prosecution in criminal proceedings were commonplace and these issues may render a deprivation of liberty arbitrary.”
Private interviews with detainees in various detention facilities showed that often lawyers were not present when arrested persons were being interrogated and the choice of a lawyer was often made by the investigating authorities. In some places, 50 to 70% of cases were assigned a single lawyer selected by the police. The Working Group raised questions about the independence and effectiveness of the counsel selected in this manner.
Migrants in irregular situations and asylum seekers
With regard to administrative detention, the UN experts urged the Government to take effective measures to avoid the arbitrary deprivation of liberty of asylum seekers and migrants in irregular situations. “We are concerned that the recurrence of detaining asylum seekers since the adoption of a new law and the lack of effective legal remedy in place in practice may result in arbitrary detention,” Mr. Sow warned.
Hungary saw a rapid rise of asylum seekers applications in 2013, with 15,000 being registered compared to around 2,157 registered in 2012. The Working Group noted that the sense of urgency to address this problem was understandable but the Government had to ensure that the use of detention should conform with international human rights standards.
“There are concerns about the principle of proportionality when you consider that these persons have not committed a crime and yet are being placed in prison-like conditions for a prolonged period of time without proper judicial review,” Mr. Tochilovsky said. “We urge the Government to seriously consider using alternatives to detention, both in the criminal justice system and in relation to asylum seekers and migrants in irregular situations.”
The experts asked the authorities to ensure that automatic extension of detention of asylum seekers and migrants in irregular situations are not executed disproportionally, without taking into consideration individual circumstances. “Effective legal assistance for these categories must be made available,” they said, noting that it was mostly civil society’s lawyers, rather than the ones assigned by the State, who provide free legal assistance to migrants in irregular situations and asylum seekers.
The UN Working Group also raised concern about the confinement under the law of misdemeanours where the non-payment of fines could land a person in prison for minor offences.
The Group’s delegation visited detention facilities in Budapest, Békéscsaba, Debrecen, Gyula, Nyírbátor, Szeged and Tokol. During its visit, the Working Group met with high level authorities from the executive, legislative, and judicial branches of the State. Meetings were also held with representatives of the bar association, civil society members and representatives of UN agencies.
The final report of the visit will be presented to the Human Rights Council in 2014.
The former Commission on Human Rights established the Working Group in 1991 to investigate allegations of arbitrary deprivation of liberty. Its mandate was extended in 1997 to cover the issue of the administrative custody of immigrants and asylum-seekers. The Human Rights Council has just extended the Working Group’s mandate for a further three-year period on 26 September 2013.
The Working Group is composed of Mr. El Hadji Malick Sow (Senegal), current Chair-Rapporteur; Mr. Mads Andenas (Norway); Ms. Shaheen Sardar Ali (Pakistan); Mr. Roberto Garretón (Chile) and Mr. Vladimir Tochilovsky (Ukraine).
(*) Check the full end-of-mission statement: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13816&LangID=E
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