Stunning exceptions in the legislative package concerning migration

Author: Kata Janecskó Original title: Megdöbbentő kivételeket találtunk a menekültügyi törvénycsomagban
Original publication:Index.hu Original date: 11/09/2015

Stunning exceptions in the legislative package concerning migration

There will not be special procedures for juveniles nor translations of the most important documents of their case.

Amendments had been made to the new legislation of the Hungarian Parliament which made the procedures stricter against immigrants who are trying to enter the country across the Serbia-Hungary border. The new procedural law makes exceptions from the normal criminal procedure to speed up the cases and to save money at the same time, because the cost of assuring the right to use one’s native language is borne by the Hungarian state.This amendment may infringe on EU law. The Court of Szeged [the regional court that will have to pick up all reviews] may become flooded in the coming weeks. The news spreading among judges is that they might have to use courts set up in containers by the Serbian border.

Hidden in the 12-pages long text of the bill are some important last minute amendments made by the legislative committee that will have important consequences. The “Act on Mass Immigration” is a series of amendments to ten different laws that were ratified by the Hungarian national assembly last Friday. It was published on Monday and most of the act will come into force as soon as next Tuesday, 15 September.

From this date on the new Penal Code will criminalize:

  • crossing the border fence
  • damaging the border fence
  • obstructing border defense construction work.

From next Tuesday, anybody who crosses Hungary’s border fence may face criminal procedure. It is impossible to forecast the number of people affected. Last Wednesday, 3,321 migrants were caught by the police. This is the number of migrants who crossed the border illegally. It is not known how many will be deterred by the new threat of prosecution.

Those not thwarted by it may find themselves facing criminal procedures in accordance with a special procedural law, which, according to the official explanation of the new legal text, is designed to facilitate the “fastest possible completion of a final decision.” In all such cases the Regional Court of Szeged and the Regional Appeal Court of Szeged will make the judicial decisions.

The most important new procedural rules:

  • criminal procedures against migrants take priority over any other cases (in a declared “state emergency due to mass immigration”);
  • migrants may be brought to court within 15 days if the facts are simple and if the migrants plead guilty to crossing the border;
  • those who are caught while crossing the border may be brought to court in 8 days, if the case is a simple one and evidence is available – an admission of guilt is not a necessary prerequisite in such cases.

Juvenile under 18? It does not matter

It appears that somebody reexamined the fast-track legislation before the passage of the legislative package and was able to identify what prevents speedy decision-making. One such obstacle is that under criminal procedure, special rules apply to juveniles. The court has additional obligations, for example, a study has to be made about their circumstances, or if their parents are not present, a guardian has to be assigned to the juvenile offender. However, it is very difficult to establish the actual age of paperless migrants. If there is no proof of adulthood, a medical examiner must form an opinion. All this would slow down any procedure involving juveniles.

The legislative committee of the parliament made a simple shortcut: they simply declared that the special procedural law for juveniles is “not applicable” to these border crossing cases. With this simple act the migrants under 18 are made exempt from the special protection clauses to which all juveniles are entitled in Hungarian courts.

Where will they wait for the conclusion of their case?

If the migrant crossing the fence disappears (“stays at an unknown location”) then the procedure must be aborted. In order to prevent this, those with an open criminal case will be detained so that they are not able to disappear. In their case, in most cases the law prescribes home arrest which (given that they have no homes in Hungary – trans.) will be located in the refugee camps. According to the official explanation this measure protects the families, too.

Translation: that will not take place

The same last-minute legislative shortcut was created when in a similar amendment the legislative committee declared that two further elements of the criminal procedure will no longer be applicable to cases involving migrants: neither the prosecutor’s documents nor the judgment need to be translated.

The criminal procedure law otherwise makes this mandatory when the accused does not understand the Hungarian language. According to the general provisions of criminal procedure:

  • nobody should be discriminated against due to their lack of knowledge of the Hungarian language
  • and everybody is entitled to use their mother tongue, or any other language that they can speak.

According to the EU directive on the “Right of the accused to interpretation and translation” the member state “ shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings.” The directive makes it crystal clear that the prosecutor’s charge against the accused and the verdict are essential documents. This is likely to constitute an infringement of the EU law.

The cost of the interpreter is not a big sum

They do not only save time by abolishing the mandatory interpretations: at issue is a large amount of money. The costs associated with using the mother tongue have to be borne by the State that charges the person and not by the accused. Even in the case of the famous Slovak millionaire Mrs. Rezesova the interpretation costs were paid by Hungary. In order to protect the right to use the native tongue, oral interpretation and the translation of written documents are both required.

Refusing interpreters in border crossing criminal cases is not under discussion at the moment, but when it comes to money this is the lesser sum. The cost of a court interpreter is not fixed by governmental regulation, the interpreters pay is a market price. The cost of interpretation depends on the scarcity of the language used. Though it is difficult to generalize, HUF 10,000 (approx. 33 euros) per hour is not an unusual sum.

In the year 2012, for example, the Court of Szeged spent a total of HUF 6 million on interpretation, according to the local portal Délmagyar.hu. Interpreters were used in 476 instances in that year, at an average cost of HUF 12,605 per case.

These are pennies in comparison with the translation costs of documents. Last year the Appeals Court of Debrecen found two people of Algerian origin guilty of robbery. According to the verdict, the total penal costs were HUF 777,000 out of which HUF 477,000 went to the translation of the first instance verdict alone.

Public defender: HUF 5000 per hour

To offer a comparison: in this case, the total amount spent on the legal defense was only HUF 24,000. In the forthcoming procedures against migrants public defenders will be mandatory. As opposed to translation costs, the costs of the public defender are not necessarily borne by the state. If convicted, such charges are usually charged to the accused. While it is questionable whether these charges can ever be collected from migrants, it is certain that the government will have to advance the money to the lawyers. The hourly cost of a public defender is HUF 5,000 at the time of publishing this article.

According to the general rules, a separate hearing will have to be held for each migrant’s case. If a case goes through the court at an enormous speed, say, in an hour, then roughly HUF 15,000 will be the total costs of the interpreter and the public defender, excluding other potential costs of the court. The government will also save money as there will be no assessors present besides the judge.

Container courts at the border?

On Tuesday Tünde Handó, president of the National Office for the Judiciary said that she expects an increased workload for the judicial administration and additional resources will be needed. She thought that the government was open to this. Speaking briefly, she said that, to aid their work, the Court of Appeals in Szeged is likely to get extra personnel and computer equipment. She did not elaborate any further on how many judges will be sent there or when they would be notified about this.

Index.hu heard from multiple sources that the information spreading among judges is that containers would be brought to the border to serve as temporary courts in the border crossing cases.

The National Office for the Judiciary has not confirmed this, we are still waiting for answers to our questions from the office. As soon as they will arrive, Index.hu will update the story.

The Curia will help, too

The Appeals Court in Szeged put out a press release on Friday saying that they will help in the swift administration of migration related cases with a judicial council of four criminal judges and administrative officers. “We are in the process of meeting the requirements of the judiciary work,“ reads the comment.

There is already work to do at the Court of Szeged

According to statistics posted on the National Office for the Judiciary, the Court of Szeged heard 50 592 cases in 2014. The situation was slightly better than in the previous year, as this constituted 74.6 percent of the amount in 2013. Szeged was assigned to 3.5% of cases nationwide. To compare: Nyíregyháza received 6.1, Miskolc 6.8 percent, while Szekszárd and Szombathely were allotted only 1,5% each.

[Previously translated articles regarding this topic here  and here. For further reference, please refer to the original article, and ask the original journalist for updates, and refer to our blog as crowdsourced translation. The original author’s contact can be accessed with the original article on the table in the post header. ]

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