REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: Scottish Country of exchange: Hungary Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: Scottish Functions: Judge Length of service: 15 years Identification of the exchange Hosting jurisdiction/institution: Hungarian Judicial Academy, Budapest City: Budapest and Debrecen Country: Hungary Dates of the exchange: June 2012 Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) I. PROGRAMME OF THE EXCHANGE REPORT 1. In Week 1, I was in Budapest. I stayed in the Hungarian Judicial Academy which combines a conference centre and hotel facilities. I met one French judge - also on an EJTN Exchange to Hungary - and many Hungarian Judges [many of whom appeared to be relatively young women] there for a Conference. I visited The Supreme Court [Curia] and was welcomed by one of the Administrative Judges and his assistant. I visited the Parliament and spent a very interesting two days meeting the Judges in The Budapest Metropolitan Tribunal, visiting trials and obtaining an insight into the Hungarian judicial system. 2. In Week 2, I visited Debrecen - the second largest city in Hungary - often referred to as "Calvinist Rome". My main contacts were the 2 Administrative Judges and legal assistant in Debrecen County Court who dealt with asylum and immigration cases. I attended many asylum trials [Afghanistan, Syria, Iraq], took part in discussion of cases with the Judges, was shown files and was introduced to many senior Judges. I visited the brand new Regional Court of Appeal in Debrecen, one of 5 Regional Appeal Courts,

3 and had a meeting with its President. I had memorable visits to Debrecen Refugee Camp [visiting the home of an Afghan family], meeting the Director and staff of the Camp and Head of The Immigration Service. The Camp was formerly used as Barracks by Soviet soldiers. I also visited Nyirbator closed Detention Camp, close to the Romanian and Ukrainian borders, and was shown through the cells and guarded areas. I met the Head of The Foreign Unit and Head of Security in the Camp and a young lawyer, working with asylum seekers. I was advised that conditions had improved in the last year and that detainees were not confined to their cells. II. THE HOSTING INSTITUTION 1. The Hungarian Judicial Academy This was set up on 01 September 2006 for the purpose of providing high quality judicial training for Judges, court secretaries and certain judicial employees.the Academy also has an Information and Documentation Centre [also acting as a centre for the co-ordination and co-operation among court libraries] and a Hotel for judicial participants. 2. Administrative Department of the Metropolitan Tribunal, Budapest This is one of 20 County Courts [19 Counties and Budapest] competent to hear cases as first instance courts and review appeals lodged against decisions of local courts in the second instance. Only the County Courts are competent to hear administrative cases, all cases involving an amount over 20,000 euros, copyright cases and homicides and human trafficking in criminal matters. Before April 2011, the Metropolitan Tribunal had exclusive jurisdiction in examining appeals against asylum decisions. 3. Debrecen County Court [formerly Hajdu-Bihar Megyei Birosag] This is one of the 4 additional County Courts where, since April 2011, the unique competence of the Budapest Metropolitan Tribunal has been extended to allow review of asylum decisions. These County Courts cover the locations of the administrative detention facilities hosting asylum-seekers. III. THE LAW OF THE HOST COUNTRY As I am a Judge specialising in asylum and immigration appeals in the UK, I was particularly interested in asylum policies and procedures in Hungary. In Hungary, there are no formal requirements for seeking asylum as regards the form, the place and timing for lodging an asylum application. It is valid both in written and oral form, in any language and at any public administrative body - even the police or prison. The Office of Immigration and Nationality [OIN] is the first instance decision-making body and no administrative appeal is possible from its decision. There is a preliminary assessment procedure which serves to identify which Member State is responsible for examining the asylum claim if a EURODAC hit confirms that the Dublin II Regulation is applicable. There is then an in-merit procedure where the OIN examines if the asylum seeker is entitled to one of the following : 1. refugee status [menekult] 2. subsidiary protection [oltalmazott] 3. tolerated status [befogadott] - it appears that this status is unique to Hungary.

4 Generally, refugee status is valid for an indefinite period, subsidiary protection for 5 years and tolerated status for 1 year. There is a judicial review procedure against a negative decision. Before April 2011, only the Metropolitan Tribunal in Budapest could hear appeals against asylum decisions. I was told that, out of the hundreds of Judges in the Metropolitan Tribunal, only 4 deal with asylum and refugee law. In Debrecen, there are only 2 Judges dealing with these types of cases and their workload is high. Once a case has been determined by a Judge, there is no further right of appeal. Until 2010 no major changes occurred in the legal framework related to asylum law in Hungary. Since 24 December 2010, changes have occurred in the field of asylum including the introduction of the concept of "manifestly unfounded" asylum applications and the increase in the maximum duration of alien policing detention to 12 months. IV. THE COMPARATIVE LAW ASPECT OF THE EXCHANGE As my principal area of practice as a Judge concerns refugee/asylum law and immigration, I will focus on this aspect. As asylum law is based very largely on international and European Conventions, the law and practice in Hungary is similar to the UK. However, there are notable differences. 1. In the UK, there is a First-Tier Tribunal [Immigration and Asylum Chamber] dealing exclusively with appeals against negative asylum and immigration decisions. In Hungary, there is no specialist Tribunal. Review is carried out by the few Administrative Judges dealing with asylum in the Budapest Metropolitan Tribunal and the 4 competent County Courts in Hungary [Debrecen being the biggest]. As noted, there is no further right of appeal. 2. In the UK, the Immigration Judge makes contemporaneous notes while hearing a case in court - known as a Manuscript Record of Proceedings and also listens to the testimony of the asylum seeker and oral submissions from representatives for the asylum seeker and Immigration Authority [Home Office]. In Hungary, the Judge adopts a much more interrogatory approach. Submissions by representatives are surprisingly brief. In Hungary, also, much use is made by the Judge of dictation / recording equipment in court. The Judge will summarise the details of the case, names of parties and the submissions made on either side in order to ensure mutual understanding. This summary takes place during the course of the hearing. 3. In the UK, it is usual for the Judge to reserve his/her decision at the end of the substantive hearing and issue a full reasoned written decision thereafter. In Hungary, it is common for the court to be cleared at the end of the hearing and parties requested to wait outside the court room. The parties are then called back after a short time when the Judge will issue a short oral decision. This will then be followed up with the full written decision. 4. In the UK, it is rare for asylum seekers to be brought to court in handcuffs. In Hungary, this does occur as often asylum seekers are brought to court from refugee camps by security guards in handcuffs. However, the handcuffs are unlocked so that the asylum seeker can give evidence. 5. In the UK, it is very rare for an asylum seeker not to be represented in court. In Hungary, this appears to occur with greater regularity. The Hungarian Helsinki Committee provides free legal assistance in many languages and there are some lawyers who visit the refugee camps and immigration detention centres on a regular basis.

5 6. In the UK, representatives on both sides provide the Judge with large bundles of Country Information so that the Judge can evaluate the current position in the country of origin of the asylum seeker. In Hungary, Judges often have difficulty in accessing this type of information in the Hungarian language. It is to their credit that some of the Judges, with help from Legal Assistants, are able to translate Country Information from Reports in English into the Hungarian language. V. THE EUROPEAN ASPECT OF THE EXCHANGE Hungary is located at the crossroads of migration in Central Europe and along the Eastern border of the European Union. Its neighbours are Austria, Slovakia, Slovenia, Croatia, Serbia, Romania and Ukraine. It is a member of the Schengen Borderless Europe Agreement. In observing many cases involving review of negative asylum decisions by the OIN, I had the opportunity to observe Hungary's implementation of the 1951 Geneva Convention and its transposition of the relevant EU asylum - related Directives into national legislation. Since April 2011, asylum decisions have also been reviewed by Debrecen [County Court] - and only 2 Judges have been appointed for this purpose. It is to their credit that, despite having no previous experience in this field, both Judges have built up substantial knowledge and continue to build on that knowledge and develop interpretations of important asylum and refugee law concepts. The caseloads are high and access to Country Reports and reference materials in the Hungarian language is extremely limited. The research for cases was often provided by the Legal Assistant who had a very good command of the English language and could source Country Information in English and translate it into the Hungarian language. I note that the UNHCR [Report, April 2012, "Hungary as a country of Asylum"] has recommended that the newly - competent courts [Debrecen and three others] should have afforded the resources necessary to ensure they have the requisite knowledge and reference materials to make properly informed asylum decisions. VI. THE BENEFITS OF THE EXCHANGE The benefits of the exchange were being able to witness, at first hand, how another European Union country deals with the challenges in implementing the Geneva Convention and deciding asylum appeals and discussing the legal aspects of asylum cases with the Judges in Hungary. It was an enormous privilege to see how the Judges dealing with asylum cases in both Budapest and Debrecen dealt so conscientiously with their caseloads, despite particular difficulties with access to sufficient Country Information [in the Hungarian language] and limited judicial resources. In both Budapest and Debrecen, I was fortunate to have a Judge sitting beside me during cases in court and interpret the proceedings from Hungarian into English. Some of the Judges are young and have been taught English in school, rather than the former compulsory Russian. I also benefited from meeting a French Judge in Budapest - also on a judicial exchange with EJTN -and discussed aspects of the French legal system with her. I hope to continue my contact with the Judges I met in Hungary who were exceptionally welcoming and made the whole exchange a very positive and memorable one. I think the benefits of the exchange will encourage me to re-assess my own judicial practice in the light of my experience. I have also spoken to many of the Hungarian Judges I met about the EJTN exchange programme and, hopefully, this will lead to further international exchanges and increase understanding between Judges in different EU Member States.

6 VII. SUGGESTIONS I found the Exchange Programme enormously rewarding both as a Judge and on a personal level. The Hungarian Judges I met could not have been more helpful and welcoming and enormously proud of their judicial work. I only have a few suggestions. 1. The possibility of a shorter programme of 1week in addition to the 2 week programme. 2. Wider dissemination of information on the EJTN judicial exchange programme. Many of the Hungarian Judges I met were not aware of the possibilities. 3. A possible Newsletter by EJTN about judicial exchanges and for senior Judges to pass on information to other Judges. 4. That the Exchange Programme liaise with the European Union to put in hand the possibility of sufficient resources being allocated to the newly- competent courts in Hungary which deal with making asylum decisions, particularly in the area of achieving consistency in decision - making and accessing Country Information in the Hungarian language.

7 SUMMARY My first week was spent in Budapest where I stayed at the Hotel of the Hungarian Judicial Academy. I visited the Supreme Court [Curia], the Parliament, and spent 2 days meeting Judges and attending trials at the Administrative Department of the Metropolitan Tribunal. In all courts, I was able to discuss cases with the Judges and obtain an insight into the Hungarian judicial system. My second week was spent in Debrecen, the second largest city in Hungary, in the Great Plain of Central Europe. I sat in on many asylum cases at Debrecen County Court and visited Debrecen Refugee Camp [an open camp] and Nyirbator, a closed immigration detention camp, close to the border with Romania. I also visited the local Court in Debrecen [and heard a criminal trial] and the new Regional Court of Appeal. Throughout the second week, I was invited to many social occasions by the hosting Judge [including dinner at the Judge's family home] and visited The Great Church, Debrecen's most recognisable building, Nagyerdo Park, The University of Debrecen and The Museum of The Reformed College of Debrecen.

8 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?