Drastic “State of Emergency” Proposal a Misguided Response to Hungary’s Refugee Crisis

Hungary is preparing to declare a “state of emergency” on September 15th to authorize more severe measures to repel migrants seeking shelter and refuge. Its proponents say the date will mark “a new era” for Hungary. Meanwhile, almost four thousand soldiers have already been sent to the border with Serbia to complete a four-meter high fence in a misguided effort to keep migrants out.

Under the current legal system, Hungary’s national constitution—the 2011 Fundamental Law—permits the government to declare a state of emergency in the event of warfare, anticipatory self-defense, armed uprisings, or “serious acts of violence endangering life and property on a massive scale.” It would allow the government to deploy the army and take other extraordinary measures.

To get around these limitations, it looks like the Orbán government is attempting to modify the rules. Nine Hungarian politicians have proposed amendments that would allow the government to declare a state of emergency due to “massive immigration.” These same politicians also sent a message in late August to the leaders of the European Union, accusing them of “irresponsible policies” that encourage immigrants to imperil their lives in attempting to reach Europe.

The proposed definition of “massive immigration” sets a very low bar. It would constitute a situation in which (1) more than 500 migrants seek refugee status determinations per month; (2) more than 1,000 migrants are present in one of the transit zones; or (3) disturbances break out in any of the transit camps. Meanwhile, the UNHCR warned Hungary to expect a new wave of 42,000 refugees in the next ten days, which would allow a state of emergency to persist for the foreseeable future. Indeed, until the conflict in Syria is resolved by means of a political solution, there is no end in sight for the refugee crisis.

Hungary’s proposed state of emergency is a threat not only to newly-arrived migrants, but also to ordinary residents of Hungary who will be subjected to heightened security measures and intrusions on their privacy. The police would reportedly be able to enter private property without a warrant, based only on a superior order to search for migrants. Hungarians accused of “complicity” in supporting refugees would face new criminal sanctions. The military would have expanded authority to use greater force, including firearms, in the border region and elsewhere.

Hungary is bound by international law, and even in times of crisis the Orbán government is obligated to respect fundamental rights regardless of whether a state of emergency is declared. Under the International Covenant on Civil and Political Rights and the European Convention on Human Rights, states that “derogate” from their treaty obligations in times of “public emergency” must still take measures to narrowly tailor their derogations to the particular situation at hand. Certain international legal obligations are “non-derogable” and must be strictly respected. For instance, even in a state of emergency the government cannot violate the right to life or engage in cruel, inhuman, or degrading treatment. As the Orbán government weighs its response to the refugee crisis, the dimensions of its proposals must be bounded by these essential international human rights obligations.

Hungary’s proposed state of emergency is part of a continuing trend of diminished rule of law in the country. Human Rights First has documented the Orbán government’s sweeping legal changes that have eroded checks and balances among government institutions and called on Hungary to revise the Fourth Amendment and other articles of the Fundamental Law to meet European and international standards. In May, Tad Stahnke, our expert on human rights and extremism in Europe, testified to Congress on recent troubling trends in human rights, governance, and the rule of law in Hungary.

Over-militarization and corrosion of fundamental liberties is a misguided response to the refugee crisis. This situation should not become a pretext for further erosion of the rule of law in Hungary.

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Published on September 14, 2015

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