During the Cold War the Hungarian State Security Service (like other Communist secret services) offered strong support to terrorists planning attacks against the West. Between 1979 and 1985, the group led by the infamous Carlos visited Hungary on a number of occasions: they maintained an apartment, where they stored and probably received weapons, and it was in Budapest that they met the representatives of ETA, IRA and the Italian Red Brigades. Officials of the Hungarian Ministry of Interior booked rooms for them in the Thermal Hotel on Margit Island, where Ulrike Meinhof, founder of the German Rote Armee Fraktion (RAF) also spent some time. Presumably it was also in Budapest that they plotted the 21 February 1981 attack against the Munich headquarters of the Radio Free Europe, where 8 persons were wounded. Naturally, this happened with the approval of the leadership of the Hungarian Socialist Workers' Party, which exercised total control over the Hungarian State.
Minister of Interior Balázs revealed this information to the Parliament and the public on 26 June 1990. He announced that he had requested the Chief Public Prosecutor to launch an investigation into the responsibility of the previous regime's highest ranking officials of interior and security affairs, such as András Benkei, Károly Németh, András Gyenes, Mihály Korom and Sándor Rácz. Eventually a criminal proceeding was launched against the hiding Carlos, whereas the above persons were only heard as witnesses, along with Lajos Karasz, István Horváth, Szilveszter Harangozó and János Berecz,[1] who all refused to testify, claiming that they were not able to do so unless they were exempted from the obligation to withhold state secrets. The person entitled to provide exemption was András Gálszécsy, the Minister without Portfolio in Charge of Civil National Security Services. The Minister requested that the National Security Cabinet be called into session. The highranking body (involving the Prime Minister, the Minister of Foreign Affairs, the Minister of Interior and the Minister of Defence) decided that the "witnesses" would not be exempted from their obligation of confidentiality, because this would increase the terror threat against Hungary. Carlos bombed a train in France, because of the arrest of his girlfriend. Although Carlos would probably not have blown up even a firecracker for Lajos Karasz, the investigation came to a halt due to a lack of witnesses. One year after the announcement of the Minister of Interior (on 7 July 1991), the Chief Public Prosecutor declared a suspension of the investigation since Carlos was in hiding.
And then Carlos was miraculously found. The possibility of recommencing the suspended procedure was, however, never raised officially. Béla Katona, the socialist successor to András Gálszécsy, knew without any investigation that the Hungarian State Security Service had committed no abetment; the purpose of their activity had for six years been to force Carlos and his group out of the country. They refrained from more concrete measures because those could have turned Hungary into a target of terrorist attacks. In the course of the French Investigation, the Hungarian Chief Public Prosecutor's Office rejected the French magistrate's request and refused to hand over to the French authorities the records of the prosecutorial hearings and the 13 Carlos-files that had been forwarded by the Office for National Security to the Chief Public Prosecutor's Office in the summer of 1990. Dr. János Fábián, Deputy of the Chief Public Prosecutor, claimed that these could not be handed over since they contained state secrets. In my opinion the records were not released because they also may make it clear that those indispensable professionals who surveyed and covered Carlos's activities in Hungary ten years ago are still working for the national security services, the police or the alien policing authorities.
The purpose of this long introduction is to illustrate that the activities of Hungarian law enforcement bodies have always been characterized by nice sounding announcements, highly publicized but practically useless measures and the innermost fear that one day
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an active terrorist might really turn up somewhere in Hungary. The latter did happen once: a bomb-attack was committed on the airport motorway against Jewish people emigrating from Russia to Israel via Hungary. The remote-controlled bomb exploded sooner than planned, under the police car leading the convoy and police officers were wounded instead of the Jewish migrants. By the time the police got over their surprise, the terrorists had left the country; they were identified by foreign secret services later.
Before the first Gulf War, after, in a closed session, the Hungarian Parliament gave permission to NATO aircrafts to use the air space of Hungary, the press reported on potential terrorist attacks. Several articles were published on "sleeping" terrorists, who for long years live like law-abiding citizens, and then suddenly, as if waking from hibernation, start performing the terrorist missions with which they were charged. On the 5[th] of January 1991, the Hungarian Television reported that Arab terrorists were preparing to bomb Hungarian hospitals, and two days later the daily paper Magyar Hírlap claimed that 43 terrorists had, in two waves, arrived in Hungary. András Gálszécsy, Minister Without Portfolio in Charge of National Security Services, regarded these reports as "almost entirely unfounded" and premature, and, in an interview, he told the journal Beszélő that "due to the limited number of staff and technological background, the secret services are not capable of observing the moves of such people" (Beszélő, 12 January 1991). However, the Police thought it wiser to act: on the 5[th] of January 1991, police officers invaded the bridges. Only Ottilia Solt[2] was of the opinion that this precaution was not so much due to the terrorist threat as to the fear that, in reaction to price increases announced on 7 November 7[th], something similar to the taxi blockade of October 1990[3] might take place.
Although the blockade was not repeated and the hospitals were not bombed either, when the Operation Desert Storm started in the Gulf, the police raided Váci Street bars, stopped every foreigner with a darker complexion and officers armed with machine guns appeared at the railway stations. The Library of the Parliament closed one hour earlier than usual, so that the guards could search the reading rooms. The strictest measures were imposed on airplane passengers. Prior to departure, pencil batteries operating electronic gadgets were confiscated, arriving passengers could only leave the airport through the side entrance, and relatives were compelled to wait outside the main entrance in minus 10 degrees. Only members of the anti-terrorist troops were allowed to stay in the heated arrival hall, where, in their bullet-proof vests, they waited for hibernating terrorists to appear.
The use of such extraordinary measures did not, however, require that a state of emergency be declared. The Police acted on the basis of its usual practice and Service Regulations. In fact, the Service Regulations were only made publicly available as a Decree of the Minister of Interior on 10 January 1990. Service regulations were previously issued by the Minister as an order to the Police, and therefore citizens were not able to access its provisions. Although the transformation of the order into a publicly accessible decree was a significant step of the process of democratization, the authorizations included in the former orders appeared unchanged in the Decree. This method is characteristic of legislative techniques used in relation to law enforcement agencies. The authorizations that were regarded as "self-evident" in the undemocratic system made their way into the laws of parliamentary democracy: what was a secret order before was now adopted as a part of the Corpus Juris by a two-third majority of the Parliament.
A good illustration of this is provided by the rules on stop and search measures. On 24 September 1983, Gábor Demszky's[4] car was stopped under the pretext of a traffic control, and not only the trunk of the car, but also Demszky's bag was searched. Furthermore, the policemen read the private letters found in the bag. Demszky filed a complaint with the Chief Public Prosecutor's Office on the grounds that the Police were not authorized by any publicly available statute to act in this manner. Soon afterwards, the Council of Ministers issued a Decree claiming that in the course of an identity check, the police officer may search the car, luggage and clothing of and pose questions to the person subjected to the measure. This ad hoc piece of legislation (called "lex Demszky") survived the democratic transition, and made its way in a practically unchanged form in the new democratic Police Act.[5]
When, following the terrorist attack of 11 September 2001, the President of the United States declared the war on terrorism, the law enforcement agencies had to be vested with special rights in relation to the controlling of citizens and foreigners. In the United States these authorizations were included in the Patriot Act. However, even before 9/11, the Hungarian law enforcement bodies possessed all those authorizations that might be necessary in a special situation. Hence, we can conclude that the terrorist attack in New York brought about no changes in the Hungarian system.
Which are the most obvious of such authorizations?
1) Regular identity checks, stops and searches. Anyone can be stopped at any time. It is possible to
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demand information on where the given person has been, and to search his/her clothes and vehicle.
2) Wide possibility to use secret surveillance methods, gathering of information without external control.
3) Controlling financial transactions.
4) Permanent controlling of aliens, using administrative instruments to force out unwanted foreigners without regard to their family ties with the country.
Under Hungarian law, "the police officer may stop and control anyone whose identity he/she should establish".[6] The law fails to specify when and under what circumstances a situation may evolve as a result of which a police officer should establish someone's identity, and such circumstances are not examined in police complaint procedures either. While complaints are investigated by superior police organs, such investigations are only conducted with regards to the way in which the identity check was performed and never into the actual reasons for the measure. An identity check that was carried out lawfully from a formal point of view will be regarded as lawful even if it did not have a well-founded reason. If this were not so it would not be possible to regularly control discos and bars and check the identity of their guests even if no criminal offence was committed in the given place.
"In the course of an identity check, the police officer may search the vehicle and clothing of the person whose identity is being checked."[7] In terms of the law, this is possible if necessary for the establishing of one's identity, the prevention of a probable threat, or the suspicion of a criminal offence or a petty offence. In reality, the prevention of a probable threat and the suspicion of a criminal or petty offence provide such a wide basis for the searching of one's clothes and vehicle that there are hardly any cases when a police officer cannot explain the lawfulness of such a measure. The authorization to search clothing includes the right to search the luggage (handbag, backpack) of the person subjected to the measure, as it is considered by the law to form part of the given person's clothing.[8]
In the course of spot checks that take place within 50-70 kilometres of the border (especially in the East and South of Hungary), the Police and the Border Guards usually work together. In such cases they usually ask the driver to open the trunk, and he/she is asked where he/she comes from, what he/she is carrying, and often the luggage is searched. In the perimeters of bars and discos frequented by younger people, the guests are often stopped upon leaving. They are asked to empty their pockets. The Police are usually searching for disco drugs on such occasions.
The Hungarian NGO Civil Liberties Union criticized this practice in an open letter addressed to the Minister of Interior. At the end of the investigation ordered by the Minister, the Police held a press conference, where the National Commander's Deputy in Charge of Public Security informed the public that in the previous year, i.e. 2003, there had been 1.5 million identity checks, but only 0.1 percent of the persons checked had filed complaints, and only about 300 of these complaints had proved to be well-founded. Only one thing was not explained: why is it necessary to have 1.5 million identity checks per year in a country with a population of 10 million.
In the course of identity checks - especially those performed among pedestrians as well as at bars and discos, the Police's main targets are young people, foreigners (especially non-whites) and the Roma. As the authorities are forbidden by law to gather ethnic statistics, this statement is only supported by indirect evidence. In analyzing the files of criminal proceedings closed with a final and binding judgment in 2003, the Hungarian Helsinki Committee tried to find out whether there was evidence of ethnic discrimination in the Hungarian criminal justice system. The files of 1,147 persons accused of theft or robbery were researched. Based on the contents of the files, the researchers identified 401 defendants as Roma and 609 as non-Roma. 23 percent of non-Roma perpetrators became suspects as a result of being caught red-handed, whereas, among Roma defendants, this ratio was only 13 percent. At the same time, 29 percent of Roma were caught in the course of identity checks, while this was the case for only 17 percent of non-Roma perpetrators. This difference supports the theory that Roma persons are stopped and checked more often than non-Roma persons. The difference is only 1 percent with regard to juvenile offenders. This may be due to the fact that, in their case, the true reason for the check is age and not ethnicity. The research gave rise to the strong suspicion that what the American literature describes as racial profiling is not unfamiliar in Hungarian police practice. By paying special attention to the Roma, the Police have continued the practice that existed prior to the democratic transition. At that time, several internal orders prescribed the increased control of "Gypsy rows", pubs frequented by the Roma, and every police headquarters employed officers specialized in investigating so-called "Gypsy criminality".
After performing the identity check, the police officer fills out a so-called check sheet, which contains the data of the person checked, as well as the
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time and place of and the reasons for the check.[9] The check sheet is preserved for 2 years (as "data gathered for purposes of crime and petty offence prevention").[10] In practice this means that the simple fact that someone takes a stroll in the street or spends some time in a pub may in itself lead to his/her data being entered into the criminal database of the Police. Unless some irregularities are detected, usually no check sheets are filled out in the course of traffic spot checks, so these checks are not statistically recorded either. Consequently, the annual number of identity checks is likely to be over 1.5 million.
The Police Act specifies that the Police may exercise increased control in public places and designated areas of public premises.[11] In the course of increased control, the identity of people entering such places and premises may be checked, and their clothing, luggage and vehicle may be searched. According to the law, increased control may be ordered in order to (i) apprehend the perpetrator of a crime, (ii) prevent or stop an act or incident threatening public security, (iii) prevent or stop an unlawful act threatening the security of traffic or an event, or the order of a public premises. Under the Service Regulations,[12] the head of the police organ, whose area of competence is detailed in the measure, may order increased control. County Police Chiefs may order increased control for their respective counties, while the National Commander and his deputies may order this measure for the whole country. This extensive interpretation of the authorization to exercise increased control compromises the original purpose-bound nature of the institution, since the prevention and stopping of crime and the apprehension of criminals are permanent tasks of the Police. On this basis increased control may be ordered anytime, anywhere. This may serve as the ground for spot checks and increased control of drivers, or the routine checking of bars and pubs.
In 2004 two young Roma men asked for the Hungarian Helsinki Committee's help. They complained that in a bar located in Budapest, 9[th] district, the police officers, in exercising increased control, only checked the identity of Roma guests and one nonRoma person who happened to be sitting with Roma friends, while other non-Roma guests were not checked. The head of the concerned police organ initiated an investigation based on the complaint. The officers heard claims that they had been instructed at the 9[th] District Police Headquarters to control certain bars and pubs in the district and to apprehend people against whom an arrest warrant had been issued or those who might be suspected of criminal offences. From the bar where they checked the identity of the plaintiffs no reports of any irregularity had been received; they apparently controlled the place routinely. They decided on whom to check on the basis of age, and not of ethnicity. Other guests were much older, and the likelihood of finding wanted or suspicious persons is much higher among younger people. The legal representative of the plaintiffs asked whether they also check another place, a certain well-known restaurant of the area, on a regular basis. The officer was surprised: "Why would we? That is a very expensive place. Why should we disturb people dining there?" The Police finally rejected the complaint but ordered that the check sheets of the plaintiffs be eliminated. But what was the ground for that if the identity check was lawful, and the legal provisions prescribe the preservation of the sheets for two years?
Secret service methods are among the most frequently used instruments in the war on terrorism. Before the democratic transition, the use of such methods was mainly the privilege of the state security services. Informers were also used by the Police, however, who were also authorized to perform wiretapping as well as secret house searches with the assistance of the competent department of the state security services. Two years after the transition, two-thirds of secret service capacities were still used by the new national security services (which had succeeded the state security apparatus). Probably as a counter effect of this, competition arose among law enforcement organs, which had always put great emphasis on their independence from each other: all these agencies demanded independent investigative competences, including the authorization to use secret service methods.
Today, besides the four national security services (the Civil Security Service, the Military Secret Service, the Civil Intelligence Services and the Military Intelligence Service), the Police, the Border Guards, the Board of Customs and Excise, and the Defence Service of Law Enforcement Organs (eight agencies altogether) are entitled to use such secret methods. There are overlaps in the authorizations of the different organs. The Border Guards for example are vested with the right to perform alien policing controls, and conduct investigations into cases related to the control of borders and illegal stays in the whole territory of the country. Whether the Police or the Border Guards
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investigate a case of the smuggling of human beings is only a matter of chance. Secret methods would most probably be applied in such an investigation, and it is possible that the Border Guard's informer would unveil the covered detective of the Police.
The overlap of competences is illustrated by the fact that precisely in the case of terrorist activities (the investigation of which is a typical secret service competence), the Police shall conduct the investigation if a report has been filed with the Police or if the Police have obtained information about such activities.[13] Thus, the law itself compels the Police and the security services to compete, although both the Police Act and the Act on National Security prescribe cooperation between these organs.
Of all the law enforcement agencies, only the Fire Brigade and the National Penitentiary Administration are not authorized to resort to secret service methods. Therefore, the Police operate the system of informers functioning within penitentiary institutions. The officer running the system is an employee of the Investigating Department of the County Police Headquarters, although his actual place of service is the penitentiary institution. With regard to a convicted prisoner, the Police could in theory only exercise certain rights in the framework of a new criminal proceeding or some extraordinary remedy procedure, but the Police are in fact conducting continuous investigative activities among prisoners, whose criminal case is already decided and finished. This Police activity could only indirectly be based on the Police Act's provisions[14] concerning the so-called "crime-prevention control", and by Articles 13-14 of Act LXXIV of 1999 on Organized Crime, which vested county police headquarters with the task to initiate crime-prevention control on the basis of the convict's behaviour in prison. However, in its Decision 47/2003. (X. 27.), the Constitutional Court annulled the institution of crime-prevention control, so the officers of county police headquarters have been working in penitentiaries without a legal basis - illegally, so to say - ever since the decision.
The public believes that the most intrusive secret service methods are wire-tapping, the monitoring of electronic telecommunication, the opening of postal communication and secret house searches. Therefore, great importance is attached to the judicial control of the use of such methods. In reality, the majority of information is gathered not through these judicially controlled methods but from reports prepared by natural persons cooperating with the secret services. Article 64 of the Police Act has made the employment of informers and undercover detectives possible since 1994. Therefore, the 1999 amendment inspired the idea of fight against organized crime did not bring along significant changes. The most important was that similar to national security services, the Police also received an authorization to initiate with employers the employment of their covered detectives. This means that unlike wire-tapping, which serves the clearing up of a concrete criminal case, the Police are allowed to place informers with the purpose of the continuous observation of sensitive work places. The investigating authority allows itself to gather information this way, so such measures may be taken without any concrete purpose, just for the sake of generally "preventing criminal activity".
The main justification behind the adopting of Act LXXV of 1999 was not the war on terrorism, but rather the combat against organized crime. The law was an attempt to regulate several distantly related fields of law enforcement. Its primary goal was to set forth rules to handle the problem of prostitution (these turned out to be fully useless in the subsequent years), but it also extended the authorizations of the Police to gather information containing business secrets. The original 1994 provisions of the Police Act[15] already made it possible for the Police with the preliminary approval of the public prosecutor to oblige banks, tax authorities and telecommunication companies to disclose data for the purposes of investigating criminal offences punishable with two or more years of imprisonment.
The Act on Organized Crime amended the provision. It authorized the Police to oblige health care institutions to disclose data, and it explicitly stated that when disclosing data requested by the Police, bank and tax information and other secrets shall also be provided. Based on this authorization, the Police may, in urgent cases, prescribe the disclosure of data without the approval of the public prosecutor if the matter concerns terrorism, drugs, arms trade, money laundering or organized crime. In such cases, subsequent approval is sufficient. In the United States, such authorizations were only given to the authorities two years later, by the Patriot Act.
The Act on Organized Crime, an amendment to Article 88 of the Police Act, also authorized the Police with the right to connect different data processing systems. The law now says that not only its own criminal and administrative data base may be connected by the Police, but that the Police may also perform individual data processing by getting connected to the data bases of other law enforcement agencies, investigating authorities and other data processors.
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According to the terms of the amended Article 42 of the Police Act, the Police may permanently make video and audio recordings of street activity using cameras placed in public premises. Although it is exactly the Act on Organized Crime that claims that prostitution is neither a criminal act nor a petty offence, and that the offering of sexual services shall only be regarded as a petty offence if it takes place in so called protected areas (e.g. in the neighbourhood of schools and churches), the Police have on numerous occasions apprehended prostitutes and initiated proceedings against them on the basis that the camera recorded a guest entering a house after being called by a prostitute standing in the doorway of her apartment.
The impact of the New York terrorist attacks on Hungarian legislative processes may best be observed in the enactment of laws that prescribe a stricter state control of financial and economic transactions. Immediately after 9/11, the Hungarian Parliament adopted Act LXXXIII of 2001 on the Fight against Terrorism and the Prevention of Money Laundering (promulgated on 4 December 2001). The law declares the prohibition to conclude contracts exchange financial obligations with certain states as well as the citizens of and legal persons that reside in these states. It prohibits the launching of an enterprise in these states, and it also provides an authorization to introduce restrictive measures in order to refuse citizens of these sates the right to perform bank transfers. The law does not set forth which states are concerned. This is to be decided by the UN Security Council or the Council of the European Union. Thus, the statute that was hastily adopted after the attack simply converted a previously existing international obligation into a domestic law.
Act LIX of 2002 indicates a radical break with the Swiss principles of secrecy and anonymity because it obliges banks to identify clients, accounts and legal persons, and to report each transaction that concerns an unusually large sum or that of unusual nature. However, in spite of the chronology, this law was not a reaction to the new threats of terrorism. It is rather the national promulgation of the International Convention for the suppression of the financing of terrorism adopted under the United Nations' aegis on 9 December 1999. The Convention provides the following general definition of terrorism: a person commits an offence if that person provides or collects funds with the intention that they should be used or in the knowledge that they are to be used in order to carry out an act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
The scope of the Convention is restricted to financial transactions related to terrorism, and offences concerning more than one state (i.e. it may not be applied if the offence is committed within a single state, the alleged offender is a national of that state and is present in the territory of that state), but by obliging states to continuously monitor financial transactions, it sets forth the state control of economy in the form of an international requirement.
The Hungarian legislators interpreted this international requirement extensively. Act XV of 2003 on the Prevention of Money Laundering makes the identity verification of the client obligatory in case of each transaction exceeding HUF 2 million and each currency change exceeding HUF 300,0000 (or USD 1,500) regardless of whether or not there is a suspicion of terrorism. Financial providers are obliged to report transactions regarded as suspicious with the Police, and shall designate one or more contact persons who liaise with the National Police Headquarters. Taking into account the fact that financial providers are supervised by the National Inspectorate of Financial Organizations anyway, it seems unnecessary to compel each financial institution to have employees who are confidents of the Police by virtue of their job.
It is even more problematic that the obligation of identity certification is also imposed on attorneys and notaries public, and that, furthermore, suspicious transactions (such as suspicious purchases and sales of real estates) shall be reported by attorneys, except if the information was obtained in the framework of a criminal procedure. Attorneys shall report to the regional bar association, and the liaison person is appointed by the bar. It is easy to imagine how an attorney's practice is influenced if the news is spread that he/she is the police liaison.
There was one particular case when the public was informed about financial transactions related to terrorism. A Syrian physician legally residing and working in Hungary tried to transfer money to a Palestinian charity organization, which, according to the international banking sources, also supports terrorist organizations. The Hungarian bank reported the case to the National Security Office, and the physician was expelled from Hungary although he
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was - by Muslim religious laws - married to a Hungarian woman (by Hungarian laws, the couple lived in a so-called life partnership). When asked about the case, the State Secretary Supervising Security Services claimed that the authorities had no discretionary rights, that they were obliged by law to expel the Syrian man.
This is not true. Article 32 (1) (b) of Act XXXIX of 2001 on the Entry and Stay of Foreigners (hereafter: Alien Policing Act) indeed prescribes that members of terrorist organizations shall be expelled from Hungary. However, the doctor was in fact expelled on the basis of Paragraph (2) (f) of the same Article, which claims that a foreigner whose entry or stay violates or threatens national security may be expelled. Thus, the authorities did have discretion in this case. In terms of Article 14 (1) of the Alien Policing Act, the spouse of a Hungarian citizen shall be entitled to a residence permit if he/she legally stays in Hungary, and possesses sufficient means to cover his/her expenses. As life partnership, according to a decision of the Constitutional Court, is essentially equivalent to marriage, the authorities should have assessed whether the doctor has true family ties with his partner, and whether the national security interest attached to his leaving the country was really stronger than his right to family life, which is protected under both the Hungarian laws and Article 8 of the European Convention on Human Rights.
The expulsion order failed to address these issues. It simply quoted the relevant legal provision, and also failed to claim how and why the Syrian doctor's stay in Hungary endangers the security of the nation. The decision was approved of by the court, and we have no information whether the expelled man has turned to Strasbourg or not. Thus, the questions outlined above remain unanswered.
According to the 2004 Yearbook of the National Security Office,[16] the agency regards the control of migration as its second most important task after the fight against terrorism, but preceding the protection of economy and the combat against organized crime. Before the transition, the control of aliens - and also the permission and monitoring of the international travels of Hungarian citizens - was a task for the state security forces. Although formally they belonged to the Police, both alien policing and passport authorities were directly controlled by the state security apparatus. The National Central Authority Controlling Foreigners was the main authority above all non-Hungarians. Refugees were recognized only based on the political decision of the Hungarian Socialist Workers' Party.
In 1989 Hungary was the first country of the Soviet Block to join the Geneva Convention with the primary purpose of finding a solution for the problem of the legal status of ethnic Hungarians fleeing from Ceausescu's reign of terror. The Hungarian Government joined the Convention with a geographic restriction: it only undertook to provide protection to people fleeing from European conflicts. This restriction remained in effect for a long time, until March 1998. Although only a minority of those emigrating from Romania - 55 thousand people - were registered as asylum seekers, and only 6 percent of the latter were recognized as refugees, out of the 5,700 refugees recognized since Hungary's joining the Convention, approximately 4,000 are ethnic Hungarians from neighbouring countries.
In 1989 refugee matters were taken over by a civilian authority supervised by the Ministry of Interior. The clerks of the authority's regional organs were police officers belonging to the personnel of county police headquarters. In February 1990, the III/III Directorate of the state security apparatus (in charge of the fight against "internal enemy") was dissolved, and numerous state security officers found jobs at the regional organs of the refugee authority.
Between 1948 and 1989 hundreds of thousands of people emigrated from Hungary, while there was hardly any immigration. In the fall of 1990 the Government tried to stop the influx that started in 1988. This is when the first so-called "community shelter" (camp for the detention of foreigners illegally staying in Hungary) was set up. Based on a law decree, the Border Guards had been authorized since 1991 to deny the entry of those who - in the Border Guards' opinion - did not have sufficient means to cover their subsistence in the country. In the next two years, more than one million passengers were turned back from primarily the Romanian border. Interestingly, when in 1996 the regulation was amended to prescribe that the border guard shall fill out a form and communicate the decision to the concerned person in writing, the annual number of people turned back decreased from 300,000 to 50,000.
The most peculiar feature of the first alien policing act adopted after 1993 (Act LXXXVI of 1993, hereafter 1993 Alien Policing Act) is that it failed to give any consideration to the family ties of foreigners. Family ties did not make the foreigner eligible for a residence permit, or its prolongation: if the foreigner did not possess sufficient means to cover his/her accommodation and other expenses, he/she could be called to leave the country even if he/she had a Hun-
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garian spouse or children. The Hungarian Helsinki Committee represented dozens of foreigners (mostly men), who failed to obtain a residence or settlement permit, because, in the authority's view, their income did not enable them to provide for their families. Obviously in such cases, if the low income father has to leave the country, his Hungarian citizen children will have even less: this however was not considered to be an issue of alien policing. The alien policing authority could not care less.
As early as 1993, alien policing legislation promised benefits for ethnic Hungarians. In terms of the 1993 Alien Policing Act,[17] foreigners whose ancestors were Hungarian citizens were exempted from the obligation to reside legally in Hungary for three years before they became eligible for submitting a request for a settlement permit. They were however not exempted from the obligation to be able to cover accommodation and subsistence. This requirement can usually be only met if one is able to legally work in Hungary. However, the 1993 Alien Policing provided ethnic Hungarians with no benefits with regard to employment permits. And the present Alien Policing Act is no different. It is like a helicopter, whose escape ladder is swinging two meters above a drowning person: if you can reach this high, we will save you. This approach seems especially cynical in light of the fact that according to the general political rhetoric, ethnic Hungarians are members of the Hungarian nation, with a right to benefits concerning the acquisition of Hungarian citizenship - as long as they do not wish to actually settle in Hungary.
In 1997, upon the repeated urging of the Office of the United Nations High Commissioner for Refugees (UNHCR), the Hungarian parliament adopted the Asylum Act (Act CXXXIX of 1997). As the law is practically a transposition of an international convention (the Geneva Convention), and in Article 35 of the Convention, the Parties undertook to inform the Office of the High Commissioner about legislative initiatives concerning asylum matters, the UNHCR and its Budapest Office closely followed the legislative process, and made sure that the law would not deviate too much from the Convention and its interpretation as set forth by the decisions of the Executive Committee of the UNHCR. In spite of this, differences were created. For instance, the UNHCR strives to reduce the differences between the status of refugees recognized on the basis of the Convention, and asylum seekers receiving other forms of humanitarian protection.
As opposed to this, only with regard to refugees does the Asylum Act oblige state authorities to promote their integration,[18] whereas the integration of so-called "persons authorized to stay" (a form of humanitarian protection) is in fact hindered by the obligatory annual revision of their status and the fact that they need a special permission to work legally. Furthermore, in terms of Government Decree 24/1998. (II. 18.),[19] a bylaw of the Asylum Act, only foreigners with an established identity may be recognized as persons authorized to stay. No such restrictions could be imposed with regard to refugees, as the Convention does not contain such conditions. But the Convention does not define other forms of humanitarian protection, so the legislators were free to regulate the status of persons authorized to stay as they wished. Although the above quoted provision of the Government Decree has no legal basis in the Asylum Act, the national security interest in keeping foreigners out of the country was obviously stronger than the necessity of constitutional law making. As a result of the strong pressure from the opposition backed up by the expert participation of the Hungarian Helsinki Committee, Article 15 (2) of the new Alien Policing Act adopted in 2001, expressly states that the issuing of humanitarian residence permit of persons authorized to stay shall not be denied because of the lack of verified identity. However, by that time, authorities had managed to exclude thousands of asylum seekers of the Kosovo War from humanitarian protection between 1998 and 1999.
After a bill has been submitted to the Parliament, it may not be modified by the Government. It is however fully possible for a Government member to confidentially ask an MP to submit a modifying proposal as his/her own. A sufficiently influential Government official may do so even behind the back of his/her Minister. According to a modifying proposal submitted by an MP during the Parliamentary debate of the Asylum Act, it should be possible for the alien policing authorities (concretely the Border Guards) to forward the application of the asylum seeker to the refugee authorities without sending the asylum seeker him/herself to the reception centre operated by the refugee authorities. The alien policing authority is authorized to designate the asylum seeker's mandatory place of residence in one of the community shelters run by the Border Guards. This seemingly innocent proposal was taken on board by the Liberal Minister of Interior, so it was adopted as one of the modifying proposals submitted by MP's and accepted by the Government.
The catastrophic consequences became clear one year later. The Austrian Government kept pressuring the Hungarian Government to put an end to illegal immigration to Austria via Hungary. In August 1998,
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the National Commander of the Border Guards and that National Commander of the Police - with the approval of the Conservative Government elected a couple of months earlier but without any legislative basis - adopted a "joint measure", in terms of which foreigners may only leave community shelters under extraordinary circumstances. This measure condemned thousands of asylum seekers for indefinite detention. The overcrowding, the horrible physical conditions and the effective imprisonment of children triggered fierce and unanimous criticism in the international (primarily German language) press. Despite this, one year later, the above mentioned Act on Organized Crime legalized the practice of detaining foreigners in community shelters without a judicial decision. It is true though that the amended legal provision[20] set the maximum length of detention at 18 months, "if the circumstances serving as the basis for the ordering of detention, prevail due to reasons for which the foreigner is not at fault".
Compared to this, the new Alien Policing Act adopted in 2001 brought about rather positive changes. This is partly due to the fact that the Hungarian Helsinki Committee prepared several modifying proposals for the Socialist Faction, which was in opposition at the time and which made the adoption of the Act (requiring a qualified, two-third majority) dependent on the adoption of these modifications. According to the terms of the new regulation, a judge shall decide on the detention of foreigners, the longest possible time of detention was reduced to 12 months, and the detention shall be terminated if it becomes obvious that the expulsion may not be executed. In practice, the Hungarian judges usually do not terminate the detention even after 6 or 9 months, and they fail to examine why the expulsion could not be carried out in such a long time.
Before 1989 Hungary was emitting refugees. Not even after the democratic transition did it become a reception country. Like all the new EU member states, it remained a transit country. Since the coming into effect of the Asylum Act (1 March 1998), approximately 40,000 persons applied for asylum. Between 1999 and 2002, 57 percent of the proceedings were terminated, because the asylum seeker disappeared before his/her hearing. Out of the 1,500 refugees recognized in 8 years, at most 500 are still in Hungary. The others have left for old member states of the European Union. The new members wish to share the burdens of the asylum procedure with the old ones, and for this purpose, they are exploiting the European slogans of the combat against illegal migration.
The number of asylum seekers has radically decreased: as opposed to 11,000 in 1999, this year, less than 1,500 people applied for asylum. The decrease is a pan-European phenomenon, and is likely to be connected to the end and/or alteration of events and conditions creating large waves of refugees. 60 percent of asylum seekers arriving to Hungary came from Yugoslavia, Afghanistan and Iraq, fleeing from the war, the Taliban or the reign of Saddam Hussein respectively. However, the decrease of asylum seekers in Hungary exceeds the European average. And this is not due to the end of crises, but, on the one hand, to the strengthening of the guarding of the Eastern borders, and on the other, to the fact that it is absolutely unpredictable whether a particular asylum seeker will end up in one-year Border Guards detention or in an open reception centre run by the asylum authorities. Now migrants prefer to go West through Slovakia, where they are not detained and brutally deported back to the Ukraine.
Today the key issue of asylum policy is integration. Adapting to the expectations of Western Europe, asylum and alien policing authorities also claim to regard this as a priority. However, one can hardly talk about integration if refugees have hardly any chance to get employed, learn Hungarian and finally become a Hungarian citizen. Between 1999 and 2001, 17,000 persons got Hungarian citizenship. 86 percent of them were Hungarian nationals, and only 54 persons out of the 17,000 requested citizenship as refugees, although the law guarantees certain benefits for refugees in the process of naturalization.
This however has nothing to do with terrorism and the ethnic tensions bursting out from time to time in Western Europe. Its reasons are to be found in the mentality properly illustrated by the words of the former Minister of Interior famous for his outspoken nature: "Hungary's social, economic and societal conditions simply do not make it possible to provide for a massive influx of immigration. [...O]ur poor country may not be expected to realize ideas of a small group. [...] All nations have self-interest, it is not possible to receive everyone with arms open wide, and this is not discrimination."[21]
No one has ever said that everyone should be received with arms open wide. However, national self-interest would have allowed us to spare ethnic Hungarians from Voivodina twelve tough years of living in camps, before they received the residence permit based on the special discretion of the fifth Minister of Interior (Mónika Lamperth) in office since their vicissitudes started.
Similar to the closing of the airport terminal during the Gulf War, Hungarian law enforcement policy makers reacted with spectacular action to the September 11 attacks as well. Minister of Interior Sándor
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Pintér instructed the Director General of the Office for Naturalization and Immigration of the Ministry of Interior "to take actions to guarantee the safety of threatened foreign citizens, and to prevent the harmful effects of potential future events".[22] Based on the instruction, the Director General ordered that "those residents of reception centres who claim to be Afghanis" have to be transported to the Debrecen reception centre, and non-afghani residents in Debrecen shall be transported to other centres. In preparation, the Director General gave an oral instruction on 22 December 2001 that foreigners staying in reception centres and contracted places of accommodation may not leave their designated place of accommodation (i.e. the centres or contracted places of accommodation). Hearing the news, several foreigners, who were staying in reception centres but were somewhere else at the time, decided not to return. The transfer of Afghanis was carried out the next day with the participation of significant Border Guards and Police forces. After the Afghani asylum seekers arrived in Debrecen, chaos broke out. People had to find a place to sleep in the camp on their own. Several foreigners who had jobs in Debrecen and whose children went to school there were now compelled to leave and go to one of the other two reception centres located in Békéscsaba and Bicske. The newcomers in Debrecen did not get a warm meal for three days after their arrival. Citing reasons of medical screening, they were not allowed to leave the reception centre, not even the recognized refugees. Some of the concerned foreigners were already screened, but under the new circumstances they had to stay in one room with persons who had not been screened yet. In the meantime as more Afghani asylum seekers crossed the border, and as overcrowding in Debrecen was on the rise, the atmosphere became volatile. The Ministry of Interior wanted to solve the problem by opening a new reception centre for Afghanis in Kalocsa, but the outcry of the city's residents upset the plan. The Afghani asylum seekers locked up in Debrecen wrote a letter to the Hungarian Government: "we fled from the prisons of the Taliban and were imprisoned in Hungary", they said. Two weeks after the introduction of the measure, the gates of the Debrecen camp were opened again. By December, less Afghani citizens stayed in the reception centre than before the closing, although a thousand new asylum seekers had arrived in the meantime. The report of the Deputy General of the Parliamentary Commissioner for Human Rights was discussed and adopted by the Parliamentary Committee of Human Rights, Minority and Religious Affairs at its external session held in Debrecen. No one was removed or moved except for the Afghanis, who went on to Western Europe. ■
NOTES
[1] High ranking politicians, party leaders and state security officials of the Socialist regime.
[2] Ottilia Solt was a member of the democratic opposition, one of the editors of the underground journal "Beszélő". After the transition, she served a term (1990-1994) as an MP of the Hungarian Parlaiment.
[3] In protest against an abruptly announced increase in the price of gasoline, taxi drivers blockaded the bridges of Budapest with their cars on 25 October 1990. Within hours protests started all over the country. In the beginning, the Government planned to put an end to the blockade through the use of military power. However, sensing the power of the movement, the government later decided to negotiate with the protesters. Finally, the two sides agreed on a smaller increase of prices.
[4] Before the transition Gábor Demszky was a member of the democratic opposition, publisher of uncensored "underground" literature. After the incident described here he was sentenced to six months prison on one count of violence against an official. In 1988 he was one of the founders of the Party "Alliance of Free Democrats". Since 1990 he has been the Mayor of Budapest.
[6] Police Act, § 29 (1).
[7] Police Act, § 29 (4).
[10] Police Act, § 84 (2) (p).
[11] Police Act, § 30 (1).
[12] § 33 (2).
[13] Police Act, § 69 (4).
[14] Police Act, § 35.
[15] Police Act, § 68.
[16] www.nbh.hu.
[17] 1993 Alien Policing Act, § 17. § (4) (b).
[18] Asylum Act, § 48 (1).
[19] Government Decree 24/1998, § 29.
[20] 1993 Alien Policing Act, § 43/A (1).
[21] Interview with Péter Boross in Belügyi Szemle (Review of the Ministry of Interior) 2000/1. p. 94.
[22] Report of the Parliamentary Commissioner of Human Rights, 2002.3.1.1.
Visszaugrás
