A/HRC/44/42/Add.1 Rapporteur that in its reasoned opinion the Commission had stated that upon consideration of their reply regarding the specific framework applicable to the Office of the United Nations High Commissioner for Refugees (UNHCR), the Commission would not pursue further complaints relating to the impact of the legislation on the functions of UNHCR. The Special Rapporteur also learned that the Commission found that the legislation curtailing the right of asylum seekers to communicate with and be assisted by national, international and non-governmental organizations by criminalizing support to asylum applications was in violation of the asylum procedures directive 2013/32/EU and the reception conditions directive 2013/33/EU. Further, the Commission considered that the new inadmissibility grounds did not fulfil the criteria for the safe third country concept and were therefore in violation of the asylum procedures directive, the asylum qualification directive 2011/95/EU and the Charter of Fundamental Rights of the European Union. 4 In July 2019, the European Commission again determined that most major concerns had not been adequately addressed and therefore referred the case to the European Court of Justice. 5 The case is pending with the Court. 15. In July 2019, the European Commission initiated a fourth infringement procedure against Hungary regarding the poor living conditions in the transit zones at the Serbian border for individuals whose applications had been rejected and who were waiting to be returned to a third country. In its letter of formal notice, the Commission stated that compelling returnees to stay in the transit zones amounted to de facto detention under the return directive 2008/115/EC. Further, the withholding of food in the transit zones was in violation of the return directive and the Charter of Fundamental Rights. As the reply of the Government did not address the concerns of the Commission and given that the concerns were urgent, the Commission decided to proceed to the next step and sent a reasoned opinion in October 2019, to which Hungary had one month to reply. 6 The Commission noted that the European Court of Human Rights had already granted interim measures in several instances, obliging Hungary to provide food to persons detained in the transit zones. C. National legal and institutional framework 1. National legal framework 16. The Hungarian Constitution, most recently amended in 2018, protects the fundamental rights of all and forbids discrimination on the basis of race, colour, sex, disability, language, religion, political or other opinion, national or social origin, property, birth or any other status. Article 14 (3) of the Constitution provides that “no one shall be expelled or extradited to a State where there is a risk that he or she would be sentenced to death, tortured or subjected to other inhuman treatment or punishment” and article 14 (2) prohibits collective expulsion. At the same time, article 14 (4) stipulates that individuals are not entitled to asylum “if he or she arrived in the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution”. 7 17. Act LXXX of 2007 on Asylum defines the requirements to apply for and grant asylum.8 The Act stipulates the content of the asylum granted by Hungary, the criteria of recognition as a refugee, a beneficiary of subsidiary and temporary protection, a person with tolerated stay, the procedure aimed at expulsion ordered by the refugee authority, and the recognition and revocation thereof. A number of amendments have been introduced to the Act since 2015. 18. Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals (Third Country National Act), along with government decree 114/2007, allows for two types of detention, first “alien policing detention”, and secondly, “detention prior to expulsion”. The Third Country National Act allows for “alien policing detention” initially for 72 hours with extensions up to a maximum of 12 months. Detentions that fall into the 4 5 6 7 8 See https://ec.europa.eu/commission/presscorner/detail/EN/IP_19_469. See https://ec.europa.eu/commission/presscorner/detail/en/IP_19_4260. See https://ec.europa.eu/commission/presscorner/detail/EN/IP_19_5994. Fundamental Law of Hungary (2017), available at www.kormany.hu/download/f/3e/61000/TheFundamentalLawofHungary_20180629_FIN.pdf. Act LXXX of 2007 on Asylum (2016) available at https://www.refworld.org/docid/4979cc072.html. 5