The Hungarian government claims last week's Constitutional Court ruling on EU migration rules as a victory for self-determination. The reality is more complex, writes lawyer Zsolt Szekeres.
ADVERTISEMENTOn December 10, the Hungarian government’s attempt at sabotage failed. It became evident that it can no longer evade its duty to implement the judgement of the Court of Justice of the European Union (CJEU).
The practice of pushbacks to Serbia must end. Yet the government proudly announces to the world that it got what it asked for from the Constitutional Court. While it did not leave empty-handed, the plan did not fully work out.
In an important judgement in December 2020, the CJEU ruled that the Hungarian law allowing for the pushback of asylum seekers from all over the country to the Serbian side of the border fence, without any formal procedure having been initiated, was in breach of EU law.
The CJEU judgement was key not only for the protection of the rights of refugees but for the rule of law as a whole. It confirms that a state must treat people who turn to it in accordance with the law, not arbitrarily.
An attack on the judgement
The CJEU’s ruling is clear, and Hungary, as a member of the EU, must implement it. However, the government wanted to use the Constitutional Court as a tool to openly defy EU law.
In February, Minister of Justice Judit Varga filed a motion with the Constitutional Court, forwarding a political request by asking the Court to rule that the CJEU's judgement could not be implemented in Hungary.
The Hungarian Helsinki Committee submitted an amicus curiae brief to aid the Court in upholding fundamental rights and the respect of EU law. After detailed analysis of the decision, we are confident in saying that the Government did not get what it asked for.
However, the ruling suffers from internal inconsistencies. The Court issued a confusing, controversial decision where the only answer compatible with the rule of law would have been a decisive rejection of the government’s petition.
It is positive that the Court clearly held that it will not review the judgement of the CJEU. The first impression is therefore one of relief: the Court did not opt for the Polish solution of openly turning against the CJEU’s judgement. It did not give to the government what it truly desired, and did not give its seal of approval to the violation of Hungary’s obligations stemming from EU law.
A shiny gift to the government
Why does the government nevertheless insist that the Court upheld its argument? Because several remarks made within the decision might be understood as benefiting the government's position: questioning the primacy of EU law in areas where, according to the treaties, member states jointly exercise their sovereign competencies.
The Court held that where an obligation stemming from EU law cannot be effectively implemented, Hungary shall have the sovereign right to pass laws for the protection of fundamental rights - until the conditions to effectively execute EU law are guaranteed.
However, even in this scenario, Hungary’s actions must serve to uphold the Treaties. This is what the Government claims to have been a victory. True, this is a shiny gift from the Court, but one that's irrelevant to the present case.
Why would the judgement be relevant?
The above decision cannot be understood to shield the government from the consequences of not executing the judgement of the CJEU.
The government argued that pushbacks are necessary because otherwise-expelled foreigners would remain in the country for an unforeseeable period of time, which would violate the Fundamental Law (Hungary's constitution).
The government used an amendment it introduced back in 2018 which stated that the EU law "shall not limit the inalienable right of Hungary to determine its population".
However, by declaring that it will not question the judgement of the CJEU, and holding that asylum-seekers must be treated with respect to their human dignity, the Constitutional Court did not decide in the government’s favour.
According to the CJEU, a foreigner may only be expelled from Hungary as part of due process, and where the authorities have made sure that their return will not violate the prohibition on torture or inhuman or degrading treatment.
Due process is, therefore,e necessary for the complete execution of EU law - which, as the Constitutional Court now confirmed, is Hungary’s binding legal duty.
ADVERTISEMENTAbusing the right to self-determination
The problematic part of the decision is its mention of a newly-forged "fundamental right", the "right to self-determination stemming from one’s traditional social environment", which the Court crafted from the right to human dignity.
Departing from its consistent practice, the Court explains with confused reasoning that the right to self-determination can only be understood in the context of the social environment in which the individual exists.
According to the Court, the natural ties determined at birth define the frame and direction of one’s self-identity, and as such should be assessed as part of the quality of life.
The sum of these determinations at birth is national identity, a constitutional value, and one which must be defended by the state in order to uphold the Fundamental Law.
What the Court says is, in essence, that Hungarians have the right to live in a more or less homogeneous country, where people aren't too different from one another.
ADVERTISEMENTThis is an incredibly dangerous line of argument because it completely abuses the original purpose of the right to self-determination, which is to protect the individual from the arbitrary actions of the state.
A similar decision with a 'nationalistic' character from the Slovakian or Romanian constitutional courts could be used against the Hungarian minorities living in those states.
Just imagine such a legal argument in the context of the 1930s or the 1950s. The 'traditional social environment' in a far-right understanding would exclude Jewish, Roma or non-heterosexual people, while in a far-left understanding it would be the 'bourgeoisie', 'kulak' or other “class-enemy” groups.
To give constitutional protection to the concept of 'traditional social environment' during a time of government-organised hate campaigns is alarming.
A magical tool for those in power
Not all the judges ascribed to this new invention. Justice Ágnes Czine wrote in her concurring opinion that the reasoning was not 'completely evident' since it was not compatible with previous jurisprudence by the Court, which until now had held: “The right to self-determination flows from the right to human dignity and as such, it is the expression of a person’s autonomy to act freely, which is tied to the individual.”
ADVERTISEMENTJustice Ildikó Marosi Hörcherné pointed out: "Who societies are made up of is in constant flux, and Hungarian society is no different. This, however, does not force anyone to change their declared ties or the basic characteristics which constitute their self-identity.
"Similarly to this, the ethnic, linguistic or religious characteristics of political/economic asylum-seekers do not in themselves affect the inner, personal integrity of those living in Hungary.”
And what does the duty to protect "the determination of the self obtained at birth" mean for those who can only fulfil their human potential by stepping out of the shadows of the situation "determined" at birth? Those born into abusive families or poverty, or members of discriminated-against minorities?
For a government less considerate towards fundamental rights, this new invention is a tool for oppression, as opposed to effective human rights protection.
None of their business
In the current context inventing this new “fundamental right” was important for the Constitutional Court so that it could hold that where this collective right is violated, Hungary should have the right to temporarily not apply EU law.
ADVERTISEMENTIn other words, the Court could only enable the government to derogate from EU law to the extent that the newly-invented “fundamental right” could immediately be said to be in danger.
But the solution is not bulletproof, and it cannot delay the implementation of the CJEU judgement with regard to the cessation of pushbacks.
The decision explicitly states it is not within the competence of the Constitutional Court to decide whether the situation is such that Hungary can set aside EU law.
This gives an opportunity to the government to state that of course, the criteria for this are met. Even if it does not follow from the decision.
It doesn’t, because the Court clearly held that EU law, as a rule, must be implemented, the judgement of the CJEU is binding, and asylum-seekers’ right to human dignity must be respected.
ADVERTISEMENTA real risk of dire consequences
In light of this decision, Hungary may refuse to apply EU law, in a situation where so many lawfully (that is, in a procedure respecting the rule of law)-expelled foreigners remain unlawfully on the territory that it could threaten the country's “national character”.
Even in such a case, the national procedures must be effective and aimed at upholding the Treaties. This would be markedly different from the indiscriminate pushing-back of everyone out into the Serbian fields, regardless of whether or not they need Hungary’s protection.
The refusal to implement the CJEU judgement will have dire consequences. The Commission has already announced in November that it will refer Hungary back to the CJEU to impose fines for not implementing the judgement, potentially leading to a heavy financial burden.
The Government will, of course, hide behind the Constitutional Court’s decision, because its aim is to increase political tension and uphold its inhumane regime.
But we, human rights defenders, will continue to pressure the Government to comply with the CJEU judgement, and we will do all we can to uphold the rule of law and human dignity.
ADVERTISEMENTZsolt Szekeres is a lawyer and member of the Hungarian Helsinki Committee, an NGO promoting human rights and the rule of law.