In its decision of 6 September the European Court of Justice
dismissed the complaint by Hungary (and Slovakia) over the refugee quotas and
held that the adoption of the mandatory relocation scheme by the Council of the
European Union was lawful. The Court pointed out that Article 78(3) TFEU
enabled the Council to adopt the provisional measure of mandatory relocation
and it was necessary in order to respond the 2015 emergency situation of the
sudden inflow of refugees and, in particular, to help Italy and Greece with the
massive inflow of migrants. Based on the scheme Hungary is obliged to examine
the application of 1294 asylum seekers. The Hungarian government has
consistently and belligerently rejected to comply with the Council’s mandatory
quota decision and now reacted to the ECJ decision likewise: flouting all
common sense and logic, one cabinet member stated that “we are now to enter the
real battle”.
Hungary has been active not only on the
European level by bringing an action before the ECJ: at home since the 2015 crisis
the government engaged in national consultations, initiated a referendum as
well as put forth a constitutional amendment – all of which were failed
attempts to push through its will among the people and the democratic
opposition parties. The Constitutional Court, however, with a majority of
judges appointed by the ruling party – lent a hand to the government in need
and in its decision of 30 November 2016 ruled that the Court
itself can examine whether the EU’s exercise of power violates (a) human
dignity or any other fundamental right, (b) Hungary’s sovereignty, or (c)
Hungary’s identity based on the country’s historical constitution. (See our
standpoint on the decision here.) The decision was a response to the motion
that had been submitted to the Court by the commissioner for fundamental rights
(ombudsman) in 2015 asking, in relation to the mandatory relocation scheme,
whether it was in compliance with the Fundamental Law. The ombudsman’s motion
also included a question on the prohibition of the collective expulsion of
foreign nationals but the Court did not answer that one at the time.
The implementation of the ECJ decision now might
depend on the Hungarian Constitutional Court too, which will have to decide
whether the compulsory quota system is in compliance with Article XIV of the
Fundamental Law that prohibits the collective expulsion of foreign nationals. In
its motion the ombudsman asked if this prohibition of the Fundamental Law extends
also to situations where the Hungarian state has to handle the unlawful collective expulsion by other states, implying that if
the answer is no, Hungary is given the green light to reject the quota system.
The ombudsman argues that the EU mandatory
relocation scheme does not comply with the requirement of individualised
assessment of asylum applications and claims that sending an asylum-seeker by a
state to a third safe country qualifies as “expulsion” under international law and
if it is done in relation to a bigger group without the comprehensive
assessment of the individuals’ situation, it qualifies as “collective
expulsion”.
If the Constitutional Court accepts and
approves of this logic, however, the Hungarian authorities will have to face
the fact that the systematic sending back of asylum seekers to Serbia is also a
form of collective expulsion and thus their practice also goes against the
Fundamental Law. According to national law asylum applications that could have
been submitted in a safe third country shall be rejected by the Hungarian
authorities. Since the summer of 2015 when the government qualified Serbia as a
safe third country, the Hungarian authorities have had to reject the
application of asylum seekers who arrive in Hungary through Serbia (more than
90 % of asylum seekers). Therefore, though the authorities formally make
individualised decisions, the procedure results in de facto collective
expulsion.
The ombudsman applies a double standard: he denounces
EU law for not respecting the rights of asylum seekers but overlooks the
defects of Hungarian laws. If the Constitutional Court accepts the ombudsman’s
reasoning, it will lay the ground for rendering Hungarian asylum law
unconstitutional. If it rejects the reasoning, the government will have to
comply with its obligation and will have to implement the relocation scheme.
Otherwise another infringement procedure can be launched against Hungary.
