Central European Journal of Comparative Law

Crossing Slovak Borders: Border Defence and Illegal Migration

Lucia Bakošová — 2024-06-30

Since the establishment of the Slovak Republic in 1993, it has faced migration flows that have had a considerable effect on the protection of Slovak state borders (internal and external), the legal regulation of illegal migration, and the provision of international protection to those in need. The aim of this study is to analyse the role, competence, and procedures of relevant Slovak authorities regarding border defence and illegal migration, and the related possibility of detaining foreigners. Apart from illegal migration, this study analyses situations in which an illegal migrant claims to be a refugee in the course of the procedure. The analysis focuses primarily on the relevant Slovak legislative acts, mainly the Act on Asylum, the Act on the Residence of Foreigners, and the Act on the Police Force, as well as the subsequent jurisprudence of the Supreme Court of the Slovak Republic and the Constitutional Court of the Slovak Republic, which also reflects on the applicable European Union legislation, as well as international treaties in the analysed areas.

The Anatomy of Non-Refoulement: A Centrepiece of International Refugee Law and Human Rights Law

Nóra Béres — 2024-06-30

Although the principle of non-refoulement remains vital under international refugee law and human rights law, its content and scope are the subject of extensive scholarly discussions. Therefore, this paper seeks to provide a concise analysis of non-refoulement starting from the 1951 Geneva Convention relating to the Status’ Refugees and to explore accurately its meaning based on its material, personal, and geographical scope. This paper also endeavours to briefly examine non-refoulement under universal and regional human rights instruments. Further, it aims to compare the interpretations of non-refoulement under international refugee law and human rights law based on the relevant case-law of international and domestic courts in addition to that of the respective monitoring mechanisms.

Serbian Border Protection Practices in the Case of Illegal Border Crossers

Bojana Čučković — 2024-06-30

The paper analyses the legal framework of the Republic of Serbia relevant to border control and access to the territory, as well as the practices of the national authorities in the case of persons crossing the border illegally. After a brief outline of the applicable international standards that obligate the Serbian authorities in cases of illegal entry, the author focuses on the examination of the most prominent provisions of three legislative acts: the Law on Border Control, the Law on Aliens, and the Law on Asylum and Temporary Protection. Although certain legislative solutions leave room for minor criticism, the normative framework is assessed as adequate and generally in line with Serbia’s international commitments and the European Union (EU) acquis. However, the part of the paper focusing on the practices of the competent Serbian authorities is much more critical. Certain border practices related to illegal entries have been considered problematic by both the EU and international human rights bodies and documented by reputable non-governmental organisations active in the field of asylum. Of the problematic practices presented, three have received judicial responses. The final part of the paper, therefore, examines the adequacy of the review of such practices by national courts. While some progress has been made in the practice of misdemeanour courts in applying the principle of non-punishment for illegal entry with respect to persons expressing their intention to seek asylum in Serbia, the decisions of the Constitutional Court relevant to illegal entry are assessed as partially satisfactory. While its response to pushbacks can be considered largely in line with applicable international standards, the Constitutional Court’s position on detention in the transit zone of Belgrade Airport has been criticised.

Situation of Illegal Migrants at Polish Border: Legal Standards and Practice

Jakub J. Czepek — 2024-06-30

The problem of migration in Europe has become increasingly pressing. The primary causes of this problem were the recent migration crises and Russian aggression in Ukraine in 2022. All these events had an impact on most European Union (EU) members, including Central and Eastern European states. This region also witnessed the Belarus–EU border crisis, which, in particular, involved Poland as the EU Member State, sharing the longest border with Belarus. Several months later, Poland encountered a wave of migrants fleeing Ukraine following Russian aggression. This study aims to examine the existing legal standards in this regard. The focus of this analysis is twofold. On the one hand, it is crucial to analyze international legal standards, including the 1951 Convention Relating to the Status of Refugees, the EU legal framework, and the international human rights protection system, in particular the case law of the European Court on Human Rights (ECtHR) and provisions of the International Covenant on Civil and Political Rights (ICCPR). However, this analysis would not have been complete without focusing on the Polish legal system and domestic practices regarding illegal migrants. This study also attempts to consider recent events on the Polish border, including the 2021–2022 Polish-Belarussian border crisis and the massive influx of migrants from Ukraine fleeing from armed conflict following Russian aggression in 2022.

Migration of Asylum Seekers and the Freedom of Religion or Belief: The Dual Nature of Religious Freedom as a Challenge

Dalibor Đukić — 2024-06-30

This study examines the international and European legal frameworks that protect the rights of asylum seekers who have fled their home countries because of religious persecution. Divided into four main sections, the paper begins by delving into the sources of international law that uphold religious freedom. The second section identifies the specific conditions under which refugee status can be granted based on religious persecution. In the subsequent section of the paper, the focus shifts to scrutinising whether acts of persecution encompass both the internal and external dimensions of religious freedom, as demonstrated through the jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights. Notwithstanding the practice of competent asylum authorities and national courts, which reject asylum applications under the assumption that protection should be limited to the internal dimension of religious freedom, this study advocates the need for a comprehensive examination of religion-based asylum claims, considering both dimensions of religious freedom. This stance is rooted in the hypothesis that the distinction between internal and external dimensions of religious freedom should have no practical value for the assessment of the persecution based on religious or belief affiliations or worldviews of asylum seekers.

Irregular Migrants in the Slovak Republic: Return and Readmission

L’udmila Elbert — 2024-06-30

Not long ago, the Slovak Republic was in the position of being a country of origin of irregular and regular migrants seeking opportunities in countries of the Western Hemisphere. After the accession of the Slovak Republic to the European Union (EU), it has mainly become a transit country not only for asylum seekers, but also for irregular migrants trying to reach wealthier countries, such as the USA, Germany, France, or Great Britain. Moreover, as a member of the Schengen area, the Slovak Republic has an obligation to secure its external border with Ukraine. However, border control management within the Schengen area is not leak-proof, and this is not only the case for the Slovak Republic. To address irregular migration, the Slovak Republic cooperates with other EU Member States and third countries. The cooperation is not always smooth and oftentimes fails, as evidenced by readmission agreements. Based on the analysis of the judicial review, we conclude that although Slovakia’s procedures of detention, return, or readmission are not perfect, the issues of readmission or return of foreigners do not cause security problems for the Slovak Republic. Rather, it creates legal issues regarding the violation of the national or international law obligations; this is because, in case of an incorrect decision, a migrant may possess various rights at the time of detention according to her/his status. However, the final section of the study analyses statistical numbers that confirm that the Slovak Republic still holds the position of a transit country. Controlling the persons who stay illegally within the territory of the Slovak Republic (after the expiration of the permission to stay) and illegally cross its internal borders to or from other states in the Schengen area remains to be the main focus of the Slovak return and readmission policy.

Specifics of Administrative Judicial Protection in Cases of Non-grant of International Protection in the Czech Republic

Kateřina Frumarová — 2024-06-30

The Ministry of the Interior, a state administration body, of the Czech Republic decides regarding granting asylum or international protection. The procedure is single-instance, without the possibility of a proper remedy. However, an unsuccessful applicant can defend himself within the framework of administrative justice, where he has two related means of protection at his disposal. First, a lawsuit against the decision of the Ministry of the Interior, which is decided by the regional courts; and second, a cassation complaint against the decision of the regional court, which is decided by the Supreme Administrative Court. Although several specifics apply to judicial protection in matters of international protection (e.g. in relation to deadlines, priority hearing or ex lege suspensive effect), the most significant specific is the unacceptability of a cassation complaint. In a situation where the cassation complaint does not significantly exceed the complainant’s (foreigner’s) own interests, the Supreme Administrative Court will reject it without dealing with the merits of the case. Therefore, this is a significant limitation of access to judicial protection. This study deals with the essence and reasons for the introduction of this institute, its suitability in asylum law, as well as its conformity with constitutional and international legal standards in this area.

Border Management and Migration Controls in Croatia

Teo Giljević — 2024-06-30

After independence in 1991, Croatia adopted an important migration legislation, addressing issues such as Croatian citizenship, aliens, and border protection. Owing to the development of democratic institutions and the war in the early 1990s, migration regulation was not extended until the early 2000s, when accession to the European Union (EU) became the most important strategic objective. Consequently, migration governance started to develop with the EU accession process. During the massive migrations in 2015 and 2016, Croatia was a part of the Balkan corridor, especially after Hungary closed its southern border with Serbia and then Croatia. Croatia adopted a temporary humanitarian approach while providing transfers to the borders of the neighbouring country. After the closure of the Balkan corridor, the Republic of Croatia prioritised the protection of its outer borders, prioritising the region’s border protection after accession to the Schengen region. This paper provides an overview of the border management and migration controls in Croatia. In addition to the most relevant legislation regulating migration governance, the paper provides available statistical data on the activities of the Croatian authorities—the Ministry of Interior and the courts. It provides an analysis of the relevant case law of the Administrative Courts and the Constitutional Court and of the jurisprudence of the European Court of Human Rights against Croatia. In its final part, the author discusses the findings and offers some concluding remarks regarding border management and migration controls in Croatia.

Romanian Practices of Border Protection in the Case of Persons Crossing the National Border Illegally

Gabriel-Liviu Ispas — 2024-06-30

This study addresses the issue of migration that the European Union has been facing over the past decade. Beginning with the historical evolution of the phenomenon of migration, the current situation in the European Union is presented, as well as the factors that facilitated the emergence thereof. The normative provisions of the European Union are presented, alongside the specific national regulations of Romania regarding asylum and the granting of international protection. Developments in the litigations brought before the Court of Justice are succinctly presented, in addition to the implications of the rulings in the elaboration of new asylum policies, which would expand the participation of European institutions and uniformity in regulation to the detriment of national intervention, according to the principle of subsidiarity. The study presents the penal implications and the crimes that can be committed in connection with the act of crossing the border, but also addresses a sensitive topic, namely that of the Schengen area and the technical fulfilment of admission conditions. In the practical part, empirical aspects of immigration in Romania are presented, as well as the evolution of attempts to cross the border illegally, the evolution caused by the war in Ukraine, and statistics regarding residence permit applications from the past 10 years

Efficiency in Protection of Rights and Frontiers

Péter Pál Kruzslicz — 2024-06-30

Migration of human beings was always an essential activity, a permanent part and changing factor of civilisations. As such, particularly in Europe, migration is to be considered as an activity comprising switching between locations and shifting between historical periods. Moreover, these movements of people have been an important factor of cultural enrichment for all the new periods of European civilisation. However, with the formation of nation-states an important change, at least from a legal and political viewpoint, was revealed: as much as individual rights of persons acquired a constitutional importance, the protection of the state and the nation that is defined also with cultural characteristics became a state-aim: fundamental rights of people should be protected as well as public policy should be maintained and national security safeguarded. Moreover, human rights’ protection became increasingly important at a supranational level, and because of the achievement of the Schengen zone, the regulation on the movement of people became a shared competence between the European Union and its Member States. For a country, such as Hungary, having a rich, sometimes tragical historical experience of the protection of its borders that are also first frontiers of Western Europe, in times of globalisation, also with regards to its sovereignty, several questions were raised and discussed for the adoption of legal regulation in application nowadays. Hungary challenged supranational law on the abstract matter of fundamental rights of migrants and on the EU-rules defined by directives in a field of shared competences. When presenting Hungarian regulation, it is to be examined how a special equilibrium can be achieved between rights and state-aims, supranational and national law, a phenomenon of globalisation and the preservation of national sovereignty.

Return Policies for Irregular Migrants and Rejected Asylum Seekers in Croatia

Goranka Lalić Novak — 2024-06-30

Croatia acceded to the European Union in 2013 and the Schengen Area in 2023; it is located on the EU’s external border and the so-called Western Balkans irregular migration route, one of the main corridors for migrants travelling to the EU. Over the years, Croatian authorities have developed national immigration policies, including various measures to prevent irregular migration on Croatian territory and protect state borders. Nonetheless, Croatia is still perceived as a transit country and a point of entry into the EU by many irregular migrants and refugees. This paper provides an overview of measures for the return of irregular migrants and rejected asylum seekers in Croatia. In addition to discussing the most relevant legislation regulating return policies, the paper presents available statistical data on the work of the relevant Croatian authorities (the Ministry of Interior and courts). It analyses current practices of administrative and constitutional courts, as well as some actions taken by the European Court of Human Rights against Croatia. It concludes with some general comments on Croatia’s return policy. The analyses of legislation, mainly the Aliens Act and to some extent, the International and Temporary Protection Act, shows that Croatia has regulated in detail different measures within its return policies. This legislation aligns with the EU and Schengen acquis communautaire, and provides different safeguards for vulnerable groups of migrants. Legal remedies and judicial protection are guaranteed by the relevant law. However, in practice there are certain shortcomings that need to be addressed.

Some Considerations on the Practical Issues Related to Illegal Migration in Romania

Ioan Lazăr — 2024-06-30

After the peak of migration caused by the Syrian War in 2015, the Russian invasion of Ukraine has increased the challenges for European countries in the domain of migration. EU countries need to ensure efficient control at the external borders of the EU and identify, at the national level, proper mechanisms for tackling illegal migration and and finding a solution to the problem of rejected asylum seekers. The objectives of EU and national immigration policies are to maintain security and stability in the European Area, protect EU external borders, and control organized crime. This paper examines some practical issues related to migration in Romania, a country situated at the intersection of migration routes (one coming from Russia to Hungary, The Western Balkan Route and the Southern Migration Route). It presents the challenges related to asylum, integration, labour market demands, and security risks this country faces. Adopting effective immigration policies and integration measures is essential in managing migration and ensuring the protection of fundamental rights for those seeking international protection, strengthening the asylum system, raising public awareness, and addressing security concerns. The paper highlights the issues the Romanian national authorities faced in their efforts to ensure the security of EU external borders.

The Practice of the Constitutional Court of Romania Concerning Migration and Refugee Affairs

Alina-Livia Nicu — 2024-06-30

This study analyses the jurisprudence of the Constitutional Court of Romania regarding the legal norms of legislation concerning the status and regime of refugees in Romania. The paper aims at (1) presenting the opinions expressed by the Constitutional Court of Romania in its jurisprudence regarding migration and asylum; (2) assessing whether the jurisprudence of the Constitutional Court of Romania on migration and asylum is drawn up about the limits of the competences of the European Union and member states; and (3) exploring whether the Constitutional Court of Romania linked the problems of migration or asylum to the problem of constitutional identity. The concept of constitutional identity and its presence within the activities of the Romanian Constitutional Court are briefly outlined. The number of notifications to the Constitutional Court of Romania with the object of derogation from the unconstitutionality of certain provisions of the legislation concerning the status and regime of refugees in Romania was minimal from 22 December 1989 to 30 June 2023. Consequently, only a few laws exist in this area. There was only one referral to the Constitutional Court after Romania joined the European Union, which was completed in 2019 with the adoption of the admission decision.

Border Defence and Migration in the Czech Republic

Šimon Otta — 2024-06-30

The Czech Republic, as a member state of the European Union, applies the so-called “zero” regime of state border protection, which is based on the abolition of internal border protection and border controls when crossing internal borders. However, this does not apply to Third-Country nationals. Although the strong influence of European legislation is also evident in this area, the Czech Republic has legislation regulating the defence of its national borders and protecting against illegal migration. This paper focuses on such legislation. The introduction presents the constitutional regulation of Czech state borders and the concretisation of these constitutional norms at the statutory level through two basic acts: State Borders and Protection of the State Borders. Furthermore, attention has been paid to protecting the Czech Republic against illegal migration, mainly contained in the Act on the Residence of Foreigners and partly in the Asylum Act, where emphasis is on the de facto protection mechanism and administrative expulsion. The second part of the paper presents criminal law regulations for protecting the Czech Republic against illegal migration. The article concludes with a statistical overview of illegal migration for 2022.

Legal Status of Irregular Migrants in Chosen Central European States With Special Consideration for Migration Crises

Mateusz Tchórzewski — 2024-06-30

This study discusses specific international and European Union laws that regulate the status of irregular migrants in the context of selected examples of migration crises, namely, the European refugee-migrant crisis of 2015 and the artificial refugee crisis at the European Union-Belarus border, the latter being an example of coercive engineered migration. The problem of externalisation of the Union’s migration governance to third countries is also considered from the point of view of effective protection of the human rights of migrants who cannot reach the territory of the states where they can benefit from such protection. The study attempts a general evaluation of the relevant legal framework from the perspective of its adequacy in addressing challenges stemming from particular types of migration crises. The scope of the study is limited to selected Central European states, as a number of them are affected by coercive engineered migration and (or) the refugee-migrant crisis. Selected relevant legal issues (statutory law, judgements of the Court of Justice of the European Union, and the European Court of Human Rights) in chosen states (Hungary, Poland, Romania, and Serbia) are also considered.

Migration Crime Structure in Poland

Marcin Wielec — 2024-06-30

Crime is a negative phenomenon present in every country that poses a threat to the existing legal order. It encompasses a variety of behaviours, goals, and motives of those involved in it and the consequences thereof. The basis for crime is the social layer of the state, where people commit crimes by violating the existing legal order. Crime can be considered from various perspectives, such as its extent, intensity, variability, structure, and dynamics, as well as the characteristics and background of those involved. Crime is a challenge for society, and effective prevention requires an understanding of the diversity of crimes and the different motivations of perpetrators. Research on foreigners’ crimes is particularly important in the context of increasing migration from Poland’s eastern border. Knowledge of this topic can aid in the development of appropriate migration management strategies and effective prevention and integration measures. It is important to continue research on crime to better understand its causes and effects and to develop effective methods to reduce and combat it.

Border Control and Migration in Slovenia

Miroslav Žaberl — 2024-06-30

Protecting and controlling national borders are particularly important for preventing and combating irregular migration. Adequate police organisation, training, and exercise of appropriate statutory powers and measures are crucial in this context. This article discusses the role of the Slovenian Police in curbing irregular migration from three perspectives: (1) national normative regulations for border control; (2) the procedural regulation of the exercise of powers and measures by the police in controlling state borders; and (3) the compliance of the legal regulation of powers and measures with the provisions on the protection of human rights and fundamental freedoms laid down in the Constitution of the Republic of Slovenia and international conventions. We found that the national normative and procedural regulations governing the exercise of police power and measures for controlling state borders are consistent with the uniform regime in the Schengen Borders Code. In contrast, in assessing their compliance with constitutional and international standards that guarantee and protect human rights, we questioned the appropriateness of the normative regulations that allow the police to invasively search the body and belongings of persons, in addition to frisking them and their belongings, without a court order, in the context of border controls, where the standard of proof is low. Furthermore, we draw attention to the lack of clarity in the internal instructions and procedural provisions of the police, which allow the return of persons to foreign security authorities, disregarding safeguards protecting persons seeking international protection. Moreover, the article focuses on the entry of the Republic of Croatia into the Schengen Area, which resulted in the Republic of Slovenia losing its external Schengen border. The new situation dictates the need for changes in the organisation, staffing, and tactics of the Slovenian Police.