Law, Identity and Values

The Practice of the Hungarian Constitutional Court on Asylum

Lilla Berkes — 2023-12-28

The modern-day history of asylum in Hungary ranges from being the country of origin of refugees, through the country of asylum, to the country protecting the
external borders of the European Union (EU) and rejecting the refugees. Asylum, which came into focus as a result of the Arab Spring in 2015, has raised numerous issues such as access to territory, pushbacks, procedural guarantees, detention, transit zones, the effectiveness of remedies, and sovereignty and free decisionmaking on the side of the state. These issues may also have a constitutional dimension. However, a review of the practice of the Hungarian Constitutional Court shows that asylum issues are not grouped along these lines, but rather as per the division of competences between the EU and Hungary. Consequently, some constitutional court procedures have been examined in the context of constitutional interpretation rather than that of constitutional complaint procedures. Furthermore, the constitutional context has changed, influencing the approach of the Constitutional Court. Based on this, the paper first interprets the relationship between asylum and sovereignty and the function of the Constitutional Court in asylum matters, placing the issue in the context of the history of asylum in Hungary. Second, it presents the related practice of the Constitutional Court according to three aspects, namely sovereignty and constitutional identity, the role of human dignity, and interpretation of asylum law by the Constitutional Court.

Migration in Modern Serbia – Managing and Mediating Refugee Flows

Vladimir N. Cvetković — 2023-12-28

This study outlines the socio-historical context of the movement of populations in a geographical area that roughly corresponds to contemporary Serbia, examining the migration flows in this area since the 19th century. It examines data on the migration management that Serbia undertook during the migrant and refugee crisis of 2015 and the events that followed. This analysis revealed an amalgam of the continuity and discontinuity of migration flows in Serbian society. Serbia has a relatively long history of external migration driven by economic and political circumstances, during which these two groups of drivers trade places based on their dominance. However, a new phenomenon has transformed the entire Serbian territory into a transit zone for migrants and refugees from the Middle East, Africa, and Central Asia attempting to reach the EU. Further, the study demonstrates how Serbian institutions manage these processes by providing various statistical data and commentary on these data.

Asylum and Refugee Issues in the Case Law of the Constitutional Court of the Republic of Slovenia

Lana Cvikl — 2023-12-28

This study examines the role of the Constitutional Court of the Republic of Slovenia in addressing asylum and refugee issues. It examines the constitutional and statutory regulations surrounding international protection, the procedure for the recognition of and statistical data on international protection, and the legal remedies available in asylum and refugee cases, with a particular focus on petitions for reviewing the constitutionality of laws and constitutional complaints. Further, it presents a comprehensive analysis of the relevant Constitutional Court’s case law, specifically concerning refugees, asylum seekers and individuals seeking subsidiary international protection. The findings reveal that the relevant case law can be categorised into two segments: those that deal with the successful challenges of statutory provisions, and those that pertain to the constitutional complaints of asylum seekers. Additionally, the Court frequently cites decisions from the European Court of Human Rights, however, less frequently the case law of the Court of Justice of the European Union. However, mentioning the case law of other countries is extremely rare. None of the Constitutional Court’s decisions concerning Slovenian constitutional identity are directly linked to refugee, asylum, or international protection issues. Nonetheless, it is plausible that the Court may change its approach to these areas in the near future.

Pros and Cons of the EU–Turkey Refugee Deal and Why the Cons Prevail

Ľudmila Elbert — 2023-12-28

The ‘EU–Turkey deal’ is a catchy nickname of the official document the ‘EU–Turkey Statement’; a result of meetings between EU and Turkey leaders. Although the EU–Turkey deal served as a basis for actions taken in relation to migration both on the side of the EU with its member states and on the side of Turkey, its legal nature remains questionable. Accusations emerged that the EU–Turkey deal resulted in the EU states’ failure to comply with the obligations in the field of human rights, particularly the rights of refugees. Yet, according to the judicial review, the individual member states are the ones responsible for implementing the EU–Turkey deal. The purpose of this article is to examine migration-related issues of the EU–Turkey deal. As the EU–Turkey Statement deals mainly with the status of Syrian refugees, legal implications of their status after the deal are one of the main subjects of this research. This article focuses primarily on the deal’s legal effects and its predominantly negative effects.

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

Ľubica Gregová Širicová — 2023-12-28

The judicature of the Slovak Constitutional Court concerning migration and refugee affairs after the accession of the Slovak Republic to the EU has been diverse, covering several important issues. Remarkably, in 2023, the Court took a new turn on its ‘self-restraining approach’ in a case related to migration and refugee matters. The article concludes that the Slovak Constitutional Court has not linked migration or asylum issues to the issue of constitutional identity in its case law. From the material viewpoint, the case law of the Constitutional Court forms four key areas: 1) fundamental right not to be tortured or subjected to cruel, inhuman, or degrading treatment; 2) detention of foreigners; 3) an applicant’s right to comment on evidence; 4) right to respect for family and private life. The article features a summary of the main thrust of the flagship judgments with developmental arch (where possible). Finally, the study showed that the Slovak Constitutional Court regularly refers to the case law of the European Court of Human Rights and of the Court of Justice of the EU.

The Role of the Serbian Constitutional Court in the Area of Asylum and Migration

Ivana Krstić — 2023-12-28

The Constitutional Court in Serbia protects the constitutionality and legality of human rights and freedoms guaranteed by the 2006 Constitution. However, its role in asylum- and migration-related matters is limited. There are two reasons for this: the Court very narrowly interprets its own competencies which results in the rejection of the majority of constitutional complaints, and the Court serves as a protector of state authorities rather than a protector of the human rights of asylum seekers, refugees, and migrants. The jurisprudence of the Constitutional Court in this area relates to several matters: the application of a safe third country principle, rights concerning the asylum procedure, and issues relating to the freedom of movement and detention of migrants. Therefore, the Court has been unable to develop clear and coherent practice in this area. However, it is worth noting that the Court invokes relevant standards derived from the jurisprudence of the European Court of Human Rights, although the application of those standards usually does not lead to a decision to uphold the constitutional complaint. It also relies on other international sources, such as the UN Refugee Agency reports on specific countries, various United Nations and Council of Europe instruments, and reports of non-governmental organisations. Finally, the Court is not interested in the case law of the Court of Justice of the European Union (EU), despite the fact that Serbian legislation in this area is inspired by the EU acquis. Serbia is not a member state of the EU, but as a candidate country it is in the process of aligning its own legislation and practice, and referral to the jurisprudence of the Court of Justice would provide guidance on how to interpret domestic provisions, such as subsidiary protection.

Considerations Regarding the Legal Regime and Theory of Illegal Migration in Romania

Ioan Lazăr — 2023-12-28

In the global political and economic context, the problem of migration is of special importance. Romania is one of the European countries situated at the confluence of several migration paths. This study provides a comprehensive overview of the basic migration related issues in Romania, encompassing fundamental concepts, the specific challenges confronting the nation with regard to illegal migration, and the existing international, European, and national regulations governing this domain. It further outlines the key principles applied by competent national authorities when addressing migration concerns and offers a concise presentation of the rights and responsibilities held by migrants within Romania. Through this exploration, the paper highlights the multifaceted landscape of migration in Romania, underlining its significance in domestic and global contexts.

The Case Law of the Constitutional Court of the Republic of Croatia Concerning Migration and Asylum Issues

Lana Ofak — 2023-12-28

This study analyses the case law of the Constitutional Court of the Republic of Croatia on migration and asylum issues initiated after Croatia acceded to the European Union. After the introduction (Sec.1), the study provides an overview of the relevant sources of migration and asylum laws (Sec. 2). The central part of the study (Sec. 3) analyses the legal reasoning of the Constitutional Court, which shows the change in its approach towards applying more significant standards of protection guaranteed by the EU Law and the Convention for the Protection of Human Rights and Fundamental Freedoms, especially regarding the principle of ex nunc evaluation of the and the duty to ensure that the receiving third country is safe. The study also shows that further improvements in practice are required, as indicated by the cases against Croatia lodged before the European Court of Human Rights and other international human rights bodies concerning the issue of illegal pushbacks (Sec. 4). The study ends with main conclusions relating to the Constitutional Court’s role in safeguarding asylum seekers’ human rights as guaranteed by the EU law and the European Convention (Sec. 5). The conclusion is that the Constitutional Court follows the applicable case law of the Court of Justice of the EU and the European Court of Human Rights. However, in some cases there seems to have been a lack of opportunity for asylum seekers to exhaust legal remedies against the decisions or actions taken by Croatian public authorities and ultimately access the Constitutional Court.

The Practice of National Constitutional Courts Concerning Migration and Refugee Affairs – The Czech Republic

Šimon Otta — 2023-12-28

This article focuses on the relationship between the Czech Constitutional Court and European Union law, with an emphasis on asylum and migration policies. After introducing the Czech Constitutional Court, the article focuses on its relevant case laws in relation to European Union law and the transfer of powers from the Czech Republic to the Community institutions. Thereafter, it explores whether the Czech Constitutional Court perceives asylum and migration issues as part of the Czech constitutional identity, which the European Community must not interfere with, and presents the basic legal framework within which the Constitutional Court considers these issues. Finally, it examines the comparative method of interpretation in the case law of the Constitutional Court, supplemented by extensive citations of relevant decisions of the Constitutional Court.

Irregular Migration in Poland and the Importance of Readmission Agreements in Theory and Practice

Joanna Ryszka — 2023-12-28

Poland is a Member State of the European Union and a part of the Schengen area, which ensures free movement without controls at its internal borders while strengthening the security of its external borders. It plays a special role here, as its eastern border is simultaneously its external border. This importance has been further increased by recent events in the eastern part of Europe, particularly through the smuggling of migrants and refugees into the European Union from, inter alia, Iraq, Afghanistan, and other countries in the Middle East and Africa via the Belarusian-Lithuanian, Belarusian-Polish, and Belarusian-Latvian borders in 2021, and because of Russia’s aggression against Ukraine on 24 February 2022 resulting in millions of people fleeing war and seeking protection, particularly in the eastern part of the European Union. The increased migratory movement along the eastern borders of the Republic of Poland observed in 2021, was a direct cause of the changes introduced in Polish legislation on foreigners. The possibility of returning migrants apprehended immediately after crossing the border in violation of the law was introduced. In such cases, the competent commanding officer of the Border Guard could draw up a report on crossing the border and issue an order to leave Poland. The appeal against this order may be presented to the Commander-in-Chief of the Border Guard, which, however, does not suspend it. The aim of these provisions was to protect the border from a mass influx of irregular migrants. However, it is questionable whether they simultaneously ensure the fundamental human right to be treated with dignity.

Crimes Against Humanity and War Crimes in Slovakia?

Katarína Šmigová — 2023-12-28

The negative impact of the COVID-19 pandemic on global society both during the crisis and in its aftermath was tremendous. Governments chose various methods to cope with the deathly virus. While some were highly effective, others were not. In Slovakia, the government conducted mass testing of its population. The mass testing was free of charge performed by the government. The testing, using antigen tests, was conducted four times during weekends in buildings housing hospitals, schools, or administrative offices. Although testing was not explicitly obligatory, certain restrictions were applied to those who did not undergo testing. For instance, it prevented free movement of the untested; they were banned from visiting places that the government deemed not necessary or not of fundamental need, such as workplaces, libraries, banks, car service stations, opticians, dry cleaners, post offices, or the gas station. However, groceries, drug stores, or shops selling essential household products could be visited without a certificate of having tested negative for COVID-19.
In April 2021, a group of Slovak citizens, calling themselves ‘Order of the Law Fellowship’, filed a complaint with the International Criminal Court stating that the mentioned mass testing conducted by the government, was allegedly part of an involuntary experiment done on the population of Slovakia. The group claimed that the government must be held responsible for allegedly committing crimes against humanity and war crimes, stipulated in the Rome Statute as core international crimes. This article aims to analyse their claims regarding the charges against the government, keeping in mind the character and severity of the core international crimes.

Issues Relating to Migration and Refugees in the Constitution of the Republic of Poland and the Jurisprudence of the Constitutional Tribunal

Aleksandra Syryt — 2023-12-28

Issues relating to migration and refugees are becoming increasingly important worldwide, requiring various kinds of analyses, including legal analyses. Poland is no exception. Owing to its binding international agreements, the country must ensure certain standards for the protection of migrants and refugees. Although primarily established by international law, the national legal framework is also relevant. Certain standards are derived from the Constitution of the Republic of Poland and the jurisprudence of the Constitutional Tribunal. Although the Polish Constitution does not mention migrants as such, and the concept of a refugee appears in the context of the right to obtain this status, based on art. 56 sec. 2, the system’s legislator ensures that the interests of these persons are protected. Indeed, migrants and refugees as foreigners are covered by Polish law and its guarantees, including constitutional guarantees. The article analyses how migration and refugee issues are regulated in the Constitution of the Republic of Poland and the jurisprudence of the Constitutional Tribunal. By analysing the constitutional provisions and relevant case laws, this article aims to present the constitutional legal framework in Poland for these issues and examine the extent to which these solutions are appropriate and whether the Polish Constitution requires modifications or amendments in this regard.

Shaping the position of migrants and refugees must comply with constitutional standards, including the general principles of loyalty, proportionality, and equality. Exceptions and limitations may be established by law and must meet the conditions of art. 31 sec. 3 of the Constitution. Differentiating the constitutional position of citizens and foreigners with regard to certain rights, especially those serving the realisation of the principle of the Nation’s sovereignty, is justified and cannot be treated as discrimination. This is justified by the functions of the state and its obligations to citizens as expressed in the Constitution.

The Republic of Slovenia’s Return Procedures for Irregular Migrants and Asylum Applicants in Theory and Practice

Žiga Tomc — 2023-12-28

This study explores return procedures in Slovenia for irregular migrants and rejected asylum applicants, and how they are interlinked. It outlines the current
legal framework in this area and highlights important court decisions that impact the implementation of its provisions.
This study examines the international protection procedure and its outcomes including the recognition of international protection, return under the Dublin regulation or negative decision and issuance of the return decision. It further explains the obligations of the government and foreigners, and restriction of movement. Procedures are presented for vulnerable categories, particularly unaccompanied minors. Further, the identity establishment procedures, obtaining travel documents, and monitoring mechanisms, including procedures regarding voluntary or forced return are discussed.
The obligation to respect human rights is enshrined in all legal instruments, and the principle of non-refoulement3 does not allow for any derogations, exceptions, or limitations.
Cooperation and collaboration among all stakeholders is essential. Safeguards are crucial in delicate and important procedures. To better regulate migration and related issues, many legal provisions have been changed recently based on court decisions.
Voluntary return is considered the most effective and should be sustainable, dignified, and provide appropriate support for the returnees. Every person undergoing return proceedings should be able to make an informed decision about his or her return and is provided the maximum possible support and assistance for reintegration. Slovenia, and other European Union Member States, should adopt a coordinated approach to common practices to promote returns and adopt and implement effective return measures.

Hungary’s Policy and Practice on Illegally Staying Migrants

Ágnes Töttős — 2023-12-28

This study explores Hungary’s policies and practices regarding persons illegally present in the country. It introduces Hungary’s unique legal and practical framework resulting from legal amendments aimed at regaining control of the external borders of the EU and the various judicial fora where these provisions have been tested. The study indicates that the policy framework was incompatible with EU and international human rights law, simultaneously discussing the Hungarian Constitutional Court’s decision regarding the state’s obligation in the case of the incomplete effectiveness of the joint exercise of competences in the field of fighting illegal migration. Moreover, it describes the framework of escorting illegally staying migrants through the Serbian border instead of conducting regular return procedures. In addition to analysing the individual cases and regulatory elements, the study indicates that the results of Hungarian measures in practice and whether it is worthwhile to consider these experiences during the EU migration reform processes should not be overlooked.

Theory and Practice of Returning Irregular Migrants in the Czech Republic

Eva Zorková — 2023-12-28

Irregular migration is an extremely dynamic area, and it is difficult to predict its development. At the same time, it is a phenomenon that can fundamentally threaten internal stability and security in destination countries. The central question of the present article is what the authorities in the Czech Republic do with migrants or expelled (rejected) asylum seekers who are irregularly present in the territory of the Czech Republic. Thus, the actual practice of deportation is the central question of this study.
This article focuses on readmission agreements that are binding in the Czech Republic and analysis, the issue of irregular transit migration and its consequences.
Additionally, this article highlights deportation proceedings, starting from the least to the most repressive practices. The least repressive forms of deportation are the the commonly called departure order, the decision on the obligation to leave the territory, and the commonly called voluntary returns. Considering the repressive methods of deportation in the Czech Republic, the most frequently applied form of deportation is based on administrative law and related to detention facilities. Finally, the case law of the Constitutional Court of the Czech Republic is analysed, as it plays a significant role in the field of irregular migration and deportation.