On 16 November the Court of Justice of the European Union (CJEU) confirmed that the so-called Stop Soros law from 2018 infringes EU law. The European Commission has announced that it will refer Hungary to the CJEU to impose fines over non-compliance with a CJEU ruling from December 2020 that found indefinite detention in transit zones and indiscriminate pushbacks to Serbia to be in breach of EU law. Hungary’s constitutional court is discussing a challenge to the supremacy of EU law over the ruling.

The CJEU has upheld an action by the European Commission over amendments to Hungarian law made World Refugee Day in June 2018, sometimes referred to as the Stop Soros law. The court found firstly that: “Hungary has failed to fulfil its obligations under the Procedures Directive by allowing an application for international protection to be rejected as inadmissible on the ground that the applicant arrived on its territory via a State in which that person was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed”. Secondly, the court found: “Hungary has failed to fulfil its obligations under the Procedures and Reception Directives by criminalising, in its national law, the actions of any person who, in connection with an organising activity, provides assistance in respect of the making or lodging of an application for asylum in its territory, where it can be proved beyond all reasonable doubt that that person knew that that application would not be accepted under that law”. The court already in March 2020 found the inadmissibility grounds in violation of EU law in a case of an asylum seeker represented by ECRE member the Hungarian Helsinki Committee (HHC). The organisation also filed a complaint over the criminalisation of solidarity at the European Court of Human Rights in 2018. HHC welcomes the CJEU ruling, with co-chair Márta Pardavi, stating: “Since the law was passed, the Helsinki Committee has helped 1,800 asylum-seekers. From now on, we can again serve our clients without the threat of prison. We were not intimidated by the threat, and we achieved many of our important legal successes in the shadow of criminal persecution”. Hungary has a long history of criminalising organisations supporting the rights of asylum seekers and refugees, and is under infringement procedures by the European Commission over ‘transparency’ laws introduced in 2017. According to a recent report from Observatory for the Protection of Human Rights Defenders (OBS) the laws have been used to stigmatise organisations receiving international funding as national security threats. The laws stipulate: “under penalty of severe sanctions, new obligations regarding registration, declaration, transparency, and publicity for civil society organisations who were directly or indirectly receiving foreign economic support above €24,000”.

The European Commission announced on 12 November that it will refer Hungary to the CJEU and request financial penalties over non-compliance with the court’s ruling in December 2020 declaring the “indiscriminate push-back of asylum-seekers to Serbia in breach of EU law”. The ruling closed infringement procedures initiated by the Commission in 2015 over several aspects of Hungary’s asylum legislation. Beyond the mass expulsions of potential asylum seekers to Serbia, these addressed the failure of legislation to clearly allow asylum seekers to legally reside in Hungary while applications are under review, and the mandatory unrestricted detention in the transit zones at the Hungarian border with Serbia. While Hungary did abolish the transit zones in May 2020 as a result of two joint cases – in which ECRE member HHC provided representation -, the Commission maintains that Hungary “has not taken the measures necessary to ensure effective access to the asylum procedure. Hungary has also not clarified the conditions pertaining to the right to remain on the territory in case of an appeal in an asylum procedure”. Meanwhile, Hungary’s constitutional court has begun discussions of a motion launched in February by justice minister Judit Varga challenging the supremacy of the CJEU over Hungarian law. According to the minister, the implementation of the ruling would result in many migrants staying permanently in Hungary and thereby allegedly “affect Hungary’s sovereignty set out in the Constitution”. HHC warns that “following the Polish model”, the Hungarian government “intends to use the Hungarian Constitutional Court as a means of evading the enforcement of a binding CJEU judgment”. According to the organization: “The attempt fits into the illiberal trend which seeks to undermine the foundations of European integration and the primacy of EU law”. Accordingly, HHC has filed a petition with the Constitutional Court in order to protect human rights and the respect of EU law.

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Photo: (CC) jemufo, April 2010

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.