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.