May 2020 is a momentous month for refugee rights in Europe. In response to a judgment by the EUs Court of Justice (CJEU), the Hungarian government has decided to close its transit zones where asylum seekers arriving from Serbia were required to “stay” until their fate was determined by Hungarian authorities.
The ruling, which said Hungary circumvented EU law holding asylum seekers in prison-like conditions, is a major success for the Hungarian Helsinki Committee. The human rights watchdog represented families from Iran and Afghanistan that have been awaiting their expulsion in the transit zone at the Hungarian-Serbian border for over a year behind a barbed wired fence, living in containers and having extremely limited free movement rights. Conditions of “stay” in the facility made European news several times when the Hungarian government refused to feed some of the residents – until ordered otherwise by the European Court of Human Rights (ECHR).
The recent judgment from the CJEU in Luxembourg is particularly important for its basic premise, acknowledging that conditions of living behind the barbed wire fence amounted to “detention” for the purposes of EU law. On this point, the Luxembourg court departed from a recent judgment of the Court of Human Rights, finding that the residents were “physically free to leave the facility towards Serbia. This freedom was illusory, however, as leaving towards Serbia would have exposed the asylum applicants to the risk of being ultimately returned to their countries of origin. Understandably, they were not that keen to do so.
The Hungarian governments decision in light of the Luxembourg courts judgement is remarkable. THE CJEU did not mandate the closing of the transit zone: it ruled that the asylum applications of the residents have to be processed in no more than four weeks. The almost 300 residents of the transit zones have already been transferred to other facilities (depending on their legal status), where their freedom of movement is less restricted. This is without doubt a very positive development.
The Hungarian governments decision is worthy of attention for another reason that is much less commendable, though is equally remarkable: the decision to comply with the judgment of the CJEU at all. A few days earlier, Hungarian prime minister, Viktor Orbán was eager to explain to the listeners of his weekly radio interview that the CJEU judgment was part of a “coordinated attack” by the EU on Hungary. As if reading from the German Constitutional Courts recent judgment on the European Central Bank (ECB) bond buying scheme, Orbán emphasised that, “its absolutely clear that if the European Court of Justice makes a decision that conflicts with the Hungarian constitution – and now this is the situation unfolding before our eyes – then the Hungarian constitution must have priority.”
This was the response many expected. The governments political agenda of preventing the “forced settlement of foreign populations in Hungary” was inserted into the Fundamental Law (Hungarys constitution) in 2018 shortly after Orbáns party, Fidesz was re-elected for a third time. The Hungarian government is famous for its resistance to a common European solution to the refugee crisis based on relocating asylum applicants. In order to defend Christianity in Europe, the government operates the Hungary Helps Program to keep potential – preferably Christian – asylum seekers safe in their countries of origin.
Thus, it appears at first that with closing the transit zones, the Hungarian government did what it was least expected to do: it complied with the judgment of the CJEU in a manner that goes much beyond the bare minimum.
On closer inspection, however, it appears that in doing so, the Hungarian government masterfully flipped a key premise of the EU legal order – and thus, of EU membership. Compliance with judgments of the Court of Justice is a legal obligation, the behaviour member states agree to adhere to by default when they join the Union. Making it sound as if giving effect to a Luxembourg judgment was a question of open political discretion turns a key premise of the EU legal order on its head. This is exactly what President Koen Lenaerts of the EU Court of Justice warned about in a recent interview when he said that, “the first member state that ignores a judgment could unravel the entire European legal order.”
The political profits of the Hungarian governments move are exceptionally high and immediate, while its risks are negligible. Hungary badly needed some positive press, after the drama around the Enabling Act, both from the Commission and in the parliament in Budapest. Still, this gesture will hardly move the needle on fixing the EUs “greatest inadequacy” – to quote German foreign minister, Heiko Maas — the distribution of asylum seekers, an idea Hungary sharply opposes. Also, those asylum seekers who were moved out of the transit zones are now under the umbrella of the European human rights regime.
Here, the standards of protection have become Byzantine due to the ECHRs self-proclaimed preference for following a “practical and realistic approach” that is mindful of “present day conditions and challenges.” The most the Hungarian government risks is a few cases down the line before the European courts concerning the rights of asylum seekers represented by human rights defenders. Thus, the immediate political rewards of compliance clearly outweigh its potential risks.
In short, the Hungarian governments decision to comply with the Luxembourg courts judgement makes perfect sense in the illiberal calculus of strategically resetting the terms of EU membership. Conveniently, the German Constitutional Courts recent judgement assisted the Hungarian government to flip a fundamental premise of Union law on its head, turning compliance with a judgment of the Court of Justice into the discretionary political decision of a national government. And so, the unravelling of the European legal order is underway.