Lilla Berkes: Constitutional Court roles and pathways on asylum issues in Central and Eastern Europe[1] (ABSz, 2023. Különszám, 59-69. o.)

Abstract

This study focuses on the question whether, while the current European human rights protection system is based on multilevel protection of human rights, there is a role for constitutional courts in the asylum field. It is clear that the national courts are the ones that decide on the substantive and procedural issues that arise, and ultimately it is the European Court of Human Rights that sets human rights standards for the Council of Europe member states. However, the question is where the constitutional courts fit into this system. This study reviews the practice of the constitutional courts of the states covered by the ECCN project, that form the eastern and south-eastern external borders of the European Union (Poland, Bulgaria, Romania, Hungary and Croatia). The migratory pressure that has been building up since 2015 has created new problems, debates on legal interpretation and path-finding in these countries. This part of the study focuses on the migration crisis of 2015 as a timeframe, as this period brought about widely implemented solutions that can be assessed from a constitutional point of view, while the period before would allow for a more ad hoc analysis. The study briefly examines the constitutional background of each of the countries examined, i.e. whether and how the constitution of the country in question regulates the right of asylum, and then turns to whether the national constitutional court has a significant practice in this area and, on this basis, distinguishes between different constitutional court roles and paths.

Keywords: constitutional court, asylum, access to procedure, constitutional identity

I. Introduction

Migration, as the movement of people and their temporary or permanent settlement in other states, beyond the truism that it is ancient to humanity, is in fact closely linked to state sovereignty, especially after the creation of nation states. The scope for discretionary action by a state in relation to its population in respect of aliens is quite broad, since in many respects it is entirely up to the state itself to decide who it will allow into its territory, who it will allow to settle and become part of society, and under what conditions. A state can choose to be supportive of immigration and thus contribute to increasing the diversity of its population, or it can choose to oppose it by controlling immigration. Some of these features still exist today, as in principle both EU law and the European Convention on Human Rights recognise the sovereign right of states to border control activities, to control entry and residence on their territory.[2]

At the same time, however, national specificities in relation to immigration are becoming increasingly unravelled, and more and more barriers are emerging which limit the scope for state action and which constitute a certain degree of inertia, either against the will of the state or in excess of it. This can include the impact of an irregular border crossing or stay, the fulfilment of humanitarian obligations, or compelling circumstances such as labour shortages. While States are taking measures to protect themselves against irregular border crossing or illegal stay (irregular migration), they are not able to eliminate the phenomenon completely and their solutions are often only incidental, as they are not able to identify and eliminate all possibilities for abuse in advance. And ex-post solutions may even lead to status neutralisation, i.e. the exercise of state will is limited.

The urgency of solving labour shortages also plays an important role in the state's approach to the phenomenon of migration. Such imperatives have arisen when the economic structure has changed (from agriculture to industry and certain technologies that require skilled labour) or when there has been a major economic boom (e.g. after the Second World War) and the state has turned to immigration as a short-term solution to replace the labour force that does not exist.

Humanitarian obligations, including the provision of asylum, add to the complexity of the issue. For a

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very long time, the right of asylum was closely linked to the Church and the various holy places (providing protection against excessive State criminal power), then, with the decline of ecclesiastical power and the spread of the concept of State sovereignty and the need for justice[3], the institution of diplomatic asylum in the modern sense was created by the 19th century, and by the 20th century, through the institution of territorial asylum, the State was already providing protection on its own territory to those persecuted by another State.[4] Let us add to all this that in the 20th century, we have seen examples of two major regimes in the Western world in terms of their attitude to immigration. Prior to the Second World War, there were many examples of migration being tightly controlled and humanitarian considerations being taken poorly into account.[5] In contrast, after the Second World War, and particularly from the 1960s onwards, there was a growing emphasis on drawing lessons from the experience of the war, for example the 1951 Geneva Refugee Convention, and the growing influence of social movements, including anti-colonialism, the new left, ethnic and racial identity and feminism.[6] As early as after the First World War, international experience and, to a large extent, the International Red Cross, led to the serious consideration of a uniform international asylum system, which gained wide acceptance after the Second World War with the adoption of the 1951 Geneva Refugee Convention.[7]

From this period onwards, the granting of asylum was removed from the absolute discretion of the state power and assumed as an international legal obligation by states (or at least part of them), thus making it a legally binding decisionmaking process, reducing the former state discretion. Territorial asylum is now much more a right of the individual and may even be constitutionally protected. In this form, the right to asylum is a set of rights and obligations under international human rights and humanitarian law, which, from the state's perspective, includes the following state actions: to admit a person to its territory; to allow the person to remain; to refrain from expelling the person; to refrain from extraditing the person; and to refrain from persecuting, punishing or otherwise restricting the person's freedom. Although the right to asylum has traditionally been seen as a right of the state rather than of the individual, it now comprises three elements: the right of the state to grant asylum, the right of the individual to seek asylum and the right of the individual to seek asylum.[8]

With these came the tension in the system too. The universality of human rights and especially the prohibition of discrimination which became a practically universal human right permeated the approach to migration. Both universality and the treatment of migration within a purely legal framework created tensions, in the sense of how the ideal of human rights and immigration control as a crucial and fundamental aspect of state sovereignty balance each other.[9] The traditional efforts of states to control national borders and determine the numbers and types of people who can enter and remain in their territory are no longer effective and this brought forth the idea that national sovereignty is now in decline.[10]