Constitutional Court roles and pathways on asylum issues in Central and Eastern Europe¹

| Cikkrészlet

with Nincs hozzászólás
Lilla Berkes associate professor, Pázmány Péter Catholic University, Faculty of Law and Political Sciences; chief counselor, Constitutional Court of Hungary


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

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[1]This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation.

[2] Evelien Brouwer: Extraterritorial Migration Control and Human Rights: Preserving the responsibility of the EU and its Member States in Bernard Ryan, in Valsamis Mitsilegas (ed.): Extraterritorial Immigration Control Legal Challenges (Leiden, Boston: Martinus Nijhoff Publishers 2010) 206–207.