Name of the act/s*

Judgment in Joined Cases C-924/19 PPU and C-925/19 PPU FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság

Subject area

refugee law, asylum

Brief description of the contents of the act

The Court of Justice of the European Union (CJEU) delivered its judgment in the joint cases concerning two asylum-seeking families held in the transit zone in Röszke, at the Hungarian-Serbian border. The cases originate in preliminary ruling requests lodged by Hungarian judges in December 2019. The Hungarian judges asked the CJEU to rule on whether placement in the country’s two land-border transit zones constitutes detention, among other questions.

The Court first held that detaining the persons concerned in that transit zone must be regarded as a detention measure. According to the Court, the conditions prevailing in the Röszke transit zone amount to a deprivation of liberty, inter alia because the persons concerned cannot lawfully leave that zone of their own free will in any direction whatsoever. In particular, they may not leave that zone for Serbia since such an attempt (i) would be considered unlawful by the Serbian authorities and would therefore expose them to penalties and (ii) might result in their losing any chance of obtaining refugee status in Hungary.

The Court held that neither an applicant for international protection nor a third-country national who is the subject of a return decision may be detained solely on the ground that he or she cannot meet his or her own needs. The Court added that EU law precludes an applicant for international protection or a third-country national who is the subject of a return decision from being detained without the prior adoption of a reasoned decision ordering that detention and without the need for and proportionality of such a measure having been examined.

Lastly, the Court held that the lawfulness of a detention measure, such as the detention of a person in a transit zone, must be amenable to judicial review. Moreover, if, following its review, the national court considers that the detention measure at issue is contrary to EU law, that court must be able to substitute its decision for that of the administrative authority which adopted the measure and order the immediate release of the persons concerned, or possibly an alternative measure to detention.

Secondary sources/ doctrinal works (if any)

About the transit zone as an integral part of the Hungarian government’s refugee and asylum policy:

Tóth, Judit: Hungary at the border of populism and asylum, in Sergio Carrera – Marco Stefan (eds.) Fundamental Rights Challenges in Border Controls and Expulsion of Irregular Immigrants in the European Union. Complaint Mechanisms and Access to Justice (Routledge, 2020)

Nagy, Boldizsár: From Reluctance to Total Denial. Asylum Policy in Hungary 2015–2018, in Vladislava Stoyanova – Eleni Karageorgiou (eds.) The New Asylum and Transit Countries in Europe during and in the Aftermath of the 2015/2016 Crisis (Brill, 2019)

Bernát, A. et al.: Borders and the Mobility of Migrants in Hungary, Ceaseval Research on the Common European Asylum System, 29 (2019) http://ceaseval.eu/publications/29_WP4_Hungary.pdf

Witold Klaus et al.: Refugees and Asylum Seekers in Central European Countries. Reality, Politics and the Creation of Fear in Societies, in Helmut Kury – Slawomir Redo (eds.) Refugees and Migrants in Law and Policy Challenges and Opportunities for Global Civic Education (Springer, 2018)

*Act citation /year and number

Judgment in Joined Cases C-924/19 PPU and C-925/19 PPU FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság

Enacted by

Court of Justice of the European Union

Official link to the text of the act

http://curia.europa.eu/juris/liste.jsf?oqp=&for=&mat=or&lgrec=hu&jge=&td=%3BALL&jur=C%2CT%2CF&num=C-924%252F19&page=1&dates=&pcs=Oor&lg=&pro=&nat=or&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&language=en&avg=&cid=8834245

Name of the act/s*

Judgment in Case C-78/18 Commission v Hungary

Subject area

non-governmental organizations, freedom of association, transparency

Brief description of the contents of the act

The Grand Chamber of the Court of Justice upheld the action for failure to fulfil obligations brought by the European Commission against that Member State. The Court held that, by imposing obligations of registration, declaration and publication on certain categories of civil society organisations directly or indirectly receiving support from abroad exceeding a certain threshold and providing for the possibility of applying penalties to organisations that do not comply with those obligations, Hungary had introduced discriminatory and unjustified restrictions with regard to both the organisations at issue and the persons granting them such support.

The Court held, in the first place, that the transactions covered by the Transparency Law fell within the scope of the concept of ‘movements of capital’ and that the law in question constitutes a restrictive measure of a discriminatory nature. In addition, the measures which the law lays down are such as to create a climate of distrust with regard to those associations and foundations. Consequently, the obligations of registration, declaration and publication and the penalties provided for under the Transparency Law, viewed together, constitute a restriction on the free movement of capital, prohibited under Article 63 TFEU.

In the second place, the Court examined whether the provisions of the Transparency Law complied with the Charter. The Court concluded that the right to freedom of association, the right to respect for private and family life and the right to the protection of personal data were violated because the provisions of the Transparency Law could not be justified by any of the objectives of general interest which Hungary relied upon.

Secondary sources/ doctrinal works (if any)

Virág Molnár: Civil Society in an Illiberal Democracy. Government-Friendly NGOs, “Foreign Agents,” and Uncivil Publics, in Balázs Trencsényi – János Mátyás Kovács (eds.) Brave New Hungary. Mapping the “System of National Cooperation” (Lexington Books, 2019)

*Act citation /year and number

Judgment in Case C-78/18 Commission v Hungary

Enacted by

Court of Justice of the European Union

Official link to the text of the act

http://curia.europa.eu/juris/document/document.jsf?docid=227569&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=8836956

Name of the act/s*

Decision of the Hungarian Constitutional Court in case no. II/313/2019 (public, but not yet published in the Official Gazette)

Subject area

media freedom

Brief description of the contents of the act

The qualified minority of MPs challenged government decree no 229/2018. (XII. 5.) declaring the acquisition of the certain media companies by the Central European Press and Media Foundation a matter of national strategic importance.

The Constitutional Court weighed two constitutional values. On the one hand, the Court noted that the declaration of a certain acquisition by the government a matter of national strategic importance belongs to competence of the executive which can be subjected only to limited judicial review. On the other hand, the Court opined that media pluralism as a constitutional value is not as strongly protected by the Fundamental Law as a fundamental right and the petitioners did not prove that media pluralism would be seriously undermined in Hungary. Consequently, the Constitutional Court concluded that the challenged government decree was constitutional.

Comment

Central European Press and Media Foundation (KESMA) was established in Hungary, and almost immediately, most of the media owners that were considered by public opinion as affiliated or sympathetic to the Hungarian government transferred the ownership rights of their media holdings to it. According to a report by Centre for Media Pluralism and Media Freedom drawn up at the request of the European Commission, it aggravates the already high risk to media pluralism in the country.

Secondary sources/ doctrinal works (if any)

Brogi, Elda et al. : Assessing Certain Recent Developments in the Hungarian Media Market Through the Prism of the Media Pluralism Monitor, Research Project Report 2019/01, Centre for Media Pluralism and Media Freedom - Robert Schuman Centre for Advanced Studies, https://cadmus.eui.eu/bitstream/handle/1814/64284/Hungarian_media_market.pdf?sequence=1&isAllowed=y

*Act citation /year and number

Decision of the Hungarian Constitutional Court in case no. II/313/2019 (public, but not yet published in the Official Gazette)

Enacted by

Constitutional Court of Hungary

Official link to the text of the act

https://alkotmanybirosag.hu/uploads/2020/06/sz_ii_313_2019-.pdf

Name of the act/s*

Judgment of the European Court of Human Rights of 26 May 2020 in the case of Mándli and Others v Hungary

Subject area

freedom of expression, parliament

Brief description of the contents of the act

The case concerned the suspension of the applicants’ Parliament accreditation as journalists.

The Court found in particular that the applicants, journalists working for various media outlets, had been reporting on a matter of public interest – alleged illicit payments linked to the National Bank. Their accreditation to work in parliament had been suspended after they had tried to interview deputies outside the designated areas for such work.

While acknowledging the right of parliaments to regulate conduct on their premises, the Court found that the applicants had no mechanism to appeal against the suspension of their accreditation. The sanction against them had thus not been accompanied by sufficient safeguards, resulting in a breach of Article 10 of the Convention (freedom of expression).

*Act citation /year and number

Judgment of the European Court of Human Rights of 26 May 2020 in the case of Mándli and Others v Hungary

Enacted by

European Court of Human Rights

Official link to the text of the act

http://hudoc.echr.coe.int/eng?i=001-202540