Pál Péter KRUZSLICZ: More or Less State when facing Statelessness

Thoughts on States’ Functions when applying International and Supranational Law

In fashion, it is well-known that less can be more as Coco Channel stated. The same question arises in constitutional law nowadays with the continuous development of international and supranational law: in front of such a development, what a State can do, less or more, or more or less. Even though, the supremacy of international law and the primacy of European law put international and supranational acts before the national ones, from a constitutional perspective, the question of limits shall always be asked, and the answer demands nuances.

During the last couple of months, the problem, which is obviously in the frontline of constitutional discourse, reappeared in some judicial decisions in a very specific aspect: with regards to the safeguard of national security. In my point of view, the recent decision of the Hungarian Constitutional Court dealing with the question of the conventionality of Hungarian legal provision about refusal of the stateless status for a person whose residence would endanger the national security of Hungary, is one of those.

As a fellow researcher from my University – it was a great pleasure to read his clever lines and see his interest for the topic, even better as I do not agree completely with his critical point of view – has already summarized the case on this blog, there is no need to go in further details about its facts, legal background and the solution given by the Court. I prefer to put the question in a more general perspective, especially, because once again, it has been raised, even though in significantly different contexts and terms, but as we will see, with the same fundamental problem, before other national courts, too.

Among these decisions, one of the most relevant, in my opinion, is the recent judgement of the French State Council (Conseil d’État). In a case about the conformity of French governmental regulations obliging web and communication service providers to preserve in a generalised way individual data about traffic, localisation, and identity of their users, with European Union’s law on data protection, after a preliminary ruling in Luxemburg, the highest French administrative court stated that:

“It is an obligation of the administrative judge to retain the most conform lecture of the interpretation of the Court of Justice of the European Union about obligations resulting of the Union’s law, with constitutional principles … When the application of a European directive or regulation would jeopardize the effective guaranties for the respect of one of such constitutional principles that has no equivalent protection in the Union’s law, the administrative judge, when asked to do so, shall not apply European acts …”.

In the above-mentioned case, the relevant constitutional principle was the one about safeguarding the Nation’s fundamental interests, especially maintaining law and order, and safeguarding national security in the context of fight against terrorism. Those principles are enshrined, according to the Conseil d’État, in French constitutional law, in the Universal Declaration of Human and Citizen Rights (1789). Even though the French administrative judge could find a conform lecture of the European interpretation of Union’s legal acts, we can easily understand the importance of its statements.

Without rushing to conclusions about the constitutional limits of the application of international and supranational law, let’s take a step back. Of course, we sense and understand the delicate approach to the topic made by the Hungarian Constitutional Court solving the problem by qualifying the recently introduced reason of refusal as a procedural one that such as, can be conform with the New York Convention (1954), as well as by the French State Council being reconciling the Court of Justice’s interpretation of the European law with French constitutional principles.

However, as we announced before, there is a more general problem behind those cases – as we see despite the fact that the Hungarian decision was about conventionality and not constitutionality and the French one pronounced in an administrative proceeding not in a constitutional one – about national constitutional framework, and its application with regards to the development of international and supranational law.

If we could believe a couple of decades ago that those questions would have been answered in a comforting way, and even, we could think that the progress of international and supranational cooperation would more and more dominate our legal orders; nowadays, we could realize, especially in the context of crises (migration, terrorism etc.), a certain need and willingness to return to some constitutional bases.

Undoubtably, States are back in time of crises, and with States, constitutional law, let’s at least hope so, as we strongly believe in constitutional States, is also back. The legal construction of modern State has achieved some very important results, and even in the context of the suitable development of international and supranational cooperation, those results should be, in my opinion, preserved.

The basic achievement of national constitutions was certainly due to their capacity to strengthen a national political community. This fundamental function of constitutions with its consequences could and should never be forgotten. But, when doing so, national constitutions were not neutral. On the contrary, they could be an efficient instrument of rebalance, thanks to their high level of social normativity, the equilibrium between public power (potestas) and individual liberty (libertas): enabling the first to act for the public interest and protecting the second at the same time. And they established such an equilibrium with conformity to important choices between political, economic, social, and cultural values with regards to the specific historical context of their political community.

This equilibrium is, most obviously, always fragile. That is the reason why it shall be preserved with strong and effective normative protection. On the one hand, we have the liberty, the rights of the persons to be preserved, on the other hand, we have the public interest, or even, common values to safeguard and to promote. Two essential dimensions appear in the background of national constitutionalism: in a first view, we see the individual interests protected by individual fundamental rights and the public interest for which public power is exercised; as a second dimension, we can contour the protection of individual liberty and equality and the willing to realize common goals and to protect and promote common values.

In those basic constitutional dilemmas where, of course, usually, individual rights, and liberty and equality can be reconciled with public interests and common goals and values, conflicts can also raise, and constitutional law has the essential role to solve those conflicts. Once again, national constitutional law proved itself, during centuries, to be able to solve this kind of conflicts in a well-balanced and as such, pacific way. But what if it is losing its capacity and we are more and more exposed to external legal challenges coming from legal orders without an equivalent capacity of preservation of fundamental equilibrium, especially when choices were not really made about it.

The situation becomes obvious when the most basic principles are fragilized. Law and order such as national security are two of those. It is not by accident that maintaining the first and safeguarding the second are defined, even in the well-developed system of the ever-closer Union’s law, as essential State functions that should be respected by the supranational integration system when exercising its competences, especially the second one remaining the sole responsibility of the States. There can be no political association, or more precisely, no society with Constitution, without the capacity to guarantee those principles.

There is no doubt such doctrinal problems are, and that is quite fortunate, not raised by judicial bodies when interpretating and applying the legal acts, seeking to decide, in our cases, about the question of conformity. The Hungarian Constitutional Court has decided, after the Hungarian National Assembly decided to introduce a new reason of refusal of the claim for stateless status – I would admit in a very strange way as on the one hand, for the above-mentioned reasons, there was no need to do so, and on the other, the legal provision completed was not the best place to put such a procedural reason for refusal – that this new reason is in conformity with the New York Convention.

When it did so, it motivated its decision arguing that the Convention does not bind the States to control from a national security aspect the persons asking for stateless status even when their claim is pending, that stateless persons should be considered as third country citizen, and the lawful residence of third country citizens on the national territory of Hungary is conditioned to the absence of endangerment of national security, that the Convention provides material definition of statelessness which is not excluding procedural exceptions, that there are procedural guaranties to contest the endangerment of national security, finally, that it is for ensuring the compliance of Hungary with its international engagement that a person endangering national security should be not granted with stateless status. Hence when according to a statement of the Secret Service the person claiming stateless status and related protection, endangers national security, the claim can be refused in conformity with the Convention for the procedural exception provided by the national act.

This reasoning seems to be convincing. First, it would be, we would even claim for the use of argumentum ad absurdum, absurd to grant protection for a person who is not entitled to reside on the national territory. Secondly, even the Convention allows the States to expulse persons entitled to stateless status when they endanger national security, by argumentum a maiore ad minus, it would mean that their claim can also be rejected. Third, of course, it does not mean that the person endangering national security but filling otherwise the material conditions defined by the Convention, could not be considered as stateless, it only means that a State whose national security is endangered by its presence, shall not grant the person with the related protection.

For those reasons, the decision of the Hungarian Constitutional Court is, in my opinion, well founded. Even though, there could be some specific questioning about the judicial control of the motivation of the refusal, as for obvious security reasons, the real motives, and the method by which they have been discovered, remain secret, this is usually considered as necessary and in proportion with the constitutionally protected goal to safeguard national security.

If there can be some discourses about the topic, it is more because, one could think that with respect to the Convention – and we could, as we saw, enlarge the spectre to other international and supranational legal acts – a State cannot anymore answer to its basic constitutional function. Once again, general, and abstract thoughts about such challenging and topical questions should certainly not developed by judicial decisions, but by the constitutional doctrine, those questions should, and I am sure, will be more and more discussed so that we can understand in the most possibly comprehensive way where our States should be more and where, because of the international and supranational legal achievements, should be less present.


Péter KRUZSLICZ (PhD in law and political sciences) graduated at the Faculty of Law and Political Sciences of the University of Szeged, and got a Master degree in European Law at the Faculty of Law of the University Jean Moulin Lyon 3. He is a lecturer at the University of Szeged in comparative constitutional law and European law. His research focuses on the relations between national constitutional law and European laws in different aspects.

Norbert TRIBL: Game of thrones? Is winter really coming?

Interview with the Presidents of the Supreme Court (Kúria) and the Constitutional Court of Hungary on the relationship between the apex courts of the Member States and the CJEU

I wrote a few weeks ago about Advocate General Bobek’s position that, under certain conditions, the ordinary courts of the Member States must disregard the decision of the Constitutional Court of the Member States and ensure that the provisions of the European law is upheld. On April 30, the President of the Hungarian Constitutional Court, Tamás Sulyok, and the President of the Kúria, András Varga Zs. gave a joint interview on the issue.

The central issue in the debate was the approach taken from the Advocate General’s position, which has not yet been adopted by the CJEU, that European Union law takes absolute primacy over the national law of the Member States. In this connection, Tamás Sulyok reminded that 28 sui generis legal systems must cooperate in the European space: the legal systems of the 27 member states and the EU itself. The CJEU has established the principle of primacy in its former case law, according to which EU law takes precedence over national law. However, the President of the Constitutional Court warned that this priority of application could not imply hegemony in any way, it cannot imply absolute supremacy, that is, there are constitutional – member state – rules against which the primacy of EU law cannot arise. This is indicated, inter alia, in Article 4 (2) TEU. According to Tamás Sulyok, the German Federal Constitutional Court’s line of reasoning, according to which the responsibility for integration is the joint responsibility of the Member States and the European Union, is decisive and to be followed position on the issue. The president stated that the responsibility for integration is also the joint responsibility of the supreme and constitutional courts of the Member States and of the CJEU, and if the responsibility is shared, the means must also be shared. According to him, this responsibility for integration is what creates the right and obligation for the constitutional courts of the Member States to examine the constitutional powers on which the joint exercise of competences by the European Union and the Member States is based.

Regarding the Advocate General’s position and its possible consequences, the President of the Kúria explained that the ordinary courts of the Member States shall recognize where the application of EU law might be necessary. In case any doubt arises regarding the need for application of EU law, ordinary courts shall turn to the CJEU. At the same time, according to András Zs. Varga, there is a consensus among the constitutional courts of the Member States that this priority cannot cover all areas, and national law and national constitutional rules also have their own place and function. According to the President, the question is that in a concrete situation who is entitled to decide whether national law or European law should be applied? He described the situation as a “game of thrones”, the resolution of which is one of the most important issues affecting the European legal order.

According to András Zs. Varga, the situation arising from the position of the Advocate General would be practically incomprehensible in the case of Hungary, as one of the defining powers of the Hungarian Constitutional Court is a real constitutional complaint aimed at annulling court decisions in conflict with the Fundamental Law. Thus, a judicial decision which would be contrary to the decision of the Constitutional Court – and consequently to the Fundamental Law – would be obliged to be annulled by the Constitutional Court.

During the interview, the participants discussed the relationship between the Kúria and the Hungarian Constitutional Court and their function. Both Presidents stressed that the two institutions have a good relationship with each other, bearing in mind that their constitutional functions are different: the Constitutional Court can only have the final word on matters of constitutional relevance, while the Kúria has the final word in general matters. (It should be noted that Advocate General Bobek’s position on the application of EU law does not distinguish between the ordinary courts of the Member States and the constitutional courts according to their function and their role in the constitutional order.)

Regarding the growing prevalence of international judicial forums, Tamás Sulyok explained that international courts do not implement political aspirations, and the constitutional courts of the Member States are not under political influence. However, we must see that in the European legal area, 27 + 1 legal systems must coexist, which necessarily gives rise to conflicts due to the differences among the systems. The President of the Constitutional Court quoted former German Constitutional Judge Ferdinand Kirchhof as saying that the European courts and the constitutional courts of the Member States should jointly implement the European legal community within the limits and powers provided for in the Treaties. In this connection, Tamás Sulyok highlighted that there is a very important emphasis on the fact that the CJEU’s power to interpret Treaties cannot constitute a hegemony of interpretation. The final word in interpretations of the Treaties is usually given by the CJEU, but the constitutional courts of the Member States cannot be deprived of the right to examine Member States ‘powers of joint exercise or EU acts based on them for compliance with Member States’ constitutional requirements. According to the President of the Hungarian Constitutional Court, the integration responsibility of the constitutional courts of the Member States is embodied in this examination, among other things: these bodies are also responsible for the integration process, similarly to the CJEU. The responsibility for integration is two-sided: the responsibility of the constitutional courts lies in ensuring that the Union’s institutions, including the CJEU itself, do not go beyond the Treaties, while the responsibility of integration institutions lies in keeping Member States within the framework of the Treaties. The integration process must therefore be guarded from two sides.

András Zs. Varga approached and emphasized the issue from the side of sovereignty: law and sovereignty are inextricably linked, only rules of conduct based on sovereignty can have enforceable, binding force, and the EU has no sovereignty. Consequently, the binding force of EU law is not guaranteed by its own sovereignty but by the joint sovereignty of the Member States. According to the President of the Kúria, the problem can be solved relatively easily in the case of Hungary, as the Fundamental Law itself states that it is the basis of the legal system, and the FL itself stipulates that EU law prevails as Hungarian law. The Constitutional Court had previously taken a similar position when it ruled that EU law is binding under the Hungarian Constitution. According to the President of the Kúria, since the Hungarian Fundamental Law guarantees the enforcement of EU law in Hungary and the authentic, erga omnes interpreter of the FL is the Constitutional Court, in the absence of an explicit constitutional provision, the decision of the Constitutional Court is binding on everyone.

During the discussion, the participants discussed the issue of the rule of law, in addition to the relationship between the supreme courts of the Member States, the constitutional courts and the CJEU, in connection with which Tamás Sulyok explained: In his opinion, one of the guarantees of the rule of law is that in Hungary the Constitutional Court exercises constitutional control over all branches of power, whereas previously it could only prevail over the legislature. In this way, it can be ensured that not only created but also applied law meets the requirements of the Fundamental Law.

Regarding the rule of law, András Zs. Varga drew attention to the fact that the rule of law in Hungary has a history dating back several centuries, for example, the Kúria itself is an 800-year-old institution. Among other things, the ancient respect for the rule of law is why the Constitutional Court and the constitutional judiciary have played and continue to play a decisive role in the operation and development of the Hungarian legal system. According to the President of the Kúria, constitutional judiciary is built into Hungary’s public law traditions, so it is important that Hungary has its own legal traditions, including its own understanding of the rule of law, which is not necessarily contrary to the European concept, it is only different from the historical perspective through which we view it. In his view, it is not possible to apply the same concept of the rule of law in all countries – or at least not with the same content – because the historical perspectives are different, however the roots of the concept being the same.

In this connection, Tamás Sulyok reminded: an integral part of Hungarian history is the struggle for independence, which has always had a political background. According to him, legal independence represents almost as much value for Hungary as effective independence. This is a special development process that is part of Hungary’s national identity. He recalled that the EU is unity in diversity, that is, diversity is also important, cannot be ignored and that anyone who emphasizes only the unity, strives for hegemony. Who also emphasizes diversity is at the root of equality in the Member States.

The President of the Constitutional Court explained that one of the greatest questions for the future is how to preserve the national traditions of each Member State within the European Union. In the case of European nations, every human being, that is, every European citizen, is born into a specific religious, historical, and linguistic environment, which can vary from nation to nation. This is a European feature, but rather the strength and not the weakness of Europe. In his view, it is important to join forces along certain values and interests, but this does not necessarily mean value preference, but at the same time it must mean development in common values, which is realized as a process. The values enshrined in the Treaties establishing the European Union are important, but they may be viewed differently by each Member State according to its historical specificities.

András Zs. Varga closed the conversation with the idea that the above issues should be debated, but not quarreled. The author of the present lines adds, however, that the discussion requires at least two actors and is a precondition for the parties to know and understand each other’s position.

Norbert TRIBL is an assistant research fellow at the University of Szeged (Hungary), Institute of Public Law as well as a consultant at the Constitutional Court of Hungary. Since 2020, he has been the editor of the Constitutional Discourse Blog.

Mónika MERCZ: Thank you, next! On refusing blood transfusions as a fundamental rights claim

Introduction

The treatment of patients who refuse blood transfusions is always a challenge for doctors all around the world. One group in particular has become well-known for this reason: Jehovah’s Witnesses refuse transfusions of whole blood, of red and white corpuscles, platelets and plasma since 1945, when the legal organisation of leaders of the Congregation of Jehovah’s Witnesses, the Watch Tower Bible and Tract Society concluded that it was against divine law.[1] Their reasoning for refusing blood transfusions is based on their religious beliefs. “Patients, including children, who do not receive transfusions usually fare as well as or better than those who do accept transfusions. In any case, no one can say for certain that a patient will die because of refusing blood or will live because of accepting it.”[2] – goes the statement on their official website – in response to concerns arising out of their refusal of possibly life-saving treatments. In an article arguing for their viewpoint from a non-religious perspective they also hold that “the world over, more and more doctors are seeing the advantages of bloodless medicine and bloodless surgery.”[3] Whichever is the case from a medical point of view, today I would like to take a look at how religious freedom relates to the right to life and the right to health. This article is a strictly objective study about the issue, my aim is not to offend any parties to this conversation, mainly to start a discourse about the importance of all fundamental rights, the right to refuse treatment as a patients’ rights issue, and how these rights relate to each other.

Religious freedom against the right to health

Religious freedom is guaranteed on the international level through documents such as the Universal Declaration of Human Rights, Article 18[4] and Article 19.[5] In Hungary, Article VII. of our constitution, called Fundamental Law (Alaptörvény) enshrines freedom of religion as a fundamental right. This is one of the first-generation rights, just like the right to life. Therefore, it is incredibly difficult to say if one takes precedence over the other. As any refusal of blood transmission can result in the death of the patient, debates in this realm are very much also relevant to the right to life, but it is also worth mentioning how the right to health and its regulation informs these debates. The European Charter of Patients’ Rights contains provisions that have bearing on this issue, as it is clearly stated that the patient has the right to refuse a treatment or a medical intervention.[6] Therefore “the negative of accepting transfusion by Jehovah Witnesses when this is correctly indicated, in accordance to medicine precepts, attempts against their security as a patient”.[7] It is best to discuss the specifics of blood transfusion refusal with patients,[8] as a mentally competent individual has an absolute moral and legal right to refuse the consent for medical treatment or transfusion.[9]

The right to decide on individual treatment – in practice

I would like to explore what medical professionals follow in their practice, to get a look at how prevalent this issue is and how the system of healthcare rises to the challenges presented. Many internationally accepted documents including Article 5 of Council of Europe’s Convention on Human Rights and Biomedicine contains the principle of self-determination.

Article 9 of the Convention on Human Rights and Biomedicine states that “expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account”. This is especially important in this case, as Jehovah’s Witnesses carry a card with them which clearly states their wish to refuse even potentially life-saving operations if they require techniques that go against their beliefs. The medical community agrees that emergency physicians should look for evidence of an informed refusal when evaluating these documents.[10] In an emergency, a medical practitioner shall not refuse to treat a patient who refuses a blood transfusion. In cases like this the patient should accordingly be treated without administering blood, and the consequences of not receiving a blood transfusion should be explained to them, if possible.[11]

There have been such cases before the European Court of Human Rights as well. The religious community of Jehovah’s Witnesses of Moscow were dissolved for various reasons, one of which was the ‘No Blood’ card’s existence, as Russian courts decided that participation in the activities of the community had been damaging for the health of its followers because they had refused blood transfusions. The Russian courts also alleged that they band the community because they “encouraged its members to commit suicide and/or to refuse medical assistance in life-threatening situations.”[12] In this case, the complaint of Jehovah’s Witnesses about being banned was found admissible by the European Court of Human Rights.

Informed consent, of course, can be fully given by adults who have chosen not to accept such treatments. I would like to briefly touch upon the subject of children in situations where they refuse blood transmission because of religious reasons. In South Africa, a child who is over the age of 12 and has reached a level of sufficient maturity and mental capacity may consent to their own medical treatment without assistance from a parent. Children under the age of 12 need the consent of the parent to refuse such a treatment. In the UK, children under 16 years of age can legally give consent, but only if they understand the issues related to their decision.[13] Although their right to express religious belief is protected under Article 9 ECHR, there are limitations to this article. Under English law the Family Law Reform Act 1969 is applied in the case of 16 and 17 year olds.[14] The issue of consent for minors is incredibly layered. In the Netherlands for example, euthanasia of a minor of 16 years for psychiatric suffering is legal. Noa Pothoven’s case is one of the most well-known examples of a minor consenting to ending her own life. She was a 17-year old girl who had a variety of mental issues after being sexually assaulted. Her request for euthanasia had been denied, but she still committed suicide by refusing to eat and drink, a decision which was known both to her family and to professionals.[15]

However, it is clearly the everyday practice that the right to life must prevail above all else in situations where there is a serious threat to the life or health of the minor. In these cases medical treatments can be imposed by the judge declaring a temporary removal of the right to custody from the parents.[16] In these cases, children’s decisions can be overruled by the court. There have been instances where such a decision was made[17] and resulted in negating the child’s or family’s decision. The American Academy of Paediatrics recommends healthcare providers to “avoid unnecessary polarisation when conflict over religious practices arises”.[18] This issue is especially difficult as failure to give life-saving treatment to a child could render the doctor vulnerable to criminal prosecution.[19]

Conclusion

From the collegial work of the National Commission of Medical Arbitration, Undersecretary of Innovation and Quality, General Direction of Legal Issues of the Health Secretary, General Direction of Religious Associations of the Secretary of Governorship, National Centre of Sanguine Transfusion, National Human Rights Commission, Mexican Academy of Surgery, National Commission of Bioethics and the National Academy of Bioethics six recommendations were emitted specifically for the attention of Jehovah Witnesses’ patients.

The first one is that it is necessary to obtain an informed letter of consent. Moreover, if transfusion is considered indispensable, doctors must allow the participation of medics from the Link Committees of the Jehovah Witnesses to value other alternatives available. It is also of utmost importance not to deny the patients’ hospitalization. When doctors are unable to attend to Jehovah Witnesses’ patients without blood, medical attention must not be suspended. In case of a real emergency, the medic must preserve the life of the patient before other issues are taken into account. Finally, health institutions must promote the creation of hospital committees of transfusion medicine.

In my opinion these practices aim to respect the wishes of the patient involved, emphasizing the importance of religious freedoms while preserving the right to life. Hopefully newer and newer techniques will emerge in the medical community, making the maintaining of all related fundamental rights easier.

[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3934270/ [2] https://www.jw.org/en/jehovahs-witnesses/faq/jehovahs-witnesses-why-no-blood-transfusions/ [3] https://www.jw.org/en/library/magazines/g201209/medical-alternatives-to-blood-transfusions/ [4] Every person has the right of freedom of thought, conscience and religion; this right includes the liberty to change religion or belief, as well as the freedom to manifest its religion or belief, individually or collectively, whether in public or in private, by teaching, practice, cult and observance. [5] Every individual has right of freedom of opinion and expression; this right includes not to be bothered because of his opinions, to investigate and receive information and opinions, and to spread them without limitations of frontiers, by any means of expression. [6] https://ec.europa.eu/health/ph_overview/co_operation/mobility/docs/health_services_co108_en.pdf [7]https://www.elsevier.es/en-revista-revista-medica-del-hospital-general-325-articulo-blood-transfusion-in-jehovah39s-witnesses-S0185106314000250 [8] McBrien ME, McCarroll C, Heyburn G. Who or what defines a patient’s best interests? Anaesthesia. 2007;62:413–4. [9] Rogers DM, Crookston KP. The approach to the patient who refuses blood transfusion. Transfusion. 2006;46:1471–7. [10] https://pubmed.ncbi.nlm.nih.gov/9715245/ [11]https://www.medicalprotection.org/southafrica/casebook/casebook-may-2014/the-challenges-of-treating-jehovah’s-witnesses [12] https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-99221%22]} [13] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4260316/#ref14 [14] https://pureadmin.qub.ac.uk/ws/portalfiles/portal/182746725/Clayton_N_ill_EJHL.pdf [15]https://www.theguardian.com/world/2019/jun/05/noa-pothoven-netherlands-girl-not-legally-euthanised-died-at-home [16]https://eprints.ucm.es/id/eprint/55546/1/A%20Critical%20Analysis%20ECtHR%20Blood%20transfusions%202010.pdf [17] https://www.lexology.com/library/detail.aspx?g=1e0ea388-6c66-4248-8dda-f9fdacfb2ebd [18] Religious objections to medical cares. American Academy of Pediatrics Committee on Bioethics. Pediatrics. 1997;99:279–81. [19] Milligan LJ, Bellamy MC. Anaesthesia and critical care of Jehovah’s Witnesses. Contin Educ Anaesth Crit Care Pain. 2004;4:35–9.

Mónika MERCZ is a Hungarian fourth year law student at the University of Miskolc, currently in her last semester of an English Legal Translation Course. Mónika is the Secretary General of European Law Students’ Association (ELSA) Miskolc, a recipient of the National Higher Education Scholarship 2020, and is currently taking part in Aurum Foundation’s Mentoring Program. Having done several publications, her work mainly focuses on environmental law, constitutional law and data protection. She is a member of the Constitutional Discourse’s Editorial Board.

Luca SEVARACZ: Green Light for the Green Passport?


The EU COVID-19 Certificate and the Eastern Vaccines in the Light of Free Movement and Residence

As many of us have already heard it on the news, on 29 April 2021, the European Parliament (EP) adopted its amendments on the proposal for a regulation on a framework for the Digital Green Passport or better known as EU COVID-19 Certificate (Certificate), in contrast to the opinion of the World Health Organization (WHO). Under the articles of the proposal, the use of the designation ‘Certificate’ is an umbrella term since it covers three different types of information such as (i) vaccination certificate (Article 5), (ii) test certificate (Article 6) and (iii) certificate of recovery (Article 7).

According to the draft’s Recital, its intention is to guarantee the right to free movement as a key element of the European integration on the level of internal market (Treaty on the Functioning of the European Union, Article 26(2) TFEU) and also as a precondition for an economic recovery. Because the measures which were adopted by the Member States in order to limit the spread of the virus can be construed as restrictions of this fundamental right (Article 45(1) of the Charter of Fundamental Rights) and have a negative impact on citizens and businesses. Therefore, the European Union (EU) must establish a common framework which should be binding and directly applicable in all Member States. This shows that even a pandemic cannot justify the temporary reintroduction of border controls at internal borders.

In line with the above, the Preamble emphasizes that only those limitations of free movement – in accordance with Article 21(1) TFEU which implies that it is not an absolute right – are acceptable which facilitate the application of principles like proportionality and non-discrimination, while pursuing a ‘high level of public health protection’. Furthermore, free movement of people cannot be restricted if it does not pose a significant risk to public health, based on sound scientific evidence, since it would not be necessary to achieve the pursued objective.

Moreover, the proposal highlights that this Certificate is not a travel document (Article 3(3a)), therefore its possession shall not be a precondition to the exercise of free movement rights (Article 3(3b)). Also, Article 10 of the proposal states that holders of the certificates cannot be subject to any additional travel restrictions like quarantine, self-isolation, a COVID-test or any discriminatory measure.

Let’s see whether these objectives set out in the Recital meet the rules of the regulation regarding the vaccination certificate. Under Article 5(1) of the proposal each Member State shall automatically issue a vaccination certificate to a person to whom a COVID-19 vaccine has been administered.

However, the question arises: what about the type of vaccine? Pursuant to the EP’s amendments only those vaccination certificates can be accepted by a Member State which confirm that their owners are vaccinated with a COVID-19 vaccine having been granted marketing authorisation conforming to Regulation (EC) No 726/2004 (Article(5)). To sum up, with those vaccines that are authorised by the European Medicines Agency (EMA). At this point, only Pfizer, Janssen, Moderna and AstraZeneca have been authorised by the EMA. Other vaccines can also be accepted by a Member State if they have received a WHO Emergency Use Listing (Article 5 (5)). At this point, among eastern vaccines – widely used by Member States like Hungary – only Sinopharm is listed, the Russian Sputnik V is not even in progress yet.

In my opinion, this differentiation between vaccines raises a few legally relevant questions and for a better understanding, we must look at Directive 2004/38/EC on the right to free movement and residence. According to the Directive’s Preamble (5), this fundamental right can only be exercised under objective conditions of freedom and dignity, therefore any unjustified distinctions are violations of human dignity. Besides that, in its Article 24 the Directive also contains equal treatment with the nationals of the host Member State. Under Article 27(1) the legitimate restrictions of the right are listed as public policy, public security and public health. The structure of the Directive suggests an interpretation on these general principles as Article 27(2) states that the first two principles shall comply with the principle of proportionality and the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society.

Contrary to the above, public health is separately regulated in Article 29, as it affirms particular diseases which could justify measures on the freedom of movement, such as diseases ‘with epidemic potential’ as defined by the relevant instruments of the WHO and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. In our case, the first disease group is relevant, since the WHO declared a public health emergency of international concern (PHEIC) on COVID-19 on 30 January 2020. Above all, the Preamble of the Certificate proposal states that only a significant risk to public health could be an acceptable reason to apply limitations on free movement and residence.

As Recital (7a) admits, at this stage of the pandemic, it is still unclear whether vaccines prevent transmission of COVID-19. Therefore, in my opinion, until we have sound scientific evidence about each vaccine’s safety and effectiveness, we should not differentiate between them and, through them, between citizens. I do not see any reason why we should think that eastern vaccines or EU citizens who got vaccinated with them present a significant risk to public health, why each Member State should decide themselves if they take that risk through negotiating bilateral agreements on acceptance.

Even if Article 1 of the proposal states that it does not establish any additional formality or requirement for exercising free movement, it could restrict it, since those EU citizens who do not hold a Certificate can be required to comply with quarantine orders or to get tested for COVID-19, even though they did get vaccinated (even if not with the preferred vaccines). In the joined cases of C-570/07 and C-571/07 (Reasoning 44) or C-108/09 (Reasoning 58) the Court of Justice of the European Union pointed out that Member States are obligated to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved.

From this aspect, the EU tries to strike a balance between its own values and interests. On the one hand, it wants to provide a measure of discretion to the Member States in connection with vaccines which are not authorised by the EMA but listed by the WHO with a rhetoric as a risky choice. On the other hand, the Proposal determines the principle of non-discrimination as well as the necessity and proportionality of restrictions on free movement in its Recital but seemingly forgets to work them into the normative text of the regulation.

Before finally giving a green light to the Green Passport academically speaking, such questions of inconsistency should first be addressed more thoroughly.

Luca SEVARACZ is a Hungarian fourth-year law student at the University of Szeged, Hungary. She is currently a teacher’s assistant at the Institute of Public Law. Her work experience includes voluntary work at different non-governmental organizations as well as an internship at the Office of the National Assembly. She was awarded 3rd place in one of the sections of Constitutional Law at the Scientific Students’ Associations Conference in 2021. She is the Vice President in charge of Academic Activities in European Law Students’ Association (ELSA), Szeged.

Her current research is on the position of a neutral state within the election campaign as far as the jurisprudence of the Hungarian Constitutional Court, the Curia and the National Election Committee are concerned.

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Attila SZABÓ: Statelessness: Right or Possibility?

On 23 March, the Hungarian Constitutional Court decided on a certain case based on a judicial initiative for norm control. The question of the three judges initiating the procedure was the lawfulness of a new norm in the statelessness procedure. The judges asked whether this norm is in line with the 1954 Convention relating to the Status of Stateless Persons.

Statelessness and Hungary

The international conventional system for providing protection for humanitarian migrants is very complex. This blogpost focuses only on the Convention relating to the Status of Stateless Persons. Protection for those who can not access any citizenship is guaranteed by this Convention. Stateless people could be in total legal and social trap without this protection.Hungary joined the Convention relating to the Status of Stateless Persons on 21 November 2001. The Convention’s goal is

“…to ensure that stateless people enjoy a minimum set of human rights. It establishes the legal definition of a stateless person as someone who is “not recognized as a national by any state under the operation of its law.” Simply put, this means that a stateless person is someone who does not have the nationality of any country.”

In April of 2021, there were 96 states parties to the Convention. The UNHCR treats this topic as a matter of priority: in 2014 the Campaign to End Statelessness in 10 Years was launched. We are in the middle of this campaign.

UN High Commissioner for Refugees António Guterres and UNHCR Special Envoy Angelina Jolie published an Open Letter in which the signatories argue why ending statelessness is an utterly important goal for humankind. So they say:

“Statelessness can mean a life without education, without medical care or legal employment . . . a life without the ability to move freely, without prospects or hope […] Statelessness is inhuman. We believe it is time to end this injustice.”

It looks like the Hungarian legislator obviously agrees with these goals since protection may be granted to stateless applicants if they fit to the conditions of section 78 in Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals.

Nevertheless, in the last ten years, only a low number of stateless statuses were provided based on the information of the National Directorate-General for Aliens Policing (NDAP). 111 persons were recognized altogether in this period.

The numbers suggest that statelessness has never been a significant social question in Hungary, only a handful of people were concerned by this important human right.

Nevertheless, the authorities had a relevant legal practice in providing this humanitarian status for those who are eligible.

A concise description of granting stateless status can be found on the webpage of NDAP. Based on the above-mentioned law it sets forth that

the applicant shall not be entitled to stateless status and his/her application shall be refused by way of a formal resolution if his or her residence prejudices or endangers the national security of Hungary.

This norm leads to the question before the Hungarian Constitutional Court, examined below.

The procedure and the conflict

A application for stateless status submitted by an applicant from the territory of Palestine was refused. The NDAP made its decision based on the opinions of the Constitution Protection Office and the Counter Terrorism Centre.

The applicant turned to the Budapest-Capital Regional Court and argued that the above-mentioned point c) is not in line with the Convention. Article 24 of the Fundamental law says that the Constitutional Court shall examine any law for conflict with any international treaties. Therefore the question shall be decided by the Constitutional Court since its essence is a possible conflict between the Hungarian law and the Convention.

Section 32 (2) of Act CLI of 2011 on the Constitutional Court says that judges shall suspend judicial proceedings and initiate Constitutional Court proceedings if, in the course of the adjudication of a concrete case, they are bound to apply a legal regulation that they perceive to be contrary to an international treaty. This happened in this case since the Budapest-Capital Regional Court perceived that there might be the following collision.

Article 1 and 2 of the Convention exhaustively specify the reasons for refusing a stateless applicant. These reasons are transposed into Hungarian law by Section 78 (1) a) of Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals in the following way. “A petition for stateless status shall be refused by way of a formal resolution if the petitioner falls within the scope of Paragraph 2 of Article 1 of the United Nations Convention relating to the Status of Stateless Persons signed in New York on 28 September 1954, promulgated by Act II of 2002.”

Point b) of the same paragraph says that a “petition for stateless status shall be refused by way of a formal resolution if the petitioner terminated his/her nationality deliberately, with a view to obtaining stateless status.” In this way, the legislator shall avoid application in bad faith.

The Budapest-Capital Regional Court stated that any additional condition is not in line with the Convention since this would be such a new condition that would restrict access to the human right guaranteed by the Convention.

The Constitutional Court (HCC) had to decide whether this is a new restriction over the Convention or a condition which is its inherent part.

The answer

The HCC argued that the Convention itself alludes to national security or public order. These can lead to a refusal to issue a travel document (Article 28) and can also constitute a reason to expel a stateless person based on the Convention (Article 31). The Constitutional Court concluded that the examination of an applicant from viewpoints of national security or public order is in line with the Convention since it is mentioned in these specific places.

Furthermore, the HCC argued that the Convention provides wide freedom to the party states in defining the procedure of statelessness determination. The Constitutional Court decided that the examined point c) is a procedural reason and it does not restrict substantial human rights.

Based on these arguments, the Constitutional Court provides constitutional viewpoints for the right interpretation of the law framing the proceedings before the competent authorities and regular courts. If the authorities decide that the presence of the applicant in the territory of Hungary prejudices or endangers the national security of Hungary they have to refuse the application on procedural grounds without examining substantive ones. Further examination is not allowed since procedural barriers emerged.

Criticism

Firstly, the HCC refers to the fact that the Convention itself mentions national security or public order. However, these reasons are mentioned in Article 28 and 31 of the Convention. (i) The Contracting States shall issue to stateless persons lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require. (ii) The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.

These are specific norms and not general rules within the Convention. The lex specialis derogat legi generali principle means that if there is no specific regulation, general regulation shall be applied. There is no general regulation in the Convention for applicants posing a danger to national security or public order. The Constitutional Court widened the interpretation of the specific norms in order to apply them to the Hungarian regulation. It might not be in line with the Convention. It would have been useful if the Constitutional Court could have collected international comparative examples to underline the above-mentioned argument. International examples and UNHCR interpretation on national security or public order are absent from the decision.

Secondly, Hungary could have ratified the Convention with reservations about national security and public order in 2001, but it did not. In this sense, this de facto reservation could violate the pacta sunt servanda principle too since Hungary applies a new condition that was not part of the ratified agreement.

Thirdly, the distinction between substantive and procedural law from this point of view seemscontroversial. Procedural rules shall guarantee a substantive right, not hinder its access. Obviously, there are procedural rules which can hinder access to a substantive human right but their fulfillments shall depend on the applicant. If the applicant does not fill out a proper form or does not provide the required data or information in good faith, etc. access to the substantive right can be denied. However, a procedural barrier that cannot be changed or influenced by the applicant is par excellence a restriction on the given human rights. Applicant has to be able to fit the procedure in order to consider him as a person who have a real access to the substantive human right. If the applicant can be denied in a procedural ground which cannot be influenced or changed by him substantive right can be never achieved. The procedure can be strict but it cannot have such a condition which cannot be fulfilled by an applicant who have the substantive right. In this certain case, a person who has no citizenship shall be protected by Hungary as a stateless person. If there is a procedural barrier for a person without citizenship stateless status can be never be achieved. This way, the HCC might deprive applicants of access to a human right guaranteed in an international treaty.

Furthermore, in this procedure, the HCC could not deal with the fact that the opinions of the Constitution Protection Office and the Counter Terrorism Centre were not open to the applicant as data protected by the Act CLV of 2009 on the Protection of Classified Information. It means that the applicant had no information on why her access to the stateless status was refused and it also means that she could not challenge the lawfulness or factualness of these opinions in any redress procedure. Although the accessibility of the opinions of the Constitution Protection Office and the Counter Terrorism Centre was not the focus of this case, the Constitutional Court could have put it on the scale in order to define what that procedural barrier means for the substantive right.

Obviously, granting humanitarian status for persons posing a threat to the national security or public order cannot be a goal or even a side effect of a human right but there are security and police procedures regulated by the Act XXXIV of 1994 on the Police and by other laws to prevent these risks. The stateless status could be granted and the persons concerned could be examined within the regular national framework before a court within the national guarantee system of criminal procedure law. A person concerned can even be in detention till their expulsion under the Convention, if it is unavoidable from the criminal law aspect. This kind of approach would be much more transparent and would not restrict access to a human right which is granted in an international treaty. There might be applicants who are really dangerous but it can be proved and decided only in a transparent, fair court procedure. Stateless persons who are condemned in such a procedure should be protected as stateless based on the Convention but treated by the law enforcement. Statelessness can be decreased but criminals cannot threaten our community in this way. Moreover, it could demonstrate that Hungary is committed to take a stand in ending statelessness by 2024 and do not restrict the access to the procedure.

The author is a PhD student of University of Szeged. He graduated in the University of

Debrecen as a lawyer in 2015. He finished his LLM on EU law in Deák Ferenc Institute of

Pázmány Péter Catholic University.

Attila SZABÓ’s PhD topic is the connection between migration and rule of law. However, he is

interested in other constitutional law questions and the rule of law in general. The author’s

last research was about the role of local-governments in integration of third-country nationals

based on the EU law.