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 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.
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.