Implementing judgments in the field of asylum and migration on odd days I. Introduction This study explores the non-implementation of domestic and international judgments with a focus on migration and asylum in Czechia, Hungary, Poland, Slovakia and Slovenia. Building on the worrying findings of nonimplementation of judgments by the Hungarian government in the Hungarian Helsinki Committee’s (HHC) study “Non-Execution of Domestic and International Court Judgments in Hungary”,1 the present study looks at the topic of non-implementation in more detail, by focusing only on the field of migration and asylum, and by expanding its geographical scope, in order to explore whether this phenomena is present in neighbouring countries which also pursue (or pursued) harsh anti-migration policies.2 Strong anti-migration policies, however, often go against the judgments issued in this field, and vice-versa. The jurisprudence of the Court of Justice of the European Union (CJEU), the European Court on Human Rights (ECtHR), and even domestic Supreme or Constitutional Courts, often show that the correct interpretation of EU law, the European Convention on Human Rights (Convention or ECHR), or domestic legislation is not in line with such political agendas. However, the increasing non-execution of judgments gives the executive additional time to maintain these policies. The principle of the primacy of EU law, developed over time by the case law of CJEU, establishes the precedence of EU law over the conflicting national legislation of EU Member States, including also priority in relation to national constitutions. Where a conflict arises between an aspect of EU law and an aspect of national law, EU law will prevail. If a conflict cannot be resolved by a consistent interpretation of national law, national courts of the Member States must apply EU law instead of the national law.3 By not implementing CJEU judgments, the states are also (in)directly questioning the primacy of EU law, which should be applied in a uniform manner throughout the Union, otherwise the pursuit of EU policies would become unworkable.4 The aim of the study is to present examples of the non-implementation of judgments in the studied countries, and to draw attention to these worrying practices and their implications for the rule of law, as executing domestic and international court decisions is one of its cornerstones. The study takes its content from national research papers that were drafted specifically for this study. National researchers worked according to a common, pre-agreed outline, relying mainly on desk research, but also conducting interviews and on-line surveys with lawyers working in the field of asylum and migration. They examined CJEU judgments issued as a result of a preliminary reference procedure or an infringement procedure initiated by the European Commission and ECtHR judgments that were classified as leading5 by the Committee of Ministers (CM). The study not only presents the judgments, which have still not been implemented, but also contains examples of prior non-implementation issues, which are important to mention, even if they have since been resolved or become irrelevant. 1 2 3 4 5 HHC, Non-Execution of Domestic and International Court Judgments in Hungary, 2021, https://helsinki.hu/en/wp-content/uploads/ sites/2/2021/12/HHC_Non-Execution_of_Court_Judgments_2021.pdf. The Governments of the V4 nations are all ideologically right-wing, a position manifested through, among other things, their unfavourable stance towards migration. Until the elections held in April 2022, Slovenia was also ruled by a party that adhered to a right-wing ideological path, with a strong anti-migration policy. EUR-LEX, Glossary of summaries, Primacy of EU law, https://eur-lex.europa.eu/EN/legal-content/glossary/primacy-of-eu-law.html and Summaries of EU legislation, Precedence of European law, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14548. This study will not go into the questioning of the primacy of EU law by the Polish Constitutional Tribunal, as the recent Constitutional Tribunal’s jurisprudence does not concern migration. For more information on this topic see: European Parliament, Primacy of EU law and jurisprudence of Polish Constitutional Tribunal, June 2022, https://www.europarl.europa.eu/RegData/etudes/STUD/2022/732475/IPOL_ STU(2022)732475_EN.pdf, where the authors conclude that the recent judgment of the Polish Constitutional Tribunal should without doubt be perceived as producing no legal effects and, as a result, should be of no consequence for the legal order of the Union, its institutional balance, and the distribution of competences between EU and its Member States. Leading case - a case which has been identified as revealing new and often structural and/or systemic problems, either by the Court directly in its judgment, or by the CM in the course of its supervision of execution. Such a case requires the adoption of new general measures to prevent similar violations in the future. Repetitive case – a case relating to a structural and/or general problem already raised before the CM in the context of one or several leading cases; repetitive cases are usually grouped together with the leading case. EIN, Implementation of Judgments of the European Court of Human Rights, 2018, https://static1.squarespace.com/ static/55815c4fe4b077ee5306577f/t/5e1c2ac53d0fa72e53f955c4/1578904366756/202001_EIN_HandbookEN_Website.pdf. 5