Implementing judgments in the field of asylum and migration on odd days III. Methods of non-implementation of judgments The terms implementation or execution of judgments refer to the process of realising the full legal and political consequences of judgments. In this chapter, the methods of non-implementation identified through the research will be presented, with some examples. (1 ) “Blatant” non-implementation Blatant non-implementation entails completely ignoring the judgment. It means that the Government does not (and is often unwilling to) take any measures in order to comply with the judgment or even clearly declares that it will not comply. Sometimes Constitutional Court procedures are initiated by the Governments, in order to obtain the Constitutional Court’s opinion on the compliance of an EU norm with the national Constitution. At other times, the Government simply takes no action whatsoever. A striking example of non-implementation of a Constitutional Court judgment, followed by an ECtHR judgment, in which not even individual measures were executed, is the Rana v. Hungary case.9 The case concerns the authorities’ refusal in 2016 to change the transgender refugee applicant’s name and sex marker from “female” to “male” due to a gap in the relevant legislation, which did not allow for the recognition of gender reassignment and access to the name changing procedure for lawfully settled third-country nationals.10 In 2018, the Constitutional Court ruled that Hungary was obliged to adopt regulations that acknowledge gender reassignment and provide a discrimination-free opportunity to enter the resulting name change into the register.11 In 2020, the ECtHR found a violation of Art. 8, as the Hungarian authorities failed to exercise their positive obligation to give the applicant access to the legal gender recognition procedure. The individual measures adopted in the case “did not remedy the violation of the applicant’s rights, as the applicant still has to live with official documents that do not reflect his gender identity and appearance”.12 Furthermore, in 2020, the Parliament adopted a law that banned legal gender recognition entirely (also for Hungarian citizens).13 Due to the general hostile governmental discourse on LGBTQI rights,14 is it clear that no implementation of the judgment can be expected in the near future. Another typical example of blatant non-implementation would be the Hungarian non-implementation of judgments on collective expulsion, where no legislative amendments or changes in practice followed the CJEU and ECtHR judgments, and illegally staying third-country nationals are still pushed back without any observance of the relevant guarantees. Similarly in Poland, the Government clearly stated that it would not implement domestic courts’ and ECtHR judgments in this respect (see chapter IV.3.). And finally, the last example also concerns Hungary. In July 2018, Hungary passed legislation criminalising otherwise legal activities aimed at assisting asylum seekers, the so-called “Stop Soros” law.15 The Commission initiated an infringement procedure, and on 16 November 2021, the CJEU found such legislation in breach of EU law.16 No legislative change has to date been adopted. 9 10 Rana v. Hungary, appl. no. 40888/17, 16 July 2020. 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, p. 46. 11 6/2018. (VI. 27.) AB, 19 June 2018, http://public.mkab.hu/dev/dontesek.nsf/0/c69d7f599b3ce25dc12580e3005e784b/$FILE/6_2018%20 AB%20határozat.pdf. Rule 9(2) communication by the Háttér Society concerning the implementation of the Rana v. Hungary judgment, https://hudoc.exec.coe. int/eng?i=DH-DD(2021)816E. 12 13 14 15 16 Section 33 of Act XXX of 2020; see also https://en.hatter.hu/news/bill-ban-lgr. http://www.miniszterelnok.hu/prime-minister-viktor-orban-on-the-kossuth-radio-programme-sunday-news/; HHC, Illiberal Highlights of 2020, https://helsinki.hu/wp-content/uploads/HHC_Illiberal_Highlights_of_2020.pdf, pp. 13-14. HHC, Criminalisation and Taxation – The summary of legal amendments adopted in the summer of 2018 to intimidate human rights defenders in Hungary, 25 September 2018, https://bit.ly/2GxoLBq. C-821/19, European Commission v. Hungary, 16 November 2021. 9