How primitive again – judicial demagoguery at its best

This is the case (did not see such “questions” before) in which a preliminary procedure becomes an insult. It also shows how the judicial branch in Hungary accepts the xenophobic, homophobic, racist, paranoid narrative of the Hungarian government regarding the refugee crisis. Privacy and human dignity is not important  any more. What kind of physical examination do they talk about? Sad and very primitive.

” CJEU: C-473/16 F – Request for a preliminary ruling from the Administrative and Labour Court Szeged (Hungary), 29 August 2016

Date:
Friday, October 21, 2016
The Administrative and Labour Court Szeged (Hungary) has referred a request for preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation to be given to Article 4 of the Qualification Directive. The case relates to a Nigerian national, who had submitted an application for international protection based on sexual orientation in Hungary.

The Administrative and Labour Court Szeged has referred two question to the CJEU:

Should Article 4 of the Qualification Directive be interpreted in light of Article 1 of the Charter of Fundamental Rights of the European Union, as not precluding that, when LGBTI’s apply for international protection, advice by a psychologist, based on projective personality tests, is taken into account when assessing the application for asylum, even if the opinion was drawn up without any questions asked by the applicant about his sexual habits and without being subjected to a physical examination?

If the expert opinion referred to in the first question cannot be used as evidence, should Article 4 of the Qualification Directive be interpreted that, in the light of Article 1 of the Charter of Fundamental Rights of the European Union, when the applicant puts forward, in support of his application, that he is being persecuted because of his sexual orientation, neither the administrative authorities nor the courts have the ability to investigate the credibility of the asylum seeker on the basis of an expert’s report, regardless of the specific characteristics of the methods used in this report?”

Advertisements

Interesting news – UK government launched sharia review

I personally think religion should strictly be separated from state law. On the other hand, state introduction into religion seems to be problematic to me: the terrain of religion belongs to individual freedom, even if followers of a religion abolish some of their fundamental rights, differentiate between man and women (like all of the monotheist religions do). I am really curious and sceptical about the outcome of this project:

https://www.gov.uk/government/news/independent-review-into-sharia-law-launched

“An independent review into the application of Sharia Law in England and Wales has been launched by Home Secretary Theresa May today.

s300_scales-of-justice-pic

The review will be chaired by Professor Mona Siddiqui, an internationally renowned expert in Islamic and inter-religious studies who was appointed OBE for her services to inter-faith relations. Professor Siddiqui will lead a panel of experts that includes experienced family law barrister Sam Momtaz, retired high court judge Sir Mark Hedley and specialist family law lawyer Anne Marie Hutchinson OBE QC.

The panel will be advised by 2 religious and theological experts – Imam Sayed Ali Abbas Razawi and Imam Qari Asim. They will ensure the panel has a full and thorough understanding of the religious and theological issues relating to specific aspects of Sharia Law, and the way it is applied.

The Home Secretary committed to an independent review of the application of Sharia Law as part of the government’s Counter-Extremism Strategy. The strategy notes that many people in England and Wales follow religious codes and practices, and benefit from the guidance they offer. However, there is evidence some Sharia councils may be working in a discriminatory and unacceptable way, seeking to legitimise forced marriage and issuing divorces that are unfair to women, contrary to the teachings of Islam. It will also seek out examples of best practice among Sharia councils.

The terms of reference set out the review’s intention to explore whether, and to what extent, the application of Sharia law may be incompatible with the law in England and Wales. It will examine the ways in which Sharia may be being misused, or exploited, in a way that may discriminate against certain groups, undermine shared values and cause social harms.

The panel will begin work immediately and is expected to complete its review in 2017. It is expected to issue a call for evidence to provide an opportunity for groups and individuals to contribute to the review.

Home Secretary Theresa May said:

Many British people of different faiths follow religious codes and practices, and benefit a great deal from the guidance they offer.

A number of women have reportedly been victims of what appear to be discriminatory decisions taken by Sharia councils, and that is a significant concern. There is only one rule of law in our country, which provides rights and security for every citizen.

Professor Siddiqui, supported by a panel with a strong balance of academic, religious and legal expertise, will help us better understand whether and the extent to which Sharia law is being misused or exploited and make recommendations to the government on how to address this.

Chair of the Sharia Law Review, Professor Mona Siddiqui, said:

It’s a privilege to be asked to chair such an important piece of work. At a time when there is so much focus on Muslims in the UK, this will be a wide ranging, timely and thorough review as to what actually happens in Sharia councils.

 

A highly important new judgment of EU migration law – Persons entering illegally may not be imprisoned

JUDGMENT OF THE COURT (Grand Chamber)

7 June 2016 (*)

(Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — Police custody — National legislation providing for a sentence of imprisonment in the event of illegal entry — Situation of ‘transit’ — Multilateral readmission arrangement)

In Case C‑47/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, France), made by decision of 28 January 2015, received at the Court on 6 February 2015, in the proceedings

Sélina Affum

v

Préfet du Pas-de-Calais,

Procureur général de la cour d’appel de Douai,

1.      Article 2(1) and Article 3(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as meaning that a third-country national is staying illegally on the territory of a Member State and therefore falls within the scope of that directive when, without fulfilling the conditions for entry, stay or residence, he passes in transit through that Member State as a passenger on a bus from another Member State forming part of the Schengen area and bound for a third Member State outside that area.

2.      Directive 2008/115 must be interpreted as precluding legislation of a Member State which permits a third country national in respect of whom the return procedure established by that directive has not yet been completed to be imprisoned merely on account of illegal entry across an internal border, resulting in an illegal stay.

That interpretation also applies where the national concerned may be taken back by another Member State pursuant to an agreement or arrangement within the meaning of Article 6(3) of the directive.

[Signatures]

A nice summary of the Phillip Morris v Australia BiT case – plain packaging decision

Available here:


“Award Name and Date: Philip Morris Asia Limited v The Commonwealth of Australia (PCA Case No. 2012-12) Award on Jurisdiction and Admissibility, 17 December 2015

Case Report by: Marina Kofman** and Erika Williams*** Edited by Ignacio Torterola

Award Name and Date: Philip Morris Asia Limited v The Commonwealth of Australia (PCA Case No. 2012-12) Award on Jurisdiction and Admissibility, 17 December 2015 Case Report by: Marina Kofman** and Erika Williams*** Edited by Ignacio Torterola Summary: Claimant brought a claim against Respondent under the bilateral investment treaty between Hong Kong and Australia in respect of Respondent’s introduction of legislation mandating the plain packaging of tobacco products. Claimant undertook a restructure in 2011 whilst Respondent was considering the introduction of plain packaging measures. Following the restructure, Claimant became the sole shareholder of the Australian entities which were a part of the global group of companies. The Tribunal found that Claimant’s restructure was for the principal, if not the sole, purpose of gaining protection under the Treaty. The Tribunal held that the claims were inadmissible and it was precluded from exercising jurisdiction over the dispute.”

 

 

 

 

Must reads – answers to the refugee crisis

I happened to find some genious articles on the internet about the reactions on the refugee crisis.

  • First, the article of Boldizsar Nagy is a detailed analysis of Hungarian rules: http://eumigrationlawblog.eu/parallel-realities-refugees-seeking-asylum-in-europe-and-hungarys-reaction/
  • Second, Steeve Peers reacted really quickly after the nonsensical EU-Turkey deal: http://eulawanalysis.blogspot.hu/2016/03/the-final-euturkey-refugee-deal-legal.html
  • Third, another article raises the question: what is the nature of this deal? : http://eulawanalysis.blogspot.hu/2016/04/is-eu-turkey-refugee-and-migration-deal.html

All of them could be interesting for those who want to have a broader view about these problems.

Balázs Majtényi on the FRAME blog: Particularism Strikes Back: National Identity versus Human Rights in the Hungarian Fundamental Law

Hungarian parliament_Flickr_artorusrex_small

“Since 2010, the Hungarian government has increasingly committed itself to the majoritarian conception of democracy, meaning that nobody and nothing, not even independent international or state and civil institutions, can stand in the way of the will of the majority serving national interests. In this article I will analyse the constitutional background of the political turn in Hungary.”

You find the original blog post here

EU common commercial policy – some important links (for students)

Report of CoE on Hungary

An excellent report on Hungary was published recently by CoE. The report can be reached here. It focuses on three topics: 1) Media freedom 2) Fight against intollerance and discrimination 3) Human rights of migrants and refugees

The contents reach a wide range of topics, some of the most important problems we face day-by-day. Pls find below the content of the work.

Summary

Introduction ………………………………………………………………………………………………………………………………….. 7
1 Media freedom ………………………………………………………………………………………………………………………. 9
1.1 Hungary’s media legislation and the right to freedom of expression ………………………………………………9
1.1.1 Media content regulation…………………………………………………………………………………………………….9
1.1.2 Imposition of sanctions on the media………………………………………………………………………………….10
1.1.3 Protection of journalists’ sources………………………………………………………………………………………..11
1.1.4 Registration requirements …………………………………………………………………………………………………12
1.1.5 Problems relating to the independence of media regulatory bodies ………………………………………12
1.1.6 Conclusions and recommendations…………………………………………………………………………………….13
1.2 Threats to media pluralism………………………………………………………………………………………………………14
1.2.1 Advertising market……………………………………………………………………………………………………………14
1.2.2 Tax on advertising …………………………………………………………………………………………………………….15
1.2.3 Political party advertising …………………………………………………………………………………………………..15
1.2.4 Conclusions and recommendations…………………………………………………………………………………….16
1.3 The need to decriminalise defamation………………………………………………………………………………………16
1.3.1 Conclusions and recommendations…………………………………………………………………………………….17

2 The fight against intolerance and discrimination ……………………………………………………………………….. 18
2.1 The rise of racism and intolerance in Hungary ……………………………………………………………………………18
2.1.1 Anti-Gypsyism…………………………………………………………………………………………………………………..18
2.1.2 Antisemitism…………………………………………………………………………………………………………………….19
2.1.3 Xenophobia ……………………………………………………………………………………………………………………..19
2.1.4 Extremist organisations……………………………………………………………………………………………………..20
2.1.5 The response of the Hungarian authorities…………………………………………………………………………..21
2.1.6 Conclusions and recommendations…………………………………………………………………………………….23
2.2 The need to fight against Discrimination……………………………………………………………………………………25
2.2.1 General context………………………………………………………………………………………………………………..25
2.2.1.1 Conclusion and recommendations ………………………………………………………………………………….25
2.2.2 Discrimination against Roma………………………………………………………………………………………………25
2.2.2.1 Conclusions and recommendations ……………………………………………………………………………………..27
2.2.3 Discrimination against persons with disabilities ……………………………………………………………………28
2.2.3.1 Conclusions and recommendations ……………………………………………………………………………………..30
2.2.4 Discrimination against LGBTI persons………………………………………………………………………………….32
2.2.4.1 Conclusions and recommendations ……………………………………………………………………………………..33
2.2.5 Discrimination on grounds of socio-economic status …………………………………………………………….33
2.2.5.1 Conclusions and recommendations ……………………………………………………………………………………..353
3 Human rights of immigrants, asylum seekers and refugees …………………………………………………………. 36
3.1 Detention of Asylum seekers……………………………………………………………………………………………………36
3.1.1 Shortcomings of the current detention regime …………………………………………………………………….37
3.1.2 Vulnerable asylum seekers…………………………………………………………………………………………………38
3.1.3 Conclusions and recommendations…………………………………………………………………………………….38
3.2 Integration of refugees and other beneficiaries of international protection…………………………………..40
3.2.1 Integration framework ………………………………………………………………………………………………………40
3.2.2 Family reunification…………………………………………………………………………………………………………..40
3.2.3 Conclusions and recommendations…………………………………………………………………………………….41
3.3 Statelessness …………………………………………………………………………………………………………………………42
3.3.1 Conclusions and recommendations…………………………………………………………………………………….43

How to apply the Charter? Åklagaren v Hans Åkerberg Fransson

Judgment of the Court (Grand Chamber) of 26 February 2013 (request for a preliminary ruling from the Haparanda tingsrätt – Sweden) – Åklagaren v Hans Åkerberg Fransson
(Case C-617/10)

(Charter of Fundamental Rights of the European Union – Field of application – Article 51 – Implementation of European Union law – Punishment of conduct prejudicial to own resources of the European Union – Article 50 – Ne bis in idem principle – National system involving two separate sets of proceedings, administrative and criminal, to punish the same wrongful conduct – Compatibility)

 

Request for a preliminary ruling – Haparanda tingsrätt – Interpretation of Article 6 TEU and Article 50 of the Charter of Fundamental Rights of the European Union – National case-law requiring a clear basis in the European Convention on Human Rights or the case-law of the European Court of Human Rights in order to disapply provisions of national law liable to be contrary to the ne bis in idem principle – National legislation under which the same conduct contrary to tax law may be punished both administratively by a tax surcharge and criminally by a term of imprisonment – Compatibility with the ne bis in idem principle of a national system involving two separate sets of proceedings to punish the same wrongful conduct

Operative part of the judgment

1.    The ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights of the European Union does not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of value added tax, a tax penalty and a criminal penalty in so far as the first penalty is not criminal in nature, a matter which is for the national court to determine.

2.    European Union law does not govern the relations between the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law.

European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter of Fundamental Rights of the European Union conditional upon that infringement being clear from the text of the Charter or the case-law relating to it, since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice of the European Union, whether that provision is compatible with the Charter.

A highly interesting judgment…

The General Court annuls the listing of a university as an entity subject to restrictive measures against Iran

The General Court, however, suspends the effects of the annulment for a period of two months in order to allow the Council the opportunity to correct the irregularities identified

Sharif University of Technology (SUT) is an institution of higher education and research located in Tehran, Iran. Founded in 1966, it specialises in technology, engineering and physical sciences. The Council adopted restrictive measures (freezing of funds) against SUT for the following reasons: ‘Sharif University of Technology … is assisting designated entities to violate the provisions of UN and EU sanctions on Iran and is providing support to Iran’s proliferation sensitive nuclear activities. As of late 2011 SUT had provided laboratories for use by UN-designated Iranian nuclear entity Kalaye Electric Company (KEC) and EU‑designated Iran Centrifuge Technology Company (TESA)’.[1] SUT claims that its listing should be annulled.

In today’s judgment, the General Court upholds the action for annulment.[2]

The General Court considers that the Council committed a manifest error of assessment and failed to discharge the burden of proof which rests on it. In that regard, the General Court states that a number of documents justifying SUT’s listing were sent to it only after the expiry of the period allowed for bringing proceedings. Further, the General Court finds that the documents sent by the Council contain no information or material which adds anything to the content of the contested acts (the redacted passages in some of those documents not concerning SUT). Moreover, while the Council, on its own admission, took into account other information to be found in a separate confidential document, the General Court observes that the Member State which proposed the listing and supplied that information is opposed to its disclosure, either wholly or in part.

That being the case, the Court holds that the Council finds itself unable to provide additional information beyond that already known to SUT and that the Council has provided no explanation of its inability to disclose the confidential information. The reasons stated by the Council in the contested acts (the only material on which the General Court can base its decision) contain no evidence capable of supporting the Council’s claims: they prove neither that SUT made available laboratories to KEC and TESA nor that those laboratories could be of any value to them for their nuclear activities. Lastly, there is nothing to support the claims that SUT assisted the entities KEC and TESA to violate the restrictive measures adopted against Iran, or provided direct support to Iranian nuclear activities.

The General Court however limits the effects of its judgment for a period of two months from the date of delivery. The General Court considers that SUT’s interest in ensuring that its listing should be annulled immediately must be weighed against the objective of general interest pursued by the European Union’s policy in relation to restrictive measures. An immediate annulment would allow SUT instantly to collect the frozen funds. A further listing of SUT cannot automatically be ruled out, since the Council has the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard. The General Court considers therefore that it is necessary to give the Council a period of two months to enable it to correct the irregularities identified, inter alia by providing sufficient evidence to support the reasons for SUT’s listing.

NOTE: An appeal, limited to points of law only, may be brought before the Court of Justice against the decision of the General Court within two months of notification of the decision.

NOTE: An action for annulment seeks the annulment of acts of the institutions of the European Union that are contrary to European Union law. The Member States, the European institutions and individuals may, under certain conditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the act.

[1]Council Decision 2012/829/CFSP of 21 December 2012, amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 356, p. 71) and Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran(OJ 2012 L 356, p. 55).

[2] By judgments of the same date, the General Court upholds the actions for annulment brought by an Iranian businessman (Mr Babak Zanjani, Case T-155/13) and two legal persons (Sorinet Commercial Trust Bankers and National Iranian Tankers Company, respectively Cases T-157/13 and T-565/12). As in the SUT case, the General Court considers that the Council committed a manifest error of assessment and failed to discharge the burden of proof which rests on it. In those three cases, the General Court maintains the effects of the annulled acts until the date of expiry of the period for bringing an appeal or, if an appeal has been brought, until the dismissal of the appeal.

Found a nice article on the recognition of US judgments on punitive damages in Europe

by Istvan Csongor Nagy

The paper examines the recognition practice of US punitive awards in continental Europe from a comparative and critical perspective. After analysing the pros and cons of the recognition of punitive awards from a theoretical point of view, it presents and evaluates the judicial practice of the European (French, German, Greek, Italian, Spanish and Swiss) national courts and the potential impact of the 2005 Hague Choice-of-Court Convention and the Rome II Regulation. The paper ends with the final conclusions containing a critical evaluation of the present judicial practice and a proposal for a comprehensive legal test for the recognition of punitive damages.

You find the article here

Joshua Rozenberg: Never mind human rights law, EU law is much more powerful

The-Guardian-logo1
“Even though the human rights court in Strasbourg and the convention it enforces are never far from the headlines these days, it is rare to find any mention of another important human rights agreement – the European Union’s charter of fundamental rights. This is understandable: although the charter was “proclaimed” by the EU institutions more than 13 years ago, it did not become legally binding until the Lisbon treaty took effect in December 2009. Even then, the charter applies only to EU member states when they are implementing EU law. That’s stressed in a discussion paper just published by the European Commission ahead of a major conference on EU justice policy next month (at which I have been invited by the commission to make a short introductory speech)…

…The ruling demonstrates once again that EU law trumps laws passed by parliament. Despite all the attention paid to human rights law, EU law is much more powerful. And it’s a decision that may make life more difficult for ministers. The foreign office will have to tell embassies in London that they can’t sack their domestic staff without paying the compensation to which those staff are entitled under EU law. But what’s wrong with that?”

You can reach the article here or by clicking on the image above.

For my students – Heather Garretson & Bradley Charles: “Because I Said So” Is a Reason — But Not a Reasoning Technique

I read an exremely interesting paper about legal reasoning, it was a really nice little overview of reasoning techniques, you find the article in The Law Teacher here, on page 20. It says, the  nine reasoning techniques are the following (I cut them out of the article):

Apply the Rule’s Plain Language
• Apply the rule’s language by repeating a word or phrase, using a synonym or antonym, and characterizing facts.

Imply
• Apply law by comparing factual causes and effects to the rule.
• Apply law by comparing implications of a rule’s interpretation to the rule.

Infer
• Infer from facts to satisfy the rule.
• Infer to interpret codified law.

Clarify
• Clarify law, facts, and issues to reason.

Hypothesize
• Hypothesize a fictional situation where the issue and conclusion are clear. Reason by comparing the fictional situation to the case at hand.

Characterize Law
• Characterize law to explain whether a rule is easy or difficult to satisfy.

Analogize
• Analogize by comparing and contrasting precedent and statutes.

Quantify
• Quantify chance of success.
• Quantify facts to prove the rule with adjectives, adverbs, and numbers.

Evaluate Opposing Arguments
• Evaluate factual and legal weaknesses in opposing arguments.

Was cited in an interesting article on cyberspace

Enjoyed reading it (even though, in the European Union, the essence of an e-commerce contract is NOT the concept of characteristic performance as it can be found in the Rome Convention, but the solution which can be found in Art 3-4-6 Rome I regulation).

However, it still is a nice piece to read.

WCM
You can download the article here or by clicking on the picture.

A nice commentary on Hungary’s unconstitutional constitution available on the website of Princeton University

Opinion on the Fundamental Law of Hungary

Authors: 

Zoltán Fleck, Gábor Gadó, Gábor Halmai, Szabolcs Hegyi, Gábor
Juhász, János Kis, Zsolt Körtvélyesi, Balázs Majtényi, Gábor Attila
Tóth,

Edited by:

Professor Andrew Arato, New School for Social Research, New York,
Professor Gábor Halmai, Eötvös Loránd Tudományegyetem,
Budapest,
Professor János Kis, Central European University, Budapest

Pls find the material here.