The Triangular relationship between European Arrest Warrant, Charter of Fundamental Rights and Hungarian law

Abstract

As of 7 July 2021, § 1, § 3, § 9, § 10 and § 11 of the LXXIX Act of 2021 entered into force. It prohibits both natural and legal persons of sharing any content with minors “that propagates or portrays […] divergence from self-identity corresponding to sex at birth, sex change or homosexuality”. Thereby criminalizing certain acts under LXXIX Act of 2021, as defined under § 189 and § 208 of the Hungarian Criminal Code. Punishment of which may amount up to five years of imprisonment. Despite scientific evidence to the contrary, Hungary justified its action by referring to the Constitution, aiming to protect children’s physical, mental and moral development. Consequently, numerous actors raised their concerns regarding the possible legal implications in particular violation of article 11 CFR. It became clear that, LXXIX Act of 2021 does violate article 11 of the CFR including freedom of expression of persons limited by the Act and children’s freedom to receive information. As freedom of expression is not an absolute right, possibility of derogation was assessed. However, Hungary did not meet the legal grounds for derogation, as it did not meet the criteria– provided for by law, proportionality (legitimate aim, suitability, necessity) and preservation of the essence of the right – under 52 CFR. After such violation was established, the issue of EAW. What if Hungary issues a EAW for a person prosecuted based on LXXIX Act of 2021? Would mutual recognition oblige the other MS to execute the EAW, or would the MS’s obligation to protect FR (freedom of expression) suspend the obligation to execute the EAW? First, it was established that under article 2 of the FD EAW, a EAW may be issued to demand the surrender of a person being prosecuted under LXXIX Act of 2021, as the maximum sentence attached to it is five years, which exceeds the one year minimum. Followingly, an assessment was made, whether the FR exception would be extended to article 11 CFR in relation to LXXIX Act of 2021. It became clear that despite the principle of mutual trust and mutual recognition under article 1 (2) of the FD EAW, protection of FR exception may be extended to article 11 in relation to LXXIX Act of 2021, as it perfectly fits with the past cases of the CJEU and within the argumentations, as it is easily interchangeable with the other FR articles, especially the LM and X & Y cases concerning non-absolute rights. As per the aforementioned arguments, violation of article 11 of the Charter of Fundamental Rights of the European Union by § 1, § 3, § 9, § 10 and § 11 of the LXXIX Act of 2021 can indeed serve as a legal basis not to execute a EAW issued for the purpose of prosecuting a person under LXXIX Act of 2021.