Liberty Versus Security Under Illiberal Constitutionalism: The Legality of Criminalising Humanitarian Assistance in Hungary and Greece

Abstract

With the end of the Cold War and the apparent triumph of the liberal democratic order, the “end of history” had been famously proclaimed. Notwithstanding this definitive prognosis, the past fifteen years have shown a marked regression in the quality of democracy, specifically its feature of liberal constitutionalism and associated checks and balances on executive power. This trend is especially worrying, given its occurrence within the normative context of the European Union (EU), which has built its brand on an adherence to liberal democracy and the respect for human rights. Accordingly, substantive liberal democratic features have been diluted to a significant extent under the guise of constitutional form – a phenomenon dubbed illiberal constitutionalism – while the EU has not been able to enforce norm compliance. In this context, constitutional guarantees to safeguard civil society’s operational space have been commonly infringed upon, resulting in the increased interference of the state by means of imposing administrative difficulties, limiting access to resources, and, in a most recent trend, criminalising certain civil society activities.

The criminalisation of humanitarian assistance, which is one of the gravest restrictions of civic space by means of the criminal law, has notably occurred in the context of the securitisation of immigration acting as a response to the 2015 migration crisis. As a result, the balance between security and liberty has been markedly skewed in favour of the former. As previous studies of illiberal constitutionalism have pointed out the tools used by illiberal governments to restrict liberal guarantees of fundamental rights, the present dissertation aims to add to this field by assessing the legal limits of this phenomenon. Through the lens of Human Rights Law as a measure of permissible practices, the following dissertation thus aims to investigate to what extent does the criminalisation of humanitarian assistance legally restrict constitutional guarantees of fundamental rights?