The case concerned the determination of a Palestinian applicant’s statelessness, focusing on whether Palestine can be considered a State in this context and whether a travel document issued by the Palestinian National Authority represents proof of Palestinian nationality. The Hungarian Supreme Court (Kúria) ruled in 2019 that neither the administrative authority in charge of statelessness determination nor the courts involved in the appeal procedure are entitled to assess the statehood of an entity; this task corresponds uniquely to the Ministry of Foreign Affairs and Trade. It also confirmed that holding a travel document does not always prove nationality.
International law:
- 1933 Montevideo Convention on the Rights and Duties of States, Article 1
- 1954 Convention relating to the Status of Stateless Persons, Article 1 (1)
Domestic law:
- Act II of 2007 on the entry and stay of third-country nationals, Section 79 (1) – Note that this Act is no longer in force. Since 1 January 2024, the same provision can be found in Act XC of 2023 on the general rules concerning the entry and stay of third-country nationals, Section 246 (1).
- Government Decree 328/2007 (XII.11.) on the documents issued to third-country nationals recognised for the purpose of entry into Hungary
The applicant arrived in Hungary in 2013. After various rejected asylum claims, he applied for statelessness status in Hungary on 17 March 2017. He attached to his claim his travel document issued by the Palestinian National Authority and an official document issued by the Embassy of the State of Palestine to Hungary that states that the applicant and his parents are Palestinian nationals. The competent administrative authority (the then Immigration and Asylum Office) rejected the application on 27 April 2017, arguing that the applicant has Palestinian nationality, proven by the statement of the Embassy of the State of Palestine to Hungary and his Palestinian travel document recognised as valid by Hungary (alongside with the rest of the EU).
The applicant appealed the decision. The appeal was dealt with by the Budapest Administrative and Labour Court (Fővárosi Közigazgatási és Munkaügyi Bíróság) at first instance and the Budapest Regional Court (Fővárosi Törvényszék) at second instance. The appeal procedure focused on the only fact contested between the parties, namely whether Palestine can be considered a state from the viewpoint of Article 1 of the 1954 Statelessness Convention, discussing, in particular, the applicability of the 1933 Montevideo Convention on the Rights and Duties of States, the role of Palestine’s 2012 designation as a non-member observer state in the UN General Assembly and the recognition of Palestine as a state by Hungary.
The second-instance court rejected the appeal. It pointed out in the judgement that it has become its own task to examine ‘questions related to statehood’, while it must refrain from recognising or debating the statehood of any entity through a declaratory statement. Instead, it considered in this respect Palestine’s recognition by the UN, Hungary, and other EU members’ relations with the State of Palestine and the recognition of the validity of Palestinian travel documents. It concluded that the documentary evidence at the defendant’s disposal ‘unequivocally proves a nationality’, and that in light of the applicant’s recognition as a Palestinian national by the Embassy of the State of Palestine to Hungary and his valid travel document issued by the Palestinian National Authority, he failed to prove his statelessness. Importantly, though, the second-instance court rectified the first-instance court’s conclusion regarding the 1933 Montevideo Convention on the Rights and Duties of States. It agreed with the first-instance court that, in light of Article Q (3) of the Fundamental Law, such a treaty could only become a part of Hungarian law through being promulgated with a Hungarian legal act (Hungary being a dualist system). Nonetheless, it concluded that ‘[o]n the other hand, the customary law underlying the Montevideo Convention, which constitutes the generally recognised rules of international law, is part of Hungarian law without implementation’. This conclusion, however, did not alter the court’s overall negative assessment regarding the applicant’s statelessness.
The applicant submitted an appeal against the second-instance judgment to the Supreme Court (Kúria). He emphasised that Annex 2 of the Government Decree 328/2007 (XII.11.) on the documents issued to third-country nationals recognised for the purpose of entry in Hungary specifically mentions the travel documents issued by the Palestinian National Authority under ‘Other travel documents recognised by Hungary’. He argued that if Hungary recognised the independent statehood of the Palestinian National Authority, it would not be necessary to mention the travel documents it issues in Annex 2, as they would automatically fall under the general provision (Section 2 (b) of the Government Decree). He added that following this logic, all other travel documents in Annex 2, such as the one issued by Egypt to Palestinian refugees or India to Tibetan refugees, would be considered proof of nationality, and Hungary would erroneously consider the holders of these documents as Egyptian and Indian nationals (respectively). He critically noted that, despite recognising its relevance, the second-instance court did not examine the applicability of the 1933 Montevideo Convention criteria of statehood to the present case. He emphasised that the State of Palestine lacks legislation that would clearly establish the criteria for the acquisition of Palestinian nationality, for which the travel document issued by the Palestinian National Authority does not prove Palestinian nationality. He argued, furthermore, that neither the travel document nor the applicant’s birth certificate includes any data that would allow for any inference regarding the recognition of the Palestinian National Authority as a State.
The defendant emphasised that the statehood of Palestine was not a subject matter of the present procedure. It maintained that the applicant failed to prove his statelessness. It insisted that the United Nations gave the State of Palestine – as a state – non-member observer status and that the 1933 Montevideo Convention is not part of Hungarian law.
The Supreme Court (Kúria) granted the appeal. It ruled that ‘the question of the recognition of a State as a separate state entity is cannot be the court’s task, the second-instance court erred in finding that this question had to be addressed by the court based on the applicant's arguments, examining the recognition by the UN, the relationship of the Hungarian State with the State of Palestine (…)’ and that ‘(…) it is the task of the Minister of Foreign Affairs and Trade to adopt a position on whether a state can recognised as such’. It pointed out that ‘(...) in 1988, the Ministry of Foreign Affairs of the Hungarian People’s Republic recognised the right of the State of Palestine to declare itself a state, and the Department of International Law of the Ministry of Foreign Affairs and Trade confirmed this in September 2017, indicating that the travel document issued by the Palestinian National Authority is recognised by Hungary as valid, but Hungary has not politically recognised the State of Palestine’. It concluded that ‘the statehood of Palestine cannot be inferred from the documents submitted’. (all quotes from paragraph 16)
Consequently, the Supreme Court held that statelessness determination in the present case requires acquiring a statement by the Minister of Foreign Affairs and Trade, since ‘[t]he detailed exploration of what rights the applicant (or persons in a similar situation) is entitled to exercise under Palestinian (or even Israeli) law is a foreign policy issue which neither the authority nor the court is entitled to explore and clarify’, and, thus, ‘[i]t is for the Minister to provide information on this in a specific and detailed response’. The Supreme Court also confirmed that ‘a travel document is not always suited to prove nationality’. (all quotes from paragraph 17)
In light of the above, the Supreme Court also rejected the relevance of the 1933 Montevideo Convention for the defendant’s or the courts’ proceedings (therefore, not in general), due to referring the establishment of statehood entirely to the competence of the Minister of Foreign Affairs and Trade.
The Supreme Court quashed the defendant’s decision and ordered a new procedure. In the re-opened procedure, the competent administrative authority (National Directorate-General for Alien Policing, NDGAP) obtained a statement from the Minister of Foreign Affairs and Trade. The Minister, in his response no. KKM/12827-3/2020Adm of 25 March 2020 provided the following response (as quoted on page 13 of the NDGAP’s decision, verbatim translation):
‘The Palestinian Authority (PA) was established with the 1993 Oslo Accords; it exercises limited public authority power in areas determined by the Oslo Accords and subsequent conventions. The PA possesses state attributes, and its governance infrastructure has already been created, nonetheless, its sovereignty over the territory it controls is questionable. The PA refers to the population of Palestine, moreover, in some of its declarations to Palestinian nationals, the legal basis of which it strives to prove by ensuring the right to vote and issuing passports. The relevant international agreements and conventions do not regulate the issue of nationality; no nationality act has entered into force in the 25 years passed since the establishment of the PA. Palestinian identity cards are issued based on the Israel-controlled population register, which distributes identity documents and identity numbers in accordance with former Jordanian, British, Egyptian legal acts and Israeli military decrees. From an Israeli point of view, persons holding a Palestinian identity document are inhabitants of Judea and Samaria or Gaza, controlled by military administration, but not holders of Palestinian nationality in the traditional meaning of the word. EU member states, including Hungary, recognise the passport issued by the PA as a passport, which is a travel document issued under Israeli control. It is noteworthy that in certain cases, the PA issues (without Israel’s agreement) passports to Palestinians not living under not living in the PA territory, however, these passports do not entitle their holders to enter Palestine and the identity numbers they include do not cover a holder of Palestinian identity document recognised by Israel. (…) According to legal practice, those persons are entitled to “Palestinian nationality” who live in PA-controlled areas and hold a Palestinian identity document issued with the permission of Israel; and, in lack of Israeli opposition based on security concerns, they can acquire a Palestinian travel document/passport and, thus, can travel abroad and return home and, consequently, a direct connection can be established. Both the European Union and Hungary recognise the travel document as valid. It may occur that a person holds a Palestinian passport, nevertheless, they do not have the possibility to “return home”, because Israel, which exercises border control, does not recognise the travel document as valid, based on which the person can be considered “stateless”.’
The NDGAP confirmed that the applicant substantiated his statelessness, considering his statements regarding his place of birth, previous places of residence and family members, and, in particular, the declaration of the Ministry of Foreign Affairs and Trade. Nevertheless, the administrative authority rejected the applicant’s claim, based on the expert opinions issued by the Constitution Protection Office (Alkotmányvédelmi Hivatal) and the Counter Terrorism Centre (Terrorelhárítási Központ), according to which the applicant represents a threat to national security. The proceeding courts upheld the rejection in the appeal procedure, and the decision became final.
The judgment of the Supreme Court (Kúria) is in force, therefore, the interpretative principles included in the judgment (see below) can be considered final and decided, with no further appeal. At the same time, the Court quashed the decisions of the administrative authority and the lower-instance courts and ordered the administrative authority to re-open the case and conduct a new statelessness determination procedure.