Venice - An opinion adopted on Friday 22.06.2018 by the Venice Commission criticises a key provision on illegal migration of the so-called “Stop Soros” legislation that the Hungarian Parliament adopted this week.
The new provision – Article 353A of the Criminal Code – introduces the offence of “facilitating irregular migration”. EU directives from 2002 define and strengthen the penal framework to prevent facilitation of unauthorised entry, transit and residence. The Commission acknowledges that many European countries criminalise assistance to entry, stay or transit of irregular migrants against financial gain. Such a criminal offence is not necessarily contrary to international human rights standards – and may be considered to pursue the legitimate aim of preventing disorder or crime under Article 11 (freedom of assembly) of the European Convention on Human Rights (ECHR).
But the Hungarian provision goes far beyond what is allowed under Article 11, as it unfairly criminalises organisational activities not directly related to the materialisation of illegal migration, including “preparing or distributing informational materials” or “initiating asylum requests for migrants.” Criminalising such activities disrupts assistance to victims by NGOs, disproportionally restricting their rights as guaranteed under Article 11, and under international law. Furthermore, criminalising advocacy and campaigning activities – under the new provision – constitutes illegitimate interference with freedom of expression guaranteed under Article 10.
Requested by the Legal Affairs and Human Rights Committee of the Council of Europe’s Parliamentary Assembly – and based on a visit to Hungary by a Venice Commission delegation – the opinion was prepared jointly with legal experts from the OSCE/ODIHR. The request is only limited to the provisions of the “Stop Soros” package that affect NGOs’ activities in Europe. As a consequence, the opinion does not address other provisions that concern refugees more directly, including draft constitutional amendments. The opinion should not be seen as approving these amendments.
The opinion compares Hungarian legislation with other, similar laws in European countries that criminalise the facilitation of illegal immigration. While laws in other countries include exemptions for humanitarian assistance, no such exemption exists under the Hungarian law, which would infringe international standards, the legal experts say. Persons or NGOs working under a moral imperative to support individual cases, for example, or provide aid on the Hungarian border, risk prosecution – even if they act in good faith in line with international law for supporting asylum seekers or other forms of legal migrants, including cases of human trafficking victims.
Furthermore, sanctions under the new law for the too-widely defined criminal activities are disproportionate, as they include up to one year of imprisonment. Indeed, the conviction of even one member of an NGO could lead to sanctions and even dissolution of the entire NGO, leading again to a violation of Article 11.
Although the initial “Stop Soros” draft legislative package submitted in February this year included public consultation, the government did not provide for any meaningful consultation before the new draft package was submitted to Parliament on 29 May and voted on this week. The Commission stresses that conducting public consultation with civil society organisations prior to the adoption of legislation that directly concerns them constitutes good practice that European countries should follow in their domestic legislative process.
The Venice Commission and the OSCE/ODIHR regret that the law was voted two days before this opinion was adopted.
They concluded as follows:
Article 353A lacks the requisite precision and does not meet the foreseeability criterion as understood in the European Court of Human Rights case law. As it criminalises the initiation of an asylum procedure or asserting other legal rights on behalf of asylum seekers, it entails a risk of criminal prosecution for individuals and organisations providing lawful assistance to migrants. Moreover, a humanitarian exception clause is not provided and the provision lists open options as to the targeted organisational activities, while advocacy and campaigning activities, including informing individuals of their rights and legal protections, are not excluded from its scope. It should be reiterated that only intentionally encouraging migrants to circumvent the law should give rise to criminal prosecution. In addition, the provision risks jeopardising NGO funding, as it does not clearly differentiate between “financial gain” as the strict counterpart of an illegal activity and “any income” generated in ordinary NGO activities. The individual criminal liability of an NGO member and the liability of the legal entity are not differentiated either, and the legal consequence of criminal conviction of an NGO member under Article 353A could be that the NGO as such could be dissolved on the basis of Act CIV of 2001, which appears to be disproportionate. Lastly, the provision was not submitted to a meaningful public consultation, with adequate opportunity for engagement before its adoption. For these reasons, the provision may chill protected organisational and expressive activity and infringes upon the right to freedom of association and expression. It should berepealed.