Hungary / Constitutional Court/IV/1565/2018.

Country

Hungary

Title

Hungary / Constitutional Court/IV/1565/2018.

View full Case

Year

2019

Decision/ruling/judgment date

Monday, February 25, 2019

Incident(s) concerned/related

Discrimination

Related Bias motivation

Migrant status

Groups affected

Refugees & asylum seekers

Court/Body type

National Court

Court/Body

Constitutional Court of Hungary

Key facts of the case

Amnesty International Hungary filed a constitutional complaint against the Stop Soros act, claiming that the law is vague, is not proportional, is against the freedom of speech and the right of association. The Hungarian Government adopted the “Stop Soros” legislative package in 2018. The Criminal Code was amended by a provision on facilitating illegal migration (353/A. §), which defines supporting illegal migration as any organisational activity to initiate asylum procedure for anyone who was not persecuted at home or in a country via which they have arrived in Hungary. Such an illegal offence can be punishable by up to 1 year of imprisonment if it is repeated or is done for financial gain.

Main reasoning/argumentation

Regarding the vagueness of the provision, the Court pointed out that there were no adequate grounds to conclude that the specific definitions were uninterpretable. Considering the restriction of freedom of expression, the Court noted that the provision does not impose any restriction on the content of public debates, dissemination of (supportive) ideas on migration. It only prohibits activities that persuade others to commit an unlawful act. The right of association is not prohibited, only those that aim a specific purpose and as this right is not unlimited, it can be restricted. The Court moreover added that the provision shall not be extended to acts that aim to help the vulnerable and poor.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The main issue of the case is vagueness of the law and the uncertainty of the criminal act. Amnesty International Hungary claimed that it is hardly possible for anyone working with asylum-seekers to know whether or not he/she was persecuted or if his/her case is well-founded or not. The Court declared that the law can only sanction those intentional actions when the perpetrator is aware that he/she is engaged in an organisational activity for a person who is not subject to persecution or whose fear is not well-founded. The duty is on the investigating authorities to prove that the perpetrator was aware of that.

Results (sanctions, outcome) and key consequences or implications of the case

The Court ruled that Section 353/A § on facilitating illegal migration is not unconstitutional, thus rejected Amnesty International Hungary’s constitutional complaint. It, however, established that the provision shall not be extended to altruistic conduct aiming to perform the obligation of helping the vulnerable and the poor.

Key quotation in original language and its unofficial translation into English with reference details

“A bűncselekmény elkövetéséhez … a célzat vonatkozásában azt és csak azt kell az elkövető tudatának átfognia, vagyis arról kell tudnia, hogy olyan személy érdekében folytat szervező tevékenységet, aki nincs az ún. öt ok valamelyike miatt üldözésnek kitéve … vagy a közvetlen üldözéstől való félelme nem megalapozott.”
“…with regard to the purpose, the offence shall be deemed to have been committed when the perpetrator is conscious of – i.e. knows that – being engaged in the organising activity in the interest of a person who is not subject to persecution due to the so called five causes … or whose fear of persecution is not well-founded.” (AZ ALKOTMÁNYBÍRÓSÁG 3/2019. (III. 7.) AB HATÁROZATA. 2019. 7. szám, pp.318-319)

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