Court rejects petition against ‘Stop Soros’ - with provisos

The fence at Hungaryʼs southern border, erected in 2015 to stem the flow of refugees (photo: Wikimedia Commons/Délmagyarország/Andrea Schmidt).

In June 2018, Hungarian lawmakers approved a package of laws, dubbed “Stop Soros,” referring to a plan for managing the migrant crisis which it alleged was earlier outlined by Hungarian-born investor and philanthropist George Soros. The package particularly targets Hungarian NGOs that support the integration of refugees.

The Constitutional Court said in a statement issued last Thursday that the prohibition introduced into the penal code on activities judged to be promoting illegal migration is not against the Constitution. However, while the court declared the law constitutional, it defended affected civil society organizations, saying that the law cannot be applied to activities “aimed at providing humanitarian treatment or reducing the suffering of the needy,” noted Hungarian state news agency MTI.

Providing humanitarian aid is outside the scope of the ban, the court said, adding that it should not apply to “generous acts to meet a constitutional obligation to help the poor and vulnerable.”

The courtʼs procedure was requested by Amnesty International Hungary, which argued that the new stipulations are unclear and violate the freedom of expression, running counter to the Constitution.

According to the court, illegal migration can only be promoted “deliberately and purposefully” in cases when the perpetrator is aware that they are acting on behalf of persons who are not being directly persecuted. The perpetrator is guilty if they assist an entrant in obtaining a title for residency when they are aware that the person concerned is staying illegally in the country, the ruling said.  

The court added that the ban only applies to “expressions aimed at enticing others to unlawful behaviour,” rather than to expressing oneʼs opinion on migration, such as in political discussions.

“The risk to be avoided is not in the communication, but activities that communication intends to elicit,” MTI cited the court as ruling.

Strong criticism

The Stop Soros package was met with strong criticism from both human rights organizations and international institutions following its adoption last summer.

An opinion issued last June by the Council of Europe’s Venice Commission, the advisory body composed of independent experts in the field of constitutional law, said that the law unfairly criminalizes activities not directly related to the facilitation of illegal migration, adding that the sanctions specified under the law apply to criminal activities that are too broadly defined and disproportionate.

In July, the European Commission (EC) launched an infringement procedure against Hungary due to concerns about the legislation, arguing that the provisions examined infringe upon the right to freedom of association and expression and should be repealed. Most recently this January, the EC stepped up the infringement procedure, issuing its “reasoned opinion” as the second stage of the process.

In summary, the EC said that the legislation in question, combined with existing asylum provisions, has the effect of criminalizing any assistance offered by any person on behalf of organizations to people wishing to apply for asylum or for a residence permit in Hungary.

The Hungarian authorities were given two months to respond to the ECʼs concerns. Otherwise, the EC may move to the third and final stage of the process, referring the case to the Court of Justice of the European Union (CJEU).