NEW YORK—The Open Society Foundations strongly condemn the Hungarian parliament’s passage of a law that threatens to impose criminal penalties, including imprisonment, for lawyers and civil society groups offering support to refugees and migrants.
Open Society urges the European Commission to undertake immediate legal action against the government of Hungary over the new legislation, which violates EU laws, and calls on members of the European Parliament to hold the Hungarian government to account for having violated the EU’s founding principles.
The legislation, approved by the Hungarian parliament today, adds a specific offense to the Hungarian criminal code that claims to affect “supporting illegal immigration,” but defines it in a way that threatens prison sentences for entirely legitimate legal and humanitarian work.
“Migration is clearly being used by the Hungarian government as a political diversion,” said Patrick Gaspard, president of the Open Society Foundations. “The ultimate objective is to intimidate civil society and muzzle independent critics, including those who receive some of their funding from Open Society. We will continue to fund their important work at this difficult time, and do what we can to support Hungary’s courageous rights defenders.”
The new offense of “supporting illegal immigration” is included in an amendment to section 353/A (S353/A) of the Hungarian Criminal Code. The new provision:
- criminalizes any “organizational activities” to assist asylum seekers—already in Hungary or at Hungary’s border—to exercise their legal rights to submit an asylum procedure or to obtain a residence permit;
- provides that such offenses may be committed by a person directly assisting an individual migrant, but also by preparing or distributing informational materials or by creating or operating a network to carry out these activities;
- criminalizes a person who organizes border monitoring; and
- criminalizes anyone who provides financial means for the above activities.
James A. Goldston, executive director of the Open Society Justice Initiative, said: “It is clear that this legislation is not aimed at individuals who knowingly assist fraudulent activity—which is already a crime. Instead, it criminalizes conduct that is legal, and even required, under international law.”
The legislation was initially introduced as part of the government’s campaign against leading independent civil society groups in Hungary, whose activities include protecting the legal rights of refugees. These groups have also been outspoken critics of the Hungarian government’s efforts to extend its influence over the judiciary, media, and other sectors of Hungarian society.
The amendment is clearly aimed at the work of NGOs and lawyers who support migrants and refugees by advising and assisting third-country nationals in Hungary on their rights under Hungarian and international law. It would also apply to anyone assisting such third-country nationals, for example by providing interpretation, publishing leaflets, or funding the stated activities.
A legal analysis by lawyers at the Open Society Justice Initiative found that the new legislation breaches the following EU asylum laws:
- International Protection Procedures Directive 2013/32, which stipulates that asylum seekers have a right to communicate with any organization providing legal or other counseling advice, including at border crossing points and transit zones
- Reception Directive 2013/33, which provides for the rights to material assistance until an asylum claim is decided, including the right to information on asylum procedures and the right to contact groups providing legal assistance; they should also enjoy the right to free legal assistance and representation in asylum appeals, and the freedom to receive information and advice from organizations and persons other than the government
- International Protection Qualification Directive 2011/95, which provides for the right to a residence permit if the conditions for asylum or subsidiary protection are met
- Citizens Directive 2004/38, which requires that third-country national family members of EU citizens are issued with a residence permit
The amendment S353/A further violates rights that are enshrined in the EU Charter of Fundamental Rights, including the rights to freedom of expression and association, and the right to asylum.
On Tuesday, the Hungarian government presented a new bill to impose a 25 percent tax on groups that “support immigration,” defining this to include legal activities such as promoting positive aspects of migration.
The European Commission is already pursuing infringement proceedings at the Court of Justice of the European Union over legislation introduced last year as part of its anti-NGO campaign. The commission is also challenging a separate 2017 law targeting the Budapest-based Central European University, which was founded by George Soros, founder and chair of the Open Society Foundations.