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Advocate general: Hungary’s criminalisation of assistance to asylum-seekers violates EU law

Today, Advocate General Rantos delivered his opinion in an infringement procedure initiated by the European Commission against Hungary in July 2018. The Advocate General held that the criminalisation of assistance to asylum-seekers violates the law of the European Union. While the judges of the Court are not bound by the opinion, it is an important step towards abolishing the infamous “Stop Soros” Act passed by the Hungarian Parliament in June 2018.

Following their victory at the general election of 2018, the ruling Fidesz party made good on their promise to intimidate those who work to defend the fundamental rights of asylum seekers. In the lead-up to the election, the Prime Minister announced in a speech that they will seek to “take revenge in ethical, political and legal terms” against the “agents of George Soros”, that is, independent non-governmental organisations. The adoption of the impugned legislation was one of the first such steps. It also fitted in the government’s already ongoing crackdown on civil society.

The  amendment to the Criminal Code  made it punishable by up to one year in prison to provide legal assistance to asylum-seekers and third country nationals staying in Hungary illegally. The absurd language of the law is vague and fails to adequately specify what actions merit criminal responsibility, and is thus a perfect tool in the hands of the Government to intimidate members of civil society, such as the Hungarian Helsinki Committee (HHC). The changes further restricted the right to seek asylum, by introducing a new inadmissibility ground to the Asylum Act, which had already been found to be in violation of EU law by the Court in a case brought before it by the HHC.

The Commission swiftly initiated an infringement procedure against Hungary over the “Stop Soros” Act in July 2018, and after Hungary had failed to provide any measures to bring its legislation in line with  EU law, the Commission referred Hungary to the Court in December 2019.

Today, Advocate General Rantos advised to the Court to rule that

  1. Threatening civil society actors with prison for providing assistance for asylum-seekers is against EU law. Access to information and quality legal representation should not be arbitrarily restricted, in fact, they should be guaranteed under the asylum acquis.
  2. The new inadmissibility ground is an arbitrary addition to the permissible grounds, which is set forth exclusively in the asylum acquis.

The HHC welcomes the Advocate General’s opinion. After the adoption of these changes in 2018, we promised to continue to give protection and assistance to all of our clients, civil society organisations and human rights defenders in Hungary, regardless of the threats. We hope that the Court’s opinion will shortly follow, so that we may continue to work for the rights of asylum-seekers without the threat of being punished for providing legal assistance to those in need.

We believe that everybody’s right to a fair and just procedure should be taken for granted in a State governed by the rule of law, and those providing it should not be threatened with the possibility of prosecution. Such measures only serve to deter human rights defenders from carrying out their much needed work.

We are proud that we have achieved several legal victories, such as the closure of the transit zones last May, despite the looming threat of a criminal procedure.

We hope that the Court’s ruling will bring a swift end to this inherently flawed piece of legislation.

The Advocate General’s opinion is not binding on the Court, but it is usually decisively taken into account.

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Hungarian Helsinki Committee