EU Court: criminalising helping asylum-seekers breaches EU law

Today the Court of Justice of the European Union (CJEU) found that the 2018 ‘Stop Soros’ law breaches EU law, after the European Commission took Hungary to court. The CJEU made it clear: threatening people with imprisonment who assist asylum-seekers to claim asylum violates EU norms. The Hungarian Helsinki Committee (HHC), having helped over 1800 asylum-seekers since July 2018 under the threat of criminal sanctions, welcomed the judgment.

The Hungarian parliament passed the ‘Stop Soros’ law on 20 June 2018, on World Refugee Day. The law threatens those who help or give legal assistance to asylum-seekers, commission information leaflets for them, or conduct human rights border monitoring with one year in prison. The law also allows imposing criminal sanctions on entire organisations. The absurd language of Article 353/A of the Penal Code is vague and fails to adequately specify what actions lead to criminal responsibility, and is thus a perfect tool in the hands of the government to intimidate members of civil society. 

In the spring of 2018, three versions of this law were tabled by the government and each version was clearly aimed at the HHC — the only civil society organisation that has been providing free-of-charge legal assistance to refugees and asylum-seekers in Hungary with funding from UNHCR since 1998; the HHC  had also carried out border monitoring from 2006 till mid-2017 under an agreement concluded by the UN Refugee Agency, the Hungarian Police and the HHC. 

The law further restricted the right to seek asylum in Hungary by introducing a new inadmissibility ground to the Asylum Act — the CJEU had already found this to be against EU law in March 2020, in a case referred to it by a Hungarian judge where the HHC represented the asylum-seeking client.

Although in March 2019 the Hungarian Constitutional Court (CC) found that it would be unacceptable if those who selflessly assist asylum-seekers were penalised, the CC  failed to clarify what is allowed and what is forbidden under the ‘Stop Soros’ law. This also meant that the authorities were not prevented from taking arbitrary action against people and organisations that provide assistance to asylum seekers. The true safeguard against this arbitrariness would have been the repealing of the law, which the Venice Commission and OSCE/ODIHR recommended already in June 2018.

​In summer 2019, the HHC also turned to the European Court of Human Rights over the law, as it breaches the right to freedom of association and freedom of expression. 

The ‘Stop Soros Law’ served nothing but political aims and was intended to intimidate civil society with criminal sanctions, amid an already vile propaganda campaign targeting migrants and civil society organisations. Volunteers, well-intentioned citizens, lawyers and civil society organisations felt that their morally right actions were being persecuted in Hungary.

Today’s CJEU judgment states:

1) Threatening those who help refugees with prison is contrary to EU law which requires asylum-seekers to be able to contact and receive information and legal advice from NGOs. Due to their confusing wording, the rules of the Penal Code are also inapplicable.

2) As the CJEU had already ruled in March 2020 in a case concerning clients of the HHC, automatically rejecting applicants who have passed through Serbia is also in breach of EU law.

“We welcome the judgment. Since the law was passed, the Helsinki Committee has helped 1,800 asylum-seekers. From now on, we can again serve our clients without the threat of prison. We were not intimidated by the threat, and we achieved many of our important legal successes in the shadow of criminal persecution. For example, the Strasbourg and Luxembourg courts found that arbitrary detention in the border transit zones, and indiscriminate and often violent push-backs are against Hungary’s EU and human rights law obligations. Article 353/A needs to be repealed and not sabotage the implementation of this CJEU ruling, as it has done several times already, in breach of the rule of law”, said Márta Pardavi, Hungarian Helsinki Committee co-chair about today’s CJEU ruling. 

Background:

• HHC statement, Advocate general: Hungary’s criminalisation of assistance to asylum-seekers violates EU law, 25 February 2021;  
• HHC press release on the CC ruling, The Constitutional Court has failed to protect human right defenders, 19 March 2019;
• Venice Commission and OSCE/ODIHR,  Joint Opinion on the Provisions of the so-called “Stop Soros” draft Legislative Package which directly affect NGOs (in particular Draft Article 353A of the Criminal Code on Facilitating Illegal Migration), adopted by the Venice Commission at its 115th Plenary Session (Venice, 22-23 June 2018); 
• HHC statement, Hungarian Government marks World Refugee Day by passing law to jail helpers, 20 June 2018.