How to gamble with criminal law: the Hungarian government lets foreign smugglers loose
The Hungarian government’s current attempt to reduce prison overcrowding is absurd. After boasting about its increasingly strict penal policy and communicating about the fight against migration, it has released hundreds of foreign human smugglers from prison, which is damaging and dangerous. We point out the main issues.
- The growing prison population and overcrowding remain a problem.
According to the latest Eurostat statistics for 2021, Hungary has the EU’s highest prison population per 100,000 inhabitants. The figures are not only high compared to the EU average, the prison population has recently reached a 33-year high. Prison overcrowding also reappeared: in December 2022, the average overcrowding was already 106%, and in eight institutions, the overcrowding rate had risen to over 110%. The Hungarian Helsinki Committee outlined several reasons for this in their publication.
2. The number of people detained for human smuggling has increased – but this is only one of the reasons why Hungary’s prisons are overcrowded.
According to data from the Ministry of Interior of Hungary, the number of crimes related to human smuggling increased from 90 to 1476 between 2019 and 2022. There have been 644 such cases in 2023 so far, and the incidence rate of human smuggling cases within all crimes also rose from 0.1% to 1.2%.
Most people arrested for human smuggling are foreigners, mainly from countries bordering Hungary (most typically Romania, Serbia, and Ukraine). The detention of foreigners is indeed a burden on the Hungarian prison system, but it could be solved if numerous other factors did not put pressure on it, such as the criminalisation of poverty. While the average annual number of prisoners was less than 15,000 in 2008, between 2017 and 2019 it was around 17,000-18,000 in a country where both crime and population have been falling steadily since 2000.
3. The increase in people smuggling is because of the destruction of the Hungarian asylum system.
The surge in the number of smugglers is linked to the dismantling of the Hungarian asylum system. Asylum applications cannot be lodged either at the border or in Hungary since May 2020. In this way, the government is pushing vulnerable refugees into the arms of organised crime.
The inhumanity of the Hungarian system does not reduce the number of people in need of protection. Pushing people back and dismantling the asylum system will result in more crime, not fewer refugees.
4. What is the Hungarian government’s solution to the problem?
On 27 April, the government, citing the state of danger due to the war in Ukraine, announced a decree that came into force the next day: foreign national detainees convicted of smuggling or preparing to smuggle human beings and expelled in the judgement (which is mandatory for all foreign smugglers) will be released. Formally to “reintegration detention”, but in practice, there is neither reintegration, nor detention involved in the cases of foreign detainees serving their sentence for smuggling. They are simply released and must leave the country on their own accord within 72 hours.
There has been no consultation either with local experts or, according to the feedback so far, with foreign states. In other words, no one is waiting to pick up the released smugglers, and it is unclear who and how will control them.
5. Why not simply release foreign human smugglers?
5.1. It jeopardises the morale of those involved in the Hungarian criminal justice system and makes their work more difficult
Many members of the criminal justice system work to investigate cases of human smuggling – police officers, prosecutors, courts, lawyers, interpreters, and prison officers. Not only is its cost enormous, but simply letting convicted human smugglers go also renders the work of criminal justice professionals meaningless. It jeopardises the morale of those involved in the justice system.
5.2 It undermines confidence in the justice system
One of the fundamental purposes of punishment is to discourage re-offending, both by the individual offender and all members of society. This is clearly not the case with human smuggling in Hungary. Only smugglers of Hungarian nationality are serving their sentences – which may offend Hungarian detainees’ sense of justice. In addition, people in Hungary might feel less secure when convicts are being released without any preparation or supervision.
5.3 It puts refugees at risk
Human smuggling impacts refugees, who risk their lives to use the “services” of smugglers in the absence of other options. The fact that there are virtually no penalties for smuggling puts them at risk above everyone else, as it allows smugglers to pick up where they left off after a few weeks of absence. In addition, the fact that most of the convicted smugglers are nationals of neighbouring countries could easily mean that the simple reorganisation of the smuggling network’s activities can keep them on the other side of the border, meaning that there is, in fact, nothing to stop them from re-committing crimes at the expense of vulnerable people.
5.4 Hungary’s relations with foreign states continue to deteriorate
Formally, released detainees are placed in a form of early release “reintegration detention”, enforced in another state. It is unclear from the decree how the states are informed of this, their role in the execution, or how and who controls it. Most likely, in no way: the Hungarian government is not interested in what happens to the released smugglers.
And this could have negative consequences for all Hungarian residents. The Schengen Regulation allows EU Member States bordering Hungary to impose stricter border controls on the grounds of a threat to public policy or internal security – as the Austrian Interior Ministry has just done so.