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Hungary's Stop Soros Act given green light by Constitutional Court

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The Hungarian Constitutional Court announced on Thursday that the Stop Soros Act is not unconstitutional. The decision is somewhat equivocal though, as the new sections of the Penal Code may be "in line with the provisions of the Hungarian Fundamental  Law," however, it cannot be applied if the "aim of the [sanctioned] act is only to diminish the suffering of those in need, to treat them humanely." The Constitutional Court said that the lack of judicial practice of the new law makes it impossible to determine if its text is precise and unambiguous. 

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The Stop Soros Act is the name of the legislative package passed in 2018 that amongst other measures such as tax regulations disadvantageous to humanitarian NGOs, amended the Hungarian Penal Code introducing the new offence of aiding illegal immigration. 

The amendment sanctions acts of organising aimed at:

  • Making it possible to start the asylum request procedure for people who are not subject to persecution based on their race, national or religious or social identity, or their fear of such persecution is unfounded (though the aim of the procedure is to officially determine just that), or
  • Helping someone who entered Hungary illegally acquire the legal grounds for residence.

The law punishes this with a maximum of 90 days in confinement, but providing the material means necessary to commit the offence, or committing the offence on a regular basis or for financial gains, or within 8 kilometres of the border, or in a way that helps multiple people can result in a year in jail. The law says that one already "organises" if one provides surveillance service at the border, or creates or distributes informational materials, or builds and maintains a network.

The Constitutional Court stated that these sections cannot be applied to purely altruistic acts. The constitutional complaint the Stop Soros Act came from Amnesty International Hungary, as they believed the new law violated freedom of expression and its text fails to abide by the basic punitive legal principles of precision and unambiguity.

The Constitutional Court found Amnesty International's complaint unfounded.

The judicial body said that "as of yet, the new criminal offence still lacks the judicial practice required to determine if the definitions contained therein are uninterpretable."

According to the Constitutional Court,

  • The new offence can only be committed knowingly and requires specific intent, meaning that the perpetrator must be aware that the act is done to benefit a person who is not subject to persecution, or the person's fear of persecution has no grounds.
  • The perpetrator must be aware that the person he or she is helping to acquire grounds for residence entered the country illegally.
  • This awareness must be proven by the prosecution.
  • The law does not violate freedom of expression, as it only prohibits acts of expression that is aimed at inciting others to commit illegal acts, it does not extend to expressions of opinions about migration and it does not hinder the public discourse.
  • The danger that the legislation is intended to avert is not the act of communication itself, but the acts incited by that act of communication.
  • The definition of the offence does not make a reference to the prohibition of humanitarian aid, and if the text of the legislation is given the reasonable interpretation prescribed by the Fundamental Law, such a conclusion cannot be reached by the Court.
  • Helping those in need is an obligation prescribed by the Fundamental Law, and it would be irreconcilable with that obligation to threaten the purely altruistic acts, that have no relation to the sanctioned intention, with punishment.

Therefore the Constitutional Court rejected the complaint but deemed the official reinforcement of its constitutionally sound interpretation necessary.

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