Kersty McCourt and Natacha Kazatchkine, Euronews, June 6, 2018
The day-to-day work of lawyers and NGOs has today become a criminal offence within a member state of the European Union. The Hungarian Parliament passed a new law that criminalises individuals and organisations that provide advice and information to migrants.
The legislation further intensifies a relentless campaign by the Hungarian government against independent civil society voices. Most recently, officials of the ruling Fidesz-KDNP parties posted red stickers with the words “pro-migration organisation” on the front doors of human rights organisations, including Amnesty International Hungary’s office in Budapest. This action was dangerously reminiscent of the campaign against Jewish establishments of the 1930s.
According to the government, the new law’s proclaimed objective is to prevent “Hungary from becoming a migrant country” — although Hungary has one of the smallest migrant populations of any EU member state.
But politics, not immigration, is ultimately at the heart of this legislative move. Fidesz just won an election by using its control of the media to whip up public fears over the supposed twin threat to the future of the Hungarian people: migration and George Soros, the founder and chairman of the Open Society Foundations, which has funded civil society groups in Hungary for more than three decades.
For the government, the new anti-migrant legislation delivers on their election promises to “save Hungary” from this supposedly existential threat. Unfortunately, by attacking a problem that is not based in reality, the ultimate loser will be the civil liberties and human rights of the Hungarian people.
The new law takes a two-pronged approach. It criminalises the work of lawyers and NGOs who assist migrants, and makes it more or less impossible for people to seek asylum. The new criminal offence of “supporting illegal immigration” criminalises:
- any “organisational activities” to assist asylum-seekers to exercise their legal rights to submit an asylum procedure or to obtain a residence permit;
- a person who organises border monitoring/observation; and
- anyone who organises or provides financial means for the above activities.
It is clear that the law is not aimed at individuals who knowingly assist fraudulent applications — which is already a crime. Instead, it takes aim at acts that are legal, and even required, under international law.
The new law clearly breaches the laws of the European Union. The Open Society Foundations and other civil society organisations are calling on the EU institutions to respond — including through legal action against Hungary and the initiation of proceedings under article 7(1) to suspend Hungary’s voting rights. The new legislation is also at odds with international human rights law, and Hungary’s commitments under the 1951 refugee convention.
The government knows well what will be the impact of this on the work of civil society groups. Just the threat of criminal sanctions or a burdensome investigation sends a chilling signal to NGOs — even before implementation of the law.
When the law comes into force on 1 July 2018, police and prosecutors will immediately have the power to arrest, charge and ban individuals from Hungary’s border zones. If convicted, an individual could be sentenced to up to one year in prison. An association or foundation could be fined and a court could bar it from conducting certain activities.
In a Kafkaesque twist, it will be illegal for a migration lawyer to help someone to apply for asylum unless that person’s asylum claim is justified — which can’t be known until they apply.
The law also makes changes to Hungary’s asylum laws and seeks to deny entry to asylum seekers from unsafe third countries. Under certain conditions, EU law permits member states to refuse an asylum claim as inadmissible if the applicant is from a safe third country. It prohibits, however, such a rule for people who have fled unsafe third countries – which is what the new law in Hungary attempts to do. A further amendment to the tax law was introduced in the last days – imposing a 25% tax on “immigration activities” – bringing back a provision that was dropped from an earlier draft of the new law.
The law may violate numerous international and regional laws on asylum, free expression, free association and free movement. When the government can no longer whip up fear and resentment of migrants and refugees to win votes, where will it look next for an enemy? In a healthy democracy, civil society groups are able to speak out for the rights of all citizens. When civil society is being pushed towards silence, it is time to worry about what happens to the freedoms that it is defending.
Kersty McCourt is a senior advocacy officer at the Open Society Justice Initiative and Natacha Kazatchkine is head of the EU internal policy team for the Open Society European Policy Institute.