An opinion adopted today by the Council of Europe’s Venice Commission criticises a key provision on illegal migration of the so-called “Stop Soros” legislation that the Hungarian Parliament adopted this week.
The new provision – Article 353A of the Criminal Code – introduces the offence of “facilitating irregular migration”. EU directives from 2002 define and strengthen the penal framework to prevent facilitation of unauthorised entry, transit and residence. The Venice Commission acknowledges that many European countries criminalise assistance to entry, stay or transit of irregular migrants against financial gain. Such a criminal offence is not necessarily contrary to international human rights standards – and may be considered to pursue the legitimate aim of preventing disorder or crime under Article 11 (freedom of assembly) of the European Convention on Human Rights (ECHR).
But the Hungarian provision goes far beyond what is allowed under Article 11, as it unfairly criminalises organisational activities not directly related to the materialisation of illegal migration, including “preparing or distributing informational materials” or “initiating asylum requests for migrants.” Criminalising such activities disrupts assistance to victims by NGOs, disproportionally restricting their rights as guaranteed under Article 11, and under international law. Furthermore, criminalising advocacy and campaigning activities – under the new provision – constitutes illegitimate interference with freedom of expression guaranteed under Article 10, according to the opinion.