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Hungary: Draft law makes aiding migrants a crime

A Hungarian soldier patrols at the Hungarian border fence at the Tompa border station transit zone on 6 April 2017
A Hungarian soldier patrols at the Hungarian border fence at the Tompa border station transit zone on 6 April 2017

ATTILA KISBENEDEK/AFP/Getty Images

This statement was originally published on hrw.org on 31 May 2018.

A revised draft bill published by the Hungarian government on May 29, 2018, would criminalize efforts to help migrants and asylum seekers and curb their access to protection, Human Rights Watch said today.

The bill the government presented to parliament proposes amending nine existing laws related to asylum, the national border, and the police. It creates a new criminal offense in the Criminal Code of "enabling illegal immigration," which is defined to include helping asylum seekers who are "not eligible for protection," as well as to include border monitoring, producing and disseminating information, or "network building." If committed "regularly," or with the aim of "help[ing] several persons," the offense would be considered aggravated. Anyone convicted would face a sentence of up to a year in prison.

"This bill is the latest salvo in the Hungarian government's war on refugees and those who help them," said Benjamin Ward, deputy Europe and Central Asia director at Human Rights Watch. "Hungary's government should withdraw this draft bill, honor the country's duty to refugees, and end its odious campaign against rights defenders."

The draft law would curb the right to asylum by introducing new admissibility criteria that would bar most asylum seekers from getting protection in Hungary. It would allow the authorities to declare asylum applications from people arriving through a country other than their own inadmissible, unless the person could show that they were facing a serious risk of abuse or that the other country did not provide "adequate levels of protection."

The burden of proof would be on the applicant, who would be unlikely to be able to substantiate such a claim without necessary access to information and support, and within the bill's tight three-day deadline. These new admissibility criteria could pave the way for a zero-protection system even for applicants fleeing mass human rights violations and generalized violence in Syria, Somalia, or Afghanistan, Human Rights Watch said.

Some of the problematic elements in an earlier version of the bill published in February have been removed from the new version, including describing assistance to asylum seekers and migrants as a threat to national security. Earlier versions also gave the interior minister wide discretion to select organizations the minister favored to work with migrants. But by criminalizing working with asylum seekers and migrants, the new version is arguably more problematic, Human Rights Watch said.

The Hungarian government has cracked down on independent groups reporting on human rights issues, including the abuses migrants and asylum seekers face at Hungary's borders. There are serious concerns that the criminal offense is being introduced as another tool to silence these groups and to prevent victims of human rights violations from being able to reach out to anyone to document the abuses or help them seek redress. People working for the few groups still able to provide essential services, such as legal counselling or providing information about migrants' rights and responsibilities, could face criminal prosecution.

While the rationale of the new law is that these measures are necessary to fight "illegal immigration," the bill punishes activities that are legitimate and necessary, especially in a country whose government is systematically dismantling its asylum system. Hungary's current migration and asylum laws and policies already breach European Union law and international refugee and human rights law.

The draft bill would also give the police the authority to bar anyone suspected of "enabling illegal immigration" from the border areas. This could lead to effectively banning anyone from the areas where migrants and asylum seekers are subjected to abuse at the hands of Hungarian authorities, including Human Rights Watch researchers, and staff from international agencies. The United Nations refugee agency, UNHCR, has already called on the Hungarian government to withdraw the bill.

Simultaneously, the government has also submitted a proposal to amend the country's constitution, banning the "settlement of foreign populations" in the country without specific, individualized permission by a national authority. This measure is likely to result in Hungary's continuous veto against any relocation and resettlement schemes within the European Union.

The proposed Seventh Amendment to the Fundamental Law would also specify that people arriving to Hungary through a "safe third country" will not be eligible for refugee protection.

The constitutional amendment would also undermine the ability of the judiciary to review the new laws by specifying that judges should primarily use the legislator's official reasoning when interpreting the law. The provision would undermine meaningful constitutional review, Human Rights Watch said.

"Governments have a responsibility to secure their borders, but the true purpose of Hungary's proposed changes is to silence critics, remove its abuses against migrants from oversight and accountability, and evade the country's responsibility to refugees," Ward said. "The European Commission needs to activate Article 7 of the European Union treaty, which is designed to deal with governments that put the Union's values at risk."

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