Requested by: Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights

Recommended Measures:
Article 353A on facilitating illegal migration as examined in the present opinion infringes upon the right to freedom of association and expression and should be repealed.

Measures taken: The "Stop Soros" draft legislative package, including Article 353 A of the Criminal Code on facilitating illegal migration, was adopted by the Parliament on 20 June 2018 without awaiting the adoption of the Opinion by the Venice Commission on June 22nd. The Hungarian Constitutional Court examined on 28 February 2019 Article 353A of the Criminal Code. In its judgment, the Constitutional Court found that the challenged provision was compatible with the Constitution, as it was a necessary response to the challenges to the border protection presented by the influx of migrants. However, the judgment mitigates the effects of the provision by giving a restrictive interpretation of it. According to the Constitutional Court: - The crime of facilitating illegal migration can only be committed intentionally and should be directly related to the materialization of illegal migration. - Criminal responsibility can only be engaged for supporting asylum applications if the perpetrator was aware of the fact that she/he was providing assistance to a person who does not meet the definition of a refugee and thus not eligible for protection. - The participation in public debate on and dissemination of information about immigration is not prohibited. - It was equally pointed out that civil society organizations have the right to pursue activities in order to defend human rights which also extends to providing assistance to asylum-seekers. - The Constitutional Court also stated that the criminalization of charitable activities in support of vulnerable people would be contrary to the Fundamental Law.