ARTICLE 19 submitted an amicus brief to the European Court of Human Rights (the Court) in Amnesty International Hungary v. Hungary. The case concerns the compatibility of Article 353A of the Criminal Code of Hungary, entitled ‘Facilitating Illegal Migration’, with the rights to freedom of association and expression. In the submission, ARTICLE 19 analyses the law in the context of other legislation inhibiting the independent operations of non-governmental organisations (NGOs) and shows how the provision violates the rights to freedom of expression and assembly.
The case, initiated by Amnesty International Hungary, concerns Article 353A of the Hungarian Criminal Code. The law was adopted in the framework of a larger legislative package known as the ‘Stop Soros’ package, which targets foreign-funded NGOs with onerous and stigmatising registration and reporting requirements.
Article 353A states that ‘anyone who carries out organising activities’ facilitating migration or asylum proceedings of persons ‘not persecuted’ in their country of nationality ‘shall be placed in confinement’. Both before and after the adoption of the act, which introduced Article 353A to the Criminal Code, Amnesty International Hungary was designated by representatives of the right-wing ruling party Fidesz as an organisation supporting immigration.
The Constitutional Court of Hungary dismissed Amnesty International Hungary’s constitutional challenge of these provisions and held that the legislation did not restrict the right to form or join organisations but merely criminalised organisational activities supporting illegal migration. The case is now pending at the European Court of Human Rights.
In the submission, ARTICLE 19 outlines the international standards applicable to the case. We also invite the Court to consider in its decision the legislative context of and its own case law on foreign agents laws – which are becoming increasingly popular legislative tools in the region to over-regulate and limit the activities of NGOs – as critical to understanding the goals and effects of Article 353A.
ARTICLE 19 also submits that any state measures that in practice limit the freedom of NGOs to determine their objectives and conduct their activities must be assessed in light of freedom of association and freedom of expression standards, even – and especially – if those activities are grounded in ideas that may challenge the state.
We invite the Court to assess Article 353A under the three-part test for restrictions on freedom of expression and association set out in Articles 10(2) and 11(2) of the European Convention on Human Rights, keeping the following in mind:
- Any interference in the rights to freedoms of association and expression must have a legitimate purpose. Though preventing crime is indeed among the recognised grounds for restriction, the blanket prohibition of ‘facilitating illegal migration’ does not distinguish between supporting asylum seekers or challenging deportation through legal means and fighting human trafficking or smuggling.
- Resort to criminal law in regulating activities of associations requires particular scrutiny as to the tests of necessity and proportionality. In similar cases, the Court assessed proportionality by analysing whether the penalty could amount to a form of censorship if the sanction impacts NGOs’ ability to perform their task of ‘public watchdog’, and if the gravity of the sanction was proportionate to that of the offence.
The Court’s assessment of necessity and proportionality should be complemented by considerations of any ‘chilling effect’ on expression and association produced by the criminal sanctions, or the fear or threat of potential criminal prosecution.
ARTICLE 19 urges the Court to uphold a high standard of protection of freedoms of expression and association in this case and submits that the Court follow established jurisprudence on this matter.