A/HRC/44/42/Add.4
[81] […] Therefore, based on the review of Section 353/A (1) of the Criminal Code, the
Constitutional Court established that the concern raised by the petitioner is completely
unfounded, as it is evident that the new statutory definition included in the Criminal Code
only orders to punish the intentional conducts contained therein and it does not order to
punish any other conduct, i.e. the new statutory definition shall not be applicable to any
conduct not related to the purpose prohibited in the statutory definition and carrying out
the altruistic obligation of helping the vulnerable and the poor.
Regarding the new regulation, it shall be up to the judicial practice to specify the conditions
under which an organising activity should be considered as humanitarian assistance, to state
which forms of assistance are not punishable and when these limits are deemed to be crossed.
[82] Considering the above, the Constitutional Court rejected the constitutional complaint.”
Based on the above, it is also clear that the wording does not create ‘chilling effect’. The
concern that it can be subject to biased interpretation or application, is unsubstantiated.
The wording also does not violate the requirement of transparency and legal certainty,
thus is not aimed at deterring civil society organisations and their advisors working in
the transit zones, nor should it have such an effect.
Other criminal offences of the Criminal Code has already included definitions of
organisational activities, which was also highlighted by the Constitutional Court, and the
legal practice related to these can provide points for interpretation as to what should be
considered as organising activity.
The Hungarian Government further adds that, to its knowledge, no proceedings (even
unfounded) have been initiated on the basis of Section 353/A so far, so the assumption
that it is aimed at the pursuance of the activities of legal aid providers and advisers is also
incorrect on the basis of practice.
Since the entry into force of Section 353/A of the Criminal Code (on 1 July 2018) it has
not been observed that the pursuit of the activities of legal advice and legal assistance
in this field has decreased. Likewise, it is also unfounded by the evidence available, that
there have been unjustified proceedings, abuses by the authorities or over-execution based
on the new statutory definition.
Given that the courts are bound by the decisions of the Constitutional Court, it is clear
that there will be no change in the jurisdiction, either now or in the future, extending
the criminal liability under Section 353/A to activities such as bona fide support of
migrants or humanitarian aid.
The Hungarian Government notes that similar line of argument is set out in Case C-821/19
Commission versus Hungary.
Consultations between the Government and Civil Society Organisations
In point 6 of the draft report the Special Rapporteur states that the Government adopted
restrictive measures against the operation of civil society and restricting them to express their
views. In this context, activities of the Human Rights Working Group and its Thematic
Working Group Responsible for Refugees and Migration should be underlined. The
Working Group and the Thematic Working Group aim to conduct consultations with civil
society on a regular basis.
The Government established the Human Rights Working Group in its decision adopted in
February 2012 (Government Resolution 1039/2012 (II.22).) with the main purpose of
monitoring the implementation of human rights in Hungary, conducting consultations with
civil society organisations, representative associations and other professional and
constitutional bodies as well as of promoting professional communication on the
implementation of human rights in Hungary. The Working Group monitors the
implementation of the fully or partially accepted recommendations in relation to Hungary of
the United Nations, Human Rights Council, Universal Periodic Review (UPR) Working
Group.
Due to the modification of the Government Resolution, the Working Group also reviews and
monitors the enforcement of human rights conventions and agreements – of which Hungary
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