On 18 January the Hungarian government revealed its “Stop Soros”’ package of three bills (SSB) targeting civil organizations “supporting illegal immigration:
– Law on the social responsibility of organizations supporting illegal migration;
– Law on immigration financing duty;
– Law on immigration restraint order.
The disgraceful act made news around the world and sparked wide spread criticism from Al Jazeera and Bloomberg to Reuters and Yahoo and the alphabet in between.
There have been many bits of news and comments, which I would like to summarize for Hungarian Spectrum here, including some parts of the SSB itself (in the unofficial English translation) and in Hungarian.
The SSB package was tabled by the Interior Minister, but contrary to constitutional law, the so-called public debate is being managed by Antal Rogán’s “propaganda ministry,” which in the meantime is flooding the country with another tsunami of Stop Soros posters.
The preambles, descriptions, and justifications of the SSB repeat many of the government propaganda panels, the language of the preamble is uncannily reminiscent of the 1960s communist one: “The state has a duty to ensure the survival of the nation and to create a solid basis for future generations. It is the primary obligation and also the right of the Hungarian state to protect its citizens and our national culture. Recognizing the emergency, the Hungarian government has spent HUF 270 billion* from the budget to stop immigration.” ( The original budget for the fence was set at 20 billion.)
That is followed by another communist turn – the listing of the nefarious and damaging activities carried out by “the enemies within,” to use the old cliché, against the state, including “propaganda,” as any dissenting opinion or fact-finding report is labeled. “Any activity intended to promote illegal immigration and to intensify the migratory pressure is against Hungarian state interest and also causes quantifiable damage to the budget. The migration propaganda assists smuggling organizations and puts illegal border-crossers … at risk. Therefore a regulation is needed that identifies organizations that support migration and takes action against persons who jeopardize national security.”
The government of course claims that it is responding to the call by the people, all the people, one is led to believe: “The creation of the legislative package has been authorized by the citizens of Hungary: 98% of participants in the referendum clearly rejected the mandatory quota and 2.3 million people expressed their clear opinion in the national consultation on the Soros Plan.”
The numbers are coming from the government “consultation” process, which, as with most acts of the Orbán regime, is non-transparent and without outside control or scrutiny. Even access to the returned forms was denied, save for the one-hour-for-three-sites granted to Ákos Hadházy, who came out convinced that the numbers were grossly exaggerated. The government stalled for weeks before coming up with a figure close to that of the Fid voters’ number, yet “based on these results, Hungarians unanimously demand strong action against illegal immigration and promote strengthened protection of the borders instead of settling [migrants in the country].”
For those who know the Stalinist times, the language is pretty poignant – i.e. the government obliged “the people” with the SSB, but according to Antal Rogán the people are actually calling for even stronger measures, as it transpires from the more than 400 suggestions his office has received.
The Legal Nonsense
Both the text and the provisions of the SSB exhibit signs of a slapdash job hatched at the “Propaganda Ministry,” where only the desired effects are clear.
Act on the social responsibility of organizations supporting illegal migration*
Sec.1: “… an association and foundation seated and registered in Hungary that sponsors the illegal entry, relocation and residence of a third-country national … directly or indirectly from financial or property benefits originating from abroad shall be qualified as an organization supporting illegal migration.” [OSIM]
There are some fundamental legal problems from the very start here – who and at which point in time an entity qualifies as an OSIM, what is the redress/appeal against such a designation. It’s a gaping legal hole which leaves the whole SSB hanging in the air.
Sec.2.1 stipulates an OSIM “is obliged to notify” the court, but this is after the entity has been qualified as an OSIM. In view of this, the widespread criticism of the act for obliging entities to report their own violations of the law is on shaky grounds, which I’m not going to pursue.
The fact that only associations and foundations are included, but not companies or other legal entities, indicates the intention to target the NGOs, violating the principle of equality before the law. The other issue is the bizarre category of entity supporting an illegal activity. Under western law illegal activities are prevented and restricted, offending entities are punished, e.g. by fines, placing the entity under management or liquidation, but there is no example of classifying them as functioning law breakers.
Sec. 2 uses phrases like “OSIM that supports in any other way,” “to facilitate the unlawful,” “sponsors or otherwise supports” which make for an extremely broad scope, allowing for the incrimination of an entity for one of its members handing out a bottle of water; note the interpretation of the preamble that “The migration propaganda assists smuggling organizations,” making all participants accomplices.
Sec. 3 stipulates that if a foreign funded organization supports in any way other Hungarian entities, such support “shall be qualified as indirect financial or property benefits deriving from abroad” i.e., making the local organization also foreign funded. Since there are no limits on how far eventual assistance will carry the “curse,” numerous entities co-operating in other matters can be drawn into the foreign-funded NGOs category with its implications under the earlier law on these.
How about Sec 2.4 prescribing that an OSIM post “ its notification pursuant to Section (1) on the website pursuant to Section 2(5)-(6) of the Transparency Act and [illetve] in the media” ?! This unique, ham-fisted attempt to force NGOs to publicly “humiliate” themselves leaves numerous questions open: in what media, in what format, for how long, at whose expense, etc. (The Hungarian “illetve” can only mean “and” here.)
According to Sec 5.2, “If the OSIM fails to meet its obligations contained in the prosecutor’s notice, the prosecutor may initiate at the registration court that a fine be imposed in double the amount of the financial benefit originating from abroad.” This provision mixes the criminal law under which the prosecution office operates with the administrative law regulating the Registration Court.
Act on the immigration financing duty
The same problem of mixing different kinds of law arises in this act as well, where the tax office is to collect (Sec.6) a duty on the basis of Sec. 2: “The organization supporting illegal migration is obliged to pay an immigration financing duty if…” Here we also have the absurd concept of an entity being categorized as an OSIM and then punished by a regular duty instead of being punished for the particular illegal act. And only if the entity received benefits from abroad, which again violates the principle of equality before the law.
Act on immigration restraining orders
There is some misunderstanding of this act, I’m afraid, since it has been widely condemned for introducing an administrative provision to restrict the movement of Hungarians as well, e.g., illustrated by the example of an absurd 8 km zone around the Vigadó border entry point on the Danube in the center of Budapest. (The misinterpretation may have come from Sec.2.a which refers to “ a member of Parliament” in the Hungarian text without specifying which parliament.)
All of the elements of the act consistently refer only to “aliens…[or] third country nationals,” presumably non-EU citizens:
According to sec. 1 regarding “third-country nationals, in order to conduct alien police procedures in an unhindered manner, the minister in charge of immigration and refugee affairs … may ban any person whose residence in Hungary is contrary to Hungary’s national security interests or who poses a danger to the public interest, from the frontiers or from within an 8-kilometer zone of the frontier marks of the external borders.”
The above would still include people with resident status in Hungary, like NGO employees or representatives, journalists, activists or tourists who otherwise would be difficult to handle or intimidate (unlike the local ones, as the government may have assumed).
There are some drastic provisions restricting the appeal/judicial recourse in sec. 5.3. “An immigration restraining order may be challenged on account of a breach of the essential rules of the procedure in a public administrative lawsuit within eight days.” That is, the material facts and the judgment of the minister are incontestable. It should be recalled that the Orbán government has been pushing for the creation of a separate administrative courts system. On top of this there is the provision that “provisional measures of legal protection are not available in the lawsuit,” i.e. the judge cannot change the detention, confiscation, etc. measures taken until the end of the process.
It is almost laughable to read Sec. 3 mentioning “the period of the crisis situation caused by mass migration,” which the government still keeps in force even though there have been almost no migrants at the borders for a year now.
Impact on the NGO sector
The SSB follows on the heels of the 2017 Act LXXVI NGO Law on foreign-funded organizations, which the European Commission recently contested in the European Court of Justice, and emphasizes the general strategy to eliminate all independent institutions, in this case the NGOs –the real goal of the huge and hysterical government campaign, along with the scare mongering – vote winning double whammy.
The TASZ (Civic Liberties Union) has summarized the expected impact very well: “Following up on the 2017 NGO Law on foreign-funded organizations, the latest draft laws are potentially lethal blows to civil society in Hungary: their novelty is that the threat is now existential and also targets individuals. Should the proposals be adopted in spring 2018 without major changes, they will cause grave and irreparable damage to Hungarian civil society. By the end of 2018, a number of NGOs will be unable to function or carry out core work due to five direct and imminent threats to their mission.
I. Funding for essential services will be cut and driven away
- All foreign donors who directly or indirectly give funds to targeted Hungarian NGOs should calculate losses, as their funds will be partly (25% tax) or fully (200% fine) seized by the government;
- The risk of the government taxing funding in an arbitrary manner could make yet unaffected donors pull away from funding civil society in Hungary;
- Domestic funding for the work of the civil sector is largely available from public funds administered by national or local government agencies, which is already politically conditioned and discourages public advocacy or exposing faulty or inefficient public services.
II. Trust in civil society and willingness to seek assistance will decline
- Smear-campaigns, compliance procedures and investigations will further stigmatize and discredit NGOs by accusing them of performing illegal activities;
- Authorities would gain access to the data of all persons working for, contracted by or receiving assistance from NGOs, thus intimidating individuals from supporting, working for or seeking help from them;
- An estimated 80-85% of about 900-1,000 prominent NGOs risk losing public benefit status, i.e. tax-free status and other advantages. This will dramatically raise costs for NGOs and for clients, who will have to pay taxes after the value of free services/assistance (15% personal income tax + 19.5% health care tax).
III. Sanction procedures and targeted tax investigations drain and divert NGO resources
- NGOs that have refused to register under the 2017 Law on foreign-funded NGOs can expect to face legal procedures for non-compliance once they publish their annual financial reports at the end of May 2018. These procedures are likely to roll out during the summer and will further aggravate the pressure.
- Politically-motivated tax investigations could pave the way for repressive criminal prosecutions against NGO leaders and human rights defenders.
IV. Threatened by enhanced government surveillance measures, NGOs will be effectively silenced
- Human rights defenders who work with targeted organizations could be declared a national security risk and be subjected to arbitrary and unlawful restrictions on their freedom of movement;
- NGOs will have to assume their work and staff are being monitored by intelligence services, pressuring them into self-censorship and impacting their families;
- Stigmatizing civic groups and individuals as national security risks will have a chilling effect on other groups, supporters and clients by sending a clear message that at any point in time they could become targets as well.
V. Serious risk of ‘mimicry effect’ by potential Europe-wide copying of worst practices related to shrinking civic space l. The proposed laws could serve as a model within the EU to thwart the valuable work of civil society organizations that fight for the respect of human rights in the European Union, a danger that the EU Fundamental Rights Agency has recently underlined.”
The conclusion is not difficult to arrive at: “The recently announced anti-civil organization bill is deceitful, arbitrary and harmful. It is deceitful because it creates the appearance that its purpose is to stop illegal immigration, while in reality it wants to crush the entire civil society. It is arbitrary because the government seeks to determine what would constitute a problem for the people and who is entitled to solve it. In a democracy, this kind of restriction is unacceptable. Finally, the new act is harmful because removing public-interest status from organizations that receive a majority of foreign support could result in all Hungarian citizens being deprived of free civil assistance.”
*The quoted passages are taken from the Hungarian Helsinki Committee’s unofficial translation of the Stop Soros laws.