Hungary: Repeal unlawful provisions criminalising migrant rights defenders

In a landmark ruling, the European Court of Justice has found that Hungarian legislation restricting the work of migrant and refugee rights defenders is unlwful and must be rescinded.

On 16 November 2021, the Grand Chamber of the European Court of Justice issued a very significant judgment in Case No C-821/19 (European Commission v Hungary).

The International Service for Human Rights (ISHR) followed the case closely and, together with Slovenian NGO Pravno-informacijski center nevladnih organizacij (PIC), previously published a legal submission to inform the Court. The submission set out the ways in which Hungary’s so called ‘Stop Soros’ laws effectively criminalise the provision of legal and humanitarian assistance to asylum seekers in violation of international and EU law, including the obligation to protect and enable the work of human rights defenders.

The Grand Chamber’s landmark ruling held that a number of elements of Hungary’s Stop Soros laws violate EU law and must be rescinded. This includes provisions which restrict aslyum seekers’ access to and communication with lawyers and other human rights defenders, and provisions which restrict the access of lawyers and defenders to Hungary’s border areas. 

Welcoming the Court’s ruling, ISHR Director Phil Lynch said ‘This historic judgment confirms that European governments should respect, protect and enable the work of migrant rights defenders. People and organisations providing vital legal and humanitarian aid and assistance to others in vulnerable situations should be celebrated, not criminalised’. 

According to the leading international lawyers who supported ISHR and PIC with their submission on a pro bono basis:

‘Hungary is now under an obligation to rescind the provisions found to be in violation of EU law. The principle of the primacy of EU law means that, even before any such formal steps are taken, the Hungarian authorities are obliged not to apply and/or implement those provisions of the Hungarian legislation found to be incompatible with EU law. Those providing aid and assistance to asylum seekers should thus be able to do so without incurring the risk of criminal prosecution. If Hungary fails to comply with the judgment, the European
Commission has the ability to ask the Court to impose a monetary penalty.’

A full analysis of the European Court judgment prepared by Gabriel Fusea of Freshfields Bruckhaus Deringer, together with Robert Kirkness and Daniel Müller of Counsel, is available here.