CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 mars 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 25 March 2024   FIRST SECTION Application no. 44253/19 HUNGARIAN HELSINKI COMMITTEE against Hungary lodged on 13 August 2019 communicated on 5 March 2024 SUBJECT MATTER OF THE CASE The application concerns the adoption of Act no. VI of 2018 on the Amendment of certain laws related to measures against illegal migration. Hungarian Helsinki Committee is a non-governmental organisation (“the applicant organisation”), registered under Hungarian law. It has been active in the area of asylum law for about twenty-five years, providing, amongst others, legal assistance to migrants, asylum-seekers, refugees and stateless persons. It delivers trainings, conducts border monitoring programs and publishes information leaflets. In 2017 the Hungarian Parliament adopted Act no. LXXVI of 2017 on the Transparency of organisations receiving support from abroad, imposing an obligation on civil society organisations receiving funds exceeding 7.2   million Hungarian forints (approximately 19,000 euros) yearly from abroad to register as “organisation supported from abroad” and indicate this fact in all their public communications. On 18 January 2018 the Hungarian Government presented a legislative package referred to as the “STOP Soros” proposal, requiring organisations that receive foreign funding and “propagate mass migration” or “support migration” to register as such and pay a 25 % tax on any foreign revenue. On 29 May 2018 a new draft legislative package was submitted by the Minister of Interior and on 20 June 2018 Parliament adopted Act no. VI of 2018. The Act introduced Article 353/A to the Criminal Code, criminalising “facilitating or supporting illegal migration”. Both before and after the adoption of Act no. VI of 2018 the applicant organisation was signalled out by representatives of the ruling party as an organisation supporting immigration. On 22 June 2018 the European Commission for Democracy through Law (the Venice Commission) and the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) issued Joint Opinion No.   919/2018 on the provisions of the so-called “STOP Soros” draft legislative package which directly affect non-governmental organisations (NGOs) (In particular Draft Article 353A of the Criminal Code on Facilitating Illegal Migration). The opinion noted that “the proposed amendment therefore criminalises activities that are fully legitimate including activities which support the State in the fulfilment of its obligations under international law...” and that “the provision as examined in the present opinion infringes upon the right to freedom of association and expression and should be repealed”. The applicant organisation lodged a constitutional complaint, challenging the constitutionality of Article 353/A of the Criminal Code, which was dismissed by the Constitutional Court on 5 March 2019. The Constitutional Court referred to its judgment adopted earlier that year and brought by Amnesty International Hungary, finding the impugned legislation constitutional. The applicant organisation complains under Articles 10, 11 and 18 of the Convention that the amendment to the Criminal Code (Article 353/A) constitutes a restriction of its freedom of expression and association for purposes not prescribed by the Convention. QUESTIONS TO THE PARTIES 1.     Can the applicant organisation claim to be the victim of a violation of Articles 10 and 11 of the Convention (see   Burden v. the United Kingdom   [GC], no.   13378/05, §§   33 ‑ 34, ECHR 2008)?   2.     Has there been an interference with the applicant organisation’s rights, within the meaning of Article   10 §   1 and Article 11 § 1 of the Convention?   3.     If so, was that interference prescribed by law in terms of Article   10 §   2 and of Article 11 § 2? In particular, did the provisions of article 353/A of the Criminal Code, as in force at the material time, meet the “quality of law” requirements contained in Article 10 § 2 and Article 11 § 2 of the Convention?   4. Was the interference “necessary in a democratic society”   in terms of Article   10 §   2 and Article 11 § 2 in pursuit of a legitimate aim?   5. Were the restrictions imposed by the State on the applicant organisation, ostensibly in compliance with Articles 10 and 11 of the Convention, applied for purposes other than those envisaged by these provisions, contrary to Article   18 of the Convention?