a)  Hungary / b)  Constitutional Court / c)  Plenary / d)  07-03-2019 / e)  3/2019. (III. 7.) AB / f)  On establishing a constitutional requirement related to Section 353/A.1 of the Act no. C of 2012 on the Criminal Code and on rejecting a constitutional complaint against Section 353/A.1 of the Act no. C of 2012 on the Criminal Code / g)  Magyar Közlöny (Official Gazette), 2019/36 / h)  CODICES (Hungarian).
Keywords of the systematic thesaurus:
General Principles - Nullum crimen, nulla poena sine lege.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Freedom of association.
Keywords of the alphabetical index:
Criminal law, fundamental principles / Chilling effect.
The criminal offence of facilitating illegal immigration shall not be considered to have been committed if the aim of the activity is limited to the mitigation of the suffering of those in need and to the humanitarian treatment of such persons.
I. Under Section 26.2 of Act no. CLI of 2011 on the Constitutional Court (hereinafter, «ACC»), an NGO filed a constitutional complaint with the Constitutional Court claiming that the new Section 353/A.1 of Act no. C of 2012 of the Criminal Code was in breach of various constitutional principles including Article B.1 (rule of law); Article I.3 (the necessity/proportionality test); Article VIII.2 (freedom of assembly); Article IX.1 (freedom of expression) and Article XXVIII.4 (nullum crimen sine lege). The new Section of the Criminal Code introduced a criminal offence of facilitating illegal immigration, which would sanction activities such as providing financial means or carrying out organisational steps, in particular: preparing, disseminating information materials or issuing instructions for this to be done and building or operating a network.
The applicant contended that Section 353/A of the Criminal Code was not a norm of criminal law as its wording failed to meet any of the criteria of constitutional criminal law. The challenged regulation violated the applicant’s right to freedom of expression (Article IX.1 of the Constitution) as it threatened criminal sanctions and thus posed an unnecessary and disproportionate intervention into the way the applicant could take part in democratic public debates. It brought about what is known as a chilling effect. Regarding Article I.3 of the Constitution, the applicant claimed that the aim of the provision was intimidation, when there was no other fundamental right to enforce and no other constitutional value to protect. The vagueness of the regulation violated the rule of law, enshrined in Article B.1 of the Constitution. Regarding the freedom of association (Article VIII.2 of the Constitution), the applicant argued that the autonomy of the association was linked to the aim and purpose of the organisation. State control over the activities of associations, restricting their organisational autonomy, could only be considered constitutional if it was unavoidably necessary to achieve a constitutional aim of paramount importance and the level of the control was proportionate to the desired objective. In summary, there was no justification for the deployment of measures of criminal law in this field.
II. The Constitutional Court noted that the constitutional issue of fundamental importance in the case was the constitutional compliance of the new regulation, in light of the principle of nullum crimen sine lege along with the principles of freedom of opinion and freedom of association.
The Constitutional Court pointed out that all norms require interpretation. Difficulties arising from the wording of a norm may give rise to the violation of legal certainty. If a norm is genuinely uninterpretable, it will have to be repealed, which will render its application unpredictable and unforeseeable for those to whom it was addressed. A vague disposition is incompatible with the principle of nullum crimen sine lege if those addressed cannot discern which conduct they should refrain from and which conduct might attract sanctions. In this case, however, there were no adequate grounds to conclude that the specific definitions were uninterpretable and therefore inapplicable.
Section 353/A of the Criminal Code did contain certain provisions within the scope of purpose-oriented organisational activity. However, the Constitutional Court noted that the provision did not impose any restriction on the content of public debates, the simple dissemination of an idea or making a stand in support of it. Neither did the provision prohibit the expression of opinion on migration in general. The conduct that was prohibited was an expression of opinion manifested in the scope of the organising activity, with a view to persuading others to perform an unlawful act. The Constitutional Court concluded that it could not be established whether the new rule - without any judicial practice - unnecessarily and disproportionately restricted the freedom of opinion.
The Constitutional Court also observed that the right to association should not be considered unlimited. The Criminal Code did not prohibit the establishing of organisations or the right to join them. It prohibited organisational activity aimed at a special purpose. Establishing sanctions for such activity was not contrary to the principle of nullum crimen sine lege, neither in terms of the vagueness of the applied elements of the statutory definition, as alleged in the petition, nor due to the alleged lack of the legitimate aim of the statutory definition. As the scope of protection provided by the right of association was not extended to carrying out any activity, which was prohibited by an Act of Parliament, and in the present case this prohibition was not against the Constitution, the challenged rule was not contrary to the right of association.
The Constitutional Court also noted that the new statutory definition only provided for sanctions for intentional conduct. Under the new regulation, it will be for judicial practice to specify the conditions under which an organising activity should be considered as humanitarian assistance, to state the type of assistance which does not attract sanction and when these lines should be deemed to have been crossed. The Constitutional Court accordingly rejected the constitutional complaint.
The Constitutional Court held that it was necessary to reinforce, on the basis of Section 46.3 of the ACC, the interpretation of the new statutory definition in line with Article XXVIII.4 of the Constitution, in the form of a constitutional requirement. Respecting the obligation of helping the vulnerable and the poor, as laid down in the National Avowal, and the unconditional enforcement of Articles I.3 and XXVIII.4 of the Constitution, the Constitutional Court noted that in terms of the interpretation and application of Section 353/A.1 of the Criminal Code, it was a constitutional requirement that the relevant provision should not extend to altruistic conduct that did not relate to the prohibited aim specified in the statutory definition, provided that they performed the obligation of helping the vulnerable and the poor.
III. Justice Ágnes Czine and Justice István Stumpf attached a concurring reasoning, while Justice Egon Dienes-Oehm, Justice Imre Juhász, Justice Béla Pokol, Justice László Salamon, Justice Mária Szívós and Justice András Varga Zs. a dissenting opinion to the Decision.
Hungarian, English.