Published on 25 March 2024
FIRST SECTION
Application no. 44928/19
OPEN SOCIETY INSTITUTE BUDAPEST FOUNDATION
against Hungary
lodged on 20 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 and Act no. XLI of 20 July 2018 amending certain tax laws and other related laws and on the immigration tax.
Open Society Foundation Budapest is a non-profit foundation registered in Hungary under Hungarian law (“the applicant foundation”). The Charter of the applicant foundation defines its objectives as, inter alia, “to organise and support programmes in connection with human rights (minority) problems”, provide “professional, technical financial support” to “institutions and legal entities” and assist them in “their administrative and coordinative functions”. These objectives also encompass financial and other support for migrants’ rights, including funding human rights organisations’ projects in the field of migration, publishing information material, and building and operating networks of human rights organisations.
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”.
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 “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”.
On 20 July 2018, Parliament of Hungary adopted Act no. XLI of 20 July 2018 amending certain tax laws and other related laws and on the immigration tax, which entered into force on 25 August 2018. Section 253 of the Act imposes a 25% tax on financial support to an immigration-supporting activity carried out in Hungary or on the financial support to the operations of an organisation with a seat in Hungary that carries out immigration-supporting activity.
On 14-15 December 2018 the Venice Commission and the OSCE OSCE/ODIHR adopted Joint Opinion No. 941/2018 on Section 253 on the special immigration tax of Act XLI of 20 July 2018 amending certain tax laws and other related laws and on the immigration tax, noting: “...the special tax on immigration constitutes an unjustified interference with the rights to freedom of expression and of association of the NGOs affected. The imposition of this special tax will have a chilling effect on the exercise of fundamental rights and on individuals and organisations who defend these rights or support their defence financially. It will deter potential donors from supporting these NGOs and put more hardship on civil society engaged in legitimate human rights’ activities. For all these reasons, the provision as examined in the present opinion should be repealed...”.
The applicant foundation lodged a constitutional complaint on 24 September 2018, 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 foundation complains under Articles 10, 11 and 18 of the Convention that the amendment to the Criminal Code (Article 353/A), through Act no. VI of 2018, and the enactment of the special immigration tax constitute a restriction of its freedom of expression and association for purposes not prescribed by the Convention.
QUESTIONS TO THE PARTIES
1. Can the applicant foundation 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 foundation’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 and Section 253 of Act no. XLI of 20 July 2018, 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 foundation, 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?