Minister of Justice László Trócsányi delivered a keynote speech on the Bill on the Management of Mass Migration in the Hungarian National Assembly on 4 September 2015. Translation of the speech as it was delivered.

(on the amendment of criminal provisions of certain Acts, relating to the management of mass migration, T/5983.)

Honourable Speaker, Honourable House,

When on the 1st of May, 2004 Hungary became a member of the European Union, an economic, political, legal and partly social change in attitude took place. We became part of a political community in which we saw the future of Europe. Belonging to the EU means – beside the obvious benefits – also sharing its burdens: this is what the European ideal is about. When becoming a member of the EU, in hope of social, political and economic gains, the Hungarian State waived some of its competences. Let me refer to a very important thesis which I held already as a member of the Constitutional Court: „When Member States conferred certain parts – or the exercise of certain parts – of their competences arising from their sovereignty upon Community (EU) institutions, they did not waive the essence of their statehood, sovereignty and independence, neither the free determination of the fundaments of the structure of their state. Member States retained the right to dispose of constitutional principles essential to maintain their statehood and constitutional identity.” This is also enshrined in Article 4 of the Treaty on European Union declaring that “[t]he Union shall respect […] national identities” of the Member States.

In some States, e.g. in Germany, this “constitutional core” is specifically laid down. It contains elements such as decisions on the deployment of the armed forces, criminal powers, social policy priorities or decisions of cultural importance, including fundamental decisions concerning school system, family law, the status of religious communities and, in my view, also immigration policy. I am also of the opinion that in addition to preserving common European values, these areas will and have to stay in the hands of national legislators, because this is the fountain of sovereignty, a uniqueness honouring which enables every State to join a community as a valuable member – and not in a servile manner –, thus contributing to the prosperity of that community.

Why is it my strong belief that immigration policy composes a part of this constitutional core? Let me remind you of a thesis of public law according to which state sovereignty covers the following three elements: territory, population and governance. The power of the state covers also foreigners residing on the territory of the state. Based on this sovereignty system, the State is free to decide what legal title it requires for the residence on its territory. This question is an essential element of the sovereignty of the State which Hungary never conferred upon anyone, and now, taking the responsibility arising from this element, in accordance with our undertakings made towards our friends in the European partnership, we have to act, whilst observing our international and EU obligations towards migrants.
Hungary is under unprecedented migration pressure. We could spend hours analysing the reasons for the current migration situation, and the conclusions to be drawn from asylum statistics. This is being performed by experts on an on-going basis. Here and now, it is sufficient for us to accept the fact that thousands of people have attempted to cross the border illegally for weeks now. This year alone some 147,000 asylum applications have been submitted in Hungary until now. As a result, Hungary has registered the second most applications after Germany.

It would be difficult to call the countries of Central-Europe, including Hungary, to account for the instability evolved in the countries of origin of migrants, which is responsible for the current wave of migration. While we are not in any way responsible for the situation, we must nonetheless fulfil our obligations under international law. In accordance with our Fundamental Law, it is the elemental duty of the State to protect its citizens, to guarantee law and order, to preserve the sovereignty of the country, and to protect state borders. Our undertakings under EU law made with a view to the protection of the security of the European Union and its citizens are additional to this constitutional duty. We cannot compromise the security created for the citizens of Europe and Hungary, including among others the Schengen System, the protection of the borders, public security, or the security of health care services. At the same time, however, we cannot abandon people in trouble who cannot hope for help from elsewhere; consequently, we must also meet the relevant international humanitarian expectations.

The question may arise respecting the handling of the situation: have we been able to preserve our achievements? Have we been able to guarantee the system built of the mutually existing principles of humanity and security? The current crisis also conveys the direct threat of compromising the entire Schengen System, with special regard to the fact that leading European politicians are now talking about a Schengen crisis – as I was told for example in the German Chancellor’s Office or by the French Ambassador.
In the context of mass migration, we should not confuse migration for purely economic reasons and migration grounded on humanitarian necessity. In contrast to the lay terminology, from a legal point of view, we must differentiate migrants who set out primarily for economic reasons, in the hope of a better life, and those who flee natural or humanitarian disasters and civil wars. In the case of the latter, Hungary has the obligation to provide the procedure and treatment required under the relevant international conventions and EU rules. However, the majority of the international, EU and national rules and regulations adopted for the primary management of the problems of migrants were conceived years or decades ago, in a different situation, and therefore adjustments must be made in the case of some norms (e.g. the Dublin system itself was not prepared for managing the problem of millions of migrants at the time). The Geneva Convention was concluded during the period of the Cold War, under completely different historical circumstances.

The present legislative package is designed – and we therefore seek the support of the Honourable Members of Parliament – to remedy this problem, on a national level for the moment, in the hope that appropriate common European solutions will also be devised for the medium- and long-term management of the situation within the shortest possible time.

What is it exactly that we are facing and how much room for manoeuvre do we have?

We are aware of the figures and the trends. Migration via both main migration routes used by asylum seekers and human traffickers, namely the Mediterranean and the Western Balkans, is causing Europe a grave problem, and this flood of migrants is not likely to abate in the short- or medium-term. At the same time, we must realise that the Western Balkans route will present the greatest challenge, with special regard to the approaching autumn and winter. Our partners in the EU are beginning to recognise this, even if belatedly, and are paying increasingly more attention to the situation of the countries affected by the Balkans route, including Member States, candidate states and third countries. These countries equally need political, financial and technical assistance. We ourselves are working on this with our limited resources. We are maintaining excellent relations e.g. with Serbia, and a number of meetings and common projects hallmark the intensity of our cooperation. At the same time, we cannot in this context fail to point out the responsibility of some countries of origin and transit countries, including in particular, the responsibility of certain EU Member States and candidate countries.

Among current trends, we must also mention the fact that Hungary is a transit country; the vast majority of migrants and asylum seekers wish to travel on to Germany, Austria, Sweden, France, or the United Kingdom. Additionally, they do not enter the territory of the EU in Hungary as they arrive here after having traversed Greek or Bulgarian territories and safe third countries such as Macedonia and Serbia, intentionally avoiding the official border crossing points, thereby attempting to circumvent EU rules.

It is obvious that we need joint action on the part of the European Union; it is, however, plain to see for everyone that the EU is, for the moment, unable to offer a united response to this mass migration. Hungary is therefore compelled to also take action on a national level, and to take the measures which are necessary for the observance and enforcement of our common rules.

The EU legal framework fundamentally limits the Hungarian authorities’ room for manoeuvre.

As regards border surveillance, let it be sufficient for me to refer to the fundamental principle laid down in the preamble to the Schengen Borders Code, based on which „Border control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations” (Recital 6).

Pursuant to Article 4(1) of the Schengen Borders Code, external borders may only be crossed at border crossing points and during the fixed opening hours, while according to Article 12(1), the main purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. Furthermore, Article 12(2) of this Code provides that border surveillance must be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points.

Based on Article 4(3) of the Schengen Borders Code, Member States must apply effective, proportionate and dissuasive penalties for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. Consequently, the Schengen system expects effective and definite action on the part of the Member States, and requires legislation and implementation in line with that action.

At the same time, our obligations arising from the Geneva and Dublin systems determine the fundamental rules for recognition of the refugee status.

In contrast to some other Member States, Hungary fully observes these obligations, registers asylum-seekers, and institutes asylum proceedings. Applicants, since they have no appropriate official documents, are required to wait for the conclusion of the asylum proceedings in Hungary. However, this is not what is happening in actual reality; as we have no scope for detaining everyone under EU law, applicants leave for an unknown destination, presumably, for one of the richer European countries, upon the first opportunity. At the same time, we should not be naïve, since based on the Dublin regulations we are obliged to take these individuals back, should the authorities of another Member State wish to remove them to Hungary on the basis of their registration in Hungary. This is the case even if it is obvious that Hungary was not the first EU country whose territory they entered.

Even in the current critical situation, Hungary has opted for the lawful path. We regard as imperative the observance and enforcement of the Geneva, Schengen and Dublin rules, including the protection of the Schengen and EU external borders, the registration of asylum seekers, and firm action against human traffickers, as we believe that the situation can only be resolved under the rule of law and on a European level. Our current proposals, too, are aimed at the observance of these norms, in line with the situation which has evolved.

The task in hand is not an easy one. We must rise to the challenge by finding, under the pressure caused by mass migration, an effective solution within the boundaries of the rule of law and within the framework afforded by the relevant EU legislation. It is precisely for this reason that the legislative package before you places the emphasis on elements such as the acceleration of asylum proceedings taking into account the maintenance of the relevant guarantees, and increased rigour of criminal law against human traffickers.

Pursuant to Article 3(1) of the Dublin III Regulation, Member States must examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. According to Article 3(1) and Article 7(2) of the Dublin III Regulation, the Member State responsible for examining the application for international protection must be the one on whose territory the application for international protection is first submitted.

We must further highlight that pursuant to Articles of Directive 2013/32/EU („Common Procedures Directive”) – which affirm and elaborate upon the rules of the Geneva Convention – Member States must act in accordance with the principle of non-refoulement during the course of border protection proceedings, and must provide access to asylum proceedings. An applicant may only be sent back to a third country if the competent authorities are satisfied that the return decision will not lead to direct or indirect refoulement in violation of that Member State’s international and Union obligations.
In my view, there is neither direct, nor indirect refoulement in the case of Serbia. This was also confirmed to the Hungarian Government by the European Commission’s Director-General of Internal Affairs in a letter sent to the Head of the Permanent Representation in Brussels dated 28 August 2015.

The Dublin III Regulation and Directive 2013/32/EU („Common Procedures Directive”) provide that Member States are free to determine which countries they regard as safe third countries. The country from whose territory a border crosser is seeking to enter or has entered illegally may be designated as a safe third country. With regard to the fact that there is at present no such standard EU list of safe countries yet, Member States applying the principle of safe third countries or countries of origin may avail themselves of this possibility by way of legislation or enforcement decisions. Such lists are also used e.g. by Germany and France. Hungary established the list of safe countries by issuing Government Decree No. 191/2015. (VII. 21.). Hungary regards Serbia as a safe country as our southern neighbour as an EU candidate country has accepted to be bound by all relevant international treaties and conventions, and all EU requirements regarding asylum, by integrating them into its legal and asylum-related institutions. Serbia is a party to the Geneva Refugee Convention, and has adopted all international norms relating to asylum. At the same time, this is a presumption which may be reviewed, should a change in the situation or in circumstances there so require.

If a person crosses the border illegally directly from a country in which his or her life is not in danger, such illegal border crossing may be subject to the imposition of sanctions under any international agreement, including Article 32 of the Geneva Convention.

Honourable Members of Parliament,
Our proposals seek to address the situation on the basis of the principles mentioned, as follows:

We have heard a great deal about the obligations which arise from the asylum standards and the Dublin system, and we ourselves duly stress their importance. At the same time, we hear less about the fact that, simultaneously with these obligations, we must also fully comply with the Schengen expectations. In addition to guaranteeing the freedom of movement for European citizens, the essence of the Schengen regulatory scheme lies in the increased protection of the external borders in the interest of the safety of the people living in the Member States.
At the same time, it is also obvious that the European asylum system is in need of a reform which not only Hungary but almost all Member States are continuously working towards. The Dublin system and Schengen can only be construed in a common context, and can only be reformed with regard to this requirement.

The legislative proposal now presented to Parliament serves as a means to fulfil all these obligations by making the asylum procedures before the authorities and courts faster and more effective through the maintenance of the procedural guarantees afforded to applicants as laid down in the international conventions and in EU law, by extending the scope of action of the authorities as necessary for the lawful protection of the country’s borders within the boundaries of the relevant European norms, and by imposing more stringent criminal rules on human traffickers who shamelessly abuse the vulnerable situation of migrants.

The proposed legislative amendments concern 10 Acts.

The amendments to Act III of 1952 on Civil Proceedings and Act LXXX of 2008 on Asylum serve to make asylum procedures before the authorities and courts faster and simpler, whilst guaranteeing full respect for the procedural rights of applicants.

The minor amendments proposed to be made to Act LXXXIX of 2007 on the State Border, Act LXXVIII of 1997 on the Formation and Protection of the Built Environment, Act LIII of 1995 on the General Rules of Environmental Protection, Act CXXIX of 2007 on the Protection of Arable Land ensure the fulfilment of the constitutional and EU obligations related to the protection of the borders and the more effective implementation of procedures to be conducted by the authorities at the borders.

The amendments to Act C of 2012 on the Criminal Code, Act XIX of 1998 on Criminal Proceedings and Act CCXL of 2013 on the Enforcement of Penalties, Measures, Certain Coercive Measures and Detention for Misdemeanours seek to facilitate combating trafficking in human beings and the maintenance of order at the state borders.

Essence of the amendments:

The amendment to the Asylum Act seeks to accelerate asylum procedures. It introduces a special border procedure permitted by the applicable EU legislation, whilst leaving the general procedural guarantees unchanged and taking full account of the specific situation of vulnerable persons such as minors, unaccompanied minors and other individuals requiring special procedures or care. Based on the model of the health care emergency defined in the health care legislation [Section 228(2) of the Health Care Act], the Act authorises the Government to declare a state of crisis caused by mass migration for a temporary period upon the emergence of the conditions laid down in the law, subject to the notification of the Committee on Law Enforcement of the National Assembly. As a result, similar to the health care emergency, in the event of the emergence of the extraordinary circumstances defined in the legislation, the Act permits, without the introduction of a special legal order, the adoption of measures which only concern the duties of the State and municipalities, and – subject to certain guarantee provisions – do not exceed the extent acceptable under the Fundamental Law for ordinary Acts. In a state of crisis of this nature, the Act allows the provisional use of public property or municipal property (private property excluded) against mandatory compensation, and facilitates or dispenses with certain public administration procedures to make them more effective in the interest of providing appropriate care for asylum seekers (e.g. in the case of buildings used for accommodating and providing care for applicants, the rules of public procurement need not apply).

The amendment proposed to the Act on the Protection of the State Border introduces the concept of transit zone. Authorisation for this institution is granted in Article 43(1) and (3) of the Common Procedures Directive, based on which Member States may conduct procedures to assess the admissibility of applications at the border or in transit zones if the applicant has arrived from a safe third country, and the merits of the application may be determined within the framework of an accelerated asylum procedure if the applicant has entered the territory of the Member State unlawfully [Article 31(8)(h)]. Such special procedures may also be conducted in the case of large numbers of applicants, and are in fact, specifically designed for that eventuality. The essence of a transit zone – similar to an airport transit zone – is that while it is located in the territory of the given state, the entry into the transit zone does not qualify, in immigration terms, as an entry into that state. In the future, applications for asylum may also be submitted at these transit zones, in addition to the „normal” border crossing points, and may be examined in an accelerated, on-site procedure. In the event of the admissibility of asylum applications, applicants are permitted to enter the country via the transit zones.

Amendment to the Act on Civil Proceedings: In the interest of managing the large number of applications in procedures conducted on the borders, it is reasonable and necessary to introduce special procedural rules not only in the procedures of the asylum authority but also in the proceedings related to the judicial review of administrative decisions which should be conducted during the stay of migrants in the transit zone, before their entry into the territory of Hungary in a legal sense. For practical reasons, the Szeged Public Administration and Labour Court has exclusive jurisdiction to proceed in cases related to the judicial review of asylum proceedings conducted on the borders, as part of which it will have cassation powers to repeal the decision of the asylum authority and may order the conducting of a new procedure. Should the applicant request it, a full hearing can be held during the course of the court trial. This rule complies with the principles and rules of the Fundamental Law relating to fair trial and legal remedy. The related special procedural provisions proposed in the Asylum Act also ensure that asylum-seekers should not be required to leave the transit zone to attend a hearing in person.

The amendments to the Criminal Code and the Act on Criminal Proceedings primarily serve the purposes of effective and stringent action against human traffickers, and promote the acceleration of procedures, whilst respecting the relevant guarantees.
Illegal border crossers typically enter the territory of the country via human trafficking, without documents or with false documents, which often renders their identification impossible. Entire criminal organisations are being formed for the perpetration of these criminal acts committed for financial gain which abuse the vulnerable position of migrants and endanger their lives and physical well-being. It may hardly be contested that this trend, which is a threat to society, and the commission of these crimes can be tackled – as a general and specific preventive duty of the State – by increasing the penalty for the trafficking in human beings. Accordingly, the amendment to the Criminal Code increases penalty for the crime of trafficking in human beings.

The State can only provide for the effective protection of its borders through the installation of suitable facilities. The function of these facilities is to extend the self-defence of the State and its citizens, and they are also an indication of the fact that the State wishes to exercise its right and – we should add – obligation of self-defence, and this right should be respected. Circumventing the protection afforded by these facilities or vandalising these facilities jeopardises the effective protection of the state borders to such a degree that the imposition of due sui generis sanctions under criminal law is justified. With regard to this, the Chapter of the Criminal Code concerned with crimes against the order of public administration is supplemented with three new offences; as a result, the prohibited crossing of the border fence, the vandalisation of the border fence, and the disruption of the construction works related to the border fence will become punishable. However, criminal law is only a last resort (ultima ratio), and in these cases we primarily intend to enforce compliance with legal regulations by imposing stringent criminal sanctions against human traffickers. In milder cases, the contemplated changes would permit the removal of those who violate the new regulations, subject to a suspended custodial sentence.

The goal of the amendment to the Act on Criminal Proceedings is to conclude any already instituted criminal proceedings with a decision in merit within the shortest possible time. To this end, a new procedural form will be introduced with respect to criminal proceedings related to the border fence. By virtue of this, rules will be introduced in the case of two separate procedures – prosecution and foregoing a hearing – to simplify their application, and to shorten the deadline for their conclusion. As a major change, in the case of crimes related to the border fence, it will be possible to prosecute perpetrators, regardless of the penalty limit which is currently in force.

Honourable House,

The situation is critical on the southern borders of Hungary and at some railway stations in Budapest. Refugees fleeing war conflicts as well as illegal migrants are arriving at our borders and staying in the territory of the country in very large numbers. While Hungary is making every effort – thereby earning the appreciation of its partners in Europe as I personally experienced during the course of my talks in Berlin at the beginning of this week – to keep the situation within the boundaries of EU law, to comply with the Schengen and Dublin provisions, to register asylum seekers and to conduct the asylum procedures in conformity with EU rules, we are increasingly faced with the fact that the vast majority of migrants entering Hungary are arriving here illegally, circumventing the authorities. Many of them are not even willing to cooperate with the authorities in the necessary procedures. They have no travel documents, documents which would authorise them to enter or stay in the EU, do not wish to have themselves registered, are not prepared to have their fingerprints taken, are not willing to go to the designated accommodation centres, and thereby withdraw themselves from the mandatory health screening as well. At the same time – through the fault of other countries, and I must emphasise, other EU Member States – they wish to enter Hungary directly from territories where their lives and physical well-being are not in danger. In actual fact, they do not want to have anything to do with the regular Hungarian registration and asylum proceedings, and their sole goal is to travel on to richer European countries by avoiding these proceedings.

The crisis situation which has evolved can only be resolved in the long run under the rule of law and on a European level. At the same time, the measures which we have now been forced to take for the protection of our borders are proportionate and also necessary for protecting our common European borders and the citizens of our country as well as for enforcing the law. In a case to the contrary, one of the most important European achievements, the Schengen „ideal” would be called into question which may lead to reduced popular support for the EU or even to the disintegration of the EU. This must be avoided. We can only perform our duty in the long run in accordance with European values if, in cooperation with the Member States and hoping for their understanding and support, we find a solution. It is to this end that yesterday the Prime Minister went on a mission to Brussels to meet with the leaders of the European Commission and the Council, and will hold talks with the leaders of the Visegrád countries on Friday. We must see clearly, however, that there can be no effective common action – which expresses and reinforces the principles of European solidarity and humanity at the same time – as long as the processes are not taking place on the basis of and in compliance with the relevant rules. The legislative crisis management package presented to you today serves just that purpose.

Honourable Members of Parliament,

I am convinced that the European Union should act where these situations occur. I personally paid a visit to a refugee camp. I experienced how people live there and I think the main responsibility of Europe is to help the countries where these people come from. The European Union has to see what help it can offer and individual European states have to see what help they can offer.

Honourable Members of Parliament,
It is for these goals that I am asking for the support of the Honourable Parliament, and at the same time I express my gratitude towards the colleagues, my colleagues in state administration who, aware of the gravity of the situation, have been working hard and with great commitment to make it possible to present this exceptionally important legislative package to you.

Thank you for your attention.

(Ministry of Justice)