in migration (e.g. expulsion) and introducing criminal law instruments (e.g. bail, secure detention) in alien policing procedures, respectively.23
The term crimmigration has by now become a well-defined concept for international criminal science academia, which concept shows how different countries attempt to control human migration, to make an effect on regulating certain human rights.24 The term crimmi-gration has only sporadically occurred in the relevant Hungarian literature. Summarizing the findings of international studies in this field, Miklós Lévay, for instance, associates the criminalisation of migration and the criminological examination of its consequences to the concept of crimmigration.25 Examining criminality related to foreigners, however, is not considered a particularly negligible area.26 Besides, due to criminalising irregular immigration and stay, the works assessing the criminal law means and instruments recently introduced to respond to the acceleration of illegal migration have generated a wider scale of interest within jurisprudence.
When sanctioning unlawful immigration, it is especially interesting to examine the situation regarding the criterion set on judging an act subject to applying criminal law instruments. The European Union, for instance, tries to strengthen the criminal law frame-work of its fight against unlawful entry and transit, as well as unlawful stay. Thus, in the criminal law systems of certain member states special legislation can be found concerning people smuggling, human trafficking, illegal employment of foreigners unlawfully residing in the member state.27
Nevertheless, it can be a subject of examination what acts, in addition to the behaviours related to classical unlawful migration or stay, related directly to irregular migration can reach the level of being sanctioned by criminal law. In Estonia, for instance, the unlawful stay of a foreigner is considered a policing crime. It can be committed by a foreigner who stays in the country without a legal basis at least on two occasions within one year.28 In Finland crossing the state border unlawfully constitutes a criminal act and unlawful stay in the country is considered a criminal offence.29 In Italy, the consolidated act on immigration defines the punishable acts related to irregular migration. Among such acts are the follow-ing: violating the decision on expulsion or not respecting the obligation to participate in the voluntary return programme in case of third-country nationals or avoiding the obligations arising from the programme.30 Violating the decision on expulsion as well as unlawful entry
23 Legomsky, Stephen H. (2007): The new path of immigration law: asymmetric incorporation of criminal justice norms. Washington and Lee Law Review, Vol. 64. 476.
24 Woude, Maartje van der – Barker, Vanessa – Leun, Joanne van der (2017): Crimmigration in Europe.
European Journal of Criminology, Vol. 14, No. 1. 4.
25 Several articles on crimmigration were published in 2017 in the European Journal of Criminology, Issue 1.
26 See e.g. Hautzinger (2016): op. cit. or Póczik Szilveszter (2017): A jelenkori nemzetközi migráció egyes speciális kriminológiai vonatkozásai. In Sabjanics István szerk.: Modern kori népvándorlás. A migráció komplex megközelítése. Budapest, Dialóg Campus Kiadó. 57–70.
27 Not including those punishable acts, which immigrants commit during their stay but not for the purpose of illegal entry or stay. In this respect, see Alonso-Borrego, César – Garoupa, Nuno – Vázquez, Pablo (2011):
Does Immigration Cause Crime. Evidence from Spain. Madrid, Universidad Carlos III de Madrid.
28 Estonian Penal Code (passed 06.06.2001 RT I 2001, 61, 364, entry into force 01.09.2002) Sections 233–234 and 260. Available: www.legislationline.org/documents/section/criminal-codes (Accessed: 10.06.2015)
29 The Criminal Code of Finland (39/1889, amendments up to 927/2012 included) chapter 17, Section 7, subsection (2). Available: www.legislationline.org/documents/section/criminal-codes (Accessed: 10.06.2015)
30 Ad-Hoc Query on criminal law. Requested by HU EMN NCP on 23 June 2014. 21.
or stay are also punishable in Luxembourg. Considering the former, not only the illegal entry or the timed-out stay is considered punishable together with misrepresentation before the competent authorities, while considering the latter, expulsion or repeated entry despite the existing prohibition of entry and stay is punishable. The Romanian and Bulgarian penal code had declared illegal border crossing a crime long before the migration wave hit the area in 2015, and presently they sanction the act with deprivation of liberty irrespective of the fact whether or not the applicant has applied for asylum.31
Disregarding the above examples, criminalising irregular migration, or basically any form of human migration contrary to the law, has become a current issue for the general public, as well as the people in alien policing, criminology and criminal law. In her analysis concerning the impact of the police and the justice system on the opinion of the general public, Joanna Parkin concludes that authority measures taken against persons of irregular status can easily demonstrate the effectiveness of policing. Additionally, a useful enemy figure can be found that may play on public fears and lessen the feeling of security.32 This is also a reason why no-one today disputes that the effects of criminal law concerning migration show a growing trend generating an additional issue whether migration may become overcriminalised?33
Examples of crimmigration in the Hungarian Criminal Code
Since, as set out in the substantive set of rules in the Hungarian legal regulation, there is no crime similar to unlawful stay (infringement of prohibition of entry and stay) that can only be committed by a foreigner, this area may include acts that can typically be carried out in relation to foreigners (third-country nationals).34 These include, among others, people smuggling, facilitating unlawful stay, abusing family status and unlawful employment of third-country citizens.
Of the above crimes mentioned, people smuggling is considered the most typical migration crime, whose goal is to facilitate the entry of certain persons to the territory of a country different from their country of citizenship without meeting the requirements of lawful entry and stay. This crime was already punishable in the Criminal Code of 1961. At that time, however, the situation did not primarily focus on preventing illegal immigration into the territory of the country, but rather on preventing unauthorised emigration from the country. Concerning the above, at that time the Criminal Code listed crimes such as unauthorised border crossing, refusal to return, or failure to report unauthorised border crossing or people smuggling. Currently people smuggling activity has become an area preferred by organised crime, in which the perpetrators assist persons not having permits
31 Although asylum application is considered ground for exemption from punishment in Romania and Bulgaria, cer-tain rights organisations consider detention as authorised by criminal law in reference to unlawful border crossing.
See Rigo, Enrica (2006): Citizens and Foreigners in the Enlarged Europe. In Sadurski, Wojciech – Czarnota, Adam – Krygier, Martin eds.: Spreading Democracy and the Rule of Law? Springer. 111–112.
32 Parkin, Joanna (2013): The Criminalisation of Migration in Europe. CEPS Paper in Liberty and Security, No. 61. 5.
33 Chacon, Jennifer M. (2012): Overcriminalizing Immigration. Journal of Criminal Law and Criminology, Vol. 102, No. 3. 616.
34 Not including particular offences against or related to foreign officials.
to enter and stay in Hungary (and the area of the European Union) to unlawfully cross the state border. Therefore, people smuggling refers to a criminal situation whose goal is to prevent illegal immigration into Hungary rather than prevent emigration from the country.
Although anyone can be the perpetrator and party (mainly instigator) involved, people smuggling activities are usually committed by Hungarian and non-Hungarian citizens by providing assistance in illegal border crossing for third-country citizens.35
The new Criminal Code introduced the crime of facilitating of unauthorised residence36 and the abuse of family ties.37 The former, quite complex, regulation is essentially the updat-ed version of the crime of unlawful stay as set in the previous Criminal Code. Its perpetrator can be a person lawfully residing in the territory of the country who provides assistance for financial gain to foreign nationals (generally third-country nationals) to reside unlawfully in the territory of Hungary. For similar purposes the new Criminal Code punishes the abuse of family ties too, which can be committed by persons over the age of eighteen who enter into a family relationship for financial gain for the sole purpose of obtaining a document verifying the right of residence or consent to a statement of paternity of full effect. While providing assistance to reside unlawfully punishes the assistance concerning unauthorised residence of persons not having the right of free movement, the abuse of family ties is a deception of a condition by which the third-country national intends to legalise his/her unauthorised residence intellectually.
Even the previous Criminal Code, although by one of its last amendments, regulated the unlawful employment of third-country nationals as a punishable crime.38 The focus of this crime was the third-country national not having a licence to carry out economic ac-tivity, who is nevertheless employed, regardless of his/her legal or illegal stay in Hungary.
The primary reason for the factual situation derives from the Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, which requires member states to set penalties in serious cases, as specifically identified in the directive, in their national laws.39 Thus creating the above crime, it penalises unlawful employment related to migration having regard to the European Union legislation and its implementation in Hungary.
To some extent, the special case of human trafficking40 may also be considered a tra-ditional act of migration background, since its factual elements contain the conduct of trafficking. In human trafficking, however, border crossing and spatial movement do not constitute the most important elements, since human trafficking can be considered a crime against personal liberty, thus domestic or cross-border migration is only related to it as
35 In accordance with Section 353 subsection 1 of Act C of 2012 on the Criminal Code: “Any person who provides aid to another person for crossing state borders in violation of the relevant statutory provisions is guilty of a felony punishable by imprisonment not exceeding three years.”
36 Section 354 of the Criminal Code.
37 Section 355 of the Criminal Code.
38 Section 356 of the Criminal Code.
39 Polt Péter ed. (2013): A Büntető Törvénykönyv Kommentárja. Budapest, Nemzeti Közszolgálati és Tankönyv Kiadó. 177. The referenced commentary was written by Balázs Gellér.
40 Section 192 of the Criminal Code.
a secondary, basically not strictly necessary element.41 The crime itself is not necessarily in migration but in the serious infringement of human rights. Nevertheless, in international cases against human trafficking it is clearly visible that certain international documents put special emphasis on assisting victims with migration background.42
Provisions concerning criminal law and procedural law caused by increased migration
In 2015 Hungary was affected by migration activities previously unheard of. The refugees mainly arrived to Europe and Hungary from areas, such as Syria, Afghanistan, Iraq and some Sub-Saharan countries, where the previous polities had collapsed (e.g. Libya, Syria) or where state building had failed (e.g. Afghanistan, Iraq) causing the local populace to face open and prolonged civil wars or serious and long-lasting instability.43 Nevertheless, almost all third-country nationals unlawfully entering Hungary, apart from the last quarter, arrived with the purpose of travelling further to countries in Western Europe, after they submitted their request for asylum but before their asylum procedure was scheduled. This situation made its effect on legal provisions whose primary goal was not to provide legal support (criminal law or procedural law) as regards actions taken by the authorities against foreigners, but rather to serve the protection of the so-called temporary border barrier aimed at ensuring that the authority procedures concerning persons unlawfully crossing the border could be conducted at locations where the physical conditions were adequate.44
As the result of the phenomenon of mass migration, the offences of prohibited crossing of border fence, vandalisation of border fences and disruption of construction works related to the border fence were integrated into the Criminal Code. In the reasoned opinion, it can be read that due to the criminality related to illegal migration, even the strictest means of exercising public authority, i.e. criminal sanctions must be applied to combat serious forms of unlawful conduct.45 The protected legal interest, however, is not only the protection of the territorial integrity of the country, but also the protection of the installation serving the effective combating against illegal immigration and the protection of the order of the state border. For this purpose, applying the criminal law to such cases is not justified if the persons enter the country by avoiding the temporary border barrier, since the unauthorised border crossing refers to any person who enters the territory of Hungary, in an unauthorised way, through the technical border barrier established on the state border serving to protect
41 Windt Szandra (2015): Az emberkereskedelem jelensége és a fellépés nehézségei. In Hautzinger Zoltán szerk.: Migráció és rendészet. Budapest, MRTT Migrációs Tagozat. 249.
42 See Act CII of 2006 on the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime and Act XVIII of 2013 on the Convention of the Council of Europe against Trafficking in Human Beings or Directive 2004/81/EC.
43 Szuhai Ilona – Tálas Péter (2017): A 2015-ös európai migrációs és menekültválság okairól és hátteréről. In Tálas Péter szerk.: Magyarország és a 2015-ös európai migrációs válság. Budapest, Dialóg Campus Kiadó. 27.
44 Government Decrees of 211 and 213 of 2015 on the temporary border barrier.
45 Section 27 of Act CXL of 2015 on The Amendment of certain Acts related to the management of mass migra-tion.
the order of the state border.46 The same legislative consideration is behind the codification of the vandalisation of border fence, as it punishes the perpetrator who destroys or vandal-ises the technical border barrier planted on the state border to protect the order of the state border insofar as the act did not result in a more serious criminal offence.47 The disruption of the construction works related to the border fence is similar in character, which offence is committed by any person who disrupts the construction works related to the building and maintenance of the technical border barrier established on the state border to protect the order of the state border.48 The reasoning for such offence is that if a person’s conduct jeopardises the operation, as intended, of the installation serving to protect the order of the state border by disrupting the works, the person’s act would entail criminal consequences. Constructing such installation and maintaining its operation is a priority instrument to effectively protect the state border, its uninterrupted operation is of public interest which would entail criminal consequences.49 An important legislative intent is, however, to state that exercising expulsion, as a punishment, regarding the offences involved cannot be bypassed. In consideration of this, it can be stated that the genuine intent is not to use imprisonment but rather to expulse and deport foreign defendants, basically third-country nationals, from the territory of Hungary.
By doing so, subsequent law enforcement requirements are not expected.
Considering the migration crisis, the legislative power formulated a special procedure, considering the unique nature of the crimes committed in relation to the border barrier (fence) with special regards to the prohibited crossing of the border fence, the essence of such procedure, adapted to the spirit of the substantive penal provisions, being the establishment of the possibility that the stay of foreigners who are found guilty and sentenced could be terminated as soon as possible. By such move, a different legal regime has been created based on ensuring the specific procedures regarding unlawful border crossing caused by mass immigration of foreigners during crisis situations.
These specific procedures in relation to the border barrier affect two forms of crimi-nal proceedings that traditiocrimi-nally belong to different procedures in crimicrimi-nal proceedings.
Arraigning the perpetrator to court, a stricter procedural deadline was set by enabling the prosecutor to arraign the defendant, within fifteen days from his/her examination as a sus-pect if the case is simple, the evidences are available and the defendant has admitted the crime. If these conditions exist, arraigning the perpetrator to court can be carried out within eight days from the moment the perpetrator was caught in the act.50 In this new form, the rules of waiver of the right to trial apply in a particular way. According to it, the procedure must be conducted within fifteen days from the defendant’s examination as a suspect and, in an unconventional way, it can be initiated by the defence (defence is mandatory in the procedure). In such cases the examination as a suspect is led by the prosecution, minutes of the examination are taken, and on the basis of same facts and findings, the prosecution indicts, proposes the case to be judged in an open court, and proposes the application of the punishment or measures, their type, extent and content being set in the agreement, ad-ditionally, the prosecution indicates the lower and upper limits of the before-mentioned. If
46 Section 352/A subsection (1) of the Criminal Code.
47 Section 352/B subsection (1) of the Criminal Code.
48 Section 352/C subsection (1) of the Criminal Code.
49 Section 27 of Act CXL of 2015 on The Amendment of certain Acts related to the management of mass migration.
50 Section 542/K of the Act on Criminal Proceedings.
the court agrees with the facts and findings in the indictment, as well as with the application of the punishment or measures, their type, extent and content being set in the agreement, and the indicated lower and upper limits, the court will then arrange the trial immediately upon the files arrival at the court.51
These specific procedural rules in relation to the border barrier have been prolonged in the new act on criminal procedures.52 The new regulation does not substantively modify and amend the previous criminal procedures, it further offers regulations that affect the jurisdiction and competence of the courts, the implementation of coercive measures, the harmonisation of integration of special procedures, as well as facilitation measures re-garding such procedures. Codifying such specific rules brings the message about ensuring the prosecution of perpetrators the easiest way possible, insofar as the act did not result in a more serious criminal offence, in cases of offences committed in connection with the border barrier by participation as a result of illegal migration. From the aspect of a funda-mental black letter law mechanism, the above-mentioned, at the same time constitutes the weakness of these procedures. Certain simplifications, on the one hand, may neglect the concept of international or European Union guarantee arrangements regarding fairness in criminal proceedings (including the use of one’s own language, rights of the defence) and, on the other hand, may question the genuine function of criminal proceedings, that is the protection of society. If the main function of the criminal proceedings is not to protect society, but rather to create a situation that aims at expulsion of the foreigner who is an unlawful migrant, it may well not be justified to have criminal proceedings authorities involved. It would be enough to apply special policing rules that may guarantee the assumed purpose of punishment in other simpler procedures.