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.
Sanctions outside criminal law
The national administrative criminal law assigns quite obvious norms to migration and foreigners. These norms, on the one hand, can be found in the general part of administra-tive criminal law and, on the other hand, in the facts of offences53 against human dignity, personal freedom and public order. In case of the former, the foreigner status dominates.
Among these the administrative rules must be mentioned that refer to specific registration requirements54 concerning foreign subjects, or principles that can mainly be interpreted in respect to non-Hungarian citizens. The example of the latter is the right to use one’s own language55 and the request to be assisted by an interpreter,56 or the obligation of authorities to provide information during custody.57
Regarding administrative offences, we can talk about clearly outlined forms. They are, among others, prohibited border crossing or offences relating to travel documents.58 In two separate sections, two different types of conduct are sanctioned. In the former, the punishable offence is the unauthorised or impermissible crossing, or the attempt of crossing of the state border of Hungary, while in case of the latter it is the infringement of the legal provisions related to travel documents which is in the focus. By acting as above, the legis-lation expresses that while crossing the state border or staying as a foreigner is undoubtedly part of the freedom of movement, it is subject to certain conditions (valid travel document, valid visa, in certain places crossing the border in scope of border control procedures), and non-compliance with the conditions is subject to sanctions. Another issue is that prohibited border crossing can be sanctioned by administrative criminal law and enforced against the residents of the country only, since regarding third-country nationals, including nationals not having the right to free movement and stay, the above-mentioned alien policing pro-cedure provides a more efficient propro-cedure, provided that no asylum propro-cedure should be concluded. Moreover, in the latter case, until the asylum procedure has been concluded, certain procedural restraints must be taken into account considering the restriction of the Geneva Convention relating to the Status of Refugees.59 A minor flaw is that the relevant provisions have not been transposed into the national administrative criminal law, although Hungary has been a party to the Geneva Convention since 1989.
Administrative offences relating to policing foreigners60 is also a fact that is intended to discourage irregular migration. According to this, a person commits an administrative
53 Chapter XXIV of Act II of 2012 on Offences, the Procedure in Relation to Offences and the Offence Record System.
54 In case of foreigners, the content of personal identification data is supplemented by the identification number of the residence card or passport in accordance with Section 151, subsection (2) point (f) of the Act on Offences.
55 Section 36 of the Act on Offences.
56 Section 67, subsection (1) of the Act on Offences.
57 Section 73, subsection (11) of the Act on Offences.
58 Section 158 of the Act on Offences.
59 In accordance with the Protocol (Section 31, subsection 1): “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
60 Section 208 of the Act on Offences.
offence if he/she breaks the regulations regarding the notification on, registration of, or stay of foreigners in the territory of Hungary. Although this offence can be committed regarding either persons having the right to free movement and stay or third-country nationals, irreg-ular migration; however, it exclusively affects those third-country nationals who arrive in the territory of Hungary having a permit (legally), but as regards the regulations on their stay there is negligence either by them or by others (educational institution, landlord). The effectiveness of administrative criminal law, contrary to the previous fact, can be measured in cases of institutions that do not comply with the administrative obligations on foreigners.
It is only a theoretical question that such administrative crime is committed by citizens of EEA, since in their cases the duration of stay cannot authentically be determined, while in case of third-country nationals, determining the administrative crime can only make sense of foreigners lawfully staying in the country, and in cases of persons residing without a permit, alien policing law may provide a solution to the arising situation.
In addition to the above two facts, there are several other facts in administrative crim-inal law that can be related to migration, in particular the administrative offence in border policing, especially one of its sections that describes the punishment in case of breach of prohibitive or restrictive provisions related to the order, surveillance and protection of the state border. Of these conducts, in particular, breach of norms related to border checks can be highlighted, such as the attempts of avoiding checks, ignoring the order related to the check, not complying with the order of the border crossing point, not following the prescribed rules of conduct in case of the refusal of entry and ordering return.61
In addition to administrative criminal law, there exist other non-punitive sanctions regarding the phenomena related to irregular migration. Public administration, since its very beginning, has had sanction instruments whose scope, in order to ensure the faster and more effective enforcement, extends to punitive legal sanctions.62 A good example of such sanctions in the Hungarian alien policing law is the possibility of penalty imposed on carriers or employers in the so-called vested responsibilities. In case of the former, car-riers providing travel accommodations to third-country nationals by means of air, water or scheduled road transport shall be required to check the travel document and visa of the planned stay for the period not exceeding 90 days, of their passengers before boarding for travelling to the Republic of Hungary or to another country through the territory of the Republic of Hungary to ensure that they have travel documents required for entry or for transit.63 For any failure to comply with the obligation, as set out in other specific legislation, a penalty for the protection of public order shall be imposed upon the carrier in question.64 Employers shall also be required to ascertain not later than the first day of work (before the employment) of a third-country national that the third-country national affected has the permit prescribed in this Act for staying and engaging in gainful employment. Additionally,
61 Cserép Attila – Fábián Adrián – Rózsás Eszter (2013): Kommentár a szabálysértési törvényhez. Budapest, Wolters Kluwer. 366–367.
62 Kis Norbert (2015): „Metszéspontok” – rendészettudomány, bűnügyi tudományok, közigazgatás-tudomány és transzdiszciplinaritás. Magyar Rendészet, Vol. 15, No. 4. 90.
63 Section 69, subsection (1) of Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals.
64 Section 69, subsection (4) of Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals.
employers are subject to other obligations, as well. Any employer who fails to satisfy the obligation shall be subject to a penalty – specified under other specific legislation – for the protection of public order imposed by the alien policing authority. Relating to the above, the main contractor and all subcontractors together with the subcontractor employer shall jointly and severally be liable for paying the penalty for the protection of public order if they knew, or had reasonable grounds to know that the subcontractor employer employs a third-country national without the permit prescribed for staying.65
The increasing migration situation in 2015 that affected Hungary 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.66 The purpose of these provisions was, on the one hand, to ensure the protection of the temporary border barrier by applying public administration sanctions and, on the other hand, to ensure the uninterrupted construction of the border barrier. Accordingly, it was stated that in order to protect the temporary border barrier, the person who enters without proper authorization the area of the temporary border barrier during the construction or the maintenance works of the temporary border barrier, or the person who carries out any activity that disrupts the ongoing construction and installation works, and the person who brings in drones or any remote-controlled devices the area of the temporary border barrier during the construction or the maintenance works of the temporary border barrier, respectively, is subject to pay a public administration fine.67 Additionally, the person who, during the construction or the maintenance works of the temporary border barrier, prevents the authorised official persons or the persons carrying out the work, as well as the official or transport vehicles heading to or leaving the area, from entering or leaving the area of the temporary border barrier is also subject to pay a public administration fine.68
Both facts serve to protect the establishment and maintenance of the state-owned premises constructed and installed to protect the order of the state border in order to ensure migration control, but crossing or vandalising the border barrier unlawfully, or disrupting the ongoing works way exceed the scope of imposing a public administration fine, and can be manifested in punitive legal provisions.69 The purpose of these facts, however, are directly connected to foreign persons with migration background, considering the fact that, in case of non-Hungarian perpetrators of such crimes, in accordance with the Hungarian Criminal Code exercising expulsion, as a punishment, regarding the offences involved cannot be by-passed.70 In consideration of the cases provided for by the special laws, the question keeps
65 Section 71, subsections (1)–(7) of Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals.
66 Government Decrees 211 and 213 of 2015 on the temporary border barrier.
67 See Section 2, subsections (1)–(3) of Government Decrees 211 and 213 of 2015 on the temporary border bar-rier – protection of border barbar-rier.
68 Section 3, subsections (1)–(2) of Government Decrees 211 and 213 of 2015 on the temporary border barri-er – obstruction.
69 See Sections 352/A, 352/B, and 352/C of Act C of 2012 on the Criminal Code – crossing or vandalising the border barrier unlawfully, or disrupting the ongoing works.
70 Section 60, subsection (2) of the Criminal Code.
arising in this paper: Do we necessarily need criminal law sanctions and the procedures leading to imposing such sanctions to remove the unlawfully entering and staying persons from the territory of the country (and of the European Union)?
Applying policing instruments instead of criminal proceedings
Apart from the functional separation between criminal proceedings and policing, and considering the effectiveness of the policing measures, in particular, its use to eliminate or interrupt directly disturbing conduct, or to immediately enforce penalties, the issue may still arise, whether or not policing is suitable for restoring impairment and eliminating unlawful situation instead of governing whether criminal law liability has incurred. The answer in this regard is affirmative. Policing can be called to assist to augment the safety net of criminal law71 in cases when the incurred impairment is minor or when eliminating the unlawful situation fulfils greater social needs rather than setting criminal liability. In the former case, the substantive criminal law provides ground for extinction, in the latter, we need to mention specific obstacles of criminal proceedings, among which there is a fine example when the perpetrator is a foreign person and commits his/her act from migration considerations.
In the Hungarian criminal procedure, we cannot find an independent subsystem, sum-marising rules and regulations that differ from the regular procedure, regarding prosecution of non-national persons. While concerning differentiation in prosecution related to the identity of the defendant, we may primarily think of prosecution against juveniles, military prosecution or prosecution against absent defendants or legal persons, respectively, similar specialisation against foreigners has not yet emerged. Due to the increasing phenomenon of migration, and considering the rising trend of crimes against foreigners, in particularly in cases of defendants with alien citizenship or stateless defendants, a number of specific features can be identified (authentic instruments proving citizenship, the right to use one’s own language due to the unfamiliarity with the language of the procedure, mandatory defence, the right to communication with consular authorities), it is timely to consider and reflect on compiling such criteria relative to criminal proceedings that differ from the regular ones, similarly to those in cases of juveniles, military personnel and the like. This can be carried out by expanding part 5 of the Act on Criminal Proceedings containing provisions diverging from the general rules with an additional new chapter.
A special obstacle to the system of criminal proceedings against foreigners is re-flected in the following: “No investigation may be launched due to the forgery of public deeds (Section 342 of the Criminal Code), if the forged or falsified travel document or the authentic travel document issued to the name of another person is used by a foreign citizen to enter the territory of the country, provided that an immigration control procedure may be instituted. This provision shall not apply, if an investigation must be started against the same foreign citizen for the perpetration of another criminal offence as well.”72 The section
71 Amberg Erzsébet (2014): Büntetőjogi változások – rendészeti reakciók. Pécs, Pécsi Határőr Tudományos Közlemények XV. 125.
72 Section 170, subsection (6) of the Act on Criminal Proceedings.
quoted here introduces an exception, due to practical considerations, from the principle of proceedings ex officio, serving as the theoretical basis of opening proceedings. The intention of the legislation is based on aspects of economic viability, according to which, if the crime committed was directed exclusively towards the entry to Hungary, in this present case in an unlawful way, and it involves alien policing procedures, no investigation may be launched.
The previously mentioned obstacle to investigation can only be applied if other uniform conditions are met. Firstly, we talk about special subjects. The perpetrator of the crime can only be a foreigner against whom prohibition of entry, ordering return at the border crossing or, as a part of alien policing procedures, expulsion can be enforceable. Due to the differentiation of foreigners by criminal law, this may refer to third-country citizens against whom the principle of non-refoulement has been taken into consideration or who have not initiated an asylum procedure in Hungary. The second condition stems from this one: the investigation cannot be launched only due to conducting the alien policing procedure. If the alien policing procedure cannot be conducted regarding the foreigner, due to his/her citizenship or asylum request, the investigation must be ordered in accordance with the general rules. Thus, this obstacle cannot usually be applied in case of persons having the right to free movement and stay, as well as their family members; nor can it be applied if the investigation must be initiated against third-country citizens due to whose intent or request for asylum revives the prohibition to return.
The detailed obstacle to investigation is not mentioned, however, in the 2017 Act on Criminal Proceedings. One can only guess its reasons, however, in case investigating criminal matters emerge from detecting forged or falsified travel documents in the future, it is still more effective to take alien policing measures. It is advised to set the legal basis of it in the act on criminal proceedings, but another solution may be, quoting Béla Blaskó’s wording on the matter, if the substantial criminal law, considering the issue an obstacle to investigation, has its response to the issue by a solution based on its own guarantee arrange-ments of its own traditional black letter law mechanism.73
Conducting criminal proceedings cannot be prevented by submitting the asylum request. This obstacle, as an international prohibition, stems from Article 31 of the 1951 Refugee Convention (Geneva),74 which states that the contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorization. The condition of the prohibition of penalty as quoted above is that the refugees in question shall present themselves without delay to the authorities and show good cause for their illegal entry or presence. Indirectly from the above, what follows is that the refugees have the obligation to submit their request for asylum where their life or freedom is no longer threatened.75 Another issue is that this obstacle was not integrated into the Hungarian rules of criminal proceedings, so in cases of persons who later were
73 Blaskó Béla (2015): Közigazgatás – rendészeti igazgatás – büntetőjog. Magyar Rendészet, Vol. 15, No. 4. 52.
74 In 1989 Hungary acceded by Government Decree 15 of 1989 to the Convention of 28 July 1951 relating to the Status of Refugees, and to the New York Protocol of 31 January 1967 that amended it.
75 Tóth Norbert (2016): „Államarcú” nemzetközi jog, avagy a 2015 őszén módosított magyar Büntető Törvénykönyv a menekültek jogállásáról szóló 1951. évi genfi egyezmény 31. cikk (1) bekezdése fényében.
In Hautzinger: op. cit. 243.
acknowledged as refugees during the asylum procedure, the criminality of forgery and falsification of authentic documents was practically excluded.
International provisions on asylum, however, do not exclude the possibility of apply-ing provisions of policapply-ing nature against the asylum-seeker durapply-ing conductapply-ing the asylum procedure. One of its institutions is asylum custody (administrative detention), which can basically guarantee the successful conduct of the asylum procedure by guaranteeing the asylum-seekers’ personal presence and availability during the entire procedure. However, it cannot be excluded that ordering administrative detention different in nature from alien policing may have an effect of deterrence for persons having their legitimate claim for international protection. It may also compromise the scientific and technical appraisal of asylum custody if, during housing, pronounced cultural and civilizational differences exist (hygiene, dietary customs, practice of religion, etc.) and, when locked up, the excessive period of the assessment of the asylum procedure (essentially, the lack of immediate and favourable decision) may also have adverse effects.76 Despite all that, this custody may prove to be a necessary coercive measure in cases if the final assessment of the asylum procedure in a large number of cases fail due to the asylum-seekers’ leave to unknown destinations.
Instead of assessing crimes committed, as mentioned above, due to the asylum proce-dures initiated without foundation, the so-called alien policing expulsion can be considered a coercive measure with the purpose of policing. It is ordered by the asylum authority, if it has established that the asylum-seeker is not entitled to international protection, and has no further right to stay in the territory of the country. Similarly to asylum custody, this legal institution may seem alien compared to the spirit of asylum, but in principle it cannot be of concern if the authority has the obligation to establish whether or not the asylum and the prohibition of expulsion is founded.77 Therefore, even in case of an unfavourable ending of the asylum procedure, there is no need to conduct the objective criminal proceedings concerning the crime committed in order to ensure entry or stay prior to applying for asylum or for the purpose of getting an asylum, it is more than enough to simply enforce asylum custody.