Rule of Law Clinic submitted third-party intervention in cases pending before the European Court of Human Rights and dealing with the consequences of the so-called Stop Soros legislation adopted in Hungary in 2018.
The new law adopted in June 2018 introduced Article 353/A to the Hungarian Criminal Code, criminalising ‘facilitating or supporting illegal migration’. In March 2024 the European Court of Human Rights communicated three cases (Amnesty International Hungary v. Hungary, no. 42086/19; Hungarian Helsinki Committee v. Hungary, no. 44253/19; Open Society Institute Budapest Foundation v. Hungary, no. 44928/19), in which applicants complain under Articles 10, 11 and 18 of the Convention that the amendment to the Criminal Code (Article 353/A) constitutes a restriction of its freedom of expression and association for purposes not prescribed by the Convention.
Rule of Law Clinic, in its written observations, analysed the CJEU case-law on Stop Soros legislation, the use of ‘chilling effect’ in the Court of Justice jurisprudence and the notion of ‘pretext’ under Article 18 of the Convention. In Commission v Hungary (decided in 2020), the Court of Justice ruled that the restriction introduced with Article 353/A of the Criminal Code ‘is not justified’. The provision is too broad to be considered as a proportionate tool able to achieve a legitimate aim (such as fighting illegal migration). The Court of Justice found that criminal penalties introduced in Article 353/A have a ‘very significant deterrent effect’, and the whole legal provision ‘goes beyond what may be regarded as necessary to attain the objective of preventing fraudulent or abusive practices’.
EU courts have relied on the notion of a ‘deterrent effect’ (or ‘chilling effect’) in their reasoning in many areas, such as competition law or free movement law. Starting in 2020, the CJEU has also increasingly relied on this concept in ‘fundamental rights/EU values’ cases following an increasing number of EU cases raising issues ‘regarding respect for the rule of law, democracy and fundamental rights’ in ‘several Member States’. By adopting a holistic and prospective analysis of the combined and potential effects of the measures in dispute, the Court of Justice has offered an effective way to challenge this technique under EU law. A legal analysis of the potentially dissuasive effect of a piece of legislation as a whole is therefore sufficient to establish (or not) the existence of a failure to fulfil obligations.
Article 18 of the Convention is ‘directed at measures which, under the pretext of safeguarding fundamental rights, seek to achieve the exact opposite’. Scholars have called for Article 18 of the Convention to be utilised in the context of cases dealing with the rule of law backsliding. Evidentiary standards for substantiating pretext under Article 18 of the Convention departed from the standard of ‘direct and incontrovertible proof’ to that of ‘beyond reasonable doubt’. This submission offers a non-exhaustive typology of indirect evidence capable of proving a (predominant) ulterior motive behind legislative reforms: correlated rhetoric/public statements and measures; inconsistency between the measure and its rationale; deviations from normal procedures; false facts relied on in the decision-making process; eventual consequences expected or achieved.
The submission of the Rule of Law Clinic was prepared by Mariam Begadze, Barbara Grabowska-Moroz and Laurent Pech with the assistance of Lughaidh Kerin.
