People Smuggling in Hungary is major challenge for law enforcement authorities. Every 10th inmate in Hungarian prisons is accused of immigrant smuggling also known as Illegal transport of Migrants. In addition, the 80 % of these inmates are foreigners (Data of 2022)
People smuggling
This offense is also known as People Smuggling or Illegal Immigrant Smuggling. The official translation of the Hungarian Criminal Code uses the expression of Illegal Immigrant Smuggling. Both translations are good. However I use the expression of Migrant Smuggling because the United Nations uses this term in their official publications
Trafficking in Human Beings
While People Smuggling or Illegal Immigrant Smuggling are acceptable terms, the expression of ‘Trafficking in Human Beings’ is incorrect as this refers to an offense when the offender sells, purchases, exchanges, or transfers or receives another person as consideration; or transports, harbors, shelters or recruits another person for this reason. This is a criminal offense totally different form Illegal Illegal Transport.
What act qualifies as Illegal Migrant Smuggling in according to Hungarian Criminal Code?
Human smuggling in everyday wording is the facilitation, for financial or other material gain, of irregular entry into a country where the migrant is not a national or resident.
The exact legal definition is ’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 between one to five years. But this punishment is only applies in case the illegal transport of migrants is not for financial gain or involves just one person.’
What are the qualified cases of Illegal Transport of Migrants?
The penalty shall be imprisonment between two to eight years if illegal immigrant smuggling is carried out for financial gain or advantage; or involves several persons for crossing state borders.
The penalty shall be imprisonment between five to ten years in Hungary if illegal immigrant smuggling is carried out:
- by tormenting the smuggled person;
- by displaying a deadly weapon;
- by carrying a deadly weapon;
- on a commercial scale; or
- in criminal association with accomplices.
In practice, tormenting of the smuggled person covers the cases when many people travel in a pickup truck and they don’t have enough room and air. Or they don’t get enough water, or the driver does not stop for a long time. (Which is of course a risk for the offender)
In case, the transport of migrants is carried out with the combination of the above cases the punishment shall be between 5 to 15 years of imprisonment. What is more, the leader or organiser of a group dealing with the above crimes may get an imprisonment of maximum 20 years.
Why the Human Smuggling is is such a serious offence in Hungary?
The official reasoning is that the criminals behind this highly profitable business seize the opportunity created by the need or desire of people to escape not just poverty and lack of employment opportunities but also natural disaster, conflict or persecution.
This is true. However, I as a lawyer often see just unfortunate foreigners behind this act who are only drivers and who don’t know how and why this act is so grave. While they suffer pre-trial detention and get finally many years of imprisonment as a punishment in a foreign country.
Judicial practice of Migrant Trafficking in Hungary
In Hungarian Criminal Code when the judge imposes a punishment, he/she must start off the centre of the rate of punishment. For example, that is 5 years in case of an act punishable between two to eight years of imprisonment. Aggravating circumstances (for example long criminal record) and mitigating circumstances (for example if the suspect is a first offender, confession and repentance of the crime) may modify these 5 years.
In cases of Illegal Transport of Migrants, pre-trial detention is almost inevitable until the final judicial decision especially in case the offender is not Hungarian and does not have an official residence here.
Reintegration detention of foreign human traffickers from the end of April 2023
April of 2023 brought about significant changes in the sentencing of foreign human traffickers. The new rules supersede the Act no. CCXL of 2013 on the implementation of penalties, measures, certain coercive measures and detention for violations.
What does the new legislation say regarding the punishment of human smugglers?
The remaining time of the prison term imposed for human trafficking is changed to reintegration detention, and the person must leave the territory of Hungary within 72 hours. The reintegration detention has the same duration as the remaining imprisonment.
What cases of human trafficking does the new legislation apply to?
If the court imposed a prison term for human trafficking, and a the court also ordered deportation (so the perpetrator is a foreigner) and there are no pending criminal proceedings or other imprisonment due to another crime pending execution Sanctions and relation to other legislation
This legislation supersedes Act 3/2023. (I. 12.) It applies to those specified in the government decree (interruption of the execution of a sentence and return to a foreign country) and also to those in whose case this procedure has already started but who have not yet returned to their country.
If the convict does not leave the country within 72 hours, the reintegration detention is terminated and the sentence is to be carried out without the possibility of parole.