Hungary is releasing hundreds of convicted people smugglers on condition they leave the country within 72 hours. Neighbouring countries are furious over an issue seen as another attempt to blackmail the EU over the freezing of billions in funds.
On Monday, Austria announced the strengthening of border controls and summoned the Hungarian ambassador over the decision by the Hungarian authorities to release hundreds of convicted people smugglers. Moreover, the release is on the condition that the criminals leave the territory of Hungary within 72 hours, according to the relevant government decree adopted at the end of April.
At first glance the measure seems odd, especially given Hungarian Prime Minister Viktor Orban’s many years of harsh rhetoric about the need to stop illegal migration and praising his country as the defender of Europe at the entrance to the so-called “Balkan Route” for migrants. Although Hungary has long been a source of concern for the EU over the nationalist-populist government’s measures to cement its power and undermine the rule of law, releasing convicted criminals based on a government decree is something astonishing even by Hungarian standards.
Technically, the legal basis for the decree is a special legal order that was introduced a year ago, which alluded to the war in neighbouring Ukraine. This so-called “state of danger” empowers the government to adopt decrees that derogate from existing laws. Releasing people smugglers has obviously nothing to do with the war in Ukraine, but given the government enjoys a two-thirds majority in parliament, allowing it to easily amend respective criminal provisions or even the constitution itself, it does not really matter in practice whether it is written into a decree or a law.
Please, reintegrate somewhere else!
The measure caused an outcry in Hungary because the release of these people smugglers is technically based on the misuse of an existing piece of legislation, the so-called “reintegration custody”.
This measure is an opportunity for less serious offenders to start reintegrating into society before they are finally released from jail. They are subject to restrictions, though: they can move to an apartment or house, start working or studying, but are strictly monitored with a tracker and can only leave their designated home for the purpose of work, studying, daily needs or healthcare. Furthermore, there are strict conditions on who is eligible for this: violent criminals and those serving more than five years are excluded.
Contrary to the general rules, people smugglers can now request reintegration custody absent any of the aforementioned limits. Practically, the only condition is that beyond the imprisonment they were also sentenced to expulsion. Expulsion is normally executed after serving the sentence, and can only be applied to criminals of foreign nationality. This means none of the released people smugglers is a Hungarian citizen and all must leave the country within 72 hours after being released.
This obviously turns the logic of reintegration custody on its head. The aim is clearly not these criminals’ reintegration, but that they clear off out of Hungary and reintegrate (or do whatever) somewhere else. Officially, there is a provision in the decree requiring the reintegration custody of the released to be continued in their country of origin or last place of residence, but this is not serious. Hungary has no legal tools against third states to impose such measures, and the released people smugglers are hardly likely to return to their countries if they are free to go anywhere in the Schengen Area. And this is where the anger of Austria is perfectly understandable – and the anger of other EU member states is only a matter of time.
The Hungarian ambassador to Vienna confirmed on Tuesday that so far 700 people smugglers have been released, most of them of Serbian, Ukrainian or Romanian nationality. He added that in total, 2,400 people are serving a sentence because of people smuggling. So, in principle, the number of released criminals could increase significantly.
Don’t send us money? We will send you criminals!
The reason behind the Hungarian government’s decision to unleash hundreds of people smugglers on Europe is clear and simple: money. In fact, the Hungarian government has already admitted as much.
At a press conference on May 11, the prime minister’s chief of staff, Gergely Gulyas, argued that the imprisonment of foreign criminals is too expensive for the budget. And on Tuesday, a state secretary under the interior minister, Bence Retvari, was even more direct: “Hungary had to take the decision to release more people smugglers because Brussels does not contribute to the cost of border protection, but punishes Hungary if its prisons are overcrowded. The EU does not give Hungary money to pay for the detention of people smugglers or to build prisons. But they expect us to detain them in domestic prisons, using Hungarian taxpayers’ money.”
This ‘Brussels does not send us any money’ should be seen in the wider context of the EU’s new Rule-of-Law Conditionality Regulation, which allows the European Commission to make the disbursement of EU funds conditional on member states upholding the rule of law in terms of spending EU money. This mechanism was applied against Hungary, the first EU country to be subject to it, at the end of last year.
Blackmailing threats by each side have been common in this saga over the suspension of EU funds, but as the wrangle between Hungary and the EU continues, they are getting more serious.
First, the initial reason for financial conditionality being imposed was merely corruption and the improper use of EU funds. This is why 6.3 billion euros from certain cohesion funds was suspended, in the framework of the Rule-of-Law Conditionality Regulation, a properly regulated procedure, with the approval of the Council of the EU (i.e., member state governments). This sum was something the Hungarian government could live with.
But the sanctions did not stop there, and were clearly related to the Hungarian government’s behaviour in foreign policy. Budapest has repeatedly lobbied to ease the sanctions against Russia by removing some influential Russians from the list or by insisting on certain exceptions; it has used unfriendly, sometimes even aggressive rhetoric against Ukraine; and it also blocked an agreement on a global minimum tax. These were entirely legal uses of its EU veto (or threats to veto, as eventually the Hungarian government backed all 10 sanctions packages against Russia), but were obviously regarded as politically undesirable.
Against this backdrop, the European Commission started to suspend further amounts of EU money to Hungary and established additional requirements for releasing any frozen funds.
First, 5.8 billion euros in payments out of the pandemic recovery fund were blocked, and can only be released if Hungary implements a comprehensive reform of its judicial system beyond the anti-corruption measures that are part of the official conditionality mechanism. Second, at the end of 2022 it turned out that all cohesion funds for Hungary (in total 22 billion euros) would be linked to so-called “horizontal enabling conditions”, among which, again, judicial reform is required, as well as meeting concerns about academic freedom and LGBT rights. These further suspensions were decided on a questionable legal basis by the European Commission alone, without involving other member state governments in the Council of the EU or the Court of Justice of the European Union.
At this point, the European Commission clearly went beyond legal debates and started to use financial conditionality to enforce desired policy objectives.
The suspended amounts are huge, 34 billion euros – and this is money the Hungarian government desperately needs. As such, it recently put on a surprisingly friendly face and showed a willingness to compromise by adopting a number of reforms to release the funds. However, many of these reforms are regarded as cosmetic rather than representing any real change.
No wonder, then, that after almost half a year since the EU funds were suspended and little sign they will start flowing anytime soon, the Hungarian government has decided to start playing hardball again.
After the empty threats, this could really hurt
The Hungarian government’s tactic of raising the stakes with some provocative new legislation after receiving harsh criticism or sanctions from the European Commission is nothing new. That was the case recently, when it restricted LGBT content in the media and accused Brussels of forcing transgender propaganda on Hungarian children; or when it blamed high inflation on the EU’s sanctions on Russia, even though Hungary went along with voting for them in the European Council.
Yet the releasing of convicted people smugglers is on a whole different level. The legislation perceived as “anti-LGBT” concerns those inside Hungary and its only effect outside the country are indignant newspaper articles and some activists putting a rainbow filter on their profile picture on social media.
But now convicted criminals are being released and could end up on the doorstep of not only Brussels, but of many Western member states whose governments are influential in the Council of the EU.
The timing by the Hungarian government is perfect. Illegal migration has once again become a hot topic in several member states. Not long ago, the Austrian government vetoed the Schengen accession of Romania and Bulgaria on these very grounds, but even so it could not prevent the strengthening of the far right: the FPÖ is now confidently leading the polls in the country. Similarly, in Germany the AfD is gaining strength. These are the parties that are Fidesz’s European allies, and they could exploit the issue of people smugglers running free as further evidence of their governments’ lax attitude towards migration.
These parties could only be more grateful to the Hungarian government if it had also rented apartments in Berlin’s Prenzlauer Berg or Vienna’s 7th district to help ‘reintegrate’ the released people smugglers.