Many people prosecuted for human smuggling in Hungary only did the driving: drivers who answered an online offer for a “ride”, or lorry drivers in whose cargo area people were found. Below we explain in question-and-answer form when human smuggling is a crime, what penalties apply, what happens after the arrest and what the defence looks at. The article is based on the Hungarian Criminal Code (Act C of 2012, “Btk.”) as currently in force. Everyone concerned is presumed innocent.
In brief: the key points
- Human smuggling means helping someone cross the state border unlawfully, for example by transporting or organising (Section 353).
- It can only be committed intentionally: someone who did not know and did not reckon with the passengers crossing unlawfully does not commit it.
- The basic offence carries 1–5 years, paid help to several people 2–8 years, and commercial or conspiracy cases 5–10 years.
- For foreign nationals, expulsion is generally mandatory alongside imprisonment, for at least two years.
- A vehicle owned by the accused and used for the offence must be confiscated.
- Pre-trial detention is common for foreign suspects, but criminal supervision or bail can be requested.
The basics
What exactly is human smuggling?
Human smuggling is committed by anyone who helps another person cross the state border in breach of the law (Section 353 (1)). Help can take many forms: driving people towards or across the border, organising the route, a meeting point or accommodation, or planning how to cross. Preparation is also punishable (Section 353 (6)).
How does it differ from facilitating unlawful residence?
Human smuggling relates to crossing the border. Helping a non-EU national, for money, to stay unlawfully in Hungary or another EU/EEA state is facilitating unlawful residence (Section 354), a misdemeanour punishable by up to two years’ imprisonment if no more serious offence is committed. In practice the distinction makes a significant difference to the penalty.
Is driving the car enough?
Yes, transport alone can amount to help. Liability, however, follows the person’s actual role: there is a big difference between a driver and an organiser, who in aggravated cases faces 10–20 years (Section 353 (5)).
Penalties
What is the penalty for human smuggling?
- Basic offence: 1–5 years (Section 353 (1)).
- 2–8 years if committed for financial gain, helping several people, or by damaging the border fence (353 (2)).
- 5–10 years if committed with ill-treatment of the smuggled persons, armed, carrying a weapon, on a commercial basis or in a criminal conspiracy (353 (3)).
- 5–15 years if these aggravating circumstances are combined (353 (4)).
- 10–20 years for the organiser or leader of the aggravated cases (353 (5)).
- Preparation: up to 3 years (353 (6)).
Why do most driver cases fall into the 2–8 year range?
Because payment is almost always promised for the ride (financial gain) and there are usually several passengers. A finding of a “commercial basis” or “criminal conspiracy” raises the range to 5–10 years, so the defence examines separately whether these are actually proven: a single ride or an occasional job does not necessarily amount to commercial or organised activity.
Intent and defence
What if the driver did not know who they were driving?
Human smuggling can only be committed intentionally. If the accused did not know, and did not reckon with the possibility, that the passengers were crossing unlawfully, the offence is not established. The court assesses what they could have known from the circumstances: the amount of payment, the route and timing, the passengers’ documents and behaviour, and messages with whoever arranged the ride.
And if people are found in a lorry?
The question is often whether the driver could have known about the people hiding inside. Consignment notes, transport documents, tachograph and location data, how the trailer was sealed and where the driver stopped can all show that the people got in without the driver’s knowledge. These documents should be kept and reviewed with the lawyer straight away.
What else does the defence look at?
The person’s role (driver or organiser), whether aggravating circumstances are proven, the distinction from facilitating unlawful residence, the interpretation of data from seized phones, whether interpreting and the records were lawful, and less restrictive alternatives to pre-trial detention.
Arrest and pre-trial detention
What happens after the arrest?
Custody usually follows, for up to 72 hours, during which a court decides on pre-trial detention. At the suspect interview the accused has the right to an interpreter and to remain silent. Phones, the vehicle and cash are usually seized.
Are foreign suspects remanded in custody?
Often, because the court may cite a risk of absconding. It is not automatic, however: the defence can apply for criminal supervision, electronic monitoring or bail if the aim can be achieved by a less restrictive measure. See: Pre-trial detention in Hungary – questions and answers.
What if someone goes home during the proceedings?
If the accused does not appear when summoned, an arrest warrant – including a European Arrest Warrant – can be issued. See: European Arrest Warrant in Hungary – Q&A.
Expulsion and the vehicle
Is expulsion mandatory?
For a foreign national sentenced to imprisonment for human smuggling, expulsion generally cannot be dispensed with. A fixed-term expulsion lasts twice the prison sentence, but at least two years (Section 60 (2a)). Exceptions apply to persons granted asylum and to those who have lived lawfully in Hungary for at least ten years or whose expulsion would violate their right to family life (Section 59 (2) and (4)).
Will the vehicle be confiscated?
Anything used as an instrument of the offence must be confiscated (Section 72 (1)). However, if the vehicle does not belong to the accused and the owner – for example a leasing company or employer – did not know about the offence in advance, it cannot be confiscated (Section 72 (3)).
How we help
After an arrest we immediately contact the authorities and the client, attend the suspect interview and the detention hearing, and apply for criminal supervision or bail. We establish what the accused actually knew and what their real role was, and represent them on expulsion and confiscation of the vehicle. We keep the family informed in English and Romanian. More: Human smuggling – defence lawyer 24/7 · guide: Human smuggling in Hungary.
Has a family member been arrested in Hungary? The first hours matter – call us 24/7: Dr. László-Tamás Benő +36 70 379 0245 (English, Hungarian, Romanian). Contact →
This article is general information and does not constitute legal advice.