The Czech Penal Code to Criminalise Aid to Undocumented Migrants

The new criminal act is described as follows:

A person who in exchange for financial or other gain assists others in securing unauthorized residence in the territory of the country shall be punished by a prison sentence of up to one year or by a financial penalty or by a prohibition of business activity.

Harsher punishment is reserved for those who
- organize such criminal acts, or
- commit such criminal acts as members of an organized group, or
- commit such criminal acts repeatedly, or
- commit such criminal acts as soldiers at a time of armed conflict.

It is an aggravating circumstance if the perpetrator obtains a significant gain from the criminal act in question.

According to the explanatory report related to the amendment, however, the new criminal act whose introduction into the legal order is required by the European Union (Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorized entry, transit and residence, and Council framework Decision No. 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorized entry, transit and residence) targets not only those involved in organized people smuggling, but also all those who would “assist illegal migrants in an illegal way in securing unauthorized residence in the territory of the Czech Republic.” The explanatory report states that the amendment is also meant to prevent “unauthorized settlement in the territory of EU member states,” and to “minimize the chances of illegal immigrants to pursue integration outside of the framework of legality, which is usually done by way of additional illegal acts.” On the other hand, the report states that “acts motivated by emotional and in particular relational bonds to close persons” are exempted from criminal liability.

The explanatory report therefore makes it clear that the draft provision is to be an instrument of criminal law in the fight against illegal immigration.

The draft provision is inconsistent with:
-    The principles of modern humanity, which instruct people to help those in need and put this obligation above the law;
-    The need for social integration, which is aimed at avoiding the creation and maintenance of socially excluded groups that can become a moral problem as well as a source of real social ills (crime, spreading of infectious diseases);
-    The right to legal assistance (Article 36 of the Charter of Fundamental Rights and Freedoms) as well as the right to education, healthcare and access to services and housing. 

The draft provision is not in line with the acquis communautaire:
-    The criminal liability of legal entities is not provided for (Articles 2 and 3 of the framework Decision).

Asylum seekers have not been excluded as required under Article 6 of the framework Decision.

There are issues that are problematic with regard to human rights and social integration. There is a danger that the following persons and organizations will be criminalized:
-    Attorneys and other persons providing counseling and other services in exchange for payment (for example, the Austrian act stipulates an exemption for attorneys);
-    Humanitarian organizations providing assistance to all persons in need including illegal aliens (human rights NGOs, charities, shelters and soup kitchens for the homeless, etc.); 
-    All providers of paid accommodation;
-    Other providers of common services (doctors, childcare facilities);
-    Persons assisting their relatives;
-    Illegal aliens in the Czech Republic, because they help each other and thus become criminally liable.

Illegal residence of foreigners in Europe, i.e. the millions of people living in Europe illegally, is a problem that cannot be resolved only using instruments of criminal law. Criminal law has a role to play for example with respect to organized smuggling of people across state borders (borders are still perceived by the majority of people as a place where it is necessary to be extra cautious). Perhaps, criminal law may also play a role in prosecuting illegal hiring of foreigners. But as regards the mere assistance in securing residence, i.e. something that occurs independently of the person providing assistance, there should be no threat of criminal liability involved.

If the draft provision will not be used, it need not be adopted. If the provision will be used, however, it will equal to ostracizing all foreigners who encounter problems when navigating the extremely complex system of laws and regulations applicable to foreigners (including many citizens of countries with which the Czech Republic has signed visa waiver agreements, many Czech emigrants who have lost Czech citizenship, many children who cannot obtain the required documents after birth, etc.).

The illegality of residence in the Czech Republic is often disputable:
-    For example, the police may make a mistake and take away the right of residence from a foreigner. However, the foreigner decided to take the police to court and the proceedings take many years. Is such a foreigner an illegal alien during this time?
-    A Czech citizen is granted citizenship by a foreign country and therefore automatically loses his Czech citizenship and becomes a foreigner. Unless such a former Czech citizen obtains a citizenship of another EU member state, he is an illegal alien when residing in the Czech Republic although no one (often including himself) knows about it (this is how Radovan Krejčíř, the Czech businessman, became an illegal alien after becoming the citizen of the Seychelles).