On 12 September 2018, the European Parliament voted to trigger proceedings against Hungary under Article 7 of the Treaty on European Union on account of the systemic threat to the core values of the EU. Five months later, the risk of a serious breach of core European values has increased as the Hungarian government and the ruling party further reduced the space for dissent and holding government accountable. This was achieved through enacting or enforcing laws that curb fundamental freedoms and further increase the government’s control over the media and the judiciary.
Developments related to the Rule of Law
September 2018 – January 2019
The Hungarian government is moving fast to
breach the red lines drawn by the European Parliament to complete its illiberal
state.
In November 2018, a new media empire was created
by owners donating 476 media outlets, including websites, newspapers,
television channels and radio stations with a combined revenue of about 190
million EUR in 2017, to the Central European Press and Media Foundation
(KESMA), a foundation founded and run by PM Orbán’s loyalists. Although the
competent departments of the Competition Authority internally proposed the
launching of a competition inspection procedure into the huge merger, this was
prevented by Government Decree no. 229/2018 (5 December 2018), which declared
the merger to be of national strategic importance. The Government justified its
decision in two words: “public interest”. Therefore, the merger was exempted
from a competition investigation. The launch of KESMA resulted in an
unprecedented concentration on the Hungarian media market, and the new entity
further contains significant printing, distribution and publishing capacities.
More than half of the revenue generated on the print newspaper market will be
under the control of KESMA. The media market and media plurality are seriously
distorted by this concentration, and fair economic competition is impossible
under these circumstances. KESMA became an enormously powerful government
mouthpiece.
A
series of protests erupted across the country and in Budapest in December 2018
in particular, after two controversial laws on overtime and on administrative
courts were adopted amid contested and chaotic parliamentary circumstances: the
Overtime Act and the Act on Administrative Courts. Neither the demands of the
demonstrations nor the controversial nature of the adopted laws was discussed
in the public broadcasting media. Following a demonstration in front of the
Parliament on 16 December 2018, thousands marched to the headquarters of the
public broadcaster (MTVA). Opposition MPs, using their privileges that allow
them to enter any public building, arrived at the scene and requested a meeting
with news editors. As no one was willing to meet them, MPs decided to spend the
night in the building, waiting for the protesters’ five demands, including a
call for an independent public media, to be read out on air. Private armed
security guards used force to remove the group of 13 MPs from the building;
they literally threw out some of them, one of whom had to be hospitalized.
Despite the MP’s express request to them, police were reluctant to intervene
and stood by idly. The prosecutor’s office refused to investigate the criminal
complaints made by the MPs, instead, it launched an investigation against the
complainant MPs for allegedly disturbing the operation of a public interest
entity.
On 13 December 2018, Parliament adopted two laws on
administrative courts that will be set up by 1 January 2020. The new courts
will decide on public administrative cases, thus their decisions will affect
fundamental rights such as matters related to elections, violations by the
police, asylum cases or the exercise of the right to peaceful assembly. Courts
will also decide on issues with significant economic relevance: disputes over
taxation and customs, media, public procurement, construction and building
permits, cases of land and forest ownership, land and real estate public
records or even market competition matters. There is a high risk that the new
system of court organization will pave the way for political interference in
the judiciary and will undermine independent adjudication.
The new system blurs the boundaries between the
executive power and the judiciary, thus violates the principle of the
separation of powers with several measures. The Minister of Justice will have
an enormous room for manoeuvre in judicial appointments. This allows the Minister
to control the selection process of judges from the publication of the call for
applications up to the final decision, and thus to effectively have the final
say in who gets to be a judge and who does not, without effective control
mechanisms. The new law allows for persons from outside the judiciary to become
judges at the administrative courts even with no prior judicial experience. If
a significant number of new judges with administrative backgrounds will flood
the administrative courts, the attitude and the experience of long-sitting
judges may easily become irrelevant. As the law currently stands, it is
possible that a person who is a subordinate of the Minister in the government
administration becomes an administrative judge selected by the Minister, will
adjudicate decisions of the very same Minister at the highest level of the
administrative judiciary. The Law will allow for misusing disciplinary
procedures against the critics of the court leadership, thus the work of
judicial self-governance bodies may be jeopardized as well. Moreover, the
Minister will have extremely broad powers over budgeting, regulations and
internal investigations. While the ministerial administration of courts is not
unprecedented in Europe, the reorganization of a relatively well-functioning
judicial branch provides the executive with an opportunity to pack the
administrative courts with loyal people without substantive control from
judicial self-governance bodies.
The concept for the law was prepared behind closed
doors giving the public only three workdays to comment on the proposal. The
legislative process has been flawed and both domestic legislation and the
Venice Commission’s standards on the legislative process were breached on
several occasions. Even though significant concerns about the rule of law were
raised during the parliamentary debate, the governing majority pushed the bill
through its lawmaking machinery at a vote which erupted into scenes of turmoil.
While the government itself requested the Venice Commission’s opinion on the
Bills, Parliament adopted the laws well ahead of the opinion’s publication,
which is not expected before March 2019.
A new law on freedom of assembly came into force
in October 2018, which has made it more difficult for Hungarian citizens to
protest. While the law clarified several controversial issues, it created a new
set of uncertain situations and very broad conditions for prior restraint.
Since the law came into force, authorities have been increasingly relying on
the uncertainties built into the law. Hence the police’s decision in many cases
will be challenged in court as broader powers for authorities often result in
prior restraints of protests. At the same time, in December 2018, several
organised and spontaneous demonstrations took place almost daily in Budapest in
front of the Hungarian Parliament and the Hungarian public TV broadcaster’s
building as well as in several cities across the country. During these
demonstrations, the police’s conduct was overall compliant with standards but
several cases of disproportionate use of force and restraining measures were
reported, which call for thorough and effective investigations. Several
protesters were arrested and charged with serious crimes, including collective
assault on a public official, based on only the testimonies of police officers
without further evidence.
The government has further stigmatised homeless
people as criminals. It has been trying to declare rough sleeping illegal since
2011. Now the Seventh Amendment to the Fundamental Law and an amendment to the
Petty Offences Act, both adopted in June 2018, ban homelessness by prohibiting
‘habitual residence’ in public spaces throughout the whole country, which
seriously violates human dignity. While the Seventh Amendment requires all
state bodies to protect Christian culture, it also conversely persecutes people
without shelter. Until now, sleeping rough could only be deemed illegal by an
act of parliament or by local decree in respect of certain parts of a public
place. Under the new rules, if people „use the public place habitually” and
they refuse to leave the premise after the police had ordered them to do so,
refuse to be taken to a homeless shelter, or this has occurred on already three
occasions, courts may punish them with community service work or confinement.
Until today,
around ten people are known to have been prosecuted in petty offence
proceedings since the new rules took effect. Three local courts have suspended
ongoing cases in November 2018 and turned to the Constitutional Court to annul
the amendment of the Act on Petty Offences referring to breaches of the right
to dignity, freedom of movement and the freedom to choose the place of
residence enshrined in the Fundamental Law and in the International Covenant on
Civil and Political Rights (ICCPR).
The 25% special
tax on immigration that is levied on financial support for activities and
organisations “supporting migration” came into force on 25 August 2018. The
first deadline for declaring and paying the tax was 15 September 2018. A number
of NGOs that had been identified by Fidesz politicians as the main targets of
the tax responded to media inquiries that the tax did not apply to them. In
response, the National Tax and Customs Administration issued a press release on
17 September 2018 that said, “certain organisations speak openly about
circumventing the laws and tax norms”. The tax authority warned it would
be strict in overseeing the tax law’s implementation and emphasised that if an
organization failed to pay the tax, it would also have to pay a fine. To date,
no tax audits have been launched or sanctions imposed, but some NGOs were
invited to a consultation with the Tax Authority.
On 14 December 2018, in a joint opinion, the
Venice Commission and the OSCE Office for Democratic Institutions and Human
Rights called on the government to repeal the tax law. The reasons put forward
in the opinion concluded that due to its vagueness, the doubtful legitimacy of
its aims and the excessiveness of state monitoring implied, the special
immigration tax constituted unjustified interference with the right to freedom
of expression and of association of the NGOs affected; would have a “chilling
effect” on the exercise of basic human rights and on individuals and
organisations that defend them; and would deter potential donors from
supporting these NGOs and hinder civil society engagement in legitimate human
rights’ activities.
In its response, the Hungarian Government refused
to consider the merits of the criticism. Instead, it dismissed the opinion by
claiming that the Venice Commission had become an actor in the fight between
pro- and anti-migration forces, siding with the former, and intended to put
political pressure on Member States opposing migration. A high-ranking
government official said that the Commission replaced its legal advisory role
with “a political pressurising feature”, and made it clear that the Hungarian
Government would not comply with the body’s recommendations.
On 24 January, the European Commission stepped up
the infringement procedure by sending a reasoned opinion to Hungary concerning
what the government has named the “Stop
Soros” legislation, effective since 1 July 2018, that criminalises
activities that support asylum and residence applications and further restricts
the right to request asylum.
The Hungarian government continued its crackdown
on academic freedom and university autonomy.
On 3 December, the Central European University (CEU) announced that it will launch
all of its U.S.-accredited degree programs in Vienna in September 2019 because
Hungary’s “Lex CEU” forbids it to accept new students after 1 January 2019. The
move to Vienna would guarantee that the university can recruit students in time
for the beginning of the next academic year. CEU emphasised that over the
course of 20 months, it has taken all steps to comply with Hungarian
legislation, launching educational activities in the U.S. that were certified
by U.S. authorities. Nevertheless, the Hungarian government has made it clear
it has no intention of signing the agreement that it negotiated over a year ago
with the State of New York, which would ensure CEU’s operations in Budapest for
the long term.
In October, gender
studies were removed from a list of approved university master’s programs
by a government decree. The government cited as the rationale for the decree
low enrollment numbers as well as the government’s ideological opposition to
gender studies programs.
The government has intensified attempts to put the
research institutes of the Hungarian
Academy of Sciences under direct political control, by seeking more control
over the research budget and claiming the academy’s network of research
institutes needs to be restructured to boost excellence in research and
innovation. The government insists that applied research should take precedence
over disciplines in the social sciences and says funding for innovation and
research should be separated. At the academy’s general assembly in December,
its president called for a full evaluation of the entire research and
innovation system in Hungary that is not limited solely to the academy. Many
academics suspect the evaluation is a disguise for the government to take
illegitimate action that would limit the freedom of researchers and force the
institutes to stay out of topics that government policies oppose, such as
gender studies or migration policy.
Earlier versions of the Church Law were found to be very problematic: in 2013, Hungary’s
Constitutional Court struck down significant portions of the law, and in 2014
the European Court of Human Rights ruled that the law violated religious
freedom and the freedom of association. In December 2018, the Hungarian
Parliament amended the Church Law, however, the changes failed to remedy the
rights violations found by the courts. The law introduces a four-tier system
for the legal status of religious denominations, and discriminatively regulates
the status of organizations in the lower tiers, especially in the lowest tier.
While courts have exclusive competence to register religious associations, the
most controversial parts of the law will not change as Parliament will continue
to decide which church may become an incorporated church, in a non-transparent,
politically motivated manner and based on uncertain criteria.
