Tag Archives: European Court of Human Rights

Hungarian NGOs embrace civil disobedience

I don’t think anyone was surprised when two days ago the Hungarian parliament with its overwhelming, almost two-thirds Fidesz majority passed a law imposing strict regulations on foreign-funded non-governmental organizations. The law bears a suspicious resemblance to the 2012 Russian law that required groups that received funds from abroad to identify themselves as “foreign agents.” The Hungarian version is somewhat more “lenient.” The targeted NGOs don’t have to call themselves “foreign agents,” but they must bear the label that they are the recipients of foreign funds, which can be considered a stigma.

Defenders of the bill insist that there is nothing “discriminatory” in this new “civic law,” but, of course, this is not the case. If it were, there wouldn’t be so many “exceptions” to the rule. For example, churches and sports clubs are exempt. Fidesz politicians feel confident in capitalizing on how the Hungarian everyman reacts to anything foreign, especially after a series of anti-migrant campaigns that, as we know from polls, greatly increased xenophobia in the country. Just imagine an interview with the managing director of TASZ, the Hungarian Civil Liberties Union, in which either she must introduce herself or the reporter must introduce her as “the leader of a foreign-funded organization.”

Fidesz’s pretext for enacting such a law is the government’s alleged striving for more transparency and for preventing money laundering and the financing of terrorism. Anyone at all familiar with the work of such organizations as TASZ, the Hungarian Helsinki Commission, or Amnesty International, three NGOs that are specifically targeted by the government, knows that it is not money laundering that is bothering the Orbán government. Over the years these NGOs have become increasing irritants as far as the Orbán government is concerned. Every time the lawyers working for these NGOs suspect illegality they immediately turn to the courts, and they almost always win. As far as Fidesz and the Orbán government are concerned, this is an intolerable situation.

The government’s position is that human rights activists are not elected officials and therefore they have no right to act as a quasi-political opposition to the elected government. Of course, this argument is unacceptable in a democratic society where people can freely organize political associations on pro- or anti-government platforms. Even political parties fall into the same category. They are voluntary organizations ruled by their own by-laws and their own boards of directors. All these groups have the right to function freely as long as they act in a lawful manner. Fidesz has pretty well succeeded in making the other political parties inconsequential. But the NGOs refuse to go away or kowtow to the government. And so it was time, somehow or other, to get rid of these pesky civil rights activists with their highly qualified lawyers who keep poking their noses into the Orbán government’s dirty business.

Viktor Orbán hates these organizations, whom he considers in large measure responsible for many of his problems with the European Union, the European Court of Justice, and the European Court of Human Rights. If these organizations hadn’t existed, he wouldn’t have had half the problems he has had over the years with the European Commission.

With the anti-NGO law, Orbán is most likely convinced that the small, cosmetic alterations the government made by incorporating some of changes recommended by the Venice Commission will satisfy the European Commission, as similar superficial modifications to Hungarian laws satisfied the commissioners in the past. For a few days foreign papers will be full of articles condemning the undemocratic, illiberal Hungarian state and a few foreign governments will publish official statements expressing their disapproval of Orbán’s latest move, but nothing of substance will happen. In fact, in a couple of days everybody will forget about the bill and its consequences. Then, sometime in the future, the Orbán government will make another move against the NGOs. Because few observers believe that this will be the last attempt to get rid of the NGOs that stand in the way of the present Hungarian government.

Only a few hours after the enactment of the “civic law,” TASZ announced that it will not obey the law, i.e. it will not register as the law demands because “this is the most effective way of combating this unconstitutional law.” According to TASZ, the law violates the freedoms of speech and association and unlawfully differentiates among civic organizations. TASZ’s lawyers are also convinced that it violates EU laws because the legislation violates the European Union’s internal market rules, in particular the free movement of capital. TASZ is prepared for the consequences of its action. Máté Szabó, professional director of TASZ, argued along the following lines: “Some of the enforcement possibilities will be open to us only if we don’t comply with the law. Since we do not want to relinquish a single law enforcement option, we will not comply with the requirements of the law.” Stefánia Kapronczay, executive director of TASZ, said: “We are aware of the fact that legal procedures will be initiated against us, but we are not afraid of them. Yearly we represent our clients in more than a hundred cases in the courts of Hungary, the Constitutional Court, and the Strasbourg court…. I’m convinced that after long procedures this law will have to be discarded.” The Hungarian Helsinki Commission joined TASZ in boycotting the new law on civic groups. “Unless and until the Hungarian Constitutional Court and/or the European Court of Human Rights hear the case and approve the law, we will not register.”

I think that the decision of these two civic organizations is the correct one, even if László Trócsányi, minister of justice, announced that “civil disobedience is not known to me, nor is it known in [our] legal system.” This was obviously meant not as an admission of ignorance but as a warning to TASZ and the Hungarian Helsinki Commission. However, I would like to remind Trócsányi that his lawyers don’t have a great track record against the lawyers of these two NGOs.

June 15, 2017

Mária Schmidt and Zsolt Bayer on the fate of Europe

Viktor Orbán’s court historian, Mária Schmidt, has written an article that can perhaps be described as something between a book review and an attack on Germans and Germany. The occasion for her piece was the appearance of a new book by Hans-Peter Schwarz, a conservative political scientist and historian, titled Die neue Völkerwanderung nach Europa: Über den Verlust politischer Kontrolle und moralischer Gewissheiten. Due to Schmidt’s cavalier handling of borrowed text, it is hard to tell how much of the article actually reflects the ideas of Schwarz and how much comes from Schmidt’s own view the world. My sense is that Schwarz’s book is only an excuse for Schmidt to espouse her peculiar views on the state of Europe.

In the article, which bears the title “Egg without its shell, country without borders,” Schmidt vents her anger over the elimination of borders within the European Union. For Schmidt, the removal of borders meant “the abandonment of [the countries’] defense capabilities and thus their national security which are indispensable instruments of national sovereignty.” So, she continues, “Schengen soon became popular among tourists and businessmen, and naturally among drug dealers, human traffickers, prostitutes, pimps, and, naturally, international terrorists.” In brief, it was a dangerous experiment which by now cannot be undone and which leads ever more closely toward federalism. So, if I understand her correctly, if it depended on Mária Schmidt, she would dismantle the single market that seeks to guarantee the free movement of goods, capital, services, and people throughout the European Union. Some people in Hungary claim that this is the path Viktor Orbán will argue for in the future.

Schmidt’s venom is also directed against the European Court of Human Rights, which is “the favorite organization of federalists.” In Schmidt’s opinion the ECHR is largely responsible for the European Union’s crisis, mostly because, according to the court, human rights have priority over the defense of the borders, which means that the European Union became defenseless against the invasion of outsiders. In her tirade against the court, she recounts all the decisions that went against Hungary. The court, with the effective assistance of Soros-financed NGOs, will bankrupt Hungary, which is trying its best to save Europe from the migrants.

Schmidt’s hatred of Germans and Germany has no bounds. Germany was responsible for a borderless Europe which, as we already learned, is the source of all the evil that has befallen the European Union. The Germans are unable to get rid of their feelings of guilt associated with the Third Reich and what it entailed, and therefore they “dream of a federal Europe hoping to leave Hitler behind.” But in their eagerness to build a real union “they forget that a new German-led, unified Europe was in fact Hitler’s cherished dream.” Thus, Schmidt accuses today’s German politicians of continuing Hitler’s conquest of Europe by other means. And, she adds, “as we know, the ideology of socialism began its conquest of the world in Germany and socialism both in its national and international version is deeply rooted in German thinking.”

Mária Schmidt, very deep down, must know that the Hungarian government’s treatment of the refugees is unacceptable by any moral standard. She naturally knows what world opinion is of the Orbán government’s treatment of the refugees and its anti-refugee propaganda that poisoned the souls of Hungarians. One way of minimizing this anti-social behavior is to belittle the magnanimity and compassion of others. This is exactly what Schmidt does when she writes that “in 2015 the entire German elite and public fell in love with their own goodness and generosity, with their chancellor in the lead. They enjoyed the perception that they are now on the right side of history and that they are good-hearted, generous people, helping people in need.” Of course, the German people were told that it was time to be generous, and “once the Germans are told what to do, they don’t stop until they reach the bunker.” Once they receive the so-called order “wir schaffen das,” the consequences don’t matter. “A command is a command.”

It seems that it is not only the Germans who mask their “sentimental and romantic” nature with “arrogance and cynicism,” but the Council of Europe also believes that “the most important task is to prevent humans from drowning in the sea! Thus, the priority is not to halt the surging crowds but to save humans.” Can you imagine?

Schmidt spends considerable time on misinformation being spread in the West about Hungary in general and about the Orbán government’s treatment of the refugees in particular. There is nothing new in her arguments about the manipulated media of the West except for one amusing item. Schmidt uses President Trump’s “memorable” sentence–“The fake news media is not my enemy; it is the enemy of the American people”–as an epigraph for her section on “Fake news media.” Quite a literary coup for a man who, according to Philip Roth, is “incapable of expressing or recognizing subtlety or nuance, destitute of all decency, and wielding a vocabulary of seventy-seven words that is better called Jerkish than English.” Decrying all the fake news about Hungary and bolstering her defense with Donald Trump’s attack on the media is pretty low. According to the latest Fact Checker’s ongoing database, Trump in 119 days made 586 false and misleading claims. Moreover, as Ruth Marcus says in today’s Washington Post, Schmidt’s idol “is impervious to embarrassment, no matter how blatant his falsehood.” To use the words of a liar to pass judgment on others is a peculiar way of defending one’s alleged truth.

Of course, the hero of Europe is Viktor Orbán, who stopped the flow of migrants who otherwise would have run down Europe. He saved Europe with his brave move of stopping the invaders at the Serbian-Hungarian border. The following picture appeared with the article.

This depiction of the alleged result of migration is the death of Europe as we know it. That brown foot tells it all. Schmidt is very careful, the word “white” nowhere appears in her essay, but Zsolt Bayer, another favorite of Fidesz and Viktor Orbán, is much more outspoken in his essay that appeared in Magyar Idők today. As far as he is concerned, the Europe Hungarians so fervently wanted to belong to during the Kádár regime in fact no longer exists. That Europe was the world of “white people,” but now the Western Europe of old is gone. He recalls the popular German television series Die Schwarzwaldklinik, which depicted life in the Black Forest where one could see beautifully kept lawns, clean streets, elegant cars, villas, and “white people taking care of their problems who were Europeans like us, only much richer, luckier, happier and freer but still familiar.” Hungary will not accept the demands of the European Union in the name of solidarity. The real solidarity means that “when the European white Christian people lose the battle in the defense of their own past, then we–the humiliated, the betrayed and the despised—will welcome them. However, in the meantime, we will not tolerate lecturing and empty threats. Is that clear?” I guess it is.

May 20, 2017

The Hungarian government’s flouting of European law and human rights

Two weeks ago the European Court of Human Rights (ECHR) handed down a decision that may affect part of Viktor Orbán’s solution to the refugee crisis. He might not be able to continue incarcerating asylum seekers in so-called transit zones.

Hungarian civil rights activists were encouraged by the Court’s decision, especially since the latest amendments to the Law of Asylum, passed not long ago by the parliament, envisaged these container transit zones as the sole means of handling asylum applicants. In fact, it was today that the amended law came into effect.

After ECHR’s ruling, the leaders of the government parties began suggesting in all seriousness that Hungary should simply suspend its adherence to the Convention for the Protection of Human Rights and Fundamental Freedoms, originally adopted in 1950. This is not a joke, just as it is not a joke that Hungary is pursuing the issue of the red star on bottles of Heineken beer. Both are hopeless efforts by a government that is acting even more strangely of late than it normally does.

A week ago Monday, Imre Vejkey (KDNP) began the attack on the Convention: “Now is the time to think about terminating Hungary’s adherence to the Convention or at least suspending some of its provisions.” On Thursday János Lázár said at his press conference that the government considers the verdict “unacceptable and impossible to implement.” Although the decision was unanimous and the Court is unlikely to reverse itself, the Hungarian government insists on appealing the judgment. By Friday Zoltán Kovács, the government spokesman, announced on ATV that “the ministry of justice will have to examine what kinds of obligations” Hungary has under the terms of the Convention. On Sunday Lajos Kósa, the leader of Fidesz’s parliamentary caucus, said that if Strasbourg continues criticizing Hungary’s migrant policies “we must relinquish” our adherence to the treaty. He even accused the Hungarian Helsinki Commission of “profiting from the migrant crisis at the expense of the Hungarian government.” He was alluding to the fact that the Court, in addition to the 5.8 million forints awarded to each of the refugees, granted 2.7 million forints to the Hungarian Helsinki Commission for their work on the case.

Együtt, one of the smaller opposition parties, compiled a list of what Hungarians would be deprived of if Hungary turned its back on the Convention and consequently on the Council of Europe. The list is long: right to equality; freedom from discrimination; right to life, liberty, personal security; freedom from slavery; freedom from torture and degrading treatment; right to remedy by a competent tribunal; freedom from arbitrary arrest and exile; right to a fair public hearing; right to be considered innocent until proven guilty; right of free movement in and out of the country; right to asylum; right to own property; right to education. And we could continue. But Lajos Kósa sees no problem whatsoever with the suspension of the Convention because “in Hungary it is not the legal force of ECHR that guarantees human rights but the Hungarian Constitution and other international treaties.”

This is all just talk. The consequences of such a move would be so severe that no country, especially a member of the European Union, could seriously entertain it. The very first consequence of such folly would be a loss of membership in the Council of Europe. That in turn would result in serious conflict with, or even expulsion from, the European Union. So, Kósa can demand all he wants that the government in the name of Fidesz suspend adherence to the Convention. Nothing of the sort will happen. After all, in Europe there are only three countries that are not signatories: the Vatican, Kosovo, and Belarus.

As for the Hungarian Helsinki Commission, Márta Pardavi, co-chair of the organization, doesn’t seem to be at all frightened by the threats made by the government against the institution as a beneficiary of the migrant business. She reminded Kósa of the kind of business the Hungarian government is conducting via the settlement bonds, sold to thousands of people for 300,000 euros each. So, Kósa should not accuse others of financial gain from the miseries of refugees. (Of course, there are refugees and “refugees,” with staggeringly different levels of misery.) As for the 2.7 million forints for legal fees, she finds the amount perfectly reasonable. Unless she hears something similar from the government itself, she considers Kósa’s semi-incoherent words on the subject mere “political rant.”

The government is remaining quiet for the time being. But its actions show that it was’t impressed with the Court’s verdict or with the Hungarian Helsinki Commission’s repeated assertion that the government’s latest law on asylum is illegal not just according to the Court in Strasbourg but also according to the Hungarian Constitution. The Hungarian Helsinki Commission again had to turn to ECHR on Friday in order to put an immediate stop to moving a pregnant woman from Uganda and eight refugee children who had been housed in Fót to the transit zone near the Serbian border. The woman had been a victim of torture and is currently suffering from psychological trauma. As far as I know, the government refrained from the forcible removal of these people, at least for the time being.

It looks like a lecture to me / Source: Népszava / Photo József Vajda

Meanwhile Dimitris Avramopoulos, EU commissioner for migration, arrived in Budapest to conduct negotiations with Sándor Pintér, minister of the interior, and László Trócsányi, minister of justice. Avramopoulos’s job was to drive home to Budapest that all member states must comply with the Union’s rules and that human rights is one of the basic principles that must be adhered to. At the end of the negotiations it was announced that a working group will be formed to examine whether the Hungarian law infringes on the laws of the European Union. According to legal scholars, it unquestionably does. It would be time for the European Union to put an end to the Hungarian government’s games because nothing good can come of them as far as the future of the Union is concerned.

March 28, 2017

European Court of Human Rights on Hungary’s refugee policy

The European Court of Human Rights handed down a decision yesterday that may affect part of Viktor Orbán’s solution to the refugee crisis. He might not be able to continue incarcerating asylum seekers in so-called transit zones.

The case involved two refugees from Bangladesh, Ilias Ilias (24) and Ali Ahmed (27), who arrived at the Serbian-Hungarian border on September 15, 2015 and were subsequently detained in the transit zone for 23 days. The transit zone toward Hungary was fenced in and guarded. After two sets of asylum proceedings, they were expelled from Hungary on the strength of a government decree that lists Serbia as a safe country. Yesterday the Court declared that the Hungarian authorities handling the case had violated the rights to liberty and security as well as the two men’s right to an effective remedy. The court also found that “the Hungarian authorities failed to carry out an individual assessment of each applicant’s case; disregarded the country reports and other evidence submitted by the applicants; and imposed an unfair and excessive burden on them to prove that they were at real risk of a chain-refoulement situation.” The decision was unanimous. “As just satisfaction, the European Court held that Hungary was to pay each applicant 10,000 euros in respect of non-pecuniary damage and 8,705 euros for costs and expenses.”

Already in 1996 the European Court of Human Rights had handed down a ruling, not involving Hungary, that it was illegal to keep asylum seekers in “detention camps.” A couple of years ago the Hungarian government agreed to abide by that ruling, presumably in the hope that most of the refugees, once free to move about, would leave Hungary for greener pastures. That is exactly what happened. But once the Hungarian government realized that it was unable to handle the flow of refugees, Orbán decided to build a fence to prevent refugees from entering the country. The few who were allowed through the fence were subsequently kept in so-called transit zones while their applications were reviewed. The government’s legal experts believed that these transit zones were different from the detention centers the Court found illegal because these “container” zones were open toward Serbia. The Hungarian government maintained that these zones have extra-territorial status, i.e., they are not situated within the borders of Hungary. Viktor Orbán likened them to airports. The judgment of the European Court of Human Rights, however, stated that the Hungarian transit zones are under the jurisdiction of the Hungarian state and are not “extra-territorial institutions.” In brief, there is no difference between detention centers in the middle of the country and transit zones at the border.

Hungarian civil rights activists are encouraged by the Court’s decision. They find this judgment especially timely because the latest amendments to the Law of Asylum, just passed by parliament and countersigned by President János Áder, envisage these container transit zones as the sole means of handling all asylum applicants.

What is the Hungarian government’s reaction to the verdict? There’s no official word yet from the government itself, but Fidesz announced that it was an absurdity. “For Hungary to pay when it observes and complies with EU rules and protects not only the country but also the borders of Europe” is incomprehensible. They stand by their belief that the migrant crisis can be handled only with a forceful defense of the borders, and they will withstand all the pressure coming from Brussels and Strasbourg. To ensure that Hungarians’ hatred of the refugees doesn’t wane, they will have a new “national consultation” so “the people will be able to tell their opinion of the immigration policies of Hungary and Brussels.”

Meanwhile major international newspapers are critical of the Hungarian government’s treatment of the refugees in general, especially since there is increasing evidence that some of the policemen serving along the borders mistreat those who illegally try to enter the country. In addition, about 80 asylum seekers in a detention center in Békéscsaba began a hunger strike on Monday protesting their incarceration. On March 13 The New York Times in an editorial harshly condemned the Hungarian government’s inhumane treatment. The editorial begins with these words: “Hungary’s cruel treatment of refugees has reached a new low.” The editorial justifiably points out that while “Mr. Orbán derides the European Union’s values, Hungary has no trouble taking its support, having received 5.6 billion euros from the union in 2015.” The final verdict is that Hungary treats “desperate refugees with incredible cruelty.”

To round out this post, let me say a few words about the celebrations on Hungary’s national holiday in remembrance of the 1848-1849 revolution and war of independence. The little I saw of the crowd gathered in front of the National Museum, where Viktor Orbán spoke, was disgusting. There was a confrontation between Fidesz loyalists on one side and followers of Együtt’s Péter Juhász, with whistles, on the other. During the encounter the loyalists hurled all sorts of obscenities at the whistlers. They also claimed that the Együtt protestors were “members of the AVH,” the dreaded state security police that was dismantled after 1956. The reporter for ATV was called a Jewish stooge. All in all, just another terrible national holiday.

I haven’t yet read Viktor Orbán’s speech in full, but one sentence caught my eye. According to Orbán, the nations of Europe are in a state of insurrection. As he put it, “the winds of 1848 are in the air.” In 1848 one revolution after the other broke out in Europe against the European monarchies, beginning in Sicily, spreading to France, Germany, Italy, and the Austrian Empire. Orbán Viktor blithely compared the democratic revolutions of 1848 to the dark forces of the extreme right on the rise today. He is keeping fingers crossed for victories by Geert Wilders and Marine Le Pen, after his favorite Donald Trump won in the United States. Well, I’m happy to announce that Mark Rutte’s People’s Party for Freedom and Democracy (VVD) won the election, getting 31 seats in parliament, against Wilders’s Party for Freedom (PV) with 19 seats. This is the second disappointment for Viktor Orbán. The first was the Austrian presidential election, which ended in a victory for a Green candidate, Alexander Van der Bellen, instead of Orbán’s favorite, Norbert Hofer of the far-right FPÖ. And as things stand now, it is unlikely that Marine Le Pen will be the next president of France. What a disappointment for the Hungarian leader of the far-right Fidesz.

March 15, 2017

On László Botka’s nomination and an NGO win

I will try to cover two topics today. First, I will share my initial reactions to László Botka as the official nominee of MSZP for the post of prime minister. And second, I will give an example of the kind of success NGOs can achieve in defending the rule of law in Hungary.

László Botka’s nomination

This morning, on Klub Rádió’s call-in-program “Let’s Talk It Over,” I listened with great interest to the by and large enthusiastic reception of MSZP’s nomination of László Botka as its candidate for prime minister. I myself was also glad that at last MSZP, a party known for its confused messages and timidity, had made a definitive move. I still welcomed the move, although initially I had disapproved of MSZP’s decision to act on its own. I hoped that the socialist leadership had explained to Botka that he must have an open mind in his negotiations with the Demokratikus Koalíció because Botka’s opening salvo against the chairman of DK didn’t bode well as far as future negotiations were concerned. And without DK there is no possibility of forging a workable election alliance.

Great was my disappointment when I read the short summary of Botka’s program in 168 Óra. In Botka’s opinion, the Third Way, which can be described as a political position that tries to combine right-wing economic and left-wing social policies within the social democratic movement, proved to be a failure in Hungary. He named Ferenc Gyurcsány as the chief proponent of this political philosophy. The failure of the Third Way, he said, led to the rise of populism and the stunning electoral victory of Viktor Orbán.

I would need a little more time to ponder Botka’s theory, but at first blush it doesn’t strike me as a valid criticism. One obvious counterargument is the growth of populism throughout the western world without either a Third Way or Ferenc Gyurcsány. I would suggest that Botka consider the 2008 world economic crisis as one possible cause of our current problems. With a little effort we could come up with many other factors that would counter Botka’s theory, among them the very strong showing of Fidesz from at least 2002 on, when experimentation with Tony Blair’s brainchild was still nowhere.

In any case, if Botka is serious about becoming the candidate of all democratic parties he should reconsider his attitude. Otherwise, his failure is guaranteed. One can’t start negotiations from such a position.

DK’s reaction was muted. Csaba Molnár, deputy chairman of DK, announced that they are expecting Botka’s call, adding that they agree that a new program is necessary for the removal of the Orbán government. He offered DK’s almost 80-page program “Hungary of the Many” for his consideration.

The Helsinki Commission (and Friends) and the European Court of Human Rights

The Orbán government has singled out three NGOs as the most objectionable: the Helsinki Commission, Transparency International, and Társaság a Szabadságjogokért (TASZ), which is the Hungarian Civil Liberties Union. These three organizations stand for freedom, equality, the rule of law, human rights, and transparency. They call the government to account when it doesn’t follow the country’s laws or doesn’t fulfill its international obligations. Naturally, they are incredible irritants to the Orbán government.

One such case in which they called the government to task was the nomination of a Hungarian judge to the European Court of Human Rights.

Since, after 2010, the Hungarian Constitutional Court has been filled with government appointees, the “last resort” of NGOs is often the European Court of Human Rights (ECHR) in Strasbourg. The Court’s current Hungarian judge is András Sajó, a legal scholar, university professor, and member of the Hungarian Academy of Sciences, whose nine-year tenure will expire at the end of the month. Therefore, the Orbán government will be able to nominate one of its own.

According to Council of Europe policy, the nomination must be democratic and transparent. If not, the nominee might be rejected. Three names ought to be submitted for consideration, and their nomination must be preceded by an open application process.

Knowing the Orbán government’s attitude toward such international obligations, the Helsinki Commission was worried already a year ago about the government’s plans for the nomination of a new Hungarian judge. Therefore, they inquired from László Trócsányi, minister of justice, about the progress the government had made. The answer was worrisome because Trócsányi called the prescriptions of the Council of Europe “recommendatory documents.” In June, the Helsinki Commission inquired again and was told that the ministry of justice was in the midst of consultation with experts. When asked who these experts were, the ministry refused to divulge their identities, citing privacy rights. It then informed the Helsinki Commission that the list of names had already been submitted to the court. In response, 11 NGOs together demanded the withdrawal of the submitted names and asked for an open application process. This time, the ministry of justice didn’t even bother to answer their letter.

At this point 15 Hungarian NGOs informed the Council of Europe about the illegality of the Hungarian nomination process. It turned out that of the three submitted nominees two were closely connected to the current Hungarian government: one was an adviser to Trócsányi and the other was a department head in the ministry of justice who at one point had represented the Hungarian government in a case before the ECHR.

The General Meeting of ECHR decided against the two objectionable candidates, and so the Hungarian government turned in two new names. One of the replacements was also connected to the ministry of justice. And the open application process was again ignored.

The NGOs complained and this time turned to the ECHR. In response, the secretary-general of ECHR indicated to the Hungarian government that in the absence of an open application procedure, the nominees will be rejected. At this point the Orbán government threw in the towel. In October it withdrew the nominations and announced it would hold an open application process for the jobs.

The applicants had only two weeks to prepare, and outsiders had little knowledge about the selection process, but this was still a big step forward. This time, of the three names, only one has government ties, less intimate than in earlier cases. The finalists are Krisztina Füzi-Rozsnyai, an administrative lawyer, Péter Paczolay, former chief justice of the constitutional court, and Pál Sonnevend, head of the department of international law at ELTE. On January 12 the three applicants had their hearings. A final decision will be made on January 24.

After reading just this one case, I think it is easy to understand why the Orbán government wants to demonize these NGOs and possibly remove them. It is not a stretch for Orbán to claim that they are involved in anti-government political activities since they are defending the rule of law in a country where the government does everything in its power to circumvent the law. And they are often more successful than the political parties because of their expertise in both domestic and European law.

January 19, 2017

Toward a police state: the government’s latest effort at limiting democratic freedoms

Today I’m dealing with two interconnected issues: (1) the anti-terrorist surveillance legislation, which was dealt a serious blow yesterday in Strasbourg and (2) the government’s proposal for a constitutional amendment that would introduce a new category of emergencies that could be declared in case of a “situation created by a terrorist threat” (terrorveszélyhelyzet).

You may recall Professor Kim Lane Scheppele’s article titled “The New Hungarian Secret Police,” which appeared on Paul Krugman’s blog in The New York Times on April 19, 2012. In this article Scheppele listed the duties of TEK (Anti-Terror Center), which in her opinion had become Viktor Orbán’s secret service.

TEK now has the legal power to secretly enter and search homes, engage in secret wiretapping, make audio and video recordings of people without their knowledge, secretly search mail and packages, and surreptitiously confiscate electronic data (for example, the content of computers and email). The searches never have to be disclosed to the person who is the target of the search – or to anyone else for that matter. In fact, as national security information, it may not be disclosed to anyone. There are no legal limits on how long this data can be kept.

She ended her article by stating that “it seems increasingly likely that the Hungarian government is heading toward the creation of a police state.”

It was not only Professor Scheppele who found the law governing the activities of TEK frightening but also two Hungarian lawyers–Máté Szabó and Beatrix Vissy–who work for a non-governmental watchdog organization, Eötvös Károly Közpolitikai Intézet. A few months after the publication of Kim Scheppele’s article they filed a constitutional complaint, arguing that these sweeping prerogatives infringed their right to privacy. The Hungarian Constitutional Court dismissed the majority of their arguments. At that point Szabó and Vissy turned to the Court of Human Rights, which yesterday sided with them. The decision stated that the law is so broad that it could be used against “virtually anyone,” trampling Hungarians’ right to privacy. Therefore, the court concluded that the law violated Article 8 of the European Convention on Human Rights. Hungary has three months to ask for the case to be revisited, but the Court doesn’t have to oblige. Considering that it was a unanimous decision, I don’t think there will ever be a second hearing of the case. This is an important case, with broad implications across Europe.

On the same day, on January 12, István Simicskó, the recently appointed minister of defense, called for a “five-party” discussion on security measures that would involve the use of the army in the case of a “terror threat.” Currently there are three situations in which the government can take varying degrees of extraordinary measures: (1) “emergency conditions” (veszélyhelyzet); (2) “preventive defense conditions” (megelőző védelmi helyzet); and (3) a “full state of emergency” (rendkivüli állapot). The government is seeking a fourth emergency category, somewhere between “preventive defense conditions” and “full state of emergency.” It would be called a “state of terror threat” (terrorveszélyhelyzet). To introduce this new category the government needs a two-thirds majority since its enactment requires an amendment to the constitution.

Of the five parties that have their own delegations in parliament only four showed up: Fidesz, the Christian Democrats, Jobbik, and LMP. MSZP’s chairman, József Tóbiás, boycotted the meeting because the party considered the proposed law a government ruse that could expand Viktor Orbán’s already sweeping powers.

Origo published the details of the proposed new category yesterday afternoon. Here are the most important provisions that emerged from this first report.

In the case of a terror threat the army can be used if “the employment of police and the national security forces is insufficient.” The proposal doesn’t specify what “insufficient” means. But that is not the only term that is not explained. It is not at all clear what the government means by “danger of terror.” In Origo’s understanding “one or two unrelated terror threats” wouldn’t precipitate the declaration of a state of emergency, the highest level of extraordinary measures. That’s why the government wants to create a new category of “state of terror threat.”

Let’s stop here for a minute. If I understand it correctly, a single terror threat, which may turn out to come from a crackpot, might warrant the declaration of a state of terror threat. Moreover, terrorism, as defined by the Hungarian government, might not be what most of the world understands it to be. András Jámbor of kettosmerce.blog.hu recalled that in the last two years government politicians used the word “terrorism” to describe a range of activities, including nonviolent political protest. TEK talked about terrorism in connection with two pensioners who were alleged to be plotting to assassinate Viktor Orbán and two youngsters who turned out to be history buffs collecting World War II weapons. Politicians talked about terrorism at the Serb-Hungarian border when migrants threw rocks at Hungarian policemen. The word “terrorism” was used when some of the demonstrators against the internet tax threw old PCs at the headquarters of Fidesz. And it was considered to be terrorism when two activists who protested against the extension of the Paks Nuclear Plant climbed up to the balcony of Sándor Palota to remove the Hungarian and EU flags. In this light, what follows is even more frightening.

The arrow points to Hungary which is a happy island of low terror threat

The arrow points to Hungary, a happy island with a low terror threat

Here are the most important provisions of the proposed law: the government could limit and influence media content; it could limit the use of gasoline and other products; it could introduce measures contrary to international agreements at the borders; it could control the internet and the postal service; it could order curfews and forbid larger gatherings; it could decide on the expulsion of individuals. These were the points Origo included in its article. But perhaps the most important provision is that the government under a “state of terror threat” would govern by decree.

Here I would like to quote myself when I wrote about László Kövér’s idea from 2013 when the president of the parliament suggested “governance by decree.” This is what he had to say: “I would find it normal, quite independently from what kind of governments we will have in the next few years, if parliament would lay claim only to the creation of the most fundamental legal guarantees and would otherwise hand over its mandate to the government for the next four years.” When pressed, he explained that this would mean a kind of governing by decree. At that time I wrote:

I doubt that Kövér learned much about modern Germany while dabbling in history. Otherwise he might have been more cautious in advocating governance by decree. It was in March 1933 that an amendment to the Weimar Constitution took effect which gave power to Chancellor Adolf Hitler to enact laws without the involvement of the Reichstag. The act stated that this arrangement was to last four years unless renewed, which subsequently happened twice. This so-called Enabling Act (Ermächtigungesetz) gave Hitler plenary powers and made him the dictator of Germany…. The resemblance between the German Enabling Act and what Kövér proposed in this interview was first picked up by János Avar and seconded by György Bolgár on ATV’s UjságíróKlub last night. It has since been repeated by many bloggers. It is one of the most frightening suggestions I have heard in the longest time.

András Jámbor also pointed out a few more provisions of the proposed constitutional change. “The government could close newspaper offices; it could take over the assets of NGOs; and it could forbid any association with foreigners.”

Jobbik wholeheartedly supports the proposal, and thus there is no question that it will easily pass. LMP was somewhat critical, but Schiffer’s greatest objection was that the declaration of a state of terror threat, as it stands now, depends only on the will of the government. Parliament has no say in the matter. But we could ask from András Schiffer: “What difference would parliament’s participation in the process make under the present circumstances?” He considers the terror threat a serious matter, but he wouldn’t support provisions that limit the movement of people, postal and internet traffic, freedom of assembly, or the entry of foreigners into the country.

MSZP, as I mentioned at the beginning of the post, didn’t attend the meeting, but the socialist leadership can’t decide what the party objects to or what it wants. Initially, József Tóbiás, the party chairman, explained his refusal to attend by charging that the bill was nothing more than an attempt to expand the powers of Viktor Orbán. The next day, however, Zsolt Molnár declared that MSZP is ready to support a constitutional amendment. Tóbiás’s absence only indicated that one cannot put forth a proposal in the last minute. They are ready to continue to negotiate with the other four parties.

I couldn’t find any reactions from the two small parties, Együtt (Together) and PB (Dialogue). DK, however, announced today that it considers the proposal a dangerous power grab with possibly fatal consequences. “Only Viktor Orbán’s imagination would limit what the government could do under a ‘state of terror threat.’” Anyone who assists the government in this endeavor is helping to destroy the last pillars of democracy. That’s why DK finds MSZP’s decision to take part in this process unacceptable.

Chief Justice Lenkovics on the Fidesz Constitutional Court, Part II

Yesterday I tried to summarize the legal philosophy of Hungary’s new chief justice, which I found shocking and totally at odds with our understanding of the rule of law in a democratic society. Viktor Szigetvári, chairman of the opposition party Együtt, in an impassioned Facebook note, called Barnabás Lenkovics morally unfit for his post. Szigetvári doesn’t spend much time on the topics I covered yesterday but instead bases his condemnation of the chief justice on some currently relevant issues such as the status of churches, the refugee issue, human rights, same-sex marriage, and the Orbán government’s latest attempt at limiting access to public documents. On almost all of these issues Lenkovics holds not conservative but outright undemocratic views.

At the moment the Hungarian government is taking its sweet time drafting an entirely new law on the recognition of churches. The original law of 2011 stipulated that only churches approved by the Hungarian parliament could partake of the benefits churches usually enjoy in democratic countries. Smaller, less traditional churches or congregations, including some following reformed Judaism, were stripped of their church status. In February 2013 the Constitutional Court, which at that time wasn’t yet packed with Fidesz loyalists, found the law to be discriminatory and therefore unconstitutional. The Orbán government’s answer was to change the constitution and leave the objectionable law unaltered.

Since all remedies at home had been exhausted, sixteen small churches decided to go to the European Court of Human Rights in Strasbourg to seek justice. In April 2014 the court ruled in the churches’ favor: the law was unconstitutional, so it should be scrapped and the churches compensated. The Hungarian government decided to appeal the decision. Five months later, on September 9, 2014, the court turned down the appeal. At the moment the government is apparently working on a new version of the law. They are in no hurry to compensate the churches for their financial losses between 2011 and 2015.

Barnabás Lenkovics in the middle of the upper row

Barnabás Lenkovics in the middle of the upper row

It was this case that came up in the conversation between Lenkovics and the journalist from Mandiner.hu. Keep in mind that the constitution itself was altered to make an unconstitutional law constitutional. Lenkovics, who was a nominee of the then opposition parties Fidesz-KDNP and MDF in 2007, and four of the five Fidesz justices who were appointed after 2010 found nothing wrong with the church law. Consistent with that view, Lenkovics sees no reason to amend the constitution in light of the ruling of the European Court of Human Rights. It is enough if “the law is rewritten or at least significantly altered.” But he still thinks that the 1989 law on churches “gave too much freedom in the establishment of churches … who, in turn, abused it.”

Well, if the churches abused their freedom, the same is true of civil rights activists whom he labelled “hobby civil rights activists” and “professional revolutionaries.” He added that “probably there is need for them, otherwise they wouldn’t finance them.” Who are these “they”? I guess the trouble-making foreigners who would like to know what the members of the government are up to. In any case, Lenkovics finds it “strange that they [the activists] exercise their own rights at the expense of the community.”

When the reporter noted that the corruption of officials and politicians may be much more costly to the community than photocopying a few hundred pages of documents, Lenkovics came up with this gem: “We assume that those who decided to serve the common good and who took an oath will not abuse their power and will not take advantage of the public purse for their own use.” The reporter was so stunned that he could only mutter: “That is what the Constitutional Court assumes? That’s all?” At this point Lenkovics realized that he went too far and quickly retreated: “Everybody is entitled to the presumption of innocence. I believe in civil control.” A little later he even sang the praises of investigative journalism, bemoaning the fact that there are not enough reporters who can ferret out the sources of corruption.

There was a brief exchange on same sex-marriage, in which Lenkovics resorted to the old natural law argument which claims that “certain rights or values are inherent in or universally cognizable by virtue of human reason or human virtue of judicial recognition or articulation.” In his view marriage has “traditional and natural legal foundations … and it is the basis not only of European and Christian civilization but of the whole human civilization.” He compares changing the current law on marriage to creating a law that would state that “a child can be born of a man by a man.” One could write such a law, but that doesn’t make it possible.

Lenkovics wove into the topic of same sex marriage a couple of intriguing sentences. “It is an interesting absurdity that while among heterosexuals the number of marriages is decreasing and more and more existing marriages break up, among homosexuals the demand to be able to get married is growing. Did anyone try to compare them?” I suspect that this intellectual giant thinks that homosexual “propaganda” is making headway and actually has an impact on the sexual behavior of the society in favor of homosexuality.

Finally, there was an exchange on the refugee question, which came up as a corollary to Lenkovics’s distinction between “legal” and “political” constitutionality. The latter in his opinion considers reality while the former is too abstract and unworkable. So, Lenkovics thinks that

It is a great problem that the Universal Declaration of Human Rights emphasizes universality while in reality something very different is going on. The world, the United Nations, the European Union signed a blank check about universal human rights but that check is uncovered.

These people now, as refugees flood the world, declare their human rights and the duties of Europe. Not the duties of their own governments to look after them, but those of the West.

My take on this is that human rights as such should be thrown out of our legal arsenal.

This interview, I believe, tells us more about the nature of the Orbán regime than hundreds of pages of analyses by political scientists. The chief justice opened the door to the workings of Viktor Orbán’s illiberal state.