Tag Archives: European Court of Human Rights

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.

Strasbourg verdict on disenfranchised churches: the Hungarian government dithers

The Hungarian government has had an awful lot of bad news lately coming from various institutions of the European Union. Yesterday I wrote about the veto by Euratom and the European Commission of certain parts of the Russian-Hungarian agreement concerning Rosatom’s supply of nuclear fuel for the two new reactors of the Paks power plant. Today I will look into an older decision of the European Court of Human Rights that the Hungarian government has yet to act on, despite a March 8 deadline. What I have in mind is the infamous law on churches.

The law that Zsolt Semjén called a masterpiece has had some rough sledding. The law 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 discriminative and therefore unconstitutional. The Orbán government’s answer was to change the constitution and to 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. Nine churches were represented by TASZ, the Hungarian equivalent of the American Civil Liberties Union, while Dániel Karsai represented another six. Csaba Tordai represented perhaps the most important church, which was most likely the victim of Viktor Orbán’s personal vendetta: the Magyarországi Evangéliumi Testvérközösség (MET) led by Gábor Iványi, basically a Methodist church.

Dániel Karsai, who frequently appeared on ATV during 2013, was certain already in late May of that year that their case was so strong that the Hungarian government would suffer another setback in Strasbourg. It took a year, but in April 2014 the verdict was announced. It was in favor of the small churches. The Hungarian government and the churches will have to agree on a financial settlement. If they cannot reach an equitable arrangement, the Strasbourg court will decide on the amount of compensation these churches deserve for the financial loss they suffered as a result of being deprived of their church status. Moreover, the law on churches doesn’t conform to European law and hence must be changed.

It all started rather small

This church started off rather small, after all

Dániel Karsai, the lawyer for some of the churches, was elated. He expressed his hope that “after this great victory the first business of the new government will be to put in order the question of religious freedom.” Well, a year went by and nothing happened. No settlement was reached. Instead of writing a new law, the government decided to appeal the case. I should note that it was the Ministry of Justice and Administration under the leadership of Tibor Navracsics that handled the case in Strasbourg on behalf of the Hungarian government. The same Navracsics who today is desperately trying to distance himself from the Orbán administration and attempting to portray himself as a moderate liberal in his new capacity as a member of the European Commission.

Another five months went by. On September 9, 2014, the Court of Human Rights rejected the appeal of the Hungarian government. The law would have to be changed and the churches in question compensated. The court gave the Hungarian government six months, until March 8, to settle the question of compensation. Well, I just read in Magyar Nemzet that “the government heeds the Strasbourg verdict but does not want to be overhasty.” What an understatement. The government wants to be fair, but at the same time “it doesn’t want to waste the taxpayers’ money” and the sum in question is rather large. According to some estimates, the churches claimed damages amounting to about 20 billion forints. The Magyar Nemzet article indicated that the government finds some of the claims unacceptable. On the other hand, Csaba Tordai, the lawyer for Gábor Iványi’s Methodist church, is optimistic that there will be an agreement within a few weeks. The Magyarországi Evangéliumi Testvérközösség (MET) originally asked for 1.4 billion forints, but that was in 2012. I assume the current claim is at least double that amount.

As far as the law itself is concerned, the government is again in no hurry. Dániel Karsai might have hoped that the new government would immediately take care of the problem, but today Miklós Soltész, undersecretary in charge of social policy in the ministry of human resources, announced that the government is not planning to write a new law because, after all, they already revised the original law once, in 2013. So, there will be only changes in certain points. And, he continued,”we must guard those values [in the law] that assist the spiritual work of the churches in all facets of their activities,” whatever that means. I have the feeling that this is not the end of the story.

The state of the churches in Viktor Orbán’s Hungary: An exchange of views

Today I’m republishing an exchange of letters between György Hölvényi, a Christian Democrat who is a member of the Fidesz European Parliamentary delegation, and H. David Baer, associate professor at the Texas Lutheran University. The reason for the exchange was an article that appeared in The Economist entitled “A slippery Magyar slope.” The article was about the “ill-named law on ‘the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.’” Hölvényi, who before becoming a MEP was deputy undersecretary in charge of the government’s relations with churches, national minorities and civil society, came to the defense of the much criticized law. Since the article in The Economist was republished by Human Rights Without Frontiers (HRWF), Hölvényi sent his reply to that organization, which subsequently included it in its newsletter. Baer, an expert on Hungarian religious affairs, decided to respond. His reply was also published in HRWF’s newsletter. I thought that this exchange of letters, which shines a light on the Orbán regime’s attitude toward religious freedom, was worth republishing.

First a few words about György Hölvényi. He comes from a devout Catholic family. His father was a Cistercian priest who eventually left the order and married. The young Hölvényi became involved with the Christian Democratic movement and in 1989 was one of the founders of the Christian Democratic Union. He spent many years in Brussels serving the parliamentary delegation of the European People’s Party in various capacities. As a result, his name was practically unknown in Hungary. That changed in May 2012 when he was named assistant undersecretary in Zoltán Balog’s Ministry of Human Resources.

Prior to that date the post was occupied by László Szászfalvi, who was a Hungarian Reformed minister just like Balog himself. Apparently the Catholics in the Christian Democratic Party raised a stink: two Protestant ministers were at least one too many. A Catholic must be found. Szászfalvi had to depart and came Hölvényi.

In the most recent elections for the EU parliament Hölvényi was number 12 on the Fidesz list. The party had to do very well for Hölvényi to get to Brussels. One reason for his low rank on the list was that certain positions were reserved for ethnic Hungarians from Ukraine, Romania, and Serbia. But the size of the Fidesz victory was such that he made it, and now he is a member of the new European Parliament.

The article in The Economist pointed out that “getting recognition as an ‘incorporated church’ required a two-thirds majority in Parliament. So what should be a simple administrative decision was turned into a political one, in which legislators have to assess the merits of a religion…. As a result of the law, at least 200 religious communities, including Methodists, Pentecostalists, Seventh Day Adventists, Reform Jews, Buddhists and Hindus faced a downgrading of their status…. In February 2013, Hungary’s Constitutional Court ruled that 67 groups had been deregistered unconstitutionally. However the government seems to have ignored the ruling. A government ministry rejected the written requests of at least four deregistered bodies to be added to the list of incorporated churches.”

Gábor Iványi, one of the victim's of the Orbán regime's church law

Gábor Iványi, one of the victims of the Orbán regime’s church law

With this introduction here is the exchange of letters. First, György Hölvényi’s letter written immediately after the appearance of the article in The Economist. David Baer’s letter was published only a few days ago in the HRWF newsletter.

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Response to the Erasmus blog post “A slippery Magyar slope,” September 25th 2014

The recent post of The Economist’s blog Erasmus on religious freedom in Central Europe (“A slippery Magyar slope”” by B. C., September 25th 2014) makes several misleading statements and offers a rather personal interpretation of the existing legal regulations on churches in Hungary.

Basic aspects on the registration process of churches have not been detailed in your blog post. Firstly, all associations dealing with religious activities are registered solely by the courts in Hungary. A politically highly neutral system. These communities operate independetly from the state, acoording to their own principles of faith and rituals.

The blog post makes references on “incorporated churches” in Hungary. It is crucial to know that the category of “incorporated churches,” as you call it, does not affect religious freedom at all. It is simply about financial aspects such as state subsidies for churches running social activities for the common good of the society.

It must be pointed out that many European countries apply legal distinctions between different religious organisations for various reasons. Quite often it is the Parliament who is entitled to grant them a special status (e.g. in Lithuania, Belgium). Besides, there are a number of European countries where the constitution itself places an established religion above the rest of the religious communities (e. g. in Denmark, Finland, Greece, Malta). For the record, it needs to be mentioned that the Parliament is involved in special recognition processes of the churches at different later stages also in Austria, Denmark, Portugal or Spain. In general, the European Union leaves the rules on the foundation of churches in the Member States’ competence.

As the post correctly recalls, the original Hungarian regulation on churches of 1990 was probably the most permissive in Europe. Uniquely in the world, more than 300 registered churches operated in Hungary for decades, enjoying the widest range of financial entitlements provided by the state, with no respect to their real social activities. The amended Church Act provides for a complete freedom of conscience and religion in Hungary, at the same time it eliminates errors of the uniquely permissive regulation.

When looking at international commentaries of the issue let us focus on the facts again. The relevant opinion of Venice Commission on the issue of religious freedom in Hungary stated that the Hungarian regulation in place “constitutes a liberal and generous framework for the freedom of religion.” The resolution of the Constitutional Court in Hungary referred to in your blog post did not make any reference to the freedom of religion in Hungary. On the contrary, the government’s intention with the new legislation was widely acknowledged by the Court. The US State Department’s report on religious freedem of 2013 does underline that the Fundamental Law and all legislation in Hungary defends religious freedom. Facts that have been disregarded by the author of your post.

Last but not least, the alliances of the non-incorporated churches in Hungary recognised and declared in a joint statement with the responsible Hungarian minister that they enjoy religious freedom in Hungary.

In contrast to the statements of your article, incorporated churches in Hungary include the Methodists: the United Methodist Church in Hungary is a widely recognised and active community in Hungary, as well as internationally. The fact is that Mr Iványi’s group has not been included in the UMC itself and is not recognised at all by the international Methodist bodies. Describing it as a “highly respected” church is again a serious factual mistake, reflecting a lack of information on the issue.

Coming finally to the issue of the European Court on Human Rights’ decision: some of the member judges formed special opinions to the appeal of the affected churches. Although the Hungarian government is challenging the decision, at the same time it started negotiations with the appealing communities on the remedy process.

In conclusion, I would highly recommend that your blogger B.C. pay wider attention to the facts to better understand regulations on church affairs that have been in place in Europe for decades and centuries.

HÖLVÉNYI György
Member of the European Parliament for Hungary / EPP Group

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H. David Baer’s reply:

Mr. Hölvényi writes to defend a church law that the ECtHR has found to breach the European Convention and which the Hungarian government refuses to amend.  He would thus have us believe that religious communities in Hungary enjoy religious freedom even as they are not protected by the rule of law.

Mr. Hölvényi urges that we stick to the facts. The fact is that in 2011 the government of Hungary retroactively “deregistered” religious communities already recognized as churches under Hungarian law.  The fact is that in 2013 Hungary’s Constitutional Court found this deregistration procedure unconstitutional.  The fact is that after 2013 the government of Hungary blatantly ignored the Court’s decision, refusing to treat unconstitutionally deregistered religious communities as legal churches.  The fact is that in 2014 the European Court of Human Rights found that Hungary’s unconstitutional church law also violated the right of religious freedom and the European Convention.  The fact is that the Hungarian government has still not, as of this day, acted to abide by the European Court’s decision.

Mr. Hölvényi knows these facts, because prior to being an MP in the European Parliament he was the state undersecretary responsible for dealing with the churches in Viktor Orbán’s government.  As undersecretary, Hölvényi worked closely with Zoltán Balog, Minister of Human Capacities, to obstruct implementation of the Constitutional Court’s decision so as to deny deregistered religious communities their constitutional rights. Just this past month, Péter Paczolay, the president of Hungary’s Constitutional Court, lamented openly in a public address that the Court’s decision on Hungary’s church law had never been respected or implemented.  Mr. Hölvényi bears direct responsibility for this.  Thus, to listen to him aver that Hungary’s deregistered churches enjoy religious freedom is a little like listening to a man caught stealing his neighbor’s shirt and pants aver that his neighbor has the freedom to wear underwear.

Religious communities in Hungary enjoy religious freedom the way NGO’s in Hungary enjoy freedom of association. Denied equality under the law and subject to opaque regulations, deregistered religious communities, like unpopular NGO’s, are subjected to arbitrary and expensive audits, hindered or prevented from raising money, attacked in the government controlled media, and harassed by local officials.  Mr. Hölvényi, a member of the European Parliament, should know that when citizens aren’t equal under the law they aren’t equally free.

Instead of defending Hungary’s indefensible church law, perhaps Mr. Hölvényi should encourage the government of his country to respect the rule of law, uphold its international commitments, and abide by the European Convention.

David Baer
Texas Lutheran University
USA

The statement of the Forum for Religious Freedom Europe on Hungary’s law on the churches

Every year the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) organizes the Human Dimension Implementation Meeting (HDIM). This year the meeting takes place in Warsaw. One of the participating organizations is the Forum for Religious Freedom Europe (FOREF). They prepared an “intervention” which they will present on September 30 at one of the working sessions entitled “Tolerance and non-discrimination II/Intolerance against Christians and members of other religions.”

This is the text of FOREF’s recommendations and intervention:

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foref

Hungary: New Religious Law at Variance with OSCE Standards and
the European Convention on Human Rights

Recommendations:

That the Government of Hungary, and specifically the Minister of Human Capacities, place back on the official registry of incorporated churches included in the appendix of Act CCVI (206) of 2011 those churches deregistered unconstitutionally and in breach of the European Convention on Human Rights by Parliament in 2011. Hungary should honor its international legal commitment to the European Convention and abide by the Court’s decision.

That Hungary should modify its church law so that legal recognition of churches is not determined by 2/3 vote of Parliament, something criticized in both the European Court and the Hungarian Constitutional Court.

That participating States to assist Hungary to harmonize its laws in accordance with the Helsinki standards and international human rights law.

Intervention:

The Forum for Religious Freedom Europe (FOREF) is an independent, secular, civil society formation dedicated to defending the freedom of religion in accordance with international law.  We wish to express our deep concern about policies of the government of Hungary that violate Human Dimension commitments undertaken by the participating States in the Helsinki Final Act and in the Madrid, Vienna, Copenhagen, and Maastricht documents.  These policies have resulted in arbitrary discrimination against religious communities, and have given the state illegal and inappropriate power to interfere in religious life.

In 2011, the Hungarian Parliament passed a new law on “the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.”  The law abolished the previous practices of treating religious communities equally and registering them through the courts, and instituted a tiered system that discriminates between “incorporated churches” and others that enjoy fewer rights and privileges, and which refers determination of “incorporated church” status to a 2/3-majority vote in Parliament. The law resulted in the de-registration of at least two hundred churches, including, inter alia Methodist, Pentecostal, Adventists and reform Jewish churches, as well as Buddhist and Hinduist congregations.  It has exposed religious organizations to bureaucratic harassment.
In February 2013, Hungary’s Constitutional Court ruled that 67 churches that had been deregistered unconstitutionally were therefore still churches.  According to point 217 of the Hungarian Court’s decision,

One of the requirements of possessing church status is that the minister must place religious communities that possess such status on the registry. Since, as a consequence of the Constitutional Court’s present decision, the provision is no longer in effect which stipulates the minister’s act of registration is tied exclusively to Parliament’s recognition of a church, there is no legal obstacle preventing religious communities, whose applications were rejected by the decision of Parliament, but who, as a result of the retroactive effect of this decision have not lost their church status … from reporting their data to the minister who can then register them.

Unfortunately, the government has deliberately disregarded the Court’s orders. The Ministry of Human Capacities has rejected the written requests of at least four deregistered churches to be placed on the registry of incorporated churches (Magyarországi Evangélium Testvérközösség, Budapesti Autonóm Gyülekezet, Isten Gyülekezete Pünkösdi Egyház, Fény és Szeretet Egyháza).   In a response worthy of a novel by Franz Kafka, the Ministry stated that it could not place the groups on the registry because according to the law, incorporated churches are already on the registry, and the churches making the request were not on the registry.  Of course, the reason they are not on the registry is because the government will not place them there. In yet an even more Kafkaesque twist, when these deregistered churches have turned to the Hungarian courts, the courts have consistently ruled that the Ministry should have placed them on the official registry. But because the courts can’t force the Ministry to register the churches, it has ordered that the churches should resubmit their request to the Hungarian Government, which can, of course, refuse again to comply with the written request ad infinitum.

Instead of adhering to the rule of law and abiding with the highest court, the Hungarian Parliament amended Hungary’s Basic Law in a way that explicitly grants Parliament the right to render arbitrary decisions concerning church registration.   The procedure by which Parliament determines the legal status of individual churches was also criticized explicitly by the European Commission for Democracy through Law (Venice Commission) as incompatible with the standards of due process (Opinion 664/2012 par. 76-77).  According to the European Court of Human Rights the scheme of parliamentary recognition “inherently carries with it the disregard of neutrality” (Magyar Keresztény Mennonita Egyház and Others v. Hungary, par. 102).  The Basic Law is thus in blatant violation of a fundamental principle of religious freedom and human rights.  No legislative body should have the power to rule over religious freedom.

In April 2014, the European Court of Human Rights ruled that that Hungarian Parliament’s deregistration of legally recognized churches constituted an interference with those groups’ fundamental rights as secured by articles 9 and 11 of the European Convention (Magyar Keresztény Mennonita Egyház and Others v. Hungary). Hungary appealed the decision to the Grand Chamber.  The Grand Chamber rejected that appeal in September 2014, so the decision is now final and binding.
In light of the ruling of the European Court of Human Rights, as well as our common Helsinki principles that uphold the freedom of religious communities from discrimination, and given the ruling by Hungary’s own Constitutional Court, FOREF respectfully asks that the Government of Hungary, and specifically the Minister of Human Capacities, Zoltán Balog, place those churches deregistered unconstitutionally by Parliament in 2011, in breach of the European Convention on Human Rights, back on the official registry of incorporated churches included in the appendix of Act CCVI (206) of 2011. Hungary should honor its international legal commitment to the European Convention and abide by the Court’s decision.

Furthermore, Hungary should modify its church law so that legal recognition of churches is not determined by 2/3 vote of Parliament, something criticized in both the European Court and the Hungarian court.

We ask the support of participating States to assist Hungary to harmonize its laws in accordance with the Helsinki standards and international human rights law.  Thank you for your attention.