Tag Archives: European Court of Justice

Another peacock dance: Orbán’s reversal on the verdict of the European Court of Justice

Yesterday I dealt with the exchange of letters between Jean-Claude Junker and Viktor Orbán concerning Orbán’s demand for EU reimbursement of half the cost of the fence the Hungarian government erected along the Serbian-Hungarian border. The Hungarian demand raised eyebrows in Europe and elsewhere, so Hungary was again in the international news.

The other reason for the preoccupation of the international media with Hungary was the long-awaited verdict of the European Court of Justice on the legality of the EU decision on the relocation of 120,000 asylum seekers. Slovakia and Hungary claimed that the decision-making process was illegal. Two days ago, on September 6, the Union’s top court dismissed the complaints of the two countries, dealing a blow to Viktor Orbán.

Slovak Prime Minister Robert Fico immediately reacted to the verdict, saying that “we fully respect the verdict of the European Court of Justice,” adding, however, that his government’s view on the relocation plan “has not changed at all.” Viktor Orbán, on the other hand, remained silent. In his place, Péter Szijjártó, minister of foreign affairs and trade, and László Trócsányi, minister of justice, gave a joint press conference, where the foreign minister vented. He called the ruling “outrageous and irresponsible.” In his opinion, the verdict endangers the security and future of Europe and is contrary to the interest of the countries of the Union, including Hungary. “Politics raped the European law and European values,” he claimed. He announced that “the real battle begins only now,” and he promised that the Hungarian government “will use all the remedies available at its disposal” to prevent similar central decision-making for Hungary.

Trócsányi was no less belligerent when he announced that the Hungarian government will start a new legal debate. Since he liked the phrase “the real battle begins only now,” he repeated it. He didn’t go so far as to accuse his fellow judges of acting politically, but he charged that they were preoccupied with the case’s formal aspects and neglected its contextual qualities. The case was thrown out in its entirety, but Trócsányi still praised the excellent legal work of his team. The legal arguments presented to the court were outstanding, and therefore he was quite surprised by the outcome. Trócsányi also indicated that Hungary will not have to take the 1,294 migrants because the case was only about the legality of the decision-making process.

Péter Szijjártó and László Trócsányi / MTI-MTVA / Photo Szilárd Koszticsek

In brief, it looked as if the Orbán government was prepared to go against the ruling and suffer the consequences. A day later, on September 7, this impression was reinforced by János Lázár at his regular “government info” press conference where he interpreted the decision of the European Court of Justice as an opportunity for the European Commission to allow “Brussels” to meddle in Hungary’s internal affairs. “We will use every legal instrument to preserve the independence of the country.” Zoltán Balog, minister of human resources, also chimed in and, in an interview with Deutschlandfunk, repeated Szijjártó’s accusation of a politically motivated and irresponsible decision on the part of the European Court of Justice. Everybody suspected, including naturally Viktor Orbán, that Slovakia and Hungary would lose the case, and therefore the word probably came down from above some time ago about what the proper reaction to the verdict should be.

After two days of criticism of the court and its verdict, Viktor Orbán came out with an entirely different approach to the question. In his Friday morning “interview” on Magyar Rádió he said: “Hungary is a member of the European Union. The affairs of the Union, its internal power relations are settled by the Treaty, so contracts have to be respected. Consequently, one must take cognizance of the verdicts of the courts. Hungarian is a sophisticated, refined language and therefore it does matter with what kind of word we react to a verdict, especially when we are functioning in a hostile Europe. I decided to use the word “tudomásul venni” which I took over from Slovak Prime Minister Fico.” Unfortunately, I don’t know what Slovak word Fico used when talking about his reaction to the verdict. English translations of Fico’s press conference use the verb “to respect” which, unfortunately, is not the equivalent of “tudomásul venni,” which might be better translated as “to take cognizance of.” However, I’m sure that some readers of Hungarian Spectrum will provide us with the the Slovak word that Fico used as well as with the best translation of the Slovak equivalent of “tudomásul venni.” Then we will be able to see whether Orbán and Fico are talking about the same thing or not.

Orbán’s interview was long, during the course of which he said many uncomplimentary things about the European Union, but at the end he came up with some startling statements. The interviewer reminded him that the politicians of the European Union consider the Polish refusal to abide by a court verdict as preparation for the country’s exit from the Union. If Orbán keeps talking about his “fight,” this communication may lead to the interpretation that Hungary is also planning to leave the Union behind. Here is Orbán’s answer: “Communication is interesting and in politics is often important, but it does not replace reality…. Hungarian reality is that the Hungarian people decided after a referendum to join the European Union. That decision was a correct one. No political decision can overwrite that decision. A popular referendum was held, and therefore no government action can reverse that determination. It was the Hungarian people’s choice, and that’s right and well.”

Although Szijjártó, who is in Tallin at the moment, expressed his trust in the unity of the Visegrád Four, there are signs that Slovakia and the Czech Republic are not ready to sacrifice themselves for Poland and Hungary. The weak link, I believe, is Slovakia. I heard an interview with Pál Csáky, a Slovak member of the European Parliament, who surprised me to no end with his condemnation of the Orbán government’s attitude toward the European Union. The reason for my surprise was that Csáky was Fidesz’s favorite among Hungarian ethnic politicians in Slovakia back in 2010. Lots of money was poured into Csáky’s party, the Magyar Koalíció Pártja (MKP), against Béla Bugár of Híd/Most. Despite the funding, MKP didn’t even manage to get enough votes to become a parliamentary party. Csáky at this point resigned. Today he made it clear that Slovakia will not follow Orbán’s suicidal strategy. Slovakia is all for the European Union.

There is another reason that Orbán may have changed his mind. The spokesman of the European People’s Party delivered a message to Viktor Orbán: don’t go against the ruling of the court because this verdict gives an opportunity to heal the wounds caused by the recent conflict between the member states. “The unanimous opinion of the party is that Slovakia and Hungary comply with the rules.”

Otherwise, Jean-Claude Juncker is ready to have a chat with Viktor Orbán, but his spokesman reminded his audience as well as Viktor Orbán that the position of the European Commission is explained in Juncker’s letter to Orbán. It is available for everybody to read and, in any case, the Commission is not in habit of verbal ping pong. Given Juncker’s firmness as expressed in his letter, I would not advise Orbán to continue to press his case.

September 8, 2017

Infringement proceedings galore, but what good will they do?

Lawyers working on infringement proceedings launched by the European Commission against the Hungarian government must have been especially busy in the past few months. Yesterday the Orbán government received notices of three such infringement proceedings. Although infringement proceedings against Hungary are numerous, I have the feeling that three notices in one day is a record of sorts. One is a “letter of formal notice” and two are “reasoned opinions.”

Notices that bear the odd name “reasoned opinions” represent the second stage in the infringement proceedings. In these cases the European Commission had already sent a”letter of formal notice” concerning a piece of legislation but found the corresponding answers to their objections unsatisfactory. If the answers to the reasoned opinion are still unsatisfactory, the case will go to the European Court of Justice.

I will start with the odd man out here: the reasoned opinion concerning restrictions on loss-making enterprises in the retail sector. You may recall that recent Hungarian law prohibits supermarkets to continue operation if they operate at a loss for two consecutive years. Not surprisingly, the Commission considers such a measure unacceptable because it runs counter to “the freedom of establishment and the principle of non-discrimination” (Article 49 TFEU) and “the free movement of capital” (Article 63 TFEU). Hungary has two months to respond.

Although this is a horrendous piece of legislation and one very much hopes that it will be abolished one way or the other, it is taking back stage to the two other infringement proceedings. The first, another reasoned opinion, concerns the Higher Education Law, which as amended on April 4, 2017 in practical terms makes the continued existence of Central European University (CEU), founded by George Soros, impossible. The other infringement proceeding, this one a letter of formal notice, addresses the law, adopted on June 13, dealing with foreign-funded NGOs.

The European Union is often accused of dilatoriness, but this time such criticism cannot be leveled against “the bureaucrats of Brussels,” as Viktor Orbán likes to call the officials and politicians of the European Union. They acted quite promptly. In the case of the Higher Education law, the note the Orbán government received is a reasoned opinion and the Hungarian government has only one month to respond instead of the customary three. As for the foreign-funded NGO case, it took the EC only one month to send out a letter of formal notice. Again, the Hungarian government has only one month to respond. Zoltán Kovács, who is in charge of foreign communications, has already complained bitterly about the unfair treatment Hungary received in these cases because of the very short time limit given.

So, let’s see what the EC’s objections are to the amendment of the Higher Education Law. In the opinion of the European Union, “it is incompatible with the freedom for higher education institutions to provide services and establish themselves anywhere in the European Union.” In addition, it “runs counter to the right of academic freedom, the right to education and the freedom to conduct a business as proved by the Charter of Fundamental Rights of the European Union and the Union’s legal obligations under international trade law.”

The law on foreign-funded NGOs introduces new obligations for certain categories of NGOs, for example, to register and label themselves as “organizations supported from abroad.” Again, in this case the European Commission decided that this law doesn’t comply with EU law. (1) It interferes with the right to freedom of association. It could prevent NGOs from raising funds and would therefore restrict their ability to do their work. (2) The law introduces unjustified and disproportionate restrictions to the free movement of capital. (3) It raises concerns as regards the respect of the right to protection of private life and personal data. In plain language, the exact amounts of transactions and detailed information about donors would have to be reported to the Hungarian authorities, which in turn would make the data public.

Anyone who thought that the Orbán government would be terribly impressed by the legal arguments outlined above would be wrong. Zoltán Kovács told Politico that “we, of course, maintain our position.” If necessary, the government will go to court. Politico also got in touch with Márta Pardavi, co-chair of the Hungarian Helsinki Committee, who correctly pointed out that “infringement procedures alone are inadequate to redress the combined impact of retrogressive reforms that have taken place since 2010.” The European Parliament would need to vote on an appropriately damaging report which, if passed by two-thirds of the European Parliament, could trigger Article 7(1), which would result in the withdrawal of Hungary’s voting rights.

The Hungarian government’s response to these latest infringement proceedings is defiance. Pál Völner, undersecretary in the ministry of justice, said that “the government is ready to face infringement proceedings with relation to the NGO Act. These are organizations that want to weaken Hungary’s defense capabilities in the fight against illegal immigration.” The charge that organizations like Transparency International or the Hungarian Helsinki Commission want to weaken Hungary’s defense capabilities is of course nonsense. The Hungarian government wants to curtail their activities because it considers them opponents of the Orbán government’s unlawful modus operandi.

Márta Parvadi is right: the Orbán government cares not one whit about all these threats of legal proceedings under the aegis of the European Court of Justice. Viktor Orbán doesn’t mind paying fines, even heavy fines. For political gain he has no compunctions about spending billions of forints of the Hungarian taxpayers’ money. That’s why the only hope of the anti-Orbán forces is that the European Parliament report that may trigger Article 7(1) will be prepared soon. Well, there is good news on this front. On July 11 Judith Sargentini of the Greens/EFA was appointed rapporteur for the European Parliament’s investigation into whether Hungary is in breach of the values of the European Union. But more about that tomorrow.

July 14, 2017

Viktor Orbán is getting ready for a fight

If anyone thought that a second victory, especially with two-thirds parliamentary majority, would slow Viktor Orbán down, he was sadly mistaken. In fact, if it is possible, since his reelection he has been surpassing his own past performance as far as attacks on the European Union are concerned.

In the last few weeks numerous articles have appeared, especially in Népszabadság, on the possible shape of the third Orbán government. Most of the reporting is based on hearsay, but a couple of personnel changes seem to be certain. First, Rózsa Hoffmann, undersecretary for public education, has finished her controversial activities in the Ministry of Human Resources. Second, the mysterious minister of national development about whom nobody knew anything turned out to be a flop. If you recall, no one knew her first name for weeks because she was introduced to the public only as Mrs. László Németh. By the way, she was the one who signed the agreement on Paks with Gazprom. And then there is János Martonyi, the one cabinet member in whom European and American politicians still had some trust. Mind you, his words didn’t mean much because he was stripped of practically all power to conduct Hungary’s foreign policy. According to the latest, it looks as if his replacement will be Tibor Navracsics.

I consider Navracsics’s move to the foreign ministry a demotion for the former close associate of Viktor Orbán. By now the foreign ministry is largely impotent, and I hear rumors to the effect that it might be further stripped of its competence. Earlier Navracsics had a position of real power. He was entrusted with the position of whip of the Fidesz parliamentary delegation. The ministry of administration and justice, which Navracsics headed during Orbán’s second term, had a dual mandate. On the one hand, it was supposed to oversee the restructuring of the entire public administration and, on the other, it was responsible for preparing bills for parliament. At least in theory. Most of the hundreds of bills presented to parliament in the last four years were in fact proposed by individual members. Their authors were most likely outside law firms. It seems that the ministry’s chief job in the legal field was not so much drafting bills as battling with Brussels over legislation the Hungarian parliament enacted.

In the third Orbán government the ministry of administration and justice will be dismantled. In its place there will be a separate ministry of justice, and the section of the ministry that dealt with the country’s territorial administration will be transferred to the prime minister’s office. This ministry’s chief job will be, according to Viktor Orbán, to concentrate on future legal battles with the European Union. He already warned his people that the European Union will try to force the Hungarian government to undo the lowering of utility prices which assured Viktor Orbán his resounding victory at the last election.

Hungary seems to lose one legal battle after the other in the European Court of Justice and the European Court of Human Rights, which functions under the jurisdiction of the Council of Europe. The latest is the question of  life sentences without the possibility of parole. The European Court of Human Rights, in a unanimous ruling, found the law inhumane and degrading. The court is not against life sentences as such, but they held that courts should be allowed to review life sentences in order to assess whether prisoners had made such significant progress toward rehabilitation that their continued detention might no longer be justified. There are perhaps 40 such cases in Hungary at the moment, and if all the “lifers” turned to Strasbourg it could be a very costly affair for the Hungarian state.

Viktor Orbán remains adamant in the face of the court ruling since he knows that, if depended on the Hungarian public, the majority would be only too glad to reintroduce the death penalty. Therefore, Orbán fiercely attacked the ruling and blamed the European Union for preventing Hungary from having its own laws. He repeated his favorite claim that in the European Union “the rights of those who commit crimes are placed above the rights of innocent people and victims.” Friday morning during his customary interview on Magyar Rádió he elaborated on the theme and went even further. He said that the European Union forbids capital punishment, although he personally is convinced that it is a serious deterrent.

In cases like this, one is not quite sure whether Orbán is ignorant of the facts or for political reasons is simply lying. It is not the European Union that forbids the death penalty. Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms specifies that “The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.” The Council of Europe is a signatory to this convention. Moreover, the European Court of Human Rights functions not under the European Union but under the Council of Europe of which Hungary is a member. And quite aside from all this, the Hungarian Constitutional Court on its own volition abolished the death penalty in 1990. So, either Orbán doesn’t know any of this or he for political reasons is trying to turn his people against the European Union while he is campaigning for the European parliamentary election. He must know that the reintroduction of the death penalty in Hungary is out of the question.

But before his fight against Brussels and Strasbourg on utility prices, pálinka distillation, acacia trees, and life sentences without parole, Orbán has another fight ahead of him which he may easily lose. It is his opposition to the election of Jean-Claude Juncker for the presidency of the European Commission. Juncker is the candidate of the European People’s Party, which currently has the largest caucus in the European Parliament. It has been clear for some time that Juncker is not the favorite politician of Viktor Orbán. Already on Friday in his interview he mentioned that just because Juncker is the head of the 212-member EPP caucus it doesn’t mean that the Christian Democrats have to nominate him. Juncker is far too liberal for Orbán, who would prefer the far-right Joseph Daul, the Alsatian farmer who is an admirer and defender of the Hungarian prime minister. Orbán thus made up his mind that he and the Fidesz MEPs will try to prevent the election of Juncker in the likely event that EPP is again the largest bloc in the European Parliament.

Jean-Claude Juncker and Martin Schulz

Jean-Claude Juncker and Martin Schulz

Today he announced his decision to try block Juncker’s nomination and/or election. I myself doubt that he will succeed at the nomination level. As for the election, currently EPP has 212 seats and Fidesz’s estimated 10-12 MEPs will vote against him. Juncker will have to get at least 376 votes to be elected, so he will need supporters outside of EPP. The socialist Martin Schulz will also look for supporters outside of the socialist caucus. It looks as if the Fidesz group will lobby against both Juncker and Schulz in favor of some other EPP politician. I’m sure that Orbán’s favorite would be Daul, but I think he is too far to the right to have a chance at either the nomination or the election.

So, what will happen if Juncker wins? Orbán, even if Fidesz MEPs were to support Juncker, would have a harder time with him than he had with Barroso. The same is true if Schulz becomes president. Actually the two men’s views are rather close. Both are miles away from Viktor Orbán’s worldview. In either case, Orbán will be even more unhappy with Brussels than he has been until now.

New infringement procedures: “pálinka” and big box stores

The European Commission most likely waited until the election was over before handing down some bad news to the Hungarian government. The first to reach Budapest was a court ruling on the issue of tax-free “pálinka,” a powerful alcoholic drink made out of various kinds of fruit. The Orbán government’s decision to allow country folk to produce tax-free home brew from fruit grown on their own land came early. It was one of the twenty-two proposals presented by Viktor Orbán to solve the “economic crisis,” and it went into effect on July 1, 2010 despite warnings that it was in contravention of EU law. The announcement that home-distilled pálinka would no longer be taxed was described as the pinnacle of ninety years of struggle for liberation against the backdrop of the tyranny of the state. The “tyranny” referred to was the sensible regulation that owners of orchards who wanted to distill pálinka had to take their fruit to a state distillery and pay tax on the product.

This hasty decision to please Fidesz’s rural voters had all sorts of negative effects. First of all, since these amateur distillers can produce up to 50 liters of pálinka a year without paying taxes, the Hungarian state nowadays receives considerably less revenue from excise taxes on liquor. Second, the professional pálinka producers worried about the hard-won fame of good pálinka, which is considered by the European Union a “hungaricum” and is highly regulated. It must be made from fruits or herbs indigenous to the Carpathian Basin and grown in Hungary. It must be produced and bottled in Hungary, and its alcohol content must be between 37.5% and 86% ABV (alcohol by volume).

To make a long story short, a few days ago the European Court of Justice handed down its ruling: Hungarian home brewers must pay taxes on their products even if they produce no more than 50 liters a year. The reaction? The typical Fidesz one. Instead of telling Brussels’ real objections, they lie and claim that “the bureaucrats in Brussels want to abolish the national heritage of pálinka distillation which is a hungaricum.” Sándor Fazekas, minister of agriculture, called the court’s decision a provocation.

As long as the Hungarian government distorts the rulings of the European Court of Justice we shouldn’t be surprised if the ordinary Hungarian farmer in the countryside accuses the European Union of interfering with the values and traditions of their nation and if he develops a hatred of all those anti-Hungarian foreign bureaucrats. But I guess this is the purpose of the government rhetoric.

The second infringement procedure is about the “plaza stop.”  This particular infringement procedure hasn’t yet ended up at the European Court of Justice and it may never land there because of the extreme slowness of EU bureaucracy. For some background on this particular piece of legislation I suggest reading an old post of mine from November 2011. It started as an LMP draft bill and was then taken up and completely rewritten (and distorted) by the government party. The bill stated that between January 1, 2012 and December 31, 2014 no establishments greater than  300 m2 (3,230 ft2) can be built. Real estate developers protested, not without reason. Moreover, the law inflicted economic pain on the country. Hungary was in the midst of an economic crisis in which unemployment was high and the construction industry had almost collapsed. At that time there were at least five such retail outlets in the planning stages. All work on the construction had to be stopped.

Today the European Commission launched an infringement procedure against Hungary over the country’s ban on the construction of “hypermarkets” as it may be against the competition rule applicable in the territory of the European Union. The reaction? The usual Fidesz demagoguery. “The European Commission once again put the interests of large multinational companies before that of the small Hungarian businesses.”

Hyper market

But who is going to defend the Hungarian consumer from the higher prices which are inevitable in smaller retail stores? And what about the variety of goods that only large establishments can offer?  Small, individually owned stores can never compete with chains on price or availability. I know all the arguments pro and con on this sensitive issue, but the fact is that forcibly stopping economic developments that seem inevitable is not good for anyone, including the consumer.

Retail is always changing. Think, for instance, of the mail order catalogs of businesses like Montgomery Ward and Sears that not only revolutionized nineteenth-century retail but also improved the lives of the rural poor and the segregated blacks in the South. That was in the 1870-1880s. Today online companies like Amazon have disrupted retail yet again.

Yes, big box stores tend to squeeze out small retailers just as mail order catalogs were hard on ma and pa stores in the nineteenth century. But this is how modern economies function. The state’s role is not to forbid the normal flow of goods and services but to regulate their activities.

Another corruption case and the news of the day

Yesterday I promised to write about another scandalous affair, this time involving a close friend and business partner of Viktor Orbán, István Garancsi. This morning after I read a number of articles on the subject I almost gave up on the idea. The case is so complicated–surely for good reason–that it takes some doing to figure out exactly what happened. Here is what I managed to put together. I’m waiting for more input from readers.

Shortly after Viktor Orbán won the election, companies dealing with distance heating wanted to raise their prices, a move that would not have been popular and something the new government wanted to avoid. So the government instructed the state-owned MVMP Partner Energiakereskedelmi Zrt. to supply gas to these providers from its reserves at a lower rate. In return, the government made sure that MVMP would receive cheaper western gas by way of compensation. In fact, the government bought a great deal more gas than was necessary to replenish the reserves. The extra, which was in fact the bulk of the purchases, was sold by MVMP to a company called MET. It then sold the inexpensive gas at a handsome profit.

MET has its headquarters in Switzerland, but some of its subsidiaries are in Cyprus, the British Virgin Islands, and the Cayman Islands. Behind its complex business structure are two Hungarians:  György Nagy and István Garancsai.  György Nagy was the founder of Wallis Rt., an investment company, whose CEO between 2000 and 2006 was Gordon Bajnai. Subsequent to Wallis Nagy was involved in several successful business ventures. István Garancsai is the owner of Viktor Orbán’s favorite soccer team, Videoton. He also owns a small credit union, Duna Takarék, which miraculously was not nationalized when all others were. It turned out that it was Duna Takarék that gave a loan of 600 million forints to Viktor Orbán’s soccer foundation in Felcsút.

These offshore companies got inexpensive gas thanks to the largesse of the Hungarian government. They then sold it at the going market price in Hungary. According to estimates, their profit was 50 billion forints in 2012 alone.

Those of you who are interested in the extremely complicated details should read the two articles published by atlatszo.hu on January 28 and February 3.

Just a taste of the complexity of the businesses involved / Source: atlatszo.hu

Just a taste of the complexity of the businesses involved / Source: atlatszo.hu

And now let’s move on to some important news of the day. Early in the morning it became known that although the Hungarian government claimed that the European Commission supported its agreement with Russia concerning Paks, the claim is not true. Of course, that doesn’t surprise me because members of the Orbán government are not known for their truthfulness. On Monday, for example, Viktor Orbán delivered a twenty-five-minute speech in parliament in which there was not one truthful statement about the real state of affairs. At any event, when the government initially made its claim that the EU was on board with the Paks deal,  HVG was skeptical and inquired from the commissioner for energy about the case. The reporter was told that the commissioner hadn’t received detailed information and that they were waiting until they had it in hand. Today came the news that the European Commission will investigate the case very soon.

And in a blow to the Hungarian government’s tax policy, the European Court of Justice ruled that

Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State relating to tax on the turnover of store retail trade which obliges taxable legal persons constituting, within a group, ‘linked undertakings’ within the meaning of that legislation, to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover, if – and it is for the referring court to determine whether this is the case – the taxable persons covered by the highest band of the special tax are ‘linked’, in the majority of cases, to companies which have their registered office in another Member State.

To translate this convoluted sentence into plain English, the extra tax that foreign-based retail chains had to pay since 2011 is discriminatory. The judges instructed the Hungarian courts to make a ruling in accordance with EU laws in those cases where foreign companies suffered financial discrimination. Apparently the contested tax revenues amounted to about 90 billion forints. According to legal experts, it is likely that the Hungarian government will end up paying a great deal more compensation to these companies.

As for a resolution on the fate of the “Gabriel” monument, the suspense remains. Tomorrow János Lázár will have a meeting with various Jewish organizations. A leak published by Népszabadság claimed that the erection of the monument has been “postponed,” a statement that was promptly denied by Antal Rogán. Meanwhile one Jewish organization after the other is returning the money received from the government for the events of the Holocaust Memorial Year. In brief, it is a mess. But Viktor Orbán doesn’t like to admit defeat, and therefore there is a good possibility that he will go ahead with the project. Let’s hope that he realizes the gravity of such a decision given the general climate both within and outside Hungary.

Political interference with the Hungarian judiciary

Fidesz politicians have a penchant for creating situations that call attention time and again to the fact that something is very wrong with democracy in Hungary. We have discussed on numerous occasions the many unconstitutional laws enacted by the Hungarian government that have been criticized by both foreign and domestic legal bodies. I don’t think we have to repeat what Kim Lane Scheppele has so eloquently told us over the years about these issues. Instead I would like to talk about a much less complicated case, one understandable even by those who have no knowledge of constitutional law or the intricacies of the legal systems of Hungary and the European Union. I’m talking about the Rezešová case.

Eva Rezešová is a very rich woman of Hungarian extraction from Slovakia. Driving while intoxicated, she had a very serious car accident in Hungary on August 23, 2012. Her BMW ran into another car carrying four people. All were killed. The public outcry was immediate and widespread.

I must say that I didn’t follow the Rezešová trial because I didn’t think that it could possibly have political ramifications. After all, it was an ordinary, if tragic, car accident. But Fidesz politicians manage to muddy (or, better, taint) the legal waters even in seemingly straightforward cases.

Rezešová was brought to trial, found guilty, sentenced to six years, and placed under house arrest until the appeals court re-hears her case. The prosecutor filed the appeal since he believed the verdict was too lenient.

Public outrage followed the announcement of the house arrest. The Internet was full of condemnations of the decision. After all, this woman who caused four deaths while driving under the influence didn’t deserve to live in a comfortable apartment in Budapest. News spread that her two children, who are currently in Slovakia, will join her and will attend school in Budapest while she is awaiting her second trial.

Antal Rogán decided to join the outcry. He took along a cameraman and delivered a short message in front of Rezešová’s residence, which he placed on his Facebook page. He expressed his disgust and, in the name of the Fidesz parliamentary caucus, called on the parliamentary committee dealing with legal matters and on the minister of justice to investigate the outrageous decision that Rezešová could spend her time between the two trials in the comfort of her home. That happened around 10 a.m. on December 4. A few hours later the announcement came from the court, which had originally ordered the house arrest, that they had changed their minds. Rezešová must return to jail because there is a danger of her escape. Observers were certain that there was a direct connection between Rogán’s demand for an investigation and the court’s change of heart.

Antal Rogán in front of Eva Rezešová's apartment house / mandiner.hu

Antal Rogán in front of Eva Rezešová’s apartment house / mandiner.hu

This may not be the case. The prosecutor appealed the case and also asked the court to reverse its decision on the issue of the house arrest. So, it is entirely possible that Rogán’s instructions to the parliament and the ministry just happened to coincide with the court’s announcement. Whatever the case, it doesn’t look good. It looks as if in Hungary politicians give instructions to the judiciary and these instructions are promptly obeyed.

Why did Rogán try to influence the court’s decision? Is he that ignorant of the notion of the separation of powers in a democracy? It’s hard to imagine. People consider Rogán one of the brighter politicians around Viktor Orbán. Perhaps as the national election approaches the Orbán government is ready to ignore the “fine points” of democracy as long as a gesture like Rogán’s is appreciated by the majority of the people. And, believe me, it is appreciated. On Facebook one can read hundreds and hundreds of comments thanking Rogán for “doing the right thing.” After all, if the judges don’t know what decency is, here is a man who does and who instructs them to make the right and just decision.

The Association of  Judges reacted immediately and pointed out that Rogán’s statement may give the impression of undue influence on the judiciary. The Association felt it necessary to defend the judges against any such interference. It announced that the Association cannot tolerate “expectations expressed by politicians in cases still pending.” The president of the Hungarian Bar Association found it “unacceptable that a politician expresses his opinion on a case before the final verdict.” He called Rogán’s action “without precedent.” And today even the chief justice of the Kúria (Supreme Court) alluded to the case without mentioning Rogán’s name or the Rezešová case. The issue came up in a speech by Chief Justice Péter Darák welcoming the new clerks and judges. He warned them never to fall prey to outside influences.

It is possible that Rogán’s ill-considered move  may have serious practical consequences. For example, what if Rezešová’s lawyer eventually decides to turn to the European Court of Justice claiming political influence in the verdict of the appellate court? It will be very difficult to prove that the two events occurring on the same day had nothing whatsoever to do with each other.

And there are other clouds looming over the Hungarian government with regard to its constant interference with the judiciary. Two days ago the Constitutional Court found the practice the Orbán government introduced of transferring cases from one court to another unconstitutional. This is not the first time the Constitutional Court ruled on the issue, but every time it found the law unconstitutional the government smuggled the same provision into either the constitution or some other law. Meanwhile the head of the National Judiciary Office (OBH), Tünde Handó, kept transferring practically all political cases at will to the far corners of the country to courts that she most likely considered to be partial to the government’s position. In 2011 thirteen and 2012 forty-two such cases were assigned to non-Budapest courts. These cases are still pending.

There are two possibilities now. One is to stop all the proceedings and start the cases over again, this time in the courts to which they by law belong. The second possibility is to proceed as if the Constitutional Court never spoke and have the courts hand down verdicts that will most likely be found null and void by the European Court of Justice. If I were the Hungarian government, I would opt for the former.

Testimony on the situation of Roma in Hungary by the European Roma Rights Centre

For consideration by the Commission on Security and Cooperation in Europe, U.S. Helsinki Commission

The situation of Roma in Hungary

Human rights NGOs have consistently reported that Roma in Hungary are discriminated against in almost all fields of life, particularly in employment, education, housing, health care, and access to public places. Yet government representatives maintain that the problems faced by Roma relate to their economic and social difficulties, rather than racism and prejudice against Roma in Hungary. A similar view of the Hungarian authorities has been noted by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance in its report following a mission to Hungary.

In January 2013, following a complaint initiated in 2005 by two Romani people represented by the Chance for Children Foundation and the ERRC, the European Court of Human Rights ruled that Hungary violated the European Convention on Human Rights in a case challenging the segregated education of Romani children in a special school. The Court underlined that there was a long history of wrongful placement of Romani children in special schools in Hungary and that the State must change this practice. The Court concluded that ‘positive obligations incumbent on the State in a situation where there is a history of discrimination against ethnic minority children’ would have required Hungary to provide necessary safeguards to avoid the perpetuation of past discrimination or discrimination practices.

State response to violence against Roma

In Hungary the European Roma Rights Centre examined the progress in 22 known cases of violence against Roma. In these incidents seven people died, including a five-year old boy, and a number of individuals were seriously injured. Ten Romani homes were set on fire with various levels of destruction. Guns were involved in 10 of the examined cases and in two cases hand- grenades were used. Out of the 22 attacks, nine, resulting in six deaths, are believed by police to have been committed by the same four suspects who are currently on trial.

Police misconduct and procedural errors were documented during the investigation of one of the violent crimes against Roma, as raised by NGOs and later confirmed by the Independent Police  Complaints Committee and by the Head of Police. Misconduct by the National Security Service was also found.

In the majority of the cases examined, the information provided by State authorities was inadequate. Where information was provided, limited results of investigation and prosecution were revealed. In several cases information was not provided by the authorities, who cited data protection and criminal procedure laws.

The Hungarian government does not systematically monitor racist violence. Police, prosecutors and court officials are reluctant to consider racial bias motivation as an aggravating circumstance to crimes: it is not explicitly included in the Criminal Code (only “base” motivation is included). Hate crimes are dealt with as a separate legal provision but are not linked to other crimes.

In Hungary, there are no specific protocols or guidelines developed for police and prosecutors on how to investigate and prosecute hate crimes. In addition, there is no systematic monitoring of racist violence, or the collection of data disaggregated by ethnicity about the victims of crimes. There are no reliable statistics on the real number of racially-motivated crimes in Hungary: according to available statistics the number of cases investigated under the hate crime provision of Hungary’s Criminal Code is extremely low.

Law enforcement abuse against Roma

Following an incident in 2010, the ERRC and the Hungarian Civil Liberties Union represented a Romani woman in domestic procedures and before the European Court of Human Rights. In June 2012 the European Court of Human Rights ruled that Hungary had violated the European Convention of Human Rights in a case of police violence against a Romani woman.

In its judgment, the European Court found that there had been a substantive and a procedural violation of Article 3 of the Convention (prohibition of inhuman or degrading treatment). The Court concluded that the police used excessive force during the incident, and that such use of force resulted in injuries and suffering of the applicant, amounting to degrading treatment. The Court also noted that no internal investigation or disciplinary procedure appeared to have been carried out within the police force concerning the appropriateness of the police action. The Court also found that no adequate investigation had been carried out into Ms Kiss’ allegations. However it rejected the claim of discrimination (under article 14), finding there was no evidence of discriminatory conduct by the police. Anti-Roma demonstrations and statements Romani individuals and communities continued to be victims of intimidation, hate speech and various violent physical attacks throughout the last two years. The ERRC’s non-exhaustive list on Hungary includes eight attacks in 2012.

Paramilitary groups have been marching and organising demonstrations in Hungarian villages since 2006. In spring 2011, paramilitary groups marched and patrolled, particularly in the Hungarian village of Gyöngyöspata, harassing and intimidating Romani communities. Members of the organisation patrolled the town, where they prevented the Romani residents from sleeping by shouting during the night, threatened Roma with weapons and dogs and followed them every  time they left their houses, unimpeded by local police. Human rights NGOs raised concerns and called on State authorities to take immediate action. During these unlawful actions Romani women and children were relocated due to the threat of violence. As a result of racial harassment, and due to stress, a Romani woman in her eighth month of pregnancy delivered her baby early and needed to be hospitalised. The incidents have been reported by the US State Department in its Hungary Country Report on Human Rights Practices for 2011 alongside other incidents.

Similar far-right movement activities continued in 2012, when several demonstrations were organised in Devecser, Cegléd and Miskolc. In Devecser pieces of concrete and other missiles were thrown at Roma houses, and one female activist was injured. In an open letter to the Hungarian Minister of Interior and the National Chief of Police, three Hungarian NGOs expressed their concern about the violence in Devecser, stating that by not dispersing the demonstration, the police failed to ensure the rights to freedom, equality and security of the local inhabitants. The Ministry and the police responded by saying they considered the police intervention in Devecser had been adequate.

Incitement to hatred is a common occurrence in Hungary. One of the latest examples was the publication of an op-ed in the Hungarian daily newspaper Magyar Hírlap on 5 January 2013 by a leading journalist and co-founder of the ruling FIDESZ party, calling Roma “animals” that “need to be eliminated” “right now by any means”.   This kind of inflammatory language is especially dangerous in Hungary. Bayer was initially criticised by the Deputy Prime Minister, Tibor Navracsics; Navracsics later defended Bayer, saying that he could not imagine that Bayer seriously thought what he said in his article. Key senior figures in the government, e.g. Prime Minister Viktor Orbán, and the Minister with responsibility for Roma issues, Zoltán Balog, did not officially condemn the racist article by Bayer on behalf of the Hungarian Government.

In response to the incident, the ERRC joined with a coalition of Hungarian NGOs in asking domestic companies and Hungarian divisions of multinationals to take a stand against racist commentary in Hungary. The NGOs have asked, among others, Vodafone, T-Com, FedEx, IKEA and Procter and Gamble to reconsider advertising in Magyar Hírlap.

To date seven companies have said they will no longer place advertising in the Hungarian newspaper that published the extreme anti-Roma statements. Erste Bank blacklisted Magyar Hírlap after the NGOs’ call, and expressly brought it to their media agency’s attention to “act more prudently next time” when dealing with the publication of their advertisements. They also emphasised that the bank will not advertise in any media whose content “hurts the dignity of others, or uses an inflammatory tone regarding any minority, ethnicity, or religious group”. The leaders of CIB Bank said that the CIB Group will refrain from advertising in Magyar Hírlap and its portal “until the editorial staff categorically condemns Zsolt Bayer’s writing and ensures that both publications are free from writings that include hate speech”. IKEA, FedEx, and GDF Suez also distanced themselves from the article, and stated they do not plan to advertise in the online version of the newspaper in the future.

On March 15, 2013, a national holiday in Hungary which is also the “Day of Hungarian Freedom  of Press” the Hungarian Government awarded the journalist Ferenc Szaniszló the “Táncsics Mihály” award and honoured him as the “journalist of the year in Hungary”.  Mr Szaniszló is infamous for spreading Jewish conspiracy theories and describing the country’s Roma minority as “human monkeys.”

The award was given for “extraordinary journalistic achievements” and was presented by the Minister of Human Resources, Zoltán Balog, who is also in charge of integration of Roma. Balog claimed that he did not know who had received the award, but still handed it over to Szaniszló. Balog later distanced himself from the views of Szaniszló.

Recently, Canadian authorities launched a billboard campaign in Miskolc, Hungary, to deter Romani asylum seekers. The majority of Hungarian Romani asylum-seekers to Canada originate from this town. The billboards around the city stated that “Canada’s refugee system has changed” and that “Asylum claims are evaluated within weeks instead of years”. The billboards further cautioned the public that “Applicants with unjustified immigration claims are sent home faster”.

A side effect of the billboard campaign in Miskolc has been the aggravation of the hostile atmosphere that Romani people have to face every day. The Mayor of Miskolc Ákos Kriza (member of the governing party FIDESZ) stated that, “Miskolc will not welcome back repatriated Roma refugee claimants arriving from Canada”.  A couple of days after his appearance on national television, Mr Kriza announced that he will “keep the criminal elements out of Miskolc by checking whether any of the people who left for Canada also took advantage of social assistance from the city or the central government.” He claimed that he had already found five people who were ineligible and who thereby committed a crime. He got in touch with the police. He will do everything to prevent “these criminals from settling in the city. Moreover, criminals currently residing in Miskolc will be driven out by the authorities.” He even threatened returning Romani parents that the authorities would take their children away and place them under state supervision.

After the campaign in Forró (near Miskolc) anonymous anti-Roma graffiti appeared on houses calling on the Roma to “go to Canada”.

Suggested questions to the Hungarian Government:

Does the Hungarian Government keep detailed data on the number and type of racially motivated crimes committed against Roma, and in particular Romani women, as well as information on prosecutions? Please supply detailed information.

  • What measures have been adopted to bring the Hungarian criminal legislation in line with international standards on investigating and prosecuting hate crimes?
  • What professional training and capacity-building activities have been implemented for law-enforcement, prosecution and judicial officials dealing with hate crimes?
  • What measures have been adopted to ensure that access to counselling, legal assistance and justice for victims of hate crimes is explored, in co-operation with relevant actors?