Tag Archives: László Trócsányi

Viktor Orbán’s next victims: The civic organizations

The Orbán government, at least on the surface, is not intimidated by the growing criticism of and demonstrations against its hurriedly accepted amendments to the law on higher education, which makes Central European University’s life in Hungary impossible. On the contrary, Zoltán Kovács, spokesman for the Hungarian government, attacked those who raised their voices in defense of the university. For example, when Ulrike Demmer, deputy spokesman of the German government, expressed her government’s concern over the amendments, Kovács fired back, saying that it looks as if George Soros can mislead even the German government with his lies. He also called it regrettable that a serious and responsible government such as the government of Germany would make such a statement.

In addition to its legislation against CEU, the Orbán government decided to proceed with its long-planned move against those civic organizations that receive financial assistance from abroad. I began collecting information on this issue sometime in February when I spotted a statement by László Trócsányi, minister of justice. He accused the NGOs of being political actors without any legitimacy as opposed to parliament, which is elected by the people. Soon enough Viktor Orbán himself attacked them. By late March the situation seemed grave enough for a group of scholars from the United States and Great Britain to sign a statement, “No to NGO crackdown in Hungary.” What was remarkable about this statement was that a fair number of the signatories came from decidedly conservative organizations and think tanks, like the American Enterprise Institute, the Hudson Institute, the Atlantic Council, and the Adam Smith Institute. Their concern didn’t impress Viktor Orbán, who in Warsaw at the summit of the Visegrád Four countries accused the NGOs of being in the “migrant business,” which would require new regulations to ensure the “transparency” of their finances.

One didn’t have to wait long for follow-up action. On April 2, 444.hu obtained a copy of a proposal that would regulate all NGOs that receive foreign financial support. The reason given was long-winded and confused. Basically, the government was afraid that foreign interest groups might be able to influence Hungarian civic organizations to perform tasks that don’t serve the interests of the community but only the selfish interests of these foreign groups. Foreign-funded NGOs thus “endanger the political and economic interests … sovereignty and national security of Hungary.” For good measure, the proposed bill cited the danger of money laundering, financing extremist groups, and lending a helping hand to terrorists. The complete text of the draft can be read here.

HVG, with the help of its legal experts, took a quick look at the draft and decided that the bill in its present form doesn’t make the affected NGOs’ existence impossible. It is just nasty and humiliating. One of the humiliating items is that every time associates of these NGOs make a statement, give an interview, or provide informational material they must identify themselves as representing “an organization supported from abroad.” The experts decided that this is not as bad as the original idea, which apparently would have called the associates of these organizations “foreign agents.”

Spokesmen for these organizations were not as optimistic as HVG’s legal experts. According to Amnesty International, this new law can have the same devastating effect as the Russian law had after its introduction. Áron Demeter, Amnesty International’s human rights expert, considers the proposed bill a serious violation of the right of association and freedom of expression. Márta Pardavi of the Helsinki Commission regards the notion of “foreign subsidy” far too vague. It looks as if even EU grants are considered to be foreign subsidies and would thus be viewed as “foreign interference” that endangers Hungary’s national security. Or, there is a fund that was created from the budgets of the foreign ministers of the Visegrád Four countries. Is this also considered to be “foreign money”? She noted that churches and sports clubs are exempt from any such restrictions. Political think tanks and media outlets that also receive sizable amounts of money from abroad are exempt as well, although, as Pardavi rightly points out, they have a more direct influence on politics than, for example, the Helsinki Commission.

As it stands now, any civic organization that receives more than 7.2 million forints (about $25,000) a year from outside of Hungary must describe itself as an “organization supported from abroad.” Each time an organization receives any money from abroad, it must report the transaction to the courts within 15 days. The details of each organization’s finances will be listed on a new website called Civil Információs Portál. If an organization misses this deadline it can be fined and, in certain cases, can be taken off the list, which means that it will be shut down for at least five years.

Gergely Gulyás, one of the deputy leaders of the Fidesz parliamentary delegation, invited all those parties that have individual caucuses for a discussion of the bill. At the meeting, held this afternoon, it became clear that none of the opposition parties wants anything to do with the bill, which will be submitted to parliament this week. Even Jobbik said “no” to the proposal. As Gulyás Gergely said after the meeting, “George Soros’s hands even reached as far as Jobbik.” As the Fidesz statement insisted, “every Hungarian must know who George Soros’s men are; what kind of money and what kinds of interests are behind these organizations supported from abroad.” The bill will be voted into law before the week is out.

But, as 444.hu pointed out, by attacking the NGOs the Orbán government is treading on dangerous ground because Hungary in 1999, during the first Orbán government, signed the Charter for European Security of the Organization for Security and Co-operation in Europe. In the charter we find the following: “We pledge ourselves to enhance the ability of NGOs to make their full contribution to the further development of civil society and respect for human rights and fundamental freedom.” 444.hu predicts that this piece of legislation, if passed, will prompt even greater protest in Europe and the United States than the Hungarian government’s action against CEU.

Given Hungarian political developments in the last seven years, I assume it doesn’t come as a great surprise that one of the key findings of Freedom House’s “Nations in Transit 2017” is that, with regard to democracy, “Hungary now has the lowest ranking in the Central European region,” behind Bulgaria and Romania. The trajectory of Hungary’s fall from grace is shown below.

April 5, 2017

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

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

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

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

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

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

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

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

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

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

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

March 28, 2017

An EU prosecutor’s office would be a heavy blow to Viktor Orbán

I don’t think that anyone familiar with the Hungarian situation can doubt the economic ramifications of the institutionalized corruption of the Orbán regime. It retards growth and competitiveness and distorts the market economy.

A significant source for this institutionalized stealing is the EU’s convergence funds. Across the EU approximately 50 billion euros in funds distributed to member states is lost to fraud. The problem is especially acute in the former Soviet satellite countries: Bulgaria, Romania, and Hungary. The European Commission’s European Anti-Fraud Office (OLAF) gathers evidence of financial misconduct and prepares hundreds of judicial recommendations, but the prosecution rate is only about 30%.

If you think that this rate is pitifully low, you should take a look at the Hungarian situation. In 2015 OLAF investigated 17 suspicious cases, of which 14 were deemed serious enough for the organization to suggest that financial penalties be paid by the Hungarian government. As far as I could ascertain, in no case did the Hungarian prosecutors move a finger.

Yet hardly a day goes by without news of corruption. Ákos Hadházy, co-chair of LMP who has done the most to unearth corruption, asked Péter Polt, the chief prosecutor, to reveal the number of cases prosecuted since 2011. The answer was staggering. In only four cases did prosecutors bring charges. In monetary terms, in comparison to the billions most likely stolen, the sums involved were peanuts. According to their findings, the financial loss to the European Union was only 286 million forints, or 917,030 euros. Even though every day Hungary receives about two billion forints in EU convergence funds. Several notorious cases, like the street lighting business of Prime Minister Viktor Orbán’s son-in-law, were simply dropped.

For the EU, setting up a new organization–the European Public Prosecutor’s Office or EPPO–to investigate the fraudulent misuse of EU funds and inter-state or so-called carousel fraud is becoming an urgent task. In December I devoted a post to the subject, in which I reported first the reluctance and later the refusal of the Hungarian government to accept such a supranational body. We heard the old refrain: “the sovereignty of Hungarian prosecution might be undermined.” Moreover, goes the argument, since the Hungarian chief prosecutor is appointed by parliament, there might also be a constitutional problem. The latter excuse is truly laughable: almost never does the need for an amendment to the constitution cause any problem for the Orbán government.

Knowing the government’s heavy reliance on the good offices of the chief prosecutor in fraud cases, it was inevitable that Hungary would fight tooth and nail against EPPO. In the last couple of days the issue emerged again after an informal meeting of the justice ministers in Malta. Seventeen countries indicated they would participate in so-called “enhanced cooperation,” which is a procedure whereby a minimum of nine EU countries are allowed to establish advanced integration or cooperation within EU structures without the other EU countries being involved. Five countries, among them Hungary and Poland, opted out.

Justice Minister László Trócsányi self-righteously announced after the meeting that the Hungarian government’s main concern with setting up an EU public prosecutor’s office is its fear of weakening such institutions as Eurojust and OLAF, neither of which has prosecutorial powers. The former is merely a coordinating body that is supposed to improve the handling of serious cross-border crimes by “stimulating” investigative and prosecutorial coordination among agencies of the member states. OLAF can only make recommendations. Trócsányi had the temerity to claim that “these institutions have achieved remarkable results.” In the statement given to MTI, the Hungarian news agency, Trócsányi left open one possibility: “In case they want to establish a European prosecutor’s office, it should be created on the foundation of Eurojust.” As far as Hungary is concerned, “regulating the competence of such a body should require a unanimous vote.” This is in contrast to other countries “who believe that its establishment is possible by a qualified majority.”

Péter Niedermüller, DK member of the European Parliament, somewhat optimistically predicted that “the establishment of EPPO can be delayed but cannot be prevented.” We do know that the EU is reassessing its convergence program, perhaps as a result of all the fraud. Commissioner Věra Jourová, who is in charge of the project, has already indicated that there might be a modification of the rules governing the assignment of EU convergence funds. In plain language, if a member state receives more funds than it contributes to the common purse, it will get less money in the future. The European Parliament can institute “ex ante conditionalities” that would allow for such modifications. That would be a heavy blow to Poland and Hungary, the largest beneficiaries of the convergence funds.

You may have been wondering why I haven’t written about OLAF’s report on its investigation into fraud in the Budapest Metro 4 project, which was reported by Politico at the end of December 2016. It has been heralded as one of the biggest fraud cases ever in the European Union. OLAF recommended the repayment of €228 million to the EC Department of Regional and Urban Policy and €55 million to the European Investment Bank.

Although in the last month the Hungarian media has been full of accusations and counter-accusations, no responsible reporting of the case is possible for the very simple reason that the Hungarian government refuses to make the OLAF document public. As long as we have no idea what is in the document and we have to rely on the interpretations of János Lázár and Nándor Csepreghy, the number one and two men of the Prime Minister’s Office, and Budapest Mayor István Tarlós, who has definite ideas on the subject but admits that he hasn’t seen the report itself, we cannot possibly pass judgment on the case.

The investigation covers the period between 2008 and 2014–that is, two years of the Gyurcsány-Bajnai government and four years of the Orbán administration. The only thing we can say is that it is unlikely that all the fraud took place before 2010 and nothing happened under the new government, which is what the Orbán government claims.

Under the present setup these OLAF reports can be an instrument for political games. The establishment of a supranational European Public Prosecutor’s Office would help prevent the kind of situation that currently exists in Hungary with the latest OLAF report.

January 29, 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

Domestic retreat and preparation for a battle with Brussels

After spending two days away from the Hungarian scene it is time to return. In government circles the rejoicing over Donald Trump’s election continues unabated. Trump’s victory seems to have energized Viktor Orbán for his renewed fight against the European Union. His preparation for the next battle comes, however, after a number of serious domestic political setbacks. The biggest blow was parliament’s failure to pass the constitutional amendments designed at least in part to strengthen his hand in his negotiations with Brussels.

For a day or so there was talk of dragging the amendments back to parliament for another try, but as of yesterday the government seems to have decided to abandon them. János Lázár, at his Thursday afternoon press conference, made that announcement, adding that unfortunately the opposition parties for selfish political reasons had turned against their own country. Századvég, the government’s servile pollster, promptly published a new poll showing that 85% of Hungarians find it dangerous that the opposition prevented the passage of the constitutional amendments.

Despite this setback, Lázár assured the country that the government will fight to the end to save Hungary from foreign hordes. Of course, if the government doesn’t succeed in Brussels, the fault will lie with the unpatriotic left and right opposition parties. Viktor Orbán’s ire is especially directed against Jobbik. He has always accused the parties on the left of being the agents of Brussels, but by now he has come to realize that “Jobbik is also on the side of Brussels.” Jobbik no longer represents the interests of the Hungarian people. Instead, “they represent the point of view of Brussels in Hungarian politics.” The attacks on Jobbik and in particular on Gábor Vona have intensified in the last few days. It seems that Viktor Orbán’s hatred of Jobbik and its leader at the moment surpasses his hatred of the democratic opposition.

Yet at the same press conference Lázár announced the government’s decision to put an end to the “residency bonds” after all. It was this bond program that prompted Jobbik not to vote in favor of the amendments. This decision doesn’t seem to be tied to a possible future vote on the constitutional amendments. Instead, it looks as if the government is trying to find existing provisions in the constitution to justify the prohibition of foreign populaces’ settlement on Hungarian soil. The scandals that have surrounded the sale of these residency bonds, quite independently from the program’s being exploited by Jobbik for its own political purposes, were becoming a burden on the Orbán government. Giving up these bonds is most likely a painful sacrifice for both the government and the intermediaries who have made a killing on them. The government will be deprived of huge amounts of instant cash which is sorely needed, especially since right now practically no money is coming from Brussels.

The government also had to retreat on the issue of Ghaith Pharaon’s visa. He is the man who has been on both the FBI’s and Interpol’s list of criminals who are being sought. Pharaon in the last few months has been buying up valuable pieces of real estate in Hungary and has close working relations with Viktor Orbán’s son-in-law. At the beginning of this scandal Viktor Orbán in parliament called the American charges against Pharaon “a game of the U.S. secret services,” but, after a lot of contradictory statements, Lázár at last announced that as of November 1 Pharaon has no Hungarian visa and therefore cannot legally enter the country.

Today came another setback for the government. You may recall that I wrote a post in October about government plans for a system of what I called Fidesz party courts. These courts would have functioned under an entirely separate judicial system that would have dealt exclusively with matters pertaining to the various branches of the administration. It was especially worrisome that half of the judges assigned to these courts would have been people who had had at least ten years of experience in public service, which would have made their judicial independence highly questionable.

The reaction to the announcement about the planned administrative courts was one of outrage among the judges and in the public at large. Even Tünde Handó, head of the Országos Bírósági Hivatal, a close friend of the Orbán and the wife of József Szájer, Fidesz MEP in Brussels, objected. However, László Trócsányi, minister of justice, continued to press for a separate administrative court system. Eventually, even Tünde Handó, who had written a 32-page objection to the plan, was forced to half-heartedly support some of the new law’s proposals. Well, today the same Tünde Handó, to everybody’s great surprise, announced on Inforádió’s Aréna program that no changes will be made to the present judiciary system. She repeated her belief that there are enough judges in the present system who can handle cases connected with the state administration. We don’t yet know what made Trócsányi retreat from his forceful insistence on the scheme. At the time of the controversy, he claimed that he had been working on this “reform” ever since he became minister of justice in 2014. Giving up so easily strikes me as odd. Perhaps Fidesz didn’t have enough votes to pass it.

In the face of these retreats the government consoled itself with the wonderful news of Donald Trump’s election. Here are a couple of typical expressions of delight on the part of Viktor Orbán, the only prime minister in the European Union who believes we are seeing the beginning of “a better future for the world with the new president.” Brexit “was the knocking on the door of this new era, but now we have stepped over its threshold.” The future will be bright because “the days of liberal non-democracy are coming to an end and we can return to real democracy.” Orbán seems to define “real democracy” as a political system in which “we can return to straight, honest talk freed of the paralyzing constraints of political correctness.” We have seen what Fidesz means by “straight and honest talk” in the last 14 years if not longer. And we can admire what straight and honest talk produced in the United States during this dreadful year of campaigning.

self-confidence

Finally, I should say something about a special meeting of the 28 EU foreign ministers called together by Frank-Walter Steinmeier, the German foreign minister for the coming Sunday. The foreign ministers at their regular session on Monday will be discussing the situation in Turkey. The special meeting is supposed “to assess the implications of Donald Trump’s victory as America’s allies brace for the unknown.” I heard a fleeting remark on Klubrádió (but can’t find written confirmation of it) that the Hungarian foreign minister, István Szijjártó, will not attend the special meeting. Perhaps an undersecretary will represent Hungary. If this is true, the Orbán government would be making a statement about its own divergent opinion of the result of the U.S. election.

The Hungarian government is not at all worried. On the contrary, Viktor Orbán and his minions are looking forward to a wonderful new world. He heads the list of “Europe’s extreme right leaders [who] revel in Trump’s victory.” Euractiv.com puts him in the company of Nigel Farage of Britain’s UKIP, Geert Wilders of the Party for Freedom in the Netherlands, Beatrix von Storch of Germany’s AfD, Norbert Hofer of the Austrian Freedom party, Tom Van Grieken of Vlaams Belang (Belgium’s far-right Flemish separatist party), Nikolaos Michaloliakos of Greece’s Golden Dawn party, and Marine Le Pen of France’s National Front. Among these politicians Orbán is the only one who is not the leader of a saber-rattling far-right opposition party but is the prime minister of a country that is a member of the European Union. Ah, but just wait, he would say. The dominoes are falling.

November 11, 2016

The much-heralded seventh amendment to the Hungarian Constitution

Changing the constitution is a frequent affair in Viktor Orbán’s Hungary. The amendment promulgated today is the seventh since April 2012. So by now the ministry of justice can draft these amendments with relative ease and great speed. Admittedly, we don’t know when work began on this latest touch-up because the Orbán government kept its preparation secret.

According to Hungarian law, no referendum can be held on issues related to the constitution. Yet even before the “refugee” referendum was held, it was obvious that the result of a successful referendum would be a constitutional amendment.

"Five years old Hungary's Basic Law. God bless the Hungarians! April 25, 2016" Great celebration by Magyar Posta

“Hungary’s Basic Law five years old. God bless the Hungarians! April 25, 2016” Great celebration by Magyar Posta

Well, the referendum turned out not to be valid, but such setbacks don’t deter Viktor Orbán. Today László Trócsányi, minister of justice, submitted the government’s proposed amendments to the constitution. The text of the amendments is accompanied by a fairly lengthy justification. Under the heading “General Justifications” we can read:

At the referendum held on October 2, 98% of the electorate voted ‘no’ for forced settlement. With this act the new unity for Hungary came into existence. This new unity is above parties; it considers the defense of Hungary’s sovereignty and the rejection of settlement quotas to be national issues.

The common will of the 98% obliges parliament to endow it with legal force. This amendment is based on the will of a 98% majority, 3 million 300 thousand people. This is more than the electoral support of any party in the past quarter century.

So, let’s see what Trócsányi and his men in the justice ministry came up with. The translation was done by Ben Novák of The Budapest Beacon. I assume that eventually the government will make its official English version available.

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A sentence will be added to the much criticized Preamble, the National Avowal.

After the sentence that reads “We honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation,” the following sentence will appear: “We hold that the defense of our constitutional self-identity, which is rooted in our historical constitution, is the fundamental responsibility of the state.”

Paragraph 2 of Article E of the Fundamental Law will be amended to read:

Hungary, as a Member State of the European Union and in accordance with the international treaty, will act to the extent necessary to be in accordance with the rights and responsibilities granted by the founding treaty, in conjunction with powers granted to it under the Fundamental Law together with other Member States and European Union institutions. The powers referred to in this paragraph must be in harmony with the fundamental rights and freedoms established in the Fundamental Law and, in addition, they must not limit Hungary’s inalienable rights concerning its territorial integrity, its population, its form of government, and its state structure.

Article R of Article 3 (paragraph 4) will be amended to include:

It is the responsibility of every state institution to defend Hungary’s constitutional identity.

Article 4 (1), paragraphs 1-3 will be replaced with the following text:

(1) No alien population can be settled in Hungary. Foreign citizens, not including the citizens of countries in the European Economic Area, in accordance with the procedures established by the National Assembly for Hungarian Territory, may have their documentation individually evaluated by Hungarian authorities.

(2) Hungarian citizens on Hungarian territory cannot be deported from Hungarian territory, and those outside the country may return whenever they so choose. Foreigners residing on Hungarian territory may be deported only by means of legal adjudication. It is forbidden to perform mass deportations.

(3) No person can be deported to a state, nor can any person be extradited to any state, where they are in danger, discriminated against, subject to persecution, or where they are at risk of any other form of inhumane treatment or penalty.

Paragraph 4 of Article XIV will be expanded with the following text:

(4) Hungary will provide asylum to non-Hungarian citizens if the person’s country of origin or other countries do not provide protection, and also to those who, in their homeland or place of residence, are persecuted for their race, ethnicity, social standing, religion, or political convictions, or if their fear of persecution is grounded.

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It’s been only a few hours since the text of the amendments was made available, so few commentaries have appeared. One came from Csaba Molnár, a deputy chairman of the Demokratikus Koalíció, who put it bluntly: Orbán conned the country with these amendments. He used a somewhat indelicate comparison which I will translate here as “the amendments have no teeth.” In his opinion the amendments are simply a rewriting of currently effective Hungarian and European laws. They are no more than eyewash (szemfényvesztés).

Péter Magyari of 444.hu finds the wording vague and elastic. He pays special attention to paragraph 4 of article XIV which, in his opinion, doesn’t preclude the execution of quota decisions but only describes its road map. All in all, he thinks the text is cautious and elastic, so the European Commission will most likely accept it.

Now the question is what Gábor Vona of Jobbik will say to the amendments. After all, without his support Fidesz doesn’t have enough votes to pass them. The democratic parties already announced their refusal to engage in any discussion about them. DK, in fact, because of Fidesz’s attitude toward the results of the referendum, the “sanctimonious” amendment of the constitution and what happened to Népszabadság, will boycott parliament. From the little we know about Jobbik’s reaction, it looks as if Vona, who wants to have a private discussion with Orbán about the issue, also finds the text far too cautious and elastic. He and his party want certain changes. What these changes are we don’t know yet, but people suspect that Jobbik considers the amendments too wishy-washy.

I’m sure that legal scholars better versed in European law will find Trócsányi’s amendments a great deal more sophisticated than meets the eye. I’m looking forward to a lively debate on the subject.

October 10, 2016

Hungary’s “constitutional identity”: What does it mean?

After we learned the results of the refugee quota referendum I wrote a short post, leaving an analysis of the referendum’s consequences for a later date. I did, however, indicate that Viktor Orbán was planning to change the constitution for the seventh time since its framing in April 2012. It was also already obvious that Orbán would try to make a huge victory out of a failed referendum. And indeed, in a day or so, new ads appeared touting that 98% of Hungarians are behind the government’s efforts to save Hungary from migrants. No Hungarian government has had such overwhelming support and the government cannot ignore the wishes of 3.3 million people, they claimed. Therefore, although legally the referendum was not valid, it was a major political success. The government simply cannot ignore the wishes of so many people.

The results of the referendum gave Orbán another political weapon. He cleverly equated the number of “no” votes with support for his party and his government. He declared “a new unity for Hungary,” which stands squarely behind him not just on the migrant issue but also on all matters connected with overarching national questions. Of course, as we know from Publicus Intézet’s poll, if national elections had been held on October 2, only 28% of the electorate would have voted for Fidesz and not 40% as Orbán claims now on the basis of the referendum results. The only opposition party that supported the quota referendum was Jobbik but, again judging from public opinion polls, Jobbik voters’ enthusiasm was a great deal less than that of Fidesz voters. Tipping the results in favor of Orbán’s newly discovered “unity” were those naïve souls among the supporters of the democratic parties who didn’t realize that a “no” vote was a “yes” vote for Viktor Orbán.

Orbán’s plan is to convert some of those extra one million people who were misled by the incredible anti-refugee propaganda to faithful Fidesz supporters and thus achieve the desired two-thirds majority again in 2018 or earlier. The most likely candidates for the enlargement of the Fidesz camp are the Jobbik voters who, following the call of their party, voted “no” on October 2. That would mean the destruction of the already weakened Jobbik by absorbing its supporters. For the time being, however, Gábor Vona has the upper hand. He can demand a very high price for his party’s support of the constitutional amendments. All democratic parties have already announced their intention to boycott discussions related to constitutional changes, and since Fidesz no longer has the necessary two-thirds majority Orbán needs the votes of Jobbik. But as an op-ed article in valasz.hu predicted, Jobbik might be the next victim of Viktor Orbán. Interestingly, Boris Kálnoky, Budapest correspondent of the Austrian Die Presse, also considers Orbán’s announcement of “a new unity” a declaration of war against Jobbik.

The constitutional amendments are shrouded in mystery, but by yesterday we learned that the government will invoke a fashionable legal notion called “constitutional identity.” This legal construct has such a huge literature, whole books were devoted to the subject, that what I can say about it here is not more than what I learned in a short description of a book by Gary Jeffrey Jacobsohn. Jacobsohn argues that “a constitution acquires an identity through experience—from a mix of the political aspirations and commitments that express a nation’s past and the desire to transcend that past.” I assume that after reading this description you are as puzzled as I was when I first read it. I became a bit more enlightened after I took a quick look at an article that appeared in the Utrecht Law Review by Leonard F. M. Besselink titled “National and constitutional identity before and after Lisbon.” This article then led me to the text of the Lisbon Treaty in which there is no mention of “constitutional identity.” It does, however, talk about “national identities” in Article 4.2, which reads:

The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

Justice Minister László Trócsányi and Undersecretary Bence Tuzson in charge of communication

Justice Minister László Trócsányi and Undersecretary Bence Tuzson in charge of communication

I suspect this is what László Trócsányi, minister of justice and former member of the constitutional court, has in mind. It looks as if Trócsányi finds the idea of “constitutional identity” an important and handy legal construct. According to vs.hu, at the time of the ratification of the Lisbon treaty, at the request of a private person, the Hungarian constitutional court examined whether the treaty transgresses the sovereignty of Hungary. The court rejected the brief, but Trócsányi filed a concurring opinion in which he stated that “the member states have kept their right to determine the fundamental tenets of their constitution, which are indispensable for the maintenance of their constitutional identity.” In other words, over the centuries the Hungarians who settled in the Carpathian Basin created a specific cultural and ethnic identity. This identity would be violated by large settlements of people coming from a different cultural and religious background. I assume this will be the main argument of the Hungarian government against the contentions of those who claim the supremacy of EU law over the laws of a member state. Judging from the fact that Hungarian constitutional scholars already wildly disagree over the Hungarian government’s interpretation of “constitutional identity,” I suspect that Trócsányi’s brainchild might not be so easy to defend.

By now I more or less understand what Trócsányi is getting at, but I was nonetheless completely baffled by what he said at this morning’s press conference. He announced that the amendments will touch on Hungary’s territory, its population (népesség), populace/population (lakosság), the structure of the state (állami berendezkedés), and the form of government (államforma). This sounds outright frightening. Let’s start with the most intriguing one: the form of government. Surely, Trócsányi is not thinking of calling back the Habsburgs or returning to the “free electors” active between the two world wars, so I don’t know what he has in mind. Changing the structure of the state is equally worrisome. Will they introduce a presidential form of government with Viktor Orbán at its head? And what on earth can it mean that the amendments will touch on the territory of Hungary? Are they planning to move a few rivers to make the country bigger, because surely they cannot contemplate renegotiating the Treaty of Trianon. Finally, I have no idea what the difference is between “népesség” and “lakosság.”

We can expect turbulent times in Hungary, that’s for sure. I also wonder what Brussels will think of the latest brainstorm of Viktor Orbán and his team.

October 6, 2016