Tag Archives: rule of law

The European Parliament rapporteur on Hungary pays a visit to Budapest

The Hungarian right-wing press is buzzing with indignation. Judith Sargentini, a Greens/EFA member of the European Parliament from the Netherlands, arrived in Hungary yesterday as part of her work as rapporteur for the parliament’s investigation into whether Hungary is in breach of the values of the European Union. Her report will recommend what steps should be taken against Hungary for curbing freedom of the press, failing to uphold the rights of refugees and minorities, and taking steps against universities and NGOs.

After her appointment on July 11, 2017, Sargentini expressed her strong disapproval of the current Hungarian government. She believes that “time and time again, Orbán has gone against the norms and values of the European Union. When a country is no longer prepared to uphold our common values, it’s a logical step to take away its voting rights.” Indeed, at the end of the road, if Parliament approves her report, it may recommend that the European Commission invoke Article 7 of the EU Treaty, which can deprive the country in question of its voting rights.

After Judith Sargentini met Levente Magyar, political undersecretary and deputy minister of foreign affairs, MTI published a short statement in which Magyar, instead of addressing the issues of Hungary’s disregard of “the norms and values of the European Union,” dwelt on the “sharp conflict between certain Brussels institutions and politicians and Hungary with regard to immigration. The Hungarian people want to decide for themselves who they live with and have stated this on several occasions. This is what irritates certain Brussels politicians.” He added that the talks with the rapporteur were amicable but that the MEP had no knowledge of certain basic facts, in view of which her Hungarian negotiating partners offered Ms. Sargentini their assistance. What else is new? The Orbán government’s answer to criticism from the European Union is invariably a two-pronged charge of ignorance and bias. Magyar failed to inform the public about the specifics of Sargentini’s incompetence.

The right-wing media was on high alert and ready to discredit Sargentini ahead of her arrival. Pesti Srácok and several other news outlets portrayed her as “Soros’s man” who has been associated with Soros-financed NGOs for ten years. Recently, she had several meetings with the Hungarian Helsinki Committee and TASZ, the Hungarian equivalent of the American Civil Liberties Union. She is “one of the trusted allies of George Soros.” Fidesz also released a statement upon Sargentini’s arrival in Hungary, according to which “the real goal [of Sargentini’s report] is to force Hungary to carry out the Soros Plan.” Ahead of Sargentini’s arrival, Péter Szijjártó gave an interview to Kossuth Rádió’s morning program, 180 Minutes, in which he described LIBE, the committee which entrusted Sargentini to be the rapporteur on Hungary, as “nothing more than a theater” where the condemnatory report has already been written.

While Sargentini was in Budapest, in Brussels there was a book launch for a new work by NGOs from Hungary, Croatia, Poland, and Serbia on the “sick democracies” of Europe. At the gathering several MEPs spoke critically of the Orbán government’s hate campaigns and its disregard of the basic values of the European Union. Sophie in ‘t Veld, a Dutch Liberal member of parliament, brought up Orbán’s claim from an interview in Das Bild a few days ago that the Syrian refugees are part of a Muslim invasion of Europe. She suggested that the Hungarian prime minister refresh his memory on the basic values of the European Union, which he will find in Article II of the EU Constitution.

The reference to Article II was especially apt since in Budapest one of the “legal experts” of the Center for Basic Laws (Alapjogokért Központ), a government subsidized organization, announced today that it is unlikely that Judith Sargentini will get anywhere with her report on the absence of the rule of law in Hungary since there is no definition of the concept anywhere in the Union’s constitution. So, he continued, any assertion of a lack of constitutional order is arbitrary. In this particular case, the LIBE investigation is a purely political exercise. According to one of the many spokesmen of Fidesz, the conversation between Magyar and Sargentini is just part of the “compulsory rounds,” which in no way will influence the message of the report. It is one of those things diplomats in the ministry have to do now and again.

A couple of journalists from the state television’s M1 channel and from Pesti Srácok were on hand after Sargentini left the building of the Foreign Ministry, trying to have an interview with her. I don’t know what she thought of Hungarian journalists after this encounter, but I fear it couldn’t have been complimentary. M1’s reporter didn’t seem to understand that the MEP was in Budapest to ask questions and learn about the country and its government. She was not ready to give interviews. The fellow from Pesti Srácok entertained Sargentini with questions like “If it depended on you, what kind of a future would you wish for Hungary?” And when he got no answer, he wanted to know what she thought of Viktor Orbán as a person. The video of the encounter can be seen here. Pesti Srácok’s headline for the article describing the scene was “Soros’s man came to call Budapest to account and she left post-haste.”

The Hungarian government is not backing down in the face of more intense EU scrutiny. It looks as if the decision was already made to launch a new “action plan” to thwart the execution of the Soros Plan.

István Hollik (KDNP), who has become the fiercest and most extreme spokesman for the government, called Sargentini “one of the most important allies of George Soros.” The report she is working on is actually a “Soros Report.” While the Soros NGOs speak of “sick democracies,” what is really sick is the European Union’s attacks on Hungary.

So, the mood is belligerent and unyielding, though this may change as a consequence of the new Polish prime minister’s housecleaning that resulted in the departure of eight ministers from the far right and their replacement by centrists. The move is most likely in preparation for a reset of Polish-EU relations. In that case, Viktor Orbán would remain virtually alone with his “action plan,” something I don’t believe he would relish.

January 10, 2018

Budapest Beacon: A conversation with Gábor Halmai on Viktor Orbán’s Hungary

Many thanks to The Budapest Beacon for permitting me to republish this interview.

One of Hungary’s most distinguished scholars of constitutional law, Gábor Halmai is the director of the Institute for Political and International Studies at Eötvös Lóránd University, Budapest, as well as director of the Hungarian Human Rights Information and Documentation Center. He has published extensively in English, German and Hungarian on problems related to human rights, judicial review, freedom of expression and freedom of association. Former chief counselor to the president of the Hungarian Constitutional Court, László Sólyom (later President of the Republic of Hungary), Halmai has served as vice-chair of the Hungarian National Election Commission. He received his PhD from Eötvös Lóránd University and is currently a visiting research scholar at Princeton University. 

(Note: We apologize to Dr. Halmai for technical problems experienced during the filming of this interview.  When transcribing this interview, we took the liberty of rewording a few of Dr. Halmai’s statements for the sake of clarity, taking care not to change their meaning.  We have also highlighted key terms and expressions used by Dr. Halmai for easy reference. -ed.)

As an expert on constitutional matters, what is happening in Hungary?

Ironically, Prime Minister Orbán himself characterized the development very accurately by saying in a speech this last summer that Hungary is not any more a liberal democracy but an illiberal democracy.  He even proudly claimed that the pursuit of the Hungarian government is not having a liberal democracy. He named as leading examples for the Hungarian government Russia, China, Singapore, even Turkey, countries which certainly are not fulfilling those ideals which are principles of the European Union of which Hungary has been a member state since 2004.   So the paradox in that kind of self-definition by the government of Hungary not being any more a liberal state is a kind of proof that Hungary does not fulfil any more the requirement of a member state in the European Union, which is based on the values of rule of law, democracy, protection of fundamental rights, including minority rights, including religious minority rights . . .

Sounds to me like you’re suggesting that if Hungary were to apply for EU membership now it wouldn’t meet the Copenhagen criteria.

Certainly not.  And this is actually one of the troubles of the European Union now:  How can the European Union actually protect fundamental values of the EU within a member state if the member state is not willing to comply?  Seemingly liberal democracy is not the only path for emerging democracies.  It’s very hard to influence, for instance, Egypt to turn into a liberal democracy.  But a member state of the European Union and a member state of NATO is a different issue.

What is a liberal democracy?  What does that mean?

Liberal democracy certainly has many definitions and many requirements.  As a constitutional scholar, let me define liberal democracy as a constitutional democracy, which is certainly a kind of Western approach of democracy.  But we are living in the Western world, at least here in the US and we in the European Union.  So two major elements have to be mentioned.  One is rule of law, which means, on the one hand, that one kind of separation of power or at least checks and balances, if not the US approach of separation of power, some type of checks and balances has to be provided in liberal democracies.  The other major element is guaranteed fundamental rights in a way that they are not only prescribed in the constitution (which was also given in the 1949 constitution. Almost all the rights which we have now in our constitution were provided in the text of the Stalinist constitution, but no one took it seriously that those rights are guaranteed).  In a rule of law state, institutional guarantees have to be in place: an independent judiciary, in the case of the new member states, new democracies, even an independent constitutional court, certainly some independence of the president in a democratic institutional setting.  And probably some more special institution like the ombudspersons in the new democracies.

So these are very important elements which are less and less provided in Hungary.  And the other element I wanted to mention beside these two major components of rule of law, is a kind ofaccountability of the government, meaning a democratic selection procedure, which means mainly a democratic election system.  Unfortunately, in the last years we not only lack those mentioned checks and balances and guaranteed fundamental rights, for example, freedom of the media, freedom of religion, but we also lack a democratic election system.  So even though the governing party, Fidesz, won the parliamentary election in April with a two-thirds majority, this two-thirds majority was due to some substantial changes, and, I would argue, not democratically enacted changes of the election law.  The two-thirds is certainly a result of several anti-constitutional new elements of the parliamentary election system. Everyone knows that giving the right to vote to those living outside the country and not resident was decisive to getting the two-thirds majority for the governing party.  Also, I can mention, without going into details, the very strange and unique system of giving advantage to the winner by an approach that is really unique in the world: the compensation for the winner.

Halmai7

And it’s not only the parliamentary election system but very recently the municipal elections were, I would say, fraud, because the changes they made to the system were made just four months before the election, which is, in itself, a violation of any kind of legal security or legal certainty, which is a part of the rule of law. Not to speak of the fact that they created the system in order to get a secured majority in the Budapest council, abolishing entirely the direct election of the council members.  So, according to the new system those council members were not elected by the citizens of Budapest. They were just delegated according to the new system, and these delegates are mostly Fidesz candidates.

So these are elements in a constitutional system–lack of separation of power, lack of guaranteed rights, lack of democratic elections–which makes a country an illiberal democracy with very strong elements of an autocratic system.

And it’s not only on the constitutional level.  If you see the orientation of this government.  I mentioned already the speech of Prime Minister Orbán, what are the model countries.  Certainly not only non-liberal democracies, but as potential political or economic partners—Russia, China—which are seemingly crucial to the Hungarian government as a kind of balance against the EU and, in economic terms, the IMF, which makes a conditional kind of contribution to the Hungarian economy.  Those countries–Russia, China–won’t make rule of law or other democratic conditions for their contribution to the Hungarian economy. But they will certainly make political conditions, which makes Hungary really different from the original member state of a value community, namely the European Union or NATO.

When the system change happened, that was the beginning of what many believe was a difficult transition.  What does this latest transition do to the rule of law in a country?

This new constitutional system, and not only the constitution itself, which is not even called a constitution, it’s called the Basic Law, and not even the “Republic of Hungary” which was the case in 1989 when Hungary finally dropped the “People’s Republic” and turned into a real republic.  In 2011, with the new Fundamental Law, Hungary dropped from its name “The Republic”.  This is a very symbolic change, dropping the republican ideal as well, not only the name.  Hungary became a kind of illiberal democracy.  But what worries me even more than this change, which is worrisome enough for a constitutional scholar who is really committed to constitutional democracy, is that the people themselves over the last five years did not seem to care about these changes.

Prime Minister Orbán claimed that some revolutionary events happened during the election in 2010, which was a kind of “revolution of the ballot box”.  Certainly something happened.  And it is not only what I as a constitutional scholar characterize as “backsliding” of constitutional democracy, but certainly, and I have to admit, an acceptance by the population, or at least a significant part of the population, even if it’s not even the majority of the population, because you know in April altogether 26 or 27 percent of the entire Hungarian population voted for the governing party.  But still that meant a two-thirds majority of the seats in the Hungarian parliament due to the disproportionate election system, and so on.  But still they were the decisive political actor in that election, and they can claim that they are in charge of that country.  So, they can certainly argue that the Hungarian voters approved that change of the constitutional system.

So what is wrong?  It seems to be a democratically chosen new way in Hungary, not being a liberal democracy any more. This is a very complicated issue and I do not want to give a very simple answer, because I do not know the very reasons.  I’m here partly to find out what may have happened in Hungary.

One of the reasons (although I do not fully share this view) is that the change in 1989-90 was very much a kind of elite change in the system of government.  The new comprehensively amended constitution in 1989 was a result of some revolution by an elite, both an intellectual elite and a legal elite.  Some scholars even characterize this kind of development as a “legalistic constitutionalism” led by those people who were part of the negotiations with the previous Communist Party, the democratic opposition and the conservative-liberal opposition forces and, on the other hand, the Constitutional Court itself, which, from the beginning of its establishment, very much imposed this new liberal democratic constitutional system.  So this might be one of the elements.

I try to understand why the people were so dissatisfied with this kind of liberal democracy.  Because probably they were not involved in that change.  The kind of civil participation in the constitutional making process in 1989 and 1990 and even later on in the 1990s was probably not enough to be a part of a constitutional thinking and building up a constitutional culture for the people.

In 2010 when the Orbán government came and said, “okay, get rid of this liberal democracy” – they did not admit at that time that they were doing that, but as I said just recently the prime minister openly admitted that this was the very aim of the new revolutionary changes — probably for the people it wasn’t that interesting what kind of constitutional system Hungary has.

This is a very interesting point.  I don’t think it’s been talked about enough. This transition into a liberal democracy – I don’t want to use the term “illegitimate” – but the parties involved in crafting that change, that was not a bottom-up approach, it was a top-down approach, and there was a level of detachment that may have influenced the public’s semse of being involved.

There were some illegitimate elements in that process in the very beginning.  For instance, the so-called roundtable discussions between the Communist Party and the opposition movements,none of them were elected.  They reached the compromise about the democratic transition, and the very result of that compromise was a comprehensive amendment to the constitution.  The decision was made that this will not even be a new constitution voted by a democratically elected parliament.  This was an amendment to the previous Stalinist 1949 constitution which was voted by the Communist parliament.  So the decision was made in October or November of 1989 with a totally illegitimate parliament.  That is why Viktor Orbán from 2010, but also beforehand in his first governmental term, he always argues “come on, we’ve got a Stalinist constitution!”.   So the title of the constitution is still the 1949 constitution and in 1989 it was only an amendment to it.

He knew, of course, because he is a lawyer and an educated guy, that all the major substantive elements of the Stalinist constitution were changed in 1989.  But formally speaking, it was the same constitution.  So he had a very easy time arguing in 2010 “okay, get rid of this communist constitution”.

Of course, if someone wants to substantively argue “come on, this was the constitution on the basis of which Hungary was admitted to the European Union, according to the Copenhagen criteria”.  So everyone knew in Europe this cannot possibly be a dictatorial or Stalinist constitution.  But for the majority of the population, this could have been a very convincing argument.  “We have to get rid of this old stuff and make a real revolution and a real transition.”  This is his terminology:  “There was no transition in 1989-90. This is the transition”.

Is there anything that is defining of the Fidesz constitution, that work as a whole?

I’ve already tried to list all the elements of this kind of illiberal parts of the constitutional system which is, again, not only the fundamental law itself, but together with those so-called cardinal laws and amendments to the constitution as an entire system.  So this is lacking the major crucial checks and balances and the guarantees of fundamental rights.  Let me mention only two fundamental rights which are actually very much limited since the new constitutional system came into force.

One is the freedom of expression and media freedom, with all the institutional system in place where the government actually occupies all the media and all the review of the media.  They can check all of the public and commercial media through the system they introduced.

The other element is the lack of religious freedom.  If you consider that Fidesz managed to de-register more than 200 churches which were registered originally from the start, from the 1990 religion law with a new system which allows the parliament with a two-thirds majority to decide who is a legitimate church, and who can be the partner of the state as a church, with all of the rights of being a church, and all of the advantages: having state supports, state subsidies, having schools or having other social institutions.

These are really major changes in the system of fundamental rights.  There is a very importantnationalist approach in that new constitutional system.  Let’s start with the basics.  Who is the subject of the new constitution?  If you read the preamble of the new constitution, it says all Hungarians irrespective of their citizenship, or irrespective of their residence, which has two implications:  One, that this is a kind of ethnic concept of the nation.  So Hungarians are those who feel themselves as Hungarians.  The negative implication of that is that all those who do not feel themselves as Hungarians despite being Hungarian citizens are not considered as subject of the constitution.

Of course, there is nothing in the text which indicates that they are treated differently.  But if you interpret what does it mean being a subject of the constitution not being Hungarian, then it means Roma people in Hungary who identify themselves as Roma and not Hungarians, or Jewish people who happen to identify themselves as Jewish and not Hungarian do not belong to this notion of ethnic nation.

There are representatives of nationalities in parliament.  For me as an American I didn’t really understand the reasoning behind that. Can you explain that to me?

From the very beginning of the democratic transition in 1989-90, there was a demand for national minorities can be a real part of the nation.  How they can represent themselves in the democratic decision-making process.  And there were different kinds of suggestions, which all failed, as to how to involve ethnic national minorities within Hungary.  I won’t characterize this kind of attempt to involve ethnic minorities as a ridiculous one.  Certainly, the final solution was not satisfactory for any of those ethnic minorities because they failed to reach the threshold for being represented in the parliament.

What is more worrying for me is the overemphasis of the Hungarian nation in the constitution, in the law of citizenship.  Ethnic Hungarians not even willing to reside in Hungary or move to Hungary were provided Hungarian citizenship, mostly in the neighboring countries, who lost their Hungarian citizenship due to the Trianon treaty, with the very suspicious aim of being involved in the Hungarian parliamentary election.  They were also provided voting rights and, as I mentioned, this was decisive in the general election.

So this is also a kind of very troublesome characteristic of the new constitution.  Another one is certainly the emphasis on Christianity and the Christian heritage in the constitution, which, as a historical argument, is totally legitimate.  The question comes what does it mean Hungary being “historically a Christian country” when it comes to the interpretation of religions rights, for religious minorities, for instance.  As you may know, according to the text of the Fundamental Law, these kinds of provisions in the preamble are also the basis for interpretation by the Constitutional Court.

This was an issue with the church law.  There was a very interesting legislative process behind this.  The church law was passed.  It was changed very quickly right before it was voted on.  Then it was passed quickly by the two-thirds (majority).  And then the Constitutional Court strikes it down.  How does a law that is deemed unconstitutional become constitutional in Hungary?

Unfortunately, it happened not only with the church law but with a lot of other laws.  It became a kind of custom in the last four or five years that those decisions of the Constitutional Court—I’m talking about the Constitutional Court before 2013, a more or less independent Constitutional Court between 2010 and 2013—certainly struck down a lot of laws which were enacted by the new majority of the parliament.  And the new governmental majority just introduced a practice which is really not a characteristic of a rule of law country.  They changed the constitution when any of the laws were struck down by the Constitutional Court, just to overrule Constitutional Court decisions. They put new provisions into the constitution saying this will be the new constitutional rule.  The infamous fourth amendment says the Constitutional Court cannot review any constitutional amendment.

That would suggest that any legislative process, even the highest judicial levels, is completely subject to a very political agenda.

I would even argue that this is the loss of constitutionality.  In that moment when a constitutional rule can be overruled just because the Constitutional Court has struck down an unconstitutional law, and the constitution making majority, which is the government majority due to the very unfortunate and disproportionate election system, can just change the constitution.  This means there is no division between constitutional laws and political laws.  All the laws are political, in that respect.  Whatever the government intends to do to follow their political aims is subject to a constitutional amendment.

There are no checks and balances in this process.

And there are no divisions between constitutional and statutory law.

What is the difference between them?

Statutory laws, which, in all rule of law countries, are subject to a legislative majority decision, are subject to a constitutional review, the basis of which is the constitution.  If the legislature can change the very foundation of the review, the constitution itself, then there is no distinction between those statutes and the constitution, because the same rule applies for the statutory legislative procedure and the constitution making procedure.  In that respect, unfortunately, Hungary reached that situation where there is no more constitution as a higher law, higher to any other statutes in the country which should be subject of a review by a constitutional court.  Not to speak about the fact that this constitutional court is not an independent body any more.

It seems to me that one of the dangers that a country would face when it reaches this point is that legislation can be enacted arbitrarily. There is no precedent that would prevent any legislation from being enacted.

They also abolished all of the previous case-law of the Constitutional Court enacted before the new constitution came into force, which is the case even when the new constitution has the same wording as the previous one had.  If the Constitutional Court ruled something in the mid-1990s, according to the constitutional rule which is still part of the new constitution, this decision is null and void.

Where do we stand now?  There is no independence in the Constitutional Court.  Previous case law is out the window.

That means the Constitutional Court became a political institution serving entirely the will of the government.  And if you study all the decisions made by the Constitutional Court, let’s say since April 2013 (I will explain why this date is crucial) these are all political decisions, at least those decisions which are politically relevant and crucial for the government to win.  The 2013 date is important because Fidesz started abolishing checks and balances in the very early stages of 2010.  Already in May they changed the system of the nomination and election of the Constitutional Court judges.  Previously the case was that the nomination of a Constitutional Court judge needed a consensus in the parliament.

What does that mean, “consensus”?

The governing parties needed some kind of approval by at least part of the opposition parties.  So there was a nominating committee which consisted of both governing and opposition parties.  And for the nomination to be valid it needed a majority of all the parties, governing and opposition parties.  The new rule Fidesz introduced in May 2010 meant that the government alone, without any consent from opposition parties, can nominate Constitutional Court judges.  And from 2010 until 2013 all eight, which means the majority, of the Constitutional Court judges were nominated and elected exclusively by the governing party, which means without consensus of opposition parties.

Since that time over the last year or so, twelve of the fifteen judges have already been elected without consensus.

But I’m sure all of these Constitutional Court judges are known for their knowledge of the law.

Unfortunately, not.  They started in 2010 with two nominees who did not fulfill even the legal requirement of being a Constitutional Court judge.

So would that mean that their nomination by the governing party was purely politically motivated?

Purely political.  For instance, one of the justices was previously head of the first Orbán’s government’s cabinet.  Judge Stumpf was nominated despite not being a professor or being a doctor of sciences, which was the legal requirement in the law.  And his nomination went through the two-thirds majority of the government because the government party had that majority.  And new appointments and nominations are following that rule that not even legal requirements are important, not to speak about the political affiliation of those justices.

Are the nominees brought before a committee and then grilled by members of the committee about decisions they’ve made or positions they’ve assumed on certain legal issues?

It’s very interesting. The latest hearing before that nomination committee was a secret meeting.  It was not accessible to the public.  They had a secret meeting.  The reason given by the government was that the privacy rights of those candidates had to be protected.  Seemingly for the past twenty-five years these privacy rights in a hearing were not important.  Of course there is no rule about the protection of privacy rights of a public official who is running for a public position.  So these nominations are just pure political selections of those loyal to the government.

If this process had to happen now, what would be necessary in order for Hungary to get back on the path to becoming a liberal democracy?

Certainly that kind of procedure which happened in 1989-1990 would not be advisable.  Probably an involvement of the public in understanding what a constitutional democracy is about.  Explaining to them what the advantages to being a constitutional democracy are, despite the fact that this also meant being a member state of the European Union, or the Council of Europe, or any other communities.  Showing them what is at stake to being a constitutional democracy as opposed to the slippery slope of first being an illiberal democracy, as is probably the case of Hungary, or even later being an autocracy like Putin’s Russia or China, just for the sake of some advantages, mostly for the political elite,  I’m not an expert in economic issues but I’m afraid the crucial issue here is when the people will understand what a constitutional democracy means for their well-being.  If the Hungarian population will understand that, probably we can start again establishing a constitutional democracy.

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

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

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

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

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

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

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

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

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

 * * *

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

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

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

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

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

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

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

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

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

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

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

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

 * * *

H. David Baer’s reply:

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

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

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

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

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

David Baer
Texas Lutheran University
USA

Viktor Orbán’s answer to the Tavares report

As soon as the vote in the European Parliament went against the Hungarian government, Viktor Orbán announced that a resolution will be introduced for the Hungarian parliament to adopt that will condemn the Tavares report.

And indeed, by this afternoon the proposed text of the resolution was already on László Kövér’s desk. The bill is signed by three Fidesz members of parliament: Antal Rogán, the leader of the Fidesz caucus, Gergely Gulyás, one of his deputies and the alleged constitutional expert of the party, and Máté Kocsis, mayor of District VIII and a very active young member of parliament.

This afternoon I heard an interview with Gergely Gulyás, in the course of which he was asked whether the idea for the resolution came from Viktor Orbán. Gulyás, who is one of the few Fidesz politicians for whom lying doesn’t come easily, paused. It was a very long pause. Eventually he found the right words: the prime minister can certainly identify with it.

What we must keep in mind is that the resolution comes from Fidesz the party and, as you will see, is at  least in part addressed to the government. So, strictly speaking, Viktor Orbán, the party chief, is asking Viktor Orbán, the prime minister, to do certain things.

Decree of Parliament on the equal treatment due to Hungary

1. We Hungarians entered into the family of European nations by establishing a state and adopting Christianity.

We Hungarians often stood up for European values. There were times when we defended these values with our blood against attacks from outside. In 1956 we armed ourselves against the communist dictatorship. In 1989 we contributed to unifying Europe with the demolition of the iron curtain.

We Hungarians entered into the European Union of our own free will.

We did that in the hope that we would join a community based on law, justice, and freedom.

We Hungarians  do not want a Europe where freedom is limited and not widened. We do not want a Europe where the larger ones abuse their power, where national sovereignty is violated, and where the smaller have to honor the larger. 

We have had enough of dictatorship after 40 years behind the iron curtain.

We Hungarians have always respected the desire of European Union institutions for dialogue, and we have always been ready for reasonable compromises. 

Therefore, we rightly expect the respect and equal treatment due to Hungary from the European Union’s institutions.

We expect the European Union to respect the rights that we acquired after our accession just as it would respect those of any other country. 

The Parliament of Hungary is surprised that the European Parliament passed a decree that it had no right to pass, that exceeded its jurisdiction. The European Parliament made demands, introduced new procedures, and created institutions that violate Hungary’s sovereignty as guaranteed in the fundamental treaty. 

With this decision the European Parliament went against basic European values and led the Union on a dangerous path.

The Hungarian Parliament is further worried by the undue influence of business interests that underlie this abuse of power.

Hungary is reducing the cost of energy paid by families. This may hurt the interests of many European companies that for years have had windfall profits from their monopoly in Hungary. It is unacceptable that the European Union tries to influence our homeland to further the interests of these companies.

The Hungarian Parliament believes that Europe is in danger if the interests of multinationals are realized at the expense of the rules laid down in the fundamental treaty.

Today we adopt a resolution to defend Hungary’s sovereignty and the equality of Hungarians in the European Union.

We call on the Hungarian government not to give in to the pressure of the European Union, not to let the nation’s rights guaranteed in the fundamental treaty be violated, and to continue the policies that make the lives of the Hungarian people easier.

2. This decree of Parliament will enter into force the day after its publication.”

The embellished historical commonplaces that introduce this resolution are to be expected. Hungarians always drag them out when they want to prove their European roots and vaunt their accomplishments in defending Europe from the eastern peril.

What is much more interesting is the government’s attempt to establish a connection between the Orbán government’s lowering of energy prices and the Tavares report which, after all, is about the Hungarian government’s transgression of democratic norms and not about economics. This alleged connection is ludicrous in and of itself, but if we consider that Rui Tavares has been working on this report for at least one and a half years and the Orbán government came up with the political masterstroke of lowering energy prices only a couple of months ago, it should be clear to everybody that there is absolutely no link between the two.

The attempt to cast business interests as a motivating force behind the Tavares report and its acceptance is more than tenuous. Support for it came largely from the left–the socialists, greens, and liberals who are not exactly known for their support of big business. The right- and right-of-center parties are by and large more pro-business. And a majority of their representatives stood by Viktor Orbán.

In his speech in parliament today Orbán again attacked the multinationals and the banks, but some Hungarians, it seems, want more than bellicose talk. Here are the first signs.

Today the verdict was handed down in a case that has been been in and out of court for two and a half years.  The plaintiff took out a foreign currency loan which he now finds impossible to pay back due to the weakening of the Hungarian forint. He claimed that he shouldn’t have to pay the loan back because the bank did not mention the bid-ask spread in the contract. Two lower courts decided in favor of the plaintiff. The case then moved up to the highest court, the Kúria. For a number of days demonstrators have stood in front of the building, waiting in a rather ugly mood. The verdict finally came: OTP, Hungary’s largest bank, is not liable. The plaintiff will have to pay his loan back.

Scuffle in front of Viktor Orbán's house - Népszabadság, Photo Árpád Kurucz

Scuffle in front of Viktor Orbán’s house – Népszabadság, Photo Árpád Kurucz

The crowd outside was outraged at the verdict. One would have thought that the crowd would go OTP headquarters to vent their anger. But no, they headed toward Viktor Orbán’s private residence in Buda. One could see gallows and red-and-white striped flags (the favorite symbol of the Hungarian extreme right), interspersed with the Hungarian tricolor.

So, if Orbán thinks that by whipping up anti-business sentiment he will gain great political advantage, he might be mistaken. These dissatisfied people, it seems, blame him for being unable to “solve their problems.” After all, he promised that he would take care of those hundreds of thousands of people who lost their homes as a result of the collapse of the Hungarian forint over the last few years.

As for Viktor Orbán’s speech in parliament, he didn’t add much to the content of the proposed resolution, except for getting close to calling those Hungarian MEPs who voted for the Tavares report traitors. However, Attila Mesterházy in a forceful speech condemned the Orbán government, the prime minister’s “business interests,” and his “majoritarian rule.”

The Fidesz back benchers are the noisiest ones on the right and unfortunately they are also ignorant. For example, when Mesterházy reminded Viktor Orbán that when he was in opposition he went so far as to ask the European People’s Party to use its influence in the European Union to stop any payment to Hungary, they tried to drown out Mesterházy. I’m sure most of them thought that this was a lie. It was, however, absolutely true. Orbán rarely if ever thought about collateral damage to the country as a whole in his relentless attacks on the socialist-liberal government.

In addition, Attila Mesterházy and Gábor Harangozó on behalf of MSZP turned in amendments to the proposed resolution. Since there is no chance of Fidesz ever accepting any amendment coming from the opposition, by now parties on the left write these amendments in jest. It is an amusing piece that is worth reading.

Kim Lane Scheppele: In praise of the Tavares Report

Today Europe acted to hold the Hungarian government to the constitutional values that it eagerly endorsed when it joined the European Union nearly a decade ago.

The action came in the form of the Tavares Report which sailed through the European Parliament with many votes to spare.  The report provides a bill of particulars against the Fidesz government and lays out a strong program to guide European Union institutions in bringing Hungary back into the European fold.   With the passage of this report, Europe has finally said no to Prime Minister Viktor Orbán and his constitutional revolution.

The Tavares Report is by far the strongest and most consequential official condemnation of the Fidesz consolidation of power over the last three years.  And it creates a strong set of tools for European institutions to use in defending the long-term prospects for Hungarian democracy.

The report passed with a surprisingly strong vote:   370 in favor, 248 against and 82 abstentions.   In a Parliament split almost evenly between left and right, this tally gave the lie to the Hungarian government’s claim that the report was merely a conspiracy of the left.  With about 50 of the 754 MEPs absent, the total number of yes votes was still larger than the total number of MEPs of all of the left parties combined.   In short, even if all MEPs had been present, the left alone still couldn’t account for all of those votes.   And since the 82 abstentions had the effect of allowing the report to go forward, they should be read as soft “yeses” rather than undecided or negative votes.

Most of the abstentions no doubt came from Fidesz’s own party in the European Parliament, the European People’s Party (EPP).  Many EPP members signaled ahead of time that they could not back Orbán but also would not vote overtly against the position of their party, which officially supported him without whipping the votes.    FIdesz had been counting on party discipline to save it.  But now it is clear that Fidesz is terribly isolated within the EPP.

The tally on the final report was not a roll-call vote, so we do not know for sure just who voted for it in the end.  But the roll-call votes on the proposed amendments to the bill (see pp. 106-119 of this complicated document)  revealed that many members of the European People’s Party (EPP) and the even-more-conservative group of European Conservatives and Reformists (ERC) voted to keep the report from being diluted at crucial junctures.   Each attempt to weaken the report was rejected openly by 18-22 EPP votes and by 8-12 ERC votes.   We can guess that the MEPs who rejected the hostile changes must have voted in favor of the report in the end, along with even more of their colleagues who could at that point vote anonymously.

For a government that believes that majorities are everything and supermajorities are divine, it must have been hard for Fidesz to see only one-third of those in the European Parliament voting in its defense, when conservatives occupy about half of the seats.   Since many of the votes in the Fidesz column were from cranky Euro-skeptics who simply did not want the EU to gain more powers rather than from those who were solidly backing the broader Fidesz view of the world, the defeat is even more humiliating.    Where was the United European Right when Orbán needed them?   Apparently not in his camp.

When he dramatically appeared in the European Parliament for the debate yesterday, Orbán claimed that the report represented the persecution of a well-meaning right-wing government by the unified and hostile European left.

Today, with this extraordinary vote, we saw a coalition of left and right MEPs standing up together for the values of Europe.

The Tavares report is named after Rui Tavares, the Portuguese MEP who was the rapporteur on this patient and careful study of the Hungarian constitutional revolution.  He deserves much of the credit for the factually impeccable report and as well as for skillfully guiding it through a complicated and perilous process.   Despite repeated attempts to amend the report, gut its strong conclusions and weaken its remedies by Fidesz MEPs and their allies, all efforts to change the report in any substantial way failed at every stage.

Rui Tavares

Rui Tavares

With its acceptance today of the Tavares Report, the European Parliament has created a new framework for enforcing the principles of Article 2 of the Treaty of the European Union, which proclaims that the Union is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”

So what, concretely, does the report do?  It puts a very clever system of monitoring and assessment in place.    While there are many elements in the report, the most important four elements are these, identified by paragraph number in the report as voted by the Parliament today:

  1.   An “Article 2 Alarm Agenda” which requires the European Commission in all of its dealings with Hungary to raise only Article 2 issues until such time as Hungary comes into compliance with the report (para. 69).  This Alarm Agenda effectively blocks all other dealings between the Commission and Hungary until Hungary addresses the issues raised in the report.
  2. A “Trilogue” (a three-way dialogue) in which the Commission, the European Council and the European Parliament will each delegate members to a new committee that will engage in a close review of all activities of the Hungarian government relevant to the report (Para. 85).   This committee is charged with assessing the progress that Hungary is making in complying with the list of specific objections that the report identifies.  The Trilogue sets up a system of intrusive monitoring, much more intrusive than the Excessive Deficit Procedure (EDP) from which Hungary just escaped.   Under the EDP, European bodies only looked at the budget’s bottom line to determine whether Hungary’s deficit was within acceptable bounds.  Under the Trilogue, the committee can examine anything that is on the long list of particulars that the report identifies as within its scope.
  3. A “Copenhagen Commission” or high-level expert body through which a panel of distinguished and independent experts will be assigned the power to review continued compliance with the Copenhagen criteria used for admission to the EU on the part of any member state (para. 78-80).   The idea behind this body, elaborated in a report by my Princeton colleague Jan-Werner Müller, is that non-political experts should be given the task of judging whether member states are still acting on the values of Article 2.   Since Orbán kept claiming double standards and dirty politics all of the way through this process in the European Parliament, a Copenhagen Commission consisting of impeccable experts and modeled on the Council of Europe’s Commission for Democracy through Law (the Venice Commission) would move the process of fact-finding and assessment from political officials to non-partisan experts.
  4. And in the background, there is still Article 7 of the Treaty of the European Union.  Article 7, which identifies a procedure through which an EU member state can be deprived of its vote in the European Council and therefore would lose representation in the decision-making processes of the EU, is considered the “nuclear option” – unusable because extreme.   But the Tavares Report holds out the possibility of invoking Article 7 if the Hungarian government does not comply with the monitoring program and reform its ways  (para. 86).    Because the Tavares Report lays out detailed expectations of the Hungarian government, the Parliament and the Council who would have to vote on Article 7 in the end would have a strong factual record to work with if they decided to go nuclear.

These are important tools in the toolkit that European institutions can now use to ensure that a member state of the European Union maintains its European constitutional commitments.

Yesterday at the plenary debate, both Commission President José Manual Barroso and Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding indicated their willingness to follow the Parliament’s direction.    We can therefore expect an eager uptake from the Commission on the elements of the report that require the Commission’s active participation.

But perhaps the most breathtaking part of the report is the list of what these various monitoring bodies can examine.    Here it is worth quoting at length from the report itself, because the scope and breadth of the complaints against the Hungarian government indicate that these monitoring processes will be authorized to look at the most fundamental elements of what it means to be a robust democracy committed to the rule of law and the protection of human rights.  Here is the list of items that the Hungarian government must address, taken from para. 71 of the report, where the Parliament . . .

Urges the Hungarian authorities to implement as swiftly as possible all the measures the European Commission as the guardian of the treaties deems necessary in order to fully comply with EU law, fully comply with the decisions of the Hungarian Constitutional Court and implement as swiftly as possible the following recommendations, in line with the recommendations of the Venice Commission, the Council of Europe and other international bodies for the protection of the rule of law and fundamental rights, with a view to fully complying with the rule of law and its key requirements on the constitutional setting, the system of checks and balances and the independence of the judiciary, as well as on strong safeguards for fundamental rights, including freedom of expression, the media and religion or belief, protection of minorities, action to combat discrimination, and the right to property:

On the Fundamental Law:

–             to fully restore the supremacy of the Fundamental Law by removing from it those provisions previously declared unconstitutional by the Constitutional Court;

–             to reduce the recurrent use of cardinal laws in order to leave policy areas such as family, social, fiscal and budget matters to ordinary legislation and majorities;

–             to implement the recommendations of the Venice Commission and, in particular, to revise the list of policy areas requiring a qualified majority with a view to ensuring meaningful future elections;

–             to secure a lively parliamentary system which also respects opposition forces by allowing a reasonable time for a genuine debate between the majority and the opposition and for participation by the wider public in the legislative procedure;

–             to ensure the widest possible participation by all parliamentary parties in the constitutional process, even though the relevant special majority is held by the governing coalition alone;

On checks and balances:

–             to fully restore the prerogatives of the Constitutional Court as the supreme body of constitutional protection, and thus the primacy of the Fundamental Law, by removing from its text the limitations on the Constitutional Court’s power to review the constitutionality of any changes to the Fundamental Law, as well as the abolition of two decades of constitutional case law; to restore the right of the Constitutional Court to review all legislation without exception, with a view to counterbalancing parliamentary and executive actions and ensuring full judicial review; such a judicial and constitutional review may be exerted in different ways in different Member States, depending on the specificities of each national constitutional history, but once established, a Constitutional Court – like the Hungarian one, which after the fall of the communist regime has rapidly built a reputation among Supreme Courts in Europe – should not be subject to measures aimed at reducing its competences and thus undermining the rule of law;

–             to restore the possibility for the judicial system to refer to the case law issued before the entry into force of the Fundamental Law, in particular in the field of fundamental rights;

             to strive for consensus when electing the members of the Constitutional Court, with meaningful involvement of the opposition, and to ensure that the members of the court are free from political influence;

–             to restore the prerogatives of the parliament in the budgetary field and thus secure the full democratic legitimacy of budgetary decisions by removing the restriction of parliamentary powers by the non‑parliamentary Budget Council;

–             to provide clarifications on how the Hungarian authorities intend to remedy the premature termination of the term of office of senior officials with a view to securing the institutional independence of the data protection authority;

On the independence of the judiciary:

–             to fully guarantee the independence of the judiciary by ensuring that the principles of irremovability and guaranteed term of office of judges, the rules governing the structure and composition of the governing bodies of the judiciary and the safeguards on the independence of the Constitutional Court are enshrined in the Fundamental Law;

–             to promptly and correctly implement the abovementioned decisions of the Court of Justice of the European Union of 6 November 2012 and of the Hungarian Constitutional Court, by enabling the dismissed judges who so wish to be reinstated in their previous positions, including those presiding judges whose original executive posts are no longer vacant;

–             to establish objective selection criteria, or to mandate the National Judicial Council to establish such criteria, with a view to ensuring that the rules on the transfer of cases respect the right to a fair trial and the principle of a lawful judge;

–             to implement the remaining recommendations laid down in the Venice Commission’s Opinion No CDL-AD(2012)020 on the cardinal acts on the judiciary that were amended following the adoption of Opinion CDL-AD(2012)001;  [NOTE:  Venice Commission reports on Hungary can be found here.]

On the electoral reform:

–              to invite the Venice Commission and the OSCE/ ODIHR to carry out a joint analysis of the comprehensively changed legal and institutional framework of the elections and to invite the ODIHR for a Needs Assessment Mission and a long and short term election observation.

–             to ensure balanced representation within the National Election Committee;

On the media and pluralism:

–             to fulfil the commitment to further discuss cooperation activities at expert level on the more long‑term perspective of the freedom of the media, building on the most important remaining recommendations of the 2012 legal expertise of the Council of Europe;

–             to ensure timely and close involvement of all relevant stakeholders, including media professionals, opposition parties and civil society, in any further review of this legislation, which regulates such a fundamental aspect of the functioning of a democratic society, and in the process of implementation;

–             to observe the positive obligation arising from European Court of Human Rights jurisprudence under Article 10 ECHR to protect freedom of expression as one of the preconditions for a functioning democracy;

–             to respect, guarantee, protect and promote the fundamental right to freedom of expression and information, as well as media freedom and pluralism, and to refrain from developing or supporting mechanisms that threaten media freedom and journalistic and editorial independence;

–             to make sure that objective, legally binding procedures and mechanisms are in place for the selection and appointment of heads of public media, management boards, media councils and regulatory bodies, in line with the principles of independence, integrity, experience and professionalism, representation of the entire political and social spectrum, legal certainty and continuity;

–             to provide legal guarantees regarding full protection of the confidentiality-of-sources principle and to strictly apply related European Court of Human Rights case law;

–             to ensure that rules relating to political information throughout the audiovisual media sector guarantee fair access to different political competitors, opinions and viewpoints, in particular on the occasion of elections and referendums, allowing citizens to form their own opinions without undue influence from one dominant opinion‑forming power;

On respect for fundamental rights, including the rights of persons belonging to minorities:

–             to take, and continue with, positive actions and effective measures to ensure that the fundamental rights of all persons, including persons belonging to minorities and homeless persons, are respected and to ensure their implementation by all competent public authorities; when reviewing the definition of ‘family’, to take into account the legislative trend in Europe to broaden the scope of the definition of family and the negative impact of a restricted definition of family on the fundamental rights of those who will be excluded by the new and more restrictive definition;

–             to take a new approach, finally assuming its responsibilities towards homeless – and therefore vulnerable – people, as set out in the international treaties on human rights to which Hungary is a signatory, such as the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, and thus to promote fundamental rights rather than violating them by including in its Fundamental Law provisions that criminalise homeless people;

–             calls on the Hungarian Government to do all in its power to strengthen the mechanism for social dialogue and comprehensive consultation and to guarantee the rights associated with this;

–             calls on the Hungarian Government to increase its efforts to integrate the Roma and to lay down targeted measures to ensure their protection. Racist threats directed at the Roma must be unequivocally and resolutely repelled;

On freedom of religion or belief and recognition of churches:

–             to establish clear, neutral and impartial requirements and institutional procedures for the recognition of religious organisations as churches, which respect the duty of the State to remain neutral and impartial in its relations with the various religions and beliefs and to provide effective means of redress in cases of non‑recognition or lack of a decision, in line with the constitutional requirements set out in the abovementioned Decision 6/2013 of the Constitutional Court;

One more item was added to this list by amendment from Rui Tavares in the Parliament this morning:

– to cooperate with the European institutions in order to ensure that the provisions of the new National Security Law comply with the fundamental principles of the separation of powers, the independence of the judiciary, respect for private and family life and the right to an effective remedy.

In short, this is a huge list of items, which together constitute the core of the Fidesz power grab.  This section of the report identifies the list of things that the Hungarian government must now change, and the mechanisms I identified above are the key ones through which compliance will be monitored and assessed.

It is hard to imagine a more sweeping indictment of the Fidesz constitutional revolution in Hungary over these last three years.

But back to where we started:  with today’s vote in the European Parliament.   This long list of offending actions of the Hungarian government was agreed to by left and right in the European Parliament, by a large majority and with serious tools to ensure that the Hungarian government changes its ways and returns to the path of democracy, rule of law and respect for human rights.

The European Parliament is the most diverse and democratic institution in Europe.  One day when the history of the European constitution is written, the Tavares Report and its enthusiastic acceptance in the European Parliament will stand for Europe at its best.

Rui Tavares: Letter to the citizens of Hungary and his fellow European citizens

Source: aspirinab.com

Source: aspirinab.com

As you all know by now, European Member of Parliament Rui Tavares, who represents Portugal, was the rapporteur of the 30-page draft report that is hailed by most experts on Hungarian affairs as a singularly perceptive analysis of the current state of Hungarian democracy. The Hungarian government and the pro-government media, by contrast, accused Tavares of partiality and ignorance. In no time they also  discovered that he was a communist–their ultimate insult, which is an absolutely baseless accusation. Rui Tavares is a member of the Group of the Greens/European Free Alliance. He is also a member of the parliamentary Committee on Civil Liberties, Justice and Home Affairs.  It was in this capacity that he probed into the present situation in Hungary.

Rui Tavares produced a thorough assessment of the constitutional changes that have taken place in the last two or three years and their effects on Hungarian democracy. The Hungarian government will have a difficult time countering his arguments, although intellectual hurdles have never seemed to deter them in the past. I already devoted a post to the amendments offered by some of the Fidesz members of the European Parliament and Hungarians nationals from Romania and Slovakia.

The pro-government Hungarian press called the draft report a “left-liberal ultimatum,” and the government spokesmen came close to describing it as a collection of baseless accusations. In light of the findings of the Venice Commission, however, it seems that Rui Tavares was spot on.

I assume that he is getting hundreds of accusatory letters because he decided to write a letter to Hungarian citizens, in English and in Hungarian, to explain what the document is all about. The letter also helps us better understand the inner workings of the European Parliament.

Below you will find the English original of Rui Tavares’s letter followed by its Hungarian translation. I think we should all thank Mr. Tavares for his work and his devotion to the cause of Hungarian democracy.  By the way, I understand that he has found Hungary such an interesting country that he has begun learning the language.

  * * *

Dear Hungarian citizens,

Dear EU fellow citizens,

I come from a country which was ruled during 48 years by an authoritarian regime. Twelve years after the end of this dictatorship, Portugal has acceded to the European Union, finally consolidating the democracy for which so many people had struggled during so many years.

Your country, Hungary, has suffered during more than 40 years of a horrible regime. In 1989, you finally got your freedom from the communist regime and a little over a decade later your country became a Member of the European Union.

The European project may have imperfections, but its main purpose serves us all – and mainly those European citizens like us whose countries have faced alone many years of terror under undemocratic regimes. The foundations of our common endeavour are described in article 2 of the revised Treaty on the European Union of 2009, which states that “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”. Article 2 then goes on to say that “these values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” Hungary is always cited as an example in this process: your country actively participated in the drafting of this important article – the first substantive commitment of the Union – and was the first EU Member State to ratify the Treaty.

The promotion of the values of democracy, rule of law and human rights is also the first objective of the Union, according to article 3. And then there is another important article in the Treaties which has been regularly and fairly quoted by your government. It is article 4: “The Union shall respect the equality of Member States before the Treaties […] The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”.

These Treaties entered into force in December 2009 and since then Member States, the European Institutions and us all as European citizens have to deal and comply with this new and recent legal basis.

In February 2012, on the basis of this new legal framework, the European Parliament decided to have a report on the situation of the Fundamental Rights in Hungary. As any other official text by the European Parliament, the decision to draft this report was made by the majority of the democratically elected members of this house. Let me remind you that, since the last European Elections in 2009, no single political group has the majority in the European Parliament, although the by far biggest group is the EPP to which the party of the current Hungarian government belongs. It has both been said that there is a right-wing majority at the European Parliament, and that there is a left-wing majority. But the most important point is that all 754 Members of the European Parliament take seriously their responsibility to guarantee that the fundamental rights of the 500 million EU citizens are respected, protected and promoted.

Two months after this decision, I was appointed as rapporteur for this report, the first one dealing with the contents that I have described above in the case of a specific country. There were many constitutional and legal changes in Hungary in recent times, and to assess them fairly is a task that needs to be conducted in a careful and respectful manner. In order to ensure a transparent and fair procedure, I have decided that the first step would be the drafting of 5 working documents on sectorial aspects of the legal, institutional and constitutional changes in Hungary. This was an open and collaborative work and, for the first time in the European Parliament, the working documents – which are normally only signed by the rapporteur – were drafted by me and one representative of 5 of the main political groups represented at the European Parliament: the EPP, the S&D, ALDE, GREENS/EFA, ECR and GUE/NGL. These working-documents were one by one debated in the Civil Liberties Committee of the European Parliament, usually abbreviated as LIBE. We have also received comments from the Hungarian government and the working documents were therefore updated taking into consideration the Hungarian authorities’ position.

This permanent dialogue – respecting pluralism and democracy at the European and at the national level – was very important for the last year’s preparatory work to the drafting of this report.

The text that I have presented is the result that I have derived of this broad consultation. But this is not the end of the procedures. This draft was submitted to a first debate, it passed by a phase of amendments that were considered in subsequent debate and it will then be voted in the Civil Liberties’ Committee; we will then have another stage of amendments by the political groups and then, finally, a debate and a vote in the plenary of the European Parliament. The respect of this parliamentary procedure with sufficient time and occasion for all voices do be heard is crucial to ensure that the report is not one-sided, incorrect or somehow applying double standards.

If you read the draft report, you will find out that it chooses to pursue a constructive political dialogue with the Hungarian authorities in the next months, together with the other European Institutions. And the main objective of this dialogue is precisely to avoid a risk of breach of the foundational values listed in article 2. On the other hand, you will not find two things that have been incorrectly mentioned in public debate: there is no mention of withdrawing the voting rights of Hungary at this stage (under article 7.2 of the Treaties) and I have refused to raise the possibility of economic sanctions to be directed at Hungary.

The majority of the specific recommendations you will find in the report do not concern Hungary but the European Institutions themselves. Indeed, this should not and is not only about Hungary. This is about any other Member of the European Union. This is about us all, as European citizens. It is why I am of the opinion that we have to have concrete mechanisms to ensure that the values stated in article 2 are not at risk. And that these mechanisms should follow objective assessments of all Member-States, big or small, be they founding members or recent accessions to our Union. Your government has correctly raised this issue, which I try to tackle in the report by suggesting the creation of a non-political high-level group that would follow up, and make recommendations, on the work carried out by EU institutions, starting with the European Parliament itself.

The sovereignty of Hungary must be respected; I will indeed welcome any comment by the Hungarian authorities and will amend myself my own text in case of need. We have done it with the working documents I have told you about, and we will do it with this draft report.

I am sure that you are already aware of the dialogue that we have had and will continue to have with the Hungarian authorities and I hope you will closely follow the work we are doing all together on this report.

You will find the Hungarian version of the report in the Civil Liberties committee webpage; I invite you to read it and to send your comments to my email address.

Best regards,

Rui Tavares, Member of the European Parliament

* * *

Kedves magyar polgárok!

Kedves európai uniós polgártársaim!

Olyan országból származom, ahol egy autoriter hatalom döntött sorsunkról 48 éven át. 12 évvel a diktatúra vége után Portugália csatlakozott az Európai Unióhoz, és megszilárdítottuk hazánkban a demokráciát, amelyre oly sok ember vágyott oly hosszú ideje.

Az Önök országa, Magyarország is egy szörnyű rezsim uralma alatt szenvedett több mint 40 évig. 1989-ben azonban végre felszabadult a kommunista diktatúra alól, és másfél évtized múlva csatlakozott az Európai Unióhoz.

Az Európai Unió sem tökéletes, de a fő célja mindannyiunk érdekét szolgálja – és kifejezetten azokét, akiknek a hazája a miénkhez hasonlóan sok éven át egyedül nézett szembe egy diktatórikus hatalom terrorjával.  Közös törekvéseink alapját a 2009-ben elfogadott Szerződés az Európai Unióról 2. cikke tartalmazza, amely kimondja, hogy “az Unió az emberi méltóság tiszteletben tartása, a szabadság, a demokrácia, az egyenlőség, a jogállamiság, valamint az emberi jogok – ideértve a kisebbségekhez tartozó személyek jogait – tiszteletben tartásának értékein alapul.” A cikk így folytatódik: „Ezek az értékek közösek a tagállamokban, a pluralizmus, a megkülönböztetés tilalma, a tolerancia, az igazságosság, a szolidaritás, valamint a nők és a férfiak közötti egyenlőség társadalmában.” Magyarországot mindig példaként emlegetik a 2. cikk megalkotásához vezető folyamattal kapcsolatban, hiszen aktívan részt vett a cikk megszövegezésében, amelyben az EU először deklarálta az alapvető értékei iránti elköteleződését. Magyarország elsőként ratifikálta az új szerződést a tagállamok közül.

A demokrácia, a jogállamiság és az emberi jogok előmozdítása az Unió első számú célja a Szerződés 3. cikke szerint. Létezik még egy nagyon fontos elem, a 4. cikk, melyet az Önök kormánya is sokszor idéz: “Az Unió tiszteletben tartja a tagállamoknak a Szerződések előtti egyenlőségét […] A tagállamok segítik az Uniót feladatainak teljesítésében, és tartózkodnak minden olyan intézkedéstől, amely veszélyeztetheti az Unió célkitűzéseinek megvalósítását.”

Az Európai Unió szerződései 2009 decemberében léptek hatályba, és azóta a tagállamoknak, az európai intézményeknek és nekünk, európai polgároknak tiszteletben kell tartanunk ezt az új jogi alapvetést.

2012 februárjában az új jogi kereteknek megfelelően az Európai Parlament úgy döntött, hogy jelentést készít az alapvető jogok helyzetéről Magyarországon. Mint minden hivatalos dokumentum esetében, amely az Európai Parlamentben készül, a demokratikusan megválasztott képviselők többsége határozott ennek a jelentésnek az elfogadásáról is. Hadd emlékeztessem Önöket, hogy a 2009-es európai választások óta egyik parlamenti frakció sem rendelkezik a szavazatok többségével, habár a legnagyobb képviselőcsoport az Európai Néppárté, amelyhez a jelenlegi magyar kormánypárt is tartozik. Sokszor hallani, hogy az Európai Parlamentben jobboldali többség van, mások szerint meg baloldali többség. Ami igazán fontos, hogy a Parlament mind a 754 tagja komolyan vegye a felelősségét, és biztosítsa az 500 millió uniós polgár alapvető jogainak érvényesítését, tiszteletben tartását és megóvását.

Két hónappal a parlamenti döntés után engem jelöltek ki a jelentés elkészítésére, amely az első a maga nemében, mivel az említett értékeket vizsgálja egy tagország esetében. Az alkotmányt és a törvényeket nagyon sok alkalommal módosították az utóbbi időben Magyarországon; mindezek korrekt értékelése során körültekintéssel és tisztelettel kell eljárni. Azért, hogy biztosítsam az eljárás átláthatóságát és elfogulatlanságát, úgy döntöttem, hogy első lépésként öt munkadokumentumot készítek, kategóriákra bontva a jogi, intézményi és alkotmányos változásokat. A munka az átláthatóságra és az együttműködésre épült, és – az Európai Parlament történetében először – a munkadokumentumokat, amelyeket általában csak a jelentéstevő jegyzi, az öt legnagyobb politikai csoport képviselőivel közösen szövegeztem meg (Európai Néppárt, Szocialisták és Demokraták Progresszív Szövetsége, Liberálisok és Demokraták Szövetsége Európáért, Zöldek/Európai Szabad Szövetség, Európai Konzervatívok és Reformerek, Európai Baloldal/Északi Baloldal). Ezeket a munkadokumentumokat külön-külön megvitatta az Állampolgári jogi, bel- és igazságügyi bizottság, amelyet általában „LIBE” néven rövidítenek.  Emellett megkaptuk a magyar kormány véleményét is, és a munkadokumentumokat a magyar hatóságok álláspontjának figyelembevételével frissítettük.

Ez a folyamatos párbeszéd – amely tiszteletben tartotta a pluralizmus és a demokrácia követelményeit mind európai, mind nemzeti szinten – nagyon fontos részét képezte az elmúlt év előkészítő munkájának.

A jelentés tervezete, amelyet bemutattam a szakbizottságnak, ennek a széles körű konzultációnak az eredménye. A folyamat azonban itt még nem ért véget. A szöveget először megvitatta a LIBE bizottság. Majd beérkeztek a módosító javaslatok, amelyekről a megvitatásuk után végül a LIBE bizottság fog szavazni. Ezek után a képviselőcsoportok nyújthatják be módosító javaslataikat a szöveghez, majd az Európai Parlament plenáris ülése fogja megvitatni a jelentést, és végül szavazni fog a végleges szövegről. Ez a parlamenti eljárás megfelelő időt és lehetőséget biztosít arra, hogy mindenki hozzászólhasson. Mindez elengedhetetlen ahhoz, hogy a jelentés ne legyen egyoldalú, ne tartalmazzon hibákat és ne mérjen kettős mércével.

Ha elolvassa a jelentéstervezetet, látni fogja: a cél az, hogy a következő hónapokban építő jellegű politikai párbeszéd alakuljon ki a magyar hatóságok és az európai intézmények között. Ennek a párbeszédnek a lényege pedig pontosan az, hogy elkerüljük annak a veszélyét, hogy a 2. cikkben megnevezett alapvető értékek sérüljenek. Másrészt észre fogja venni, hogy két, jelenleg közszájon forgó elem is hiányzik a jelentéstervezetből: a szöveg nem említi, hogy meg kellene vonni Magyarország szavazati jogát a Szerződés 7. cikk (2) bekezdése alapján.  Azzal sem értek egyet, hogy Magyarországgal szemben gazdasági szankciókat kellene kilátásba helyezni.

A jelentéstervezetben felsorolt javaslatok legnagyobb része nem is Magyarországot, hanem az európai intézményeket érinti. A jelentés nem szólhat és nem is szól kizárólag Magyarországról. A jelentés az EU valamennyi tagállamáról, mindannyiunkról, európai polgárokról szól. Ezért az a véleményem, hogy be kell vezetnünk olyan konkrét eljárásokat, amelyekkel biztosíthatjuk a 2. cikk alapértékeinek sérthetetlenségét. Úgy gondolom, hogy ezeknek az eljárásoknak objektív alapokon kell nyugodniuk, és minden tagállamra érvényesnek kell lenniük, legyen az kisebb vagy nagyobb ország, alapító vagy nemrégiben csatlakozott tagállam. Az Önök kormánya jó indítványt tett ezzel kapcsolatban, és én is pontosan ezt szeretném tenni: olyan politikamentes, magas szintű szerv létrehozását javaslom, amely figyelemmel kíséri az EU intézményeinek munkáját és javaslatokkal él ezzel kapcsolatban ― kezdve az Európai Parlamenttel.

Magyarország szuverenitását tiszteletben kell tartani. Éppen ezért üdvözlöm a magyar hatóságok bármilyen észrevételét. Én magam fogom módosítani a saját jelentésemet, amennyiben szükséges lesz. Az említett munkadokumentumokkal is pontosan így jártunk el, és a jelenlegi jelentéstervezettel sem lesz másképp.

Biztos vagyok benne, hogy hallottak már arról a párbeszédről, melyet a magyar hatóságokkal folytatunk, és remélem, hogy figyelemmel fogják kísérni közös munkánkat a jelentéssel kapcsolatban.

A jelentéstervezet magyar nyelvű változatát megtalálhatja az Állampolgári jogok bizottságának honlapján. Kérem, olvassa el a tervezetet, és javaslatait küldje el bátran e-mailben, az Európai Parlament honlapján található címemre.

Szívélyes üdvözlettel:

Rui Tavares, európai parlamenti képviselő

Metamorphosis of Viktor Orbán?

A few months ago I had a debate about Viktor Orbán’s metamorphosis from liberal to right-wing populist with someone who has known Viktor Orbán ever since the beginning of the democratic opposition’s struggle for regime change. I insisted that no one can change that much and that fundamentally, and therefore, I submitted, Orbán was never a democrat. My friend, a well-known member of SZDSZ, insisted that yes, Viktor was a true liberal but power had a terrible effect on his psyche. I wasn’t convinced.

Lately I have been noticing a change of heart among those who worked closely with Orbán or who as members of the media have been following those Hungarian political events in which he played a prominent role.

Just today Endre Aczél, a seasoned journalist with vast experience with MTI in the 1970s and MTV in the late 1980s, wrote one of his short but sharp-eyed opinion pieces in Galamus. In it he expressed his “suspicion” that it was at least fifteen years ago that Orbán abandoned the idea of the “rule of law.” He recalls a speech by the freshly elected young prime minister that was delivered before the yearly meeting of the country’s ambassadors. Orbán suggested to Hungary’s representatives abroad not to emphasize the “rule of law” but to stress the “law and order” that his government wants to re-establish.

The orange is rotting. That's all / faszkivar.blog.hu

The orange is rotting. That’s all. / faszkivan.blog.hu

Tamás Bauer, an economist, former SZDSZ politician, and today deputy chairman of DK, also remembers the day when he knew that Viktor Orbán was not a democrat. It was also in 1998, on July 6, when during the debate on the government program in parliament Orbán said: “I ask everybody who wants to re-establish order and security; everybody who wants a child be important not only to the family but also to the state; everybody who wants to belong to the Hungarian nation; everybody who wants to make Hungary a country that cooperates with other European nations to vote for the program of the government.” It was at this point that Bauer truly understood, although he had had an inkling before, how Orbán imagined the exercise of power. Because Orbán made it clear that he envisaged himself as the man who alone represents the nation and who considered the opposition a group of people who don’t belong to the nation. After all, in normal parliamentary democracies, the opposition doesn’t vote for the government program.

Therefore Bauer knew way before 2010 what kind of rule Orbán was going to introduce, especially once he achieved the much coveted two-thirds majority. Although according to some interpreters the original Orbán constitution of 2011 was still a democratic document, Bauer disagrees. A constitutional committee was set up, but the majority of the members came from the two government parties. Thus the new constitution reflected the will of the government and the party, Fidesz-KDNP. There was no use participating in this farce. It was Ferenc Gyurcsány who first called for a boycott and his call was followed by MSZP and later by LMP. That constitution was about as legitimate as the 1949 communist constitution. After all, the 1949 constitution reflected only the will of the Hungarian communist party, and the 2011 document was similarly created by and for Fidesz-KDNP.

Yes, both commentators claim, Viktor Orbán hasn’t been a democrat for a very long time. Perhaps he never was, I might add.

In the last few days there is a video that has been making the rounds on the Internet. It originally appeared on the website of Népszabadság. The video was taken at the demonstration organized to urge János Áder not to sign the amendments to the constitution. The speaker is Péter Molnár. Perhaps not too many people remember him, although he was one of the founders of Fidesz and the group at István Bibó College where Fidesz was born. He even spent four years in the Hungarian parliament as a member of the Fidesz caucus. And then he left the party and politics. On the video one can hear him telling Áder: “That is not what we dreamed of, Jánó!” A few days ago I quoted Tamás Deutsch’s tweet claiming that this is exactly what they were dreaming of back in the late 1980s. Surely, this was an answer to Molnár.

I first encountered Molnár’s name in György Petőcz’s book Csak a narancs volt (It was only the orange / Élet és Irodalom, 2001). He was one of the contributors to the volume. He and the four other contributors left Fidesz completely disillusioned in 1993-1994.

What are Molnár’s recollections of the early days of Fidesz and Bibó College? According to him, László Kövér managed to create a lot of tension even in those days. At every meeting he insisted that all members of the college–there were around 80 students–must be politically active. Kövér and Orbán worked together and wanted to rule the community according to their own ideas. Molnár recalls that in the college there was a feeling of unity and solidarity but “Viktor’s political management destroyed it just as he destroyed [the original] Fidesz.” A good example of how this “solidarity” worked in Fidesz land. Once a member of the college group said that “Viktor can be certain that he can rely on his old friends in Bibó College.” Two years later the old buddy of Viktor lost his high position in the party and the government because he dared to disagree with him. “Solidarity existed only as long as the person followed the ‘correct’ policy. It didn’t matter whether he belonged to the inner circle or not, if he disagreed with Laci Kövér and Viktor, he was finished.” Does a democrat behave this way?

Let’s return for a moment to Endre Aczél’s opinion piece that appeared today. Its title is “Order? My own!” No,  Orbán hasn’t changed his stripes.