Statement of Brent Hartley, U.S. Department of State

Statement of Brent Hartley

Deputy Assistant Secretary of State

Bureau of European and Eurasian Affairs, U.S. Department of State

Hearing before the U.S. Commission on Security and Cooperation in Europe

March 19, 2013, 3:00 P.M.

Thank you, Chairman Cardin and members of the Commission, for inviting me to join you today.  Mr. Chairman, I am well aware of – and appreciate – your continued interest in events in Hungary.  I believe your interest is warranted. Hungary remains a strong ally of the United States.  Hungary is a member of two bedrock transatlantic organizations – the OSCE and NATO – which define and defend democracy in Europe and beyond.  However, in the last two years we have been open about our concerns regarding the state of checks and balances, and independence of key institutions, in Hungary.  The United States has not been alone in this regard, as the Council of Europe, the European Commission, other friends and allies of Hungary, and civil society organizations have expressed similar views.  If the Government of Hungary does not address these concerns, not only will the lives of Hungarian citizens be affected, but it will also set a bad precedent for OSCE participating States and new members and aspirants to NATO.

Last year marked the 90th anniversary of U.S.-Hungarian diplomatic relations:  relations which remain strong, based on a common security architecture as NATO allies, a deep economic partnership, and what we believe are fundamental values shared by the American and Hungarian people.  Hungary plays an active and positive role in international fora, leading the way towards goals compatible with ours on a wide range of issues.

U.S.-Hungarian security cooperation, especially with respect to military, law enforcement, and counter-terrorism issues, is exceptionally robust.  We have enjoyed warm relations with each and every Hungarian government since the transition from Communism over 20 years ago.  This underscores a point that we always stress with our Hungarian friends:  our expressions of concern over the last two years should be taken in the proper spirit because they come from a strong friend of Hungary, and friends should be able to speak truth to friends.  Our concerns do not arise from any hostility toward Hungary, ignorance of the specifics of the laws, or from a partisan slant against its current leadership.  They are a sincere expression of what we and other friends of Hungary in Europe see as troubling trends in laws passed in the last few years.

Before former Secretary Clinton visited Hungary in June 2011, we took notice of Hungary’s controversial media law and a new constitution – which in Hungarian is called the Fundamental Law – portions of which also raised concerns among impartial observers.  In both cases, we had concerns about the content as well as the process by which they were passed.  Due to the mechanics of the electoral system, the current government gained a two-thirds majority of Parliament based on winning 52 percent of the vote in free and fair elections in 2010.  This gave it the authority to pass new laws, and indeed a new constitution.  As we have often said, Hungarian laws should be for Hungarians to decide.  But for something as fundamental as a constitution or a law impacting freedom of the press, the process must lead to a consensus built from a broad cross-section of society, rather than reflect only the opinions of the ruling coalition.  The speed with which these laws were drafted and then passed, and the lack of serious consultation with different sectors of society, did not honor the democratic spirit that the people of Hungary have long embraced.

That is why when Secretary Clinton visited Budapest in 2011, she called for Hungary to show “a real commitment to the independence of the judiciary, a free press, and governmental transparency.”

Since then, the Hungarian parliament has passed scores of laws at an accelerated pace.  Most of these laws were unobjectionable and aimed at addressing issues that had not been addressed in the early days after Hungary’s democratic transitions in 1989.  But more than a few of these laws posed threats to systemic checks and balances and the independence of key institutions that are the bedrock of mature democracies.  Privately and publicly, we expressed our concern to the Government of Hungary, as did several European institutions and governments.  Our message to our Hungarian allies is that all democracies have a duty to safeguard institutional checks and balances.  Unfortunately, in many respects our message went unheeded.

My colleague Deputy Assistant Secretary Thomas O. Melia, whose experience in Hungary goes back to 1989, has described the root of our concerns with key Hungarian laws as the concentration of too much power into too few hands.

When Hungary’s Constitutional Court struck down a law on fiscal issues, the parliament swiftly passed another law taking away the Court’s competency to decide cases based on fiscal matters.  The government also expanded the Constitutional Court from 11 to 15 members, allowing the current administration to select the additional justices and thereby alter the Court’s juridical balance.  The new laws created a Media Council and gave it significant powers to oversee broadcast media, including the right to fine media for “unbalanced coverage,” an unsettlingly vague term.  Unlike similar media bodies in other democracies, such as our Federal Communications Commission, no opposition parties are represented on Hungary’s new Media Council.  The Council members have nine-year terms, and cannot be removed without a two-thirds vote of parliament.  The long length of these terms ensures that these political appointees will remain in place well past the next planned parliamentary elections in 2014.  This would tie the hands of the next government should it have anything less than a two-thirds majority.

The new laws also created a National Judicial Office and gave it a powerful, politically-appointed President with a nine-year term and the authority to assign cases to any court she sees fit.  This enables the office-holder to engage in “venue shopping” by steering specific cases to specific judges – a recipe for potential abuse.

Another new law stripped over three hundred religious congregations or communities of their official recognition.   To be clear, non-recognized religious groups are still free to practice their faith in Hungary.  However, they do not enjoy certain tax benefits and subsidies that recognized religious groups do.  In order to regain recognition, religions will have to be approved by a two-thirds vote of parliament, an onerous and unnecessarily politicized mechanism.  While we understand that the new religion law was adopted to stop fraud, we have urged the Hungarian Government to seek a less onerous and less politicized procedure to weed out malfeasance.

In mid-2012, as expressions of concern from the United States and Europeans mounted, the Hungarian Government began responding in constructive ways.  The government voluntarily submitted many laws for review by the legal experts of the Council of Europe’s Venice Commission.  In some cases, though by no means all, the government modified laws to take into account specific concerns expressed by the Commission.  While some important issues remained unresolved, we were heartened that Hungary was engaging in dialogue, recognizing the merits of concerns expressed by the United States and others, and taking steps to address them.

We were further heartened when, early this year, Hungary’s Constitutional Court issued several rulings striking down controversial legislation.  This demonstrated that the Court could serve as an effective check on government.  Unfortunately, the reaction by the Hungarian government again called into question its commitment to checks and balances and institutional independence.  The government drafted and swiftly passed a new constitutional amendment, parts of which reinstated laws that had just been struck down by the Court.  Again, the process was rushed and lacking in broad societal consultation.  Moreover, the Hungarian Government ignored pleas from the State Department, European Commission, and Council of Europe – as well as several respected, non-partisan Hungarian NGOs – to engage in a more careful, deliberative process and allow for the Venice Commission’s experts to review the amendment.  This has prompted renewed expressions of concern from the Council of Europe, the President of the European Commission, and other allied governments, including the United States.  While the Government of Hungary has now submitted the amendment to the Venice Commission, this is the opposite of the normal procedure, whereby the Commission reviews laws before they are passed, not after passage.

I would like to address one other area that has provoked much concern: the rise of extremism in Hungary.  This phenomenon is, sadly, not unique to Hungary.  The rise in Hungary of the extremist Jobbik party as one of the largest opposition groups in parliament, and Jobbik’s affiliated paramilitary groups that incite violence, are clear challenges to tolerance.

Let me be clear:  the ruling Fidesz party is not Jobbik.  Fidesz’ ideology is within the mainstream of center-right politics, and its platform is devoid of anti-Semitism or racism.  In 2012, the Government of Hungary used the centenary of Raoul Wallenberg’s birth to promote tolerance.  Moreover, we have seen a growing willingness by Hungarian government leaders to condemn anti-Semitic and racist acts and expressions.  However, such condemnation is not always swift or resolute.  The Hungarian Government can and must do more to foster tirelessly a climate of tolerance.  One concern is that some local governments in Hungary have, with little objection from the governing party, erected statues and memorials to tainted figures from Hungary’s past.  And some of these figures have been re-introduced into the national educational curriculum.  As the Department’s former Special Envoy to Monitor and Combat Anti-Semitism said last year, “the recent rehabilitation of figures from Hungary’s past who are tainted by their support for Fascism and anti-Semitism contributes to a climate of acceptance of extremist ideology in which racism, anti-Semitism, and other forms of intolerance can thrive.”

We also call upon Hungarian leaders to do more to defend Romani Hungarians, who – like Romani in many other European countries – face discrimination, racist speech and violence that too often goes unanswered, just as in the United States leaders from both parties routinely speak out against racism.  We urge that perpetrators of violent attacks against Roma – in Hungary as well as elsewhere in Europe – will be arrested and prosecuted as swiftly as those who commit anti-Semitic attacks.

In conclusion, the United States has long enjoyed and benefitted from its strong alliance with Hungary and its people.  Just as we continue to do hard work together in Afghanistan and other danger spots around the world, so too will we continue to have a sincere – and at times difficult – dialogue on the importance of resolutely upholding the fundamental values that bind us.

Thank you, Mr. Chairman, for allowing me to express the State Department’s views on these important issues.

Hungarian president will sign the objectionable amendments while Viktor Orbán seems cocksure in Brussels

Hungarian President János Áder returned from Berlin where he presumably got an earful. Both Chancellor Angela Merkel and Foreign Minister Guido Westerwelle gave their opinions about the Hungarian government’s policies in general and the latest outrage in Budapest: the castration of the constitutional court and the destruction of the most basic principle of constitutional rule, the separation of powers.

While in Berlin Áder told reporters that he tried to enlighten the German politicians about the true nature of the amended constitution and assure them that their criticism was unfounded. Their criticism is based on their lack of knowledge of the details, he claimed. At home demonstrators and public figures tried to convince the president that he should refuse to sign the bill. But some legal scholars argued that Áder, as a result of the amendments, has no choice but to sign the document. Others, including László Sólyom, former head of the Hungarian constitutional court, argued that he does have the power to deny his signature. After all, as long as his signature is not on the bill, the old constitution is still in force and that constitution didn’t take his prerogative away. Áder decided to opt for the first interpretation. He announced that he has no choice but to sign.

Áder made the announcement on MTV, Hungary’s public television station. While a day before he was convinced that all was well with the amended constitution, in “his speech to the nation” he didn’t stress this point. Instead, he told his audience that he had studied the amendments carefully, listened to experts, read all the letters he received. But “a responsible thinking citizen cannot urge anyone to disregard the letter of the law. This is especially true in the case of the president because if he were to step onto the path of unconstitutionality there would be only one consequence. Something none of us wants. Chaos. Anarchy. Illegality.” And then he quoted the words in the newly amended constitution that he hadn’t yet signed: “The President of the Republic shall sign the Fundamental Law or the amendment thereof sent to him within five days of receipt and shall order its publication in the Official Gazette.”  So, he claimed that he has no choice but to sign, adding that this is his duty regardless of whether he personally likes the amendments or not.

Representatives of the new university student movement, HaHa, pointed out that he could have resigned. But no, Áder belongs to the inner sanctum of Fidesz. He has served Viktor Orbán well for years. He wavered only once, after the second lost election in 2006, when he apparently joined the ranks of those who thought that it might not be a bad idea if Viktor Orbán retired.

Tamás Deutsch, his old friend, was elated with his decision to sign. On Twitter Deutsch wrote: “You also know Jánó that THIS is what we once dreamed of.”  Does it mean that these guys have been planning to destroy Hungarian democracy for the last twenty-four years? Let’s hope not.

While Áder was returning to Budapest, Orbán was getting ready to travel to Brussels to take part in one of the periodic summits of the European Council. The European Council is supposed to define “the general political directions and priorities” of the Union. It is the EU’s strategic and crisis solving body, acting as the collective presidency of the EU.

Given “the unparalleled uproar” in Brussels and other capitals over Viktor Orbán’s defiance of the European Union, the interest in the Hungarian prime minister was more intense than usual. Normally he doesn’t talk to reporters before these meetings, but this time the Hungarians organized an “international press conference.” Orbán managed to avoid answering questions by insisting that he didn’t want to hear opinions; he demanded ” facts.” Since foreign reporters are not experts in the minutiae of the Hungarian constitution, the “dialogue” became rather strange. He kept repeating: “I beg you, only the facts!”  because so far he hasn’t been presented with any proof that what Hungary is doing is unconstitutional.

All in all, he was very cocky and sure of himself. Luke Baker, Reuters’  reporter in Brussels, tweeted: “Hungary’s Orban smiling like a Cheshire cat as he comes into press conference with international media to defend constitutional changes.” I’d wager to say that Baker had the original Cheshire Cat in mind, not the jolly fellow that appeared in Disney’s Alice in Wonderland. The original cat as depicted by John Tenniel, the illustrator of the 1866 publication of  Lewis Carroll’s book, is a much more sinister character.

Orbán might get off his high horse soon because there are new developments afoot. One is that, according to “reliable information,”  the “Hungarian question” will be on the table at the summit. Second, the German parliament (Bundestag) spent more than an hour today on the amendments to the Hungarian constitution. The initiative came from the social democrats, but all parties joined the socialists in demanding strong action on the part of Germany and Angela Merkel. At the same time Viviane Reding, European commissioner of justice, fundamental rights, and citizenship, warned Hungary of severe consequences as a result of Budapest’s latest moves. Reding talked about the possibility of invoking Article 7 of the Lisbon Treaty and added that Hungary’s subsidies might be cut. “The Constitution is not a toy that can be changed every six months.”  (The students said exactly the same thing.)

Orbán may appear to be unruffled, but all observers agree that the situation is serious. There are signs of impatience and annoyance in Brussels at Orbán’s provocations and games with the European Union. This time he might have gone too far.

President János Áder’s visit to Berlin and the “stormy meetings” with German politicians

MTI, the Hungarian news agency, by now completely under the thumb of the Orbán government, makes sure that Hungarians get mighty little foreign news about their country. A good example is MTI’s coverage of President János Áder’s visit to Berlin. The news agency filed four reports on Áder’s visits to Foreign Minister Guido Westerwelle and Chancellor Angela Merkel. All four are basically descriptions of what Áder himself told MTI’s reporter with the exception of one sentence that was based on information received from the spokesman of the German foreign ministry.

According to MTI’s story, Áder talked about the excellent German-Hungarian economic relations and as an afterthought mentioned that Angela Merkel would like to see more “legal security.” As far as his conversation with Guido Westerwelle was concerned, Áder concentrated on his efforts to explain to the German foreign minister that the latter’s knowledge of the Hungarian constitution and its amendments are wanting. He tried “to fill this hiatus.” When a newspaperman asked him about possible friction between the two countries due to the controversy over the latest changes introduced into the Hungarian constitution, Áder minimized the differences between Westerwelle and himself. Differences of opinion are natural. For example, Germany is against the entry of Romania and Bulgaria to the Schengen Area while Hungary supports it. Of course, this is not what the reporter was interested in.

Angela Merkel with János Áder in Berlin / parameter.sk

So, what was the sole sentence uttered by the spokesman of the German foreign ministry that MTI found important enough to include in its report? The topics discussed included the Hungarian constitution. The discussion was frank (nyílt) and during the discussion “rather contradictory” (meglehetősen ellentmondó) opinions were expressed. Here we have to stop a bit because the Hungarian version doesn’t make a lot of sense. Népszabadság, which used the MTI report, didn’t know what it could possibly mean and tried to improve on it by calling it “meglehetősen ellentmondásos.” But the original German is a great deal stronger and straightforward: “it was an open and in parts quite adversarial meeting” (gab es einen offenen und in Teilen durchaus kontroversen Meinungsaustausch). All in all, the true nature of this meeting couldn’t possibly be grasped by someone who has to rely on the news as it is presented to all newspapers via MTI.

So, let’s see what other news agencies made of the story. According to Reuters, Áder’s meeting with Westerwelle was “stormy.” The foreign minister “could not hide his concern at the way Orban and his government were operating.” However, the article in Reuter’s continues, there may be frustration and denunciation, but “there is little the European Union can do with any alacrity and immediacy that might make the mercurial Orban sit up and listen.” The reporter outlines the various possibilities open to the European Commission. It can launch an infringement proceeding, but that might take as long as a year. Moreover, “to prove that they’ve breached a law is very difficult.”

Here we may turn to an article that appeared in Népszabadság after the reporter, Károly Lencsés, had a chance to talk to some Hungarian experts on international law. They think that Article 2 of the Lisbon Treaty might be a good point of departure. So, let’s see what this Article 2 is all about:

Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States’ laws or regulations.

6. The scope of and arrangements for exercising the Union’s competences shall be determined by the provisions of the Treaties relating to each area.

There is also a lot of talk about the famous Article 7 that could under special circumstances suspend certain rights, including voting rights in case of a breach of Article 2. However, almost everybody agrees that such an outcome in Hungary’s case is highly unlikely. Here is the text of Article 7 of the Lisbon Treaty:

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the European Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2 after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354of the Treaty on the Functioning of the European Union.

No wonder that the headline of the Reuter’s article is “EU sweats over how to bring Hungary into line.” This point is also addressed by Jan-Werner Mueller, professor of politics at Princeton University in his latest article in The Guardian. In his opinion the EU should create an institution that would systematically monitor democracy and the rule of law in all member states. Since there is something on the books called “Copenhagen criteria,” which are the rules that define whether a country is eligible to join the European Union, this new EU watchdog could be called the “Copenhagen Commission.” An excellent idea. I hope the European Union will listen.

“The war of the flags”: Diplomatic spat over Szekler territorial autonomy

A few months back I ended one of my posts with a question: How long will the Romanian-Hungarian love affair that Viktor Orbán and  Traian Băsescu initiated back in 2009 last?

In the last few days over 200 articles have appeared in the Hungarian media on the “székely (Szekler) flag.” Before I venture into the tiff over the flag, let’s look at who the Szeklers or székelyek are. The origin of those Hungarians who live in Covasna (Kovászna) and Harghita (Hargita) counties in the eastern part of Transylvania is shrouded in mystery. Perhaps the most accepted theory is that they were originally a Turkic group that came along with the other Hungarian tribes to present-day Hungary. They were already Hungarian speaking at the time. Originally they settled in Bihor (Bihar) county around Oradea (Nagyvárad). From there they moved farther east and guarded the eastern regions of the Kingdom of Hungary.

Jobbik parliamentary members holding up the “székely” flag

As for the origin of the flag, it is even murkier. The Székely Nemzeti Tanács (National Council of Szeklers) claims that the design they came up with was inspired by the flag of the only Szekler prince of Transylvania, Mózes Székely (1553-1603). However, the flag attributed to Mózes Székely was not his heraldic flag but a so-called battle flag he received as a gift from Prince Zsigmond Báthori before a battle led and lost by him against the royal Habsburg forces. It was just one of many such flags and was never associated with the Land of the Szeklers. I think one can safely say that this flag is a new symbol for the Szeklers, who are currently demanding territorial autonomy within Romania.

So, what happened that caused a diplomatic spat between Romania and Hungary? Last month the prefects of the two dominantly Hungarian inhabited counties forbade flying the székely flag on private or public buildings. This flag had been displayed in Romania since 2010. László Kövér, speaker of the Hungarian parliament who supports the National Council of Szeklers, ordered the display of the flag on the parliament building in November 2010. In January 2012 the demonstrators of the Peace March demanded, among other things, autonomy for the Land of the Szeklers and carried hundreds of Szekler flags. The demand for Szekler autonomy spread beyond Transylvania and gained increasing support in Hungary.

After the Covasna County Court ruled that the Szekler flag cannot be displayed in Romania a local leader of RMDSZ asked Hungarian mayors to fly the Szekler flag in a display of solidarity. That was on January 18, and ever since one after the other, especially the more radical Fidesz mayors, have obliged. First it was Siófok that displayed the flag, then Budafok, and a few days later District VII, the historic Jewish quarter of Pest. No wonder that a blog writer who lives there made fun of all those Szeklers who inhabit Erzsébetváros.

Zsolt Németh, undersecretary of the foreign ministry, attended the ceremony that accompanied the display of the flag at the Budafok City Hall on February 5. There he delivered a speech in which he called the Romanian decision to ban the Szekler flag “symbolic aggression” and urged other mayors to follow suit. He insisted that “the steps Romania has taken lately are contrary to Romanian-Hungarian cooperation, the values of strategic partnership, and the norms of the European Union.”

A day later the Romanian prime minister, Viktor Ponta, answered in kind. Romania will not tolerate any interference in Romania’s domestic affairs. He described Németh’s remarks as “impertinent” and called on Romania’s foreign minister to make a vigorous response to the Hungarian government concerning the issue. Bogdan Aurescu, undersecretary of the Romanian Foreign Ministry, considered Németh’s words to be support for territorial autonomy, which the Romanian constitution forbids.

On the very same day Oszkár Füzes, the Hungarian ambassador, was called into the Romanian Foreign Ministry. During the conversation the Hungarian ambassador apparently said that Hungary supports the display of the Szekler flag in Romania. Moreover, he gave an interview to a Romanian television station where he stated that his country supports the Szeklers’ demand for territorial autonomy and gave a piece of advice to the Romanians: they should change their constitution and make Romania a multi-national state. At this point the Romanian foreign minister threatened Oszkár Füzes, who had gotten into trouble earlier in Romania, with expulsion. He added that even before possible expulsion Füzes will be persona non grata in Bucharest. He expressed his hope that Budapest will be able to keep its ambassador in line; if that effort is unsuccessful, “his mandate in the Romanian capital will be short-lived.”

János Mártonyi came to the rescue of his ambassador in Bucharest: “Oszkár Füzes did not say anything on the question of Szekler autonomy that would be different from the opinion of the Hungarian government.” Hungary’s position hasn’t changed with respect of Szekler autonomy in twenty-two years. He added that “we were not the ones who started the war of the flags.’” Zsolt Németh also put in his two cents’ worth, saying that “they are ready to negotiate but the solution is in the hands of Romania.”

RMDSZ, a much more moderate Hungarian party than either Fidesz or the Szeklers’ Magyar Polgári Párt, looked upon all this with trepidation. According to György Frunda, adviser to Viktor Ponta, this “diplomatic scandal” hurts the Hungarian community in Romania. Hunor Kelemen, chairman of RMDSZ, considered Zsolt Németh’s words inflammatory, adding that the fate of the Szekler flag is not in the hands of Hungarian politicians.

Today János Martonyi phoned the Romanian foreign minister, Titus Corlăţean. From what we can learn from the Hungarian news agency’s report, the two agreed to disagree. But “the negotiating partners concluded that the lessening of tensions is mutually desirable.” They will continue negotiations and “they count on the contribution of the diplomatic corps.” So, it seems that Romanian-Hungarian relations are currently so bad that the conflict needs the mediation of outsiders. It sure doesn’t sound too promising.