European Court of Human Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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H. David Baer’s reply:

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

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

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

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

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

David Baer
Texas Lutheran University
USA

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

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

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

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foref

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

Recommendations:

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

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

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

Intervention:

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

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

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

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

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

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

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

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

NGOs as threats to the building of Orbán Viktor’s “illiberal democracy”

Yesterday while analyzing Viktor Orbán’s latest speech I concentrated on the topic that aroused the greatest outrage in opposition circles, the Hungarian prime minister’s plans to introduce a so-called “illiberal democracy.”

Here I would like to talk about a topic that at first glance might seem tangential to these plans: the NGOs and civic groups in general. While Orbán dispassionately lectured his audience on the state of the world and Hungary’s place in it, he became visibly agitated when he turned to this topic. We may think that the question of who distributes the relatively small amount of money provided to Hungary by the EEA and Norwegian Grants is not worth a major international fight, but Viktor Orbán does not see it that way. For him the issue is of critical political importance.

I wrote earlier about the controversy surrounding these funds. Currently, a private organization distributes the funds, an arrangement that Hungary and the Norway Fund agreed to earlier. Sometime in the spring the Hungarian government unilaterally changed the rules of the game by insisting that the Budapest government should be responsible for the dispersion of the funds among the various civic organizations. The Norway Fund resisted the idea. After all, these civic groups are supposed to be, at least in part, the watchdogs of the government in power. Giving the government the right to decide which NGOs can and which cannot receive money would defeat the whole purpose.

Right now there is a standoff between Budapest and Oslo. Even the Council of Europe Commissioner for Human Rights, Nils Muižnieks, wrote a letter to János Lázár in which he expressed his displeasure at the government’s allegations that the Norwegian NGO Fund was used to support political activities in Hungary. He tried to explain that NGOs “should be able to pursue their public watchdog function … without undue interference in their internal functioning.” Lázár wasn’t moved. He argued that the Norwegian NGO funds “constitute public money, [and] it is the moral obligation of the Hungarian Government to order every measure in its discretion which is necessary for the thorough investigation of the questions to be examined, or the contents of the supported activities.” The sentence might be convoluted, but the message clear: Lázár insists on government oversight.

Why is this relatively small amount of money of such great political concern for the Orbán government? We can find the answer in Viktor Orbán’s speech delivered yesterday at Tusnádfürdő/Băile Tușnad. These independent NGOs threaten the illiberal state he is building. He looks upon the NGOs, especially the ones that receive funds from abroad, as impediments to his plans. And as far as he is concerned, this is a very serious matter. As he put it, “here we are confronted with paid political activists. Moreover, these paid political activists are foreign paid political activists. Political activists paid by definable foreign interest groups about whom it is hard to imagine that they consider the sums given by them as social projects. Instead, our suspicion is justified that through this instrument [the NGOs] they try–in a given moment and in a given question–to influence Hungarian political life.” Therefore, the decision was made to create a parliamentary committee whose job will be “the continuous observation, recording, and release of foreign attempts at influence peddling. ”

NGOs2And this was just the beginning of his tirade. He complained about the fact that some of the people who administer these projects are getting paid from abroad, from the money allocated to Hungary, and that their salaries are greater than the salaries of Hungarian civil servants in similar positions and rank. He complained that  35% of the funds are wasted on overhead costs, which is intolerable. Once the Hungarian government gets hold of the funds, these costs will be reduced to a maximum of 15%.

Administrators in Brussels and in Oslo will have to be prepared for a protracted and ugly fight because Orbán is adamant: foreign money is not going to be used to undermine his government. If the Norwegian Fund decides to stick it out, the case most likely will end up in the European Court of Human Rights. Commissioner Nils Muižnieks in his letter to Lázár alluded to that possibility when he stated that “the case law of the European Court of Human Rights on the role of NGOs in democratic society is clear: when an NGO draws attention to matters of public interest, it is exercising a public watchdog role of similar importance to that of the press.” And he mentions the 2007 ruling in Zhechev v. Bulgaria as a case in point. In brief, Muižniek recommends that Hungary back down because, if the case gets all the way up to the European Court of Human Rights, defeat is certain. Not that Viktor Orbán cares about court decisions. He will do, if and when it comes, what he has done in the past. Blithely ignore the decision.

Viktor Orbán is getting ready for a fight

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

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

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

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

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

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

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

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

Jean-Claude Juncker and Martin Schulz

Jean-Claude Juncker and Martin Schulz

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

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

Ruling of the European Court of Human Rights: The case of Krisztián Ungváry v. Hungary

Today’s topic should resonate with readers of all political stripes. Any news about secret agents of the Kádár regime, especially because of the lack of full disclosure, always arouses a great deal of interest. In addition, tidbits about Ferenc Gyurcsány’s activities as KISZ secretary at the University of Pécs in the 1980s are highly sought after, especially in right-wing circles. Add to that a former “official/informal contact” between the university and the Ministry of Interior’s infamous secret service who happens to be today a member of the Hungarian Constitutional Court. Finally, a decision of the European Court of Human Rights that finds the Hungarian Supreme Court’s finding and judgment in the case of Krisztián Ungváry v. László Kiss irreconcilable with Article 10 of the European Convention on Human Rights, which prescribes that “everyone has the right to freedom of expression.”

Krisztián Ungváry

Krisztián Ungváry

The story started in 2007 when Élet és Irodalom (ÉS) published an article by Krisztián Ungváry, a historian who is an authority on, among other things, the secret service and its agents during the Kádár period. The article was about an aborted student movement at the University of Pécs. In 1982 three young law students wanted to start a peace movement independent from the official Országos Béketanács. They never thought the authorities would find anything wrong with such a movement. After all, Kádár’s Hungary, like the whole Soviet bloc, made frequent references to peace as something desirable. The problem was that the inspiration for this particular movement came from Western Europe and wanted to banish nuclear arms from the whole of Europe, including Soviet arms that could also be found on Hungarian soil. Therefore, the authorities immediately reacted in order to squash the Dialógus program, as the movement was named by the students.

The details of this “storm in a teapot” are not interesting as far as our story is concerned, but the original article does shed light on many aspects of “gulyás communism” that were not evident to the passive majority of Hungarians. The thesis of the article is that very often it was not the secret agents who were the most important sources of information for the Ministry of Interior but the so-called “informal contacts.” In connection with the Dialógus affair Ungváry mentions eight people who served as “informal contacts,” most of whom he managed to identify. Among them was the party secretary of the law school, László Kiss, then associate professor and today a member of the Constitutional Court, a position he has held ever since 1998. At the same time Ungváry comes to the conclusion that, although Gyurcsány as a KISZ secretary was a link in the chain, his role was minimal and he was not one of the “official contacts” the Ministry of Interior relied on.

Kiss Laszlo

László Kiss

Ungváry had proof of Kiss’s reporting to the Ministry of Interior and therefore had no reason to believe that he might be the object of years of litigation in connection with this article. A few days after the appearance of his article, Kiss made an announcement that was published in ÉS in which he declared that he had never been an agent and “never worked with the persons of the secret service mentioned in the article. In fact, he didn’t even know them personally.” He threatened Ungváry with both civil and criminal legal proceedings and, as it turned out later, brought charges against ÉS as well.

Ungváry’s answer in the same issue pointed out that Kiss’s name appears in the folder dealing with the Dialógus affair as the source of information on the details of the case. That didn’t satisfy Judge Kiss, however, and he proceeded with the litigation that lasted over three years.

Ungváry was acquitted of the criminal charges, but he and ÉS lost the first round in the civil case. In March 2010, however, the appellate court ruled in favor of Ungváry and the weekly paper. Liberal groups were delighted, and SZEMA (Szabad Emberek Magyarországért, the party of Klára Ungár) called on Kiss to resign his post after the ruling. After all, Ungár argued, a man with such a past shouldn’t be a member of the Hungarian Constitutional Court. 

Naturally Kiss had not the slightest intention of resigning. Instead he appealed to the Supreme Court, which promptly reversed the appellate court’s decision. Again liberal groups were up in arms, especially since the court fined Ungváry 3 million forints and ÉS 2 million for publishing the piece. But even Mandiner, a group of young conservatives, stood by Ungváry; in fact, they collected money so he would be able to pay the stiff fine. But Ungváry is not the kind of man who gives up easily. Shortly after the ruling of the Supreme Court in June 2010 he appealed to the European Court of Human Rights. On December 3 the Strasbourg court ruled against Hungary. Thus Hungary will have to pay 7,000 euros to Ungváry and, 3,000 to ÉS over and above the amount the paper had to pay in fines after the ruling of the Hungarian Supreme Court.

The decision was a narrow one and the Hungarian government has the right to appeal, which would initiate another round of legal proceedings at the Grand Chamber of the European Court of Human Rights. The Hungarian government hasn’t responded yet but László Kiss certainly has. He is planning to sue Ungváry for distorting the verdict of the court when he announced that the finding of the court “validated” his claims about Kiss’s activities. Kiss went so far as to claim that the Strasbourg court “announced that Ungváry was unable to prove his claims,” which were no more than “speculations” that lacked any corroborating evidence.

I checked the published judgment of “Case of Ungváry and Irodalom Kft. v. Hungary.” Since Kiss referenced the word “speculations,” I decided to check the text of the judgment. I found only one “speculations,” and not where I would have expected it to be if one believed László Kiss. No, the word was found in the description of the Hungarian Supreme Court’s judgment that the Strasbourg Court found wanting. Let me quote.

53. The Court notes the finding of the Supreme Court according to which the first applicant [i.e., Ungváry] was unable to prove that Mr K. had been in regular contact with the State security, often anticipating and exceeding its expectations. The Court finds that these expressions exceeded the limits of journalism, scholarship and public debate. In the present case, it is not the –arguably excessive – form of the expression but the defamatory content of these speculations, which the Court finds objectionable as being without sufficient factual support. …

The Court notes that the article intended to demonstrate that collaboration, that is, the activities of “official contacts” meant cooperation without specific, express operational instructions from the State security. Limiting its analysis to this kind of direct cooperation with the State security, the Supreme Court failed to consider that Mr K.’s reports had been in any case available to the authorities of the Communist regime, nor did it attribute any particular relevance to the fact that the first applicant’s undeniably offensive and exaggerated statements were made within the context of the broader presentation of the workings of the oppressive mechanism of a totalitarian regime. It did not consider relevant, either, that the first applicant had indicated the sense in which he had used the term informing (see paragraph 8 above). Indeed, the article was written in order to demonstrate how closely the Ministry of the Interior and the “social organisations” had worked together, and especially, how tight the relation had been between party functionaries and the Ministry of the Interior.

And finally:

The Court notes that the Supreme Court interpreted the first applicant’s description of these officials as one portraying them “guilty by association” – which, in that court’s view, could not prove that Mr K. “actually cooperated” with the State security (see paragraph 19 above).

The Court cannot agree with the deduction of the Supreme Court.

The Court finds that although the first applicant did not prove that Mr K. and his reports had actually been commissioned by the State security, it was nevertheless an undisputed fact that he, as a party secretary, had produced reports on the Dialógus affair. (p. 15)

If I read the decision of the Strasbourg court correctly, I don’t think that Judge Kiss has a chance. Unless, of course, the Hungarian judges are intimidated by the almighty judge of the Constitutional Court.