Goodbye to democracy: An interview with Gáspár Miklós Tamás about Viktor Orbán’s speech

Since there is a debate going on about the art of the translator, I am happy to publish a translation by George Szirtes, Hungarian-born British poet, writer, and translator. He has translated many important Hungarian literary works into English, including such classics as the nineteenth-century verse play of Imre Madách, The Tragedy of Man, and novels of  Gyula Krúdy, Ferenc Karinthy, and Sándor Márai. His last translation, Satantango [Sátántangó in Hungarian] by László Krasznahorkai, received the Best Translated Book Award in 2013.

So, enjoy both the translation and the thoughts of Gáspár Miklós Tamás or, as he signs his publications in English, G. M. Tamás. The interview took place on Egyenes beszéd [Straight talk] on the television station ATV on July 28. The original interview in Hungarian can be seen here. This dramatic interview should help foreign observers realize the seriousness of the situation in Hungary.

Only today two important editorials were published. The New York Times calls on Jean-Claude Juncker to act more forcefully because otherwise “the commission would diminish its credibility.” The Wall Street Journal wrote that the “West’s victory in the Cold War led to a complacency that the liberal idea was triumphant–that it was ‘the end of history,’ in the fashionable phrase of the day…. Western Europe needs to set a better example of what freedom can achieve by reviving economic growth, and the American President who ostensibly still leads the free world ought to break his pattern and speak up on behalf of the liberal idea.” 

I’m grateful to George Szirtes for allowing me to publish his transcription and translation. The text originally appeared on his blog.

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GOODBYE TO DEMOCRACY

‘On Saturday Hungary officially, ceremonially, openly, publicly, said goodbye to democracy.’ 

[My transcript is very close but here and there I have cut a passage for brevity or shaped a phrase in what I believe is a faithful fashion.  In it TGM [TGM here since Hungarian puts the surname first] argues this is the beginning of a very dark chapter in Hungarian history.

I am somewhat amazed that the UK press hasn’t picked up more on the Orbán speech. It is, after all, quite something to declare the end of liberal democracy and to suggest that the prime minister should not be answerable to other state checks and balances. GSz]

one-to-one
Interviewer recounts views of other parties on Viktor Orbán’s speech then turns to Gáspár Tamás Miklós. She asks if there are any points in Orbán’s speech that the opposition and the press have left undiscussed.

TGM replies that this is a speech of extraordinary importance. He credits Orbán with being a highly  intelligent man, a significant historical figure and a charismatic politician, one whose place is assured in Hungarian history. This, he claims, is the proclamation of a new political system, the seeds of which had already been sown. The speech was clear and simple to summarise. 

TGM counts on his fingers and summarises.

TGM:
1. He is building an illiberal state. This is demonstrated by his rewriting of the constitution and by his ending of the separation of powers. He joked about this saying that if there were any attempt to impeach or obstruct him that would mean he wasn’t the leader of the country. In other words he knows what the game is, as do I.

2. His stated his doubts about democracy

3. He announced that the concept of human rights is out of date. That human rights are finished

4. He declared  the country must abandon any notion of social support (or welfare state)

5. He declared that his preferred state models were Singapore, Russia, Turkey and China.

6. He declared that all NGOs working in the cultural or social sphere were foreign agents, traitors paid by alien powers

Gáspár Miklós Tamás

Interviewer asks which of these six points was new.

TGM`: Every one of them.

Interviewer doubts that but TGM insists that they are completely new. Was it not just a matter of actually articulating them in a new way? asks the interviewer.  TGM repeats that it was utterly new, in every respect

TGM: Yes there was this kind breast-beating before but that’s not important.

He goes on to Orbán’s idea of the state founded on work, the ‘work state’, the ‘illiberal state’ the ‘populist state’ the ‘national state’ etc.

TGM: This is a complete break with the post-1945 consensus as espoused by what we call the free world, not only with 1945 but with the less-free post-1989 political, social and moral consensus. Its abandonment of social responsibility represents a break with the ideas of freedom, and equality. What does a ‘work-based state mean?  It means a non-social state, a non-welfare state, a state that offers no support or aid – it is a case of arbeit macht frei isn’t it? It means that work is what people do not because they want to but because they have to so that capitalists may prosper, the kind of work the unemployed would be forced to do against which, in a free country, there would be mass demonstrations….

Interviewer returns to her earlier question. ‘But what is new in all this?’ Again TGM replies: everything. The question is what is to come?

TGM: So what is to come? What is new is that this has become a political programme to be enacted by the state. On Saturday Hungary officially, ceremonially, openly, publicly, said goodbye to democracy. The prime minister, the autocratic leader of the country, has declared that he is opposed to civil society. Have you noticed we no longer have a governing party by the way? When was the last time we heard anything of Fidesz as a factor, a genuine player? – all we have recently been hearing is a state apparatus in which not a shred of democratic process remains and when we see the Secretary for Defence using a violent thug [a named army officer from Hungarian history] as a role model for new army recruits we may be certain what kind of violent, thuggish, and repressive state is being promised to us… a state that, since the prime minister’s speech was given in Romania, believes in provocation, [a speech] that did in fact elicit a storm of protest in the Romanian press and many declared that they had had quite enough of Hungary.

So here we have, in this truly terrifying speech, given to his friends and a highly enthusiastic audience, one of the darkest moments in Hungarian history, a moment of darkness provided by Viktor Orbán. Meanwhile everyone goes, ‘oh dear, there he goes again, isn’t that just the kind of thing he tends to say ‘ But that’s not what is happening here. It is time to take Viktor Orbán seriously so that we can take up arms against  him and save Hungary. I don’t despise him, I don’t look down to him. What we have here is an almost fully achieved dictatorship.

In any dictatorship the person of the dictator is important. Viktor Orbán is not going to let power slip from his hands now. All dictatorships depend on the dictator so now we have to concern ourselves with the kind of person Orbán is.

He told us that he will not be removed by elections. [That means] that those who are against him must be prepared for the grimmest struggle. Either that or he remains in office as long as his health permits, directing the affairs of the country by his own authority, while the country descends ever further into darkness in every possible respect in economic, political, cultural, social, or moral terms until we become a waste land, a wreck, a terrible place, a black hole in the map of Europe, a place more backward and more tyrannous than any of our Eastern European neighbours, and we will have to start envying the Bulgarians and Macedonians who will be in a far better condition, far freer, more cultured.

Interviewer asks what happens if Orbán refuses to be voted out through normal elections.

TGM: Blood and chaos. That’s the way it usually goes when elections don’t work. It’s what happens when people’s social plight becomes ever more desperate. Our social circumstances are bound to worsen and there will be people desperate and violent enough to bring down the country in the process.

We really can’t take this seriously enough. What was said in that speech is highly dangerous.

Interviewer asks whether people are in the mood to rise in defence of such high ideals.

TGM: Not at all, not at the moment. This is a browbeaten society that has utterly bought into [the Orbán persona?]. But it won’t always be so. Nothing lasts for ever. At the moment there is no ideology to confront this dark chauvinism, this cult of the state, this cult of force, full of anti-democratic sentiment.

Interviewer: Why isn’t there?

TGM: We are exhausted. We Hungarians are too tired to argue. You can’t expect people to sacrifice themselves without a hope of success. People are resigned. Like it or not, they accept they can’t change it.

Interviewer:  So what hope is there?

TGM: [Thinks] The one hope lies in continuing to uphold the ideals of freedom and equality as long as we can. The hope is that, despite everything, we don’t give up on the ideals of 1918, 1945 and 1989. Those  [ideals] belong to us. No one can take them from us. We might have to prepare for a long and very bad period. I myself might not live to see the end of it. Who knows? The fact remains that if we wish to live a moral life and to protect the culture of freedom we have to maintain a cool but obstinate resistance and to repeat our own commonplaces.

Interviewer: How can you maintain these high ideals when the prime minister offers hard facts? When he takes banks back into Hungarian control? When he forces banks to pay back what they owe. Has anyone ever made a bank pay us? So he doesn’t go on about ideals, about constitutional details.

TGM: I never said he was an unsuccessful politician. He is that, among other things. He is the only man who can give us hard facts because he is in charge of the government.

Interviewer: So there you are, hard facts. Isn’t it better to have hard facts than to be dreaming about ideals?

TGM: Are you talking about those four million people currently in desperate straits in this country? Do you think they like it? Do you think they don’t believe in ideals such as a better life? That too is an ideal: they believe their own children deserve as much as the better off, the middle class and the rich. That ideal is called equality.

It’s not the way they refer to it every day, of course. But that is the proper word for it. These things are connected. These ideals are not a matter for a few specialists divorced from reality. Equality means that the bottom four million have a right to food, electricity, to a heated home, to read, to enjoy their pleasures. That is an ideal but it’s not the reality.

This ideal concerns the poverty of four million people and the servitude of ten million,  and opposes the torrent of state funded lies with which Viktor Orbán and his underlings flood this small country. Yes, there are ideals in which people believe, that, for example, they should be able to live a decent honourable life. That ideal has roots in Christianity, in liberalism, and in socialism. That is not something they are obliged to know, but they know it. And Viktor Orbán is telling you directly, in your face while laughing at you that that is what you have to live without.

And if, dear fellow Hungarians, that is what you accept that is what you’ll get. There’s nothing anyone can do for now except to regard this terrible speech with hatred and contempt. Because society is weak but it is possible for it to know these things.

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[That is the end of the interview. It is a very dark vision of Hungary’s future and TGM is clearly angry.  It is fascinating – and liberating – to hear a man talk of socialism with such conviction. It is fascinating that he should include Christianity and liberalism in the struggle for freedom and equality.

What that shows is that TGM is not an old-system communist. He was part of the opposition to the pre-1989 order. He is part of the spectrum that any democratic society should be proud to represent. It is the spectrum Hungary is on the point of leaving. GSz]

 

Senator Ben Cardin: Human Rights in Hungary

The following remarks by Ben Cardin, senator from Maryland, were delivered on the floor of the U.S. Senate on Friday, December 13, 2013. Senator Cardin is deeply interested in foreign affairs and sits on the Committee on Foreign Relations. He is also the co-chairman of the Commission on Security and Cooperation in Europe, otherwise known as the Helsinki Commission. Senator Cardin addressed the Senate in this capacity on Friday.

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Mr. CARDIN. Madam President, earlier this year I chaired a Helsinki Commission hearing on the situation in Hungary. Today, I would like to revisit some of the issues addressed by our witnesses.

Since the April 2010 elections, Hungary has undertaken the most dramatic legal transformation that Europe has seen in decades. A new Constitution was passed with votes of the ruling party alone, and even that has already been amended five times. More than 700 new laws have been passed, including laws on the media, religion, and civic associations. There is a new civil code and a new criminal code. There is an entirely new electoral framework. The magnitude and scope of these changes have understandably put Hungary under a microscope.

At the Helsinki Commission’s hearing in March, I examined concerns that these changes have undermined Hungary’s system of democratic checks and balances, independence of the judiciary, and freedoms of the media and religion. I also received testimony about rising revisionism and extremism. I heard from Jozsef Szajer, a Member of the European Parliament who represented the Hungarian Government at the hearing. Princeton constitutional law expert Kim Lane Scheppelle, Dr. Paul Shapiro from the U.S. Holocaust Memorial Museum, and Sylvana Habdank-Kolaczkowska from Freedom House presented compelling testimony.

Unfortunately, developments in Hungary remain troubling.

Even though Hungary’s religion law was tweaked after the Constitutional Court struck down parts of it, it retains a discriminatory two-tier system. Moreover, the Parliament is empowered with the extraordinary and, for all practical purposes, unreviewable power to decide what is and what is not a religion.

This month, the government announced it is launching an investigation into the Methodist Evangelical Church, a church persecuted during communist times. Today, the Methodist Evangelical Church is known for its outreach to Roma, work with the homeless and is one of the largest charitable organizations in Hungary. As I noted at the Helsinki Commission hearing in March, it is also one of the hundreds of religious groups stripped of official recognition after the passage of Hungary’s new religion law.

The church has now complied with submitting the necessary number of supporters required by the law and, as a reply, the government has announced an unidentified “expert” will conduct an investigation into the church’s beliefs and tenets. This step only reinforces fears that parliamentary denial of recognition as a so-called “Accepted Church” opens the door for further repressive measures.

Veneration of Hungary’s wartime regent, Miklos Horthy, along with other anti-Semitic figures such as writer Jozsef Nyiro, continues. In November, a statue of Hungarian Jewish poet Miklos Radnoti, who was killed by Hungarian Nazis at the end of 1944, was rammed with a car and broken in half. At roughly the same time, extremists staged a book burning of his works along with other materials they called “Zionist publications.” At the beginning of December, two menorahs were vandalized in Budapest.

Reflecting the climate of extremism, more than 160 Hungarian nationals have been found by Canada this year to have a well-founded fear of persecution. Almost all are Romani, but the refugees include an 80-year-old award winning Hungarian Jewish writer who received death threats after writing about anti-Semitism in Hungary, and was stripped of his honorary citizenship of Budapest on an initiative from the far-right Jobbik party, supported by the votes of the ruling Fidesz party.

While there are many who suggest the real problem comes from the extremist opposition party Jobbik, and not the ruling government, it seems that some members of Fidesz have contributed to a rise in intolerance.

I am particularly troubled that the government-created Media Council, consisting entirely of Fidesz delegated members, has threatened ATV–an independent television station–with punitive fines if it again characterizes Jobbik as extremist. If you can’t even talk about what is extremist or anti-Semitic in Hungary without facing legal sanctions, how can you combat extremism and anti-Semitism? Moreover, this decision serves to protect Jobbik from critical debate in the advance of next year’s elections. Why?

Other new measures further stifle free speech.

Unfortunately, and somewhat shockingly, last month Hungary amended its defamation law to allow for the imposition of prison terms up to 3 years.

The imposition of jail time for speech offenses was a hallmark of the communist era. During the post-communist transition, the Helsinki Commission consistently urged OSCE countries to repeal criminal defamation and insult laws entirely. In 2004, for example, the Helsinki Commission wrote to Minister of Justice Peter Barandy regarding the criminal convictions of Andras Bencsik and Laszlo Attila Bertok.

This new law, raced through under an expedited procedure in the wake of a by-election controversy in which allegations of voter manipulation were traded, was quickly criticized by the OSCE representative on Freedom of the Media. I share her concerns that these changes to the criminal code may lead to the silencing of critical or differing views in society and are inconsistent with OSCE commitments.

Hungary was once held up as a model of peaceful democratic transition and is situated in a region of Europe where the beacon of freedom is still sought by many today. I hope Hungary will return to a leadership role in the protection of human rights and the promotion of democracy.

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

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

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

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

Breaking news: The World Jewish Congress’s Plenary Assembly in Budapest

Below, thanks to a friend, a contributor, and a regular reader of Hungarian Spectrum, I’m able to publish the speeches of Péter Feldmájer, president of the Federation of Jewish Communities in Hungary (MAZSIHISZ), and Ronald S. Lauder, president of the World Jewish Congress, at the Plenary Assembly in Budapest on May 5.

Unfortunately Viktor Orbán’s speech is not yet available in English (although it’s already on YouTube in Hungarian), but the World Jewish Congress’s reaction was negative.

I should add that the translations are not mine.

* * *

Péter Feldmájer

Mr. President Lauder, Mr. Prime Minister, His Excellency the Cardinal, Bishops, Rabbis, Mr. and Madame Ambassadors, Dear Guests, Ladies and Gentlemen

Ma nishtano halailo haze?

What makes this night different from all other nights, we ask each Passover Seder evening; today we can ask the question: ma nishtano hacongres haze – i.e. what makes this congress different from all other congresses?

First and most, it is that we would like to welcome you in Budapest, the capital of Hungary, a glorious city that safeguards the joys and also the tortures of the past.

You have arrived in a country which – legend has it – saw the Jewish people from the Kazar empire come into this land together with the state founding proud horse tribes, and also where for many decades in the 19th century the Jews of the east were greeted with a warm and wholehearted welcome. The Jews here had become Hungarian patriots, they quickly lost their own language and supported the cause of Hungarian independence without reservations; nevertheless, already in the very first days of the 1848 heroic freedom fight, a pogrom was launched against the Jews of Bratislava.

You have come to a city that is proud to have Tivadar Herzl, the visionary of modern Israel, as its son and student.

You have come to a country which had lost World War I and with that 2/3 of its territory. The heroism of the Jewish soldiers and officers fighting the war as Hungarian patriots had become legendary, yet it did nothing to stop the political elite from blaming the Jews for the defeat and introducing the very first anti-Semitic laws of Europe, which served as models for the Nazis.

You have come to a country where the vast majority of the then mainstream society approved of the anti-Semitic laws and while most of them did not identify with the massacres, ultimately the entire Hungarian public administration – led by the Governor – successfully organised and implemented the gathering and deportation of Jews to the gas chambers of Auschwitz. You have come to a city that is proud of its jewel, the blue Danube, whose water was once painted red by the blood of tens of thousands of Jews shot dead on its banks.

You have come to a city where despite decades of anti-Semitic propaganda, despite official prohibitions, there were still hundreds and thousands that risked their lives standing up for, hiding and saving the lives of Jews.

You have come to a country where the majority of Jewish people – despite the massacres – remained patriotic to the land.

You have come to a country in which Moscow-based concoctors of leftist anti-Semitic pogroms could not achieve anything because the otherwise loyal Communist leaders of the country were not willing to identify with and fulfil the mad plans and commands of red tsars that followed the footsteps of Hitler.

You have come to a country where after the fall of Communism, the largest Jewish community of Central Europe revived Jewish religious and cultural life with unparalleled enthusiasm; the education system they brought to life may be an example to all.

You have come to a country whose proud Jewish residents can freely express their love of Israel and may freely proclaim not to ever forget Jerusalem, the spiritual capital of the united Jewish people.

You have come to a country which – perhaps the first one in the world after Israel – adopted a bill to commemorate the victims of the holocaust and – in line with the measures of the first Orban-cabinet – does a tremendous lot to keep the memory of the holocaust alive, to make the history of the holocaust part of school education.

You have come to a country whose Jewish community is again under threat by horrific ideologies and acts, which are the remnants of the Middle Ages and the holocaust, where an elderly Chief Rabbi is attacked in the street, where Fascists are hailed, where the courts set murderers as role models for the young as squares, and streets are being named after keen anti-Semites, as the works of court poets of Hungarian Nazis are included in the national curriculum and thus polluting the souls of our students.

You have come to a country whose government is in support of the security of the state of Israel and is ready to stand up for the inalienable religious rights of Jews and would never consider placing animal rights before the religious rights of Jews.

You have come to a country, where Jews could live in peace and enjoy the support of the majority of Hungarian society if the holler of the vindictive minority did not suppress their sober and friendly voices.

Two decades ago, the director of MAZSIHISZ, Mr Zoltai, and I used to think that not only did Hungarian Jews have a great past, they also have a great future ahead of them. What has happened in this country in the past decades has proved that we were not wrong. We are still convinced today that not only is the present of Hungarian Jews great, but so is their future despite the raving of the anti-Semite rabble.

Thank you for coming and being here with us. We are proud to have been found worthy of holding the congress here, to be together, and for you to express your solidarity with the Hungarian Jewry.

I believe that the Jews of the world must unite their forces. This day also shows us that we are not alone, we are all listening to each other no matter where we may be living across the globe. The task we have is no little one to handle.

Hungary and Europe are on the wrong track.
As the Prince of Denmark, Hamlet put it:
“The time is out of joint: O cursed spite,
That ever I was born to set it right!”

Yes, ladies and gentlemen, time is out of joint and only together can we set it right; it is as if we the sounds and voices of the sinister ’30s were back again. All of us here tonight, Jews and non-Jews can only succeed in preventing the dark era of anti-Semitism from retuning to Hungary, Europe and the entire world and in ensuring that not a single Jewish person is ever in fear of terror if we unite our forces.

Thank you for your attention, I wish you all a pleasant evening.

* * *

Ronald S. Lauder

Prime Minister Orban,  President of Mazsihisz, my friend Péter Feldmájer,  Cardinal Erdő,  Rabbis, Ministers and Members of Parliament, Distinguished Ambassadors, Representatives of our Jewish Communities from all around the world, ladies and gentlemen, Dear friends:

First of all, I want to thank Péter Feldmájer and the wonderful Jewish community here in Hungary.

The fact that we are here tonight – representatives of Jewish communities from 100 countries around the world – is a tribute to the strength, resilience and vitality of Hungarian Jewry and to your leadership, Péter. Thank you.

Prime Minister Orbán and Cardinal Erdő, we thank you for being with us. Your presence here tonight is also fitting because Budapest’s history is tied to Jewish history.

Less than one hundred years ago, a quarter of this great city’s population was Jewish. Hungary’s Jews contributed to the country’s economy, its culture, and its universities as well as its extraordinary tradition of mathematics and science.

Albert Einstein happens to be one of the few top physicists in the last century who was not born in Hungary but figures such as Szilard, Teller and Johnny von Neuman were just some of the brilliant Jewish minds that all came from Hungary and left a huge impact on the world.

Joseph Pulitzer, one of America’s greatest newspaper publishers and the founder of the most coveted prize in journalism that still bears his name today came from Hungary. And of course, Theodore Herzl, who founded the modern Zionist movement that led to the creation of Israel is from here as well.

My own mother’s parents were born here. The Lauder family dates back to the 13th Century and there was a special Jewish community there at that time, so you see my connection to Hungary is both deep and personal.

But sadly, all of the famous Jews I mention – and there are many more – noble laureates, artists and scholars – all left Hungary because they were forced to leave.

The rise of anti-Semitic parties in the 1920s and the 1930s led to the darkest chapter of all – the deportation and gassing of more than 400,000 Jewish men, women and children.  A staggering one-third of the 1.1 million Jews murdered at Auschwitz were Hungarian.

It is so clear that if these dark forces of anti-Semitism had not been allowed to rise in the 20th Century – all of Hungary would have prospered.

This always strikes me as so obvious – when Jews are allowed to live their lives freely and practice their religion, countries always flourish. It is obvious. But all too often, the irrational hatred that is Anti-Semitism defeats common sense.

After 1920, the government of Admiral Miklós Horthy – a vicious anti-Semite – moved Hungary towards this irrational hatred. His government passed successive anti-Jewish laws and aligned itself closely at that time with the Nazis in Germany.  And in 1938, the Horthy regime enacted its version of the infamous Nuremberg Laws.

The first deportations of Jews from Hungary to concentration camps occurred in 1941, during the time of Admiral Horthy.

I am recalling these facts now not because we are not familiar with them, but because today we are seeing, once again, growing ignorance, growing intolerance, growing hatred.

Once again we see the outrage of anti-Semitism.

This is by no means only in Hungary, but also in other places in Europe – in Greece, where I was a few weeks ago, in Ukraine and elsewhere.  We see that Jews and other minorities are singled out, vilified, demonized.

We see that more and more people openly deny the Holocaust, which happens to be one of the most well documented tragedies in history.

We see that a growing number of people actually believe the old canard that Jews control world finance, or the media, or everything.

And we see that Jews again are being blamed for economic troubles.

Today, there are members of the Hungarian Parliament who want the government to draw up “Lists of Jews” who hold public office. That sends out warning signals around the world.

In the press and on television, anti-Semitism and incitement against the Roma minority are becoming commonplace, and sometimes even accepted. We were shocked to learn that an anti-Semitic TV presenter was awarded a prize.

Thankfully the Government withdrew this prize.  But the fact that it was awarded in the first place is the kind of thing that has us worried.

And there is this journalist, Zsolt Bayer, who recently called Gypsies “cowardly, repulsive, noxious animals.”  He said they were “unfit to live among people” and called for “dealing with them immediately.”

Such words are reminiscent of the darkest era in European history.  Let us never forget the Roma were also victims of the Nazi Holocaust.

Today, Jews are again wondering whether they will have to leave the country, for similar reasons.

Because they wonder why anti-Semites like Miklós Horthy are being glorified, and why statues honoring them are unveiled by Hungarian officials. Horthy was equivalent to Hitler and seeing statues of him going up sends the wrong signal.

Perhaps because they wonder if Jews have a future in Hungary?

Whatever the reason, their concerns must be taken seriously.

When Hungarian Jews are attacked by fanatics, they should be able to count on the unequivocal support of their government and of their authorities. It is the authorities that must stop this before it even begins.

Mr. Prime Minister, I know that the Hungarian people love freedom.  They are courageous.

In 1956, Hungary was the first country to rise up against the Soviet oppressors.

Hungary was the first country in 1989 that set off the chain reaction, which opened the Iron Curtain and brought down the Berlin Wall. For this the world thanks the Hungarian community.

Mr. Prime Minister, you were part of this. You did many things positive at that time.

The fall of Communism paved the way for a rebirth not just of a new Hungary but also for the revival of Jewish life here in Hungary and frankly no one frankly after the Shoah could ever imagine that. I remember when I opened my summer camp here we had 400 children from all over Europe attend a ceremony and the translator as I was speaking started to cry. I turned to him and asked “why are you crying?” He said “old man, I never thought I would see Jewish children again in Hungary.”

I decided to support that Jewish renaissance as much as I could. In 1990, I established the Lauder Javne School in Budapest.  It is now welcoming 600 Jewish students a year and enriching their lives with Jewish values.

I am very proud of all the things we have accomplished, and tomorrow we shall all have a chance to see more of the children when we have dinner at the school.

I have also had the honor to rebuild many synagogues here – showing my strong commitment to Hungary’s history and it’s great heritage.  Let there be no doubt: I still believe in the future of this country. And so do many others.

Prime Minister Orbán, I thank you for your presence here tonight.

It is no secret that Hungary’s international reputation has suffered in recent years.

But Hungary’s good name was not smeared by the foreign press, but by extremists.

Mr. Prime Minister, we are especially concerned about one particular party.  I am talking about Jobbik, a party that won almost 17 percent of the vote in the 2010 elections.  Through its anti-Semitism, its hostility to the Roma, and its paranoid rantings at the outside world, Jobbik is dragging the good name of Hungary through the mud.

That same party held a demonstration just yesterday against our gathering here in Budapest. Granted there were only a few people but it was symbolic because they were told they should not protest.

Hungarian Jews, Mr. Prime Minister, need you to take a firm and decisive lead. They need you to take on these dark forces. They need you to be pro-active.  They need your leadership in this fight.

They need you to send the message to the entire population that intolerance will not be tolerated.

As President of the World Jewish Congress, I ask you to do precisely that and thus to demonstrate and talk about this great country’s finest traditions.

It is time for leadership and strong actions.  We truly hope that you will be successful.

Fascism and intolerance always single out the Jews first.  But they are never the last victims.  All good people suffer.  Countries suffer.  In the end, this hatred and intolerance only destroys a nation’s hopes, its progress and its future.

Mr. Prime Minister this hall is full of hope.  We welcome you here to our gathering as you and the majority of your compatriots have welcomed us to your country.

We thank you for being with us in your stunningly beautiful capital city.

Thank you very much.

 * * *

It seems that Viktor Orbán’s speech didn’t meet the expectations of the World Jewish Congress.

The World Jewish Congress appreciates Prime Minister Viktor Orbán’s decision to address the international Jewish community by speaking here tonight. We welcome that the Prime Minister made it clear that anti-Semitism is unacceptable and intolerable.

However, the Prime Minister did not confront the true nature of the problem: the threat posed by the anti-Semites in general and by the extreme-right Jobbik party in particular. We regret that Mr. Orbán did not address any recent anti-Semitic or racist incidents in the country, nor did he provide sufficient reassurance that a clear line has been drawn between his government and the far-right fringe.

As the Jewish people have learnt throughout history: Actions speak louder than words, no matter how well intended they are. The WJC will continue to urge all democratic forces in Hungary and elsewhere to combat with great determination rising extremism, anti-Semitism and hatred. We will continue to evaluate the situation in this regard.

The  prime minister’s speech is available on YouTube in Hungarian:

I may add that Ferenc Gyurcsány, who was present at the plenary assembly, left before Viktor Orbán delivered his address. In a Facebook comment he said that he had no intention of listening to the Hungarian prime minister’s lies.

Testimony of H. David Baer, Texan Lutheran University, for the Record

Testimony Concerning the Condition of Religious Freedom in Hungary, submitted to the U.S. Commission on Security and Cooperation in Europe (the Helsinki Commission) by H. David Baer, Texas Lutheran University, March 18, 2013

Changes in Hungary’s religion law, 2011-2013

 

In July 2011, Hungary’s Parliament passed Act C of 2011 “on the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities.”  Act C of 2011 was a cardinal law, requiring a 2/3 parliamentary vote to be passed or amended.  However, the law was passed through a highly irregular parliamentary procedure inappropriate for legislation on such a fundamental matter as religious freedom.  An initial bill was brought to the floor by a representative of the Christian Democratic People’s Party (KDNP), a coalition party in the ruling government, but two hours before the final vote, a member of Fidesz, János Lázár, proposed an amendment from the floor that changed the bill in its entirety.  Lázár’s surprise version of the bill was debated on the floor for two hours and passed by Parliament.

On December 19, 2011, the Constitutional Court struck down Act C on the basis of a narrow objection to the irregular procedure by which the law was passed.  Three days later, on December 22, a new religion bill essentially identical to Act C was submitted to Parliament’s Committee on Constitutional, Legislative and Judicial Matters (Alkotmányügyi, igazságügyi és ügyrendi bizottság).  The Constitutional Committee discussed the bill from 9:09 to 9:53 a.m. and then forwarded it to Parliament, where debate was taken up and closed the very same day.  Although representatives in Parliament had less than 24 hours to consider the contents of the bill and propose amendments, it was passed as Act CCVI of 2011 and went into effect January 1, 2012.

Act CCVI of 2011 introduced an elaborate registration procedure for legal recognition of churches.  The Act stipulates that religious groups seeking legal recognition must conform to numerous criteria, almost all of which are problematic.  Some criteria presuppose a substantive definition of religion that is biased toward Christianity.  For example, groups seeking legal recognition need to have “a confession of faith and rites containing the essence of its teaching.”  Although this criterion may be appropriate for what are called “orthodox” religions, that is, religions like Christianity which emphasize confessional and official teaching, it is hardly appropriate for what are called “orthoprax” religions, that is, religions like Judaism and Buddhism which emphasize religious practices but do not produce authoritative confessions. Other criteria are excessively burdensome.  For example, groups seeking legal recognition need to have been “operating internationally for at least 100 years or in an organised manner as an association in Hungary for at least 20 years.”  Some criteria are sweepingly vague.  For example, the activities of a religious group seeking registration cannot be contrary to the Hungarian constitution – a constitution, one might add, that has already been substantially amended four times in a single year.

According to the Act, legal recognition to churches is granted only by a 2/3 vote of Parliament.  However, even in cases where a religious group meets all of the criteria enumerated in the law, Parliament is not required to grant that religious group legal recognition.  Tamás Lukács, chair of the parliamentary Committee on Human Rights, Minority, Civic and Religious Affairs (Emberi jogi, kisebbségi és vallásügyi bizottság), has stated repeatedly that religious groups do not have a right to be legally recognized as a church or religious community, but that legal recognition is a matter of political discretion.  In Lukács’s view the state is free to refuse recognition to religious groups even in cases where they meet all the criteria enunciated in law.  Importantly, the Committee on Human Rights which Lukács chairs has been responsible for determining whether applications by religious groups for legal recognition are forwarded to Parliament.  Thus Lukács’s views on these matters are of consequence.

When Act CCVI of 2011 was first passed, Parliament recognized only 14 churches/religious communities, all of which were either Christian or Jewish.  In February 2012, perhaps in response to international pressure, Parliament recognized an additional 13 groups, including Muslims, Buddhists, and smaller Christian groups, thereby raising the number of recognized churches to 27. (Numerous reports have listed the number of accepted churches as 32.  However, Act CCVI of 2011 and its “annex” list a total of 27 churches.  Five Buddhist communities merged and were recognized collectively as one church in the law.  If one incorrectly adds those five Buddhist groups separately to the list of 27 accepted churches, one gets 32).  Act CCVI of 2011 also stripped all religious groups not recognized by Parliament of legal standing, forcing them to apply for recognition as civil associations.

Criticisms of Hungary’s religion law

In March 2012, the European Commission for Democracy Through Law (Venice Commission) issued an opinion on Act CCVI of 2011.  Although the Commission raised questions about many aspects of the law, its most severe criticism was directed against the procedure by which Parliament determined legal recognition.  According to the Venice Commission:

the recognition or de-recognition of a religious community (organization) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations.  Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act. . . .Motives of the decisions of the Hungarian Parliament are not public and not grounded.  The recognition is taken by a Parliamentary Committee in the form of a law (in case of a positive decision) or a resolution (in case of a negative decision).  This cannot be viewed as complying with the standards of due process of law. (Opinion 664/2012 par. 76-77).

In fact, as Tamás Lukács pointed out in the Hungarian media, since church recognition is a matter of political discretion, members of Parliament are not even required to offer reasons related to the criteria enumerated in the law for refusing recognition to a religious group.

That members of Parliament do not feel constrained by the criteria set forth in Act CCVI of 2011 was made clear in a meeting of the Committee on Human Rights, Minority, Civic and Religious Affairs held on November 27, 2012.  The Committee considered and rejected an application for recognition by a Christian group named Lectorium Rosicrucianum.  The publicly available minutes from this meeting indicate clearly that members of the Committee did not make their evaluations on the basis of the criteria enunciated in Act CCVI of 2011.  Mária Wittner, a member of Fidesz, reasoned against legal recognition on the following grounds:

There was a time when we were considered pagans; yet we weren’t pagans – we believed in one God. Then came the Reformation, the Reformed Church, then the Lutheran, and churches have multiplied, even though there is only one God. Well, even though I don’t believe that this association will be able to attract many members in Hungary, I still believe that sects should not be considered churches. I don’t know for what purpose or whether it is to reach worldwide hegemony, but I see that the tendency today, even in religion, is to divide and conquer! We have Christianity here, we have a Catholic Church, which is more than two thousand years old and has existed in Hungary for a thousand years, and we have a reformed Church as a result of the Reformation, but what I was most struck by is that 187 churches have been registered in this country since 1990. Gentlemen! There is only one God! One God! (EMB/147-1/2012, page 11).

The inappropriate character of this reasoning will be apparent to everyone.  The point to emphasize, however, is that Act CCVI of 2011 allowed reasoning of this sort to be the basis for determining whether or not a religious group received legal recognition.

The troubling features of Act CCVI of 2011 led Hungary’s ombudsman to file a petition with the Constitutional Court, and numerous deregistered religious groups also filed petitions.  On February 26, 2013, in a substantial and carefully reasoned decision, Hungary’s Constitutional Court struck down as unconstitutional numerous provisions within Act CCVI of 2011.  Article 7 of Hungary’s new constitution guarantees religious freedom.  Article 15 guarantees equality under the law.  Articles 24 and 29 guarantee each citizen the rights of due process and legal redress.  Thus a religious association of Hungarian citizens has an equal right to apply for recognition as a church by means of a procedure that follows due process and ensures the right of legal redress.  The provisions for recognition set forth in Act CCVI of 2011 failed to do this.  Thus the Court struck down those parts of the Act in which Parliament had determined legal recognition of religious groups.

Fidesz’s response to this, as to other decisions of the high court, has been to amend the constitution.  The controversial fourth amendment, passed on March 11, grants Parliament the authority to determine which religious groups are recognized as churches by changing the text of article 7 on religious freedom.  The provision of Act CCVI of 2011 most severely criticized by the Venice Commission has now been written into the Hungarian constitution.  Reconciling Parliament’s power to bestow legal recognition with the rights of due process and legal redress will be a challenge.  Furthermore, article 7 allows Parliament to decide not only the content of the law concerning religious freedom, but also its application in individual cases.  Such a provision would appear in tension with the separation of powers principle enshrined in article C of Hungary’s constitution.

Impact of Hungary’s religion law on unrecognized religious groups

In addition to undermining principles of constitutionalism, Act CCVI of 2011 has had a significant impact on religious groups not legally recognized by Parliament.  As a consequence of the Act numerous religious communities that had been legally recognized as churches prior to 2011 were stripped of their status.  Indeed, Act CCVI of 2011 completely replaced the legal regime that had governed religious freedom in Hungary since 1990.  Thus far not much attention has been directed toward assessing the impact of deregistration on those groups.  The Venice Commission opinion focused on the registration procedure itself, as did the ruling of the Constitution Court.  But in the meantime deregistered religious communities have been forced to adapt to a new legal context in which they are denied what most Americans would consider basic aspects of the right of religious freedom.

Over the past six months I have been working to assess the impact of Act CCVI of 2011 on Hungary’s unrecognized religious communities.  Using public records and resources available on the internet, I have attempted to compile a comprehensive list of Hungary’s unrecognized religious communities.  I also visited Hungary in summer 2012 and interviewed numerous representatives of deregistered churches.  Additionally, I recently completed a survey of deregistered religious communities that seeks to measure objective indicators of religious discrimination.

Estimates concerning the number of deregistered churches vary.  The Hungarian government claims there were well over 300 registered churches in Hungary prior to 2011, but has never explained how it arrived at this estimate.  I have been able to identify 122 deregistered churches thus far, some of which ceased operating on their own prior to 2011.  I believe this list to be accurate and close to complete.  I estimate that somewhere between 160 and 180 independent churches/religious communities were operating in Hungary prior to passage of Act CCVI of 2011, and that the Act deprived approximately 130 religious communities of legal recognition.  I have been able to establish contact with 106 unrecognized religious groups, whom I invited to participate in my discrimination survey.  Forty-nine groups responded to my inquiry and 43 agreed to participate, which translates to a participation rate of 40%.   I closed the survey only two weeks ago and have not yet run a complete statistical analysis of the data.  I wish to emphasize, therefore, that the statistical information provided below is provisional.

Initial analysis suggests that while almost all religious groups report some level of discrimination, the amount of discrimination varies significantly, with a little over half of the participants reporting what I would call significant discrimination.  After Act CCVI was passed, deregistered churches were told they must apply for recognition as civil associations.  Failure to apply for status as a civil association, or failure to meet the deadline for applying as such, would result in total liquidation of the community’s assets, that is, appropriation of the community’s property by the state.  The overwhelming majority of religious groups surveyed indicate that they have been recognized as civil associations.  However, I was able to identify two instances were courts ordered the liquidation of a community and a few additional instances were a final decision has yet to be rendered.  Even so, a surprising number of those surveyed, almost 15%, report that some of their property was liquidated after deregistration.  Others report, again about 15%, that leases they held on rental property were terminated.  Among those surveyed, 16% indicated they were forced to shut down schools as a consequence of being deregistered; 30% indicated they were forced to close down charitable organizations; 40% indicated they were forced to abandon additional ministries (other than education and charity work).

Unlike legally recognized churches, religious groups classified as civil associations do not enjoy complete internal autonomy.  Civil associations must have a specific administrative structure.  For example, they must have a presidency and all members must have the right to vote on decisions made by the association.  In many cases, although not all, these administrative requirements violate the religious conscience of believers.  Among deregistered religious groups participating in my survey, 17% refused to apply for civil association status, and many of them reported in written comments that their refusal to apply was based on reasons of conscience.  These groups now live under the fear of court ordered liquidation.  Among deregistered religious groups that did apply for recognition as a civil association, 36% reported that they had been required to change their organizational structure.  Additionally, a high number of respondents, 30%, reported that their clergy had been prevented from visiting patients in the hospital; 27% reported that they were prevented from visiting persons in prison.  A small but noticeable number of respondents, a little over 10%, reported that they had been forced to change their religious confession, their official teaching, or worship services in order to be recognized as a civil association.  Also, unrecognized religious groups are not permitted to have the word church in their official name.  Among those groups applying for recognition as a civil association, 60% reported that they had been forced to change their name.

Reasons offered for the new law by the Hungarian government

 When Parliament first passed Act CCVI of 2011, the Hungarian government claimed the new law was necessary in order to correct abuses made possible by the previous religion law.  In the Hungarian media, representatives of the government frequently spoke of “business churches,” an imprecise and polemical term.  The claim was that non-religious organizations were registering themselves as churches in order to receive tax exemptions and state subsidies.  However, no impact studies were conducted, so neither the extent of abuse nor the effectiveness of the remedy could be evaluated.  The only evidence of abuse offered by the government was the claim that more than 300 churches were operating in Hungary.  This number, the government believed, was clearly excessive and indirect evidence of the existence of “business churches.”  As already indicated, I believe the 300+ estimate is too high.  I would also add that in the course of my research I have been able to identify only two cases where I suspect organizations registered as churches under pretext.  The most notable of these involves the mayor of Érpatak, a man named Mihály Orosz who is a member of the right-wing political party Jobbik.  Mr. Orosz was affiliated with, or the founder of, at least four different groups registered as churches under the old law.

Even if there were significant abuse under the old law, having Parliament bestow legal recognition on religious groups hardly seems an effective remedy.  In fact, the possibility of remedy existed under the old legal regime, something pointed out by the Constitutional Court in its February 2013 ruling.  According to the Court, under the old law a state prosecutor had a right to request information and investigate a church suspected of illegal activity.  An organization engaged in running a business but seeking registration as a church could thus be prevented from registering, or if already registered, prosecuted for violations of the law.  According to the Constitutional Court, under the old law state prosecutors initiated legal proceedings against registered churches on a number of occasions.

Conclusion

When attempting to interpret the behavior of a political regime whose decision-making process is not transparent, political scientists often attempt to infer intentions from effects.  That is, instead of taking the public pronouncements of the regime at face value, political scientists examine the effects of the regime’s actions to determine its true intentions.  Viktor Orbán’s government is not transparent.  Cardinal laws addressing basic human rights and constitutional amendments addressing the rule of law are introduced in Parliament and approved in a matter of hours.  Even after fundamental laws have been passed, they are amended immediately whenever the Constitutional Court renders a decision not to the government’s liking.  I therefore submit that the best way to understand Viktor Orbán is to look not at what he says, but at what he does.

If we look at what the Orbán government has done in respect to religious freedom, infering intentions from effects, it becomes difficult to believe that the intention behind Act CCVI of 2011 was to eliminate legal abuses occuring under the old law.  First, the Orbán government never made an attempt to assess the extent and nature of the alleged abuse.  Second, legal remedy against abuse was already available.  Third, the negative impacts on religious freedom caused by Act CCVI of 2011 were far greater than any legal abuses the Act putatively sought to correct.  If the aim of the government had been to eliminate abuse, much simpler and less destructive solutions were available.  Addressing the problem of “business churches” certainly did not require modifying the constitution in a way that allows Parliament to bestow legal recognition.

A more plausible explanation for Act CCVI of 2011 is that the Orbán government is seeking to hinder the activities of religious groups it dislikes, perhaps because it views those groups as “sects,” perhaps because the leaders of some of those groups have criticized the government, or perhaps because the membership of many of those groups is Roma.  Whatever the Orbán government says, its actions indicate that it holds the right of religious freedom in low regard.

Ulrike Lunacek, European PM, sues Zsolt Bayer

Does the name Ulrike Lunacek ring a bell? For the faithful readers of Hungarian Spectrum it should.  She is an Austrian member of the European Parliament who at the European Parliament’s Committee of Civil Liberties, Justice and Home Affairs hearings on “The Situation in Hungary” called attention to the fact that in the much glorified Peace March of January 2012 there were a number of antisemitic posters. That prompted Zsolt Bayer to call her all sorts of names on EchoTV, the far-right television station whose owner, Gábor Széles, also owns Magyar Hírlap. The staff of the television station and the newspaper overlap. Zsolt Bayer writes a weekly column in the paper and also has a political show on Friday nights on EchoTV called ” Korrektúra.” The details can be read in a post that appeared here on February 15 entitled “Fidesz style: Ulrike Lunacek versus Zsolt Bayer.” 

Ulrike Lunacek was right. There were antisemitic posters carried by the peace marchers.

Here are a few choice words of Zsolt Bayer. “Then comes a half-witted [The Germans translated it as ‘brain amputeed’] impetiginous lying idiot, Ulrike Lunacek, and I expressed myself delicately … The whole rotten filthy lie from the mouth of a rotten filth bag.” He went on and told the audience his opinion of the European Union in general: “The Union not only has no ethos, it has nothing. The Union has Daniel Cohn-Bendit and Neelie Kroes, and that little green, one cannot even remember her name, yes, Ulrike Lunacek.”

But the world is small and Ulrike Lunacek read about Bayer’s remarks and insisted that EchoTV distance itself from Zsolt Bayer. Naturally, they didn’t. Then she turned to the Media Authority. Again, nothing happened. But, it seems, Ms Lunacek is insistent. She decided to sue Zsolt Bayer. Here is the claim she submitted to the Metropolitan Court (Fővárosi Bíróság).

* * *

 

Metropolitan Court

1055 Budapest,

Markó u. 27.

To the honorable Metropolitan Court,

Ulrike Lunacek (address: European Parliament, Bât. Altiero Spinelli, 08G169; Rue Wiertz 60, 1047 Bruxelles, Belgium) as claimant hereby submits the following

claim

through her appointed, external legal representative against Zsolt Bayer as first defendant (2098 Pilisszentkereszt, Tölgyfa utca 13.) and ECHO HUNGÁRIA TV. Co. (1145 Budapest, Törökőr u. 78.) as second defendant requesting the Court to declare violation of personality rights, to prohibit from further infringement and to claim for damages.

Hereby I apply to the Court to declare violation of the claimant’s personality rights and prohibit the defendants from further infringement based on the detailed justification below, in accordance with Section 75 and 76 of the Civil Code, also considering points a) and b) of Section 84 Paragraph (1).

In accordance with Section 84 Paragraph (1) point e) and Section 339 and 355 of the Civil Code I apply to the Court to oblige the defendants to pay 300000 HUF (1st defendant) and 500 000 HUF (2nd defendant) for the damages, including interests calculated from the 9th of February, 2012.

The justification of our action is the following:

I. Brief summary of the case

In the TV show titled Korrektúra, broadcast on ECHO TV (2nd defendant), the 1st defendant made the below quoted statements, severely violating the claimant’s personality (inherent) rights. The statements were made as reactions to the claimant’s speech at the hearing of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) on the 9th of February, 2012. The recording of the speech was not presented in the program and the interpretation of its content was significantly biased.

„Then comes a brainless, impetiginous, lying idiot, Ulrike Lunacek, (…) and how nicely I expressed myself. (…) The whole thing is a rotten, dirty lie from the mouth of a rotten dirt. ”

After this the presenter and the other persons participating in the program make ambiguous comments questioning the femininity of the claimant and they seem to enjoy their own „wittiness”.

1. Violating inherent rights by declaring infringing ” opinion”: slander and violation of human dignity.

According to our position, the defendants severely violated the personality rights of the plaintiff by making fun of her femininity in a manner that would be unacceptable in a pub as well, not only in a TV show. The verbal abuse was pointless and uncalled for, ignoring the human dignity of the plaintiff. Although the plaintiff, as a member of the European Parliament and as a public figure must endure criticism and critical opinion but she should not be required to tolerate vulgar and abusive statements and remarks that hurt her female dignity.

Points (2) –(3) of Article Q of the Fundamental Law of Hungary states that Hungary shall ensure harmony between international law and Hungarian law in order to fulfill its obligations under international law. Hungary shall accept the generally recognised rules of international law. Points (1)-(2) of Article I of the Fundamental Law acknowledge that the inviolable and inalienable fundamental rights of MAN shall be respected and defended by the State as a primary obligation. Hungary shall recognise the fundamental rights which may be exercised by individuals and communities.

Article II of the Fundamental Law states that human dignity shall be inviolable. Every human being shall have the right to life and human dignity; embryonic and foetal life shall be subject to protection from the moment of conception.

According to Article 10 of the European Convention on Human Rights integrated into the Hungarian legal system in the XXXI. Act of 1993 everyone has the right to freedom of expression. According to the 2nd point, the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society (…) for the protection of the reputation or the rights of others.

According to Point 2 Article 19 of the International Covenant on Civil and Political Rights, integrated into the Hungarian legal system in the Act No. 8 of 1976, everyone has the right to freedom of expression. Point 3 states that the exercise of the rights provided for in paragraph 2 of the article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary for respect of the rights or reputations of others (…).

According to Section 75 Paragraph (1) of the Civil Code, inherent rights shall be respected by everyone. These inherent rights are protected by law. Within the meaning of Section 76, discrimination against private persons on the grounds of gender, race, ancestry, national origin, or religion; injury of body and health, violation of the freedom of conscience, any unlawful restriction of personal freedom, contempt for or insult to the honor, integrity or human dignity of private persons shall be deemed as violations of inherent rights.

According to common judicial practice, criticism that is wantonly offensive or humiliating, or that is wantonly hurtful and humiliating in its phrasing,  can be considered infringing ( BH 1993.89; BH 2002.352; BTD2006.1466).

Without any doubt, the 1st defendant formulated his negative opinion about the plaintiff in a deliberately malignant way, ignoring human dignity. The phrases that he used are obviously unduly humiliating, brutal beyond reason and deliberately degrading.

2. Sanctions

Based on the above elaborated aspects we claim that the defendants violated the inherent rights of the plaintiff, therefore we apply to the honorable Court to impose both objective and subjective sanctions.

We request the honorable Court to:

a)                  establish that infringement has taken place based on Section 75 Paragraph (1), Sections 76 and 78 and Section 85 Paragraph (3), taking into consideration point a) of Section 84 Paragraph (1) of the Civil Code.

b)                 to oblige the defendants to terminate the infringement and prohibit them from further infringement based on Section 75 Paragraph (1), Sections 76 and 78 and Section 85 Paragraph (3), considering point b) of Section 84 Paragraph (1), having regard to the regularity of the articles and programmes.

c)                  to oblige the defendants to pay 300000 HUF (1st defendant) and 500000 (2nd defendant) indemnification for non-pecuniary damages as well as its interests calculated from the 9th of February, 2012, based on Section 75 Paragraph (1), Sections 76 and 78 as well as Section 84 Paragraph (1) point e).

Based on the above explained aspects, our position is that the defendants unambiguously violated the inherent rights of the plaintiff, therefore we think that the necessity of imposing objective sanctions is not questionable and does not require further justification.

As a result of the abusive TV program of the defendants, the plaintiff was sought out by several people, she was questioned about the statements made in the program: she is continuously forced to make explanations. The vituperative nature of the TV program instigating hate against the plaintiff is unambiguous.

As a Member of Parliament, the trustworthiness and credibility of the plaintiff have outstanding significance, therefore the negative effects of discrediting and verbally abusing her in front of the wide public are hard to estimate.

According to our position the amount of the indemnification for non-pecuniary damages claimed by the plaintiff is in accordance with the current judicial practice and cannot be considered exaggerated having regard to the severe infringement that has taken place.

In view of the above we kindly apply to the the honorable Court to accept our request and to award the defendants our litigation costs.

A 1990. évi XCIII. törvény 62.§ (1) f) pontja alapján felperest illetékfeljegyzési jog illeti meg.

A Tisztelt Fővárosi Törvényszék hatáskörét a Pp. 23. § (1) bekezdésének g) pontjára, illetékességét a Pp 30. § (1) és 40. § (3) bekezdéseire alapítjuk.

Budapest, 11th of February, 2013

Sincerely,

on behalf of the plaintiff Ulrike Lunacek

The Hungarian Socialist Party’s critique of the latest amendments to Hungary’s new constitution

On February 8, Antal Rogán and Péter Harrach, leaders of the Fidesz and KDNP factions respectively, submitted the Fourth Amendment to the Basic Law of Hungary (proposal # T/9929). The overwhelming majority of representatives from the governing parties signed the document. The proposal was penned in the name of all majority MPs. The Fourth Amendment will be effective one month after it was passed.

Hungary’s Basic Law was supposed to be carved in stone

This amendment is characterized by, in addition to a few minor corrections in wording intended to improve coherence, the current administration’s desire to further destroy the constitutional limits for the exercise of power.

Through this proposal, in addition to further curbing the powers of the Constitutional Court, the Fidesz-KDNP coalition is now including all elements in the country’s constitution which were, in part, declared unconstitutional by the Constitutional Court or were featured in the Temporary Provisions of the Basic Law of Hungary.

This document summarizes the most important elements of the Fourth Amendment. However, first we must briefly familiarize ourselves with the Constitutional Court’s 45/2012 (XII/ 29) decision regarding the unconstitutionality of certain sections of the Provisions of the Basic Law of Hungary.

At the initiative of the Commissioner of Fundamental Rights, the Constitutional Court opined that a significant portion of the Temporary Provisions was unconstitutional. The Court stated that the Temporary Provisions cannot be accepted as a part or an amendment of the Basic Law with regards to the document’s themes and content. Furthermore, it was decided that the Provisions, considering the time span which they cover, undermined the Basic Law’s uniformity and structure.

The Court struck down the following provisions:

The preamble which condemns MSZP, the Hungarian Socialist Party

Article 1 –  On decreasing the pensions of “guilty persons”

Article 2 – On the inability of communist crimes to expire

Article 3 – On the establishment of the Committee of National Memory and the publication of communist documents

Article 4 – On the duty of communist leaders and public actors to tolerate all opinions formed about their persons

Article 11, paragraphs (3) and (4) – On the ability of the president of the National Judicial Office (Orszagos Birosagi Hivatal – OBH) and the Chief Prosecutor to move cases to other courts as they see fit

Article 12 – On the deadlines for judges’ mandatory retirement

Article 13 – On the deadlines for prosecutors’ mandatory retirement

Article 18 – On a member of the Budgetary Council being the President-appointed chair of that body

Article 21 – On the National Assembly’s ability to regulate and determine recognized churches in a cardinal law and determine recognized nationalities

Article 22 – On the definition of a constitutional complaint

Article 23 paragraphs (1) and (3)-(5) – On setting the date for the election of local government representatives for October 2014 and laying down the preliminary electoral rules

Article 27 – Further restricts the Constitutional Court’s competencies by extending limitations to periods when the national debt threshold is not surpassed.

Article 28 paragraph (3) – The office of the government can turn to the courts if a local government fails to make decisions in areas defined by law. The office of the government is even allowed to make up for the absent resolution.

Article 29 – A special approval is necessary to fulfill the state’s payment obligations arising out of unconstitutional or unlawful legislation.

Article 31 – On making the Temporary Provisions part of the Basic Law

Article 32 – On making April 25 Basic Law Day

While it’s important to note that the Constitutional Court nullified elements of the Temporary Provisions due to form-related constitutional issues, the body quoted several previous decisions, emphasizing that “stepping over the boundaries of legislation results in unconstitutionality” and that “formal unconstitutionalities are, coincidentally, violations of the standards for the rule of law.”

The Constitutional Court indicated that it could alter the interpretation applied in previous exercise of its competencies, namely that it did not subject the contents of the Basic Law to review (because that would result in interfering with the jurisdiction of a constitutionalizing power). However, “procedural, formal, and public law requirements are not the only factors of constitutional legality – there are also content-related criteria. The standards for a democratic state ruled by law include not only values, principles, and rights discussed in international agreements and accepted by the democratic community, but also so-called peremptory norms. In certain cases the Constitutional Court is allowed to examine the uninhibited application of the constitutional guarantees and values of the rule of law.”

It is completely obvious that the formal necessity for the inclusion of the Temporary Provisions in the Fourth Amendment of the Basic Law and the Constitutional Court’s decisions which defied the government’s objectives overrode the symbolic steps accompanying the passage of the Basic Law.

We will now introduce the alterations without political evaluations.

1. The amendment states that the bases for familial relations are marriage and the parent-child relationship.

When reviewing the currently applicable Article L of the Basic Law, the Constitutional Court decided, after examining decision 43/2012. (XII. 20) on articles 7 and 8 of Act CCXI of 2011 concerning the protection of families, that “by considering marriage as a value […] the legislator –  while accepting the right of the individual to pursue happiness within a relationship of their personal preference, keeping in mind social trends and needs and the transformation of a traditional family configuration–does not exclude other chosen forms of relationships, which are similar to marriage, from the protection of the law. The duty to protect institutions cannot hinder the extension of rights in an open and democratic society, otherwise this would not be compatible with the spirit of the Basic Law.” (ABH 2010, 194, 208)

According to the Court, the constitutional protection of families extends to both marriage and socially (emotionally) based relationships. Previously the Constitutional Court decided that Act CCXI of 2011 defines “family” too narrowly. The currently applicable Basic Law contains no indication that partnerships with common goals, mutual care, and long-term economic and emotional commitment do not enjoy the protection of the law. If the legislator wants to create laws which regulate the rights and duties of family, he or she cannot do so at the expense of those who wish to form families based on alternative economic and emotional relationships and cannot diminish the legal status of such relationships. Furthermore, the state’s duty to protect the institutions of family and marriage cannot lead to direct or indirect discrimination of the children due to their parents’ relationship. As such, the Constitutional Court decided that compared to the Basic Law, Act CCXI’s wording was too restrictive and struck down its Article 7. In the justification, the judges cite the practice of the European Court of Human Rights in Strasbourg. In 2010, that body declared that the existence of family is primarily factual: if people live together, they can be considered family despite their legal status and/or gender.

The Constitutional Court also decided that from now on the fundamental laws of inheritance will be guided by the Civil Code. Registered couples are to enjoy the same inheritance privileges as those who are officially married. Act CCXI, on the other hand, conveniently ignores such a specification. The laws governing inheritance have to be precise and clear. Because of this, the Constitutional Court decided that the contradictions contained in the review provisions are too significant for dissolution through executive legal interpretations, and as such, they were sure to violate the notion of legal certainty. The court subsequently threw out Article 8 due to incoherence between the Civil Code and the Basic Law.

The new Civil Code awaits a final National Assembly vote as proposal T/7971. On December 17, 2012, the Fidesz-KDNP coalition accepted a series of legislative amendments which make substantial differences between marriage and cohabitative romantic relationships in terms of family law. Romantic partnerships will be part of the “BOOK OF OBLIGATIONS” (“Kötelmi könyv”) instead of the “BOOK OF FAMILY LAW” (Családjogi könyv). With this, a cohabitative romantic partnership will simply be a contractual relationship. The new Civil Code does not deal with registered cohabitative partnership at all. By the force of law, such a relationship will only carry any sort of legal meaning if the relationship has been in effect for one year and the couple has at least one child together.

The Fourth Amendment to the Basic Law constitutionalizes families as ties based on marriage and the parent-child relationship. Partners cannot form a family even if they have a common child. Their familial relations can only be recognized separately with their own children.

2. The amendment adds Article U, which cements communist crimes not simply in the Preamble but in the very body of the Basic Law.

Basically the complete contents of the Temporary Provisions, which were struck down by the Constitutional Court, have been lifted into the fundamental principles of the Basic Law with minor structural changes. These include, in addition to the list of crimes, the extension of punitive measures, and the stigmatization of criminals, the establishment of the Committee of National Memory (Nemzeti Emlékezet Bizottsága). This body is supposed to uncover the past and publish related documents.

According to the text, the Hungarian Socialist Workers’ Party (MSZMP), its legal predecessors, and other associated political organizations are criminal in nature. Naturally, the Hungarian Socialist Party (MSZP) is also mentioned: “as an heirs to unlawfully accumulated wealth, organizations which emerged as legal successors to the MSZMP during the democratic transition also share the responsibility of their predecessors.”

Paragraph (3) of Article T of the Basic Law states that a legislation cannot contradict the Basic Law. The Basic Law’s Preamble records that the Basic Law is the foundation of legal order in Hungary. Paragraph (1) of Article R reaffirms this with a normative rule and states that the Basic Law is the basis for the country’s legal system. According to paragraph (2) of Article R, the Basic Law and legislations are obligatory for all.

3. This means that any legislation in the Hungarian legal system can order the prosecution of the leading Leftist party due to its shared responsibility for communist crimes. The amendment creates a foundation for the provisions of the cardinal law concerning churches in a manner which utilizes parts of the discarded text of the Temporary Provisions.

The National Assembly continues to have the exclusive ability to recognize churches who will enjoy the ability to cooperate with the state. Recognition is dependent on conditions, but, according to the proposal, membership and historic traditions are not among these.

Constitutional Court decision 161/2011. (XII. 20.) destroyed the first church law due to its incompatibility with public law. The governing coalition then proceeded to record the very same concepts in the §21 of the Temporary Provisions. This was also voided by the Court. Consequently, the constitutional foundations of the effective church law became questionable. The Venice Commission found fault with the notion that the only body which can recognize organizations as churches is the National Assembly. With this configuration, there is no chance for legal remedy in case of an unfavorable parliamentary decision. The mechanisms used for determining recognition were also denounced.

To prevent further critiques, the governing parties recorded the cardinal structure for church laws in the Basic Law itself.

The Constitutional Court has already dealt with the complaints of the unfavored religious communities twice. A decision in the matter can be expected on February 11. Even if the Court will opine that the fundamental provisions of the church law are contrary to the Basic Law, the amendment would render this situation hopeless for smaller religious groups.

4. Media campaigns in public service media are included in the amendment using the wording featured in an unconstitutional (passed but not enacted) electoral legislation, while a cardinal law may limit electoral campaign in commercial media.

The amendment is an obvious response to the Constitutional Court’s 1/2013. (I. 7.) decision. This document declared the unconstitutionality of the electoral law accepted in the National Assembly on November 26, 2012. The Court found several faults with the legislation. Its resolution outlaws the controversial notion of preliminary voter registration. The justices called attention to the fact that the state exists to protect institutions, and as such it cannot plant unconstitutional hurdles in front of citizens to restrict their right to vote. Registries currently available to the state were deemed sufficient for the unhindered execution of the electoral process by both the Constitutional Court and the electoral law.

The Constitutional Court decided to abolish a ban on publishing or broadcasting political advertisements from electoral campaigns in media. The Court considered this ban a serious breach of the right to a political opinion during the course of an electoral campaign and considered it a grossly disproportionate measure. The 48 hour pre-election moratorium on political ads and a ban on political ads in movie theaters was also disfavored by the justices.

In response, the amendment implemented these changes on the constitutional level.

5. The amendment limits the right to free speech, as it does not allow free speech to violate the dignity of others.

It creates a basis for the new anti-hate speech rule in the Civil Code – which would have been unconstitutional. “The right to free speech cannot be utilized to demean the Hungarian nation and national, ethnic, racial, or religious groups. Members of such communities are entitled, as prescribed by law, to take their case to courts due to undignifying speech against the community.”

The Hungarian legislative owed a law on hate speech to the people. The left was unable to gain sufficient parliamentary support for its initiatives in the area.

At the same time, this document limits freedom of speech so severely that it is able to completely negate that right. In a state ruled by law, the only acceptable form of restriction targets communications which, in terms of consequences, pose a clear and direct threat to a social group. On the other hand, similarly to German dogmatics, the offended group has to be defined by a prominent feature of human personality and its size has to be sufficiently small. For this reason, war propaganda, hate-mongering against ethnic, racial, or religious groups, and declarations relating to the inferiority of any one group which contain discrimination, hostility, calls to or support for violence must be banned.

6. The financial independence of institutions of higher educations will be abolished. The amendment creates the foundations for obligating graduates to stay in the country.

According to regulations, the economic management of institutions of higher education are determined by the government through law. Management is then supervised by the executive. The law can mandate students to work domestically in certain fields for a predetermined amount of time.

In decision 32/2012. (VII. 4.), the Constitutional Court discontinued the practice of higher education contracts. The Court stated that the unconstitutionality lied in the fact that the executive was unable to regulate mandatory domestic employment for students at universities.

The day after the decision was made, the governing parties amended the law on higher education. Because the amendments were followed by wide-scale protests and civil disobedience among high school and university students, the government reacted by including the restriction in the Basic Law.

The amendment completely abolished the economic autonomy of institutions of higher learning. The state’s attitude towards higher learning focuses not on encouragement but punishment.

7. Local governments “strive” to provide the homeless with shelter. At the same time, the amendment allows for the lawful removal of the homeless from public spaces via policing tools. Local governments will be able to declare living in public spaces unlawful.

The events leading up to decision 38/2012. (XI. 14.) concerning the sanctioning of the homeless are the following.

Máté Kocsis (Fidesz), chair of the National Assembly’s Committee on Police and National Security and the mayor of Budapest’s District VIII initiated measures to combat homelessness with misdemeanor statues along with several other Fidesz representatives. According to their legislative proposal (also supported by Jobbik members), the “ban on living in public areas as a lifestyle” took effect on December 1, 2011. Its text states that “146/A § (1) Those who repeatedly violate the ban on living in public areas or who store their belongings in a manner suitable for such a lifestyle can be incarcerated or fined up to HUF 150,000. (2) The misdemeanor identified in paragraph (1) can only be considered as repeatedly occurring if the accused person has a conviction in a similar case in the last 6 month period. (3) The misdemeanor recorded in paragraph (1) belongs to the jurisdiction of the courts. (4) The sanctions determined in paragraph (1) cannot be applied if the city’s local governance does not implement care for the homeless.”

This was also recorded in a new misdemeanor legislation which took effect on April 15, 2012. The Constitutional Court’s decision destroyed this provision.

The Constitutional Court’s notable findings in the case:

The cause and the intended subject of legal protection by the legislator cannot be precisely identified in the debated notion of this misdemeanor.

• With this action, the legislator deemed living on the street – being homeless – illegal. For the homeless, their situation is a grave crisis which occurred due to several factors which are very rarely intentional. The homeless have lost their homes and have no opportunity to solve their habitation problems. As such, due to a lack of a real alternative, they must live in public areas.
•  The social law does not interpret living on the street as unlawful behavior. It records aiding those living in public areas as an issue which must be handled by local governments.
• The cause for the matter to be classified as a misdemeanor cannot be identified. On its own, the fact that someone lives in a public space does not violate the rights of others, cause damages, does not make using the public space dangerous, or does not endanger public order.
• According to the stance of the Constitutional Court, neither the removal of the homeless from public areas, nor the encouragement to make use of social services can be considered enough of a cause to declare homelessness as a misdemeanor.

The issue’s status as a misdemeanor does not clarify norms.

• With regards to the fact that the provision aims to punish not a behavior ( an act or a failure to act) but an objectively existing life situation in connection which guilt is not interpretable, it basically creates an objective responsibility which is separate from the subject.
• The inner area of public spaces is clearly defined, and it allows for the authorities’ arbitrary use of of legal interpretation.
• When a homeless person’s responsibility is waived is indeterminable, as this hinges on whether the local governance took the necessary steps.

8. The electoral rules and rights and the governments of nationalities are regulated by the Fourth Amendment in a manner based on the voided passages of the Temporary Provisions.

9. The amendment allows for the legal basis of the policing and disciplinary competencies of the Speaker of Parliament. It provides room for the Guard of the National Assembly in the Basic Law.

The law on the National Assembly provides the Speaker with considerable disciplinary and policing powers. When debating this issue and after the law actually took effect, it had to be pointed out that these measures significantly limit freedom of speech for the representatives of the National Assembly. At the same time, this is a highly ineffective tool and is not utilized against hate speech in Parliament.

The Speaker can exercise these new competencies through a parliamentary guard. This initiative is not directed at securing the National Assembly. It seems as if this is more a tool to silence political opposition. MSZP was forced to act against Speaker László Kövér’s biased behavior several times.

The constitutionally mandated creation of the Guard means that an organization with policing capabilities was created which owes no responsibility to the National Assembly.

10. The amendment alters the powers of the President of the Republic. The cause of this is the severe limitation of the Constitutional Court’s powers.

The President is only allowed to refer a Basic Law amendment to the Constitutional Court due to violations of procedural rules. The Basic Law’s contents cannot be revised by the Court. This provision is related to the restrictive changes made to the Constitutional Court’s powers.

11. Changes in the role of the Constitutional Court

The Fidesz-KDNP coalition’s alteration of the body’s function is not accidental. The Constitutional Court is the only checks and balances mechanism which can inhibit its legislative ambitions. When the Court struck down on several of the Temporary Provisions, it became obvious that in certain cases it can alter the contents of Basic Law amendments. As such, it was no longer only a body which could intervene when formal or procedural violations occurred. A scenario in which it could exercise these powers could occur if the Basic Law would be amended in a manner which contradicts its own contents. In addition to the above mentioned arguments, Istvan Stumpf’s following statement also refers to this concept.

Stumpf: “As long as a norm altering the Basic Law – through interpretation – can become part of the Basic Law, the Constitutional Court cannot subject the contents its order for inclusion to a constitutional review. If such a tension cannot be resolved within the system provided by the Basic Law, the Constitutional Court must declare its unconstitutionality.

My perspective is that this could occur especially when the inclusion of a provision which was previously deemed unconstitutional by the Constitutional Court would cause unresolvable tension within the Basic Law’s system. In these cases, the Constitutional Court already determined that the given provisions signify  violation of the Basic Law. Inclusion of these in the Basic Law could only satisfy the formal criteria for inclusion, but they would be unable to become integrated, coherent elements of the Basic Law. The unresolvable tension would not mandate a new examination into such a matter, because the Constitutional Court already subjected that to a constitutional review. In this regard the norm to be included was already declared to be unconstitutional by the Constitutional Court and thus unchangeably contradicts the Basic Law.”

The implicit substantive requirements for the order for inclusion were not yet enforced by the Constitutional Court. The resolution, though it refers to the above mentioned items, does not subject those to constitutional review, because determining partial public law invalidity made this unnecessary. In this vein, our parallel analysis continues on the path of the Constitutional Court, but it also points beyond the Court’s findings, highlighting the possible courses of future events.

The following can be considered as troublesome limitations:

• It creates a deadline for the Constitutional Court for judicial reviews initiated by judges.
• The Court cannot examine or destroy legislation which is not in close connection with the provision mentioned in the referral (one of the failures of the electoral law was that the Constitutional Court extended one of its powers according to prior practice)
• The Constitutional Court can only review the Basic Law and its amendments in terms of formative and enactment-related procedural respects defined in the Basic Law. Preliminary review can be requested by the President of the Republic, while post-enactment review can be requested, in addition to current initiators, by the Chief Justice of the Kuria and the Chief Prosecutor.
• As prescribed by a cardinal law, the Constitutional Court can hold hearings for the person responsible for drafting the legislation and the legislation’s initiator or their agent. It can also attain their opinions if the matter affects a large number of people. This part of the procedure is public.

The amendment takes the destroyed limitations the Temporary Provisions placed on the Constitutional Court and places them into the Basic Law. According to this, as long as the national debt exceeds half of the gross domestic product, the Constitutional Court can only review laws (normally within its jurisdiction) on matters of the central budget, the state spending, central forms of taxation, benefits and aids, duties, and the central conditions for local taxation in terms of their Basic Law compatibility in connection with the right to life and human dignity, the freedom of religion, and rights  in connection with Hungarian citizenship. It can only void laws in these cases as well. According to the rule introduced by the amendment, this limitation on the Constitutional Court will remain in place for laws passed during this period even after the conditions existing under the current level of national debt are no longer present. In short, laws passed by the Fidesz-KDNP coalition can never be reviewed.

Constitutional Court decisions made before the acceptance of the Basic Law cannot be considered by the Court during the interpretation of the Basic Law.

This does not simply mean that the Court cannot rely on its previous findings. This can contain a notion that the body can distance itself from its previous decisions, e.g. the constitutional requirements for the rule of law. As an example, we can mention that the Court defined legal certainty as a necessary element of the rule of law. An imminent part of this is that prior to a law’s taking effect, a right cannot be revoked, a duty cannot be retroactively assigned, or it cannot make a previously mandated duty more severe. In this new interpretation, it is possible – in accordance with the governing parties’ previous practices – that retroactive legislation could be utilized in certain instances.

12.  The OBH chair’s election, which was regulated by a law previously, will now be included in the Basic Law.

13. The amendment records the OBH chair’s an the Chief Prosecutor’s right to assign cases to courts with other jurisdictions.

This is an element which plainly violates the right to a lawful judge. It was heavily criticized by the Venice Commission. The Constitutional Court previously eliminated these passages from the Temporary Provisions. The National Assembly altered the text of this document by stating that a cardinal law will determine the types of cases for which this right will apply; all in order to ensure the right to an expedient trial and to ease the case load for courts.

14. As long as the national debt is over half of the gross domestic product, if the Constitutional Court, the Court of the European Union, or other judicial or executive organization subjects the state to a payment obligation for which the funds in the central budget are insufficient, a contribution MUST be determined in a manner exclusively aimed at financing the common necessities of such an expense in name and content.

It is a distinct possibility in several instances, that Hungary will incur penalties or reimbursement obligations due to the decisions of the European Court. As for the Constitutional Court’s recent decisions in this field, we can highlight the unconstitutionality of the forced retirement of judges. According to the legislative proposal submitted by the government (the general debate of which is still ongoing in the Parliament), the retired judges are entitled to 12 months compensation if they do not request the restoration of their legal statuses. There are definitely no sums allocated for this in the budget. The source of funding for this then becomes questionable. It is entirely possible that this will be the first instance when they burden the population with the financial costs of enacting unconstitutional and illegal legislations.

The final provisions of the fourth Amendment adopt expired or already executed provisions without criticism. With its unacceptable legislative solutions, the Fidesz-KDNP coalition is already damaging the symbolic significance it established and nurtured by passing the Basic Law.