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Situation in Hungary following the adoption of Assembly Resolution 1941 (2013)

Resolution 2064 (2015)

Author(s):
Parliamentary Assembly
Origin
Assembly debate on 24 June 2015 (24th Sitting) (see Doc. 13806, report of the Committee on Political Affairs and Democracy, rapporteur: Mr Robert Walter; Doc. 13831, opinion of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Arcadio Díaz Tejera; and Doc. 13832, opinion of the Committee on Culture, Science, Education and Media, rapporteur: Mr Gvozden Srećko Flego). Text adopted by the Assembly on 24 June 2015 (24th Sitting).
1. In June 2013, the Parliamentary Assembly adopted Resolution 1941 (2013) on a request for the opening of a monitoring procedure in respect of Hungary. Expressing its concern “about the erosion of democratic checks and balances as a result of the new constitutional framework in Hungary”, the Assembly pointed out that “[t]he assessments of the constitution and several cardinal laws by the Venice Commission and Council of Europe experts raise a number of questions with regard to the compatibility of certain provisions with European norms and standards, including with the case law of the European Court of Human Rights”. More specifically, the Assembly:
1.1 called on the Hungarian authorities to continue the open and constructive dialogue with the European Commission for Democracy through Law (Venice Commission) and all other European institutions and to take a specific set of measures with regard to the Act on Freedom of Religion and the Status of Churches, the Act on Elections of Members of the Parliament, the Act on the Constitutional Court, the Acts on the Judiciary and media legislation;
1.2 noted that the new Hungarian Parliament, for the first time in the history of free and democratic Hungary, had amended the former constitution – inherited from the one-party system – into a new and modern Fundamental Law through a democratic procedure, after intensive debates in the parliament and with contributions from Hungarian civil society;
1.3 while pointing out that, taken separately, each of the concerns outlined was inherently serious, warned against “the sheer accumulation of reforms that aim to establish political control of most key institutions while in parallel weakening the system of checks and balances”;
1.4 decided, in conclusion, not to open a monitoring procedure in respect of Hungary but resolved “to closely follow the situation in Hungary and to take stock of the progress achieved in the implementation of this resolution”.
2. Two years later, the Assembly takes stock of such progress and notes in particular the following:
2.1 concerning the new Hungarian Church Act, it is clear that the freedom of religion is important in Hungarian society. However, in considering the registration of churches, the European Court of Human Rights found in its judgment of 8 April 2014 a violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights (ETS No. 5), read in the light of Article 9 (freedom of thought, conscience and religion), as this act violated the rights of religious communities when it stripped them of their church status. On 15 May 2015, the Hungarian authorities informed the Council of Europe that six churches were about to sign an agreement, while four others were about to sign a partial agreement, but this fact does not ensure compliance with the judgment of the European Court of Human Rights;
2.2 the right to decide to recognise a religious denomination as a church remains within the competencies of the parliament, rather than of an independent authority, as requested by the Assembly. There is still no provision for the possibility to appeal against any decision to grant or reject a request to be recognised as a church;
2.3 referring to the report on Hungary published on 16 December 2014 by the Council of Europe Commissioner for Human Rights, the Assembly notes with concern that the report found widespread presence of racist and extremist organisations and movements in the country and extremism in its political arena. These findings are also reflected by the report on Hungary adopted by the European Commission against Racism and Intolerance (ECRI) on 19 March 2015. The Assembly therefore urges Hungary to implement the recommendations by the Commissioner for Human Rights and ECRI;
2.4 as required by the Constitutional Court, electoral constituencies were redrawn to become more equal, a positive change recognised by the Venice Commission and the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR). The opposition parties, however, claim that the situation is still not fair. Although the Assembly recommendations, echoed by the Venice Commission and the OSCE/ODIHR, regarding the need for an independent body to deal with the drawing of electoral districts have not been met, the main concern does not seem to be the Act on the Election of Members of Parliament but the Act on Electoral Procedures, which has not so far been examined by the Venice Commission;
2.5 with regard to the Constitutional Court:
2.5.1 no statutory changes were made with respect to the limitation of its jurisdiction on economic matters, which the Venice Commission has clearly criticised;
2.5.2 although no statutory changes were made following the opinion of the Venice Commission on the possibility for the Constitutional Court to refer back to its case law, the Hungarian Constitutional Court, in a decision taken in 2013, stated that it was possible to refer back to the substance of its case law created under the former constitution and has indeed done so in a number of its recent decisions;
2.5.3 there is no legal requirement that Constitutional Court judges should have been judges before. A “cooling-down” period should be introduced in respect of members of parliament, between the end of their political mandates and before they are eligible for election as judges of the Constitutional Court, as recommended by the Assembly in Resolution 1941 (2013);
2.6 with regard to the judiciary, the issue of the transfer of cases between judges was resolved through legislative amendments in the framework of the dialogue with the Secretary General of the Council of Europe. Generally, the position of the Chairperson of the National Judicial Office – a unique institution in Europe – has changed and his powers are now limited;
2.7 concerning the issues related to the media, the Commissioner for Human Rights of the Council of Europe, in his report on Hungary published in December 2014, pointed out that media in Hungary still suffered from both an inadequate legal framework and political pressures. For its part, the Assembly urged the Hungarian Parliament, in its Resolution 2035 (2015) on the protection of the safety of journalists and of media freedom in Europe, to pursue further reforms of its legislation in order to improve the independence of the media regulatory authorities, the State news agency and the public service broadcasters, to increase transparency and pluralism in the private media, as well as to combat racist expressions against ethnic minorities. In accordance with Opinion 798/2015 of the Venice Commission on media legislation of Hungary, the Assembly calls on Hungary to implement those recommendations. The Assembly remains seized of the media situation in Hungary in the framework of its future reports on attacks against journalists and media freedom in Europe as well as on new methods of political influence over independent journalism. The situation of racism and intolerance also requires special attention;
2.8 as regards the recent debate on the reintroduction of the death penalty in Hungary, the Assembly strongly underlines once again that the prohibition of the death penalty is enshrined in the core values of the Council of Europe and welcomes the withdrawal of any proposal on this matter;
2.9 the Assembly recalls that certain constitutional and democracy issues, such as the wide scope of the “cardinal laws” and the requirement of qualified majorities for future changes pointed out by the Venice Commission, still need to be addressed.
3. In conclusion, the Assembly welcomes the measures taken by the Hungarian authorities and their ongoing co-operation with the Secretary General of the Council of Europe, and encourages them to continue the open and constructive dialogue with the different Council of Europe interlocutors and other international organisations. It therefore resolves to ask the Hungarian authorities to endeavour to solve the outstanding issues, but that special examination of these matters by the Assembly should now be concluded.