The honouring of membership obligations to the Council of Europe by Hungary
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 12 October 2022 (31st sitting) (see Doc. 15619, report of the Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe (Monitoring
Committee), co-rapporteurs: Mr George Papandreou and Mr Eerik-Niiles
Kross). Text adopted by the Assembly on
12 October 2022 (31st sitting).
1. Hungary joined the Council of Europe
on 6 November 1990 and has been an active member State of the Organisation
ever since. It was the first of the former communist countries to
ratify the European Convention on Human Rights (ETS No. 5, the Convention)
in 1992 and subsequently has signed and ratified 94 Council of Europe
treaties. Hungary exercised, for the second time since joining the
Organisation, the Presidency of the Committee of Ministers from
May to November 2021. It actively promoted, inter
alia, the issue of the effective protection of national
minorities and discussions on challenges related to digitalisation
and artificial intelligence, which culminated in the formal approval
of the Second Additional Protocol to the Convention on Cybercrime (ETS
No. 185, the Budapest Convention) on enhanced co-operation and the
disclosure of electronic evidence (CETS No. 224) by the Committee
of Ministers on 17 November 2021.
2. The Parliamentary Assembly has closely followed Hungary’s
honouring of its Council of Europe membership obligations since
2013. In
Resolution 1941
(2013), it expressed its deep concern about “the erosion
of democratic checks and balances as a result of the new constitutional
framework in Hungary” that had introduced “excessively concentrated
powers, increased discretionary powers and reduced both the accountability
and legal oversight of numerous government institutions and regulatory
bodies in Hungary”. Although the Assembly decided not to open a
monitoring procedure in respect of Hungary at that time, it resolved
to closely follow the situation in Hungary. In subsequent resolutions,
including
Resolution
2203 (2018) adopted in the framework of the discussion
on the 2018 periodic review report on Hungary, the Assembly has continued
to follow developments in the country.
3. Since its accession to power in 2010, the coalition of the
Hungarian Civic Alliance (Fidesz) and the Christian Democratic People’s
Party (KDNP) has won four consecutive parliamentary elections and
enjoyed, nearly continuously, a two-thirds parliamentary majority,
which constitutes a unique situation among Council of Europe member
States and contemporary democracies.
4. Since the adoption of the Fundamental Law (which is the official
name of the new Hungarian Constitution) in 2011, the European Commission
for Democracy through Law (Venice Commission) has expressed serious
concerns about the impact of cardinal laws requiring two-thirds
majorities on issues that are usually decided by simple majority
and which should be left to the ordinary political process. The
wide use of cardinal laws therefore impacts the “functionality of
a democratic system” and cements the political preferences and the
country’s legal order. It also undermines the ability of the parliament
to adapt to new conditions and face new challenges within society
in the future.
5. In addition, the safeguards foreseen in the constitution –
with qualified majorities designed to require the search for a broad
agreement between the majority and the opposition on key issues
– become inefficient in cases where a ruling coalition enjoys a
two-thirds majority. This is in particular the case when appointing
the highest judicial officials (notably members of the Constitutional
Court, the President of the Supreme Court (Curia) and the President
of the National Office for the Judiciary (NOJ)) or adopting constitutional
changes (11 since 2010). This situation severely restricts political
pluralism – which is the hallmark of a democratic system – that
should be embedded in the political system and State institutions.
6. The Assembly notes the valuable contribution of the Venice
Commission, which has issued 23 opinions on Hungary since 2011,
assessing the compliance of the Hungarian constitutional, legal
and electoral framework with Council of Europe standards. The Assembly
encourages the Hungarian authorities to pursue their co-operation
with Council of Europe monitoring bodies and to implement their
recommendations.
7. A two-thirds majority was once again achieved by the ruling
coalition in the April 2022 parliamentary elections. This was done
with 54% of the constituency and 52% of the party-list votes. Under
these circumstances, it is incumbent on the authorities to ensure
that the principles governing the proper functioning of democratic
institutions are respected and safeguarded in good faith, including
through effective checks and balances, meaningful dialogue with
the opposition and co-operation with civil society organisations.
8. Hungary, like all countries, has had to face the Covid-19
pandemic. In recent months, it has also had to tackle the consequences
of the Russian aggression in neighbouring Ukraine. The Assembly
commends the people of Hungary for the great solidarity shown in
the handling of the mass arrival of refugees from Ukraine since
February 2022. The Assembly welcomes the decision of the authorities
to allow persons fleeing the war and holding Hungarian citizenship
to have access to the benefits provided to holders of temporary
protection. However, it shares the concerns of the Council of Europe
Commissioner for Human Rights concerning the situation of third-country
nationals and stateless persons excluded from this scheme.
9. The Assembly is also concerned that the country has been ruled
under a special legal order since 2020. The parliament notably adopted,
on 24 May 2022, the Tenth Amendment to the Fundamental Law, allowing the
government to trigger a “state of danger” in “the event of an armed
conflict, war situation or humanitarian catastrophe in a neighbouring
country”, following the outbreak of the war in Ukraine. The Assembly
recalls that the use of special legal orders must be restricted
to what is strictly necessary and proportionate and must be limited
in time. It also stresses that parliamentary oversight, political
deliberations involving all political forces in the parliament and
proper checks and balances are crucial in times of crisis.
10. The Assembly recalls the human rights issues raised in its
previous resolutions related to policies and developments in the
fields of migration, gender equality including gender-based violence,
protection of national minorities including real representation
within the Parliament of Hungary, academic freedoms and the situation of
LGBTIQ (lesbian, gay, bisexual, transgender, intersex and queer)
people. It welcomes the revocation of the disputed act on the transparency
of organisations receiving support from abroad (Lex NGO) in April
2021, but the recent fines imposed on non-governmental organisations
for their actions against the child protection referendum could
have a chilling effect on civil society organisations. Recalling
its
Resolution 2203 (2018) and
Resolution 2417 (2022),
the Assembly strongly encourages the Hungarian authorities to improve
the standards in all these fields in light of the opinions of the
Venice Commission, the case law of the European Court of Human Rights
and the recommendations of the Commissioner for Human Rights, as
well as to ratify the Council of Europe Convention on Preventing
and Combating Violence against Women and Domestic Violence (CETS
No. 210, the Istanbul Convention), which Hungary signed in 2014.
The Assembly will continue to follow these issues closely.
11. In the field of elections:
11.1 With respect to the April 2022
parliamentary elections, the Assembly notes that, according to the Office
for Democratic Institutions and Human Rights (ODIHR), the electoral
legal framework provides an adequate basis for the conduct of democratic
elections but contains a number of omissions and key provisions
that fall short of international standards and obligations, undermining
its effectiveness and at times leading to legal uncertainty, mostly
related to campaign rules and provisions for a level playing field.
The ODIHR also noted that these elections were efficiently and professionally
organised and the campaign was competitive. However, it highlighted
a lack of transparency and insufficient oversight of campaign finances,
as well as a lack of balance in monitored news coverage significantly
limiting the opportunity of voters to make an informed choice, a
highly negative campaign in tone characterised by a pervasive overlap
between the ruling coalition and the government, and insufficient
effective legal remedies for election disputes. The ODIHR also noted
that extensive and unregulated spending by entities other than the
election contestants, including through advertisements on social
media, largely favoured the ruling party. This echoes issues of
concern previously identified by the Group of States against Corruption
(GRECO) in the funding of political parties and electoral campaigns.
11.2 The Assembly notes that amendments to the electoral legislation
were adopted hastily in December 2020, by means of a cardinal law,
under a state of emergency, without meaningful consultation – which
is not in line with Venice Commission guidelines – and without reaching
a broad political consensus.
11.3 While these amendments include some technical improvements,
the Venice Commission assessed that their main effect would be “to
favour the incumbents”. In particular, the obligation for political
parties to appoint candidates in 71 (instead of 27, as was previously
the case) out of 106 constituencies raises questions. One impact
of this is that it makes it more difficult for opposition and smaller
parties to obtain a foothold and forces them to unite in heterogeneous
coalitions. As regards the drawing-up of the electoral map, the
Assembly notes that constituency boundaries continue to be drawn by
the parliament and not by an independent and impartial commission,
as recommended by the Venice Commission. To prevent gerrymandering,
the process should be transparent, include all parties within the
parliament and be based on clear and widely accepted criteria.
11.4 As a result of the recent legal changes and the unaddressed
deficiencies of the electoral legislation identified by the Venice
Commission, the ODIHR and GRECO in the past, the Assembly concludes
that the current electoral framework does not ensure a level playing
field conducive to fair elections. It also concludes, in light of
the ODIHR’s findings, that the legal framework to conduct referendum
campaigns is inadequate and challenges the ability of voters to
make informed choices.
11.5 The Assembly therefore urges the Hungarian authorities
to address without further delay the issues identified by the ODIHR
and the Venice Commission, and in particular to significantly reduce
the number of single-member constituencies and counties in which
each party needs to nominate candidates, and to enhance the transparency
of the funding of political parties and electoral campaigns, including
on social media.
12. In the field of the judiciary and
the rule of law:
12.1 As
regards the judiciary, Hungary has an efficient and well-functioning
judicial system, as noted by the Council of Europe’s European Commission
for the Efficiency of Justice (CEPEJ). Nevertheless, while acknowledging
that the Venice Commission stated that a number of powers of the
President of the NOJ had been transferred to the National Judicial
Council (NJC), which resulted in the improved accountability of
the President of the NOJ, it also stated that the powers of the
NOJ President were still extensive and concentrated in the hands
of just one person. The Assembly therefore remains concerned about
long-standing issues related to the independence of the judicial
system, including the imbalance of powers between the NOJ and the
NJC and the concentration of powers in the hands of the President of
the Supreme Court.
12.2 The Assembly regrets that the December 2020 amendments
pertaining to the judiciary were adopted without public consultation
and during a state of emergency, severely restricting the fundamental
rights to gather, discuss, protest and demonstrate, as pointed out
by the Venice Commission.
12.3 While the judicial reforms introduced in 2019 and 2020
failed to address previously identified structural problems concerning
the imbalance of powers, the Assembly reiterates previous recommendations
made in 2012 by the Venice Commission.
12.4 The Assembly in particular takes note of the latest opinions
of the Venice Commission highlighting that:
12.4.1 the 2019
reform, allowing members of the Constitutional Court to become members
of the Curia without the involvement of the NJC, could open the
door to a politicisation of the Supreme Court;
12.4.2 the procedure for the appointment of the President of
the Curia could pose “serious risks of politicisation and important
consequences for the independence of the judiciary, or the perception
thereof by the public, considering the crucial role of this position
in the judicial system”, in light of the limited guarantees of independence
applying after his/her appointment;
12.4.3 the power of the NOJ President to decide on the temporary
transfer of any judge to State institutions and their reintegration
into the judiciary could lead to judges being “promoted” to higher
judicial functions by a decision of the NOJ President, thus circumventing
the procedural guarantees of regular application procedures;
12.4.4 despite detailed rules, the lack of transparency concerning
the discretionary powers of the NOJ President and court presidents
to allow bonuses to judges could lead to arbitrary decisions or
self-censorship by judges.
12.5 In line with the recommendations issued by the Venice
Commission, the Assembly therefore asks the Hungarian authorities
to:
12.5.1 set up clear, transparent and foreseeable conditions
for seconded judges to be assigned to a higher position after the
period of secondment;
12.5.2 remove the prerogative of the President of the Curia to
mandate temporary presiding judges, or at least to eliminate any
margin of discretion in their selection;
12.5.3 abolish the possibility to adopt the authoritative type
of uniformity decisions, while recalling that any unification competence
of the Curia must comply with fundamental principles of the separation
of powers;
12.5.4 with respect to the changes brought to the complex case
allocation system in 2020, clarify the criteria for the President
of the Curia to increase the members (from three to five) of adjudicating
panels for certain types of cases and to make the opinion of the
relevant college and the Judicial Council public and binding in
order to ensure the transparency of the process and increase the
trust of citizens in the proper and impartial functioning of the
judiciary;
12.5.5 repeal the amendments contained in Act LXXIX amending
certain acts for the protection of children adopted on 23 June 2021
that prohibit any depiction or discussion of diverse gender identities
and sexual orientations in the public sphere, including in schools
and the media.
12.6 The Assembly also recalls the Interim Resolution of the
Committee of Ministers of 9 March 2022 on the implementation of
the Baka v. Hungary ruling.
The Assembly takes note of the declaration made by the Minister
of Justice of Hungary that this case resulted from a one-time constitutional
reform which was a unique event in the constitutional development
of Hungary that is completed. However, it recalls that the Committee
of Ministers strongly urged the authorities to “introduce the required
measures to ensure that a decision by Parliament to impeach the
President of the Kúria will be subject to effective oversight by
an independent judicial body in line with the European Court’s case-law”,
as well as “to evaluate the domestic legislation on the status of
judges and the administration of courts”, including the evaluation
of the guarantees and safeguards protecting judges from undue interference.
12.7 The Assembly therefore urges the Hungarian authorities
to strengthen the self-governance of the judicial system and guarantee
its independence more effectively. It calls for the strengthening
of the role and independence of the National Judicial Council and
the extension of its powers to ensure effective oversight of the
NOJ President, in line with the recommendations of the Venice Commission.
12.8 The Assembly welcomes the progress achieved in fighting
money laundering and financing of terrorism, in compliance with
the recommendations made by the Committee of Experts on the Evaluation of
Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL),
which has upgraded Hungary’s rating from “partially compliant” to
“largely compliant” in several areas. This should inspire the authorities
to address other deficiencies and establish legal frameworks that
ensure transparency and accountability, in particular when fighting
corruption, in line with GRECO’s recommendations. This notably requires
improving the level of transparency and consultation in the legislative
process, adopting codes of conduct or ethics for members of parliament
and the government, reviewing the format of asset declarations and
the broad immunity enjoyed by members of parliament and strengthening
rules governing conflicts of interest and the protection of whistle-blowers.
12.9 The recent creation of “public-interest trusts” is very
worrying. These trusts will manage a large amount of public and
private funds without supervision by the State audit. Also of concern
is the absence of legal provisions governing the prevention of conflict
of interests of board members (appointed for life by the government).
These problems should be addressed by the authorities, in line with
the Venice Commission’s recommendations.
12.10 The Assembly is also concerned by the use of the Pegasus
spyware, whereby several hundred individuals, including journalists,
lawyers and politicians, were subject to secret surveillance. It
calls on the Hungarian authorities to urgently revise the National
Security Service act governing secret surveillance, urging them
to ensure that it provides for an independent external oversight
and sufficient safeguards against abuses and possible violations
of the right to privacy and family life, and calls for the implementation
of the Szabó and Vissy v. Hungary judgment
of 2016.
13. In the field of media:
13.1 The Assembly reiterates its
concerns about the media. The establishment, in 2018, of a conglomerate
of over 470 media outlets – the Central European Press and Media
Foundation (KESMA) – has led to greater media market concentration.
The overwhelming distribution of advertising by the State or State-owned
companies to pro-governmental media has resulted in distorted media
pluralism and State capture of media. The Assembly asks the authorities
to ensure fair and transparent distribution of such advertising
expenditure, including on social media. In addition, the Assembly
is highly concerned by the decision taken by the Media Council not
to renew the licence of the independent radio station Klubrádió
in 2020 due to failings, which has resulted in discriminatory measures
and a shrinking space for alternative media.
13.2 Recent legislation about the “dissemination of false information”
relating to the Covid-19 pandemic has placed additional pressure
on journalists, who could face a three-year prison sentence. The
Assembly calls on the Hungarian authorities to repeal this law,
to fully and effectively guarantee access to public information
and to suppress statutory provisions that have a chilling effect
on freedom of expression, including by decriminalising defamation.
13.3 In addition, the Assembly encourages the Hungarian authorities,
in line with Venice Commission recommendations, to improve the media
environment by strengthening the functional independence of the
Media Council, reducing the term of office of the Media Authority’s
president and withdrawing some of his/her powers of appointment.
The Assembly also invites the Hungarian authorities to consider implementing
a more open and pluralistic appointment procedure for Media Council
members, including by allowing civil society groups to participate
in the nomination process.
14. The undisputed exercise of power by the same coalition, which
since 2010 has enjoyed almost continuously a two-thirds majority,
has, over time, in the current constitutional framework significantly
reduced the efficiency of the system of checks and balances and
strengthened the ruling coalition’s influence on State bodies and
key independent institutions. The recent changes in the electoral
law have further reduced the fairness of the electoral process and
thus weakened the ability of the system to safeguard political pluralism and
foster political alternatives. The Assembly concludes that the cumulative
effects of the measures that negatively impact the independence
of the judiciary, the situation of media, transparency and accountability
of State institutions overall undermine the functioning of democratic
institutions. It acknowledges, however, that despite this restrictive
environment, there is an effective parliamentary opposition as well
as a vibrant civil society. The Assembly remains therefore confident
that the authorities can restore the necessary conditions for a
fully pluralistic, democratic society with full respect for the
rule of law, in co-operation with the Council of Europe monitoring
and expert bodies and the Venice Commission. It takes note, in this
respect, of the authorities’ declared commitment to democratic values.
15. The Assembly notes that the Hungarian Parliament adopted 17
legislative modifications in September 2022. These laws aim at improving
the functioning of democratic institutions by strengthening the
transparency of the legislative process by demanding public dialogue
and consultation, tightening the rules of conflict of interests
in public trust funds and setting up an independent anti-corruption
authority. The Assembly invites the Hungarian authorities to request
the expertise of the relevant Council of Europe bodies and take
into account their recommendations so as to ensure the compliance
of the adopted measures with Council of Europe standards.
16. In the light of the long-standing issues pertaining to the
rule of law and democracy that remain largely unaddressed by the
authorities, the Assembly resolves to continue to closely follow
the developments with regard to the functioning of democratic institutions
and the rule of law in Hungary and decides to open a monitoring
procedure in respect of Hungary until the above-mentioned concerns
are addressed in a satisfactory manner.
