Assessment of the activities and independence of Hungary’s Ombudsperson

In October 2019, the Sub-Committee on Accreditation of the Global Alliance of National Human Rights Institutions (GANHRI SCA) deferred the review of the status of Hungary’s Commissioner for Fundamental Rights (the Ombudsperson) as a national human rights institution (NHRI). The reasons for the deferral included that the Commissioner’s selection process was “not sufficiently broad and transparent”, and that the Commissioner as a national human rights institution had “not demonstrate[d] adequate efforts in addressing all human rights issues, nor has it spoken out in a manner that promotes and protects all human rights”. The new review will take place in June 2021.

It can be derived from the SCA’s 2019 report that deficiencies and lack of action have been detected in following areas:

• the rights of vulnerable ethnic minorities, including the Roma;
• the right of migrants, refugees and asylum-seekers;
• the situation of human rights defenders, with special regard to Act LXXVI of 2017 on the Transparency of Organisations Supported from Abroad; and
• the lack of petitions to the Constitutional Court.

These thematic areas coincide with the areas with regard to which the Hungarian Helsinki Committee also raised the inadequacy of the Ombudsperson’s performance in its assessment paper issued in September 2019, covering the previous Commissioner’s activities in the period between 2014 and September 2019. In our assessment paper, we concluded that the previous Commissioner has repeatedly failed to address (or address adequately) pressing human rights issues that are politically sensitive and high-profile.

On 26 September 2019, a new Commissioner for Fundamental Rights, Mr. Ákos Kozma, entered into office. However, he has been elected in the same deficient process as his predecessor. Therefore, we warned in our assessment paper that the inadequate performance of the previous Commissioner, taken together with the deficiencies of the selection process, raises serious doubts as to how independent the new Commissioner will be in practice.

Unfortunately, more than a year into the mandate of the new Commissioner, it has to be concluded that his track record leaves much to be desired as well. The HHC’s recent shadow report shows that the Commissioner has been very active in certain areas, which are not necessarily politically sensitive, while he remained inactive and completely silent with regard to the rights of certain groups and certain pressing human rights issues – all of which happen to be politically sensitive and high-profile.

In its shadow report submitted to the GANHRI SCA ahead of the review of the Ombudsperson’s status as a national human rights institution in June 2021, the HHC flashes out the following examples where action would have been needed, but the new Commissioner failed to act, or failed to act adequately:

• The selection process for the Commissioner remained the same, and the sitting Commissioner has not advocated for any change in this regard;
• The number of petitions submitted by the Commissioner to the Constitutional Court remained very low;
• The Commissioner failed to address almost any of the systemic and structural issues that result in the extensive rights violations of the Roma in Hungary. He also failed to take adequate steps when governing party politicians launched a concerted campaign against a court judgment that awarded compensation payments for school segregation to Roma pupils. Furthermore, the Commissioner has not stepped up in any way against a clearly unconstitutional new law that excludes pecuniary compensation for segregation, even when 21 NGOs asked him to do so;
• Despite the recurring requests from the HHC, the new Ombudsperson has failed to take any steps with regard to most of the rights violations affecting asylum-seekers and migrants signalled by the HHC, ranging from violent pushbacks and collective expulsion on the Serbian-Hungarian border to deficiencies in the situation of migrant children;
• The Commissioner has failed to step up against the human rights violations affecting LGBTQI people, ranging from laws banning legal gender recognition and blocking adoptions by LGBTQI people and an unfavourable constitutional amendment to homophobic and transphobic statements by governing party representatives, despite repeated calls to act by NGOs;
• The Commissioner has remained completely silent regarding the situation of human rights defenders in Hungary, and has not used any of its powers to tackle the old and new violations of the rights of civil society organisations, even in the face of Hungary failing to abolish Act LXXVI of 2017 on the Transparency of Organisations Supported from Abroad after the Court of Justice of the European Union ruled that it violates EU law.

Thus, the new Commissioner has failed to demonstrate adequate efforts in addressing the human rights issues highlighted as issues of concern by the SCA’s 2019 report, and has failed to speak out in a manner that promotes and protects all human rights. Furthermore, beyond the thematic areas highlighted by the SCA’s 2019 report and beyond the areas where his predecessor was inactive, the new Commissioner remained silent and has not stepped in the defence of LGBTQI people in any way, even though he would have had ample reason to do so. This coincided with the issue of the rights of LGBTQI people clearly entering the sphere of politically sensitive, high-profile topics in Hungary.

In its shadow report, the HHC supports the above conclusions by providing a detailed account of the activities and independence of the Commissioner for Fundamental Rights between October 2019 and February 2021, with a focus on his performance in the areas listed by the SCA’s 2019 report as the ones giving rise to concerns. The HHC’s shadow report is available here:

Shadow report to the GANHRI Sub-Committee on Accreditation on the activities and independence of the Commissioner for Fundamental Rights of Hungary