Rule of law under attack – Joint statement with the AEDH

n 2013, a range of international stakeholders expressed strong criticism regarding Hungarian legislative and governmental steps undermining the rule of law and violating human rights, such as the European Parliament via the so-called Tavares-report, the Venice Commission, and the Monitoring Committee of the Parliamentary Assembly of the Council of Europe. The Hungarian Government backed off regarding some issues of concern, but the majority of the criticism has been left unanswered.

The Fifth Amendment to the Fundamental Law, adopted on 16 September 2013, was claimed to be the response to international criticism – but it rather shows that the current governing majority still treats Hungary’s newly adopted constitution, which was amended five times during one and half years, as a tool of political power to enforce its everyday political interests. Under close scrutiny it becomes clear that most of the amendments do not truly remedy the problems.

For instance, even though the Fifth Amendment appears to have modified the rules banning political advertisements from the commercial media, there has been no real change. The impact of the new provisions remains the same, since according to the effective rules commercial media outlets may only broadcast political ads for free, only their social responsibility and wisdom will determine whether the messages of the political parties are conveyed to the voters during marketable airtime or not.

In addition, the Fifth Amendment of the constitution was followed by new laws endangering human rights and the principle of the rule of law, showing again the lack of respect for values referred to in Article 2 and 6 of the Treaty on the European Union:

• Despite the related ruling of the Constitutional Court of Hungary, saying that criminalizing the status of homelessness is unconstitutional, since it violates human dignity, and despite international criticism, on 30 September 2013 the Hungarian Parliament adopted a law which introduced petty offences criminalizing homelessness as such (rough sleeping). This allowed e.g. Budapest, the capital of Hungary to ban homeless people from much of the city.
• As a result of a law adopted on 11 November 2013, the length of pre-trial detention became unlimited in case the procedure against the defendant is conducted because of a crime punishable by a prison term of up to 15 years or life-long imprisonment. The former four-year upper limit was abolished due to political reasons: it was triggered by a case getting large media coverage, where no first instance decision was delivered in four years, thus the pre-trial detention of the defendants had to be terminated, and they fled from the house arrest. This step raises serious concerns in light of the case-law of the European Court Human Rights.
• According to an amendment adopted on 2 December 2013, the mandate of Constitutional Court judges, including the mandate of the current ones, shall not terminate when they turn 70 years old, but they shall remain in their seats until the end of their 12-year term. Firstly, it may not be justified from a constitutional perspective that essential conditions of fulfilling a judicial mandate are amended “along the way”. Secondly: as a result, the length of the mandate of five of the newly elected Constitutional Court judges – nominated and elected to the 15-member body in the past years with the sole support of the current governing majority due to changes made to the law by the same majority – will get extended considerably. In the light of the gradual reduction of the general judicial mandatory retirement age from 70 to 65, the amendment is difficult to explain with anything, but the governing majority’s wish to prolong the mandate of persons closely affiliated with it.

Referring to the above developments, the AEDH and the Hungarian Helsinki Committee call on the Hungarian Government and the Parliament of Hungary to respect the principle of the rule of law and human rights, thus also Article 2 and 6 of the Treaty on the European Union, and they urge the European Union and international stakeholders to remain vigilant in following-up whether Hungary complies with their recommendations, and to closely monitor and assess new developments. The EU institutions have to take a clear stand in order to protect the fundamental values the European Union is based on. The European Commission as guardian of the treaties has to ensure the compliance of member states with the fundamental values and rights of the EU, if necessary by recurring to mechanisms set out under the TEU.