Hungary: Democracy under Threat Six Years of Attacks against the Rule of Law November 2016 / N° 684a November Cover photo: Thousands of people gathered outside parliament building in Kossuth Lajos Square call for Prime Minister Viktor Orban’s resignation with slogans of «for a European Hungary» in Budapest, Hungary on February 1, 2015. © Mehmet Yilmaz / ANADOLU AGENCY taBLE OF CONTENts 1. INTRODUCTION 4 1.1 METHODOLOGY 8 2. CHALLENGES TO THE RULE OF LAW : UNDERMINING DEMOCRATIC CHECKS AND BALANCES 10 2.1 ESTABLISHED POWERS 10 2.1.1 Constitutional matters: Reshaping the constitutional framework 10 2.1.2 Reforming the judiciary 15 2.1.3 Electoral laws and other restrictions to the legislative power 21 2.2 NON-ESTABLISHED POWERS 24 2.2.1 Taking control of the media 24 2.2.2 Restricting freedom of information 37 2.2.3 A shrinking space for civil society 44 2.2.4 Churches and religious groups 43 3. CHALLENGES TO THE RULE OF LAW: VIOLATIONS OF THE RIGHTS OF MIGRANTS, ASYLUM SEEKERS AND REFUGEES 51 4.THE HUNGARIAN SITUATION IN THE LIGHT OF INTERNATIONAL STANDARDS ON THE RULE OF LAW 59 5. CONCLUSIONS 70 6. RECOMMENdatiONS 72 ANNEXES 79 ANNEX I. HISTORIC CHRONOLOGY 79 ANNEX II. CHRONOLOGY OF LAWS 80 ANNEX III. EUROPEAN UNION’S INSTITUTIONS’ MAIN REACTIONS TO DEVELOPMENTS IN HUNGARY SINCE 2010 81 1. Introduction Since Prime Minister Viktor Orban took power in 2010 following the country’s general elections that saw its party, conservative Fidesz (the Hungarian Civic Party) and their small coalition partner the Christian Democratic People’s Party (KDNP) win the two-thirds (67,88% or 262 seats) in Parliament, Hungary has undergone a progressive shift away from the principles on which a democratic state is built. Constitutional and other legislative reforms implemented since 2010 have threatened democratic principles, the rule of law and human rights in the country. The ruling party, Fidesz, has abused the supermajority it held in Parliament to enact measures that would reshape the State’s institutional and legal framework and cement its political will into the Hungarian constitutional order, while the space for fundamental rights and freedoms has been steadily shrinking. The reforms weakened independent institutions and eroded democratic checks and balances, by bringing them under government control or emptying them of their prerogatives and hence their capacity to exercise effective control over the executive. As a result, the power balance has been distorted in favor of the executive to the detriment of other established and non-established (e.g. media, NGO) powers. They also reshaped the country’s constitutional and legal order, through the adoption of a new Constitution (the Fundamental Law) and over 600 laws, which had an overall adverse impact on human rights across the board and led to severe limitations thereof. These include limitations on fundamental human rights such as the right to freedom of expression and information, the right to freedom of religion or belief, the right to private and family life and the rights of minorities. Adequate procedural safeguards have not accompanied this legislative hypertrophy, as most laws have been pushed through via fast-track procedures, thereby not ensuring adequate consultation with stakeholders and preventing any meaningful parliamentary or public debate that would ensure democratic scrutiny over the proposed reforms. Civil society has not been spared by the government’s attempt to gain control over dissenting voices. NGOs that had been critical towards the government were first (2013) targeted by a government-orchestrated smear campaign accusing them of serving political, particularly foreign, interests. This was followed by a series of administrative and criminal investigations and proceedings, officially aimed at investigating alleged abuse of funding, which NGOs received from international donors under the EEA/Norway Grants NGO Fund scheme and other funding programs1. Although the investigations, including the criminal ones, eventually cleared the concerned NGOs of any wrongdoing, the proceedings significantly hampered their capacity to perform their functions. And, despite the investigation’s conclusions, the government still carried on with its defamatory and stigmatizing campaign. Most recently, Hungary’s reaction to an increased flow of migrants and asylum-seekers into Europe over the summer and autumn of 2015 – including the construction of a 175km fence at Hungary’s southern border with Serbia and the adoption of legislation raising serious questions as to its consistency with the country’s obligations under international and European law – confirmed a trend of increasing disregard by the government for the rule of law and human rights, which goes as far as to openly challenging them in public discourse and through concrete political and legal steps. 1. See below under Chapter 2.2.3 for further details. 4 FIDH - Hungary : Democracy under Threat Declarations by PM Viktor Orban that he intends to turn Hungary into an ‘illiberal state’2, citing Russia and Turkey as examples, have raised serious concerns. This public defiance of the values, especially the respect for democracy, the rule of law and human rights, which Hungary has committed to respecting and upholding when it acceded to the European Union and became a party to other international and regional organizations and treaties, is equally worrisome and alerts against a dangerous shift away from those values in the country. Coupled with the systematic and expedited changes to the country’s institutional and legal framework implemented over the past few years, these statements raise serious questions as to Hungary’s continued adherence and commitment to complying with the obligations, which it is bound to honor under international and European law. These include in particular the obligation to respect democracy, the rule of law and human rights, enshrined in Article 2 of the Treaty on European Union (TEU), the Charter of Fundamental Rights of the European Union (the Charter) and the European Convention on Human Rights (ECHR). The situation has raised concerns and drawn criticism from international organizations, including the European Union (EU)3, the Council of Europe (CoE)4, the Organization for Security and Cooperation in Europe (OSCE)5 and the United Nations6, and civil society. Despite this criticism and mounting evidence gathered by both governmental and non-governmental organizations showing an increasing threat to human rights and democracy in Hungary, the response of the EU to a serious deterioration of the 2. H. Mahony, Orban wants to build ‘illiberal State’, EU Observer, 28 July 2014, available at: https://euobserver.com/ political/125128; Z. Simon, Orban says he seeks to end liberal democracy in Hungary, Bloomberg, 28 July 2014, available at : http://www.bloomberg.com/news/articles/2014-07-28/orban-says-he-seeks-to-end-liberal-democracy-in-hungary. 3. EU criticism was directed first at the media law package, adopted in 2010, which raised the concerns of the then EU Commissioner for Digital Agenda, Neelie Kroes. This led to an exchange of administrative letters in which the Commission requested explanations with respect to the newly adopted legislation’s compliance with the EU Audiovisual Media Services Directive (AVMSD) (Directive 2010/13/EU of the European Parliament anf the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services), to which Hungary responded by amending the laws to address the EU Commission’s concerns. It then focused on the new Constitution (the Fundamental Law) adopted in 2011 and entered into force in 2012, and related ‘cardinal laws’ (which is the term used in the Hungarian legal system to refer to organic laws) which sparked a debate at the EU level regarding their compatibility with EU law and the EU founding treaties. In response to mounting concerns and following some heated debates which took place at the European Parliament, the Commission decided to address some of the issues by launching three infringement proceedings, namely on new legislation which lowered the retirement age for judges, prosecutors and notaries and resulted in the early dismissal of 274 judges, the independence of the new data protection supervisory authority and the independence of the National Central Bank. It also addressed a letter to the Hungarian government requesting clarifications regarding the new law on the administration of courts. Of these three, only the first two infringement proceedings arrived at the final stage, i.e. before the Court of Justice of the European Union (CJEU), whereas the third one was closed following amendments of the concerned laws by Hungary. Regarding the effects that the CJEU decisions had in practice, see below under Chapter 2.1.2. The EU has continued since to monitor the situation in Hungary, but no further action had been taken since 2012 until recent developments in relation to refugees, namely measures taken and new laws adopted in the field of asylum and criminal law, prompted the EU’s reaction and the launch of yet another infringement procedure for alleged violation by Hungary of the EU asylum acquis (December 2015), which is currently pending. 4. The Council of Europe, particularly its Venice Commission (European Commission for Democracy through Law), has been vocal in addressing the situation in Hungary and issued a series of