Hungary continues its regressive course restricting civic space
On 12th March 2019, members of parliament belonging to the Prime Minister Viktor Orban’s ruling Fidesz party, proposed with Bill T/5241 changes to the laws on administrative courts. The move is an attempt to respond to concerns raised over the independence of the newly established administrative court system that is due to start operating next year. However, the Hungarian Helsinki Committee, a local non-governmental human rights watchdog, stated that the proposed changes still do not guarantee that the new courts will “be independent, impartial, and will operate on a high standard” and called for further guarantees to ensure that these standards are met.
As reported previously by the CIVICUS Monitor, a new administrative court system was established by the Hungarian parliament on 20th June 2018 through the passage of the seventh amendment to the Constitution. The administrative courts are to start working from 2020 and will be entitled to adjudicate cases of unlawfully banned or dissolved protests. One of the main concerns of critics is around the appointment of judges as they fear that the new administrative courts, with extensive prerogatives given to the Ministry of Justice over the court, will be staffed by government-friendly judges and might undermine civic rights.
The Venice Commission of the Council of Europe, known as the Venice Commission - the Council of Europe's advisory body on constitutional matters - also shared a similar opinion as the Hungarian Helsinki Committee. In its Opinion on the Hungary’s law on administrative courts, published on 18th March 2019, the Commission found that the proposed administrative court system’s “very extensive powers are concentrated in the hands of a few stakeholders” while the legislation lacks “effective checks and balances to counteract those powers”. According to the analysis of the Hungarian Helsinki Committee, the new amendments “only slightly improves the law's defects” as only less than one-third of the main recommendations of the Venice Commission was addressed in the latest amendments. Nevertheless, the Hungarian Parliament adopted these insufficient amendments according to the Hungarian Helsinki Committee's statement of 1st April.
The Venice Commission recommended that the Hungarian authorities re-examine the legislation “in consultation with all the parties concerned” and among other measures recommended are to provide for “a judicial remedy” against the decisions of the Minister of Justice on the recruitment procedure of judges and heads of the court. Also the Commission urged for means of counterbalancing the prerogatives of the presidents, including the President of the Supreme Administrative Court, by more heavily involving the judges or their elected representatives.
In April 2019, the UN Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán, urged the Hungarian government to further review the legislation in light of the recommendations made by the Venice Commission.
I call on #Hungary's President to return the legislative package on administrative courts to the Parliament in order to enable a fully informed review. I intend to raise this issue in my forthcoming dialogue with the Hungarian authorities https://t.co/GO29oUjdAH— Commissioner for Human Rights (@CommissionerHR) December 14, 2018
Our latest analysis -- Blurring the Boundaries: New Laws on Administrative Courts Undermine Judicial Independence in #Hungary— HunHelsinkiCommittee (@hhc_helsinki) December 11, 2018
Bills to be voted on this week could lead to political interference in the new administrative court system.https://t.co/JprxowG4Qy pic.twitter.com/sbGdYjUpUw
Meanwhile, the authorities in Hungary have taken further steps to restrict the freedom of peaceful assembly following the law on public assemblies enacted in October 2018 that gives discretion to the police, such that now they can ban public assemblies for a wide range of reasons as shown below.
The CSO Hungarian Civil Liberties Union (HCLU) reported in February 2019 that police “regularly denied” public assemblies such as protests, demonstrations, half-way road closures, as references have been made to the violation traffic order.
Dalma Dojcsák, head of the Political Freedoms Project at HCLU, told CIVICUS Monitor that authorities in Hungary are trying to discourage people from protesting against governmental misdeeds mainly by the following tactics: firstly, by imposing fines on protesters for violations of road traffic rules (as simple as stepping off the sidewalk), and secondly, by banning demonstrations with the pretext that they would disproportionately disturb traffic.
In February 2019, the Metropolitan Court repealed a police decision prohibiting a demonstration planned to be held on the Széchenyi Chain Bridge on 10th February. Accordingly, the judgement stated (as reported by the HCLU) that the police ignored the obligation of cooperation and substantive consultation and that in the case when “police justify the prohibition of a protest with a violation of the traffic order, then it must prove to the court alternatives that it tried to avoid the [protest] ban, and specifically justify why it adopted a prohibition decision.” [Translated from Hungarian]
In a previous case, in October 2018, the Metropolitan Court stated that an assembly could not be banned for "any traffic disruption, but only if it made transport impossible". Furthermore, the courts terminated the proceedings in at least three cases (by end of February) involving student demonstrators fined by the police alleging that they had violated the rules of the Road Traffic Code and they had to pay a fine of 30, 000 HUF (equivalent to just over USD100). The court found that the protesters legitimately assumed that they were not violating any rules when practising their civil rights.
However, despite the positive judgements in support of the right to freedom of assembly, the HCLU said that newly introduced rules “makes it difficult for citizens to seek redress against the over-restrictive interpretation of the law by the police”.
Previously, in another move to restrict the freedom of peaceful assembly, in November 2018, the government submitted another restrictive bill on public gatherings that would ban protests from taking place at the the most important, symbolic public squares of Budapest during national holidays. Subsequently, in December 2018, the bill was withdrawn, as shown on the Parliament official website.
In February 2019, following a five-day visit to Hungary, the Council of Europe Commissioner for Human Rights Dunja Mijatović called on the Hungarian government to reverse its worrying course affecting the human rights protection system and to “repeal the harmful legislation, and restore an enabling environment conducive to the valuable work of human rights defenders, NGOs and independent media as necessary in democratic societies.”
Subsequently, in late February, in a move contrary to the above recommendations, Hungary’s Constitutional Court rejected a petition by the human rights group Amnesty International to invalidate the so-called “Stop Soros” laws that criminalise helping “illegal” immigration.
The Constitutional Court reportedly said in its ruling that existing legislation including the Constitution offered sufficient guarantees that the law would not be too broadly interpreted. According to the ruling providing humanitarian aid is outside the scope of the ban, and the ban cannot be applied to “generous acts to meet a constitutional obligation to help the poor and vulnerable”.
Dávid Vig, the director of Amnesty International’s Hungarian section told the media that the organisation feels utterly disappointed by the ruling, stating:
“STOP Soros is obscure and legally incomprehensible. The law has no other purpose than to threaten those who help vulnerable people and disagree with the government's unlawful immigration policy”.
Amnesty International also said that the Constitutional Court has left those who are threatened by the government to face prison sentences for their humanitarian efforts of helping vulnerable people.
In February 2019, partner organisations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists published its annual report on media freedom titled “Democracy at risk: Threats and attacks against media freedom in Europe”, which states that the few remaining independent outlets in Hungary face a host of obstacles, including a lack of advertising revenue, a restrictive regulatory environment, and public campaigns to discredit independent journalists.
Freedom House’s “Freedom in the World 2019” painted a similarly stark picture on Hungary. According to this report, Hungary is now labeled as being “Partly Free” country and it is the only EU country that is not currently classified as “Free.” The report observes that the media sector in Hungary is increasingly dominated by pro-government outlets and cites the creation in November 2018 of a massive pro-government media conglomerate, the Central European Press and Media Foundation (KESMA), which includes 476 media outlets.
Dalma Dojcsák, head of the Political Freedoms Project at Hungarian Civil Liberties Union (HCLU) told CIVICUS Monitor that to HCLU’s understanding, the fusion that merged 476 media outlets into a media empire raises several doubts concerning its constitutionality, thus, the HCLU asked the court to either prohibit the fusion or to oblige the Competition Authority to carry out a full competition law inspection.