HCLU Position On the legislative proposals T/332 on the Seventh Amendment to Hungary’s Fundamental Law and T/333 on the amendment of certain laws to combat illegal migration

The Hungarian Government has taken yet to another level its seemingly endless attack against

  • migrants,
  • citizens who express their opinions and protest against injustice,
  • civil society organizations,
  • the European Union,
  • the courts and
  • the rule of law.
CONTEXT Since 2015, the Hungarian government has launched a series of campaigns that feature irrational content and disseminate false and manipulative information that aims to appeal to citizens’ basic fears. By continuously finding and targeting new enemies (i.e. asylum-seekers, the European Union, NGOs, George Soros) and conducting hate campaigns against them, the government seeks to divert the public’s attention away from the depressing levels of poverty, the healthcare and education crisis, and systemic corruption. For the fourth year, the government has been using the migration crisis to incite xenophobia as a means of strengthening its hold on power. Through its actions and rhetoric, the government has claimed that any criticism of the government is an attack against the nation, therefore it reasons that such views must be excluded from debates about public affairs. Campaigns have been launched to personally discredit prominent critics of the government. In a growing number of cases, legal bodies have called on the Hungarian government to comply with European norms. The government’s reactions in these cases have repeatedly crossed the boundaries of rational political debate. In these situations, the government’s representatives tend to question the independence and impartiality of the legal bodies involved, including the domestic courts, the European Court of Human Rights and the European Court of Justice. They claim that the courts make political decisions meant to further the ends of an international conspiracy against Hungary. Earlier this year, the Hungarian government launched a legislative package named ‘Stop Soros’, a proposal of three laws that targeted civil society organisations, as a follow up on the 2017 NGO Law on foreign-funded organisations. The proposals came amidst a wider effort to stigmatize specific individuals and non-governmental organisations, and has been presented as a bid to stop ‘illegal migration’, to ‘strengthen the protection of borders’ and to ‘protect Hungary’s national security interests’. The proposed measures would have affected a number of areas key to the functioning of civic life in Hungary. The present legislative package supplants the previous package with a totally new scope and content.

The Government has proposed several amendments to the Fundamental Law as well as other laws, including the Criminal Code. Unofficial translations of the proposed bills can be found here. Find below the details of Hungary Civil Liberties Union (HCLU)’s position on the following amendments:

The constitutional relationship between Hungary and the European Union

On several points, the amendments to the Fundamental Law aim at strengthening the sovereignty of the Hungarian state - primarily in relation to the European Union. The proposed changes invoke the obligation to protect Hungary’s constitutional identity, though the exact legal consequences to this ‘obligation’ are difficult to predict. In several instances, the amendments complement the European Union clause with rules that the competence of EU institutions must subscribe to the fundamental rights and freedoms outlined in the Hungarian Constitution. In addition, the EU is not allowed to interfere with Hungary's inalienable rights to make decisions about its territorial unity, population, state form and state structures.

In HCLU’s view, it would be unacceptable if the EU could abolish fundamental rights and freedoms, and could unilaterally alter a Member State’s territorial integrity, population, state and state structures. These are fundamental elements of state sovereignty and should not be removed.

HCLU does not engage in a dispute about the content of this particular amendment, however, we believe it is unnecessary. According to a Constitutional Court decision in 2016, the powers exercised by EU institutions should be revised against the fundamental rights outlined in the Hungarian Fundamental Law, and Hungary’s right to sovereignty.

"The Constitutional Court may examine upon a relevant motion – in the course of exercising its competences – whether the joint exercise of powers under Article E) (2) of the Fundamental Law would violate human dignity, another fundamental right, the sovereignty of Hungary or its identity based on the country's historical constitution." Constitutional Court Decision No 22/2016 (XII. 5.) AB on the Interpretation of Article E) (2) of the Fundamental Law

If this is already provided for in the text of the Fundamental Law, the textual amendment is unnecessary in the sense of constitutional law.

One important thing to note is that the Hungarian Fundamental Law is special in that its provisions on fundamental rights include not only the rules that guarantee fundamental rights but also the exceptions that allow for the restrictions of rights. Many previous amendments to the Fundamental Law served to make several unconstitutional legal restrictions indisputable under the (modified) Fundamental Law. As such, the fundamental rights chapter of our Fundamental Law contains many unjustifiable legal restrictions of fundamental rights. In the future, heightened scrutiny is needed to ensure that these unjustifiable legal constraints do not become a barrier to the common exercise of powers with the EU, such as the EU's law-making acts that extend the protection of rights.

Strengthening restrictions on the freedom of expression and assembly

The Amendment regarding the fundamental right to privacy is riddled with obscure new provisions. These don’t bring clear added value to the protection of privacy and bring uncertainty to the freedom of expression related to public affairs, a right hitherto protected consistently by law.

According to the proposal, the text of the Fundamental Law will be modified to include the following:

"Freedom of expression and the exercise of the right of assembly shall not violate the private and family life of others and their home."

In addition,

"The state shall provide legal protection to homes to ensure peace of mind.”

Article VI of the Fundamental Law already protects the fundamental right to privacy without the proposed modifications. Act III of 1989 on assembly (henceforth: Gytv.), currently in force, authorizes police to dissolve demonstrations that violate the fundamental rights of others - including their right to privacy. [Gytv. Section 2 Para. (3), Section 14 Para. (1)]. In this sense, the proposed provisions do not have any added value.

It is also unclear what changes the new provisions would bring to the exercise of freedom of assembly and freedom of expression. In terms of wording and content, the new texts do not say anything new because individual or collective expression of political opinion could not take place in violation of the fundamental right to privacy, according to current regulations.

The exercise of fundamental rights, including the right to assembly and expression, often restricts the fundamental rights of others. Yet, this does not mean that the fundamental rights of others would be violated. The practice of assembly, opinion or any other fundamental right would only violate the fundamental rights of others if the restriction was not necessary and proportionate.

However, in accordance with the consistent jurisprudence of the Hungarian Constitutional Court and the European Court of Human Rights, in democratic states where the rule of law prevails, freedom of assembly and political expression can only in exceptional cases imply a disproportionate restriction or breach of the fundamental rights of others, such as the right to privacy. Courts could, therefore, continue to apply existing jurisprudence if the proposed new provisions come into effect.

On the other hand, it is also possible that the proposed amendments will compel the Hungarian Constitutional Court and other courts to conclude that the protection of privacy should be prioritized over the rights to freedom of expression and assembly. In any case, the new provisions will bring confusion into the application of the law regulating freedom of expression and assembly, thereby discouraging citizens and journalists from openly expressing opinions in public, a practice that is indispensable in a democratic society. The proposal also provides for the establishment of an entirely new administrative court system. The new administrative court system will be entitled to adjudicate cases of unlawfully banned or dissolved protests [Kp. Section 4., Section 12. Para. (3)].

In conclusion, the proposal already restricts the freedom of assembly and political expression by upsetting the existing guarantees of the free exercise of these fundamental rights.

Regulating conditions for asylum and for the residence of third-country nationals

The conditions for granting third-country nationals asylum or permission to reside in Hungary have long been set by the Hungarian legislator, within the limits set by European law and Hungary's international commitments (see Act LXXX of 2007 on the Right to Asylum [Met.]; and Act II of 2007 on the entry and residence of third-country nationals [Harmtv.]).

However, if this proposal comes into force, any future amendment to the related laws will require a two-third supermajority vote among those MPs present at the time of voting in Parliament.

This proposal to cement Met. and Harmtv. does not serve the sovereignty of Hungary. Instead, it reduces the legislative sphere of action of the Hungarian Parliament. It cements the government’s asylum and migration policies and could prevent future Hungarian Parliaments from voting on policies and choose political values which might differ from those of the present government, in order to serve public interest. This is particularly problematic as the policies related to these issues need to react to a changing world politics and should be periodically revised -- at least this much is consensually acknowledged by proponents of different policies. In a changing world, these measures also pose a threat to Hungary's national security and economic interests, just as much as to compliance with its international commitments.

The establishment of the Administrative Supreme Court

According to this amendment of the Fundamental Law, the currently unified court structure will be replaced by two parallel judicial bodies and an Administrative Supreme Court will be established besides the Curia (the Supreme Court).

In many jurisdictions in the world, there is no unified system of justice in the jurisdictions of the law, and in order to make the best judgments more quickly, in specific case types there are special courts with different staff and procedures than the general courts. There are also states in which judges work in a single judicial system - with no separate court system - and rule by themselves on different types of cases. Either model can also be found in states under dictatorial rule. In other words, it is hard to tell if the existence of a separate court system in itself also implies that the law is subordinated to the government in power.

The amendment would keep the administrative courts that have been in operation for a number of years. But the legal remedies, the administrative tasks and the status of the judges would be subject to a special, higher-level court. Although this amendment is not entirely clear, it is known already that the government wants to appoint new administrative judges by using different protocols than the ones in place for general courts.

Thus, a parallel judicial system would be established for cases concerning the state’s public authority and its respect for the rule of law. This in itself is not an implausible idea.

However, HCLU expresses serious concern about this organizational transformation which would compromise the independence of the institutional system. Just like the organizational transformation succeeded in reaching a majority of single-party constitutional judges in a short time (then raising the number of Constitutional Court members by 1.5 times with new powers in 2011), the renaming of the Supreme Court and defining its president's powers offered the possibility to dismiss the last president of the Supreme Court the from his position before the end of his term in 2011/12.

A main prerequisite for the rule of law is that the public authorities exercise power by respecting the law. This is possible if not only disputes between citizens but also the legal accountability of public authorities are judged by courts that are, beyond doubt, independent from the government.

Unjustified restrictions on methods of the interpretation of law

The proposal to amend the Fundamental Law aims to narrow down the interpretation of legal sources, in comparison with previous modifications. Article 28 of the Fundamental Law has so far required that legal sources be interpreted primarily in accordance with their purpose and in accordance with the Fundamental Law. However, the amendment proposal would further narrow down the available methods of interpretation as follows:

"In determining the purpose of a legal regulation, its preamble, as well as the reasons offered by its proponent for enacting or amending the regulation, should be foremost taken into account."

Of course, authorities and courts have already taken into account the abovementioned aspects when applying and interpreting the law. The emphasis on these as primary considerations, however, raises concerns about legal certainty, and unduly restricts the scope of interpretation in applying the law.

The proposal raises concerns of legal certainty primarily with regard to the interpretation of Acts of Parliament, as they are the only type of legal regulation that needs to be justified by their proponents. The proposal does not take into account the fact that such reasons for enacting laws do not reflect the intention of the legislator, but only the objectives and intention of the proponents of the given bill, i.e., typically the government or MPs from the governing party. In a democracy, however, legislative proposals go through a long journey from their initiation to their enactment. Hungary is a democracy in which laws are still being adopted by the Parliament as legislator, not by the Government. It is far from certain that they are adopted by Parliament for the same reasons as the ones their proponent offered.

Requiring public authorities and courts to interpret laws according to the reasons offered by their proponents results in giving undue weight to the objectives and intention of the Government or government-affiliated MPs, even though the Parliament does not necessarily adopt a bill in agreement with these same objectives and intention.

The criminalization of those who facilitate and support migration (T/333.)

The main novelty of this bill is the creation of a new criminal offense called ‘facilitating illegal immigration’. The proposed amendment is referred to as STOP Soros by its justification, which was the name of the previous legislative package that would have seriously jeopardized the lawful operation of various civil society organizations. (Our position on the earlier bill can be found here: https://tasz.hu/files/tasz/imce/2015/operation_starve_and_strangle_17022018.pdf)

First of all, we would like to point out that registered civil society organizations do not carry out or support illegal activities, but work in harmony with Hungarian and international asylum law. The planned activity of civil organizations and their goals are scrutinized by the court when they are established and the prosecutor's office can monitor the legality of their operation. Instead of threatening the organizations and their staff with charges of criminal offence, they should receive the recognition for their work as they provide legal assistance to asylum seekers and third-country nationals and ensure that States respect the rights and dignity of vulnerable people.

Criminal law is the most powerful instrument of the state, and it should be its ultimate resort. Therefore, in HCLU’s view, it is particularly dangerous to the integrity of the rule of law that the government threatens and criminalizes the work of lawful organizations that assist people in extremely vulnerable situations. We believe that this legislation will have a chilling effect on humanitarian and legal assistance. Organizations which carry out border monitoring and disseminate information exercise much-needed democratic limitations over the power of public authority. To only mention two examples, firstly, those potentially affected by the law document police conduct, thus ensuring accountability for violations. Secondly, everybody must be aware of the laws applying to their situation. Preventing the dissemination of information on laws also means that the people affected would be prevented from learning about their rights, thus people fleeing war and persecution would be made more vulnerable. Informing about rights does not equal helping to circumvent the law.

HCLU firmly believes that the bill should be repealed. At the same time, any legal action against illegal activities should comply with the rights and freedoms guaranteed by Hungary’s Fundamental Law and International Law.

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