S.C. Services tanulmány 2013 by Tamas Bodoky

2019. 05. 03. atlatszo.hu 1 The new Hungarian Constitution and its legal environment - Reflections and comments on international criticism â&#x20AC;˘

Contents Foreword

The adoption procedure of the Fundamental Law of Hungary and the relevant cardinal laws

The new Hungarian media legislation, the role of the Media Council and other relevant bodies... 7 Political campaigning in the media during elections

The new election system of Hungary - criticism and background details regarding

The definition of'family' and 'marriage' in the Fundamental Law of Hungary

Educational matters - focusing on higher education

Rights of nationalities and ethnic minorities in Hungary

Reforms on the judicial system

Concerns and amendments regarding the transfer of cases in the Hungarian judicial system (National Judicial Office)

The 'transfer of cases' in the Hungarian judicial system

Hungarian Supreme Court [Curia) and the Supreme Prosecutor - new powers (request for abstract examination of the constitution) 54 The alleged discrimination of homeless people: prohibition of permanent living in public areas56 The Commissioner for Fundamental Rights

Changes in the powers of the Constitutional Court of Hungary

Curtailing the independence and the competences of the Constitutional Court: the status of the previous case law of the Court, restricting the power of the Court to review budgetary laws and abolishing the actio popularis 63 Restrictions to the powers of the Constitutional Court to review constitutionality of the Fundamental Law or Amendments thereto and the criticism of over-ruling the Court

The review of requests from ordinary courts: the '30-day limit'

Restriction of the power of the Constitutional Court to review laws related to public finance and state budget 81 The data protection supervisory authority and its independence

Possibility of imposing 'extra taxes' in case of court judgments leading to payment obligations 91 Freedom of expression and protection of ethnic minorities

Budget Council

100

Status of Churches & freedom of religion

103

Foreword

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This document intends to give an overall assessment of the misunderstandings, misinterpretations regarding the new Hungarian Fundamental Law, its amendments and the related cardinal or other laws - by presenting and introducing the up-to-date Hungarian legal framework, the facts, argumentations related to each criticized points of the domestic legislation in the past 3 years. As a matter of fact we relied on the reports, papers and opinions of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) and the European Commission for Democracy through Law (the Venice Commission) and - where it was relevant - the Report of Rui Tavares (on the situation of fundamental rights: standards and practices in Hungary). We also used the background papers of the Hungarian Government proposed for the above mentioned organs during the debates of the past couple of months. This document investigates the contested legal instruments and regulations one by one, assess their legal background, gives a short summary of the relevant criticism and - if necessary - suggests changes and measures to take by the Hungarian legislator. The document's core aim is to present concise legal argumentation against the cited criticism based to the content of the above mentioned international reports and papers. Each chapter presents briefly the core criticism against the Hungarian piece of law in question, then the already taken measures related to the matter and/or a core argumentation tackling the criticism. At the end of each chapter the document quotes the relevant parts of the above mentioned papers, both the criticism and a denial in form of comments. This paper was prepared on a professional legal basis, however, it also took into consideration the political argumentation of the relevant Hungarian bodies and of the international stakeholders.

2019. 05. 03. atlatszo.hu 3 The adoption procedure of the Fundamental Law of Hungary and the relevant cardinal laws 1. Summary of the relevant criticism The European Commission for Democracy through Law (Venice Commission), the Monitoring Committee and other relevant political stakeholders criticised the new constitutional framework of Hungary on a regular basis. In general, the negative remarks referred to the adoption procedure of the new Fundamental Law of Hungary (e.g. lack of social consultation, lack of the support of the opposition etc.) and to the supposedly extended number of 'cardinal laws' - laws in the Hungarian legal system providing merely a framework for guaranteeing basic rights and for the system of rule of law, establishing core regulations regarding state administration, jurisdiction etc. Cardinal laws shall be adopted by a two-third majority of the Parliament. According to the international criticism, e.g. to the Council of Europe, the Hungarian Fundamental Law and related cardinal laws were adopted in a hasty and opaque manner that disrespected proper democratic procedure and which, as a result, are not based on a consensus between the widest possible range of political forces in Hungarian society. 1

Furthermore - upon the negative comments of the above mentioned organ - the wide range of subjects regulated by cardinal laws and provisions can be harmful to democratic principles. This might be interpreted as an attempt by the current ruling majority to cement its values and policy preferences into the Constitutional framework, with the purpose of controlling the direction of national policy far beyond the mandate that it has received from the Hungarian voters. The constant changing of the Constitution for narrow party political interests undermines the required stability of the constitutional framework. 2. Argumentation in order to mitigate criticism Constitutionalisation and the charge of "instrumental use of the Constitution" The Venice Commission expressed its concern regarding the constitution-making process in Hungary, the lack of transparency of the process of the adoption of the new Constitution and the inadequate involvement of the Hungarian society. The Commission criticised the absence of sincere consultation and noted with regret that the consensus among political forces and within society generally required for the legitimacy of a constitution was absent. The Commission also argued, that frequent constitutional amendments are a worrying sign of an instrumental attitude towards the constitution as is the resort to the exceptional two-thirds majority in constitution-making without a genuine effort to form a wide political consensus and without proper public debates. Comments: The Hungarian authorities tried to open the doors during the consultation regarding the wording of the new Fundamental law as wide as possible. The Parliament established a temporary committee for drafting a proposal for the new constitution in June 2010. As a joint organ representatives of all parties of the opposition were present. Every party was guaranteed the right to invite 5-5 NGO, union etc. to join the work of the committee as external experts. On the other hand the committee itself contacted 1

Opinion of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) Request for the opening of a monitoring procedure in respect of Hunparvhllp "u\vv\ assemblv.coe.ini/Communication/amondoc08 2Q13.pdf

2019. 05. 03. atlatszo.hu 4 and communicated with all of the relevant organs and decision-making bodies within the Hungarian constitutional system: the ombudsman, Constitutional Court, Supreme Court etc. Representatives of the parties also held several debates and joined public discussion upon the invitations of civil societies, universities etc. to argue against or in favour of the draft of the new constitution. It shall be also mentioned, that while true and deep disputes took place around symbolic, but of course important topics (e.g. marriage, conception etc.), no relevant negative comment was uphold during public debates related to the core framework of the governmental or the parliamentary system at all (as, of course, the new Fundamental Law generally adopted the provisions of the previous Constitution in question). Opposition parties only left the committee in October of 2010, due to their concerns not to the drafting procedure but to the changes implemented related to the competences of the Constitutional Court in the then effective regulation. Following the termination of its mandate the committee submitted a proposal for the Parliament containing a brief and core legal basis and framework for the new Constitution. The proposal was adopted by the Parliament in March 2011 and the Parliament - as a constitutional power - begun the debate of the proposal for the Fundamental Law for Hungary on 22 March 2011. The proposal was submitted by all of the MPs of the majority coalition of Fidesz and the Christian Democrats; the parliamentary procedure took almost a month, the final vote was held on 18 April 2012 on the Fundamental Law, took effect on 1 January 2012. Altogether, for nearly one month the Parliament dealt exclusively with the proposal of the Fundamental Law of Hungary. All of the parties were invited to submit their own proposals of a new constitution, but only one MP of the independents done so. Although the opposition tried to minimize its importance, but prior to parliamentary debate the Government launched a so-called 'social consultation' as it has sent out dm-letters to all Hungarian citizens in order to ask them about some relevant points about the new constitution (rights and obligations, voting right of pupils, rights of future generations etc.). As a matter of fact it is hard to find any other method to contact the society related to such an important issue. All in all, the whole drafting and adoption procedure took almost 10 month - from setting up the drafting committee until the final adoption of the Fundamental Law - which cannot be labelled as a short timeframe compared to international examples. In response to the recurring criticism mounted by the Draft Opinion of the Venice Commission concerning the frequent and "instrumental" amendment of constitutional rules in Hungary, the following must be recalled. The Fundamental Law has been amended four times thus far. Two of these concern new enabling provisions, one amendment was made at the request of the European Commission. These were all minor changes with very limited political content. Even, the second amendment - that solely concerned the Transitional Provisions - is no longer in force as it has been subsequently annulled by the Constitutional Court. The Fourth Amendment is of a different character in so far as it affects a wide range of issues. It must be recalled again however that this was made necessary by a decision of the Constitutional Court that annulled the Transitional Provisions on formal grounds. Otherwise there was no independent political will to undertake a comprehensive constitutional revision. The Fourth Amendment was adopted through all necessary procedure, involving the necessary parliamentary debate and transparency, ensuring the rights of the opposition. According to the Venice Commission both the manner in which the constitution is adopted and the way in which it is implemented must create in the society the conviction that, by its very nature, the constitution is a stable act, not subject to easy change at the whim of the majority of the day. Constitutional and ordinary politics need to be clearly separated because the constitution is not part of the 'political game', but sets the rules for this game. Therefore, a constitution should set neutral and 4

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generally accepted rules for the political process. For its adoption and amendment, a wide consensus needs to be sought. Comments:

It appears that the Draft Opinion considers that constitutions should be pure legal texts that are adopted by the full consensus of parliament and society. In the opinion of the Hungarian Government constitutions cannot be detached from the political and social circumstances of their adoption and are thus necessarily political products reflecting a of political reality. 2

Use of cardinal Acts lL

The Venice Commission staled: The more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-thirds majority have of cementing its political preferences and the country's legal order.'"'' The Venice Commission expressed its hope that there would be "co-operation between the majority coalition and the opposition in the preparation of the implementing legislation". Comments: The existence of cardinal laws in the Hungarian constitutional system is nothing new. The previous constitution - adopted in 1989 - contained more or less the same number and the same range of subject matters to be regulated by two-third majority. Thus, the presence of these laws is not a token of the arrogance of the ruling coalition, but a steady feature of the Hungarian constitutional order. Only in a few areas does the Fundamental Law introduce new requirements for cardinal laws, mainly in relation to the prudent management of the state budget and state assets. 4

According to the Venice Commission, a number of provisions, which are now included in the Fundamental Law, have no constitutional character and should not be part of the Constitution (e.g. homelessness, criminal provisions on the communist past, financial support to students, financial control of universities). In addition to shielding these provisions from control by the Constitutional Court, this ensures that future governmental majorities In Parliament without a two-thirds majority cannot change these policies. Comments: The Hungarian Government disagrees with the concerns of the Draft Opinion of the Venice Commission as regards the subject matter and the degree of detail of the cardinal acts. There is no basis to believe that certain new issues to be regulated in cardinal acts or in the Fundamental Law will deprive future governments from being able to conduct a responsible and efficient economic and social policy. Contrary to what the Draft Opinion states, these cardinal acts or relevant parts of the Fundamental Law are typically short pieces of legislation mainly laying down fundamental principles designed to be followed by other regulations which can be passed by a simple majority. Hungary finds it misleading to refer in paragraph 138 of the Draft Opinion to the closing provisions of the Fourth Amendment as an example of expanding the range of cardinal provisions requiring two-thirds majority in the Parliament. Furthermore, we shall underline the pure fact, that while the previous Constitution covered around 28 scope/field of legislation needed a two-third majority, the current Fundamental Law contains nearly 26. 5

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Section 70 of the Comments of the Government of Hungary on the Draft Opinion of the Venice Commission http;â&#x20AC;˘Avww.kormany.hu Jow-nload'd/5c/eOOOO/HUresponse_ VenCom_DraHQp 2013061 U F I N A l - f m V p d f http://u wv..assemb1v.coe.int/Communicatioa'jmondocQ8 2013.pdf. para. 24. Section 64 of the Comments of the Government of Hungary on the Draft Opinion of the Venice Commission ' Section 65 of the Comments of the Government of Hungary on the Draft Opinion of the Venice Commission 1

2019. 05. 03. atlatszo.hu 6 It must also be recalled that the Draft Opinion erroneously states in paragraph 140 that the rules of the Fundamental Law established by the Fourth Amendment further restrict the scope of action of future governments (and are therefore in line with a previous tendency) by elevating provisions in the Fundamental Law that are not of constitutional level (homelessness, provisions relating to the communist regime, student contracts, financial management of universities). The draft opinion fails to acknowledge the fact that the rules incorporated in the Fundamental Law merely create the possibility of regulation (enabling provisions) therefore they do not restrict the room for manoeuvre of future governments which will have the possibility to adopt a different regulation on a lower level as they wish. 6

* Section 67 of the Comments of the Government of Hungary on the Draft Opinion of the Venice Commission

2019. 05. 03. atlatszo.hu 7 The new Hungarian media legislation, the role of the Media Council and other relevant bodies 1. Summary of the relevant criticism The European Commission, the Council of Europe as well as parts of the Tavares-report criticised the framework of the new Hungarian media regulatory framework, most notably Act CIV of 2010 on "The Freedom of the Press and the Fundamental Rules on Media Content'' (hereinafter: Smtv.) and the Act C L X X X V of 2010 on "Media Services and the Mass Media" (hereinafter: Mttv.)- The new legal framework was set up by the Parliament considering that the previous Act I of 1996 on the Media had been a 14-year old instrument and thus an outdated regulation, in the light of recent technical requirements. The previous Act on the Media was adopted in those days when internet, online and ondemand media services were barely known, not to mention the Act II on the Press, which dates back to 1986 and was adopted by a communist Parliament. The new laws attempt to catch up with international tendencies in order to establish a state-of-the-art legal environment for the Hungarian audio-visual media and for the printed and online press and to reshape the outdated media supervisory scheme. In order to fulfil such latter requirement of the latter, the new laws established the system of a so-called convergent media authority. Previously the Hungarian broadcasting regulatory authority functioned separately from that of the telecom sector. Conversely taking into account the recent the European tendencies (e.g. Ofcom of the United Kingdom), the Hungarian legislator decided to integrate these organs into a single body, with a view to the fact that broadcasting and telecommunication services are tending to converge. Criticism regarding the above mentioned new laws of Hungary is widespread in Europe, but most of the disapproving comments and remarks are based on misunderstandings and misinterpretations and may well be the result of certain the ignorance regarding of the actual text of the relevant Hungarian laws. E.g. the Council of Europe in its request for the opening of a monitoring procedure of Hungary which procedure was not launched eventually - requested the Hungarian authorities to: 1. abolish registration requirements for print and online media; 2. separate functionally and legally the Media Council from the Media Authority; 3. ensure that, by law, all decisions of the Media Council or Media Authority can be appealed before a court of law, both on substance and procedure 2. Measures already taken to mitigate criticism The above mentioned laws on the media and the press were modified several times upon the relevant initiatives of the European Commission , and that of the Council of Europe. Important parts of the laws were annulled by the Constitutional Court in December 2012. 7

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Following the administrative letters of the European Commission and negotiations with Commissioner Neelie Kroes , the Parliament adopted Act No. X I X of 2011, which amended provisions regarding balanced communication, requirements of registration for the printed and online press and which annulled potential fines for foreign media service-providers (promulgated on 22 March 2011) The Constitutional Court annulled several provisions of the media laws in its Resolution 165/2011. (XII. 20.), including provisions containing the same regulations and requirements for media services and for the press simultaneously, (promulgated on 19 December 2011) 8

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•

As the Constitutional Court required the Parliament to amend some of the media laws, the Parliament - following communication with the Council of Europe and in order to avoid an unconstitutional situation - adopted Act L X V I of 2012, which modified the points of the laws in question declared unconstitutional by the Court. Such amendment, among others, got the situation and security of information sources (of journalists) straight: according to the new regulations, journalists shall not be obliged to reveal their sources of information during legal procedures, (promulgated n 18 June 2012) Further to negotiations with the Council of Europe, the Hungarian Government agreed to amend the media laws again in order to ensure the independency of the President of the National Media and Infocommunications Authority. According to the amendment, the Chairman of the Authority shall be appointed by the President of Hungary upon the proposal of the Prime Minister (previously the Prime Minister itself appointed the Chairman) (Act No. X X X I I I of 2013, Promulgated 4 April 2013) 9

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As the opinion of the European Council was published on 25 April 2013, the above mentioned points of the opinion appear to be somewhat unjustified as all of them had already been answered by the amendments at that time. E.g.: •

"Abolish registration requirements for print and online media":

Since 22 March 2011, subsection (2) of par. 42. of Mttv. contains the following related to registration requirement for printed and online press: "On-demand and ancillary media services provided by media service providers established in Hungary, as well as press products published by a publisher established in Hungary under the scope of this Act shall be notified to the Office for registration within sixty days from commencement of the service or activity. The registration is not a precondition for starting such a service or activity." According to the amended regulations, online and printed press products, websites do not have to register in order to publish their content, the registration is merely an administrative guidance for the Authority and helps to identify and to have an up-to-date record about the publishers. •

"Separate functionally and legally the Media Council from the Media Authority":

As described before, the establishment of a convergent authority-system was a requirement of the technological development of the 2 1 century. On the other hand, the National Media and Infocommunications Authority ('Media Authority) and the 'Media council' work separately and independently from each other. Notwithstanding this, from a purely technical point of view, that the Media Council is an organ within the Media Authority. Nonetheless, in order to understand the legal situation and hierarchy, provisions of the Mttv. shall be quoted and read carefully. Subsection (1) of par. 109 of Mttv. says that "the National Media and Infocommunications Authority is an independent regulatory body solely subject to the law". It is important to underline that the new Media Authority is an independent regulatory body and is not subordinated to the Government as the previous Hungarian authority, the Natonal Infocommunication Authority (NHH, existed before 2010) was a government agency and thus dependent on the government. st

While the Media Authority is an independent regulatory body, the "Media Council shall be a body of the Authority with independent powers under the supervision of the Parliament and having legal personality. The Media Council shall be the legal successor of the National Radio and Television Commission. The Media Council and its members shall be solely subject to laws and may not be instructed with respect to their activities.". (Subs. 1-2 of par. 123 of Mttv.) Thus the Media Council and its members are elected by the Parliament - like the members of its predecessor, the National Radio and Television Commission (ORTT) - and "the Media Council shall set its own rules of ••'http:,.ww\v.parlameril.hu/irom39/07022/Q7022-0066ndf hHD:/A\ w-w.oarIament.hu/irom39/]00S1/10051-0017.ndf lu

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procedure". (Subs. 1 of par. 131. of Mttv). The quoted legal provisions ensure the independent structure of the Media Authority and the Media Council. â&#x20AC;˘

"Ensure that, by law, all decisions of the Media Council or Media Authority can be appealed before a court of law, both on substance and procedure":

All the relevant decisions (e.g. contractual and authtority of the Media Authority and the Media Council can be appealed in front of court, according to the Par. 163-165 of Mttv - although the differences between legal term an 'appeal' and a 'review' in front of court shall be taken into account. According to the law: "no appeal may be lodged against the regulatory decision of the Media Council passed in its capacity as authority of the first instance. Review of the regulatory decision of the Media Council may be requested only by the client, and as regards the provisions expressly applicable to him/her, the witness, the official witness, the expert, the interpreter, the holder of the object under inspection, the representative of the client and the liaison officer, by claiming infringement of law, at the court proceeding in administrative cases, within thirty days upon announcement of the regulatory decision, by bringing an action against the Media Council (...) The court proceedings instituted on the basis of the statement of claim for review of the Media Council's decision shall be subject to the provisions of the Act on the Code of Civil Procedure on public administration lawsuits, subject to the provisions of this Act". The court shall even have the powers to alter the decision of the Media Council. There is also legal remedy against the decisions of the Media Authority: The client shall have the right to appeal against the regulatory decision of the Office (of the Media Authority) passed according to this Act at the Media Council, with the exception of decisions against which no appeal may be lodged under the Act on the General Rules of Administrative Proceedings and Services or under this Act (...) Review of the second instance decision of the Media Council may be requested only by the client, and as regards the provisions expressly applicable to him/her, the witness, the official witness, the expert, the interpreter, the holder of the object under inspection, the representative of the client and the liaison officer, by claiming infringement of law, at the court proceeding in administrative cases, within thirty days upon announcement of the regulatory decision, by lodging a statement of claim". The above mentioned provisions of Mttv. show that all of the effected parties have the right for seeking legal remedy against the potentially wrong decisions. As it comes from the quoted paragraphs, a detailed and multi-levelled system of legal remedy is offered by the law. 4. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law.

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Request of the Monitoring Committee of the European Council for the opening of a monitoring procedure in respect of Hungary (25 April 2013)"

"135. European Commissioner Kroes expressed her strong reservations with regard to the media Acts and indicated that several provisions in this law seemed to be non-compliant with E U law, in particular the Audiovisual Media Directive, the Treaty on the Functioning of the European Union on the freedom of establishment and the freedom to provide services, as well as Article 11 of the EU Charter of Fundamental Rights. The European Parliament, on 10 March 2011, expressed its concerns with regard to the media legislation and called upon the Hungarian authorities to fundamentally " htlp:. uTATA.assemblv.coc.irH/Communication/amondocOH 2013.pdf

2019. 05. 03. atlatszo.hu 10 reconsider and amend the media legislation package. On 9 February 2012 the Commission indicated that it would consider starting Article 7 procedures if Hungary continued to flout E U law." Comments: as mentioned above, the Hungarian Government agreed to amend the media legislation upon the requests of the European Commission. "136. The then Council of Europe Human Rights Commissioner, Thomas Hammarberg, also expressed his concerns about what he termed the "corrosive cumulative impact" of the new media legislation on the freedom of the media and freedom of expression in Hungary. His report highlights his concerns with regard to, inter alia, the, "politically unbalanced regulatory machinery with disproportionate powers and lack of full judicial supervision", threats to the independence of the public broadcasters, infringements of the rights of journalists to protect sources, as well as attempts of a priori content regulation." Comments: members of the Media Council are elected by the Parliament, such as the members of the previously existed National Radio and Television Commission (ORTT). Furthermore, the members shall be elected with the two-thirds majority of the votes of Members of Parliament present, which according to the adopted international standards - guarantee a broader legitimacy compared to the previous regulation, where members of ORTT were only elected with a simple majority of the votes, Although critiques say that the new Media Council is partial, the following shall be underlined: o Members of the previously existed media authority, the ORTT were also nominated by the parliamentary groups and were elected by the parliamentary majority. Although every faction had the right to nominate (at least) one member, according to a complicated calculating method, in sharpened situations vote of the Chairman of ORTT decided- who was nominated by the Prime Minister and the President of the Republic and elected by the actual parliamentary majority. At the end of the day, the decision-making procedure and voting of ORTT reflected to the political proportion of the Parliament. o Member of the current Media Council were also nominated by factions and elected by the parliamentary majority. All of the parliamentary parties were invited to join the ad-hoc committee nominating 4 candidates for the Media Council - 2 of them representing the 'governmental side' and 2 of them the 'opposition'. As the 3 party of the opposition at that time (socialist MSZP, greenish-leftish LMP and far-right Jobbik) could not agree on whom to nominate, they refused to join the ad-hoc committee and thus they did not practice their right by law on their own decision. o On the other hand, the new media laws also established the 'Board of Trustees of the Public Service Foundation' is the owner of the public media service providers (e.g. Hungarian Television, Hungarian News Agency etc.) The Board of Trustees is consisted of delegates of the parties, as the Parliament shall elect six members to the Board of Trustees. Half of the members who may be elected by the Parliament to the Board of Trustees shall be nominated by the governing factions, while the other half shall be nominated by the opposition. This body and its authority is important from two point of view: â&#x20AC;˘ While the 3, above mentioned parties of the opposition refused to nominate 2 members (out of 4) to the Media Council - because they could not agree, because there were not enough seats for each of them - , they participated in the nominating and election procedure of the members of the Board of Trustees of the Public Service Foundation without demur, as one seat was available for each party of the opposition (altogether 3 seats). â&#x20AC;˘ As outlined above, this, bipartisan Board of Trustees own the Hungarian public media: thus the statements and argumentations related to the dependence and subordination of the Hungarian public media are obviously lacking legal fundaments. 10

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"137. Responding to domestic and international criticism, a number of amendments were introduced. These amendments limited the requirements for balanced coverage to broadcast media only; specified that foreign broadcasters could not be fined under the Hungarian media law for incitement to hatred; clarified that on demand media providers only have to register after they began offering media services; and clarified the provision that media content may not "cause offence" in such a manner that this is limited to discrimination or incitement to hatred. While these amendments were welcomed as a positive step in the right direction, they were seen as insufficient to address all the substantial shortcomings and concerns with regard the media laws. On 19 December 2011, the Constitutional Court of Hungary issued a ruling in which it declared unconstitutional the provisions which extended the scope of the media law to the online and printed press as well as the provisions that obliged broadcasters to provide the Media Authority with any and all information it requested. In addition it ruled that the powers of the newly established Commissioner for Media and Communications were unconstitutional as being an unjustified restriction of the freedom of the press and annulled the provisions that would have obliged journalists to reveal their sources in legal proceedings. The court gave the legislator until 31 May 2012 to introduce amendments to the media legislation in line with the ruling of the court."'

Comments: As mentioned in point 2 of this chapter (Concerns and amendments regarding the new Hungarian media legislation and media supervisory bodies - Measures already taken to mitigate criticism) and what the report of the Monitoring Committee of the European Council forgets to mention, the Hungarian Parliament adopted the Act No. L X V I of 2012 on 4 June 2013 as a reflection to the ruling of the Constitutional Court: the Act implemented the required amendments. "138. On 11 May 2012, the Council of Europe Directorate General for Human Rights and the Rule of Law published an expert assessment of the Hungarian media legislation, including on the proposed amendments to the media laws following the decision of the Constitutional Court. EU Commissioner Kroes welcomed this expertise which confirmed the concerns of the European Commission with regard to the media legislation in Hungary. 139. The expertise emphasised that in order to be brought into line with European democratic standards any regulatory system for the media should be capable of guaranteeing and, equally important, be seen to guarantee, the independence of this regulatory system from political influence and control. The key to this independence of the regulatory body is the manner in which it is appointed. However, in the case of Hungary, the Council of Europe assessment established that the process for appointments to the media regulatory bodies "do not ensure political independence or neutrality". In addition, it noted that existing safeguards in the act were seriously undermined by the fact that the ruling coalition holds a two-third constitutional majority in parliament. It therefore recommended a thorough reformulation of the appointment process to the media regulatory bodies." Comments on point 138-139.: The Hungarian Parliament also amended the media laws upon the recommendation of the Council of Europe on 25 March 2013 (Act No. X X X I I I of 2013). According to the amendment, the Chairman of the Authority shall be appointed by the President of Hungary upon the proposal of the Prime Minister and the Chairman and the members of the Media council shall not be re-elected after their mandate expired. 140. The new media laws extend to the printed and online media the obligation for media providers to register with the Media Council, in addition to the usual linear broadcasting media. This obligation caused considerable disquiet among inter alia, national and international media outlets as well as international organisations. While licensing audio-visual media that use scarce broadcasting frequencies is accepted under the ECHR, the mandatory registration of print and online media beyond simple tax or business registration- is contrary to the principles of proportionality established by the case law of the ECtHR. This mandatory registration of online and printed media was not annulled by the Hungarian Constitutional Court decisions, and the amendments introduced by the 11

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Hungarian authorities do not address the concerns expressed in this respect. We therefore recommend that the requirement for printed and online media to register with the Media Authority be abolished.

Comments: As mentioned above, the registration is not a precondition for starting such a service or activity. On the other hand it shall be underlined that prior to the new media laws of 2010 all products of the printed press were subject to mandatory registration. According to the Act No. 11. of 1986 another law implemented by a communist, non-democratically elected Parliament - the production and publication of press products were subject to the obligation of (prior) notification. Furthermore, the details of the registration/notification were laid down in a decree of the communist Council of Ministers (the Government at that time) from 1986: a government agency, namely the National Office of Cultural Heritage, a subordinated organ of the Ministry of Culture. Compared to the effective regulation, this type of registration of the printed press was much more stricter - and was in effect until 2010. "141. Of special concern for the Council of Europe experts are the provisions in the media law that aim at establishing government control over both content and dissemination of information provided by media outlets. The law establishes that a person has the right to receive "proper" information on public affairs. Moreover, media providers are obliged to provide "authentic", "comprehensive", "factual", "objective" and "balanced" information about public affairs. These criteria are subjective and open to interpretation, which leaves excessive discretion to the regulatory authority. This in turn raises serious questions about the compatibility of such provisions with the principle of freedom of expression as guaranteed by Article 10 of the ECHR. These provisions should be completely revised in order to remove any ambiguity or discretion on the part of the media authority in interpreting these clauses. Moreover, any interference with regard to the content of news coverage by broadcasters should be eliminated, with the exception of the obligations for an impartial and balanced news provision by the public broadcaster." Comments: The criticized part of the Smtv. was amended several times in the past years. First of all, the above mentioned Act No. X I X of 2011 narrowed the scope of the obligation of balanced coverage exclusively for 'linear media services' (tv and radio). Secondly, the Act No. X X X I I I of 2013 changed the wording of Smtv: instead of "proper, authentic, comprehensive, factual, objective, balanced" coverage, linear media service providers are obliged to give "balanced coverage". "142. In the view of the Council of Europe experts the regulation of the public service media is another area of concern. Several provisions in the media law, especially with regard to the appointment and composition of the oversight bodies, undermine the independence of the public broadcaster and open it to undue political influence. 143. Independent and impartial media regulatory authorities are essential for the protection of the freedom of expression and the exercise of free speech, as guaranteed in Article 10 of the ECHR. In this context the criticism and concerns raised by the Council of Europe experts in relation to the regulatory framework for the media in Hungary are very worrisome." Comments on points 142-143: See above the comments given for point 136 and the part '2. Measures already taken to mitigate criticism'. "144. The National Media and Info-communications Authority consists of several interrelated bodies, the most important of which are the President of the Authority, the Media Council and the Office of the Authority. The President of the authority is directly appointed by the Prime Minister, who has full discretion in this choice, for a nine-year term. The vice-presidents of the authority are in turn directly appointed, for an indefinite term, by the President of the Authority. The Media Council is appointed by the parliament. However, according to the media law, the President of the Authority is the only candidate for the position of Chair of the Media Council. If the parliament fails to elect the President as Chair of the Media Council, he or she will still chair the Media Council, but in this case without 12

2019. 05. 03. atlatszo.hu 13 voting rights. All other members are appointed by the parliament on the basis of nominations by a Nominations Committee that is comprised of members of all factions in the parliament. Each member on this committee has a weighted vote corresponding to the numerical size of his or her faction in the parliament. The Nominations Committee should strive to make its nominations on the basis of consensus, but if it fails to do so, it can decide with a two-thirds majority of the weighted votes. Under the current composition of the parliament, this de facto guarantees full control of the ruling majority over the Media Council. The appointment mechanism of the Media Council and President of the Authority is insufficient to guarantee the independence of the Media Authority from political interests and control. This problem is compounded by the integration of the licensing media oversight functions in one single media authority - unique in Europe - and the automatic designation of the President of the Authority as Chair of the Media Council. It is strongly recommended that the licensing and media oversight functions are split into two functionally separate and independent bodies and that the appointment procedure for these bodies is reviewed so as to ensure the de facto political independence of its members." Comments: See above comments on point 136. According to the recent amendments, the Chairman of the Media Authority is appointed by the President of the Republic and his/her mandate shall not be extended. The Media Council and the Media Authority exist and work as separated bodies, the opposition 'voluntarily' refused to join the Nominations Committee. It is highly obvious, that the argumentation focuses rather on the 'current composition of the parliament" then the legal background and facts. "146. In his letter to the Minister of Justice of Hungary of 29 November 2012, the Secretary General of the Council of Europe indicated that further amendments to the Hungarian Media Acts were necessary in order to guarantee the independence of the media. To that end, he suggested separating the functions of President of the Media Authority and Chair of the Media Council, to have these persons elected by parliament and not appointed by the Prime Minister and to limit the term in office to one mandate. In his response of 19 December 2012, the Minister of Justice informed the Secretary General that the authorities accepted his suggestion to limit the term in office of the President of the Media Authority to one mandate, but rejected the proposal to separate the function of the chairmanship of the Media Council from the President of the Media Authority or to review the appointment procedure for this post. The integral implementation of the proposals of the Secretary General of the Council of Europe would have been an important step towards ensuring the independence of the media regulatory bodies. We therefore regret that his proposal was not fully implemented by the authorities." Comments: See above comments on points 136. and 146. Media Council and Media Authority work separately, the Chairman is appointed by the President of the Republic (instead of the Prime Minister) and the Chairman's and the Media Council-members' term is limited to one mandate etc.

2019. 05. 03. atlatszo.hu 14 Political campaigning in the media during elections 1. Summary of the relevant criticism The Fourth Amendment of the Hungarian Fundamental Law amended the constitution with the followings: ''political advertisements (...) shall exclusively be published by way of public media services and under equal conditions", where the term 'media service' refers exclusively to audio-visual (tv, radio) media service. Although the Hungarian Government provided detailed background papers on the reasoning of the new regulation (see below), the Venice Commission, the Council of Europe, the Tavares-report and the European Commission in their administrative letters (see also below) criticized the adopted amendments stating that the respective provisions restrict equal access to the media for political parties and thus violates the right of the people for balanced information. 2. Measures already taken lo mitigate criticism Upon the above mentioned criticisms and further to discussions with the European Commission, the Hungarian Government agreed to amend the relevant terms of the Fundamental Law. In order to do so, the Ministry for Public Administration drafted and introduced the Fifth Amendment to the Fundamental Law, containing new rules for political advertising during election campaign. The first version of the Fifth Amendment to the Fundamental Law was submitted to the Parliament on 14 June 2013, due to the continuous negotiations with the relevant international- and EU-bodies, the Ministry reintroduced the bill to the Parliament on 30 August 2013, which was adopted on 16 of September. Ih

The heavily criticised Article 5 of the Fourth Amendment to the Fundamental Law previously provided: "(3) For the dissemination of appropriate information required for the formation of democratic public opinion and to ensure the equality of opportunity, political advertisements shall be published in media services, exclusively free of charge. In the campaign period prior to the election of Members of Parliament and of Members of the European Parliament, political advertisements published by and in the interest of nominating organisations setting up country - wide candidacy lists for the general election of Members of Parliament or candidacy lists for the election of Members of the European Parliament shall exclusively be published by way of public media services and under equal conditions, as determined by cardinal Act." The Hungarian Government agreed to amend the above mentioned part of the Fundamental Law. However it is apparent that many of the international experts and professionals conducted their relevant reviews on the basis of misunderstandings and misinterpretations of the respective Hungarian legal framework. For instance, in an expert opinion on the Fourth Amendment prepared by Messrs. Francis Delperee, Pierre Delvolve, and Eivind Smith the authors include into the legal term of'media services' in addition to tv- and media-services, the printed and online press as well - while printed and online press are clearly not included in the relevant definition of 'media services' as ser out in the law. 12

According to Article 2 of the Fifth Amendment to the Fundamental Law: "During election campaigns, for the dissemination of appropriate information required for the formation of democratic public opinion, political advertisements shall be published in media services, exclusively free of charge and upon requirements laid down in cardinal law ensuring the equality of opportunity". |J

p.34. hltp://ww.kormanyJm'dow " Unofficial translation. The official version in Hungarian: http

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Article 2 of the Fifth Amendment also annuls the followings from the wording of the Fundamental Law:

"In the campaign period prior to the election of Members of Parliament and of Members of the European Parliament, political advertisements published by and in the interest of nominating organisations setting up countrywide candidacy lists for the general election of Members of Parliament or candidacy lists for the election of Members of the European Parliament shall exclusively be published by way of public media services and under equal conditions, as determined by cardinal Act". 3. Potential further measures The Hungarian legislator shall introduce and implement amendments to the cardinal law mentioned in the Fifth Amendment of the Fundamental Law. Sections 146-148 of Act No. X X X V I . of 2013 on Electoral Procedure contain regulations regarding the restrictions on political advertising in media services during election campaigns. As the Hungarian Government intends to fulfil the requirements of the above mentioned organs as well as those resulting from the Fifth Amendment of the Fundamental Law, it has to implement the new conditions to the cardinal act in question. 4. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. â&#x20AC;˘

Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013): 14

"D. Media access for political parties (Article 5.1) 37. Article 5.1 of the Fourth Amendment replaces Article IX.3 of the Fundamental Law and provides (1) that "political advertisements shall be published in media services, exclusively free of charge" and (2) that "political advertisements published by and in the interest of nominating organisations setting up country-wide candidacy lists for the general election of Members of Parliament or candidacy lists for the election of Members of the European Parliament shall exclusively be published by way of public media services and under equal conditions". This second regulation forbids any, even unpaid, political advertising by these organisations in commercial media services prior to elections. Sections 146-148 of the Act on Electoral Procedure of 2012 implement this provision (CDL-REF(2013)018). 38. This provision was adopted on the constitutional level as a reaction to decision 1/201333 of the Constitutional Court, annulling Section 151 of the Act on Electoral Procedures during the electoral campaign, which specified that all parties can advertise only within highly restricted time-limits and that they are allowed to use public T V and radio stations only during political campaign. The Court found that "the prohibition is a significant restriction of expressing political opinion in the course of the election campaign" and "with regard to the aim of allowing the free formation and the expression of the voters' will" and found it "gravely disproportionate" 39. In the Background Document, the Hungarian Government explains that the goal of this provision is to ensure the publication of political advertising for political parties with nationwide support on an equal basis and free of charge. Referring to the judgment of the European Court of Human Rights in the case of TV Vest AS & Rogaland Pensjonistparti v. Norway, the Government points out that paid political advertising is prohibited in a number of European countries. " http:/'wwvenicexoc

inl/vtcbfonTis/documenls/?pdl^CDI,-AD(2013>012-e

2019. 05. 03. atlatszo.hu 16 (...) 44. The Commission underlines that limits on political advertising have to be seen against the legal background of the particular Member State. Where political advertising in electoral campaigns is concerned, limitations have to be justified in a convincing way as to their necessity in a democratic society. According to the Hungarian authorities the ban on political advertising on private television during the electoral campaign strives "for the dissemination of appropriate information required for the formation of democratic public opinion and to ensure the equality of opportunity". The Venice Commission cannot agree that this is a sufficient justification for the prohibition of any political advertising in commercial media services prior to elections. 45. The Venice Commission attaches great importance to the assessment by the Hungarian Constitutional Court's decision 1/2013 where the Court pointed out that political advertising, besides influencing voters, also informs them and where it stressed that a prohibition of political advertising on commercial television targets exactly the type of media that reaches voters in the widest range. Indeed one has to take a particular look at the effects of the amended Article IX.3 of the Fundamental Law. Since the Government usually has a better chance of public appearances, the governing parties' positions will already be promoted indirectly through media coverage of governmental activities and statements. The prohibition of any political advertising in commercial media services, which are more widely used in Hungary than the public service media will deprive the opposition parties of an important chance to air their views effectively and thus to counterweigh the dominant position of the Government in the media coverage. 46. The amended Article IX.3 provides that only '"nominating organizations setting up countrywide candidacy lists for the general election of members of Parliament or candidacy lists for election of Members of the European Parliament" shall be published by way of public media services on equal conditions. According to Article 127.8 of the Act on Electoral Procedure of 2012 (CDLREF(2013)018), parties which do not set up nationwide candidacy lists and independent candidates have 1/30 of the air time available to a national list per candidate. A constitutional guarantee also for non-nationwide 46. The amended Article IX.3 provides that only "nominating organizations setting up countrywide candidacy lists for the general election of members of Parliament or candidacy lists for election of Members of the European Parliament" shall be published by way of public media services on equal conditions. According to Article 127.8 of the Act on Electoral Procedure of 2012 (CDLREF(2013)018), parties which do not set up nationwide candidacy lists and independent candidates have 1/30 of the air time available to a national list per candidate. A constitutional guarantee also for non-nationwide lists and independent candidates would be welcome. 47. Finally, as concerns the level of regulation, Article IX.3 of the Fundamental Law is one of the provisions introduced by the Fourth Amendment containing rather detailed rules which might require amending from time to time and are therefore usually regulated by ordinary laws. Raising such provisions to the level of the Constitution withdraws them from constitutional review".

â&#x20AC;˘

Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI)) (24 June 2013)

"According to the Tavares-report, the report itself "Expresses concern at the effects of the provision of the Fourth Amendment banning political advertising in the commercial media since, although the stated aim of this provision is to reduce political campaign costs and create equal opportunities for the 16

2019. 05. 03. atlatszo.hu 17 parties, it jeopardises the provision of balanced information; takes note that the Hungarian Government is in consultation with the European Commission on the issue of the rules on political advertising; takes note that restrictions also exist in other European countries; takes note of the opinion of the Venice Commission on the Fourth amendment to the Hungarian Fundamental Law (No CDLAD(2013) 012), which states that "limits on political advertising have to be seen against the legal background of the particular Member State" and that "the prohibition of any political advertising in commercial media services, which are more widely used in Hungary than the public service media, will deprive the opposition of an important chance to air their views effectively and thus to counterweigh the dominant position of the government in the media coverage' ' 1 5

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Comments of the Government of Hungary on the draft opinion on the Fourth Amendment to the Fundamental Law of Hungary (11 June 2011)

"III. D. Media access for political parties (18) First, it must be pointed out that contrary to the assessment of the Draft Opinion the Fourth Amendment does not overrule decision 1/2013 of the Constitutional Court. As it is demonstrated below the restriction under the Fourth Amendment are much narrower than those adjudicated by the Court in January 2013 (e.g. not covering print, internet media, etc.). (19) In fact, the Fourth Amendment contains only the core of the legislative provisions governing of political campaign activity through the various media. To get the full the picture the applicable provisions of Act C L X X X V of 2010 on Media Services and Mass Media as well as Act X X X V I of 2013 on the Electoral Procedure must also be considered. (20) This is all the more necessary as the Draft Opinion (paragraph 44) concludes that the limits on paid political advertisements in Hungary may result in the lack of information for the voters. This, coupled with the presumed "dominant position of the Government in the media coverage" (paragraph 45), deprives opposition parties to air their views effectively. In the opinion of the Hungarian Government the opposite is true. (21) Political campaign in the various media is regulated as follows in Hungary. First of all, internet, print media and cinema political advertising is not constrained by law (during electoral campaigns however all media outlets must register with the National Audit Office their price lists and publish them). Political propaganda on posters, fliers, billboards remain 5 free. Even within commercial radio and television political talk-shows, news programmes, analyses, etc. come under no restriction. The only restriction that applies is with regard to commercial radio and TV advertising. This, as underlined in the Background Document, is driven by the legitimate demand that the differences in the financial power of parties should not distort the electoral campaign. (22) Contrary to Paragraph 45 of the Draft Opinion, the allotted time (600 minutes) for political advertising in public media is unequivocally regulated in the Act on Electoral Procedure (Section 147). Therefore there is no risk that public media services would restrict political campaigning in times of elections. Moreover, the legislation favours smaller parties in so far as air time is allocated on an equal footing among all national parties. As political advertisements are aired free of charge this has a positive equalising effect, rather than an exclusive effect as the Draft Opinion suggests. (23) Also, it must be pointed out that under the Act on Electoral Procedure individual candidates as well as parties not able to present a nationwide candidacy list are allocated free air time on a proportionate basis. Therefore, violation of Article 14 and Article 10 ECHR is inconceivable.

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(24) Hungary maintains that these restrictions do not go beyond what is already applied in one way or another in a number of Member States of the Council Europe, e.g. France, Italy, Poland, etc.

(25) Finally, with regard to the political advertisements during the elections to the European Parliament (Paragraph 47), the Hungarian Government will withdraw the draft amendment to the implementing law on electoral procedures. As a result, the same rules will continue to apply to both national and European Parliament elections, in full conformity with the Fundamental Law. (...) Conclusions (72) Another pronounced example concerns the regulation of political advertisements, where the Draft Opinion suggests, that the relevant Hungarian regulation excludes non-nationwide parties from media coverage. This is again factually incorrect, as political parties which do not set up nationwide candidacy lists and even independent candidates will have access to public media as regulated in the Act on Electoral Procedure/" â&#x20AC;˘

Technical note by the Hungarian Government for European Commission for Democracy through Law (Venice Commission) regarding its opinion the Fourth Amendment to the Fundamental Law of Hungary (21 March 2013) 16

"7. Provisions of the Proposal concerning the electoral campaign advertisings In order to reduce the campaign cost and create equal opportunities for the parties, the Proposal and a motion for its amendment set out new rules for political advertisings. The Proposal prohibits paid political advertising both in public and commercial media including television and radio channels. This general rule for political advertisements extends both for the electoral campaign period and the period outside the campaign. However, the Proposal does not intend to prevent political advertising from being published by broadcasters free of charge and on equal basis. Besides, the Proposal does not affect at all the publication and dissemination of posters, leaflets and other similar materials. As regards the electoral campaign period, the Proposal obliges the public (non-commercial) broadcasters to ensure free airtime on equal basis for political advertisings. This solution, excluding paid political advertisings and, as a positive obligation, ensuring free airtime on equal basis in campaign period is similar to the method followed by a number of European countries (e. g. France) as also presented by the European Court of Human Rights in its judgement T V Vest AS & Rogaland Pensjonistparti v. "Norway' in 2008. In this case, where the facts were not identical to the rules laid down in the Proposal not prohibiting the political advertising in the media, the Court noted that there was no European consensus in this area and accepted that lack of consensus spoke in favour of granting States greater discretion than would normally be allowed in decisions with regard to restrictions on political debate." â&#x20AC;˘

Background document on the Fourth Amendment to the Fundamental Law of Hungary (24 April 2013) 17

"7. The question of political advertisings

In order to reduce election campaign costs and create equal opportunities for the parties, the Amendment establishes new rules with respect to political advertisings. The Amendment prohibits the publication of paid political advertisings both in public service and commercial media (including radio and television channels). This general prohibition extends to both the electoral campaign period and the period outside the campaign. However, the Amendment ensures the possibility for the publication 1,1

1 1

http: V\v\v^v.venicexoe.in^vvebforms/doct]menls/' pdf=CDL-REF(2QI 3lQI4-e hnp:/M^.ver)icecoe.int/\vebforms/documents/ pdf^CDL-REF(2013)OI9-e 9

2019. 05. 03. atlatszo.hu 19

of political advertisings free of charge through broadcasting services on equal basis. Besides, the Amendment does not affect at all the political advertisings that are executed not through broadcasting services (e.g. posters, flyers). It is to be remarked that, in relation to the review of the regulation of an earlier act on the electoral procedure, the Constitutional Court also stipulated that: "in the interest of the realisation of balanced information, the legislator may set up restrictions and conditions for the publication of political advertisings" [Decision No. 27/2008. (III. 12.) of the Constitutional Court, ABH 2008, 289, 295.].

As regards the electoral campaign period of national and European parliamentary elections, the aim of the Amendment is that public broadcasting services ensure the publication of political advertisings of political parties with nationwide support on equal basis and free of charge. This solution - which, on the one hand, excludes paid political advertisings in broadcasting services, and on the other hand, requires as a positive obligation broadcasting services to publish political advertisings free of charge during the campaign period - is similar to the method followed by several European countries, as can be derived from the 2008 judgement of the European Court of Human Rights in case " T V Vest AS & Rogaland Pensjonistparti v. Norway". The judgement also refers to the fact that paid political advertisings are prohibited in the media in the vast majority of Western European countries, namely, in Belgium, Denmark, France, Germany, Ireland, Malta, Norway, Portugal, Sweden, Switzerland and the United Kingdom. Moreover, in certain states (for instance, in Denmark and Ireland), the general rule is that political advertisings are completely prohibited in the media; in France, the publication of commercial advertisings with a political aim and that of paid political advertisings in public broadcasting services is prohibited. Nonetheless, several countries (Belgium, the Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta) also require that a certain amount of free air-time is provided in the media for political advertisings. In most cases (e.g. the Czech Republic, Estonia, France, Latvia, Luxembourg), this obligation is set only for the public broadcasting services. Nevertheless, it is to be noted that the facts of the case serving as the basis of the above j udgement of the European Court of Human Rights - condemning Norway - were not identical to the provisions of the Amendment, as this latter - contrary to the Norwegian case and the regulation of several other European states - does not prohibit the publication of political advertisings, only excludes paid advertisings and - in specific cases - allows publication during the campaign period only in the public broadcasting services in order to create equal conditions. Furthermore, it is to be emphasised that the European Court of Human Rights also noted in its judgement that there is no European consensus in this matter, and the lack of uniform solutions reinforces that in the area of the regulation of political advertisings, the member states are to be granted greater discretion than would normally be allowed in decisions with regard to restrictions on political debate. The freedom of expression, and, in particular, the freedom of the press and of information is thus recognized. The new provisions of article 3 replace the prior wording under which The detailed rules for the freedom of the press and the organ supervising media services press products and the infocommunication markets shall be regulated by cardinal Acts - which raised the issue about whether the freedom of the press and of information was subject to the adoption of an organic law. The ambiguity has now been lifted: the freedom of the press and of information is recognized by virtue of the subparagraphs 1 and 2; their efficiency does not depend on statutory rules."

2019. 05. 03. atlatszo.hu 20 The new election system of Hungary - criticism and background details regarding Summary of the relevant criticism Among other international decision-making bodies, the Council of Europe and its Monitoring Committee heavily criticized the framework of the new Hungarian election system and the procedure as it was adopted. According to the critiques the core problem with the new regulations is related to the • (re)drawing of the constituency-boundaries and the potentiality of the so-called gerrymandering • procedure of the implementation of the relevant laws as they were submitted for the Parliament as individual MP's bills and were lacking of cross-party consensus As it is stated in the opinion of the Monitoring Committee of the Council of Europe: "11. In addition, the Monitoring Committee calls upon the Hungarian authorities, with regard to the: 11.2. Act on Elections of Members of the Parliament to: 11.2.1. ensure that the election districts are drawn up by an independent authority on clear legal criteria; 11.2.2. ensure that the district boundaries itself are not defined by law, especially not by a cardinal law. In addition, the Monitoring Committee recommends the authorities to seek a wide consensus between all political parties on the so-called compensation formula and to allow minority voters up until Election Day the choice of voting for a regular party or a minority list". Argumentation in order to mitigate criticism First of all, the followings shall be emphasized: • The number of MPs were reduced from 386 to 199 • The new structure required a new system and to redraw the constituencies • The previous structure and boundaries of the constituencies were laid down in a decree adopted by the last Hungarian communist Council of Ministers in 1990 • The Constitutional Court ruled twice (2005, 2010) that the then effective legal framework was unconstitutional and the regulation of the boundaries shall be incorporated to a law of the Parliament • Although the boundaries are regulated by a cardinal law does not weaken but strengthens the democratic and transparent background of the system, because: o The amendment of a cardinal law requires a two-third majority meaning that a crossparty agreement is necessary in general o Any amendment to the law will be tabled in the Parliament and will be adopted during a public and open debate, while an amendment to a secondary legislation such a decree gives the executive power the chance to amend the boundaries in the background and without transparency In Hungary there has been a need for years from the society and from the political stakeholders as well to reduce the number of the political class (even the then Prime Minister Ferenc Gyurcsany promised in February 2009 to halve the number elected representatives at the national and local level and to have a 199-membered Parliament). Compared to the total population of Hungary the political class, especially the number of the MPs was disproportionately high. As a result of the promises made by 20

2019. 05. 03. atlatszo.hu 21

Fidesz-KDNP during the election campaign of 2010, the new parliamentary majority adopted a law in 2011 (Act on Elections of Members of the Parliament) which reduced the number of members of it. According to the new law the number of MPs of the Parliament from 2014 shall be not more than 199. As a result of the reduction in the number of Members of Parliament in the new election law, as well as in order to address the excessive variations in the size of the constituencies, the boundaries of the election districts were redrawn. In addition, the new act specifies that the maximum deviation in the number of voters should not deviate more than 15% between constituencies at the national level. If the variation is more than 15% the parliament has to amend the constituency boundaries. The need for the redraw - in law! - was also a request of the Constitutional Court, as it ruled in its decision of 22/2005. (VI. 17.) that the Hungarian National Assembly caused an unconstitutional situation by not providing the equal voting rights for all of the citizens ('horizontal inequality of the right to vote'). As the Court pointed out, due to migration tendencies within the country the inhabitants (and thus the number of citizens eligible to vote) of some constituencies got disproportional compared to other ones: in the Constituency 06. of Veszprem County the number of citizens eligible to vote was around 27.000 while in Constituency 10. of Pest County this data was above 61.000. The Court obliged the Parliament to amend and change the boundaries until June 2007 in order to establish a constitutional election system based on the equality of the right to vote. The Parliament of 2006-2010 ruled by a socialist-liberal majority did not do justice to the decision of the Court thus established a situation of'violation of the constitution by nonfeasance'. Furthermore, upon its previous decisions and due to the negligence of the Parliament the Constitutional Court declared (193/2010. (XII. 8.)) unconstitutional and annulled several provisions of the that time effective election laws and a decree of the communist Council of Ministers (2/1990. (1.11.)) in 2010. The Court strictly underlined the fact that as the right to vote is part of the fundamental rights, the boundaries of the constituencies shall be regulated by law and not by a decree, as it was until the decision of the Court in 2010. Although the Court stipulated that the regulation of the boundaries has to be laid down merely in a 'simple' law, other parts related to the election system shall be incorporated in cardinal laws. 18

To follow and to fulfil the requirements set up by the Constitutional Court and in order to reduce the number of MPs, the Parliament adopted: • Act No. CC1II of 2011 on the Election of the Members of the Parliament of Hungaiy • Act No. X X X V I of 2013 on Electoral Procedures 4. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and relevant comments reflecting to each point. •

Opinion of the Monitoring Committee on a Request for the opening of a monitoring procedure in respect of Hungary (25 April 2013)'

"2. Introduction 2.2. New institutions and major reforms the National Election Committee is composed of 5 members elected by Parliament and 5 members delegated by political parties represented in parliament. In June 2010, upon a proposal of a Fidesz MP, thel997 Act on election procedure was amended to the effect that the National Election Committee is henceforth recomposed not only before every parliamentary election (i.e. every 4 years), but also '*htio;//Dublic.mkab.huymkab/dom '''http/Awyw assembK.coc.irn/C'ommunication/aiTiondocOg 2013.pdf

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before elections to the European Parliament and local elections. Since the next local elections were scheduled for October 2010, the mandate of the 5 members, elected in February 2010 for 4 years by the previous parliament, was terminated in July 2010"

Comments: The new regulation does not differ substantially from the former one. Under the previous regulations, the National Election Committee's predecessor, the National Electoral Commission was staffed by five members elected by the Parliament upon the nomination of the relevant minister taking into consideration the proposals of each parliamentary faction. The new National Election Committee is consisted of 7 members, elected by the Parliament with a two-third majority for nine years, upon the proposal of the President of the Republic. Following the setting of the general elections every party having a national list for the elections is entitled to delegate one member. As the members of the new Committee are nominated by the President of the Republic - and not by a member of the Government - ; are elected for a nine-year term with a two-third majority - instead of a 'simple' one they supposed to be more independent than they were before. "68. The Cardinal Act CCIII on the Election of the Members of the Parliament of Hungary was adopted by the parliament on 23 December 2011. It replaces the Cardinal Act on Election of Members of the Parliament of 1989. This law defines the legal framework for the elections and sets the constituency boundaries. It should be seen in conjunction with the Act on Electoral Procedures, which regulates the conduct of the elections itself. The law on electoral procedure was adopted on 26 November 2012. This law created quite a controversy as it introduced active voter registration for elections. However the legal basis for this provision was struck down by the Constitutional Court when it annulled most of the transitional provisions. The President of Hungary subsequently announced that active voter registration will not be introduced before the next elections." Comments: the Act on the Election of the Members of the Parliament of Hungary has to adopt by the Parliament of several reasons. The most important duty was a Constitutional Court decree adopted in 2005, which pointed out that the Hungarian National Assembly caused an unconstitutional situation by not providing the equal voting rights for all of the citizens. Due to migration tendencies within the country the number of inhabitants of the constituencies got disproportional. According to the ruling of the Constitutional Court since 2005 the legislator should have regulated the boundaries of the constituencies in law. The boundaries of the constituencies were regulated in a decree of the Council of Ministers from the communist era before 2011. The Act on Electoral Procedures really contained the regulation of the voter registration for every citizen, but as the report states this regulation was abolished by the Constitutional Court and no further intention was claimed neither by the majority of the parliament nor the government to implement some kind of any further registration process for voters living in Hungary in the Act on Electoral Procedures. "69. The Act on the Election of Members of Parliament was introduced in the parliament as a private members' bill and therefore not subject to the social consultation procedure that would have taken place if this bill had been proposed by the government. In addition, the vote on this act was boycotted by the main opposition parties in protest against the lack of consultation and transparency during the drafting of this law. 70. The manner in which this law was introduced into the parliament and adopted is of serious concern to us. This law defines the election system of the country as well as the formula for the allocation of mandates. In addition it delimitates the election constituencies. As it is, this new act considerably changes the legal framework for elections in Hungary. European democratic principles demand that electoral legislation is based on a broad social consultation and an as wide as possible consensus between the electoral stakeholders. The lack of transparency surrounding the drafting of this act, as well as the lack of a wide consensus among the stakeholders about the act and its main tenets, could undermine public trust in the legitimacy and fairness of the election system and the parliament that results from it." 22

2019. 05. 03. atlatszo.hu 23 Comments on points 69-70: (additionally see comment on point 68.) In a democracy it is a basic right for eveiy elected representatives to introduce and amend laws; thus is why we call the modern democracies 'representative democracies'. These MPs are representing those people who elected them. In a parliamentary democracy there are open gates for every MP irrespectively of their political views and sides to participate in every single legislative procedure. During the adoption of the mentioned Act on the Election of Members of Parliament the opposition parties voluntarily did not take part in the decision making - in a democracy it is a democratic choice as well. On the other hand, the act in question was adopted by the majority of a democratically elected Parliament, within the legal framework given by the relevant laws and the Standing Orders of the Parliament, thus questioning the legitimacy of such a law and procedure is remarkably concerning. "72. The act on the elections of members of parliament maintained the mixed proportionalmajoritarian election system in Hungary. However, the new act drastically reduced the number of mandates from 386 to 199. This reduction of MPs is in line with the general public sentiment in Hungary that clearly favoured a smaller parliament. Following this reduction of mandates the percentage of majoritarian mandates in the parliament has increased slightly, from 45.6% to 53.3%. In the proportional system there is a 5% threshold for individual parties, a 10% threshold for a joint party list and a 15% threshold for electoral lists of more than two parties. This threshold is excessively high and should be reduced. Comments: The regulation of the parliamentary threshold for parties, joint party-lists etc. for general elections was the same in the former legal environment and was never questioned by any international stakeholder or European decision-making body. On the other hand we shall also refer to the 'first past the post' system of the United Kingdom, which contains only individual constituencies and no mechanism for proportionality or for compensation. 73. As was the case in the previous electoral law, a compensatory system is used for the allocation of proportional mandates. The rationale for such a compensatory system is to ensure that there is a correlation between the overall number of mandates (both proportional and majoritarian) won by a party and its overall support in the country, as measured by the results of the proportional race. 74. The new Cardinal Act on the Election of the Members of the Parliament of Hungary changes the compensatory allocation mechanism. Under the previous mechanism, votes that were not used in the allocation of proportional mandates and the votes of candidates that lost in the majoritarian races were taken into account in the compensatory allocation mechanism. However, under the new system the surplus of votes for the candidates winning a majoritarian seat will also be taken into account in the allocation mechanism. As a result of this new mechanism, the new election system in Hungary is less proportional than the previous system. Comments on points 73-74: the alteration is not significant on one hand, on the other hand it serves the possibility of establishing a more stable governmental majority in the Parliament. The new system of so-called 'compensational votes' also serves this goal and based on the idea that none of the votes shall be lost. 75. As mentioned by the Venice Commission, there are no international standards recommending a specific method or degree of proportionality regarding the distribution of seats. However, democratic standards demand that there is a positive correlation between the votes obtained and the number of seats allocated. Moreover, as mentioned, the rationale behind a compensatory allocation mechanism is to increase the proportionality of the distribution of the seats and not to reduce it. Comments: the Commission itself finds nothing questionable as there is no international standards, and, moreover, many countries have clear majoritarian election system, first such country to be 23

2019. 05. 03. atlatszo.hu 24

mentioned is the United Kingdom. This solution serves the possibility of the establishment of a more stable governmental majority in the Parliament, which seems to be at least proper in era of frequent changes in governments across Europe.

76. Given the lack of a broad consensus between the electoral stakeholders on the electoral legislation, this new allocation mechanism is of serious concern to us. The lack of consensus and possibility for skewed outcomes could negatively affect the public trust in the fairness and democratic legitimacy of the election system. Comments: in our view the lack of consensus is not an outcome of governmental intentions, but the lack of will to cooperate on the side of the opposition parties and other stakeholders. Some cornerstones of the need for change in the regulation on this field are the weakness of the previous regulation in hindering possibility of skewed outcomes, and lack of general trust of citizens in the whole political system, and in its institutions. With a wide-range reform and legislative work there is a chance to tackle this issue. 79. The precise boundaries of the constituencies are defined in the law itself and can therefore only be changed with a two-thirds majority vote by the parliament. This means that a one-third minority of the parliament can veto the redrawing of the constituency boundaries, irrespective of the fact that the law stipulates that these have to be redrawn if their sizes deviate more than 15% from each other. As a result, the delimitation of constituency boundaries can easily become the subject of political bartering, which in turn could compromise the trust in the fairness of this process. 80. The fact that the constituency boundaries are drawn up by the parliament is also highly problematic. International democratic standards dictate that constituency boundaries should be drawn up by an independent and impartial body, in a transparent process, on the basis of clear and widely accepted criteria. The parliament, for obvious reasons, has a clear interest in how the constituency boundaries are drawn and therefore cannot be considered as an impartial and independent body. Moreover, the new act is not clear with regard to the actual drawing process and fails to set clear and impartial criteria on the basis on which the constituency boundaries should be drawn. As a result, the delimitation process lacks the required transparency and clarity. Comments on points 79-80.: the fairness of the process of delimitating the constituency borders is protected by many means. First of all, the characters taking part in it are freely elected representatives of the Hungarians, secondly, the documentation and the procedure can be controlled by the public as the process is done in an open parliamentary manner, and finally, the lack of action can be tackled by the means of the publicity. On the other hand, it is regrettable, that the Commission has also become part of a movement which frequently finds any not-elected bodies more trustworthy than those given the power by the sovereign; it undermines the public trust of these institutions much more than any other action made by the institutions themselves. It should be added, that a law which needs two-third of the votes involves cross-party negotiations and agreements as a general rule, thus strengthening the democratic legitimacy of an amendment. Political background deals and bartering were much more likely in the previous legal framework, as the boundaries were laid down in a decree of the Council of Ministers, dated back to the end of the communist era, 1990. 81. During our meeting with the Chair of the Central Election Commission, in February 2012, we were informed that the C E C was given no indication on the basis and criteria by which the constituency boundaries were established, or by whom they were drafted. The CEC had been neither involved nor consulted on this issue. This lack of transparency undermines the trust in the democratic process as is evident from the recurrent allegations of gerrymandering that are made in this respect.

2019. 05. 03. atlatszo.hu 25 82. Echoing recommendations of the Venice Commission and OSCE/ODIHR, we urge the authorities to establish an independent and impartial commission to establish and review on a periodic basis, the constituency boundaries on the basis of clear and widely accepted legal criteria. Comments on points 81-82.: in our point of view, the legislative and the executive branches of power shall be clearly divided, as a consequence of this, the legislative task is to draw the borders of constituencies, the executive is to reach decisions on field of the organisation of the elections. It is itself a very practical mean of collecting data for good legislation to ask representatives of the executive bodies, but cannot be kept as obligatory. 83. The new Cardinal Act on the Election of the Members of the Parliament of Hungary gives Hungarian citizens abroad the right to vote in the proportional part of the elections but not in the majoritarian races. We welcome the fact that the Hungarian diaspora has been given the right to vote in national elections, which increases the universality of suffrage and follows the overall trend in Europe in this regard. It should be noted that Hungary has a very sizable diaspora and that these citizens, not resident in Hungary, could have a considerable impact on the composition of the new parliament. The number of Hungarian citizens living outside Hungary that are eligible to vote is estimated to be 3 million, in comparison to 8 million voters who live in Hungary itself. Comments: in spite of the fact, that Hungary has a citizenship concept following the concept of ius sanguinis, the statements made in point 83. are totally misleading and unfounded. According to the Central Statistical Office of Hungary (KSH), the population of Hungary is less than 10 million, there are 8 million citizens eligible to vote, and the number of citizens gaining the citizenship again after the amendment of the Citizenship Act in 2010 reached only half million recently. People with Hungarian nationality or with Hungarian roots all over the world do not have the right to vote automatically. The approximately 400 thousand of the citizens mentioned cannot have a considerable impact on the outcome of the elections. 85. Voters who are registered as belonging to a recognised minority may vote for the majoritarian candidate in the district of residence and for the proportional party list or for the minority list(s) pertaining to their minority, i f any are established. This choice is made when a person registers as belonging to a minority. This could limit the choice for the minority voters during a given election, especially if only one list competes for the minority in question. This in turn could potentially skew the outcome of an election. As mentioned in the Venice Commission's opinion on this act, it would be far better if members of a minority could decide on the Election Day itself whether they wish to vote for the national party or for the minority lists. Comments: the preliminary registration for voters who would like to vote for minority lists instead of national lists of the parties is based on the preceding experiences of the Hungarian lawmaker. Frauds, abuses and misuses of the legal environment regarding ethnic minorities during local elections caused serious concerns in the Hungarian public life, as several settlements became to have minority local governments while according to data of previous censuses there were no or very few members of minorities. In order to avoid such situations but to guarantee a special voting right and representation for ethnic minorities the Parliament adopted the legal institution of preliminary registration. Hence manipulations will be ruled out on the day of voting.

2019. 05. 03. atlatszo.hu 26 The definition of 'family' and 'marriage' in the Fundamental Law of Hungary 1. Summary of the relevant criticism "Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the nation's survival. Family ties shall be based on marriage or the relationship between parents and children " 20

The green, left-wing liberal and progressive members of the European Parliament and the Parliamentary Assembly of the Council of Europe criticised that the Fundamental Law of Hungary uses a too narrow and restrictive concept to define the family. The Hungarian Fundamental Law prefers the traditional type of family definition which is based on the legal union of a man and a woman (the marriage). Thus, according to the opponents, this article excludes many other forms of cohabitation, like the opposite and same sex couples (in civil partnerships) with or without children. In the opinion of the rapporteur of the Council of Europe, the supermajority of the National Assembly of Hungary (which consists of the ruling coalition parties, the conservative Fidesz and the christiandemocratic KDNP) introduced a constitutional amendment on a very controversial, and divisive moral issue without public debate. Generally, the Opinion of the Venice Commission criticised the practice of the Hungarian ruling coalition parties, who have incorporated the provisions of certain cardinal laws, which had been abolished by the Constitutional Court of Hungary previously, into the Fundamental Law. 2. Legal background In 2011, the National Assembly of Hungary had passed a cardinal law (with two-third majority) about the protection of families. The Act on Protection of the Families is rather a doctrinal declaration than a sectorial law. The law lays down the principles of the family life, the rights and duties of members of the families and gives conceptual frame to interpret the more practical norms, such as the Act on Family Law and the Act on Subsidy for Families. In 2012, on the basis of the proposal of the ombudsman, the Constitutional Court of Hungary declared some provisions of the Act on the Protection of Families unconstitutional and abolished them. According to the opinion of the Constitutional Court, the legal definition of family was not in accordance with the lower level of legislation, especially the Civil Code, and it was inconsistent with international human rights law and with Hungary's obligations towards the Council of Europe, thus violated the Fundamental Law of Hungary. According to the Constitutional Court's reasoning, the State should also protect long-term emotional and economic partnerships of persons living together (for example, those relationships in which the couples raise and take care of each other's children, couples who do not have any children or are not able to have any children, grandchildren cared for by grandparents etc.). 21

In the spring of 2013, with the 4 amendment to the Fundamental Law of Hungary, the governmental majority incorporated the formerly abolished provisions of the family protection act to the Fundamental Law of Hungary.

Paragraph 1. Article L ) , Fundamental L a w of Hungary http:. 'A-vw.vcnicL .coc.inl/webforms.'documents/?pdf=CDL-AD(20I3K)12-e >

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In international context, the constitutions of 5 EU member states (Bulgaria, Estonia, Greece, Lithuania and Romania) define the traditional family as the basis of the nation's survival and declare that the phenomenon of family must be protected.. Moreover, the German Fundamental Law (Grundgesetz) does not define the family, but places the marriage and the family as institutions under special constitutional protection. Although the German constitution does not define the marriage, however from the context it is obvious, that the marriage exists between opposite-sex persons only. The civil partnership, which can exist between same-sex couples, is not equal with the marriage in its legal effects. In the field of case-law, the European Court of Human Rights concluded in the Schalk and Kopf v. Austria case, that there is no European-level legal document, treaty or other norm that prohibits for the member states to define the marriage as a civil union exclusively between a woman and a man. 22

3. Mitigation of the criticism The debate about the meaning of family is based an ideological background, and not a legal one. Basically, Article L has rather a moral character than a normative one. This statement is a declaration and does not intend to define or intervene to the family life of the Hungarian people. There is absolutely no governmental intention to create an exclusive definition to regulate the notion of family and other interpersonal relations. Previously in a decision, the Hungarian Constitution Court laid down that the marriage is the civil union of a man and a woman. This decision was based on the former Hungarian Constitution. The new Fundamental Law of Hungary followed in its marriage definition the case-law of the Constitutional Court. Hungary is a secularised country, but the Christian tradition and natural law have strong ties in many levels of the society (including the Christian lawyers and law faculties). In the years of a demographic crisis and the economic depression it is particularly important to promote the families. Therefore, this promotion of families is expressly declared by the Hungarian Fundamental Law. The family is the most fundamental human community. The basis of the childbearing is the marriage of a man and a woman. However, the Fundamental Law of Hungary does not discriminate any other type of cohabitation. The Hungarian welfare system does not discriminate the opposite-sex partners, who bring up children and do not live in marriage. They receive the same subsidies as the married couples with children from the state-operated welfare system). Since 2009, the registered partnership is an existing legal institution for same-sex couples in Hungary, which provides the recognition for the durable, monogamous relationships by the state. The new Criminal Code (which entered into force in 2013) punishes the hate speech and hate crimes against any identified subgroups of the Hungarian society, including the sexual minorities too. The Equal Treaty Authority has fought against any discrimination against minorities, including sexual minorities in the field of labour, public administration and everyday life since 2003. Contrary to some accusations, the government have not taken any discriminative measures against L G B T people, and the police defended their march against the far-right protesters since 2010 (in the era of previous socialist-liberal governments between 2002 and 2010, the police could not protect the participants against the far-right protesters in many cases).

Schalk and K o p f v Austria, nÂ° 30141/04, 24 June 2010

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Nevertheless, the legislative practice, which incorporates the rules previously abolished by the Constitutional Court in the Fundamental Law, weakens the constitutionalism and the rule of law, thus should be avoided. To sum up the arguments, the current Hungarian legislation in the field of the definition of the family and marriage is in compliance with the values of the European Union and the international treaties entered into by Hungary. 4. Potential further measures

As previously mentioned, the ombudsman of fundamental rights initiated to repeal Art. 7 and 8 of Act. No. C C X I of 2011 on the protection of families ("Csvt"). As it was presented in the petition of Dr. Mate Szabo, the ombudsman of fundamental rights, the notion of family set forth by Art. 7 of Csvt. covers the marriage of a man and a woman. That notion qualifies as a discrimination on the basis of other situations and sexual orientation with respect to the right of private and family life and to the right of human dignity. Furthermore, in the opinion of the ombudsman, the notion of family as defined by Art. 7 of Csvt. unnecessarily and disproportionately restricts the right to human dignity and to private and family life of those persons living in other type of cohabitation forms. According to the opinion of the ombudsman of fundamental rights, the lack of conformity between the Civil Code and the Csvt. with respect to the rules of statutory inheritance infringes the principles of the rule of law and of the legal certainty. According to the Civil Code, a registered partner of a predecessor clearly inherits in accordance with the same rules that apply to a spouse. However, the rules of the Csvt. may cause uncertainties regarding this matter. On the basis of to the above, the Court of Constitution found Art. 7 and 8 of the Csvt. contradictory to the Fundamental Law and thus repealed these regulations. These sections were not replaced until present date. Since the fourth Amendment of the Fundamental Law defined the institution of marriage as the union of a man and a woman established by voluntary decision, and defined the family as the basis of the nation's survival, by regulating the chapters of "Establishing the legal status of family" and "Right to inheriting" of the Csvt., the government should define the exact content of these notions on a lower legislative level than the Fundamental Law. 5. Detailed Legal background â&#x20AC;˘

Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013)

A. The protection of marriage and family (Article 1) "15. Article 1 of the Fourth Amendment replaces Article L . l of the Fundamental Law by the following provision: "Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision and the family as the basis of the nation's survival. Family ties shall be based on marriage or the relationship between parents and children. " Comments: The Government of Hungary states, that the Venice Commission misinterpreted the legal text due to the inaccurate grammatical translation. "As a final point of correction it should be recalled that Paragraph 15 of the Draft Opinion is based on an erroneous translation of the Fundamental Law. The Draft Opinion uses "and", a conjunctive word, between the two main elements on which family ties are based ("marriage"/"relationship between parents and children"). The Hungarian text uses the word "illetve", which means "and/or" in English and is to be translated as "or"2. The correct sentence 28

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thus reads as follows: "Family ties shall be based on marriage or the relationship between parents and children."

"16. In its decision 43/201218, which had already been based on the Fundamental Law, in force since 1 January 2012, the Hungarian Constitutional Court had annulled Section 7 of the Act on Protection of Families, which defined the concept of the family as a system of relations that generates an emotional and economic community of natural persons, based on the marriage of a man and a woman, next of kinship or adoptive guardianship. The Court has found this concept of a family too narrow." "17. As concerns the definition of family ties, the Background Document provided by the Hungarian Government insists that this provision only defines the 'basis" of family relations and not the term family itself and does not preclude the statutory protection of family relations in a wider sense." Comments: The Government describes the Article L.) of the Fundamental Law has a theoretical, moral character, not a normative one. "It must be pointed out that contrary to the evaluation of the Draft Opinion, the last sentence of paragraph (1) of Article L ) of the Fundamental Law does not contain a legal definition of the notion of family. Instead, it merely declares that the "basis of family ties" is marriage or the relationship between parents and children. Thus, the statement contained in Article L ) is of a moral character, rather than of normative content. Consequently, this provision cannot be regarded as an exclusive definition and it does not preclude the statutory protection of family relations in a wider sense." "18. Article L . l not only states that family is "the basis of nation's survival", but also that "family ties are based on marriage or the relationship between parents". 19. According to the case-law of the European Court of Human Rights, the definition of "marriage" as the union of a man and a woman falls within the margin of appreciation of the Hungarian authorities. 20. Article L . l of the Fundamental Law should not exclude other guarantees of family and family life. Article 12 ECHR guarantees the right of a man and a woman to marry. In the last decades, the European Court of Human Rights has gradually broadened the scope of Article 8 ECHR on the right to family life." 23

â&#x20AC;˘

Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI)) (24 June 2013)

"Extensive use of cardinal laws AD. whereas a number of issues, such as specific aspects of family law and the tax and pension systems, which usually fall under the ordinary decision-making powers of a legislature, are regulated by cardinal laws;" 24

â&#x20AC;˘

Request of the Monitoring Committee of the European Council for the opening of a monitoring procedure in respect of Hungary (25 April 2013)

"175. The Act on the Protection of Families takes strong and often controversial positions on moral and value based issues. While this opinion is not the place to discuss the merits of such positions, we would like to emphasise that, in its opinion on the Constitution, the Venice Commission rightfully stressed that "cultural, religious, moral, socio-economic and financial policies should not be cemented

2 3

http;//www.vcn!ce.coe.int/webforms/docuiTients/?pdf=CDL-AD(2013)OI2-e http://w^v.europarl e u r o p a . e ^ ^ 508,21 l%2B02%2BDOC%2BPDF%2BV0%2F';' 2[-t:N 1 4

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in a cardinal law" but left to the normal political process and decided upon by simple majority. This reservation is equally valid for this act on the protection of families.

176. The Act on the Protection of Families introduces a very restrictive definition of family. According to the cardinal law, this definition is to be used in all other legislation, regardless of purpose. However, this definition seems to be inconsistent with lower level legislation. Without wanting to enter into a discussion on the merits of this definition, we are concerned that such a restrictive interpretation could lead to discriminatory legislation at the lower level and therefore be at odds with international human rights law and with Hungaiy's obligations to the Council of Europe." Comments: This is also demonstrated by the fact that Hungarian legal system does not follow a narrow interpretation of "family" at sub-constitution level. Both the Civil Code in force and the new Civil Code, recently adopted by Parliament (on 11 February 2013 as Act V of 2013), ensure consistency with the case-law of the European Court of Human Rights as regards family relationships. Besides, the legal institution of the registered partnership (of same-sex couples) regulated in a separate Act since 2009 continues to be in force also under the Fundamental Law. "178. The Ombudsman of Hungary requested a ruling of the Constitutional Court on the constitutionality of the Act on Family Protection. On 20 December 2012, the Constitutional Court of Hungary ruled that the definition of family was too restrictive and that the provisions contained in this act dealing with inheritance were unconstitutional as they were not in conformity with the Civil Code of Hungary (which provides for equality between marriage and civil partnerships). In the view of the Constitutional Court, this violated the principle of legal certainty that is guaranteed by the Hungarian Constitution. This ruling gives credence to our concerns about the inconsistency of this cardinal act with lower level legislation, as well as Hungary's international human rights obligations. 179. We note with concern that the Fourth Amendment to the Fundamental Law has re-introduced this very restrictive definition of the family on 11 March 2013." 5

Comments: It also must be clarified that the new provision inserted into paragraph ( I ) of Article L ) is not identical to the former Article 7 of the Act on the Protection of Families that had been annulled by the Constitutional Court by decision 43/2012. Unlike paragraph (1) of Article L ) of the Fundamental Law, the Article annulled by the Court did contain a closed definition of family. Hence, the new provision under the Fourth Amendment does not amount to an "overruling" of the earlier decision of the Constitutional Court. â&#x20AC;˘

Comments of the Government of Hungary on the draft opinion on the Fourth Amendment to the Fundamental Law of Hungary (11 June 2011)

"A. The protection of marriage and family (15-20.; 148.) (1) First, it must be pointed out that contrary to the evaluation of the Draft Opinion, the last sentence of paragraph (1) of Article L ) of the Fundamental Law does not contain a legal definition of the notion of family. Instead, it merely declares that the "basis of family ties" is marriage or the relationship between parents and children. Thus, the statement contained in Article L ) is of a moral character, rather than of normative content. Consequently, this provision cannot be regarded as an exclusive definition and it does not preclude the statutory protection of family relations in a wider sense. (2) Second, it also must be clarified that the new provision inserted into paragraph (1) of Article L ) is not identical to the former Article 7 of the Act on the Protection of Families that had been annulled by the Constitutional Court by decision 43/2012. Unlike paragraph (1) of Article L ) of the Fundamental Law, the Article annulled by the Court did contain a closed definition of family. Hence, the new 2 S

htlp:/Avww assembly.coe.int/Communicalion/amondoc08

2013.pdf

2019. 05. 03. atlatszo.hu 31

provision under the Fourth Amendment does not amount to an "overruling" of the earlier decision of the Constitutional Court.

(3) The Hungarian Government believes that in order to properly assess the legal regime governing family affairs in Hungary no particular constitutional provision can be singled out, but the broad context within the Fundamental Law and under the relevant ordinary legislation must also be analysed in full. Thus, one must consider Article VI of the Fundamental Law which identifies a new right (not explicitly included in the previous constitution). Paragraph (1) of Article VI states that every person has a right to the protection of his or her private and family life, home, communications and good reputation. Moreover, Article II declares the inviolability of human dignity. This provision - also contained in the previous constitution - served as the basis of case-law of the Constitutional Court developed to afford legal protection to various forms of relationships (even in the absence of an express constitutional reference to the right to private and family life at that time). Articles II and VI combined thus offer a more comprehensive constitutional ground to guarantee any person's alternative choice of familial ties than under the previous regime. (4) This is also demonstrated by the fact that Hungarian legal system does not follow a narrow interpretation of "family" at sub-constitution level. Both the Civil Code in force and the new Civil Code, recently adopted by Parliament (on 11 February 2013 as Act V of 2013), ensure consistency with the case-law of the European Court of Human Rights as regards family relationships. Besides, the legal institution of the registered partnership (of same-sex couples) regulated in a separate Act since 2009 continues to be in force also under the Fundamental Law. (5) As a final point of correction it should be recalled that Paragraph 15 of the Draft Opinion is based on an erroneous translation of the Fundamental Law. The Draft Opinion uses "and", a conjunctive word, between the two main elements on which family ties are based ("marriage'V'relationship between parents and children"). The Hungarian text uses the word "illetve", which means "and/or" in English and is to be translated as "or"2. The correct sentence thus reads as follows: "Family ties shall be based on marriage or the relationship between parents and children." 26

-'' Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment of the Fundamental L a w of Hungary, p 1 http:. v\^yy.kormanv.hu/download/d/5c/eQQ0Q/HUresponse V c n C o m DraflOp 20130611 % 2 S F I N A L I l n % 2 9 p d f

2019. 05. 03. atlatszo.hu 32 Educational matters - focusing on higher education 1. Summary of the relevant criticism The Fourth Amendment of the Hungarian Fundamental Law ("Fourth Amendment") amended the Fundamental Law of Hungary regarding to educational matters in two major areas (i) the autonomy of institutions of the higher education, and (ii) the financial support of the students in the higher education. (i) The Venice Commission in its opinion on the Fourth Amendment argues that the higher education is not autonomous in terms of financial management and of its organisation, but the main concerns of the Venice Commission are related to the freedom of science and the level of the regulations. According to the opinion of the Venice Commission, ^Financial regulations for universities are an issue usually regulated by ordinary law. Raising this provision to the constitutional level has the effect of preventing review by the Constitutional Court. " 27

(ii) The Commission also mentions that the regulation of the financial support of the students in the higher education might suffer from the lack of sufficient level of constitutionality. Furthermore, the Venice Commission underlines that the provisions shall be regulated on the level of ordinary law. 2. Mitigation of the criticism In its background documentation, the Hungarian Government clearly declared that similarly to the previous Constitution , the freedom of science and the autonomy of higher education institutions are guaranteed by the applicable Fundamental Law . Being part of the state budgetary system, institutions must have budgetary control. Within the framework of this budgetary control, the budgetary institution financing the operation of the higher education institutions is entitled to overview the financial management of the respective higher education institutions. The concerns related to this subject do not mention that the budgetary control would be unconstitutional. The main concern is related solely to the level of the regulation that decreases the possibility of the revision of the regulations. 28

However, this is not a valid concern, since the regulation is a framework, and ^nothing prevents the constitutional Court from examining and -if it were to find them unconstitutional - annulling legislative or governmental measures which are of a financial nature but interfere with the freedom of sciences.' 0

The concern underlined by the Venice Commission in relation with the student financing is similar to the above mentioned matter. In the opinion of the Venice Commission, the matter of student financing is required to be regulated on the level of ordinary law instead of the level of the constitution. It must be emphasized that the main concern is merely a legislative concern and it is not related to the effective provision of article X I . of the Fundamental Law. In relation with this matter it also has to be highlighted that „the constitutional provision also lays down clearly the necessary level of regulation („in an Act of Parliament"), fully in line with the Constitutional Court decision 32/2012 mentioned in the Draft Opinion

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3. Further measures

None of the matters were criticised on the basis of a substantive ground. Furthermore, the implementation of the criticised measures fulfils the democratic and legal requirements applicable in connection with a sensitive subject such as the education. Therefore, further measures are not necessary. Both matters were criticised merely on a legislative basis exclusively. Legislative concerns should have been dissolved, since all of them were answered in a detailed and clear manner. The regulations were adopted on the basis of completeness with respect to the fundamental values of the Hungarian Fundamental Law. The higher educational system required a new legislative background on the basis of a new concept in order to maintain and improve the quality and the standards of the education. The former legislation did not fulfil the applicable requirements and it was unable to maintain the higher educational system on the basis of sustainability. Therefore, the Hungarian Government being responsible for the operation and management of the educational system, decided to take sufficient measures in order to prevent the educational system from further negative impacts. 4. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. â&#x20AC;˘

Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) j2

â&#x20AC;&#x17E;F. Autonomy of institutions of higher education (Article 6) 54. Article 6 of the Fourth Amendment replaces Article X.3 of the Fundamental Law. It provides, on the one hand, that all institutions of higher education shall be autonomous in terms of contents and methodology of research and teaching, but on the other hand it creates a basis for legislation regulating their organisation and for the Government to determine, to the extent permitted by law, the rules of financial management and to supervise their financial management. 55. The introduction of this article on the constitutional level seems to be a reaction to decision 62/2009 of the Constitutional Court in which the Court stated that the economic autonomy of universities may be limited but, as it serves as a guarantee of the realisation of the freedom of sciences, the more an economic activity is linked to the science, the greater its constitutional protection of autonomy. 56. In the Background Document, the Government insists that this provision only relates to the financing of universities from the central budget and does not affect the predominance of the freedom of research and education. However, this restriction cannot be derived from the Fourth Amendment itself. 57. Financial regulations for universities are an issue usually regulated by ordinary law. Raising this provision to the constitutional level has the effect of preventing review by the Constitutional Court." ..Comments of the Government on the Autonomy of the institutions of higher education (55-57.) (34) First, the new constitutional provisions do not contradict the findings of the Constitutional Court's decision 62/2009 (erroneously marked in the draft opinion as 69/2009). The passage cited in ,:

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the Draft Opinion ("the economic autonomy of universities may be limited but, as guarantee of the realisation of the freedom of sciences, the more an economic activity is linked to the science, the greater its constitutional protection of autonomy") has a rather permissive context in the decision. Notably, â&#x20AC;&#x17E;(...) Autonomy does not exclude the allowed legislative restrictions of autonomous powers. Acts may settle rules of restrictive nature in order to create financial efficiency and reasonable organisational structure. It is not unconstitutional to supervise the scientific and educational activities of institutions of higher education from an economical and institutional rationalisation aspect, or to determine economical requirements by the founder of the institution (...)." (35) The autonomy with regard to the contents and methodology of research and teaching is guaranteed for all institutions of higher education under the Fundamental Law. The governmental responsibility for the finances of state-run colleges and universities is merely a consequence of the fact that these institutions form a part of the state, and their operation is financed from the central budget. The Draft Opinion does not question the need for regulation and supervision of financial management of institutions of higher education, and since these institutions are part of the state's institutional and budgetary system, there seems to be no valid reason of denying the role of governmental organs in ensuring the lawful and accountable financial management of them. (36) As to the level of regulation the Draft Opinion itself admits that financial rules for universities are usually regulated by ordinary acts. As the Fundamental Law only contains an enabling provision, the implementing ordinary legislation come under constitutional review as any other laws. Consequently, nothing prevents the Constitutional Court from examining and - i f it were to find them unconstitutional - annulling legislative or governmental measures which are of a financial nature but interfere with the freedom of sciences." â&#x20AC;&#x17E;G. Financial support to students (Article 7) 58. Article 7 of the Fourth Amendment amends Article X I of the Fundamental Law, paragraph 3 of which reads as follows: "By virtue of an Act of Parliament, financial support of higher education studies may be bound to participation for a definite period in employment or to exercising for a definite period of entrepreneurial activities, regulated by Hungarian law." 59. In its decision 32/2012, the Constitutional Court had annulled the Government decree, albeit on formal grounds, stating that student grants have to be regulated on the level of law (an act of parliament). However, the reasoning of the decision shows that there were also serious doubts about substantive constitutionality. The Court found that the obligation for students having obtained state scholarships to work in Hungary after graduation for a period equal to double their period of study within 20 years directly affected the right to freely choose a job or profession of Article X I I . 1 of the Fundamental Law, also taking into account Article 45 of the E U Treaty on the free movement of workers and the relevant case law of the European Court of Justice.

60. In the Background Document, the Government argues that this provision does not restrict the freedom of movement, because students are free to either choose financial support from the Government and to accept the conditions or not. The financial support by the Government would be the equivalent of a waiver of tuition fees, which exist in other countries. Even after having received the grant, students could choose to work abroad and reimburse the financial support received. Instead of grants students who wished to work abroad could also opt for the "Student Loan 2", which has no restriction on the place of work and which has to be reimbursed only 20 years after graduation. Given that decision 32/2012 annulled the Government decree on formal grounds only, the Article 7 of the Fundamental Law cannot be seen as a reaction to it. 61. From the point of view of the Venice Commission in the framework of this Opinion, the most important issue is the level of regulation. Article XI.3 of the Fundamental Law is one of the provisions of the Fourth Amendment that contains detailed rules which are usually regulated by law and should 34

2019. 05. 03. atlatszo.hu 35 not be part of a Constitution. Raising such provisions to the level of the Constitution has the effect of preventing review by the Constitutional Court." Comments of the Government on financial support to students (58-62.) ,,(37) Contrary to paragraph 62 of the Draft Opinion, paragraph (3) of Article X I of the Fundamental Law cannot prevent the review by the Constitutional Court of legislation adopted by Parliament on the financial support to students. The phrasing of the provision itself excludes this interpretation, since it offers only an opportunity for the legislator to introduce measures within the scope of the provision of the Fundamental Law. The Constitutional Court has all powers to carefully examine and evaluate the necessity and the proportionality of the obligations prescribed by the legislator. (38) Besides, the constitutional provision also lays down clearly the necessary level of regulation („in an Act of Parliament"), fully in line with the Constitutional Court decision 32/2012 mentioned in the Draft Opinion. (39) While it does not hold direct relevance for the Draft Opinion, it is important to emphasize that the legislative provisions in question introduce a three-tier system of financial support for students. As a general rule every student is free to finance his tuition at his own devices. Secondly, students may apply for a preferential student loan to cover their tuition fee in full. Thirdly, the state allocates every year a national quota for state-funded scholarships. Those applying for such bursaries are bound to work in Hungary for a period equal to the duration of their scholarship within 20 years following graduation." •

Background documentation on the fourth amendment to the fundamental law of Hungary 33

„9. Provisions concerning higher education a) Government supervision of the financial management of state institutions of higher education In the interest of the efficient management of public funds, the Amendment includes the determination of the method of financial management of state institutions of higher education, as well as the supervision of their financial management in the tasks of the Government, with a view to the fact that these institutions form a part of the system of state organs, and their operation is financed from the central budget. This task includes the Government to establish -within the legal framework -rules for the financial management of these institutions, as well as for exercising supervisory rights with respect to financial management, within the framework of maintainer's rights, through the appropriate institutions. This regulation of financial management powers does not affect the predominance of the freedom of research and education. b) Student Contracts In the interest of the enforcement of the right to education, the Fundamental Law ensures the accessibility of participation in higher education and the support of those who can participate in higher education on the basis of their abilities -which support is in line with the specifications of the law, namely, it does not extend to everybody and it is not without conditions. In order that the exercise of the right to education with a state subsidy, also serves the interest of the community as well as the individual in accordance with Article O) of the Fundamental Law, the Amendment allows that the law ties the subsidy of participation in higher education as a student (financing of the training by the state) to a condition. The two components of this condition specified in Section (1) of Article M of the Fundamental Law, is the existence of value creating work, and that this work serves the interest of the communities of Hungary. Accordingly, legislation may determine the obligation of work within the framework of employment or enterprise, requiring that it is realised within a legal relationship - i n "

http://www.venice.coe.int/wcbtbrms/documents/?pdf=CDL-RF,F%282013%29019-e

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Hungary or abroad - governed by Hungarian law. The period -following the completion of studies that constitutes a condition proportionate to the subsidy provided for participation in higher education is determined by the legislator as a period equivalent to the duration of the studies (which may be determined by the Government in a decree as a shorter period in the interest of former students); in the same vein the legislation also provides for the cases where the requirement of employment under Hungarian law must not be fulfilled (exemption).

It is to be emphasised that financing of the studies by the state and related conclusion of a student contracts is not the only opportunity for a student to conduct studies in higher education without his or her own financial sources: in the preferential "Student Loan 2" construction, one can participate in higher education without the conclusion of a student contract, under terms and conditions defined in advance. On the other hand, naturally, the student studying with state subsidy is not restricted either in taking employment abroad, even in other member states of the European Union, after he or she has completed his or her studies; in this case, however, he or she will be obligated to pay the tuition fee subsequently. By virtue of the relevant legislation, this subsequent reimbursement obligation becomes due in the twentieth year after graduation and, upon the student's request, also depending on the amount of grant, payment by instalment can be authorised for a period of ten or fifteen years. It is also significant that a student with a (partial) scholarship, who has satisfied only a part of his or her domestic employment, must only repay the amount which covers the non-completed portion. Moreover, it must be emphasised that the term of employment shall include the disbursement period of the pregnancy and child bearing aid, child care aid and child care allowance and the period when the former student is a job seeker and is hence entitled to a benefit. The legislation defines further cases of exemption in addition to those above. It must also be clarified within this context that, in its earlier decision, the objection the Constitutional Court had against the rule was not directed against its content; it has declared unconstitutionality exclusively with respect to the level of regulation (due to the subject matter being regulated in a government decree). The body prescribed that student contracts are to be regulated by a legal norm of a higher level. Furthermore, it must also be noted that in several European countries (for instance, in Portugal, the Netherlands, the United Kingdom and Italy), participation in higher education is accessible only through the payment of tuition. In addition to avoiding the obligation to pay tuition, it is also among the objectives of the Hungarian legal regulation to strengthen social responsibility, and achieve at least a partial domestic utilisation of the knowledge acquired from the contribution of Hungarian taxpayers. The regulation, which, by itself -by taking into consideration the text of the Fundamental Law -is merely a possibility, it is flexible as the student him or herself can decide whether to use state financing for his or her studies. If he or she does not use it (either because he or she does not need material support at all, or because, by using the opportunity offered by the preferential "Student Loan 2", he or she provides the material conditions necessary for the continuation of his or her studies), he or she is by no means bound by the criteria of domestic employment. Furthermore, even if he or she makes use of the state subsidy, subsequently, after he or she has finished his or her studies, he or she will still have the opportunity to pay back the subsidy, and thus become exempt from the requirement of domestic employment. As far as the objections based on EU law in connection with student contracts are concerned, it is to be emphasised that neither the provisions of the Fundamental Law - o f an essentially authorising nature nor the provisions in the Act on higher education can be considered as rules unlawfully restricting the free movement of workers. The reason for this is that it is up to the individual deliberation and decision of every student, based on clear and unambiguous regulation, whether he or she satisfies the conditions of exemption from the repayment obligation emerging from the contract or instead he or she chooses to pay the cost of his or her training subsequently, by satisfying this repayment obligation. The term and deadline of employment under Hungarian law, set as a condition in the regulation, does not otherwise exclude long-term employment abroad and further studies in a foreign country. 36

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Measures preventing or restricting the free movement of employees are acceptable if they serve a lawful objective and are supported by overriding reasons of public interest. Preventing the migration of recent graduates and securing appropriately qualified employees in professions suffering from a shortage can be defined as the lawful objective pursued by the Hungarian legislation. The student contract is nothing else but a kind of student contract. In the case of this contract form widely known in the European Union, for the support of his or her studies, the contracting pupil or student works at the supporting company or institution for a certain period of time. This is the form the Hungarian legislator used as the basis when reorganising the system of higher education."

2019. 05. 03. atlatszo.hu 38 Rights of nationalities and ethnic minorities in Hungary 1, Summary of the relevant criticism In its Opinion on the Rights of Nationalities of Hungary the Venice Commission widely ^welcomes the efforts made by the Hungarian authorities to provide a comprehensive legal framework for the protection of national minorities. ' Along with the appreciation of its merits, the Venice Commission noticed, that some provisions of the Act on the Rights of Nationalities ("Act") or regulations related thereto do not provide for proper provisions. The following major concerns were articulated: j4

(i) In its Opinion on the New Constitution of Hungary the Commission notices, that the Preamble and Art. H of the Fundamental Law makes a difference between the Hungarian nation and the nationalities living with us". However, the protection of the language of the minorities is not guaranteed " . 5

(ii) In its Opinion on the Rights of Nationalities of Hungary the Commission noted, inter alia, that during the drafting of the Act the period left for public consultation was insufficiently short. (iii) One of the main concerns of the Commission is that the basis on which the rights are exercised is the census held in every ten years in Hungary. If the individuals belonging to a nationality are not represented properly within the framework of the census, that may result in a false outcome. (iv) According to the Request of the Monitoring Committee of the European Council for the opening of a monitoring procedure in respect of Hungary, the European Council also welcomed the legislation. However, similarly to the Venice Commission the European Council also noticed in connection with the quality of the Act that "the law is complex and excessively detailed*." (v) Another main concern shared by the Venice Commission and by the European Council is that in accordance with Art. 158 of the Act, it qualifies as a so called cardinal act. Thus, the Act may be amended with a two third majority exclusively. 2. Challenging the criticism It must be noticed that Art. X X I X of the Fundamental Law guarantees the rights of the nationalities in a very broad manner. Even the Commission agrees that not the exact wording but the application of the provisions is the true essence in relation with the protection of nationalities. Both the Commission ant the Council fundamentally agrees that as a result of the legislation the Act is an advanced and modern regulation which provides for the proper legal protection of nationalities living in Hungary. In its remarks, the Hungarian Government notices that the Commission based its statement on false information regarding the method and time of the public consultation. The consultation took place between ,July 2010 and December 2012", and it "met legal requirements of legislation and social expectations. "

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Opinion on the rights of nationalities of Hungary Adopted by the Venice Commission at its 91 st Plenary Session (Venice, 15-16 June 2012) * http:/u-u-u-.venice coe.int/webforrns/documenls/' pdf=CDL-AD%2820H%29016-e (40. 45. 82.) * hltp:.Vvv wvv.assemblv.coe.int/Communication/ainondoc08 2QI3.pdf " ht;p://u^Y.vemce.cr>e im/webforTns.documents, >pdf=CDL%282QI2%29Q47-e (p. 2) 5

2019. 05. 03. atlatszo.hu 39 Exercising the rights of nationalities are subject to the census. This legislative solution is based on the experiences related to the previous law on minorities. As it is admitted both by the Commission and the Council, the Act on National and Ethnic Minorities of 1993 in terms of its regulation of minority self-government elections „ were widely seen as open to abuse ' , Several frauds took place regarding the above matter that led the Government to the recognition that a neutral balancing system must be introduced regarding the provisions on elections. The census was found as a natural source of data about the minorities, because jhe repliers are not likely to declare nationality affiliation during the census in respect of elections. " 39

Both the Commission and the Council finds it disadvantageous that the Act is excessively detailed and regulates levels of management of day to day matters which could be cleared on a lower level of legislation. Former experiences regarding the previous act led the Government to the decision to construct a complete and whole system. Also „ it was an explicit expectation during consultations with nationalities to expound these provisions in the most accurate and detailed possible way.' " 10

Another main concern raised by both plenums was that the Act will not be able to react with the proper efficiency to the changes of the society since it is a cardinal act that may be amended on the basis of the consent of the two third majority of the Parliament. „In accordance with this, § 158 of the Nationalities Act is a provision securing compliance with the requirements of the Fundamental Law regarding cardinal acts, its amendment does not require a two-thirds majority, as its framing did not require it either. However, its amendment requires the change of the provisions prescribing cardinal acts, of the Fundamental Law itself '" 4

3. Measures already taken In its 35/1992 decree the Constitutional Court declared, that the parliament breached its constitutional obligation by way of an omission because it failed to regulate the right to representation of the minorities. The Constitutional Court obliged the Parliament to fulfil its above mentioned obligation until 01.12.1992. In the past 18 years none of the governments found this matter important enough to remedy this breach of constitution. However, the current government decided to regulate this especially significant field of law, which results, that a maximum of 13 member of the parliament will be elected by the nationalities on minority lists during the national elections. If a minority list cannot reach the preferential threshold on national elections, the minority in question shall delegate one of its representatives to the Parliament as a 'spokesperson' - if the minority was able to collect enough signatures to conduct a minority list for national elections. „As for the other issues laid before the Constitutional Court by the Commissioner for Fundamental Rights, the Government is open to change, which is also shown by the fact that the Parliament has already decided upon the modification of the law, regarding the non-profit criterion of the nominator nationality organizations (entitled to propose candidates), the collective responsibility of members of nationality self-governments for the consequences of unlawful utilisation of assets, handling nationality self-government assets in case of cessation of the body, as well as the question of the right to use sign language. The proclamation of the amendment is under process. The revision of the legal institution of the forfeiture of honours is also under process. " 42

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4. Further measures

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Further measures may be taken i f the Commission or the Council is able to represent valid arguments that require the initiation of changes. As it was agreed upon by both plenums, during the drafting of the Act and the related laws the Government primarily intended to provide the similar or enhanced, but most of all more efficiently enforceable rights for the nationalities. During its work, the Government covered several fields of law in order to fulfil its international contractual and national historical obligations to provide for and defend the rights of every individuals belonging to different nationalities. 5. Detailed Legal background â&#x20AC;˘

Opinion on the Act on the Rights of Nationalities of Hungary adopted by the Venice Commission at its 91st Plenary Session (Venice, 15-16 June 2012)

10. The Venice Commission has been informed by the authorities that, prior to the adoption of the Nationalities Act, consultations have been organised with the various stakeholders involved. According to non-governmental sources, in some cases, too limited time has been provided for comments and too little attention paid to the proposals submitted by the minority representatives and other interested actors. The Commission cannot but recall that the effective consultation of national minorities is a key principle in the adoption and implementation of the legislation pertaining to minority protection. Comments of the Hungarian Government The Commission, based on non-governmental sources, concluded that the consultation and negotiation with representatives of the nationalities before the adoption of Act C L X X I X of 2011 on the Rights of Nationalities (hereinafter "Nationalities Act") was not sufficiently extensive and effective. According to our view, the consultation and negotiation conducted during the preparation of the Nationalities Act between July 2010 and December 2012 met legal requirements of legislation and social expectations, both regarding its duration in time, and the circle of those involved in the consultation. During the one and a half year period of the possibility to provide opinions, the submitter received for about two months the incoming proposals - from civil organizations, private persons, experts, nationality selfgovernments, as it was announced in the widest circle- then, based on these almost 50 suggestions, the first norm text-versions were prepared, these were consulted already with officers and experts of the nationality self-governments. Consultations were substantive and straightforward in all cases. 11. Hungary has ratified international treaties on the protection of human rights, which prohibit discrimination on the ground of language and which protect minority rights (notably the International Covenant on Civil and Political Rights (article 27), the Framework Convention and the Language Charter). According to the Hungarian Constitution (article Q.2), " Hungary shall ensure harmony between international law and Hungarian law in order to fulfil its obligations under international law". 12. Fulfilment by Hungary of its international obligations to protect the rights of national minorities is monitored by the specific supervisory bodies of the Council of Europe - the Advisory Committee, the Committee of Experts, the European Commission against Racism and Intolerance (ECRI) and the Council of Europe Commissioner for Human Rights - and has led to the adoption of recommendations by the Committee of Ministers of the Council of Europe. 13. The Hungarian Fundamental Law deals in several places with the national minorities of Hungary. In the Preamble (National Avowal), beginning with the words "we the members of Hungarian Nation", the national minorities are explicitly mentioned: "The nationalities living with us form part of the Hungarian Political community and are constituent parts of the State. We commit to promoting and 40

2019. 05. 03. atlatszo.hu 41 safeguarding our heritage, our unique language, Hungarian culture, the languages and cultures of nationalities living in Hungary, along with all man-made and natural assets of the Carpathian Basin. " 14. Article H of the Fundamental Law furthermore states: " 1 . In Hungary the official language shall be Hungarian. 2. Hungary shall protect the Hungarian language. 3. Hungary shall protect Hungarian Sign Language as a part of Hungarian Culture". 15. According to Article XV(2), which contains a general anti-discrimination clause, "Hungary shall ensure fundamental rights to every person without any discrimination on the grounds of race, colour, gender, disability, language, religion, political or other views, national or social origin, financial, birth or other circumstances whatsoever." 16. Article X X I X deals explicitly with the national minorities, stating: "(1) Nationalities living in Hungary shall be constituent parts of the State. Every Hungarian citizen belonging to any nationality shall have the right to freely express and preserve his or her identity. Nationalities living in Hungary shall have the right to use their native languages and to the individual and collective use of names in their own languages, to promote their own cultures, and to be educated in their native languages. (2) Nationalities living in Hungary shall have the right to establish local and national self-governments. (3) The detailed rules for the rights of nationalities living in Hungary and the rules for the elections of their local and national self-governments shall be defined by a cardinal Act." 17. Also, pursuant to Article 2(2), the participation in the work of Parliament of nationalities living in Hungary shall be regulated by a cardinal Act. 21. The Venice Commission welcomes the efforts made by the Hungarian authorities to provide a comprehensive legal framework for the protection of national minorities. Indeed, the Nationalities Act can be considered as an important piece of legislation that guarantees internationally recognised rights of persons belonging to national minorities, enabling them to freely express, preserve and develop their ethnic, cultural and linguistic identity. 22. The Act provides for a wide range of individual minority rights (Chapter III). Collective minority rights are laid down in Chapter IV 8. The exercise of these rights is based on the concept of nationality cultural autonomy, which is defined as "a collective nationality right that is embodied in the independence of the totality of the institutions and nationality self-organisations under this Act through the operation thereof by nationality communities by way of self-governance" (Article 2(3)). 23. Although provisions on the protection of minorities may be found in several other Acts, the Nationalities Act is surely the most important Act for the protection of the rights of persons belonging to national minorities. As mentioned above (ยง 6), this Act is a cardinal law containing "the detailed rules for the rights of nationalities living in Hungary and the rules for the elections of their local and national self-governments ". 24. The Venice Commission is of the opinion that there are good reasons to guarantee the rights of minorities in the Constitution itself and /or in a cardinal law, as these rights ought to be protected on a stable and secure basis and should not depend on the will of a majority in the existing parliament at a given time. 25. Nevertheless, the Venice Commission notes that Article 158 of the Act contains a list of provisions of the Act which qualify as "cardinal" (articles 1-157, 159-180, 181-183 and 193), on the basis of either article X X I X (3) or article 31(3) of the Constitution. In other words, all provisions of the law are qualified as cardinal with the exception of article 158 itself and the provisions aimed at amending old provisions of relevance for minority protection. This implies that the amendment of these articles require a two-thirds majority. The question arises in this respect of whether there is a too widespread 41

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recourse to cardinal provisions, with the ensuing risk for possible future reforms to be stuck in longlasting political conflicts and undue pressure and costs for society

Comments of the Hungarian Government Concerning the questions raised by the Commission with regard to the Act being cardinal, it should be emphasised generally that it is part of the constitutional traditions in Hungary that the Constitution defines a number of fields, the detailed rules of which must be defined in a cardinal (qualified, twothirds) act. The new Fundamental Law does not increase the number of cardinal laws, in fact it even decreases them to a small extent compared to the previous Constitution. The narrow interpretation of the fields of cardinal acts, as defined in the Fundamental Law, is facilitated by the so-called cardinal clause, applied during the preparation of the new cardinal acts and is built in the acts previously in force, and which specifically indicates that, from the provisions of a given act, which should be considered cardinal according to the Fundamental Law. The cardinal clause - similarly to the clause on the harmonization of laws, already in use since years - does not have a normative content, a binding force; it rather has an informative function. The requirement of being cardinal results not from the clause, but from the Fundamental Law itself: no matter whether the clause indicates a provision to be cardinal, i f its subject field - according to the Fundamental Law -is not included in the fields belonging to cardinal acts. And ultimately it is going to be the Constitutional Court that is going to judge, which are those provisions, the amendment of which requires a qualified majority. As a result from the informative function, the cardinal clause may be amended with the votes of the majority of the members of Parliament that are present. In accordance with this, ยง 158 of the Nationalities Act is a provision securing compliance with the requirements of the Fundamental Law regarding cardinal acts, its amendment does not require a twothirds majority, as its framing did not require it either. However, its amendment requires the change of the provisions prescribing cardinal acts, of the Fundamental Law itself. 26. The Venice Commission further notes that the overwhelming majority of the transitional provisions contained in Chapter XII also contain substantial rules relating, in particular, to educational and cultural rights of nationalities, to the status and remuneration of members of nationality selfgovernments of different levels, etc. The Hungarian authorities explained that the transitional provisions in Chapter X I I were needed to ensure continuity of rights during the gradual entry into force of the substantial provisions of the new Act and that "[tjhese transitional rules lapse parallel to the gradual entry into force". However, one can also find in this Chapter several "new" substantial provisions. It is not clear for the Commission why this technique of addressing substantial rights in transitional provisions has been chosen as it complicates the reading and understanding of the law. The provisions dealing with organizational matters are also of particular importance since the creation and the operation of nationalities institutions is in Hungary crucial for the implementation of the minority protection measures and the enjoyment of the guaranteed rights. 1

Comments of the Hungarian Government The transitional provisions in Chapter X I I of the Act are needed to be included in the law because of the gradual entry into force of the given new provisions. The provisions in ยง 22-32 regarding public education - simultaneously with the Act on Public Education - enter into force gradually, from September 2012, January 2013 and September 2013. The new rules on elections enter into force simultaneously with the preparation and arrangement of the 2014 elections. The rules regarding the operation of nationality self-governments become effective from the following, 2014 nationality elections. However, the requirement of legal security demands the nationalities' rights to be guaranteed in a secure legal environment also in the period until its entry into force. Therefore though the effect of the entire Act on the Rights of National and Ethnic Minorities ceased on the day of the promulgation of the new act - the transitional provisions maintain their validity up to the 42

2019. 05. 03. atlatszo.hu 43 mentioned dates. This also explains their textual similarity with the new provisions. These transitional rules lapse parallel to the gradual entry into force. 27. The Venice Commission is also of the view that the Nationalities Act - especially as a cardinal law which requires a special majority to be amended - contains too specific and detailed provisions, of a merely technical and procedural nature, which could have been set out by the ordinary legislation or by these bodies' internal regulations. Such a detailed regulation reduces the possibility of adapting the law in the light of the experience in its application and may lead to undue restriction of the free exercise by the minorities of their rights, as well as negatively affect the autonomy of nationality selfgovernments (see section c) below). In addition, despite their very detailed nature, important provisions of the law lack clarity and their inter-relation is sometimes difficult to understand. Comments of the Hungarian Government The new act indeed describes the election, organization, operation and supervision of nationality selfgovernments in fullest detail. The reason of this clearly is that problems hindering or encumbering the operation of the representation of nationalities during the past period arose in these fields. It was an explicit expectation during consultations with nationalities to expound these provisions in the most accurate and detailed possible way. 28. The status of the Act within the Hungarian legal system and its inter-relations with other Hungarian laws, to which numerous references are made, should have been made clear by the Act itself. In addition, different dates are set up for the entry into force of different provisions of the Act. This adds to its length and complexity and may make its interpretation and application difficult. 29. Finally, it should be noted the several provisions of the Act have been challenged before the Constitutional Court by the New Commissioner for Fundamental Rights. The Commission has been informed by the Hungarian authorities that "the Parliament has already decided upon the modification of the law, regarding the non-profit criterion of the nominator nationality organizations (entitled to propose candidates), the collective responsibility of members of nationality self-governments for the consequences of unlawful utilisation of assets, handling nationality self-government assets in case of cessation of the body, as well as the question of the right to use sign language. The proclamation of the amendment is under process. The revision of the legal institution of the forfeiture of honours is also under process" Comments of the Hungarian Government As for the other issues laid before the Constitutional Court by the Commissioner for Fundamental Rights, the Government is open to change, which is also shown by the fact that the Parliament has already decided upon the modification of the law, regarding the non-profit criterion of the nominator nationality organizations (entitled to propose candidates), the collective responsibility of members of nationality self-governments for the consequences of unlawful utilisation of assets, handling nationality self-government assets in case of cessation of the body, as well as the question of the right to use sign language. The proclamation of the amendment is under process. The revision of the legal institution of the forfeiture of honours is also under process. â&#x20AC;˘

Opinion on the New Constitution of Hungary adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011)

40. The Preamble however continues by stating: "the nationalities living with us form part of the political community and are constituent parts of the State". While this statement may be seen as an effort towards inclusiveness, it is also to be noted that the Preamble has been written in the name of "we the members of the Hungarian nation", intimating that members of the "nationalities living with us" are not part of the people behind the enactment of the Constitution. The Constitution should be 43

2019. 05. 03. atlatszo.hu 44

seen as the result of the democratic will-formation of the country's citizens as a whole, and not only of the dominant ethnic group. Therefore, the language used could/should have been more inclusive (such as, for example "We, citizens of Hungary..."). It is, again essential, that a comprehensive approach is favoured in the context of the interpretation of the constitutional provisions 45. The Venice Commission finds regrettable that Art. H, which regulates the protection of Hungarian language as the official language of the country, does not include a constitutional guarantee for the protection of the languages of national minorities. It however notes that Article X X I X guarantees the right to the use of these languages by Hungary's "nationalities" and understands this provision as implying also an obligation for the State to protect these languages and to support their preservation and development (see also the Preamble and Article Q of the Constitution). â&#x20AC;˘

Remarks of the Hungarian Government on the Draft Opinion on the Act on the Rights of Nationalities of Hungary (received on 13 June 2012)

As for the other issues laid before the Constitutional Court by the Commissioner for Fundamental Rights, the Government is open to change, which is also shown by the fact that the Parliament has already decided upon the modification of the law, regarding the non-profit criterion of the nominator nationality organizations (entitled to propose candidates), the collective responsibility of members of nationality self-governments for the consequences of unlawful utilisation of assets, handling nationality self-government assets in case of cessation of the body, as well as the question of the right to use sign language. The proclamation of the amendment is under process. The revision of the legal institution of the forfeiture of honours is also under process. The Commission's remarks related to the exercise of nationality rights being bound to census data reflect the difficulties of the legislators as well. While the use of some objective criterion as the condition to ensure rights is inevitable due to previous misuses of nationality rights - which previously was initiated even by the nationalities themselves â&#x20AC;&#x201D;, the determination of the numerical proportion is being objected to. The parliamentary commissioner of national and ethnic minorities has pointed out after two previous elections that in at least 10% of the cases, nationality self-governments were established in localities where there lived no members of the given nationality during the previous, 2001 population census. In fact, the use of census data in order to eliminate the abuses experienced during previous nationality elections - though these only reflect changes of 10 years - is advantageous because it is not directly linked to nationality elections, but is a "neutral" data in this regard, therefore the repliers are not likely to declare nationality affiliation during the census in respect of elections. It should be emphasised that declaring nationality affiliation is not compulsory during the census; the census-takers call the attention of those providing data to the fact that giving infonnation is voluntary. Thus the data acquired in this way is suitable to assess the actual number of the nationality population that is not influenced by the election respect and decreases the possibilities of abuse. The new act indeed describes the election, organization, operation and supervision of nationality selfgovernments in fullest detail. The reason of this clearly is that problems hindering or encumbering the operation of the representation of nationalities during the past period arose in these fields. It was an explicit expectation during consultations with nationalities to expound these provisions in the most accurate and detailed possible way.

2019. 05. 03. atlatszo.hu 45 Reforms on the judicial system Concerns and amendments regarding the transfer of cases in the Hungarian judicial system (National Judicial Office) 1. Summary of the relevant criticism ,,A key area of concern was the concentration of powers in the hands of the President of the newly created National Judicial Office (NJO). The cardinal act vested this person, inter alia, with full powers to appoint or dismiss judges, appoint or dismiss the court presidents, transfer judges to other courts (with or without their consent) and to transfer cases from one court to another. The Venice Commission considered that these powers were largely discretionary and lacked accountability as the cardinal act did not provide for legally established criteria nor oblige the President of the NJO to reason his/her decisions or allow for a judicial review of them." 43

â&#x20AC;&#x17E;The Venice Commission strongly criticized the extensive powers of the President of the National Judicial Office (PNJO) and the lack of appropriate accountability. The Commission emphasized the need to enhance the role of the National Judicial Council as a control instance." 44

2. Measures already taken to mitigate criticism The judicial reform in 1997 created the National Council of the Judiciary, which previously had 15, then 16 members with majority of judges. Among the members, there were persons not members of courts, for instance MP's, president of Hungarian Bar Association, Prosecutor General, Minister of Justice or later Minister of Finance. The NCJ was unable to perform its duties effectively, inter alia, because administrative and professional leadership merged through the President of the Supreme Court (who was also the President of the NCJ). Since the 1997 reform passed the institution was often criticized. The core reason of the new judicial reform in 2011 was to separate professional and administrative leadership within the judiciary to make the system more effective. The professional leader became the President of the Curia, while the administrative powers were delegated to the President of the National Judicial Office in accordance with Act C L X I of 2011 on the Organization and Administration of Courts. The Fourth Amendment of the Fundamental Law of Hungary, which affected the judicial system as well, does no more than includes two completely neutral and descriptive sentences into the Fundamental Law that merely reinstate the institution within its existing boundaries in the context of the organizational section on the judiciary. Furthermore the Tavaresreport adopted by the European Parliament mistakenly stated that there are no legal guarantees related to the independency of the judiciary in the recently adopted relevant laws such as in the Fundamental Law of Hungary. On the contrary, Article 26 (1) of the Fundamental Law lays down that: "Judges shall be independent and only subordinated to laws, and may not be instructed in relation to their judicial activities." These are aimed to strengthen the independence of the constitutional status of the institution, rather than expand its powers. Additionally the Fourth and Fifth Amendment of the Fundamental Law give detailed rules regarding the independency of the judiciary. The Fifth Amendment elevates the National Judicial Council to constitutional level and records, that the members of NJC are elected by the judges, except the President of Curia, who is a permanent member. 45

' Request for the opening of a monitoring procedure in respect of Hungary, Council of Europe, AS/Mon(2013)08 p. 23 http://www.assemblv.coe.int/Communication/amondocQ8 2013.pdf Opinion on the Fourth Amendment to the Fundamental L a w of Hungary, European Commission for Democracy through L a w (Venice Commission), C D L - A D ( 2 0 1 3 ) 0 1 2 p. 16 http://www.venice coeint/weblbrrns/documents/^pdr^CDL-AD^O13)012-e http://www.pariarnent.hU/irom39/1201S/12QI5.pdf

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2019. 05. 03. atlatszo.hu 46 3. Detailed legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government. â&#x20AC;˘

Opinion of the Monitoring Committee requesting for the opening of a monitoring procedure in respect of Hungary

"108. A key area of concern was the concentration of powers in the hands of the President of the newly created National Judicial Office (NJO). The cardinal act vested this person, inter alia, with full powers to appoint or dismiss judges, appoint or dismiss the court presidents, transfer judges to other courts (with or without their consent) and to transfer cases from one court to another. The Venice Commission considered that these powers were largely discretionary and lacked accountability as the cardinal act did not provide for legally established criteria nor oblige the President of the NJO to reason his/her decisions or allow for a judicial review of them. 109. The concerns with regard to the concentration of powers are compounded by the fact that the cardinal act vests all these powers in the person of the President of the NJO and not in the institution as such. The President of the NJO is elected by the parliament with a qualified two-thirds majority for a period of nine years. As a result, a relatively small minority in the parliament can block the election of a new President of the NJO, who would remain in office until a successor has been chosen. The vice-presidents of the NJO are appointed by the President of the NJO, who can also initiate their removal from office. In addition, the President of the NJO can only be removed from office by the parliament with a two-third majority, on the basis of a motion for dismissal proposed by the President of the Republic or the National Judicial Council (NJC). However the NJC is composed of judges who in many ways are dependent on the President of the NJO who is an ex officio member of the NJC. As a result of these provisions, the overall accountability of the President of the NJO is clearly insufficient, which affects the democratic legitimacy of this post." Comments on points 108-109: The judicial reform in 1997 powers referred the administration of the courts for National Council of the Judiciary (hereinafter referred to as â&#x20AC;&#x17E;NCJ"), which previously had 15, than 16 members with majority of judges. Among the members, it could be found persons outside the courts, for instance MP's, president of Hungarian Bar Association, Prosecutor General, Minister of Justice or later Minister of Finance. The NCJ was unable to perform its duties effectively, inter alia, because administrative and professional leadership merged through the President of the Supreme Court (who was also the President of the NCJ). Since the 1997 reform passed more than a decade and has been expressed criticism prompted the legislature to change the legal regime. The judicial reform set out to separate professional and administrative leadership; as a result, the professional leader is the President of the Curia, while the administrative powers were delegated to the President of the National Judicial Office in accordance with Act C L X I of 2011 on the Organization and Administration of Courts. 46

"117. As a result of consultations between the Secretary General of the Council of Europe and the Hungarian government, a package of amendments to the two Cardinal Acts on the judiciary was abled by the authorities. 118. The amendments have not changed the manner by which the President of the NJO is appointed, or by which he or she can be dismissed. The Hungarian authorities had furthermore promised to amend the relevant legislation in order to clearly specify that the President of the NJO would be holding this position for one single nine-year term, non-renewable. An amendment to this effect

** Background Document on the Fourth Amendment to the Fundamental L a w of Hungary, C D L - R E F ( 2 0 1 3 } 0 1 9 , p. 25

2019. 05. 03. atlatszo.hu 47

submitted by the Minister of Justice in March 2012 was however withdrawn on 18 June 2012. We hope that the Bill submitted to Parliament on 29 March 2013 will finally deal with this problem.

119. Also, in the event that parliament fails to agree on a successor with a two-thirds majority, the Vice-President will be appointed interim President. However, the Vice-President is appointed by the President of the NJO. We therefore concur with the Venice Commission that it would have been preferable to give the NJC the power to appoint an interim President." Comments on points 117-119: The Fourth Amendment does no more than includes two completely neutral and descriptive sentences into the Fundamental Law that merely reinstate the institution within its existing boundaries in the context of the organizational section on the judiciary. These are aimed to strengthen the independence of the constitutional status of the institution, rather than expand its powers. 47

"120. The amendments to a large extent address the concerns regarding the excessive concentration of discretionary powers in the hands of the President of the NJO without the required accountability and transparency. 121. The powers of the President of the NJO in the appointment of new judges or court leaders are no longer discretionary. If the NJO President wishes to deviate from the appointment or review board he or she needs to have the consent of the NJC and can only do so on the basis of criteria established by the latter. In addition these decisions can be appealed in a court of justice. These are important improvements of the legislation. We were informed, however, that the President of the NJO still has the power to annul a vacancy notice for judicial appointment, even after candidates submitted their applications and were ranked by the NJC. This is clearly problematic. 122. The cardinal acts on the judiciary drastically curtailed the role of the NJC, the body of judicial self-government in Hungary, in the administration of the court system. The amendments to a large extent addressed this shortcoming. The powers of the NJC have been strengthened, including with respect to the appointment of judges and the administration of the judiciary.85 However, it should be noted that the NJC is still functionally dependent on the NJO and has a continuous rotation system for its Presidents, which weakens its capacity to oversee and control the NJO and its President." Comments on points 120-122: It should be noted that in Germany, the independence of the administration of justice in an administrative sense is not associated with the independence of the presiding judge; there is no organ similar to the Hungarian NJO. According to the constitution, the judges of federal courts are nominated by the federal minister responsible for the field concerned in agreement with the judicial election council comprised of the ministers of the provinces responsible for the field concerned and an equal number of individuals with a law degree and passive franchise elected by the lower house of federal legislation (Bundestag), and they are appointed by the head of state. In Austria, the constitution does not provide for the details of the administrative structure. Most of the responsibilities corresponding to the duties of the President of the Hungarian NJO are fulfilled by the justice minister. The constitution lays down that the justice minister makes recommendations for the appointment of judges 4 8

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Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment to the Fundamental L a w of Hungary, p. 9 http://wwwkormanv.hU/download/d/5c/e000Q/Hllresponse VenCom DraftOp 2013061 H F I N A L f i n l p d f Background Document on the Fourth Amendment to the Fundamental L a w of Hungary, C D L - R E F ( 2 0 1 3 ) 0 1 9 , p. 27

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2019. 05. 03. atlatszo.hu 48

European Commission for Democracy through Law (Venice Commission) Opinion on the Fourth Amendment to the Fundamental Law of Hungary

"IV. The rule of law and independence of the judiciary A. The role of the President of the National Judicial Office (Article 13) 66. Article 13 of the Fourth Amendment replaces Article 25.4 to 25.7 of the Fundamental Law. Paragraph 5 and 6 provide: "(5) The central responsibilities of the administration of the courts shall be performed by the President of the National Office for the Judiciary. The bodies of judicial self-government shall participate in the administration of the courts." "(6) Upon a proposal of the President of the Republic, Parliament shall elect a judge to serve as the President of the National Office for the Judiciary for a term of nine years. The election of the President of the National Office for the Judiciary shall require a two-third majority of the votes of the Members of Parliament." 67. The Background documents insists that the PNJO operates under effective control of the National Judicial Council, as the supreme judicial self-government body, and of Parliament. The Document also refers to criticism of the situation in Germany claiming that there the Minister would appoint judges following consultations with the Judicial Selection Committee. However, the Federal Minister can only appoint federal judges in accordance with the selection committee (Richterwahlausschuss), see Article 95.2 of the German Fundamental Law. 68. In two earlier Opinions the Venice Commission strongly criticized the extensive powers of the President of the National Judicial Office (PNJO) and the lack of appropriate accountability. The Commission emphasized the need to enhance the role of the National Judicial Council as a control instance." Comments on points 66-68: The judicial reform in 1997 powers referred the administration of the courts for National Council of the Judiciary (hereinafter referred to as â&#x20AC;&#x17E;NCJ"), which previously had 15, than 16 members with majority of judges. Among the members, it could be found persons outside the courts, for instance MP's, president of Hungarian Bar Association, Prosecutor General, Minister of Justice or later Minister of Finance. The NCJ was unable to perform its duties effectively, inter alia, because administrative and professional leadership merged through the President of the Supreme Court (who was also the President of the NCJ). Since the 1997 reform passed more than a decade and has been expressed criticism prompted the legislature to change the legal regime. The judicial reform set out to separate professional and administrative leadership; as a result, the professional leader is the President of the Curia, while the administrative powers were delegated to the President of the National Judicial Office in accordance with Act C L X I of 2011 on the Organization and Administration of Courts. "69. While on the legislative level the situation had been improved in the framework of the dialogue between the Secretary General of the Council of Europe and the Hungarian authorities both by reducing the powers of the PNJO and by increasing those of the National Judicial Council and by making the PNJO more accountable, the Fourth Amendment goes in the opposite direction and raises the position of the PNJO to the constitutional level. The PNJO now has the power to exercise the "central responsibilities of the administration of the courts" and "bodies of judicial self-government" merely "participate in the administration of the courts". The supreme body of judicial self-government, the National Judicial Council, is not even mentioned in the Fundamental Law. 70. Article 11.4 of the Transitional Provisions (CDL-REF (2012)018) had merely defined the PNJO as the legal successor of the Supreme Court and the National Council of Justice "for the administration of courts with the exception defined by the relevant cardinal Act". Following its negative evaluation of 48

2019. 05. 03. atlatszo.hu 49

the cardinal law, it is unclear to the Venice Commission for which reason the position of the PNJO has been confirmed in the Fundamental Law, without any indication of the necessary limitations and the checks and balances to which it must be subject. The Venice Commission cannot but repeat its criticism. 71. The progress achieved through the dialogue with the Secretary General is jeopardised by the Fourth Amendment. The Fourth Amendment represents a step back and provides the PNJO with additional legitimacy without providing for additional accountability. Even the Bill no. T/10593 (Amendments on cardinal laws related to the Fourth Amendment to the Fundamental Law) does not contain any provisions which would provide for increased accountability for the PNJO or for strengthening the National Judicial Council as called for by the Venice Commission." Comments on points 69-71: The Fourth Amendment does no more than includes two completely neutral and descriptive sentences into the Fundamental Law that merely reinstate the institution within its existing boundaries in the context of the organizational section on the judiciary. These are aimed to strengthen the independence of the constitutional status of the institution, rather than expand its powers. Against that context it is difficult to see why this move gives rise to statements such as "the progress achieved through the dialogue with the Secretary General is jeopardized by the Fourth Amendment" (paragraph 7 1 ) . 49

*' Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment to the Fundamental L a w of Hungary, p. 9 http://w\v^.konnan,y.hu/dowTiload/d/5c/e0000/HUresponse VenCom DraftOp 2Q13Q6I l ( F I N A L f i n j . p d f

2019. 05. 03. atlatszo.hu 50 The 'transfer of cases'in the Hungarian judicial system 1. Summary of the relevant criticism; A crucial area of concern was the excessively large and discretionary powers given to the President of the NJO to transfer cases from one court to another, based on the overly broad criterion of "adjudicating cases within a reasonable period of time". As with the Cardinal Acts on the Judiciary, a major concern is the fact that the Transitional Provisions give the Prosecutor General the right to allocate a case to a different court than the court of general competence. The possibility for a prosecutor to select the court where a case will be heard is at variance with the principle of a fair trial, as meant by Article 6 of the ECHR. This possibility should therefore be withdrawn from the Prosecutor General, even if he has never made use of it until now. The Council of Europe welcomes the fact that this provision was not adopted by the parliament during its elaborations on the 4th amendment, as the ruling coalition decided to withdraw the relevant draft article 15. (ET: AS/Mon(2013)08 p. 26) The Commission welcomes that the Fourth Amendment does not provide for transfers by the Supreme Prosecutor him- or herself. The transfer of cases has been strongly criticized by the Venice Commission: "The system of the transferring of cases is not in compliance with the principle of the lawful judge, which is essential to the rule of law; it should be revised. Pending a solution of this problem, no further transfers should be made." The Hungarian Government announced that the system of transfers of cases will be eliminated on the constitutional and the legislative level. The Venice Commission warmly welcomes this intention of the Government to introduce a parliamentary procedure and hopes that Parliament will soon be able to adopt this proposal. (VB: CDL-AD(2013)012 p. 17) 2.

Measures already taken to mitigate criticism

As the Hungarian judicial system was overburdened with cases ongoing for several years, the aim of the original provision was to mitigate the efficient operation of the courts. The fourth amendment of the Fundamental Law already restricted the above mentioned and often criticized institution of the transfer of cases. On the one hand, the relevant powers of the chief prosecutor have been removed; in the future, the chief prosecutor will no longer have the power to transfer cases. Another highly significant change that also serves as a guarantee was that, based on the decision of the President of the NJO, only case groups pre-defined in a cardinal law may be heard in departure from the rules of jurisdiction determined by law. It must be noted the legal institution of referral was not a new instrument in either the Transitional Provisions or the Act on the organization of the courts. The institution of the appointment of the court figured in the previous legislation on the organization of the courts, it has not been established by the Transitional Provisions or the Act on the organisation of the courts in effect from 1 Januarys 2012. Previously the Supreme Court could, on the initiative of the President of the National Council of the Judiciary - also the President of the Supreme Court - appoint a different court of the same jurisdiction if the adjudication of the case or a given group of cases arriving at the given court would not have been possible in a reasonable time due to the extraordinary and disproportionate workload of the

Background Document on the Fourth Amendment to the Fundamental L a w of Hungary, C D L - R E F ( 2 0 1 3 ) 0 1 9 , p. 28

2019. 05. 03. atlatszo.hu 51 The new provision by the fourth amendment of the Fundamental Law of article 27 4) allows that the President of the National Office for the Judiciary transfer a case from a court to another to the extent it has the same general jurisdiction and the same powers. The motivation for such provision is to ensure that decisions are rendered within a reasonable time and to balance the workload between the courts. The aimed purpose is in line, on the one hand, with the requirements of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, following to which the decisions shall be rendered within a reasonable time and, on the other hand with the desire to ensure a due administration of justice (similar solution can be found in legislation and case law in other countries, such as France). " 51

It should be noted that in Germany, the constitution does not provide for the possible transfer of individual cases between courts and stipulates that no one may be withdrawn from his/her legitimate judge. An exception to this rule in German law, and a disputed one, may be the option in criminal proceedings, on the basis of which the prosecution service may, in specified cases, select the court before which it presses charges. 53

The Constitution of the Netherlands also does not contain any provision for the transfer of individual cases between courts. Article 46a of the Act on the organization of the courts of the Netherlands makes it possible that in the event of a lack of capacity the justice minister, after consulting the Council of the Judiciary, may transfer certain categories of cases to other courts. The transfer of cases is possible for a given period; it may not exceed three years and may be prolonged once for a further year. In criminal cases the transfer is only possible by the justice minister after hearing the council of the prosecutors. The transfer must be published in the official journal. 54

The recently introduced Fifth Amendment to the Fundamental Law of Hungary removed the power of the President of NJO to transfer cases at all. The amendment annulled the article 27 4) of the Fundamental Law, which allowed that the President of the National Office for the Judiciary transfer a case from a court to another to the extent it has the same general jurisdiction and the same powers. The motivation of this amendment is based on the requirement set by European Commission and the Hungarian Government as a member state of the European Union is obliged to fulfil the responsibilities undertaken by its membership. It is laid down in the reasoning of the amendment that the withdrawal of the transfer of cases will cost approximately six billion forints in five years for the Hungarian taxpayers.

3. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government.

â&#x20AC;˘

Opinion of the Monitoring Committee requesting for the opening of a monitoring procedure in respect of Hungary

"4.3.5. The transfer of cases

http:..

vv VtW.vcnice.coe.int/wcbforms/documents/?pdf=CDL-RHFi2013)OI9-e

" Opinion on the Fourth Amendment, requested by the Ministry of Foreign Affairs and prepared by Messrs. Francis Delperee, Pierre Delvolve, and Eivind Smith, p. 59 http:''\Ywu.kormarv hu/douiiloadyd.eQ/e000Q/1raduc%20-%20opinion%20on%204th%20amendment pdf Ibid. Background Document on the Fourth Amendment to the Fundamental L a w of Hungary, p. 29 Ibid. H

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125. A crucial area of concern was the excessively large and discretionary powers given to the President of the NJO to transfer cases from one court to another, based on the overly broad criterion of "adjudicating cases within a reasonable period of time". This power was given a constitutional basis by its inclusion in the Transitional Provisions to the Fundamental Law on 31 December 2011, but its duration was limited "until a balance distribution of case-load has been realised". After the Constitutional Court annulled most of the provisions of the Transitional Provisions, the power of the President of the NJO to transfer cases has again been re-introduced through the Fourth Amendment, but on a permanent basis. 126. The amendments to the cardinal acts only marginally address the substantial criticism of the Venice Commission on this provision. Following the amendments, the law now specifies that the transfer of cases is an exception and that the NJC will determine the principles that should be applied by the NJO President when appointing a preceding court. However, the President is not bound by these principles. In addition, the principles to be developed by the NJC only pertain to the criteria for the selection of the preceding court and not on the selection of cases that will be transferred. Similarly, the judicial review is limited to the selection of the preceding court and does not cover the selection of cases itself. In the case of the selection of the preceding court, the legal overview is restricted to compliance with legal provisions and not with the substantial criteria for the selection of cases, as drawn up by the NJC. In addition, the cardinal acts allow the President of the NJO to assign a case to another court even if the Curia has annulled a previous appointment decision in the same case. 127. If allowed at all, the transfer of cases should only take place exceptionally and on the basis of clearly established and objective criteria Furthermore, the transfer of cases, both with respect to the selection of cases as well as with respect to the selection of the receiving court, should be open to legal review, the conclusions of which should be binding on the President of the NJO. The current possibilities for legal review, as introduced by the amendments, are clearly deficient. We wish to highlight that the transfer of cases does not solve the underlying structural under-capacity of the courts in Budapest. 128. The Hungarian parliament should introduce such a comprehensive judicial overview on the transfer of cases without delay. The current situation is at variance with the principle of a fair trial as meant by Article 6 of the EHCR. In addition, we would like to highlight that, in its opinion on the amendments, the Venice Commission emphasized that in general it "strongly disagrees with the system of transfer of cases because it is not in compliance with the principle of a lawful judge, which is an essential component of the rule of law". Comments on points 125-128: The Fourth Amendment of the Fundamental Law introduced the article 27 4), which allows that the President of the National Office for the Judiciary transfer a case from a court to another to the extent it has the same general jurisdiction and the same powers. The recently introduced fifth amendment of the Fundamental Law of Hungary will totally remove the power of the President of NJO to transfer cases at all. 55

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Opinion of the Venice Commission on the Fourth Amendment to the Fundamental Law of Hungary

72. Article 14 of the Fourth Amendment supplements Article 27 of the Fundamental Law by the following paragraph 4: "In the interest of the enforcement of the fundamental right to a court decision within a reasonable time and a balanced distribution of caseload between the courts, the President of the National Judicial Office may designate a court, for cases defined in a cardinal Act and in a manner defined also in a cardinal Act, other than the court of general competence but with the same jurisdiction to adjudicate any case." 3

Opinion on the Fourth Amendment, requested by the Ministry of Foreign Affairs and prepared by Messrs. Francis Delperee, Pierre Deivolve, and Eivind Smith, p 59

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73. Already in its decision 166/201 1 the Constitutional Court had found the transfer of cases by the Supreme Prosecutor to be contrary to the European Convention on Human Rights. In order to overcome that decision, this transfer had been 'constitutionalized' in Article 11.4 of the Transitional Provisions, the Fourth Amendment includes into the Fundamental Law the transfers of cases by the PNJO, which had been introduced in Article 11.3 of the Transitional Provisions. The Commission welcomes that the Fourth Amendment does not provide for transfers by the Supreme Prosecutor himor herself. 74. The transfer of cases has been strongly criticized by the Venice Commission: "The system of the transferring of cases is not in compliance with the principle of the lawful judge, which is essential to the rule of law; it should be revised. Pending a solution of this problem, no further transfers should be made." 75. The Government Comments (para. 44) state that on 7 June 2013, the Hungarian Government announced that the system of transfers of cases will be eliminated on the constitutional and the legislative level. The Venice Commission warmly welcomes this intention of the Government to introduce a parliamentary procedure and hopes that Parliament will soon be able to adopt this proposal." Comments on points 72-75: The recently introduced Fifth amendment of the Fundamental Law of Hungary will totally remove the power of the President of NJO to transfer cases at all. The amendment will annul the article 27. 4 of the Fundamental Law, which allows that the President of the National Office for the Judiciary transfer a case from a court to another to the extent it has the same general jurisdiction and the same powers. The motivation of this amendment is based on the requirement set by European Commission and the Hungarian Government as a member state of the European Union is obliged to fulfil the responsibilities undertaken by its membership. It is laid down in the reasoning of the amendment that the withdrawal of the transfer of cases will cost approximately six billion forints in five years. The aimed purpose is in line, on the one hand, with the requirements of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, following to which the decisions shall be rendered within a reasonable time and, on the other hand with the desire to ensure a due administration of justice (similar solution can be found in legislation and case law in other countries, such as France). 56

' Opinion on the Fourth Amendment, requested by the Ministry of Foreign Affairs and prepared by Messrs. Francis Delperee, Pierre Deivolve, and Eivind Smith, p. 59 http;/Avww.kormany. hu/download/d/eO/eOOOO/Trad uc%20-%20opinion%20on%204th%20amendmcnt. pdf

2019. 05. 03. atlatszo.hu 54 Hungarian Supreme Court (Curia) and the Supreme Prosecutor - new powers (request for abstract examination of the constitution) 1. Summary of the relevant criticism The Hungarian Government considers a further new and important feature of the fourth Amendment of the Fundamental Law namely that it extends the right to initiate subsequent norm reviews to the President of the Curia and the Chief Prosecutor. According to the Fourth Amendment Article 24.2.e of the Fundamental Law is amended as follows, (The Constitutional Court shall): "e) review any legal regulation for conformity with the Fundamental Law upon an initiative to that effect by the Government, one-fourth of the Members of Parliament, the President of the Curia, the Supreme Prosecutor or the Commissioner for Fundamental Rights; " 5?

The fact that after entry into force of the Fourth Amendment of the Fundamental Law not only the Government, the Commissioner for Fundamental Rights and one-fourth of the MPs but also the President of the Curia, the Supreme Prosecutor are allowed to initiate such a procedure (as well as both bodies are vested with the right to initiate a review on formal grounds of the Fundamental Law or Amendments to It before the Court) causes according to the Venice Commission serious concerns to the independence of both players. Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013): ,,120. This means that now, in addition to the Government and one-fourth of the Members of Parliament, both the Curia and the Supreme Prosecutor can make abstract requests for the control of the legislation to the Constitutional Court. However, there is a danger that this competence may drag the Curia (as well as the Supreme Prosecutor) into the political arena. Normally, requests for review in concrete cases should provide sufficient opportunity of access to the Constitutional Court. " 5H

2. Measures already taken to mitigate criticism According to the Hungarian Government there is no legal reasoning why these officials would not exercise their rights within their statutory competences or any other ground for which the independence of Curia or the Supreme Prosecutor would be jeopardized. Comment: Although it is a rather rare solution in an international comprehension, we cannot see either how such an extension right to act can contravene the generally accepted standards of the rule of law or drag the Curia or the Supreme Prosecutor into the political field. 3. Potential further measures The reasoning that the Curia or the Supreme Prosecutor would be endangered of coming under some kind of political influence does not seem well established especially in light of the fact that they can only act as initiators of the ex-post constitutionality review (in abstracto) and they have absolutely no role in the making of the decision in the given procedure. To pass the final resolution stays exclusively in the competence of the Constitutional Court. Therefore we can state that there is no real justified reasoning why this regulation of the Fourth Amendment should be further altered.

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4. Detailed legal background

Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. â&#x20AC;˘ Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 59

,,119. Article 12.2 of the Fourth Amendment, changes Article 24.2.e of the Fundamental Law, which now reads [the Constitutional Court shall]: "e) review any legal regulation for conformity with the Fundamental Law upon an initiative to that effect by the Government, one-fourth of the Members of Parliament, the President of the Curia, the Supreme Prosecutor or the Commissioner for Fundamental Rights;" 120. This means that now, in addition to the Government and one-fourth of the Members of Parliament, both the Curia and the Supreme Prosecutor can make abstract requests for the control of the legislation to the Constitutional Court. However, there is a danger that this competence may drag the Curia (as well as the Supreme Prosecutor) into the political arena. Normally, requests for review in concrete cases should provide sufficient opportunity of access to the Constitutional Court." Comments on points 119-120: "An important new feature of the Amendment is that it extends the right to initiate subsequent norm reviews to the President of the Curia and the chief prosecutor. As a result, the most important players of the judicial system are directly vested with the power to initiate the review by the Constitutional Court of legislation they deem to be contrary to the Fundamental Law. The Amendment likewise vests these two players with the right to initiate a review on formal grounds of the Fundamental Law or amendments to the Fundamental Law before the Constitutional Court." 60

"In connection with the newly established powers of the President of the Curia and the Supreme Prosecutor, it is not obvious why the Draft Opinion presumes the abuse of power in their case. The Hungarian Government does not see any reason why these officials would not exercise their rights within their statutory competences." 61

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2019. 05. 03. atlatszo.hu 56 The alleged discrimination of homeless people: prohibition of permanent living in public areas 1. Summary of the relevant criticism The Fourth Amendment of the Hungarian Fundamental Law amended the constitution with the following: "In order to protect public order, public security, public health and cultural values, an Act of Parliament or a local ordinance may declare illegal staying in a public area as a permanent abode with respect to a specific part of such public area." The Venice Commission on one hand "welcomed that paragraphs 1 and 2 of Article XXII introduced an obligation of the State and local governments to strive for the protection of homeless persons. " But the Commission heavily criticized and gave its expressions to worry about „the vagueness of the criteria as well as the level of regulation. " As it is stated in the opinion of the Venice Commission: "65. From the point of view of the Venice Commission in the framework of this Opinion, important issues are the vagueness of the criteria as well as the level of regulation. Article XXII.3 of the Fundamental Law is one of the provisions of the Fourth Amendment that contains detailed rules which are usually regulated by law and should not be part of a Constitution. Raising such provisions to the level of the Constitution has the effect of preventing review by the Constitutional Court." 2. Argumentation in order to mitigate criticism First of all, the followings shall be emphasized: •

•

As the Venice Commission notes in its opinion, the Constitutional Court of Hungary made a decision No. 38/2012. (XL 14.) on the annulment of punishing facts and other provisions of permanent living at public places. The reasoning of this decision contains that the annulled acts and provisions were made possible for local governments to sanction improper use of public places so thus these are contrary to human dignity, constitutional rights and rule of law.. In this case the Commissioner of Fundamental Rights also turned to the Constitutional Court to protect the rights of homeless people and stated an official report of No. 6727/2012. which analysed the problems with the regulation. In the original version, article X X I I only contained the wording reproduced in subparagraph 1 of the current version. The Fourth Amendment has thus added to the original text paragraphs 2 and 3. The text contains two series of provisions: ones guaranteeing access to decent housing; the others allowing to declare illegal staying in public area as permanent abode. Introducing the new Article XXII.3 on the constitutional level is a reaction to the decision No. 38/2012. (XL 14.) of the Constitutional Court. Upon the above mentioned criticisms and following the communication with the European Commission, the Hungarian Government does not recognise the necessity to alter their previous policy on the matter, while acknowledging the need for law implementation and guaranties. o The Amendment does not criminalise homeless people and it is not aimed at prohibiting homelessness. By taking into consideration the observations of Decision No. 38/2012. ( X I . 14.), the Amendment provides the constitutional possibility for the slate and local governments to prohibit - in certain public areas and based on a specific stringent system of aspects - habitual residing in public places. 56

2019. 05. 03. atlatszo.hu 57

The Amendment unquestionably adjusts to the international practice that - using the phrase of the European Convention on Human Rights - allows the individual states to take measures in the interest of securing public order, public safety and public health. By taking into consideration the recommendation of the Venice Commission and the Constitutional Court of Hungary the Government introduced a bill to amend the Petty Offence Act (the bill will be presumably adopted at the beginning of October 2013). The proposal would authorize local governments to ban permanent living in public areas. 62

It must be noted that the earlier situation was detrimental not only to the majority of society but to the homeless as well. Before the introduction of the previous prohibition, according to the data of the Local Government of the Capital, between 2006 and 2010, 131 homeless people froze to death in the streets of Budapest. By comparison, in the year following the introduction of the prohibition, altogether one person died for the same reason. Clearly, through the regulation, the state stepped up not only for the protection of public order, public safety and public health on the side of the majority of society but it also satisfied its obligation to protect the lives of the homeless. 3. Guarantees Besides providing the State and the local governments with a constitutional possibility of regulation, the Fourth Amendment - taking into account the decision of the Constitutional Court 38/2012. ( X I . 14.) - determines guarantees. The right to adopt a restrictive regulation by the State and local governments is not unconditional, it can be used solely under the condition that the interest of protecting public order, public safety, public health and cultural values necessitates it. In Budapest the local government decides to prohibit permanent living at railway stations, metro stations or at public areas around the Parliament, the municipal ordinances will probably prove to be constitutional. However, a prohibition referring to an inhabited area without any cultural values will probably be unconstitutional, and the Constitutional Court or the Curia (Supreme Court) will repeal such municipal ordinances.

The second guarantee requirement is that a prohibition of permanent living may be issued only to specific areas, but only to certain and not all areas of public spaces. I f the prohibition extends to the whole territory of the local government, the Constitutional Court or the Curia (Supreme Court) will repeal the prohibition as unconstitutional municipal ordinance.

The third guarantee requirement is that the prohibition must have a legal form (law or municipal ordinances), which can be challenged before the Constitutional Court or the Curia (Supreme Court). The Constitutional Court or the Curia (Supreme Court) can review these rules without any restrictions. If the laws or municipal ordinances do not correspond to the Fundamental Law, the Constitutional Court or the Curia (Supreme Court) will repeal those. The Fourth Amendment obliges the State and the local governments to ensure accommodation for all homeless people.

The Amendment does not criminalize homeless people and nor does it contain general prohibition regarding homelessness. On the contrary the Amendment obliges the State and the local governments to ensure accommodation for all unsheltered people. Taking into account the accommodation provided for by the State and local governments, the Amendment entitles them to prohibit permanent living in

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certain parts (but only in certain and not all parts) of public areas where necessary in the interests of protecting public order, public safety, public health and cultural values. The prohibition must have a legal form which can be challenged before the Constitutional Court. "' 6

4. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and relevant comments reflecting to each point. â&#x20AC;˘

Opinion of the European Commission for Democracy Through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013)"

â&#x20AC;&#x17E;H. Homelessness (Article 8) 63. The Venice Commission welcomes that paragraphs 1 and 2 of Article X X I I introduce an obligation of the State and local governments to strive for the protection of homeless persons. As concerns Article XXII.3, the Venice Commission notes that, in decision 38/2012 of 14 November 2012, the Hungarian Constitutional Court reviewed the Petty Offence Act and stated that the punishment of unavoidable living in a public area fails to meet the requirement of the protection of human dignity ensured by Article II of the Fundamental Law, and can neither be justified by the removal of homeless people from public areas nor by providing an incentive for such persons to avail themselves of the social care system. In the Court's view, homelessness is a social problem which the State must handle in the framework of social administration and social care instead of punishment. Introducing the new Article XXII.3 on the constitutional level is a reaction to this decision." Comment on point 63: "Draft Opinion ignores the full text of the constitutional provision at issue. First and foremost, the Fourth Amendment creates, in Article X X I I , a completely new set of obligations on the state and local governments to tackle homelessness. Paragraph (1) calls for the provision of decent housing and for the access of public services for all. A new paragraph (2) places an obligation on the central and local governments to cooperate with a view to creating the necessary conditions to provide shelter for all homeless persons. In addition, a new paragraph (3) allows local governments to designate limited zones where habitual living can be banned. These three provisions constitute a comprehensive package that requires constitutional regulation. This was the reason behind the level of regulation, rather than, as the Draft Opinion assumes the avoidance of review by the Constitutional Court. In fact, as all implementing rules will be adopted by ordinary acts (or decrees of local governments) the Constitutional Court will enjoy full powers to assess their consistency with the Fundamental Law. It also must be pointed out that the new implementing legislative framework, tabled to Parliament, creates a system that is substantially different from that annulled by the Constitutional Court by decision 32/2012. Neither the new provisions of the Fundamental Law, nor those of the implementing legislation can be seen to amount to an "incrimination of homelessness". The new regime will comprise of the following main elements: - habitual living can be banned by local governments only based upon precisely defined public order considerations listed in the Fundamental Law (i.e. the protection of public order; public security; public health and cultural assets); - a person (irrespective of being homeless or not) living in the designated zone not respecting this regulation must be expressly called upon by the authorities to leave the area; - only if the person fails to follow the official instruction can the authorities initiate contravention procedure (as a general rule sanctioned by public work)." 65

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â&#x20AC;&#x17E;64. The Government argues, in the Background Document, that Article XXII.3 of the Fundamental Law is only an enabling clause and that it neither aims to criminalise homeless people nor contains a general prohibition regarding homelessness. The Government insists that only permanent living in specific areas can be prohibited, when this is necessary in the interest of protecting public order, public safety, public health and cultural values. The Constitutional Court (as concerns national legislation) and the Curia (as concerns municipal regulations) would ensure compliance with these criteria. The Government points out that in Belgium and in the Czech Republic legislation prohibits people to set up and live in tents in inhabited areas and cities." Comment on point 64: The comments of the Hungarian Government are actually regarding the regulation of Belgium and the Czech Republic as the opinion of the Venice Commission mentioned but the number of examples are further more: "The restriction of the freedom of movement of this form is established in the Slovenian, Maltese, Japanese, Estonian and Lithuanian Constitutions as well. The Spanish Constitution protects the citizens right to public health in a separate article, while the Romanian Constitution names it together with the possibility of the introduction of restrictive measures related to public safety and national security. 1

The Italian Constitution, which draws the boundaries of the freedom of movement at the restriction of health and safety, or the Croatian and Polish Constitutions, which set out the boundaries of every fundamental right and freedom at the enforcement of the rights of other people, as well as securing public order, public morality and public health. In Belgium, there is an act against people setting up and living in tents in inhabited areas and cities. In the Czech Republic, almost all the large Czech cities have prohibited begging in city centres recently, and have driven the homeless out of the central public areas. In Italy, cities handle the problem of the homeless independently: in Bologna and Padua, for instance, the city police may fine those finding shelter in gateways and on benches, and for using or messing up public areas. In Slovakia, there are regulations at the level of the local governments of larger cities aimed at forcing back the presence of the homeless (prohibition on drinking in public areas and using benches owned by the city). In several European countries (for instance, in the Czech Republic, France, Croatia, Germany and Romania) begging - especially if it is performed in a manner insulting or threatening to others - is strictly punished. In Germany, the police may, referring to a threat to public security, instruct the homeless to move to an institution or apartment which fulfils basic human needs in order to suppress involuntary homelessness. In the USA, according to the survey of the non-profit organisation the National Law Center on Homelessness and Poverty (NLCHP) executed last year with the involvement of 234 cities, in 40 per cent of the settlements it is forbidden to sleep in a public place, in 56 per cent it is forbidden to loiter in such places, and in 53 per cent it is forbidden to beg. In 33 per cent of the cities, it is not allowed to be sitting or lying in public areas. In Canada, begging and washing windscreens have been prohibited, punishing "perpetrators" with a fine or imprisonment. The Safe Streets Act was passed in Ontario, Canada in 2000, which prohibited the different forms of aggressive begging, and within that, it put special emphasis on earning money by washing windscreens.

2019. 05. 03. atlatszo.hu 60

In Australia, begging is also illegal in most of the states, and can be punished with a fine of fifty dollars to two years imprisonment (Walsh 2004)." 66

"65. From the point of view of the Venice Commission in the framework of this Opinion, important issues are the vagueness of the criteria as well as the level of regulation. Article X X I I . of the Fundamental Law is one of the provisions of the Fourth Amendment that contains detailed rules which are usually regulated by law and should not be part of a Constitution. Raising such provisions to the level of the Constitution has the effect of preventing review by the Constitutional Court." Comment on point 65: "In addition to securing the possibility of classification as illegal - also with a view to the related decision of the Constitutional Court - the Amendment establishes guaranteed constitutional requirements: instead of unconditional authorisation, the prohibition can be enforced exclusively in the interest of the protection of public order, public safety and public health, as well as cultural values. Thus, the state and local governments can introduce the prohibition only related to an aim, that is, for instance, in the case of an uninhabited area not bearing cultural value, the restriction of rights might be in violation of the Fundamental Law, while in railway stations, metro stations or in the public area in front of the Parliament, the prohibition might prove to be constitutional. An important guarantee requirement is that the prohibition can be introduced only for a specific part of the public places: it will be in violation of the Fundamental Law, for instance, if a local government establishes the prohibition for its entire area. The constitutional legislator establishes a further element of guarantee in the Amendment: the prohibition can be introduced exclusively in a law or a local government decree, that is, the Curia or the Constitutional Court is to be allowed to review the rules in any case, and repeal the regulations in violation of the above requirements. Consequently, it must be emphasised that according to an earlier decision of the Constitutional Court, the unlimited, bianco authorisation given for the creation of local government regulations rendered the earlier regulation unconstitutional; thus, the Amendment's regulation satisfies the criteria defined by the Constitutional Court, without criminalising homeless people, and containing no prohibitive provisions of general nature in connection with homelessness." 67

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2019. 05. 03. atlatszo.hu 61 The Commissioner for Fundamental Rights I.

Summary of the relevant criticism

The Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe criticised the legislative activity of the Hungarian National Assembly due to the magnitude of the reforms carried out by the ruling coalition in just over 2 years. One of the recomposed institution is the Commissioner for Fundamental Rights, assisted by two Deputies, one in charge of minorities and the other one in charge of future generations.. 68

Arguments for the reformed ombudsman system (to mitigate criticism") 69

The Fundamental Law and Act CXI of 201 1 on the Commissioner for Fundamental Rights created an unified ombudsman system. This is a new scheme that entered into force on 1 January 2012 and which replaced the former Ombudsman and two Deputy Commissioners responsible for the protection of the interests of future generations and the rights of nationalities, respectively. Similarly to the former Ombudsman, the Commissioner for Fundamental Rights is independent of any political parties and interest groups, acting solely on the basis of the Fundamental Law and the relevant statutes. The Commissioner has the rank of a cabinet minister and the immunities of a member of the Parliament. The Commissioner may not be instructed by anyone and is accountable exclusively to the Parliament. Prof. Mate Szabo, Commissioner for Fundamental Rights between 2007 and 2013, declared that the concept of the new Commissioner for Fundamental Rights has been elaborated originally by him. He confirmed that his relevant proposals have been to a great extent approved by the Government and were actually introduced by the Fundamental Law. He is also of the view that the new legislation appropriately guarantees protection of fundamental rights and is actually more effective and focused than that that existed prior to the new Fundamental Law. That is, the operation of the institution became more effective and intelligible, and its tasks and areas of authority received a more clear regulation. This office will also get the complete control of the anti-corruption work from 1 January 2014, which will grant a further important role to the Commissioner for Fundamental Rights. 70

It is also envisaged by Prof. Mate Szabo that the Office of Commissioner of Fundamental Rights will be accredited as United Nation's human rights institution category " A " listed. Moreover, it is expected that the new Commissioner for Fundamental Rights, Prof. Laszlo Szekely, will be the Hungarian delegate to the Venice Commission. These circumstances will significantly enhance the role of the new Commissioner in the international context of fundamental rights protection. 71

3. Detailed Legal background Below shall be found the report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe:

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Request for the opening of a monitoring procedure in respect of Hungary (25 April 2013) 72

â&#x20AC;&#x17E; 2.1. Legislative activity 2.2. New institutions and major reforms ii. newly created or recomposed: the Commissioner for Fundamental Rights, assisted by 2 Deputies, 1 in charge of minorities and the other one in charge of future generations. The Deputies can no longer independently lodge complaints with the Constitutional Court. All 3 are elected by Parliament for a 6 year mandate23 (renewable), by a 2/3 majority. The previous Commissioner for Civil Rights, Mate Szabo, who had been elected by Parliament for 6 years in 2007, took over as Commissioner for Fundamental Rights until the end of his term (September 2013), but the mandate of his Deputies is to end at the same time as his; (...) c. The scope of, the speed and manner in which these reforms were carried out, have raised concern in Hungary and internationally, because of a suspicion that the Fidesz/KDNP coalition aims at cementing its political choices well beyond the time-frame given to it by the electorate. The long mandates for a number of chairs of new institutions and the fact that all of them were appointed by the 2/3 majority the ruling coalition holds in parliament, also reinforces that impression." Comment on point 2.2. ii: The scope, speed or the manner of the reform related to the institution of the ombudsman did not raise concern even on behalf of the commissioner for fundamental right himself. The new legal framework works well and although the effected decision-maker, the ombudsman acknowledged its advantages.

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2019. 05. 03. atlatszo.hu 63 Changes in the powers of the Constitutional Court of Hungary Summary of the relevant criticism on the regulations of Act CLI of 2011 on the Constitutional Court and the Fourth and Fifth Amendment of the Hungarian Fundamental Law in respect to the Constitutional Court's competence and powers The adoption of the Cardinal Act CLI of 2011 on the Constitutional Court and the Fourth Amendment of the Hungarian Fundamental Law amended the powers and procedural rules applicable to the Constitutional Court of Hungary. Although the Hungarian Government provided detailed background papers on the justification of the new regulation (see below), the Venice Commission, the Council of Europe, the Tavares-report and the European Commission in its administrative letters (see also below) criticized the adopted amendments saying that the provisions are curtailing the independence and the competences of the Constitutional Court, repealing the rulings of the Court adopted by the Constitutional Court prior to the entry into force of the Fundamental Law, restricting the power of the Court to review budgetary laws, abolishing the actio popularis that had been a hallmark of the Hungarian constitutional justice system. The different reports and papers also criticize the newly introduced regulation of request for abstract control by the Curia and the Supreme Prosecutor and the 30 day limit for the review of requests from ordinary courts.

Curtailing the independence and the competences of the Constitutional Court: the status of the previous case law of the Court, restricting the power of the Court to review budgetary laws and abolishing the actio popularis 1. Summary of the relevant criticism and measures already taken to mitigate criticism and potential further measures The Venice Commission and the Council of Europe (Monitoring Committee) heavily criticized the Hungarian Government's amendments made to the powers and competences of the Constitutional Court after 2010. According to their reports the ruling coalition has used its two-thirds majority in the parliament to circumvent Constitutional Court decisions and made amendments to the Fundamental law and to Act on CLI of 2011 on the Constitutional Court to curtail the power and competence of the Constitutional Court which endangers the proper working of the constitutional justice system of Hungary and weakens the human rights regime and the respect for the rule of law. The reports especially focus on the Fourth Amendment of the Fundamental Law. According to the opinion of the Council of Europe (Monitoring Committee) :,^fte Hungarian system provides for a uni-cameral parliament and the Constitutional Court therefore plays an important correcting role. Thus it is veiy worrying to observe the ruling majority's decisions, which clearly aim at reducing the competences of the Constitutional Court". 73

The reports find it worrying that the Fundamental Law does not provide any explicit statement on the independence of the Constitutional Court and its judges. According to the Hungarian Legislator the independence of the judges are ensured by the Fundamental Law: as paragraph (1) of Article 26 of the Fundamental Law clearly providing, that "Judges shall be independent and only subordinated to laws, and may not be instructed in relation to their judicial activities. Judges may only be removed from office for the reasons and in a procedure defined by a cardinal Act. Judges shall not be affiliated to any political party or engage in any political activity." and Article B paragraph (1) provides the rule of law "Hungary shall be an independent, democratic State governed by the rule of 7,

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law." and Article C paragraph (1) the principle of division of powers "The functioning of the Hungarian State is based on the principle of division ofpowers."

Comment: Our opinion is that the independence of the judges of the Constitutional Court is well established by the Fundamental law and the Act on C L I of 2011 on the Constitutional Court. We would like to quote the Conclusion of the Venice Commission of its 2012 report on the Act on C L I of 2011 on the Constitutional Court to fortify this argument: 53. The Commission found the Act on the Constitutional Court in general well drafted and coherent. It identified a number of positive elements in the Act, inter alia: 1. the provisions on budgetary guarantees (Section 4 ACC), 2. the exclusion of the re-election of Constitutional Court Judges (Section 6.3 ACC); 3. the time limit for the appointment of new judges in order to ensure continuity in the membership of the Constitutional Court (Section 8.3 ACC); 4. functional immunity for the Judges of the Constitutional Court (Section 14 ACC); 5. the extension of the mandate of the incumbent member of the Constitutional Court if the Parliament fails to elect a new member within the time-limit (Section 15.3 ACC) 6. the possibility for one-fourth of the members of Parliament as well as for the Commissioner for Fundamental Rights to request ex post review of legal acts (Section 24 ACC); 7. Provisions on access to the Constitutional Court out of time in exceptional circumstance (Section 30 ACC); 8. the decisions of the Constitutional Court are also binding on ordinary courts "as to the constitutional issue" (Section 43.3 ACC): 9. the attenuation of the ex nunc effect of Constitutional Court decisions (Section 45 ACC); 10. the absence offees for the proceedings before the Constitutional Court (Section 54.1 ACC). 74

However we would like to add a critical comment as well, to Section 7.1 and 8.1 of the Act on C L I of 2011 on the Constitutional Court. These sections provide that the Parliament can elect members of the Constitutional Court upon proposal by a parliamentary committee composed in proportion to the members of the parties represented in Parliament and the judges are elected by the Parliament with qualified majority of two-thirds. In our opinion the proportional constitution of the parliamentary committee should be restored to the scheme where votes of the members of the governing and opposition parties were equal in the nominating committee (a committee based on parity, as it was before 2010). According to our opinion due to these modifications the independence of the Constitutional Court judges would be reinforced. The reports find it worrying that with regard to the context of the new Fundamental Law as compared to the previous Constitution, the Constitutional Court decisions made before the entry into force of the Fundamental Law (i.e. 1 January 2012) shall cease to be in force. The report of the Council of Europe (Monitoring Committee) expressly states : "Prohibiting the Constitutional Court from referring to its case-law if it pre-dates the entry into force of the Fundamental Law, (i.e. any case-law before 1 January 2012) is clearly unacceptable. It is also unnecessary since the Constitutional Court had already stated in a number of decisions that it would rely on its case-law only in relation to provisions in the Fundamental Law that were substantially the same as in the old Constitution." st

Comment: The Hungarian Government gives an appropriate answer to this criticism by stating that this act does not affect the legal consequence induced by the resolutions of the Constitutional Court that were adopted prior to the entry into force of the Fundamental Law (Closing and miscellaneous provisions). This conclusion could also be pointed out from Article 19, ยง 2, contained in the Fourth Amendment of the Fundamental Law of Hungary as accepted, in the following way (2) Point 5 of the Fundamental Law shall be replaced by the following provision: "5. Constitutional Court rulings given 74

hltp://vvww.venicc.cocj'nt/webforms/documents/?pdf=CDL-AD(2012)009-e pg. 12.-13. hnp://wwv.assembly.coe.int/Communicat]DrL'arnondoc08_2013.pdf pg 29. Article 97.

2019. 05. 03. atlatszo.hu 65 prior to the entry into force of the Fundamental Law are hereby repealed. This provision is without prejudice to the legal effect produced by those rulings. " We support the idea that this regulation does not preclude the possibility that the Constitutional Court may come to the same conclusion as before, and that the Constitutional Court has the right to refer to its earlier decisions as they form part of the historical constitution and "the Fundamental Law itself lays down in Article R) that its provisions must be construed in harmony with the National Avowal and the achievements of the historical constitution" . Another reason why this regulation cannot be judged dogmatically incorrect, is namely that this regulation expressly states the idea that the new Fundamental Law replaces the Constitution crates a totally new jurisdictional situation whereby the maintenance of case law of the former 1949 Constitution (Act XX of 1949) in full force would also cause legal inconsistencies. 76

The other recurring criticism of the Venice Commission and the Council of Europe (Monitoring Committee) of the new Fundamental Law that it abolished the system of actio popularis that had been a guarantee of the rule of law and checks and balances principles because under this system an individual person or NGO had the right to request an ex post review of the constitutionality on an act or its implementation. Comment: This amendment was initiated by the Constitutional Court itself, the chair of the Constitutional Court, Dr. Paczolay Peter asked the Constitutional Preparatory Committee in his letter to act out the institution of "actio popularis" from the new Fundamental Law. The President of the Constitutional Court referred to the extremely heavy burden of cases caused by the never ending line of complaints based on action popularis, while most of them were lacking of serious legal foundations, although the Court had to deal with them in the ordinary manner. This resulted that the judges sometimes had not enough time to examine other important complaints and cases. 77

Further studies of the criticism on the competences of the Constitutional Court in respect of the "Restriction of the power of the Constitutional Court to review budgetary laws" or the "30 days limit for the review of requests from ordinary courts", and "the Request for abstract control by the Curia and the Supreme Prosecutor" are all detailed in this report under the relevant titles. 2. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. â&#x20AC;˘ Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 78

"97. Article 20 of the Fourth amendment repeals all the Constitutional Court rulings delivered before the entry into force of the Fundamental Law. Prohibiting the Constitutional Court from referring to its case-law i f it pre-dates the entry into force of the Fundamental Law, (i.e. any case-law before I January 2012) is clearly unacceptable. It is also unnecessary since the Constitutional Court had already stated in a number of decisions that it would rely on its case-law only in relation to provisions in the Fundamental Law that were substantially the same as in the old Constitution." â&#x20AC;˘ Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 79

Mp://www.venice.coe.int/wcbfbrrns/documcnts/?pdr=CDL-REF(2013)019-e pg. 12 "httpy/www.parlamenl.hu/biz/aeb/info/ab.pdf the letter of Dr. Paczolay Peter to the Constitutional Preparatory Committee of 29. September 2011, of the possible alterations to the competences and powers of the Constitutional Court. Only available in Hungarian. http://vvww,:venice.coe.int/webfonris/doeuments/?pdf-CDl.-AD(2013)0]2-e hKp://www.venice.coc.inl/webforms/documenls/?pdf=CDL-AD{2013)012-e IR

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2019. 05. 03. atlatszo.hu 66 " B . Previous Case-Law (Article 19) 88. Article 19 of the Fourth Amendment introduces point 5 of the Closing and Miscellaneous Provisions, which states that "Constitutional Court rulings given prior to the entry into force of the Fundamental Law are hereby repealed. This provision is without prejudice to the legal effect produced by those rulings." 89. The Background Document explains that this means that, notwithstanding the 'repeal' of the decisions of the Constitutional Court decisions given before 1 January 2012, they do not lose their binding force and laws annulled by the Court do not enter into force again. However, the Constitutional Court would no longer be able (and obliged) to refer to these decisions. In substance, the Court could come to the same conclusions, but without referring to its earlier case-law. From the Government's point of view, this provision is even regarded as broadening the margin of manoeuvre of the Constitutional Court, because the Constitutional Court will be more free to decide whether it would like to simply repeat the legal reasoning of its former decisions or develop new arguments without being bound by the case-law developed on the basis of the previous Constitution. The Government Comments (para. 52) point out that since the entry into force of the Fourth Amendment the Constitutional Court has already referred to its previous case-law. 90. The Commission fears that Point 5 of the Closing and Miscellaneous Provisions will result in legal uncertainty. Previous decisions of the Constitutional Court are guidance not only for the Constitutional Court itself, but also for the ordinary courts who rely on the Constitutional Court's case-law for their own interpretation of constitutional issues. While, over time, the Constitutional Court itself may be able to come to the same conclusions as in previous decisions, ordinary courts lack this essential point of reference with immediate effect. 91. Already in its opinion on the new Constitution, the Venice Commission expressed its concern that the Preamble's reference to the invalidity of the 1949 Constitution could be "used as an argument for ignoring the rich case law of the Hungarian Constitutional Court which, although based on this 'invalid' constitution, has played an important role in Hungary's development towards a democratic state governed by the rule of law". 92. From a functional perspective, the task of constitutional courts can be described as safeguarding the supremacy of the Constitution by providing an interpretation of it, which leads to a coherent development of law on the basis of the principles contained in the Constitution. Earlier case-law, even adopted on the basis of constitutional provisions, which are no longer in force, is an important source for this coherent development of the law. In Hungary, many human rights principles have been formed over years and have found their expression in the practice of the Constitutional Court. The decision of the Constitutional Court of Hungary on the abolition of the death penalty69 was ground breaking and acclaimed world-wide. It served as inspiration for the abolition of the death penalty by the Constitutional Courts of South Africa, Lithuania, Albania and Ukraine. 93. It is a misconception that it is good for constitutional courts to have a wide margin of appreciation. They should not take arbitrary decisions, but provide for constitutional coherence through decisions based on the Constitution and previous case-law. Furthermore, any constitutional court is free to deviate from its former decisions, provided it does so in a reasoned way. 94. Even if the constituent power were concerned that by basing itself on its earlier case-law, the Constitutional Court could perpetuate the old Constitution and would thus impair the effect of the new Fundamental Law, the complete removal of the earlier case-law would be neither adequate nor proportionate. Following any constitutional amendment, it is the task of constitutional courts to limit their reference to those provisions and principles that have not been affected by an amendment. 66

2019. 05. 03. atlatszo.hu 67 95. There is no evidence that the Hungarian Constitutional Court has not respected these limits. On the contrary, in its decision 22/2012, which was given when the Fundamental Law was already in force, the Constitutional Court argued that the Constitutional Court might use the arguments included in its previous decisions, adopted before the Fundamental Law came into force, "[...] provided that this was possible on the basis of the concrete provisions and interpretation rules of the Fundamental Law, having the same or similar content as the provisions included in the previous Constitution". This shows that the Constitutional Court was well aware of these limits. There was no need to enact a provision that could be read as depriving the Constitutional Court of the possibility to base itself on its prior case-law. The Hungarian Constitutional Court was not legally bound by its former case-law and could have further developed arguments and principles or have them replaced by new ones, i f necessary, depending on the contents of the new Fundamental Law. 96. The Venice Commission therefore cannot support the Hungarian authorities' argument that the Constitutional Court should be more free to decide. As shown, there was no justification to repeal the Constitutional Court's former case-law in order to enable the Constitutional Court to renew its jurisdiction in cases where it is necessary. It is inherent in a Constitutional Court's approach to interpret a constitution on the basis of its provisions and the principles contained in it. These principles transcend the constitution itself and directly relate to the basic principles of the Council of Europe: democracy, the protection of human rights and the rule of law. It is these principles which are reflected in the case-law of the Constitutional Court since its establishment. 98. In Hungary, the removal of the earlier case-law of the Constitutional Court concerns all cases and is not limited in time. Furthermore, it has to be seen in the context of a systematic limitation of the position of the Constitutional Court and its ability to control the other State powers at a time when the governmental majority frequently amended first the Constitution, then the Transitional Provisions and finally the Fundamental Law in reaction to decisions of the Constitutional Court. 99. Moreover, the Fundamental Law itself calls for continuity with regard to constitutional issues and seeks to link to the past - except for the Communist era. Hence, the numerous references to the "historical constitution" in its Preamble, but even more clearly in its Article R.3, which states that "the Fundamental Law shall be interpreted in accordance with [...] the achievements of our historical constitution". Even though the concept of the historical constitution remains rather vague, it can hardly be denied that the previous democratic Constitution of 1989 and its interpretation by the Constitutional Court are part of this concept." â&#x20AC;˘ Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment to the Fundamental Law of Hungary 80

"V. B. Previous case-law (97-108.) (51) Before reflecting on the comments of the Draft Opinion the status of the previous case-law of the Constitutional Court must be clarified. As a starting point it must be underlined that case-law of the Constitutional Court developed before the entry into force of the Fundamental Law is not rendered "void", as suggested by paragraph 105 of the Draft Opinion. The second sentence of point 5 of the Closing and Miscellaneous Provisions clearly states that the legal effects of the earlier rulings remain intact. (52) Moreover, neither the text of the Fundamental Law, nor the Background Document supports the conclusion in paragraph 104 and 151.2 that the Constitutional Court is barred from referring to its earlier case-law. In its recent decisions (i.e. adopted after the entry into force of the Fourth Amendment) the Constitutional Court indeed refers to its previous case law extensively (e.g. decision 12/2013, decision 3109/2013, decision 3104/2013).

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(53) The provision of the Fourth Amendment that the earlier rulings of the Constitutional Court are no longer in force (and are not annulled or void!) is more of a symbolic nature and has limited practical significance. Even in the own interpretation of Constitutional Court this provision does not create a source of uncertainty. All the more so, as the Fundamental Law makes it clear in Article R) that the socalled "historic constitution" constitutes a source of interpretation of the Fundamental Law. As the Draft Opinion also recognises (paragraph 108) the rich case-law of the Hungarian Constitutional Court is part of that tradition, thus can be freely used in constitutional jurisdiction (unless it goes against the Fundamental Law itself). This way the Court is able to ensure constitutional coherence through its decisions adopted over two decades."

â&#x20AC;˘ Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) Request for the opening of a monitoring procedure in respect of Hungary (25 April 2013) 81

"4.2.1. Curtailing the competences of the Constitutional Court 89. In the view of the Venice Commission, such restrictions of the competences of the Constitutional Court "run counter to the obvious aim of the constitutional legislature in the Hungarian Parliament to enhance the protection of fundamental Rights in Hungary". 91. The Cardinal Act on the Constitutional Court abolished the system of actio popularis that had been a hallmark of the constitutional justice system of Hungary. Under this system, each individual person, NGO, or even foreigners had the right to request an ex post review of the constitutionality of an act or its implementation, even without being directly affected by it. The abolishment of actio popularis, which was one of the stated aims of the authorities for the reform of the constitutional justice system, was widely criticised in Hungary and seen as an attempt to weaken the system of checks and balances. 92. In its opinion on three legal questions arising from the process of drafting a new Constitution in Hungary, the Venice Commission stressed that actio popularis cannot be regarded as a European standard and its existence is rather an exception among Council of Europe Member States.60 Although it acknowledges that actio popularis provides for the broadest guarantee of a comprehensive constitutional review, it bears the risk of completely overburdening the Constitutional Court, as arguably was the case in Hungary. 93. In order to compensate for the abolishment of actio popularis, the system of ex post direct individual complaints -where the individual is directly affected- has been extended to cover both legal acts and their implementation as well as court decisions based on them. 94. E x post reviews of legal acts can be initiated by the government, one-fourth of the members of parliament as well as by the Commissioner for Fundamental Rights (Ombudsman). The latter was added to the list of entities that can initiate an ex post review of legal acts on the recommendation of the Venice Commission in order to compensate for the abolition of the actio popularis system. Civil society interlocutors initially expressed some doubts about the possibility for the Commissioner for Fundamental Rights to effectively initiate an ex post review of an Act before the Constitutional Court in the absence of cases of individuals whose rights were violated by the Act in question. 95. However, these fears turned out to be unfounded as was evident from the number of reviews of cardinal acts by the Constitutional Court that were requested by the Commissioner for Fundamental Rights (over 25). This also underscores the fundamental role of this institution in the system of checks and balances in Hungary, especially in the situation when it would be difficult for a political force that does not belong to the current ruling majority to obtain the required quorum to initiate a constitutional review of a legal act. It is, however, to be noted that the current Commissioner for Fundamental Rights was elected in 2007 with cross-party support for a 6 year term. His mandate ends in September 2013 'http://vvavw.assemblyxoc.int/Communication/amond

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and it remains to be seen whether the next one will also have the same pro-active attitude when it comes to submitting complaints to the Constitutional court.

96. The Fourth amendment to the Fundamental Law ( F L ) further limits the powers of the Constitutional Court: it will only be able to review constitutionality of the Fundamental Law or amendments thereto, in case of violation of the procedural requirements set out in the F L with respect to its adoption and promulgation. Such a review may be initiated by the President, by the government, a quarter of MP's, the President of the Curia, the Prosecutor General or the Commissioner for Fundamental Rights. The Constitutional Court must take a stand within 30 days. This means that substantial review, even to the limited extent it had been practised by the Constitutional Court so far, is no longer possible. 4.2.2. Independence of the Constitutional Court 98. The Fundamental Law does not explicitly provide for the independence of the Constitutional Court or for the judiciary in general. The Venice Commission has recommended that such a provision should be included in the Fundamental Law, but the Hungarian authorities have not taken this up. In this context, it is also to be regretted that the Cardinal Act C L I of 2011 does not explicitly provide for the independence of the Constitutional Court. 99. Following constitutional amendments in 2010, the Cardinal Act on the Constitutional Court increases the number of judges on the court from 11 to 15. It limits judges'mandates to one term of 12 years. In addition the President of the Constitutional Court is no longer chosen by the members of the court from among their midst but directly elected by the parliament with a 2/3 majority. The fact that the Cardinal Act now excludes the re-election of judges has strengthened the independence of the judges in the Court. 100. Judges in the Constitutional Court are elected with a two-thirds majority by the parliament. The candidates for the Constitutional Court are appointed by a parliamentary committee that is composed of all political factions on the basis of their numerical strength in the parliament. Under the previous constitution, all political factions had the same strength in the nominating committee, ensuring that candidates could count on a large consensus among the political forces in the country. In the current composition of the parliament - where the ruling majority has a constitutional majority - the qualified majority needed to elect a Constitutional Court judge is not a sufficient guarantee against the politicisation of the Constitutional Court. It is strongly recommended that additional safeguards are adopted in the appointment process to guard against possible politicization of the court."

2019. 05. 03. atlatszo.hu 70 Restrictions to the powers of the Constitutional Court to review constitutionality of the Fundamental Law or Amendments thereto and the criticism of over-ruling the Court I,

Summary of the relevant criticism and measures already taken to mitigate criticism

The Venice Commission and Council of Europe (Monitoring Committee) recurrently criticize the Fourth Amendment of the Fundamental Law stating that it is further limiting the powers of the Constitutional Court, because it will only be able to review constitutionality of the Fundamental Law or Amendments thereto in case of violation of the procedural requirements set out in the Fundamental Law with respect to its adoption and promulgation. The Council of Europe (Monitoring Committee) further concludes that the power to the substantial review of the Constitution or the Amendments thereto practiced by the Constitutional Court so far is no longer possible and thereby represents a legislative intervention against an important mechanism of the Constitutional Court gradually established through decades. 82

According to our opinion if we compare the wording prior to the adoption of the Fourth Amendment, Article 9, paragraph 3, subparagraph i), of the Fundamental Law provided as follows: (the President of the Republic) "may send adopted Acts to the Constitutional Court to examine their conformity with the Fundamental Law, or may return them to the Parliament for reconsideration. " and the following: Article 9, paragraph 3, subparagraph i), as it replaced by the following provision; (The President of the Republic) "may send the adopted Fundamental Law and any amendment thereof to the Constitutional Court for a review of conformity with the procedural requirements set in the Fundamental Law with respect to its adoption, and may send adopted Acts to the Constitutional Court for a review of conformity with the Fundamental Law or may return them to Parliament for reconsideration '""we can conclude that there was no gradually established mechanism of the Constitutional Court to any substantial review of the Constitution assured by the former text of the Fundamental Law. In contrary according to the case law of the Constitutional Court the Court expressly confirmed that it had no competence to review the substance of the amendments to the Constitution. The following quotes of the Constitutional Court support the above mentioned practices: "The Constitutional Court may not annul (...) a single provision of the Constitution. If a provision is integrated into the provisions of the Constitution by virtue of the votes of two thirds of Members of Parliament, it has then become part of the Constitution and cannot be declared unconstitutional as a matter of course. " (ABH1994, 862.) "In the case of a constitutional amendment, while the norm providing for the entry into force of the law amending the Constitution will not form part of the text of the Constitution, it is a provision essential for the amendment of the norm content of the Constitution without which the constitutional amendment itself cannot occur. (...) Due to the close correlation between the provision prescribing the entry into force of the constitutional amendment with immediate effect and the provisions integrated into the norm text of the Constitution as a result of the constitutional amendment, the Constitutional Court cannot review the constitutionality of the provision of entry into force because this would also mean that the Constitutional Court established for the protection of the Constitution would exceed its constitutional powers and would assume constitutional legislative powers and, as part of its review, would not only construe but would necessarily qualify the provisions of the Constitution. " (ABH 1998, 816, 818-820.) 2

* hftp:.Vv\wu' assernbly.coeJnt/CommunicatioiVamoridocQ8 2013.pdf pg. 20., Article 96. The new provision contained in article 9, paragraph 3, takes into account the amendment made to article S, paragraph 3.The same observations would thus apply to it. B i

2019. 05. 03. atlatszo.hu 71 "The review of the Constitution for constitutionality is precluded as a matter of course; following from this, the Constitutional Court has no competence to resolve any presumed or actual contradiction within the Constitution. " (ABH2008, J863, J868.) "One of the most important arguments against the extension of the powers of the Constitutional Court to the review of the Constitution is that the Constitutional Court cannot create and cannot alter the Constitution which it is designed to protect and which it must apply as a yardstick in the course of the constitutional review of legislation. This is confirmed by the fact that, throughout its operation, the Constitutional Court has consistently refused to review the Constitution or its provisions. (...) Within the system of the division of powers, the power of the Constitutional Court, too, is a limited power. Following from this, the Constitutional Court will not draw the review the Constitution and new amendments to the Constitution within its competence without express authorisation in the Constitution. " (ABH2011, 290, 322.)- 7 - CDL-REF(2Q 13)019 Comment: We support the latter standpoint and drawing the attention to the Background Note of the Hungarian Government on the Fourth Amendment of the Fundamental Law that reinforces these above made conclusions by giving numerous international comparative examples thereby pointing out that the Hungarian Legislators merely intend to remain in the European tradition that the Constitutional Court cannot overtake the role of the constituent power ''. 8

Another worrying trend witnessed by Venice Commission and Council of Europe (Monitoring Committee) according to their opinion is that many provisions of Cardinal or other Acts annulled by the Constitutional Court were re-enacted by way of constitutional amendments due to the criticisms of the reports. The Monitoring Committee enumerates numerous Acts that are subject of what they call "over-ruling the Constitutional Court'' that were enacted in the Constitution after being annulled (the law on churches, the law lowering the mandatory retirement, or regulating permanent living in public places). 85

Comment: These subjects are widely examined in other relevant points of this report. Nevertheless we would like to point out one misunderstanding of the Monitoring Committee's report, namely the Constitutional Court's resolution in respect of the non-conformity of the Transitional Provisions with the Constitution also stated by the report that despite the Constitutional Court's resolution that found numerous points of the Transitional Provisions unconstitutional, these provisions were incorporated in the Fundamental Law. Our opinion however supports the idea of the technical note of the Hungarian Government to the Fourth Amendment to the Fundamental Law of Hungary : "I would like to emphasise that by transplanting the Transitional Provisions into the Fundamental Law the two-thirds parliamentary majority does not overrule the Constitutional Court, because in the decision of45/2012 the Constitutional Court has not assessed substantial unconstitutionality of the Transitional Provisions. The Constitutional Court examined only the formal question of whether the rules of the Transitional Provisions are really transitional ones or not. The Constitutional Court came to the conclusion that substantial rules in the Transitional Provisions are beyond the authorization provided for by the Fundamental Law and for this reason they are not valid. The Constitutional Court explicitly set out in its decision that "Following the decision of the Constitutional Court, it is the task and the responsibility of the constituent power to clear up the situation after the partial annulment. The Parliament shall make an evident and clear legal situation. The Parliament shall revise the subject matters of the annulled non-transitional provisions and decide on which matters should be re-regulated and on which level of legal sources. That is also for the Parliament to decide on which provisions to be re-regulated should be incorporated into the Fundamental Law and which should be laid down on level of [ordinary or cardinal] Acts." [Part V of the reasoning of the 86

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pg. 7-10. 2013.pdf sec further: 4.2.3. Over-ruling the Constitutional Court

Constitutional Court decision of45/2012. (XII 29.)]'

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2. Potential further measures The viewpoints of the Hungarian Government and the Venice Commission and Council of Europe (Monitoring Committee) seem to approach despite the mutual miscomprehensions, which is also shown by the act of the Hungarian Legislator of giving up the introduction of the system of electoral registration and abolishing the power to transfer of cases by the President of the NJO. The latter was repealed by the newly adopted Fifth Amendment of the Fundamental Law. 3. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. â&#x20AC;˘ Request for the opening of a monitoring procedure in respect of Hungary Opinion (25 April 2013) 87

".2.3. Over-ruling the Constitutional Court 102. In the past 2 years, we have witnessed a very worrying trend: many provisions of Cardinal or other Acts annulled by the Constitutional Court were simply re-enacted by way of constitutional amendments. - After the Court annulled provisions which allowed for retroactive 98% taxation of severance benefits for civil servants, it was stripped of the power to review all issues related to taxation and budgetary matters; - After the Court, upon request of the then President of the Supreme Court, annulled a provision of the Criminal Code allowing the Prosecutor General to choose a court for dealing with a given case, the same provision was re-enacted in the Transitional Provisions to the Fundamental Law. The same power in civil cases was given by the Transitional Provisions to the President of the National Judicial Office. Both these transfer powers again appeared in the draft 4th amendment (Articles 14 and 15), but the adopted version now only constitutionalises this power for the President of the National Judicial Office; - After the Court annulled the law on churches for procedural reasons, the same were re-enacted in the Transitional Provisions. The law on churches, upon a request by the Commissioner for fundamental Rights and 17 churches who had been refused registration, was again annulled on substantial grounds on 27 February 2013 but the Fourth amendment continues to provide that church registration will be carried out by Parliament; - The Constitutional Court, on 16 July 2012, declared the retroactive lowering of the mandatory retirement age forjudges, prosecutors and notaries from 70 to 62 as unconstitutional. This has forced over 300 judges into retirement. The same provisions were re-enacted in the Transitional Provisions; - The European Court of Justice, on 6 November 2012, also ruled that this was a violation of EU antidiscrimination laws. These 2 rulings have not been fully implemented to date; - On 20 December 2012, upon request of the commissioner for Fundamental Rights, the Court struck down a number of provisions of the Family Protection Law related to inheritance rights and the narrow hnp://mvw.assemblyxoe.int/ComiTiunication/amondoc08_2013.pdf

definition of family: the 4th amendment again uses the same restrictive definition of family;

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- On 12 November 2012, the Constitutional Court annulled provisions of the Minor Offences Act on "permanent living in public places" making it a criminal offence for homeless people. Article 8 of the Fourth amendment provides again precisely for that possibility; - After most of the Transitional Provisions were annulled by the Constitutional Court on 28 December 2012, upon request of the Fundamental Rights Commissioner, most of them were-enacted by way of constitutional amendments contained in the 4th amendment; - The Transitional Provisions were amended on 9 November 2012 to add an obligation of prior voter registration as a condition for the right to vote. This was done to provide a constitutional basis for the Law on Election procedure which was adopted on 26 November. This law was however challenged before its promulgation by the President and the Constitutional Court struck down both prior voter registration and a number of provisions restricting campaign financing and ads (decision of 7 January 2013). The 4 amendment (article 5) re-introduces limits to political election advertisements;" th

Comments: "V. A. The overruling of the Constitutional Court's decisions (87-96.) (45) The Draft Opinion concludes that there is systematic tendency in Hungary to overrule the decisions of the Constitutional Court, and the Fourth Amendment is an example of that process. That conclusion is unfounded. (46) First, unlike it is suggested by paragraph 90, the Fourth Amendment is not one of a series of constitutional amendments affecting the decisions of the Constitutional Court. In fact, the first three amendments to the Fundamental Law did not concern the decisions of the Court at all (also see paragraph 68 below). (47) Second, it has already been demonstrated above in relation to the various individual issues that while the Fourth Amendment did address matters that had previously been adjudicated by the Constitutional Court, none of the new provisions can be considered as a reintroduction of already annulled legal rules. A material distinction must therefore be drawn between overruling the Constitutional Court's decision, on the one hand, and revisiting the subject matter of certain such decisions, on the other. (48) In detail, it must be pointed out: - Article VII - decision 1/2013 (recognition of churches): the concept of the annulled provisions was completely different from that of the Fundamental Law and the new legal regulation under preparation (see point III. C ) ; - Article L (1) - decision 43/2012 (family ties): there is no direct link between the old and new provisions. The text in the Fundamental Law cannot be regarded as a definition (and therefore it does not exclude the legal protection of family relations in a wider sense, for more details see point III. A.); - Article I X (3) - decision 1/2013 (media access for political parties): the annulled provisions contained much broader restrictions; - Article I X (5) - decisions 30/1992, 18/2004, 95/2008 (freedom of speech): the Court addressed criminal sanctions relating to racial incitement, while the Fundamental Law introduces a civil rights claims mechanisms for hate speech; - Article X (3) - decision 69/2009 (autonomy of universities): the new rules simply authorise the legislator to adopt rules on the financial management of state universities, does not address the autonomy of higher education; - Article X I (3) of the Fundamental Law - decision 32/2012 (student grants): the decision of the Court was merely based on formal grounds (level of regulation is insufficient by government decree), and http://www.kormany.hu/d^

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the new legislation is also fundamentally different; - Article X X I I (3) - decision 38/2012 (homelessness): the new system covers much narrower restrictions on habitual living that before, obligation is imposed on the state and local governments to cooperate to eliminate homelessness. • Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 89

"A. Adoption of provisions on the constitutional level as a reaction to Constitutional Court decisions 78. The Hungarian Government argues that Parliament was obliged by the Constitutional Court, which had annulled the Transitional Provisions in its decision 45/2012, to reintroduce the provisions of the Fourth Amendment into the Fundamental Law itself." • Comments of the Government of Hungary on the draft opinion on the Fourth Amendment to the Fundamental Law of Hungary: "(47) Second, it has already been demonstrated above in relation to the various individual issues that while the Fourth Amendment did address matters that had previously been adjudicated by the Constitutional Court, none of the new provisions can be considered as a reintroduction of already annulled legal rules. A material distinction must therefore be drawn between overruling the Constitutional Courts decision, on the one hand, and revisiting the subject matter of certain such decisions, on the other. " • Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 90

79. However, in decision 45/2012, the Transitional Provisions were "partly annulled for a formal reason" but the Court did not oblige Parliament to readopt the annulled provisions as part of the Fundamental Law. It held that "[t]he Parliament must review the regulatory subjects of the annulled non-transitional provisions, and it has to decide about which ones need repeated regulation, on what level of the sources of law." 80. A number of provisions of the Transitional Provisions were flawed and this had already been criticised, inter alia, by the Venice Commission. Nonetheless, these provisions were maintained or even reinforced. In addition, the Fourth Amendment does not limit itself to readopt the Transitional Provisions. As demonstrated above, additional issues were raised to the constitutional level as a reaction to recent decisions of the Constitutional Court in numerous cases. 81. In this respect, a consistent pattern of reacting with constitutional amendments to the rulings of the Constitutional Court may be observed in Hungary in recent times, and the Fourth Amendment follows this pattern. Provisions which were found unconstitutional and were annulled by the Constitutional Court have been reintroduced on the constitutional level: this pattern of 'constitutionalisation' of provisions of ordinary law excludes the possibility of review by the Constitutional Court. 82. The Constitutional Court itself found this in its decision 45/2012, point 2.2: "However, at the same time, petitions by individual members of the Parliament induced serious amendments of the Constitution such as narrowing down the scope of competence of the Constitutional Court, the possibility to levy extra taxes with retroactive force of five years, decreasing the number of the members of the Parliament, putting the National Media and Infocommunications Authority. In some instances, the subject of the provisions incorporated in the Constitution falls outside the scope of subjects that should be regulated in the Constitution (e.g. the obligation to pay tax on severance *''http://wvvw.venice.coe.imM^

"httpV/wvw. venice.coe. int/webfbfms/docunierits/?pdfK^Dl^AD(2013)012-e

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payments, levied ex post facto). In a short period of time, numerous provisions that fell outside the regulatory scope of the Constitution have been incorporated into the Constitution, and the frequent amendments have made it difficult to follow and identify the Constitution's normative text in force. The amendments referred to above resulted in developing a new practice of constitutional amendments that fundamentally differs from the traditions of public law and the established practice, and it jeopardised the stability and the endurance of the Constitution as well as the principles and the requirements of a constitutional State under the rule of law." 83. Since the elections in 2010, first the previous Constitution was amended on numerous occasions in order to shield legislation from constitutional control, then the Transitional Provisions to the Fundamental Law were used for that purpose: 1. Already in 2010, Parliament amended Article 70/1.2 of the Constitution in order to provide constitutional cover for a law retroactively taxing bonuses received contrary to 'good-morals' by former high-ranking government officials. When the Constitutional Court found that bonuses paid on the basis of the law in force could not be considered against 'good morals' (decision 184/201059), Parliament amended Article 70/1.2 of the Constitution a second time in order to expressly allow retroactive taxation and readopted a law on this basis. In decision 37/201160, the Court again annulled the legislative provision because of a violation of human dignity.

2. Article 46.3 of the Constitution was amended in 2010 in order to overcome decision 1/2008 of the Constitutional Court, which had annulled a legislative provision allowing trainee judges to hand down judgments. 3. By introducing Article 11.4 of the Transitional Provisions, Parliament provided a constitutional basis to re-enact the legislative provision allowing the Supreme Prosecutor to transfer cases, which had been annulled by decision 166/201162 of the Constitutional Court. 4. In order to overcome decision 164/201163, in which the Constitutional Court annulled the Church Act for procedural reasons because the Act had been adopted with last minute amendments contrary to the House Rules of Parliament, Parliament first amended its House Rules to allow for the introduction of last minute amendments instead of readopting the law in conformity with the legislative procedure. Parliament then readopted the law under the revised House Rules and gave it a constitutional protection by introducing rules on church recognition in Article 21.1 of the Transitional Provisions. 5. When the Commissioner for Human Rights appealed to the Constitutional Court and questioned the constitutional character of the Transitional Provisions, Parliament adopted the First Amendment to the Fundamental Law in order to shield them from review by the Constitutional Court. 84. The representatives of the Hungarian Government have correctly pointed out that it is a sovereign decision of the constituent power - in Hungary Parliament with a two-thirds majority - to adopt a Constitution and to amend it. In itself, the possibility of constitutional amendments is an important counterweight to a constitutional court's power over legislation in a constitutional democracy, as well as an important element in the delicate system of checks and balances which defines a constitutional democracy. Nevertheless, this approach can only be justified in particular cases, based on thorough preparatory work, wide public debate and large political consensus - as in general is necessary for constitutional amendments. 85. In the discussions in Budapest, representatives of the governmental majority agreed that in some cases Parliament had reacted to decisions of the Constitutional Court by amending the Fundamental Law, but pointed out that this also had happened for example in Austria, where Parliament had resorted to constitutional amendments in order to overcome decisions of the Constitutional Court. In the opinion of the Venice Commission, however, while this example is indeed correct, it has to be pointed out that in 1988 the Austrian Constitutional Court stated that a repeated constitutionalisation of 75

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unconstitutional law could be seen by the Court as a total revision of the Constitution, which could not be adopted as a simple constitutional amendment with a two-thirds majority under Article 33.4 of the Austrian Constitution. Indeed, later the Constitutional Court annulled a constitutional amendment.65 Thus the Austrian Constitutional Court finally retained control over whether constitutional amendments violate fundamental principles. 86. According to European standards, in particular the Statute of the Council of Europe, Hungary is obliged to uphold democracy, the protection of human rights and the rule of law. The sovereignty of the Hungarian Parliament is therefore limited in international law. 87. The Venice Commission is concerned that the approach of shielding ordinary law from constitutional review is a systematic one. This results in a serious and worrisome undermining of the role of the Constitutional Court as the protector of the Constitution. This is a problem both from the point of view of the rule of law, but even more so from the point of view of the principle of democracy. Checks and balances are an essential part of any democracy. The reduction (budgetary matters66) and, in some cases, complete removal ('constitutionalised' matters) of the competence of the Constitutional Court to control ordinary legislation according to the standards of the Fundamental Law results in an infringement of democratic checks and balances and the separation of powers. â&#x20AC;˘ Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment to the Fundamental Law of Hungary 91

"V. C. Review of constitutional amendments (109-117.) (54) The assessment in the Draft Opinion concerning the review of the procedural validity of constitutional amendments contains a number of contradictory conclusions. (55) On the one hand, the Draft Opinion notes that the constituent power incorporated two decades of consistent jurisdiction, under which "The power of the Constitutional Court is a restricted power in the structure of division of powers. Consequently, the Court shall not extend its powers to review the constitution and the new norms amending it without an express and explicit authorisation to that effect." (see lastly decision 12/2013). (56) On the other hand, the Draft Opinion appears to see the Fourth Amendment as a legislative intervention against an interpretation gradually developed by the Constitutional Court to expand its own powers to review constitutional amendments from a substantive point of view (paragraph 111). (57) The Hungarian Government in that context only recalls the various opinions of the Venice Commission to the effect that there is no general rule or practice authorizing constitutional courts to overtake the role of the constituent power (CDL-AD(2012)010). The Hungarian Government merely intends to remain in that tradition, as do several European states." â&#x20AC;˘ Comments of the Government of Hungary on the draft opinion on the Fourth Amendment to the Fundamental Law of Hungary (11 June 2011) 92

"(49) It is also to be noted that the legislator incorporated several elements of the case-law of the Constitutional Court into the Fundamental Law (definition of marriage, division of powers, necessityproportionality test in Constitutional Court procedure, state's monopoly of the use of force, the way to adopt generally binding rules of conduct) and certain provisions have been drafted with regard to the decisions of the Constitutional Court (e.g. the competence of the Constitutional Court to examine the Fundamental Law, residing in public places, church regulation).

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2019. 05. 03. atlatszo.hu 77 (50) Finally, Hungary would like to recall that in a previous opinion the Venice Commission already took a stand on the question of a constitutional revision which goes against a decision of the Constitutional Court: â&#x20AC;&#x17E;The constitutional revision follows, inter alia, the judgment of the Belgian Constitutional Court No. 73/2003, of 26 May 2003. It might be considered as aiming in particular at reversing some effects of this judgment. There is however no general standard saying that a constitutional revision cannot go against a decision of a constitutional court. This would make the Constitution as interpreted by the Constitutional Court intangible." (CDL-AD(2012)0I0)."

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The review of requests from ordinary courts: the '30-day limit' 1. Summary of the relevant criticism

The Venice Commission criticizes the Fourth Amendment of the Constitution that in case of reviewing a case for conformity with the Fundamental Law that is originating from any judge the Constitutional Court's whole procedure has to fit within a 30 days limit. According to the evaluation of the Venice Commission the 30 days period is too short to conduct a proper procedure by the Constitutional Court, which can undermine the constitutional justice what is a key component of checks and balances in a democracy. (Opinion on the Fourth Amendment to the Fundamental Law of Hungary): „Even without such a further complication, a 30-day period for the examination of the constitutionality of a legal provision appears to be extremely difficult to meet, especially in the context of the introduction of individual appeals to the Constitutional Court, which results in a substantial additional work-load. While it is understandable that the Hungarian authorities wish to provide for speedy proceedings before the ordinary courts, this should not be done in a way that renders ineffective constitutional review as an essential element of checks and balances. " 93

According to the Hungarian Government the introduction of the 30 days limit period was necessary in order to prevent the further protraction of lawsuits and with regard to the right to fair trial. The Hungarian Legislator also emphasizes that the 30 days limit has been present in other proceedings of the Constitutional Court and therefore it does not cause extra burden for the Court or endanger the effective constitutional review as an essential element of checks and balances. (Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment to the Fundamental Law of Hungary): „.,Jt should be highlighted that the time limit of 30 days has been present in other proceedings of the Constitutional Court also to date and it therefore does not represent an excessive burden for the body. It should also be noted that according to the well-established case-law of the European Court of Human Rights, proceedings in a Constitutional Court are to be taken into account for calculating the relevant period of "reasonable time" (within which a court decision should be delivered) where the result of such proceedings is capable of affecting the outcome of the dispute before the ordinary courts. (See e. g. Ruiz-Mateos v. Spain, 23 June 1993). " 95

2. Measures already taken to mitigate criticism Taking into consideration the criticisms and following the communication with the European Commission, the Hungarian Government agreed upon to amend the regulation in the Fundamental Law. According to the Fifth Amendment of the Fundamental Law, the 30 day limit was extended to 90 days entering into force on the I ' of October 2013. The intention to extend the time limit rule was already incorporated in the Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment to the Fundamental Law of Hungary: „ However, the Hungarian Government decided to take into account the considerations relating to the need for en effective constitutional review in this particular procedure as well. For this reason, the Government will submit a proposal to extend the 30 days limit to 90 days and to amend paragraph (2b) of Article 24 of the Fundamental Law accordingly. " s

3. Potential further measures Opinion on the Fourth Amendment to the Fundamental Law of Hungary: „ The Government Comments (para. 61) announce that the Hungarian Government will submit a proposal amending Article 24,2.b of the Fundamental Law extending the 30day limit to 90 days. The Venice Commission welcomes that 'Article 24.2.b of the Fundamental L a w 'p.27. http://www.venice.coe.int/wcbforms/docurnents/7pdfH2DL-AD(2013)012-e 'p.12. http://www.kormany.hU/download/d/5c/e0000/HUresponse_VenCom_DraflOp_2013061 l(FIMALfin).pdf 'p.]2 hnp://www-.korniany.hu/download/d/5c/c0000/HUresponse_VenCom_DraftOp_20130611(FlNALfin).pdf

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this proposal would result in an improvement but the dead-line is still very tight and should be made more realistic, for example 9 months. " 9?

According to the above opinion of the Venice Commission it is rather doubtful whether It will be satisfied with the measures taken by the Hungarian Legislator. We should however emphasize that the tripled time limit of 90 days is with regard to the requirement of 'fair trial' and ensure a reasonable time to conduct an effective constitutional review of the given case in contrast to a 9 months' time limit, which would seriously prolong the period within which a court decision should be delivered and thereby negatively affect the final outcome of the given case. 4. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. â&#x20AC;˘

Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 98

" E . 30 day limit for the review of requests from ordinary courts (Article 12.1) 115. Article 12.1 of the Fourth Amendment changes Article 24.2.b of the Fundamental Law, which now provides that the Constitutional Court shall: "b) review immediately but no later than thirty days any legal regulation applicable in a particular case for conformity with the Fundamental Law upon the proposal of any judge." 116. This means that in concrete review cases, originating from any ordinary judge, the Constitutional Court has to fit its whole procedure, including the handing down of the decision within a 30-day limit. While the Fundamental Law imposes such a short period, Section 12 of the Bill amends Section 57 of Act C L I of 2011 on the Constitutional Court and provides that the Constitutional Court has to inform the author of the challenged legal rule (paragraph la) and "(lb) If the author of the legal rule or the initiator of the law wishes to inform the Constitutional Court of his/her position on the case, also with regard to whether the case concerns a wide group of individuals, he/she shall send his/her position to the Constitutional Court within 30 days of the notification under paragraph (la), or in the case of urgent proceedings, within 15 days, Consequently, even in urgent cases, the Court has to fit in a 15-day period for the author of the legal rule within the very short 30-day period. 117. Even without such a further complication, a 30-day period for the examination of the constitutionality of a legal provision appears to be extremely difficult to meet, especially in the context of the introduction of individual appeals to the Constitutional Court, which results in a substantial additional work-load. While it is understandable that the Hungarian authorities wish to provide for speedy proceedings before the ordinary courts, this should not be done in a way that renders ineffective constitutional review as an essential element of checks and balances." â&#x20AC;˘ Comments of the Government of Hungary on the Draft Opinion on the Fourth Amendment to the Fundamental Law of Hungary : 99

"V. E . 30 day limit for the review of requests from ordinary courts (123-125.) (61) It should be highlighted that the time limit of 30 days has been present in other proceedings of the 97

p.27. http://www.venice.coe.int/\vebforms/documems/?pdf=CDL-AD(2013)012-e h n p : / / v ^ v . v e n i c e coe.mtMebfo http / / w w w k ormany.hu/download/d/5c/cOOOO/H Uresponse_ VenCom_DraftOp_2013061 l(F[NALfin).pdf

2019. 05. 03. atlatszo.hu 80 an excessive burden for the body.

Constitutional Court also to date and it therefore does not represent It should also be noted that according to the well-established case-law of the European Court of Human Rights, proceedings in a Constitutional Court are to be taken into account for calculating the relevant period of "reasonable time" (within which a court decision should be delivered) where the result of such proceedings is capable of affecting the outcome of the dispute before the ordinary courts. (See e. g. Ruiz-Mateos v. Spain, 23 June 1993). However, the Hungarian Government decided to take into account the considerations relating to the need for en effective constitutional review in this particular procedure as well. For this reason, the Government will submit a proposal to extend the 30 days limit to 90 days and to amend paragraph (2b) of Article 24 of the Fundamental Law accordingly.

118. The Government Comments (para. 61) announce that the Hungarian Government will submit a proposal amending Article 24.2.b of the Fundamental Law extending the 30day limit to 90 days. The Venice Commission welcomes that this proposal would result in an improvement but the dead-line is still very tight and should be made more realistic, for example 9 months."

2019. 05. 03. atlatszo.hu 81 Restriction of the power of the Constitutional Court to review laws related to public finance and state budget 1. Summary of the relevant criticism The European Commission, the Venice Commission, the Council of Europe and the Tavaresreport as well have criticized the Fourth Amendment of the Fundamental Law in respect of the newly introduced regulation of Article 37. (5) stating that the new Paragraph comprise a restriction on the competences of the Constitutional Court. ,,,00

The criticism dates back to the amendment of the "old Constitution dated 39 November 2010, whereby the competence of the Constitutional Court to review budgetary and tax matters were modified. This amendment was roughly upheld by the newly adopted Fundamental Law and by the Transitional Provisions of the Fundamental Law as well. The Fourth Amendment reinforced the regulation and introduced section (5) of Article 37. which according to the criticism further limits the competences of the Court. According to the amendments the Constitutional Court can only review the constitutionality of Acts and decisions related to the central budget, central taxes, stamp duties and contributions, custom duties and central requirements related to local taxes when these violated the right to life and human dignity, freedom of thought and religion, protection of data or right to Hungarian citizenship. The Fourth Amendment introduces a new provision to the above mentioned ones by stating (as Article 37.5 of the Fundamental Law): "In the case of the statutory provisions that came into force in the period while state debt exceeded half of the Gross Domestic Product, Paragraph (4) shall also be applicable to such period even if state debt no longer exceeds half of the Gross Domestic Product." According to the Venice Commission and the Council of Europe (Monitoring Committee) the amendment(s): "This substantially weakens the role of the Constitutional Court in the institutional framework of checks and balances. In addition, the limitation of the Courts competences on economic criteria, to a small subset of rights guaranteed in the Constitution, weakens the human rights regime and respect for the rule of law." The Venice Commission states in its paper of 2011 : In the view of the Venice Commission, such restrictions of the competences of the Constitutional Court "run counter to the obvious aim of the constitutional legislature in the Hungarian Parliament to enhance the protection of fundamental Rights in Hungary". The Commission goes further in its Opinion on the Fourth Amendment to the Fundamental Law of 2013 "Shielding potentially unconstitutional laws from review is a direct attack on the supremacy of the Fundamental Law of Hungary. The Commission is particularly worried that the Fourth Amendment has given up the link of that provision to continued budgetary difficulties and thus has institutionalised this exception. This provision reinforces the assessment that the Fourth Amendment results in reducing the position of the Constitutional Court as guarantor of the Fundamental Law and its principles, which include European standards of democracy, the protection of human rights and the ride of law. " m

2. Measures already taken to mitigate criticism In contrast with the heavy criticism of both the Venice Commission and Council of Europe (Monitoring Committee) the Hungarian Government keeps on emphasizing that the new provision does not impose a further restriction on the powers of the Constitutional Court and can be seen as a clarifying regulation which expands the competence of the Constitutional Court concerning the transition from the temporary state debt rule: Technical note by the Hungarian Government for European Commission for Democracy through Law (Venice Commission) regarding its opinion the

"'Official Title: Constitution of the Republic of Hungary, The Constitution was established by Act X X of 1949 "http://www.assembIy.coe.int/Communication/amondoc08_2013.pdf pg.19 http://www.assembly.coe.int/Communication/amondoc08_2013.pdf pg.19 Article 89. http://ww.venice.coe.int/webforms/documents/?pdf=CDI.-AD(2013)0]2-c pg. 26 Article 113. li

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Fourth Amendment to the Fundamental Law of Hungary (21 March 2013): "The Proposal does not comprise a new restriction on the competences of the Constitutional Court by introducing a new Article 37 (5) in the Fundamental Law. On the contrary, this new Article repeats the provision already included in the Transitional Provisions, with an important modification: in fact the Constitutional Court will have the power to pro futuro' abolish 'financial' laws enacted even in the period of the restriction rule when the state debt no longer exceeds half of the GDP ".

According to the opinion of the Government the Venice Commission made an arguable comment about the debate between the two parties, which draws the attention to the problem, that the real reason why the parties cannot reach an agreement is because of a series of misunderstanding and evasion of the subject matter: "The Government Comments argue that the â&#x20AC;&#x17E; real meaning of the new provision is that once the level of state debt falls below 50% of the GDP the Constitutional Court may review budgetary laws in full adopted even during that moratorium. The only limitation is that it may only quash such laws with ex nunc effect, i.e. no retroactive jurisdiction is possible as far as the effects of the decisions are concerned. " The Commission cannot identify this meaning in the text of paragraph 5 but this may be due to a problem in the translation. The Commission is ready to examine a revised translation of paragraph 5 but insists on its criticism of the restrictions of the jurisdiction, that already applied before the Fourth Amendment"* . 04

3. Potential further measures As the Government tried to point out the important differences between the two parties related to the subject matter, we see no potential further measures to approach the two different concepts about the newly introduced regulations. The Fifth Amendment of the Fundamental Law adopted by the Parliament on the 16 of September did not introduce further measures that would indicate the Hungarian Governments' willingness to change the regulation, and the fact that the main notion of reducing the power of the Constitutional Court in budgetary issues was upheld throughout all the amendments of the Fundamental Law related to the subject does not indicate it neither. lh

Comment: As to our opinion it is certain that the regulation contains some restriction to the competence of the Constitutional Court in budgetary question however the restriction on the budget review are temporary in nature and limited in scope. The negative criticism of the Venice Commission and the Council of Europe (Monitoring Committee) is most likely rather exaggerative especially in light to the fact that "the Constitutional Court may continue to review the infringement of the individual fundamental rights defined in the Fundamental Law, as it could be seen in recent decisions (in the case of the 98% tax ). Thus, the rule restricting the Constitutional Court does not prevent the body, for instance, from reviewing fiscal laws with reference to the infringement of the right to human dignity. Therefore, the Constitutional Court is able to fulfil its most important function of protecting fundamental rights" . 105

106

On the other hand it shall be taken into account that the burdens of the Constitutional Court related to fiscal/budgetary matters will be lifted as soon as the national debt will be decreased to the 50 per cent of the Hungarian GDP. As subsection (4) of Articla 37 of the Fundamental Law puts is: "As long as state debt exceeds half of the Gross Domestic Product, the Constitutional Court may, within its competence set out in Article 24(2)b-e), only review the Acts on the State Budget and its implementation, the central tax type, duties, pension and healthcare contributions, customs and the central conditions for local taxes for conformity with the Fundamental Law or annul the preceding Acts due to violation of the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and with the rights related to Hungarian citizenship. The lw

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pg. 27.

" In its 37/2011. ( V 10.) resolution the Constitutional Court has annulled the regulation establishing a 98% tax burden with reference to the infringement of the right to human dignity. %ttp://www.konnany.hu/dowr)load/d/5c/e0000/HUresponse_VeiiCom_DraftOp_2013061 l ( F I N A L f i n ) . p d f pg. 11-12 l

2019. 05. 03. atlatszo.hu 83 Constitutional Court shall have the unrestricted right to annul the related Acts for non-compliance with the Fundamental Law's procedural requirements for the drafting and publication of such legislation' . 1 107

4. Detailed Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. â&#x20AC;˘ Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 108

"D. Review of budgetary laws (Article 17.1) 110. The Venice Commission had already expressed its serious concern about a similar amendment to the previous Constitution in its Opinion on three legal questions arising in the process of drafting the New Constitution of Hungary â&#x20AC;&#x17E;With regard to the Constitutional Court and its specific role in a democratic society, it should be pointed out that a sufficiently large scale of competences is essential to ensure that the court oversees the constitutionality of the most important principles and settings of the society, including all constitutionally guaranteed fundamental rights. Therefore, restricting the Court's competence in such a way that it would review certain state Acts only with regard to a limited part of the Constitution runs counter to the obvious aim of the constitutional legislature in the Hungarian parliament 'to enhance the protection of fundamental rights in Hungary. 111. In its opinion on the new Constitution of Hungary, the Commission repeated this criticism in respect of the Fundamental Law and the Opinion on the Constitutional Court Act.95 In the Opinion on the new Constitution, the Venice Commission slated that such a limitation of the Constitutional Court's powers to review gave the impression that capping the national budget at 50 per cent of the Gross Domestic Product was seen as such an important aim that it might even be reached by unconstitutional laws. 112. Article 17 of the Fourth Amendment introduces a new provision as Article 37.5 of the Fundamental Law: "In the case of the statutory provisions that came into force in the period while state debt exceeded half of the Gross Domestic Product, Paragraph (4) shall also be applicable to such period even if state debt no longer exceeds half of the Gross Domestic Product". This means that the constitutional review of financially relevant laws adopted during times of budgetary difficulties is not only excluded during these difficulties but even later, when the budgetary problems have subsided. Thus laws which potentially contradict the Fundamental Law are permanently shielded from control by the Constitutional Court. 113. The Venice Commission again repeats its serious concern about the limitation of the competence of the Constitutional Court to review legislation. Shielding potentially unconstitutional laws from review is a direct attack on the supremacy of the Fundamental Law of Hungary. The Commission is particularly worried that the Fourth Amendment has given up the link of that provision to continued budgetary difficulties and thus has institutionalised this exception. This provision reinforces the assessment that the Fourth Amendment results in reducing the position of the Constitutional Court as guarantor of the Fundamental Law and its principles, which include European standards of democracy, the protection of human rights and the rule of law."

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2019. 05. 03. atlatszo.hu 84

• Comments of the Government of Hungary on the draft opinion on the Fourth Amendment to the Fundamental Law of Hungary 109

"D. Review of budgetary laws (118-122.) (58) The Hungarian Government does not recall the various arguments it had submitted in support of the limitations on the powers of the Constitutional Court to review budgetary laws. Suffice it to remind here that the restrictions on budget review are temporary in nature and limited in scope and that the Court has - unlimited ex ante review of ali budget-related legislative acts; - unlimited ex post review of all legal acts other than acts of Parliament (e.g. government decrees); - full ex ante and ex post review of all budget-related legislative acts from a procedural point of view; - full ex ante and ex post review of all budget-related legislative acts with regards to their compliance with international treaty obligations. (59) Moreover, the Constitutional Court may continue to review the infringement of the individual fundamental rights defined in the Fundamental Law, as it could be seen in recent decisions (in the case of the 98% tax). Thus, the rule restricting the Constitutional Court does not prevent the body, for instance, from reviewing fiscal laws with reference to the infringement of the right to human dignity. Therefore, the Constitutional Court is able to fulfil its most important function of protecting fundamental rights. (60) As regards the introduction by the Fourth Amendment of an additional paragraph (5) to Article 37 the Draft Opinion completely misinterprets the meaning of that provision (paragraph 121). In fact, this rule has been transplanted from the Transitional Provisions in a modified form. The real meaning of the new provision is that once the level of state debt falls below 50% of the GDP the Constitutional Court may review budgetary laws in full adopted even during that moratorium. The only limitation is that it may only quash such laws with ex nunc effect, i.e. no retroactive jurisdiction is possible as far as the effects of the decisions are concerned.'" • Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INrj) (24 June 2013)' 10

" 4.2.1. Curtailing the competences of the Constitutional Court 90. The provisions that curtailed the competences of the Constitutional Court in relation to Acts and decisions related to the central budget, central taxes, stamp duties and contributions, custom duties and central requirements related to local taxes, were maintained in the Fundamental Law that was adopted on 18 April 2011. However, the Fundamental Law limited this restriction of competences conditional to the State debt exceeding 50% of the GDP.59 To our surprise, the Transitional Provisions of the Fundamental Law of Hungary state that the Constitutional Court will still not be able to review such acts and decisions even when the budgetary situation has improved and the State debt has been reduced to below 50% of the GDP. This provision was subsequently struck out when the Constitutional Court annulled most of the Transitional Provisions. It has been re-introduced in the Fourth amendment (article 17). This is indicative of the authorities' wish to limit the Constitutional Court's oversight of its policies and decisions on a permanent basis and not only in specific budgetary circumstances." • Technical note by the Hungarian Government for European Commission for Democracy through Law (Venice Commission) regarding its opinion the Fourth Amendment to the http://www.kormany.hU/download/d/5c/e0000/l http://www.assemblyxoe.inl/Cornmunicalioii/amondoc08_2013.pdf

pg. 11-12

2019. 05. 03. atlatszo.hu 85 Fundamental Law of Hungary (21 March 2013)

1,1

"The Proposal does not comprise a new restriction on the competences of the Constitutional Court by introducing a new Article 37 (5) in the Fundamental Law. On the contrary, this new Article repeats the provision already included in the Transitional Provisions, with an important modification: in fact the Constitutional Court will have the power to 'pro futuro' abolish 'financial' laws enacted even in the period of the restriction rule when the state debt no longer exceeds half of the GDP. Therefore this provision can be seen as a clarifying one which expands the rights of the Court concerning the transition from the temporary state debt rule. (The original provision of the Transitional Provisions maintained the restriction even after the transitional period for the acts enacted before)."

hnp://v\avw,venlce.coe.]nt/\vebforms/documents/ pdf=CDL-REF(2013)014-e

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2019. 05. 03. atlatszo.hu 86 The data protection supervisory authority and its independence I . Summary of the relevant criticism EU justice Commissioner Viviane Reding raised iega! concerns as regards the independence of the Hungarian data protection authority in December 2011, and infringement proceedings were started on this matter on 17 January 2012. The concerns raised are related to (i) the independence of the position of the data protection authority, and (ii) the premature termination of the six-year term of the former Hungarian Data Protection Commissioner, whose term of office would have ended in September 2014 only. The EP Report also pointed out to the premature termination of the mandate of the Data Protection Commissioner as one of the indices of the weakening of checks and balances in Hungary. That is, the EP Report sets out that "whereas the new Freedom of Information Act, adopted in July 2011, abolished the institution of the Commissioner on Data Protection and Freedom of Information, thus prematurely terminating the six-year-long mandate of the Commissioner and transferring its powers to the newly established National Authority for Data Protection; [...] whereas the Commission initiated an infringement procedure against Hungary on 8 June 2012, declaring that Hungary had failed to fulfil its obligations under Directive 95/46/EC by removing the data protection supervisor from office before the end of the mandate, thus putting at risk the independence of the office". 1,2

2. Measures already taken to mitigate criticism The case on the data protection supervisor relates to the recent decision to create a new National Agency for Data Protection, replacing the former Data Protection Commissioner's Office as of 1 January 2012. There were no interim measures until the term of the former Commissioner's term ends in 2014. The former Data Protection Commissioner was elected by the Parliament, while in the European Commission's view, the new rules also create the possibility that the Prime Minister and President could dismiss the new supervisor on arbitrary grounds. The independence of data protection authorities is explicitly required by Article 16 T F E U and Article 8 of the E U Charter of Fundamental Rights. Moreover, under the E U ' s Data Protection Directive 95/46/EC, Member States have to establish a supervisory body, which acts in complete independence, to monitor the application of the Directive. This has been confirmed by the Court of Justice in its ruling in a case concerning Germany, in which the Court underlined that data protection supervisory authorities have to remain free from any external influence, including the direct or indirect influence of the state. The European Commission argues that personal independence of a national data protection supervisor, which includes protection against removal from office during the term of office, is a key requirement of EU law. The re-organisation of a national data protection authority is not a reason for departing from this requirement. The amendment to the New Data Protection Act adopted by the Parliament in April 2012 set out that tasks can only be given to the National Agency for Data Protection by a law. In addition, it has given the National Agency for Data Protection budgetary autonomy. The New Data Protection Act now provides clear criteria for the dismissal of the Head of the National Agency for Data Protection and for the possibility to appeal any dismissal proceedings before the courts. Moreover, strict conditions and incompatibilities were introduced for the position of the Head of the National Agency for Data Protection. That is, as the Monitoring Committee Request points out, the amendment to the New Data

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Protection Act adopted in April 2012 "secured the independence of the oversight body to a considerable extent"." 4

3. Potential further measures Notwithstanding the above, as the Monitoring Committee Request puts, "from the perspective of guaranteeing the independence of the National Authority for Data Protection and Freedom of Information, the appointment procedure of its President remains of concern. The President of the Authority is appointed for a nine year term by the President of the Republic upon nomination by the Prime Minister. Parliament is thus completely excluded from the nomination procedure. This potentially undermines the independence of the President of the Authority, given the fact that the Prime Minister and President in most cases will belong to the same party and the ruling majority." 115

Therefore, it could be considered by the Hungarian legislator to further amend the New Data Protection Act in respect of the appointment of the Head of the National Agency for Data Protection. That is, the Head of the National Agency for Data Protection could be elected by the Parliament further to the nomination of the President, as it was the case previously in connection with the former Data Protection Commissioner. Alternatively, similar election procedures that are set out in Article 30.3 of the Fundamental Law in the case of the Commissioner of Fundamental Rights could also be applied in the context of the Head of the National Agency for Data Protection. In any event, the infringement proceedings at the European Court of Justice would be continued in respect of the premature termination of the mandate of the former Data Protection Commissioner. While the Hungarian Constitutional Court confirmed that "the restructuring of state agencies can be a constitutional reason for the premature termination of the mandate of certain officials" , such a Decision cannot serve as an excuse if the European Court of Justice deems the early termination of the mandate of the former Data Protection Commissioner inconsistent with applicable EU law. 116

4. Detailed legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the background paper provided by the Hungarian Government. â&#x20AC;˘

Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI))

"Weakening of checks and balances: Constitutional Court, Parliament, Data Protection Authority AS. whereas the new Freedom of Infonnation Act, adopted in July 2011, abolished the institution of the Commissioner on Data Protection and Freedom of Information, thus prematurely terminating the six-year-long mandate of the Commissioner and transferring its powers to the newly established National Authority for Data Protection; whereas such changes are currently under review by the Court of Justice of the European Union; AT. whereas the Commission initiated an infringement procedure against Hungary on 8 June 2012, declaring that Hungary had failed to fulfil its obligations under Directive 95/46/EC by removing the data protection supervisor from office before the end of the mandate, thus putting at risk the independence of the office;" â&#x20AC;˘

Request of the Monitoring Committee of the European Council for the opening of a monitoring procedure in respect of Hungary (25 April 2013)" 7

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Section 152 of the Monitoring Committee Request Section 153 of the Monitoring Committee Request " Decision 3076/2013 (27 March) of the Hungarian Constitutional Court hltp: V\vv 'w assembly.coe.int/Communication/amondoc08 2013.pdf 1 1 5

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2019. 05. 03. atlatszo.hu 88 "5.1. Cardinal Act C X I I of 2011 on Informational Self-determination and Freedom of Information 149. The Cardinal Act CX11 of 2011 on Informational Self-determination and Freedom of Information was adopted by the Hungarian parliament on 26 July 2011. The draft for this act was proposed by the government and therefore subject to the mandatory social consultation process. It replaces Act L X I I I of 1992 on the Protection of Personal Data. This cardinal act, as was the case of the previous bill, regulates in one single act the two informational rights: the right to protection of personal data and the right to freedom of access to information. This approach, which is relatively unique in Europe, allows for a comprehensive and coherent approach to the regulation of these two issues. At the same time, these two concepts may occasionally be in conflict with each other, which may give rise to application and interpretation problems. 150. Under the previous law, the oversight over the implementation of, and adherence to, the principles of data protection and freedom of information was exercised by an Ombudsperson for data protection and freedom of information, who was elected by the parliament for a period of five years. The new act abolished this post of ombudsman and replaced it with a National Authority for Data Protection and Freedom of Information. This was heavily criticised by domestic and international actors, who expressed their concern that the law and new authority were diminishing the independence of the oversight structure that was already in place. 105 Following this criticism, which culminated in the launch of infringement proceedings by the European Union in January 2012, the act was amended several times to address the concerns expressed. 151. At the request of the Monitoring Committee, the Venice Commission prepared an opinion on the Cardinal Act CXII of 2012, as amended, before it came into force on 1 June. 2012. The opinionl06 of the Venice Commission was adopted at its plenary session on 12 and 13 October 2012. 152. The amendments to the law secured the independence of the oversight body to a considerable extent. 107 The act establishes that tasks can only be given to the authority by a law. In addition, it has given the authority budgetary autonomy. The law now provides clear criteria for the dismissal of the President of the Authority and for the possibility to appeal any dismissal proceedings before the courts. Moreover, strict conditions and incompatibilities are introduced for the position of the President. 153. From the perspective of guaranteeing the independence of the National Authority for Data Protection and Freedom of Information, the appointment procedure of its President remains of concern. The President of the Authority is appointed for a nine year tenn by the President of the Republic upon nomination by the Prime Minister. Parliament is thus completely excluded from the nomination procedure. This potentially undermines the independence of the President of the Authority, given the fact that the Prime Minister and President in most cases will belong to the same party and the ruling majority. 154. In its opinion, the Venice Commission concludes that Act CXII of 2011 on informational selfdetermination and freedom of information is, as a whole "complying with applicable European and international standards." â&#x20AC;˘

Background document on the Fourth Amendment to the Fundamental Law of Hungary (24 April 2013)

"8. Termination of the mandate of the Data Protection Commissioner Although it was not affected by the decision of the Constitutional Court on Transitional Provisions, the Amendment introduced, without any changes, all rules of the Transitional Provisions into the 88

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Fundamental Law actually qualified by the Constitutional Court as transitional, including the provision which stipulates that "[t]he mandate of the Commissioner for Data Protection shall be terminated with the entry into force of the Fundamental Law." It is worth noting here that the justification for the transitional provision, recognised as such by the Constitutional Court, for the termination of the mandate of the Data Protection Commissioner as of 1 January 2012 was as follows.

Article VI of the Fundamental Law - besides determining the right to the protection of personal data and the right to access and dissemination of data of public interest as fundamental rights - stipulates that an independent authority set up by a cardinal act controls the enforcement of the right to the protection of personal data and the right to access data of public interest, thereby elevating the independence of the authority entitled to control these fundamental rights to a constitutional level. The institution of the Data Protection Commissioner was not regulated expressly by the Constitution in force until 31 December 2011, as opposed to the institution of the Parliamentary Commissioner for Citizens' Rights and the Parliamentary Commissioner for National and Ethnic Rights. It has been established during the operation of the institution of the Data Protection Commissioner that the means and competence of the Ombudsman does not provide for the necessary scope and possibility for examining and penalising infringements. Due to the spread of information technology that resulted in a change of social habits and in the conditions caused by globalisation, a substantially more effective action by the authorities is necessary than the institution of the Ombudsman established in the mid 1990's. The most suitable organisational form for this purpose is an authority, therefore, an authority capable of tackling new challenges had to be established instead of the institution of the Ombudsman. New circumstances made it necessary to establish a new regulation and organisation in this field which could easily integrate into the concept of the Fundamental Law and meet European Union expectations. This regulation is contained in Act C X I I of 2011 on informational self-determination and freedom of information (hereinafter the Act on Freedom of Information), which established the National Authority for Data Protection and Freedom of Information (hereinafter the Authority). Pursuant to the general assessment of the Venice Commission included in its opinion No 672/2012 of 18 October 2012, the Act on Freedom of Information "may be considered, as a whole, as complying with the applicable European and international standards." The Fundamental Law therefore ensured the requirement of the independence of the Authority at a constitutional level. The Act on Freedom of Information supports from various aspects the requirement of the independence of the Authority arising from this norm and other European Union norms regulating this subject and fully provides for the independence of the Authority as regards its organisation, scope of authority and functions, person, as well as economy and budget. In this regard, opinion No 672/2012 of the Venice Commission emphasised that "[t]he current version of the Act includes particularly detailed provisions aiming at guaranteeing - directly and, in most cases, indirectly - the Authority's independence. It is worth saying that some of these guarantees may not always be found in corresponding legislation of other European countries." It must be noted that, for instance, in recent years the European Court of Justice has found Germany and Austria to be in default by violating the relevant European Union law that governs the independence of the data protection authority. The Act on Freedom of Information preserved the procedures of the Data Protection Commissioner as fundamentally similar to that of the Ombudsman with regard to the fact that in practice in certain cases this examination is not regarded as a formal administrative procedure, the recommendation prepared 89

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for the data controller on the basis of the examination and the power of the public are proved to be adequate means to enforce the lawful management of personal data. However, the Act on Freedom of Information also provides the new and independent Authority with new legal instruments in order to ensure that the enforcement of the right to the protection of personal data and the right to access data of public interest is transparent and duly efficient.

It appears as new in the system of the Act on Freedom of Information that, besides the possibility to conduct a procedure similar to that of the Ombudsman, the Authority received substantial official powers. Thus, the Authority may initiate an administrative procedure after or instead of using means similar to that of the Ombudsman, if it deems the announcement well-founded. In this procedure the Authority proceeds in line with the general rules on public administrative procedures and also provides for the efficient implementation of its decisions. In the procedure the Authority, by way of derogation from previous regulation, may impose a penalty of up to HUF 10 000 000 on data controllers violating data protection provisions. On the basis of the above it becomes clear that the Authority differs from the Data Protection Commissioner model not only in its name, but also in that, although both bodies comply with the legal requirements of European Union law, there is a substantial difference between the two organisational solutions in their legal status and procedures and the legal consequences that can be applied by them. The Parliament of Hungary, in its constitutional power, decided to change the organisational model applied for the previous Data Protection Commissioner by establishing the Fundamental Law. The Data Protection Commissioner model (the model of the Ombudsman) as an organisational framework was terminated pursuant to the provision of the Fundamental Law and according to Hungary, this is in line with the freedom of Member States provided by Union law to choose between models. With regard to the fact that nobody can occupy the position of Data Protection Commissioner following the entry into force of the Fundamental Law due to the absence of this legal institution, the provision included in Article 16 of the Transitional Provisions, and, as of 3 April 2013, introduced with the same content into Point 17 of the "CLOSING PROVISIONS" of the Fundamental Law ordered the termination of the mandate of the Data Protection Commissioner in office, pursuant to this provision of the Fundamental Law. In this connection, it must be emphasised that in its Decision No. 3076/2013. (III. 27.) the Constitutional Court confirmed its case-law [Decisions No. 7/2004. (III. 24.) A B and 5/2007. (II. 27.) AB], pursuant to which it is of the opinion that the restructuring an organisation may be an explicit constitutional reason for the shortening of the mandate of civil servants. By elaborating on this practice, the Constitutional Court also established the following: "in addition to organisational transformations, a major change to the functions, i.e. the tasks and powers, of a particular organisation may also warrant and justify legislative intervention, because it stands to reason that the suitability (eligibility) and appropriateness criteria arising from changed competences could not be applied to the senior official holding the office when this official was selected; however, it cannot be excluded that the performance of the new functions requires persons adopting a different approach, having a different track record and following different practice." According to Hungary, the consistent case-law of the Constitutional Court governs and applies to the restructuring of the data protection controlling authority as well."

2019. 05. 03. atlatszo.hu 91 Possibility of imposing 'extra taxes' in case of court judgments leading to payment obligations 1. Summary of the relevant criticism Article 17.2 of the Fourth Amendment sets out that unexpected expenses due to national or European court decisions can be counterbalanced by special taxes if there is no sufficient coverage within the budget. The Venice Commission Opinion argues that such a special tax may lead to an aversion against the courts as a whole or against the national Constitutional Court or European courts. The Venice Commission Opinion argues that "it should normally be possible to find funds in the budget. In case of a violation of the Constitution or European Law, the Government will not be forced to cover the costs within the budget. The burden will instead be directly transferred to the Hungarian citizens as taxpayers. Article 37.6 [of the Fundamental Law] thus enables the Hungarian Government to circumvent the disciplining effect of Constitutional and other Court decisions which trigger 118 payment obligations." The Venice Commission acknowledges the difficult fiscal problems which Hungary is currently facing, but "strongly objects to the Government's reasoning that Article 37.6 of the Fundamental Law can and should be interpreted as (part of) an answer to those problems". 119

The European Commission argues that a special charge concerning payment obligations caused by a court decision has an important symbolic value: it may result in pressure on the judges who will be seen as responsible for the special tax while in fact the fault lies in an act of the Government or of the Parliament which was unconstitutional or contrary to European law or standards. This pressure seriously endangers the judges' independence. This Article 17.2 is also criticised by the EP Report on the ground that it is against the EU principles related to the democratic checks and balances. 2. Measures already taken to mitigate criticism The proposed Fifth Amendment abandons the special tax in case of unexpected expenses due to court decisions and deletes Article 37.6 of the Fundamental Law. The E P Report has also taken note "of the ongoing dialogue between the Hungarian Government and the European Commission on the issue". The Venice Commission also welcomes the Government's announcement "that it will introduce a parliamentary procedure to abandon the special tax in case of unexpected expenses due to court decisions and to delete Article 37.6 of the Fundamental Law." 120

121

Therefore, i f the Fifth Amendment is adopted in its current version, there would most probably be no grounds for further criticism to this effect. 3. Detailed legal background Below shall be found the opinions, reports of the relevant international and EU-bodies and the reports, background paper provided by the Hungarian Government but conducted before submitting the Fifth Amendment to the Fundamental Law. s

" Section 123 of the Venice Commission Opinion "* Section 125 of the Venice Commission Opinion Section 20 of the W Report Section 128 of the Venice Commission Opinion 121

2019. 05. 03. atlatszo.hu 92 â&#x20AC;˘ Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130(INI)) "Weakening of checks and balances 20. Is also concerned about the conformity with EU law of the provision of the Fourth Amendment which enables the Hungarian Government to impose a special tax in order to implement E U Court of Justice judgments entailing payment obligations when the state budget does not have sufficient funding available and when the public debt exceeds half of the gross domestic product.* 1

â&#x20AC;˘ Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June 2013) 122

"G. Special tax in case of court judgments leading to payment obligations (Article 17.2) 121. Article 17.2 of the Fourth Amendment adds a new paragraph 6 to Article 37 of the Fundamental Law: "As long as stale debt exceeds half of the Gross Domestic Product, if the State incurs a payment obligation by virtue of a decision of the Constitutional Court, the Court of Justice of the European Union or any other court or executive body for which the available amount under the State Budget Act is insufficient, a contribution to the satisfaction of common needs shall be established which shall be exclusively and explicitly related to the fulfilment of such obligation in terms of both content and designation." 122. The Background Document insists that, in view of the EU convergence criteria to be met for a future introduction of the Euro, unexpected expenses due to national or European court decisions need to be counterbalanced. Even without this provision, Parliament would at any moment have the right to introduce new taxes. Any new tax would have to be in conformity with the requirements of the Fundamental Law (in particular legal certainty and the prohibition of discrimination). Such special taxes would even facilitate the necessary implementation of court decisions. 123. However, it should normally be possible to find funds in the budget. In case of a violation of the Constitution or European Law, the Government will not be forced to cover the costs within the budget. The burden will instead be directly transferred to the Hungarian citizens as taxpayers. Article 37.6 thus enables the Hungarian Government to circumvent the disciplining effect of Constitutional and other Court decisions which trigger payment obligations. 124. A special charge concerning payment obligations caused by a court decision has an important symbolic value: it may result in pressure on the judges who will be seen as responsible for the special tax while in fact the fault lies in an act of the Government or of Parliament that was unconstitutional or contrary to European law or standards. This pressure seriously endangers the judges' independence. 125. The Commission acknowledges the difficult fiscal problems which Hungary is currently facing, but strongly objects to the Government's reasoning that Article 37.6 of the Fundamental Law can and should be interpreted as (part of) an answer to those problems. 126. The Commission recalls that Hungary is, according to Article B . I of the Fundamental Law, a state governed by the rule of law. It is at the very core of the rule of law concept that the people trust 'their' courts. A special tax may lead to an aversion against the courts as a whole or against the hnp://uww.vcnicexoejnt/webfoi^

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national Constitutional Court or European courts. Article 37.6 of the Fundamental Law creates the risk of a loss of acceptance of the court system while the aim should be for people to accept court decisions as indispensable for the functioning of the rule of law. A court that tries to remedy a violation of the Constitution or of European Law or standards contributes to the functioning of the legal order.

127. Finally, Article 37.6 of the Fundamental Law may lead to an arbitrary imposition of such taxes. While it reads "a contribution [...] shall be established", it is quite obvious that not every court decision resulting in budgetary expenditure can lead to a special tax and in fact it seems that Article 29.1 of the Transitional Provisions of 31 December 2011, which had the same content, was never applied in practice. There are no criteria when a special tax should be imposed and thus each court has to face the danger that its judgment will be singled out for such a tax. 128. The Government Comments (para. 63) announce that the Hungarian Government will introduce a parliamentary procedure to abandon the special tax in case of unexpected expenses due to court decisions and to delete Article 37.6 of the Fundamental Law. The Venice Commission welcomes this intention." â&#x20AC;˘ Background document on the Fourth Amendment to the Fundamental Law of Hungary (24 April 2013) "13. Possibility of imposing special taxes The Amendment identifies the - narrowly construed - cases where the imposition of a special tax is provided for. This provision transposes a rule set out in the earlier Transitional Provisions into the Fundamental Law. First, it should be stressed that the referenced rule can only be applied in a period when public debt exceeds 50 per cent of gross national product. The underlying reason for the limitation is that until the fiscal state of the country is stable, any expenses arising from unforeseeable decisions beyond the government's control (thus, in particular, decisions by national and international courts) need to be immediately counterbalanced with revenues so that the convergence criteria of the adoption of the euro pertaining to the fiscal deficit and the government debt-to-GDP ratio can be met. The foregoing notwithstanding, the Amendment imposes limitations upon the use of the levying of separate taxes for the above purpose. If the central budget has adequate funding to cover the payment obligations specified in a (court) ruling (decision), levying taxes are to be avoided. Funds in satisfactory amounts can be raised through rearranging fiscal costs. It should be emphasised, however, that the aforementioned provision of the Amendment does not grant any additional powers to the legislator, for Parliament may, at any time, adopt a law introducing a new tax type even without having such additional powers. Furthermore, the 'separate' nature of a tax does not mean that the general guarantee rules of taxation can be waived in this case. The laws adopted on the basis of the affected provision of the Fundamental Law must also satisfy the procedural and content-related requirements set forth in the Fundamental Law (e.g. legal certainty and prohibition against discrimination). As regards the concerns that this provision have given rise to in relation to EU law, it should be clearly pointed out that the conditions set forth in the provision by no means prejudice E U law, as the situation is not that some tax that the European Court of Justice may deem as contrary to EU law is not refunded in accordance with E U law to those affected or that the refund rights of those affected are curbed. In order that the very refund obligations stemming from such a court ruling or similar court rulings can be fully complied with, the provision at issue calls upon the legislator to impose a special tax if there is no adequate funding available. Consequently, the provision, inter alia, facilitates the 93

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implementation of eventual condemning rulings of the European Court of Justice. It should also be pointed out that under the jurisprudence of the European Court of Justice regarding the refunding of taxes that proved to be contrary to EU law, the autonomy of the individual member states prevail in respect to procedural law with the proviso, however, that the principles of equivalence and effectiveness are observed. Looked at from this perspective, the provision at issue meets both requirements because it applies the same rules to the decisions of national, international and E U courts, and because it does not in any manner limit the implementation of these decisions, on the contrary, it expressly serves their implementation by helping to raise the necessary funds. The issue that may arise in the course of examining the individual tax regulations adopted exclusively on the basis of the provision at hand is whether these tax regulations limit the implementation of the national or international court rulings that serve as their basis; however, no such tax regulation has been adopted as yet, and no such limitation follows from the provision of the Fundamental Law."

2019. 05. 03. atlatszo.hu 95 Freedom of expression and protection of ethnic minorities 1. Summary of the relevant criticisms The Article I X . of the Fundamental law defend the freedom of speech and the freedom of the expression of opinion. It declares the human dignity as the limit of the freedom of speech and the freedom of the expression of opinion. The Article 5.2 of the Fourth Amendment added a new paragraph to Article IX, which entitled the Hungarian nation, the members of the Hungarian nation and member of any minority to enforce their claims in court against the expression of any opinion which offends their community, invoking the violation of their human dignity as determined by law. In the past few years one of the focus points of the criticism against Hungary was the lack of the protection of the minorities, especially the Roma and the Jewish community. For example the Report of Rui Tavares mentioned, "that the lack of reaction by the law-enforcement authorities in cases of racially motivated crimes has resulted in mistrust of the police forces' . All of the latest relevant reports and opinions on Hungary (Council of Europe, Venice Commission, Report of Rui Tavares) welcomed the intention of the Hungarian legislator to defend the minorities, and they also recognized that the concerned Hungarian rules are (i) harmonized with the European Law and (ii) incorporated the practice which was elaborated earlier by the Constitutional Court. 1

Several report mentioned that the representatives of the communities aimed to be protected by the new legal instruments introduced by the fourth amendment, have welcomed the new regulation. On the basis of the above, the international opinions mostly agreed with Article I X . and the new paragraph introduced by the Fourth Amendment, although they identified two points which can be incompatible with their conviction. One of the critical points says that the terms used in the amendment have potentially such a wide scope of application that they lack the clarity and precision needed to be in compliance with the condition that a limitation of the freedom of speech has to be "foreseen by law". The other critical point is about the usage of the term „the dignity of the Hungarian nation" which according to the critics - can be applied to curtail criticism of the Hungarian institutions and office holders which could be incompatible with the condition that a limitation has to be necessary in a democratic society. 2. Argumentation and measures to be taken to mitigate criticism According to the critics, the scope of the wording of the new paragraph is too wide. On this point, attention must be called to the fact that the concerned paragraph of the fourth amendment is just a legal framework, the details of which is to be decided by specific rules. The new Civil Code of Hungary, which will enter into effect I ' of January 2014 lays down the details of the civil procedure mentioned in the Fourth Amendment (2:54§). The new Criminal Code of Hungary, which entered into effect l of June 2013 introduced a felony called violence against the member of a community (kozosseg tagja elleni eroszak) which regulates the criminal law sanctions of the hate speech. s

Concerning the critics about the term „the dignity of the Hungarian nation", it has to be taken into consideration that according to the Hungarian Criminal Code, the hate crimes against the members of the Hungarian nation are traditionally penalized. The criminal offence of incitement against a community [Section 269. § of the Criminal Code (Act I V of 1978)] and also the offences committed against the Hungarian nation are sanctioned since October 1989. On the other hand, it has to be 95

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mentioned that the new regulation is not without antecedent, since it incorporates the practice elaborated earlier by the Constitutional Court. Concerning the critics about the term „the dignity of the Hungarian nation" it has to be taken into account that under the Hungarian Criminal Code the hate crimes against the members of the Hungarian nation are traditionally penalized. The criminal offence of incitement against a community [Section 269. § of the Criminal Code (Act IV of 1978)] has been including since 15 October 1989 also the offences committed against the Hungarian nation. On the other hand it has to be mentioned that the new regulation is not without antecedent, since it incorporates the practice elaborated earlier by the Constitutional Court. 3. Detailed legal background •

Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130 (INI)) Rapporteur: Rui Tavares 123

"BZ. whereas the Hungarian Authorities have stated their intention of reviewing the rules on the restrictions in political advertising during electoral campaigns; whereas the Hungarian Government is in consultation with the European Commission on the issue of political advertising; whereas, however, the Fourth Amendment imposes a broad and potentially vague prohibition on speech aimed at violating the dignity of groups, including the Hungarian nation, that may be used to arbitrarily interfere with freedom of expression and may have a chilling effect on journalists, and also on artists and others; - whereas the right not to suffer discrimination is a fundamental right enshrined in Article 21 of the Charter of Fundamental Rights;" Comments on point BZ of the Report of Rui Tavares: Whilst the report criticize the new regulations on speech aimed at violating the dignity of groups introduced by the fourth amendment, it also offends Hungary because according to the report, the lack of reaction by the law-enforcement authorities in cases of racially motivated crime has resulted in mistrust of the police forces (CE) and in general because of the numerous hate crime of the past few years. •

European Commission for Democracy Through Law (Venice Commission) Opinion on the Fourth Amendment to the Fundamental Law of Hungary 124

"As regards the prohibition to exercise the right to freedom of speech with the aim of "violating the dignity of any ethnic, racial or religious community", it may be considered necessary in democratic societies to sanction or even prevent forms of expression which spread, incite, promote or justify hatred based on intolerance. However, it is doubtful whether every exercise of the freedom of speech aimed at "violating the dignity of any ethnic, racial or religious community" is hate speech of the type mentioned. The terms used in the amendment have potential for such a wide scope of application that they lack the clarity and precision needed to be in compliance with the condition that a limitation of the freedom of speech has to be "foreseen by law". Article IX paragraphs 4-5 (as amended) fail to depict the scope of prohibition sufficiently narrowly. There is no indication in the wording that the clause is only aimed at the protection of those communities and their members which are mentioned in the Background Document. On the contrary, the introduction of the "dignity of the Hungarian nation" into article 1X.5 (a concept, it should be noted, that is unrelated to the human dignity mentioned in article IX.4) raises doubts in view of recent jurisprudence of the European Court of Human Rights. This provision might also be applied to curtail

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criticism of the Hungarian institutions and office holders which could be incompatible with the condition that a limitation has to be necessary in a democratic society." ,2i

Comments on the relevant points of the document: According to the critics the wording of the new paragraph have potential for such a wide scope of application. On this point attention must be called to the fact, that the concerning paragraph of the fourth amendment is just a legal framework, the secondary has to give the specific rules. The new Code Civil of Hungary, which will take effect on the I ' of January 2014 lays down the details of the civil procedure mentioned in the fourth amendment (2:54§). The new Criminal Code of Hungary, which took effect on the 1 of June 2013 also implemented the crime called violence against the member of a community f" violence Against a Member of a National, Ethnic, Racial or Religious Group "J which regulates the criminal law sanctions of the hate speech (the same offence was included in the previous Criminal Code as well, since 1 February 2009). s

Concerning the critics about the term „the dignity of the Hungarian nation" it has to be taken into account that under the Hungarian Criminal Code the hate crimes against the members of the Hungarian nation are traditionally penalized. The criminal offence of incitement against a community [Section 269. § of the Criminal Code (Act IV of 1978)] has been including since 15 October 1989 also the offences committed against the Hungarian nation. On the other hand it has to be mentioned that the new regulation is not without antecedent, since it incorporates the practice elaborated earlier by the Constitutional Court. •

Background Document on the Fourth Amendment to the Fundamental Law

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„The Amendment supplements the Fundamental Law provision defining the freedom of the expression of opinion with two basic elements. One - according to which the exercise of the freedom of the expression of opinion must not be aimed at the violation of human dignity of other individuals - incorporates the earlier practice of the Constitutional Court in the Fundamental Law. Namely, the Constitutional Court stated explicitly as a principle that "human dignity, which is under constitutional protection (...), may limit the freedom of expression realized in value judgments". [Decision No. 36/1994. (VI. 24.)]. The Amendment stipulates this constitutional principle, and does not overrule earlier constitutional interpretations, which, for instance, established more stringent conditions with respect to public actors. The other innovation of the Amendment is aimed at securing the possibility of bringing civil law actions against conducts violating the dignity of communities. In several of its decisions - for the first time in Decision No. 30/1992. (V. 26.) - the Constitutional Court pointed out that "the dignity of communities may serve as a constitutional limit on the freedom of the expression of opinion". The Constitutional Court also laid down that even though the dignity of communities cannot be interpreted as an independent fundamental right, it is the inalienable right of individuals to be protected by law and order against the violation of their human dignity which relates to them on account of being members of a community [Decision No. 96/2008. ( V I I . 3.)]. It must be emphasised that this latter decision of the Constitutional Court expressly acknowledged the constitutional possibility of the legislator to provide civil law instruments against hate crimes. In connection with this, the statements of Decision No. 30/1992. (V. 26.) should be recalled, which were also quoted by this body at a later stage: "reviling must be answered by criticism. The prospect of large amounts of compensation is also part of this process. However, criminal sanctions must be applied in order to protect other rights and only when unavoidably necessary, and they should not be used to shape public opinion or the manner of political discourse, since the latter approach is a paternalistic one". In Decision No. 18/2004. (V. 25.), the Constitutional Court developed the following argument: "As established by the Constitutional < 2 i

Venice Commission Opinion on the Fourth Amendment to the Fundamental I ^ w of Hungary: 12-14, Limitation of the freedom of speech ' 'hnp://ww.venicexoejnt/webfomis/documents/^pdf<-DL-REF(2013)019-e 2f

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Court in the decision examining the constitutionality of the statutory definition of scare-mongering, Âť"[...] the role of the system of criminal law sanctions as an ultima ratio undoubtedly means that these must be applied if the measures of other branches of law prove insufficient. However, in assessing the above, the Constitutional Court does not take into account the actual state of the legal system but considers the potentials of its development as well. The incompleteness of the system of legal sanctions available is not an acceptable argument in itself to declare a certain conduct as a criminal offence; the criminal law restriction of constitutional fundamental rights is made neither necessary, nor proportionate on such grounds.ÂŤ As there exist instruments for the protection of personality rights restricting the freedom of speech in a narrower circle and a in less unsparing but effective manner, more precisely, for stepping up against conducts of commission included in the facts of the case of disparagement, in the case of the conduct of disparagement or humiliation, the Constitutional Court considers holding out criminal law sanctions as a disproportionate restriction of the right to the freedom of the expression of opinion, specified in Section 61(1) of the Constitution."

"The Amendment takes into consideration primarily these theoretical statements of the Constitutional Court. Thus, it is not the Amendment that introduces this constitutional regulatory possibility into the Hungarian legal system. Nevertheless, in reaction to the provisions of Decision No. 96/2008. (VII. 3.), the Amendment also states explicitly as a principle that individuals belonging to a community can enforce their claims against expressions of opinion insulting to the community, for the violation of their human dignity, before the court. Thus, the Amendment makes it clear that an insult aimed at the community may result in the infringement of the subjective rights of the member of the community, and this infringement of rights can be repaired through the means of civil law. Moreover, attention must be called to the fact that the legal policy reason of these provisions is primarily that declarations insulting national, ethnic, racial or religious communities (especially Jewish and Romani communities) have strengthened in the public debates recently: the Parliament is committed to put an end to racist and anti-Semitic speeches; to which it also calls attention by making the text of the Fundamental Law unambiguous. It is to be noted in connection with this that the recommendation of the Council of Europe on hate speech adopted in 1997 [Recommendation No. R (97) 20.] contains a proposal that expressly encourages the member states to enhance the possibilities of combating hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction. It is noteworthy that the civil representatives of the communities to be awarded civil law protection (for instance, the Uniform Israelite Community in Hungary and "Action and Protection" Foundation) welcomed the provisions of the Amendment. Furthermore, it is important to emphasize that in Europe, at least 14 countries, among them Belgium, France, Germany, Switzerland, Sweden, the Netherlands, and the United Kingdom, as well as, from among our neighbours, Serbia and Croatia, penalize hate speech. According to the German regulation, for instance, the following conducts are punishable with imprisonment: "The person who, in a way suitable for disturbing public peace 1. incites to hatred against any national, ethnic, religious or racial group or certain segments of the population, or against any individual for belonging to these groups or a segment of the population, or calls upon some violent or arbitrary act, or 2. injures the human dignity of others by insulting, despising or slandering the above-specified group, certain segments of the population, or any individual for belonging to these groups or a segment of the population." Instead of the criminal law regulation dominant in Europe, the constituent legislator leaves the possibility of the assertion of a right to less restrictive civil law instruments. One should also see that, during the course of civil law regulations executing the provision of the Fundamental Law, it will be the task of the courts to weigh in every single case in what situation the infringement of personal rights 98

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has indeed occurred, and within this framework, they are to act by taking into account the special system of requirements of lawsuits relating to personality rights. It is also to be taken into account that the Constitutional Court will have the opportunity to annul the rules adopted in any law if those are not in line with the Fundamental Law.

Section 2:54 (5) of Act V of 2013, on the new Civil Code, which enters into force on 15 March 2014, concretizes the provisions included in the Fundamental Law. According to this, "in the event of any legal injury made before great publicity, to some essential trait of his or her personality, in relation to him or her belonging to the Hungarian nation or to some national, ethnic, racial or religious community, severely offensive to the community or unreasonably insulting in its manner of expression, any member of the community is entitled to enforce his or her personality right within a thirty-day term of preclusion from the occurrence of the injury. With the exception of surrendering the material advantage achieved through the infringement, any member of the community may enforce any sanction of the infringement of personality rights." By virtue of the Civil Code, the following sanctions can be demanded: a) the declaration of the occurrence of legal injury by the court; b) termination of the legal injury and prohibiting the offender from further legal injury; c) the offender to provide appropriate amends, and to allow appropriate publicity for this at his or her own cost; d) termination of the injurious situation, the restatement of the status preceding the legal injury, destruction of the object produced through legal injury or depriving it from its injurious nature; e) damages for infringement. There is a similar solution in Germany as well, where the Civil Code contains no independent regulation for this case, however, according to the judicial practice developed on the basis of the general damages clause of Section 823 of the German Civil Code (BGB), private law claims can be enforced in the event of injuries to the community. Through this rule, a far reaching civil law protection of the dignity of communities is also secured. Mention must also be made of the French press act of 1881, which, on the one hand, regulates hate speech with criminal law sanctions, on the other hand it also allows that the member of the affected community enforce a civil law claim (for instance, damages) in the criminal procedure brought for hate speech (Sections 48-1, 48-6). As far as the protection of the personality rights of the members of the Hungarian nation is concerned, attention is to be called to the fact that the provisions of the Criminal Code sanctioning hate crimes have always traditionally penalized injuries suffered by the members of the Hungarian nation. The criminal offence of incitement against a community [Section 269 of Act IV of 1974 on the Hungarian Criminal Code (hereinafter: the Hungarian Criminal Code)] have contained since 15 October 1989 that inching to hatred is to be punished also i f it is committed against the Hungarian nation. The criminal offence of violence against the member of a community (Section 174/B of the Hungarian Criminal Code) have contained since 15 June 1996 that the offence is also realised by the person who assaults someone because he or she belongs to a national group. It is apparent that the criminal code conducts within the remit of hate crimes require that criminal acts against the Hungarian nation or members of the Hungarian nation also be punished, not only the acts against individuals belonging to the minority groups. These legal traditions are carried on by the Amendment enabling to bring a civil law action for hate crimes against the Hungarian nation. It may be also noted that the German legislation quoted above does not exclude that incitement against the German nation may be sanctioned under that provision (to that effect, see the commentary compiled by the Administration of the Bundestag: http://www.bundestag.de/dokumente/analysen/2009/volksverhetzung.pdf). Furthermore, several recent news reports have discussed the increase of hate crimes against "white Britons" in Scotland which imply that such attacks are sanctioned under British law. Article 30(7) of the Romanian constitution expressly prohibits - inter alia - defamation of Romania or the Romanian nation ("Any defamation of the country and the nation [...] shall be prohibited by law")."

2019. 05. 03. atlatszo.hu 100 Budget Council 1. Summary of the relevant criticism The Budget Council was first established by Act L X X V of 2008, as part of the agreement entered into force with the IMF. Originally it was composed of 3 members, each elected by the Parliament for 9 years upon proposal of the President of the Republic, the President of the State Audit Office and the President of the National Bank, respectively. Act CXCIV of 2011 has changed the composition of the Council, which is now composed of the President of the National Bank, the Head of the State Audit Office, and the President of the Budget Council. The President of the State Audit Office is elected by the Parliament for 12 years, with a constitutional majority of 2/3 of all MPs. The President of the National Bank and the President of the Budget Council are appointed by the President of the Republic for 6 years. Notwithstanding, the new regulation has also strengthened the Council, among others it has been granted the power to veto the adoption of the general budget. The Tavares-report criticized the adopted regulation, stating that the Budget Council, being an organ with limited democratic legitimacy (not elected by the voters), has been granted the power to veto the adoption of the general budget, thus restricting the scope for action of the democratically elected legislature. 2. Argumentation in order to mitigate criticism Whilst the Tavares-report criticized the new power of Budget Council, the critics based on merely legal aspects (Venice Commission, Council of Europe) did not find the new regulation violating any specific law or even any constitutional principle. The European Commission as the Guardian of the Treaty did not lunch infringement procedure on the regulation, though the initiation of such procedure should have been compulsory, if any rule was against the common law of the E U . According to the critics formed against the Hungarian legislation, the system of the checks and balances was weakened following the change of government in 2010; nevertheless, such critics did not take into consideration that the new legislation introduced new institutions to limit its own power, one of which is the Budget Council itself. Otherwise, on one hand the critics say that the Hungarian legislation ceased and weakened the system of checks and balances to secure its super majority, but on the other hand they offend an institution created by the majority of the Parliament to limit one of its main power, the adoption of the annual budget. 3. Legal background Below shall be found the opinions, reports of the relevant international- and EU-bodies and the reports on the Budget Council. â&#x20AC;˘

Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to the European Parliament resolution of 16 February 2012) (2012/2130 (INI)) Rapporteur: Rui Tavares 127

â&#x20AC;&#x17E;whereas a non-parliamentary body, the Budget Council, with limited democratic legitimacy, has been granted the power to veto the adoption of the general budget, thus restricting the scope for action of the democratically elected legislature and allowing the President of the Republic to dissolve the parliament;"

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2019. 05. 03. atlatszo.hu 101 „Deplores the fact that the abovementioned institutional changes resulted in a clear weakening of the systems of checks and balances required by the rule of law and the democratic principle of the separation of powers;" „On checks and balances: -to restore the prerogatives of the parliament in the budgetary field and thus secure the full democratic legitimacy of budgetary decisions by removing the restriction of parliamentary powers by the non parliamentary Budget Council;" •

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) Request for the opening of a monitoring procedure in respect of Hungary Opinion 128

„- the Budget Council (now composed of the President of the National Bank, the Head of the State Audit Office, and the President of the Budget Council). The President of the State Audit Office is elected by Parliament for 12 years, with a constitutional majority of 2/3 of all MP's. The President of the National Bank and of the Budget Council are appointed by the President for 6 years. The new President of the National Bank who was appointed beginning of March 2013, is the former Minister of Economy and a member of the Fidesz parliamentary faction since 2006. Under Article 44 of the Fundamental Law, the adoption of the State Budget act requires the prior consent of the Budget Council;"' 29

„However, there are a number of areas made cardinal by the Fundamental Law, which were not cardinal according to the old Constitution, such as the laws on family protection, passive right to vote, provisions on Parliament's regular sessions, on the supervisory activities of Parliamentary Committees, on autonomous regulatory bodies, on general taxation and pension system, on the operation of the National Bank, on the system of financial supervision, on the Budget Council, on State property and national assets. Furthermore, a constitutional amendment adopted on 21 December 2012 (so-called third amendment) has added to this list all laws relating to the use and property of land and forests." lj0

•

European Commission for democracy through law (Venice Commission) Opinion on the new Constitution of Hungary 131

„The Constitution imposes specific criteria for the management of the state budget as well as strict limitations to the State debt. Nevertheless, instead of giving the Constitutional Court full scope of control over the constitutionality of the budget and taxes legislation, it gives a special power of intervention in this domain to the new Budget Council. In line with the 'Veto power" of the Budget Council, the said curtailment of the powers of the Constitutional Court and which regards the budget, taxes and other financial legislation is conditional on the state debt exceeding 50 % of the GDP. This will, however, be the case for the foreseeable future. This limitation of the Court's competences also covers the State Budget "implementation", which may expand even further the number and scope of acts that will not be subject of constitutional review. It is strongly recommended that the cardinal law regulating the competences, organisation and operation of the Constitutional Court (as required by Article 24 § 5 of the new Constitution) provide all clarifications needed in this respect." l j 2

„The establishment and the competences of the Budget Council, as well as its composition and the way it is established (Article 44(4)), has a significant impact on the adoption of the State Budget and m

http. www.assembly.coe.ini'Cominimication/amondocQS 2013.pdf Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee). Request for the opening of a monitoring procedure in respect of Hungaiy. Opinion; 2.2. New institutions and major reforms; page 10. Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee). Request for the opening of a monitoring procedure in respect of Hungary. Opinion; 3.3. The excessive use of cardinal laws and cardinal provisions; page 14. http: wM-M .assembly.coe.ini. Communication amondocOS 20I3.pdf European Commission for democracy through law (Venice Commission) Opinion on the new Constitution of Hungary, page 20 http://www. venice. coe.intAvebforms.'documents/CDL-AD( 2011 K>16-E.aspx n v

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the Parliament's related power. This is of key importance for Parliament as, in addition to legislation, the Budget is the main instrument for parliamentary majority to express and implement its political programme. Article 44(3), interpreted in conjunction with Article 36(4)-(5), seems to grant the nonparliamentary Budget Council a "veto" power over Parliament's decision for the foreseeable future. The adoption of the State budget is part of the core competence of the Parliament and usually its main exclusive privilege. Making its decision dependent on the consent of another authority - with limited democratic legitimacy, as none of the members of the Council is directly elected - is therefore problematic and might have a negative impact on the democratic legitimacy of budgetary decisions. Such decisions may be complicated further by the fact that the Council's composition will consist of members appointed by a previous majority. Moreover, apart from the general requirements stipulated in Article 36(4)-(5) previously quoted, the Constitution does not set up any condition for the "prior consent" of the Budgetaiy Council. The Venice Commission trusts that the Hungarian authorities will avoid a too rigid/restrictive interpretation of the "prior consent", and that this condition will be interpreted and implemented, as it results from Article 44 (l)-(2): as a "statutory contribution to the preparation of the State Budget Act" through "supporting Parliament's legislative activities and examining feasibility of the State Budget" (and not as an absolute power to block the adoption of the budget). As the compliance with the provisions of the Constitution - Article 36 (4)-(5), but also Article 44 (1 )-(2) - is at stake, in any case the Constitutional Court should have the last word." lj3

Comments on the relevant points of the opinion According to the critics formed against the Hungarian legislation, the system of the checks and balances was weakened following the change of government in 2010; nevertheless, such critics did not take into consideration that the new legislation introduced new institutions to limit its own power, one of which is the Budget Council itself. Otherwise, on one hand the critics say that the Hungarian legislation ceased and weakened the system of checks and balances to secure its super majority, but on the other hand they offend an institution created by the majority of the Parliament to limit one of its main power, the adoption of the annual budget.

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2019. 05. 03. atlatszo.hu 103 Status of Churches & freedom of religion 1. Summary of the relevant criticism The Venice Commission expressed its concerns specifically about the absence of procedural guarantees for a neutral, non-political, equal and impartial application of the provisions pertaining to the recognition of churches in Act CCV1 of 2011 on the right to freedom of conscience and religion and the legal status of churches. The Commission and other international bodies as well criticized part of the Fundamental Law laying down legal framework for churches and religious associations. â&#x20AC;&#x17E;76. The foregoing leads to the conclusion that the recognition or de-recognition of a Religious community (organization) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations. Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act."' The Venice Commission criticised that the Hungarian Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denomination and religious does not provide for solid remedies against an eventual negative decision of the Parliament. As is has been set out in their opinion: "80. The possibility to appeal against refusal is essential. 42 In the OSCE/ODIHR-Venice Commission Guidelines it is clearly stated that "Parties asserting religious claims have rights to Effective remedies. This is rooted in general rule of law conceptions, but has found specific embodiment in a number of international norms". 83. It follows from this, that either an independent tribunal must decide on the registration or that there is a subsequent control of the decision by an independent court." 2. Historical background A. regulations before 2010. The communist Constitution of 1949 separated the State and Church formally. On the other hand, the autonomy of Churches was ceased by the evolving dictatorship, the actual control and regulation of Churches being in the hand of the State, restricting their operations. Subsequently, the freedom of religion and belief, and the formation of churches were ensured widespread by Act IV of 1990.However, later it has become obvious that such generous conditions of forming churches may lead to certain abuses of this right, such as the unauthorized requisition of pork barrels, or registering organisations without actual religious activity (the number of registered churches before 2010 amounted to approximately 400). B. International regulations The Universal Declaration of Human Rights declares the freedom of religion as a fundamental right. Nowadays we can find 3 main categories of separation of State and Church. Certain states do not recognise churches at all, while some have state religion. Moreover, in a number of states the legislator lays down certain criteria that must be fulfilled as a prerequisite to be recognised as a church. Article 17. of the Treaty of Lisbon respects the different regulations: â&#x20AC;&#x17E;The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States." 103

2019. 05. 03. atlatszo.hu 104 In France, based on the principle of complete separation, all churches operate as associations as of the Separation Act of 1905 (for example, the catholic dioceses are registered as diocese associations, with the bishop as its chairman). In England there is the Church of England, which is the officially recognised Christian church, and its head is the British monarch. All the other churches operate as associations and they dare not publicly recognised. 'State religion' system also exists in Iceland, Denmark, Norway, Finland, Malta and Greece. In Central-Europe, the most common practice is the two-level regulation model, which was evolved through centuries. In most cases churches have public recognition, they have a sui generis category in the law of the state. Accordingly, in Germany there are churches registered as public bodies, but this kind of recognition has some conditions in each province (for example a minimal number of members, or that its rules and members may not oppose the law of the state). There are many benefits from such status of public body, for example the state of civil service, church taxes, collected by the state, certain tax reliefs and autonomy. Based on its own case law, the European Court of Human Rights in Strasbourg seems to acknowledge the right of the states to create different legal categories for churches and religious associations, with different social roles. Ongoing measures to mitigate criticism The Fifth Amendment of the Fundamental Law contains further remedies and explanations to the above-mentioned criticisms. Namely, by amending the relevant terminology (the Fifth Amendment uses „rehgious associations", instead of the „Church" and „other associations engaged in religious activities" included in the previous wording), it clarifies that the decision of the Parliament does not affect the theological and ecclesiastical self-determination of the churches, nor does it aim to accept or deny the operation of these religious associations as churches. Conversely, such new wording sets out the own discretional power of the Parliament to decide which religious societies it intends to cooperate with for the sake of community causes and social purposes. Detailed legal background *

Opinion on the fourth amendment to the fundamental law of Hungary (adopted by the Venice Commission) : 134

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„31. The Venice Commission recalls that in its decision 6/2013 , taken already on the basis of the Fundamental Law in force since 1 January 2012, the Hungarian Constitutional Court declared that some of the provisions of the Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities, were contrary to the Fundamental Law and annulled them. The Court criticised the lack of an obligation to provide an appealable reasoned decision in case of a rejection of the request for recognition. The decision by Parliament could thus result in a political decision rather than one based on the applicable criteria. In the absence of a deadline for Parliament to decide, no legal remedy was available. The new provisions introduced by Article 4 result in the possibility to disregard decision 6/2013." 1

'72. The Venice Commission is worried specifically about the absence in the Act of procedural guarantees for a neutral and impartial application of the provisions pertaining to the recognition of churches" 136

hnp://wuw.venice.coe.int/webforms/dociiments/ Ddr^CDL-AD(2013)Q12-e Decision 6/2013 ol' 1.3. 2013. - 9 - C D L - A D ( 2 0 ! 3 ) 0 1 2 29 [38] See ECtf IR, Metropolitan Church of Bessarabia v. Moldova, para 116: "in exercising its regulatory power [... ] in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral

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2019. 05. 03. atlatszo.hu 105 â&#x20AC;&#x17E;77. It is obvious from the first implementation of the Act, that the criteria that have been used are unclear, and moreover that the procedure is absolutely not transparent. Motives of the decisions of the Hungarian Parliament are not public and not grounded. The recognition is taken by a Parliamentary Committee in the form of a law (in case of a positive decision) or a resolution (in case of a negative decision). This cannot be viewed as complying with the standards of due process of law." 137

Comments: The Fourth Amendment itself seems to offer solution for some point of the criticism. As to the objectivity of conditions and procedural guarantees linked to the parliamentary procedure the following new developments must be emphasised. First, upon the application of the religious organisation, the competent minister carries out an assessment whether the applicant fulfils the precise criteria laid down by law. In case of a negative assessment the minister issues a formal resolution that can be challenged before an administrative court in accordance with the regular procedure. If the minister confirms the fulfilment of all legal criteria, he submits a proposal for recognition by Parliament. I f Parliament finds that the religious organisation is able to cooperate for community purposes with the state it enlists in the act. I f Parliament rejects the recognition, it must deliver a reasoned resolution. The negative decision of the Parliament may be challenged before the Constitutional Court in a special procedure established for these reviews. The Constitutional Court assesses the decision of the Parliament with regard to the lawfulness of the procedure, including the requirements for motivation. These provisions provide the Constitutional Court with a broad margin of discretion to review the parliamentary decision thus challenged. 138

â&#x20AC;&#x17E;32. While the original version of Article VTI of the Fundamental Law had been found in line with Article 9 ECHR in the Opinion on the new Constitution of Hungary , it is the procedure of parliamentary recognition of churches that has been raised to the level of constitutional law in Article VII.2. The Commission had criticised this procedure in its Opinion on Act CCVI of 2011 on the right to freedom of conscience and religion and the legal status of churches, denominations and religious communities of Hungary:" 139

â&#x20AC;&#x17E;74. According to the latest information at the disposal of the rapporteurs, Parliament adopted a Bill of Recognition on 29 February 2012, with 32 recognized churches39. It is entirely unclear to the rapporteurs and to the outside world, how and on which criteria and materials the Parliamentary Committee and Members of Parliament were able to discuss this list of 32 churches, to settle the delicate questions involved in the definition of religious activities and churches supplied in the Act, within a few days, without falling under the influence of popular prejudice." Comments: Provisions of the Fourth Amendment concerning the Churches in addition to the individual or collective exercise of the right to freedom of religion by all persons and organisations, the Fourth Amendment also contains a rule according to which the State may provide special "Church" status with additional rights for organisations engaged in religious activities. That is for the Parliament to recognise these Churches provided that they meet the requirements set out in a cardinal Act. These requirements will be defined according to the new Article VII (4) of the Fundamental Law which enumerates permanent operation, social support and eligibility for cooperation as requirements of recognition. This provision has been transplanted from the former Transitional Provisions. However, by virtue of a motion for amendment adopted by the Parliament, it defines a new possible element among the criteria of recognition. This new criterion is the eligibility for cooperation with the and impartial." 30 C D L - A D ( 2 0 1 2 ) 0 0 4 , adopted by the Venice Commission at its 90th Plenary Session (Venice, 16-17 March 2012). Comments of the Government of Hungary on the draft opinion on the Fourth Amendment to the Fundamental L a w of Hungary: htlp://ww.kormany.hii/download/d/5c/e0000/]UJrcsponse_VenCom_DranOp_20130611%281-lNALfin%29.pdf 28 "...Also, as stated by the Venice Commission in its 2004 Guidelines for Review of Legislation Pertaining to Religion and Belief, "[legislation that acknowledges historical differences in the role that different religions have played in a particular country's history are permissible so long as they are not used as a justification for ongoing discrimination" (Chapter 0 . B . 3 ) Against this background. Article V I I is in line with Article 9 E C H R . " , C D L A D ( 2 0 1 1 )016, para. 73.

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State in order to achieve community goals, having regard that the aim of this special "Church" status is that the denominations recognised as Churches may practice their activities for community goals more efficiently. The criterion of suitability for cooperation necessarily provides a certain margin of appreciation for the Parliament. However, this margin is reasonable for the Parliament to have the right to freely select (based on objective, reasonable criteria) the denominations which it regards suitable for cooperating with the State. The detailed rules on the recognition shall be laid down in a cardinal act. When deciding on suitability for cooperation, the Parliament may not assess the entity of the denominations from a theological aspect. The recognition does not concern the own theological determination of denominations. Denominations whose request has been denied by the Parliament can operate as a church, in theological terms, by their own internal law. The definition in the state law for the special "Church" status does not correspond with the theological definition of the Church; this distinction also follows from the separation of State and denominations. 140

â&#x20AC;&#x17E;76. The foregoing leads to the conclusion that the recognition or de-recognition of a Religious community (organization) remains fully in the hands of Parliament, which inevitably tends to be more or less based on political considerations. Not only because Parliament as such is hardly able to perform detailed studies related to the interpretation of the definitions contained in the Act, but also because this procedure does not offer sufficient guarantees for a neutral and impartial application of the Act". Comments: As to the practice of religious activities and the status of various religious organisations in Hungary the following must be pointed out. â&#x20AC;&#x17E;As a starting point for the evaluation of the status of various religious organisations it must be underlined that the well-established jurisprudence of the Constitutional Court (since decision 8/1993) makes it clear that (i) the neutral guarantee of the free practice of religion and (ii) the granting by the state special status to religious organisations (e.g. through registration of churches) are two different matters. In the latter the state enjoys a wide margin of appreciation. The fact that countries may differentiate (not discriminate!) among various religious organisations (churches) is also recognised by the Venice Commission in its 2004 Guidelines for Review of Legislation Pertaining to Religion and Belief: "legislation that acknowledges historical differences in the role that different religions have played in a particular country's history are permissible so long as they are not used as a justification for ongoing discrimination" (Chapter II.B.3). It is on that basis that the Venice Commission found â&#x20AC;&#x201D; in its opinion- Article VII of the Fundamental Law to be in line with Article 9 E C H R . By way of conclusion the following must be underlined: - the exercise of the freedom of religion is not constrained by law in Hungary; - any religious organisation can call itself a church; - a parliamentary procedure is only necessary for those religious organisations that apply for a special privileged relationship with the state; - the granting of this privileged status is subject to judicial control through the entire procedure by the ordinary administrative courts or by the Constitutional Court. As regards the recognition rules, it should be noted that similar or more rigorous system can be found in Lithuania, Austria, Belgium and Spain. In Lithuania the Parliament, the Seimas may recognize denominations. The Seimas may recognize the denominations which have been operating for at least 25 years as an association. If the Parliament denies the recognition, the request could be tabled only after 10 years. In Hungary 20 years operation is required and a renewed request may be tabled after 1 year. In Austria the competence of recognition belongs to a minister besides the Parliament may recognize any denominations in an Act, as happened for example in the case of Syrian Orthodox 141

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Church. In Belgium recognition must be enacted denying recognition. The non-recognized

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Churches operate as public association. Historical Churches in Spain have an enacted contract with the State; requests of other denominations are considered by the Ministry of Justice. Moreover there are some members of the European Union who has defined a prevailing religion in its constitutions. (For example in Denmark and Finland the Evangelical Lutheran Church, in Greece the Eastern Orthodox Church of Christ, in Malta the Roman Catholic Apostolic Church). After the adoption of the Fourth Amendment the statutory provisions will also be reviewed in the light of the decision of the Constitutional Court. The amendment will re-regulate the procedure of recognition." 143

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