1. Introduction
The Hungarian right-wing alliance of Fidesz (Alliance of Young Democrats) and Christian Democratic People’s Party (KDNP)2 won in three consecutive elections (2010, 2014, and 2018). Fidesz, which started as a group of liberal, democratic, open-minded young politicians after the transition to democracies in the satellite states of the former USSR, has underwent a fundamental change by the end of the 1990s. Since 2010, it has tightened control over the country’s independent institutions and introduced various measures which reshaped the political, economic and societal landscape.
Such developments had a disproportionate impact on many segments of the society, including the migrants and asylum-seekers, Jews, Romani people, women, LGBTQI people, religious minorities, persons with disabilities or homeless people. This paper will focus on three groups, namely the Roma, women and the LGBTQI community, based on the fact that 2020 witnessed various policy decisions, most of them adopted during the state of emergency, which had a particularly adverse effect on their situation. While analysis will focus on 2020 developments, they will be presented with a historic perspective.
This narrow focus is not to underestimate the relevance of the deterioration of the situation of other groups. The situation of asylum-seekers has hit the papers first with the 2015 mass influx3 and, later, with the construction of a fence along the country’s
1 A revised, extended and updated version of the article written for the “5th Coimbra International Conference on Human Rights: a transdisciplinary approach”, https://en.cidhcoimbra.com/. Manuscript completed on 15 January 2021.
2 Fidesz = Fiatal Demokraták Szövetsége (Alliance of Young Democrats)
3 See e.g. https://www.bbc.com/news/world-europe-34136823
southern border, followed by declaring Serbia as a safe third country,4 or the denial of food to asylum seekers held in custody,5 just to name a few.6
As far minority religions are concerned, Act CCVI of 20117 stripped many religious communities of their legal status, depriving them State resources to which they had previously been entitled, and resulted in other limitations. The act was challenged before the Constitutional Court, which found it to be incompatible with the Constitution.8 The legislative response, which has become a general pattern ever since, was to amend the Fundamental Law accordingly, thus formally removing the effects of the illegality held to exist, without addressing the human rights concerns.9 After the successful challenge before the European Court of Human Rights (ECtHR),10 Hungary amended the Church Act.11 Nevertheless, it is still the Parliament, a political body, which decides which religious communities are in the privileged tier (recognized church), and even though all churches became entitled to the 1% income tax donations (like the four incorporated churches), the amendment does not automatically enable organizations previously excluded from this support to receive it.12
Prison conditions, and the situation of inmates, have led to a pilot procedure before the ECtHR, due to the recurrent and persistent nature of the problems identified.
While the Court clearly indicated the main avenue for improvement, namely reducing the number of prisoners by using as widely as possible non-custodial punitive measures,13 the Government has not followed this path. In fact, the CPT noted a progress during its 2018 visit in that “the Hungarian authorities have taken steps to strengthen safeguards against police ill treatment (notably the right of notification of custody and the right of
4 Ilias and Ahmed v. Hungary, Application no. 47287/15, judgment of 14 March 2017, GC judgment of 21 November 2019.
The GC found that there had been a violation of Article 3 (prohibition of torture or inhuman or degrading treatment) by listing Serbia as a safe third country. The Hungarian authorities did not take into account available and reliable information regarding the risk of refoulement from Serbia, administrative deficiencies to assess asylum claims, or denials of the right to apply for asylum for readmitted person. The Court found no violation of Article 3 as regards the conditions in the transit zone: the material detention conditions in the transit zone as well as the length of detention did not reach the threshold to find a violation under Article 3.
5 https://www.helsinki.hu/en/echr_eighth_interim_measure_denial_of_food/
6 See e.g. the website of the Hungarian Helsinki Committee, https://www.helsinki.hu/en/refugees_and_migrants/ for comprehensive and up-to-date information.
7 As amended by Act CXXXIII of 2013 and Act CXXXII of 2018
8 6/2013. (III. 1.) AB határozat, see:
http://public.mkab.hu/dev/dontesek.nsf/0/E57CE6378E537151C1257ADA00524F50?OpenDocument
9 Fourth Amendment (25 March 2013), Section 4; Fifth Amendment (26 September 2013), Section I; both amending Article VII of the Fundamental Law
10Magyar Keresztény Mennonita Egyház et al. v. Hungary (Appl. nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12), judgment of 8 April 2014. The Court held that in removing the applicants’
church status altogether rather than applying less stringent measures, in establishing a politically tainted re-registration procedure and in treating the applicants differently from the so-called incorporated churches in certain aspects, the authorities disregarded their duty of neutrality vis-à-vis the applicant communities. The Court found a violation of Article 11 of the Convention read in the light of Article 9. – See also MINK Júlia: A vallásszabadság a vélt közérdek oltárán.
A Magyar Keresztény Mennonita Egyház kontra Magyarország ügy. in: Fundamentum, Volume 2014 Issue 3, pp. 85-99, http://www.fundamentum.hu/sites/default/files/14-3-09.pdf
11 Act CXXXII of 2018
12 See e.g. https://tasz.hu/cikkek/eletbe-lep-az-egyhaztorveny-modositasa-emiatt-ujabb-perek-varhatoak
13Varga and Others v. Hungary, (Application nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13), judgment of 10 March 2015
access to a lawyer) through new criminal procedure legislation and relevant police regulations”. The CPT was concerned, however, over inter-prisoner violence, the material conditions in juvenile prisons, solitary confinement and the lack of meaningful review procedure for life-sentenced prisoners.14
Finally, recent measures taken to criminalize homelessness must be noted as well.
When the Constitutional Court in 2012 found that the punishment of homeless persons for living in a public area violated the right to human dignity,15 the response was to introduce a new paragraph in the constitution, stipulating that using a public space as a habitual dwelling should be prohibited. This move sparked international criticism and protest. The Human Rights Committee noted that despite the previous decision of the Constitutional Court the new provision “designates many public areas as out of bounds for sleeping rough and effectively punishes homelessness.”16 The Hungarian argument about the improbability of actual implementation was rejected by the Committee.17 The amendment, by which poverty has become a crime, was also criticized by the European Parliament18 as well as the then Council of Europe’s Commissioner for Human Rights.
Thus, following his visit to Hungary in 2014, Nils Muižnieks argued that poverty could not be punished in the absence of a danger to society inasmuch as such a measure constituted discrimination on grounds of socio-economic status.19 In 2020, in her comment on the right to affordable housing, Dunja Mijatović, the current Council of Europe’s Commissioner for Human Rights noted that “State responses to rising homelessness have often been characterised by a short-sighted, punitive approach, in a misguided attempt to move the problem out of public sight”, referring to, inter alia, national and local government bans on “sleeping rough” on pain of fines in Hungary.20
14 Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 20 to 29 November 2018 (Strasbourg, 17 March 2020), CPT/Inf (2020) 8, available at https://rm.coe.int/16809ce9ec
15 Constitutional Court Decision No. 38/2012 (XI.14)
16 See also Decision III/1628/2018 of the Constitutional Court, https://alkotmanybirosag.hu/kozlemeny/az-eletvitelszeru- kozteruleten-tartozkodas-tilalma-nem-alaptorveny-ellenes-az-allamnak-ugyanakkor-a-szankcio-alkalmazasakor-fokozott-korultekintessel-kell-eljarnia
17 “The Committee notes the explanation given by the State party that in practice no fines are imposed on homeless persons, but regrets that fines and incarceration are still available in law and therefore could be applied at any time.”
Human Rights Committee, Concluding observations on the sixth periodic report of Hungary (9 May 2018) (2018) CCPR/C/HUN/CO/6, paras. 33-34, URL: https://undocs.org/en/CCPR/C/HUN/CO/6
18 Para. 71 of the Sargentini Report (Report on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded), European Parliament A8-0250/2018, https://www.europarl.europa.eu/doceo/document/A-8-2018-0250_EN.html
19 See the Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his Visit to Hungary from 1 to 4 July 2014; especially paras. 134-142, https://rm.coe.int/ref/CommDH(2014)21
20 Human Rights Comment, The right to affordable housing: Europe’s neglected duty, Strasbourg 23/01/2020, https://www.coe.int/en/web/commissioner/-/the-right-to-affordable-housing-europe-s-neglected-duty. See also BENCE Rita and TESSZA UDVARHELYI Éva: The Growing Criminalization of Homelessness in Hungary – A Brief Overview. in: European Journal of Homelessness, Volume 7, No. 2, December 2013, pp. 133-143.
https://www.feantsa.org/download/rb_and_tu_review7456010047088321940.pdf
2. Developments in Hungary over the past decade
According to Freedom House, “Hungary today can no longer be regarded as a democracy but belongs to the growing group of hybrid regimes, sitting in the ‘gray zone’
between democracies and pure autocracies.”21 But how did we get here?
While the idea of preparing a new constitution emerged already in the 1990s, these attempts were not successful. When Fidesz won the elections in 2010, the new Government initiated a project to write a new Constitution. The Fundamental Law, as it is named, was adopted in 2011 (entry into force in 2012). As far as the drafting process is concerned, the Venice Commission noted, not without reason: “The Commission would like to recall that transparency, openness and inclusiveness, adequate timeframe and conditions allowing pluralism of views and proper debate of controversial issues, are key requirements of a democratic Constitution-making process. In its opinion, a wide and substantive debate involving the various political forces, non-government organisations and citizens associations, the academia and the media is an important prerequisite for adopting a sustainable text, acceptable for the whole of the society and in line with democratic standards. Too rigid time constraints should be avoided and the calendar of the adoption of the new Constitution should follow the progress made in its debate.”22
Although envisaged to provide a stable and robust foundation, in fact the Fundamental Law has been amended nine times, with the last one in December 2020;
thus an average one amendment per year.
Afterwards, a large number of laws adopted by the ruling party with its supermajority in Parliament has triggered serious criticism both domestically and internationally. Since these are widely covered in the daily news, in the statements of civil organizations as well as in academic writings,23 let’s rely on the perceptive observations of the Human Rights Committee for a summary: “The Committee is concerned about the level of protection afforded in law and in practice to fundamental rights in Hungary, as the Fundamental Law has been subject to frequent amendments, often in relation to laws that the Constitutional Court had earlier ruled unconstitutional.
… The Committee is also concerned about the use of cardinal laws that shield governmental policies from change by an ordinary majority in the parliament … The Committee is … concerned about the process by which legislation has been adopted and about the negative impact of some of the resulting legislative provisions on the
21 https://freedomhouse.org/country/hungary/nations-transit/2020, prepared by Gábor Filippov. See also DRINÓCZI T.
and BIEŃ-KACAŁA A.: “Illiberal Constitutionalism: The Case of Hungary and Poland” (2019) 20 in: German Law Journal 1140-1166; https://doi.org/10.1017/glj.2019.83
22 Emphasis added. Venice Commission (European Commission for Democracy through Law), Opinion no. 614/2011 on Three Legal Questions Arising in the Process of Drafting the New Constitution of Hungary, Strasbourg, 28 March 2011, CDL-AD(2011)001. https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)001-e ; paras 18 and 19. See also See also Venice Commission, Opinion no. 621/2011 on the New Constitution of Hungary, Strasbourg, 20 June 2011, CDL-AD(2011)016;
para. 11. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)016-e
23 See the various sources used in this paper.
promotion and protection of human rights in Hungary. In particular, the Committee notes with concern reports of insufficient consultation with opposition politicians, the speed at which the legislative process is often conducted, especially when initiated by committees and individual lawmakers, and the failure to ensure the transparency of draft legislation or to allow sufficient time for deliberation, public consultation and impact assessment. It is also concerned about the practice of introducing substantive legislative amendments after the end of parliamentary deliberation, making use of a special measure that is intended only for the review of technical or inconsistent provisions.”24
What follows is a brief overview of a few controversial measures introduced over the last decade.
As far as academic freedom is concerned, the government has first focused its attention on Central European University (CEU), a graduate school founded by George Soros after the collapse of the Soviet Union. In October 2018, the Hungarian government declined to sign an agreement that would have allowed the institution, which maintained accreditation in Hungary and the United States, to continue its operations.
CEU responded by announcing its closure of US-accredited activities in Hungary that December, though some activities will continue on its Budapest campus until 2022. That decision took effect in September 2019, and CEU’s campus in the Austrian capital of Vienna opened to students. In its judgment of 6 October 2020, the Grand Chamber of the Court of Justice of the European Union found that conditions introduced by Hungary to enable foreign higher education institutions to carry out their activities in its territory are incompatible with EU law, including academic freedom, the freedom to found higher education institutions, the freedom to conduct a business, the freedom of establishment, and the free movement of services.25
Besides, the Hungarian Parliament adopted a law reorganizing the network of research institutes of the Hungarian Academy of Sciences, stripping the 200-year-old Academy of its network of research institutions.26 Finally, in September 2020, without any meaningful prior consultation, the governance of the public University of Theatre and Film Arts (SZFE) was transferred to a private foundation to which the Government appointed a board of loyal trustees. In response, the students of SZFE decided to block the entrance but the various forms of protest had to be suspended with the introduction of lockdown measures due to the second wave of the pandemic.27
24 Human Rights Committee, Concluding observations on the sixth periodic report of Hungary, CCPR/C/HUN/CO/6, 9 May 2018, paras. 5 and 7.
25 Case C-66/18, Commission v Hungary (Higher education), judgment of 6 October 2020
26 Act LXVII of 2019 on the amendment of certain laws to transform the institutional structure and the financing of the system of research, development and innovation), Jogtár, https://mkogy.jogtar.hu/jogszabaly?docid=A1900068.TV
27 FRENYÓ Anna: Free country, free university – students at Hungary’s University of Theatre and Film Arts protest against restricted academic freedom. Heinrich Böll Stiftung, 14 September 2020. https://cz.boell.org/en/node/2021. – In para.
6 of its Resolution 2352 (2020) of 20 November 2020, the PACE expresses “concern over the increasing external funding and commodification of higher education, which undermine the idea of higher education as a public good and public responsibility. The external financers’ commercial and political interests may subvert the focus of research towards increased profits and revenue flows for the companies that sponsor such research, and set limits to the freedom to publish the research results.” In para. 10, the PACE appeals to “the Governments of Azerbaijan, Hungary, the Russian Federation and Turkey, which are ranking lowest within the AFI [Academic Freedom Index], to take immediate action
NGOs have also been operating in an increasingly hostile political environment.
In its report on Hungary, the Council of Europe Conference of INGOs stated that “[t]he rights defenders increasingly work in a rather polarised and politicised environment. The negative rhetoric and attacks are undermining the capacities of the NGOs to contribute to democratic society. Consequently the social mistrust between society and NGOs and between the NGOs and policymakers and public institutions is increasing.”28 A salient example is a bill adopted in 201729 requiring NGOs funded above a certain amount to register as “organizations receiving support from abroad”. The Venice Commission found the law pursuing legitimate aims but containing excessive obligations and providing for disproportionate sanctions.30 In addition, the CJEU also found that the restrictions imposed by Hungary on the financing of civil organisations by persons established outside that Member State violate the provisions on the free movement of capital the TFEU.31 Despite the judgment, at the time of writing, Hungary has made no steps to comply with the judgment.32
A final comment regarding NGOs relates to the 2018 amendment of the Criminal Code introducing the offence of “facilitating irregular migration”.33 In their joint report,
to reverse the recently adopted legislation and/or practices that limit the respect of principles of academic freedom and institutional autonomy.” https://pace.coe.int/en/files/28881/html – Further Hungarian public universities are envisaged to be transferred to private foundations.
28 Council of Europe Conference of INGOs, Civil participation in the decision-making process. Fact finding visit in Hungary, 20–22 November 2016; p. 13. https://rm.coe.int/report-visit-of-the-conference-of-ingos-to-hungary-final/1680728497
29 “2017. évi LXXVI. Törvény a külföldről támogatott szervezetek átláthatóságáról,” (Law LXXVI on 2017 on the Transparency of Organizations Supported from Abroad), Jogtár, https://net.jogtar.hu/jogszabaly?docid=a1700076.tv.
However, no organization was penalized for failing to register in 2019.
30 Para 65–66: “In particular, although the label “organisation receiving support from abroad” objectively appears to be more neutral and descriptive compared, in particular, to the label of “foreign agent”, it should be emphasised that placed in the context prevailing in Hungary, marked by strong political statements against associations receiving support from abroad, this label risks stigmatising such organisations, adversely affecting their legitimate activities and having a chilling effect on freedom of expression and association. The Venice Commission acknowledges that the Draft Law on the Transparency of Organisations Receiving Support from Abroad is explained as pursuing the legitimate aim of ensuring transparency of civil society organisations in order to prevent undue foreign political influence. The Draft Law may also contribute to the fight against money laundering and the financing of terrorism. However, these legitimate aims cannot be used as a pretext to control NGOs or to restrict their ability to carry out their legitimate work. This effect would go beyond the legitimate aim of transparency which is alleged to be the only aim of the Law under consideration.” Venice Commission, Hungary, Opinion on the draft law on the transparency of organisations receiving support from abroad. Strasbourg, 20 June 2017 Opinion 889/ 2017, CDL-PI(2017)015, URL:
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)015-e
31 Case C-78/18, Commission v. Hungary (Transparency of associations), judgment of 18 June 2020. “Hungary had introduced discriminatory and unjustified restrictions with regard to both the organisations at issue and the persons granting them such support. Those restrictions run contrary to the obligations on Member States in respect of the free movement of capital laid down in Article 63 TFEU and to Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union, on the right to respect for private and family life, the right to the protection of personal data and
31 Case C-78/18, Commission v. Hungary (Transparency of associations), judgment of 18 June 2020. “Hungary had introduced discriminatory and unjustified restrictions with regard to both the organisations at issue and the persons granting them such support. Those restrictions run contrary to the obligations on Member States in respect of the free movement of capital laid down in Article 63 TFEU and to Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union, on the right to respect for private and family life, the right to the protection of personal data and