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Watchdogging in Hungary – June 2013

Ongoing debate on the 4th amendment of the Fundamental Law of Hungary

Hungarian lawmakers in March passed the Fourth Amendment of the new constitution (entered into force on 1st of January, 2012). The amendment curtails judicial authority and powers of the Constitutional Court, limits campaign ads in private media, restricts the definition of a family to marriage, limits freedom of expression and allows the criminalization of homeless people who live on the streets. That vote bypassed an earlier Constitutional Court veto as the Fourth Amendment contains a number of provisions that the Constitutional Court previously annulled for being unconstitutional. The recent amendment was heavily criticized in by the EU’s special reporter whose report was approved by a resolution adopted by the European Parliament. Furthermore, the Venice Commission, an advisory body of the Council of Europe on constitutional matters, adopted similar criticism in a report published on the 13th of June 2013. Unsurprisingly, the government denied in both cases that the recent changes were anti-democratic in nature. In order to provide independent expertise for the fact finding committees of the international organizations, three NGOs – Hungarian Civil Liberties Union, Hungarian Helsinki Committee and Eötvös Károly Institutereacted jointly by pointing out the invalidity and self-contradictory nature of the government’s rebuttal. The NGO’s shadow report showed -inter alia – that the government tries to defend the Fourth Amendment by citing decisions of the Constitutional Court, however, one of the core element of the amendment is the annulment of the applicability of those decisions of Constitutional Court that were adopted before the entry into force of the new Fundamental Law. Furthermore, the government presents certain modification – like the constitutional definition of family – as merely symbolic, even though it has serious legal impact, for instance the legal status of non-married couples. Additionally, the classification of certain article of the Fundamental Law as symbolic (i.e. that lacks the normative value) cannot be done in a manner in line with the rule of law, but only arbitrarily.

Photo of police officers in action.Constitutional complaint against police face blur

Under the uniform jurisprudence of the Hungarian courts, persons fulfilling service and working in a public place shall not be considered public entities, therefore, rendering public a photo or video record of them that makes identification possible, is subject to authorisation by the person concerned. Several media entities have been fined when failed or intentionally had not blurred the image showing the face of police officers while in action. Clearly, change of this jurisprudence is desirable in a liberal democracy, therefore Atlatszo.hu, after loosing one such case, submitted a petition with the Constitutional Court in order to render this interpretation of the law as unconstitutional. The investigate journalist portal argues that the identification of acting police officers must be ensured as this is a guarantee of the accountability of the police. In contrast with the judicial interpretation, the petition emphasizes that images showing actions – or passivity – of persons fulfilling service and working in a public place shall be regarded as data of public interest, hence the consent of the police officers for publishing photos is not required.

Conference on the legal boundaries of civic disobedience

During the demonstrations against the introduction of tuition fees and the Fourth Amendment of the Fundamental law, a group of young activists occupied the party headquarters of FIDESZ and blocked traffic by the parking lot at the Parliament in an attempt to prevent some MPs from entering. The activists acted in defense of democracy and fundamental rights in a public and peaceful manner. In order to call attention to an emerging injustice, they went beyond the written rules of law regulating right to assemble. However, they did not use force, cause any personal injury or material damage, or violate anyone’s fundamental rights. They publicly justified their actions and accepted all legal consequences. Civic disobedience is closely interrelated to freedom of expression (Article 11 of the Charter of Fundamental Rights), freedom of assembly (Article 12). As the scope of fundamental freedoms have grown narrower in the past few years, the number of these sort of civil disobedience, as a mean of political activity and demonstration, will increase and gain more importance. Hence, the Hungarian Civil Liberties Union organized a conference dedicated to this issue, so potential activists would be aware of the legal boundaries, furthermore, the law enforcement agencies would see that civil liberties experts are willing to take on the fight. Academics, representatives of NGOs, activists and journalists were among the speakers. The general view was that even if one could find a law that prohibits their peaceful demonstration, such disobedience shall not be treated as crime, and activists shall not be prosecuted for their actions. The reaction of the police to round-up and detain the activists were unreasonable and unnecessary and meant to install fear and scare people away from similar actions in the future. The actions of the police send a clear message; the emerging autocratic regime seeks to break any democratic movement in its infancy. Therefore, such cases will be brought to court, and eventually, NGOs will represent the activists before the European Court of Human Rights if no legal remedy will be provided home.

Annual report by the Hungarian Helsinki Committee (HHC) on its border monitoring activity

The annual report summarizes the experiences gathered in 2012 in the course of the project “Asylum Seekers’ Access to Territory and Asylum Procedure in the Republic of Hungary, based on individual border monitoring visits. As Hungary is on the boundary of the Schangen Area, the visits of the HHC focused on Ukrainian–Hungarian border, the Serbian-Hungarian border, and the Budapest Liszt Ferenc International Airport.

The report, evaluating the law enforcment agencies, pointed out two major issues. Firstly, the increasing number of intercepted foreigners at the Serbian-Hungarian border section was challenging for the police. The increase in the number of illegal entries from 4243 cases in 2011 to 5228 cases in 2012 is a significant. Due to the deficiencies in the Serbian asylum system, HHC recommends that the Hungarian authorities reconsider their view on Serbia as a safe third country in the alien policing procedures.

Secondly, and more importantly, the number of intercepted unaccompanied minors significantly increased throughout 2012. All in all, 875 minors, separated from their families, were stopped and taken into custody by the authorities, most of whom were from Afghanistan. The major criticism of the report is that in cases where the minor informed the authorities about family members on EU territories, the Hungarian authorities failed to conduct the authentication of such family ties and to initiate family reunification. Not only this is obligatory under Dublin II Regulation stating that if the asylum seeker is an unaccompanied minor, the State where the asylum seeker’s family is lawfully present is obliged to examine the minor’s asylum application provided that this serves the best interest of the child, but it also runs counter to Article 24 of the Charter of Fundamental Rights of the EU, according to which every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents. Hence, HHC recommends that the authorities should carry out an individual and substantive examination in each case to determine the best interest of the child in expulsion procedures and consider the relevant aspects of child protection in their decisions.

Procedure to establish the responsibility of the police in discriminative patrolling against Roma

Hungarian Civil Liberties Union initiated an actio popularis against the County Police Department of Heves, an eastern county with relatively big Roma population. In early 2011, as a result of long-term presence and marching of extreme-right “self-defense” groups in Gyöngyöspata, a small town in County of Heves, ethnic tension increased between the local Roma community and local and non-local anti-Roma extremists. As a misjudged response, the police authorities exclusively patrolled the areas where the Roma population live, and it began the practice of fining the Roma mostly for bagatelle traffic violations, ID checks and searches, while the extremists were never fined for similar minor offences. This series of discriminative actions contributed to the increase of the tension and exacerbated the fearsome and humiliating atmosphere that the Roma faced.

According to article 21 of the Charter of Fundamental Rights of the European Union, any sort of discrimination based on ethnicity, social origin or membership of a national minority shall be prohibited. This prohibition has its detailed rules in the municipal law of Hungary. This is the first court procedure that aims the determination of the liability of the police for large-scale anti-discriminatory policy. As a strategic litigation, HCLU aims to contribute to change of attitude of the police toward the Roma community, and the hopefully positive outcome of the case might contribute to desegregation of the Roma community as Gyöngyöspata and the local county police is not the sole law enforcement entity which applies such harassing patrolling techniques.

Nuclear power plant.Conference and public debate on the expansion of the Nuclear Plant

The expansion of Paks Nuclear Power Plant has been a persistent issue in parliamentary politics, still, only little information has been leaking about the details of decision making. However, the investment amounting to billions of Euros would determine Hungary’s energy policy and economy for decades. Meanwhile, essential questions are not answered. Energiaklub – Climate Policy Institute and Applied Communiction organized a conference where independent experts presented their view on the necessity and financial, social and environmental impact of the project. Even though the expansion has not started yet, the government already spent millions of euros on feasibility studies, most of them acquired by Energiaklub after bringing action against the Nuclear Plant under the freedom of information laws.

Struggle for transparency – Petition with the ombudsman to initiate Constitutional Court procedure to repeal new laws restricting freedom of information

According to an amendment of Act CXII of 2011 on the Right of Informational Self-Determination and Freedom of Information, access to public interest data by citizens shall not equal to controlling data to the same extent and in the depth supervisory authorities as specified in the law do, i.e. the data controller can refuse the data request when it judges the request as covering too much. The reasoning of the amendment is that it provides means to authorities to deny alleged abusive data requests resulting in an incommensurate workload of authorities and other bodies possessing such data. The amending law says runs counter to Article 11 of the Charter of Fundamental Rights of the European Union. Transparency International Hungary, K-Monitor (watchdog for public funds), Atlatszo.hu investigative portal and Hungarian Civil Liberties Union are struggling for annul the amendment that would result in an arbitrary discretionary power granted to the administration. The NGOs argue that this understanding of freedom of information enables users of public funds, mainly government offices and municipalities to keep the way they allocate public funds secret. Back in May, in order to raise public awareness and promote active citizenship, the ad hoc NGO alliance provided a sample letter and contact email address to the President of the Republic enabling the citizens to have their voice heard. Due to the public pressure, the President sent back the amendment to the Parliament for a second round of debate. However, the Parliament adopted the same version again and the amendment was promulgated. As the general public has no right to initiate Constitutional Court procedure unless the law in question was applied in a specific court case and all the remedies were exhausted, the NGOs – as a last resort shot – now petitioned the Ombudsman who has the right to initiate constitutional review of the amendment. As another form to protest against the recent amendment, all the NGOs decided to withdraw from the anti-corruption working group of the Ministry of Public Administration and Justice.

Photo from the massive police patrolling during a food distribution in Budapest.Haressment of homeless citizens

The City is For All, an NGO that dedicates its efforts to help homeless and formerly homeless people, reported massive police patrolling during a food distribution taken place in June in Budapest. According to the activists, this sort of practice is not exceptional which amounts to abuse of power and represents a discrimination based on social status. The current government implemented a very hostile policy of homlessness. Supposedly, as part of this hostility, the police takes advantage to stop and search homeless citizens, and if their ID cards are invalid, they take them into custody and fine them. This sort of inhuman exercise of law enforcement power exploits the defencelessness of those who strive to survive and has no other option, but to line up for free food. The NGO legal aid service represents petitioners before the Independent Police Complaint Board.


Logo funduszy szwajcarskich, Ecorys oraz Euroregion Bałtyk.

                                                                                                                                                                                                                   

This text is a result of a research prepared within the project “Powerful Watchdogs” supported by a grant from Switzerland through the Swiss Contribution to the enlarged European Union. The report aims to show the up-to-date information regarding activity of watchdog organizations in a given country. The author refers to the classification on watchdog functions, to the Charter of Fundamental Rights of the European Union and the international concepts of the transparent governance.

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