Committee Opinion | Doc. 13831 | 23 June 2015
Situation in Hungary following the adoption of Assembly Resolution 1941 (2013)
Committee on Legal Affairs and Human Rights
A. Conclusions of the committee(open)
B. Proposed amendments(open)
Amendment A (to the draft resolution)
In paragraph 2.1, delete the words “and there are no restrictions on Hungarian citizens following their chosen faith” from the first sentence.
Amendment B (to the draft resolution)
After paragraph 2.1, insert the following paragraph:
“the right to decide to recognise a religious denomination as a church remains within the competencies of the parliament, rather than an independent authority as requested by the Assembly. There is still no provision for the possibility to appeal against any decision to grant, or reject, a request to be recognised as a church;”
Amendment C (to the draft resolution)
At the end of paragraph 2.3.3, add the words “, as recommended by the Assembly in its Resolution 1941 (2013)”.
Amendment D (to the draft resolution)
In paragraph 2.4, replace the words “Generally, the position of the Chairperson of the National Judicial Office – a quite unique institution in Europe – has changed and his powers are now limited;” with the following text:
“The chairperson of the National Judicial Office still has the power to annul the outcome of a competition for the appointment of a judge, but this power has been somewhat limited by the statutory imposition of certain conditions that must be met for the chairperson to exercise this power. There is still no guaranteed appeals process relating to the decisions of the chairperson;”
Amendment E (to the draft resolution)
After paragraph 2.6, add the following paragraph:
“2.7. the Assembly recalls that certain constitutional and democracy issues, such as the wide scope of the ‘cardinal laws’ and the requirement of qualified majorities for future changes pointed out by the Venice Commission, still need to be addressed.”
C. Explanatory memorandum by Mr Díaz Tejera, rapporteur for opinion(open)
1. Amendment A (to the draft resolution)
Although the Fundamental Law of Hungary guarantees the freedom of religion to Hungarian citizens, I believe the original text of paragraph 2.1 misrepresents the practical implications of the registration requirements and arbitrary deregistration of over 400 Churches, addressed in the judgment of the European Court of Human Rights of 8 April 2014. The Court held that the Hungarian Church Act violates Article 11 (freedom of assembly and association) of the European Convention on Human Rights (ETS No. 5), read in light of Article 9 (freedom of thought, conscience, and religion). Whilst in theory a citizen of Hungary might still worship his chosen religion in the absence of a registered Church, I find the text misleading and unnecessary in light of the serious issues identified by the Assembly, the European Commission for Democracy through Law (Venice Commission), and last but not least the European Court of Human Rights with respect to the shortcomings of the Hungarian Act on Churches.
2. Amendment B (to the draft resolution)
This amendment supplies additional information relating to specific measures requested by the Assembly in Resolution 1941 (2013). The Assembly should indicate clearly whether Hungary fulfilled its specific requests.
The parliamentary power to decide whether to recognise a religious denomination as a Church allows the Hungarian Parliament the discretion to continue utilising criteria that may not be in keeping with international norms or standards. For example, parliament imposes a time restriction that the religious community must have been in existence for 100 years internationally or 20 years in Hungary, which is contrary to guidelines provided by the Venice Commission. Parliament may also deny recognition on the basis of national security, which the Venice Commission has not recognised as a legitimate reason for restrictions of the freedom of religion under the European Convention on Human Rights.
3. Amendment C (to the draft resolution)
This amendment aims to further clarify paragraph 2.3.3, in order to state more clearly that Hungary did not implement the Assembly’s recommendation.
With respect to the judiciary, it should be noted that Hungary has taken other measures to increase the independence of the judiciary, such as increasing the term of a Constitutional Court judge to 12 years and eliminating the possibility for re-election. Nevertheless, since the Assembly made specific requests of Hungary, it is necessary to indicate whether Hungary fulfilled those requests.
4. Amendment D (to the draft resolution)
This amendment seeks to rectify the vagueness of the original text by indicating specifically how the powers of the chairperson of the National Judicial Office have been limited. Assembly Resolution 1941 (2013) asked Hungary to limit the power of the chairperson by removing his/her ability to annul the outcome of a competition for the appointment of a judge. The original draft does not indicate whether this was done or not; the amendment clarifies that the Chairperson still holds this power, but that it is now subject to limitations.
These limitations, as well as the circumstances in which a losing judge may appeal, are addressed in the information submitted to the Assembly by the Hungarian delegation. It would appear from this information that these conditions may be quite easily met, but it remains to be seen in practice how much the new statutory conditions actually limit the power of the chairperson to annul the outcome of a competition for the appointment of a judge.
5. Amendment E (to the draft resolution)
This amendment highlights the Assembly’s broader concerns regarding the wide scope of cardinal laws and the two-thirds majority required to change them. These are precisely some of the issues that caused the Assembly to fear for the democratic legitimacy of the new government and the new Constitution, and the Assembly should take the opportunity to make it clear that these concerns still exist. Particularly in light of the reports of the Venice Commission concerning democratic shortcomings of the new Fundamental Law and various cardinal laws, the amendment emphasises that the underlying concerns regarding the erosion of checks and balances still, in large part, remain to be addressed.