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Resolution 2064 (2015)
Situation in Hungary following the adoption of Assembly Resolution 1941 (2013)
1. In June 2013, the Parliamentary
Assembly adopted Resolution
1941 (2013) on a request for the opening of a monitoring
procedure in respect of Hungary. Expressing its concern “about the
erosion of democratic checks and balances as a result of the new
constitutional framework in Hungary”, the Assembly pointed out that
“[t]he assessments of the constitution and several cardinal laws
by the Venice Commission and Council of Europe experts raise a number
of questions with regard to the compatibility of certain provisions
with European norms and standards, including with the case law of
the European Court of Human Rights”. More specifically, the Assembly:
1.1. called on the Hungarian authorities
to continue the open and constructive dialogue with the European
Commission for Democracy through Law (Venice Commission) and all
other European institutions and to take a specific set of measures
with regard to the Act on Freedom of Religion and the Status of
Churches, the Act on Elections of Members of the Parliament, the
Act on the Constitutional Court, the Acts on the Judiciary and media
legislation;
1.2. noted that the new Hungarian Parliament, for the first
time in the history of free and democratic Hungary, had amended
the former constitution – inherited from the one-party system –
into a new and modern Fundamental Law through a democratic procedure,
after intensive debates in the parliament and with contributions
from Hungarian civil society;
1.3. while pointing out that, taken separately, each of the
concerns outlined was inherently serious, warned against “the sheer
accumulation of reforms that aim to establish political control
of most key institutions while in parallel weakening the system
of checks and balances”;
1.4. decided, in conclusion, not to open a monitoring procedure
in respect of Hungary but resolved “to closely follow the situation
in Hungary and to take stock of the progress achieved in the implementation of
this resolution”.
2. Two years later, the Assembly takes stock of such progress
and notes in particular the following:
2.1. concerning the new Hungarian Church Act, it is clear that
the freedom of religion is important in Hungarian society. However,
in considering the registration of churches, the European Court
of Human Rights found in its judgment of 8 April 2014 a violation
of Article 11 (freedom of assembly and association) of the European
Convention on Human Rights (ETS No. 5), read in the light of Article
9 (freedom of thought, conscience and religion), as this act violated
the rights of religious communities when it stripped them of their
church status. On 15 May 2015, the Hungarian authorities informed
the Council of Europe that six churches were about to sign an agreement,
while four others were about to sign a partial agreement, but this
fact does not ensure compliance with the judgment of the European Court
of Human Rights;
2.2. the right to decide to recognise a religious denomination
as a church remains within the competencies of the parliament, rather
than of 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;
2.3. referring to the report on Hungary published on 16 December
2014 by the Council of Europe Commissioner for Human Rights, the
Assembly notes with concern that the report found widespread presence
of racist and extremist organisations and movements in the country
and extremism in its political arena. These findings are also reflected
by the report on Hungary adopted by the European Commission against
Racism and Intolerance (ECRI) on 19 March 2015. The Assembly therefore
urges Hungary to implement the recommendations by the Commissioner
for Human Rights and ECRI;
2.4. as required by the Constitutional Court, electoral constituencies
were redrawn to become more equal, a positive change recognised
by the Venice Commission and the Office for Democratic Institutions
and Human Rights of the Organization for Security and Co-operation
in Europe (OSCE/ODIHR). The opposition parties, however, claim that
the situation is still not fair. Although the Assembly recommendations,
echoed by the Venice Commission and the OSCE/ODIHR, regarding the
need for an independent body to deal with the drawing of electoral
districts have not been met, the main concern does not seem to be
the Act on the Election of Members of Parliament but the Act on
Electoral Procedures, which has not so far been examined by the
Venice Commission;
2.5. with regard to the Constitutional Court:
2.5.1. no
statutory changes were made with respect to the limitation of its
jurisdiction on economic matters, which the Venice Commission has
clearly criticised;
2.5.2. although no statutory changes were made following the
opinion of the Venice Commission on the possibility for the Constitutional
Court to refer back to its case law, the Hungarian Constitutional
Court, in a decision taken in 2013, stated that it was possible
to refer back to the substance of its case law created under the
former constitution and has indeed done so in a number of its recent
decisions;
2.5.3. there is no legal requirement that Constitutional Court
judges should have been judges before. A “cooling-down” period should
be introduced in respect of members of parliament, between the end
of their political mandates and before they are eligible for election
as judges of the Constitutional Court, as recommended by the Assembly
in Resolution 1941 (2013);
2.6. with regard to the judiciary, the issue of the transfer
of cases between judges was resolved through legislative amendments
in the framework of the dialogue with the Secretary General of the Council
of Europe. Generally, the position of the Chairperson of the National
Judicial Office – a unique institution in Europe – has changed and
his powers are now limited;
2.7. concerning the issues related to the media, the Commissioner
for Human Rights of the Council of Europe, in his report on Hungary
published in December 2014, pointed out that media in Hungary still suffered
from both an inadequate legal framework and political pressures.
For its part, the Assembly urged the Hungarian Parliament, in its Resolution 2035 (2015) on
the protection of the safety of journalists and of media freedom
in Europe, to pursue further reforms of its legislation in order
to improve the independence of the media regulatory authorities,
the State news agency and the public service broadcasters, to increase
transparency and pluralism in the private media, as well as to combat
racist expressions against ethnic minorities. In accordance with
Opinion 798/2015 of the Venice Commission on media legislation of
Hungary, the Assembly calls on Hungary to implement those recommendations. The
Assembly remains seized of the media situation in Hungary in the
framework of its future reports on attacks against journalists and
media freedom in Europe as well as on new methods of political influence over
independent journalism. The situation of racism and intolerance
also requires special attention;
2.8. as regards the recent debate on the reintroduction of
the death penalty in Hungary, the Assembly strongly underlines once
again that the prohibition of the death penalty is enshrined in
the core values of the Council of Europe and welcomes the withdrawal
of any proposal on this matter;
2.9. 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.
3. In conclusion, the Assembly welcomes the measures taken by
the Hungarian authorities and their ongoing co-operation with the
Secretary General of the Council of Europe, and encourages them
to continue the open and constructive dialogue with the different
Council of Europe interlocutors and other international organisations.
It therefore resolves to ask the Hungarian authorities to endeavour
to solve the outstanding issues, but that special examination of
these matters by the Assembly should now be concluded.