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Resolution 1941 (2013) Final version
Request for the opening of a monitoring procedure in respect of Hungary
1. The Parliamentary Assembly takes
note of the report on the request for the opening of a monitoring procedure
in respect of Hungary, which was prepared following the motion for
a resolution on “Serious setbacks in the fields of the rule of law
and human rights in Hungary” (Doc. 12490).
It takes note of the opinion of the Bureau of the Assembly which
does not support the opening of the monitoring procedure in respect
of Hungary. In this regard, the Assembly supports the fact that
the ongoing dialogue continues between the European Commission for
Democracy through Law (Venice Commission) and the Hungarian Government.
2. The constitution and related organic laws are the basis for
the legal and democratic functioning of a country. They provide
the basic democratic rules and the framework for the protection
of the human rights of its citizens and the respect for the rule
of law. In the view of the Assembly, a constitutional framework
should therefore be stable and based on a wide social acceptance
and large political consensus. As a result of the 2010 elections,
one party alliance gained a more than two-thirds majority in the
Hungarian Parliament which represents, according to common European
standards, sufficient legitimacy for amending the constitution.
3. The Assembly notes that the new Hungarian Parliament, for
the first time in the history of free and democratic Hungary, 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.
4. The Assembly supports the opinion of the Venice Commission
by taking note that the number of subjects regulated by a two-thirds
majority has not increased since the adoption of the new Fundamental
Law. In order to implement these laws with the widest possible support
of civil society, the Assembly calls on the governing majority and
all opposition parties to further co-operate on these topics.
5. A constitutional framework should be based on broadly accepted
values in society. The Assembly notes that several provisions are
a concern to a part of Hungarian society. These provisions however
are based on traditional European values, are noted in the constitutions
of many other European countries and were adopted by a democratic
two-thirds majority in the Hungarian Parliament. This affects the
democratic legitimacy and social acceptability of the constitutional
framework, which is a matter for concern.
6. The Assembly is deeply concerned about the erosion of democratic
checks and balances as a result of the new constitutional framework
in Hungary. This new framework has introduced excessively concentrated powers,
increased discretionary powers and reduced both the accountability
and legal oversight of numerous government institutions and regulatory
bodies in Hungary.
7. In the opinion of the Assembly, the curtailing of the powers
and competences of the Constitutional Court – an important counter-balancing
and stabilising institution in the Hungarian political system –
is further evidence of the erosion of the system of checks and balances
in Hungary. In this context, the fact that the ruling coalition
has used its two-thirds majority in the parliament to circumvent
Constitutional Court decisions and to reintroduce provisions in
the constitution that were annulled by the Constitutional Court,
has raised concerns.
8. Between May 2010 and the entry into force of the new Fundamental
Law, on 1 January 2012, the previous constitution was amended 12
times. Since then, the new Fundamental Law has already been amended
four times, the last time considerably. The constant changing of
the constitution for narrow party political interests undermines
the required stability of the constitutional framework. In addition,
the Assembly wishes to underline that the main justification for
a qualified two-thirds majority in constitutional matters is to protect
the constitutional framework from frivolous changes by a ruling
party and to ensure that the constitution is based on as wide a
consensus as possible between all political forces on the legal
and democratic foundations of the State. The possession of a two-thirds
majority does not relieve a ruling party or coalition from the obligation
to seek consensus and to respect and accommodate minority views
and interests. The attempt of the ruling coalition in Hungary to
use its unique two-thirds majority to push through reforms has been
in contravention of these democratic principles.
9. The Assembly regrets the recent adoption of the so-called
fourth amendment to the constitution against the recommendations
of many national and international experts and against the explicit
advice of Hungary’s international partners. The fact that this fourth
amendment knowingly contains a number of provisions that had previously
been declared unconstitutional by the Constitutional Court of Hungary
and/or flagged as being at variance with European principles and
norms by the Venice Commission, is unacceptable and raises questions about
the willingness of the current authorities to abide by European
standards and norms.
10. The Assembly takes note of the opinion of the Venice Commission
on the fourth constitutional amendment, the conclusions and findings
of which confirm the concerns of the Assembly expressed in this resolution
and in the report of the Monitoring Committee. It urges the Hungarian
authorities, in close co-operation with the Venice Commission, to
fully address the concerns and implement the recommendations contained
in the opinion.
11. The 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. The Assembly calls on the Hungarian
authorities to continue the open and constructive dialogue with
the Venice Commission and all other European institutions.
12. In addition, the Assembly calls upon the Hungarian authorities,
with regard to:
12.1. the Act on
Freedom of Religion and the Status of Churches, to:
12.1.1. remove
the right to decide to recognise a religious denomination as a church
from the competencies of the parliament, which is inherently a political
body, and to ensure that such decisions are made by an impartial
administrative authority on the basis of clear legal criteria;
12.1.2. establish clear legal criteria for the recognition of
a church that are fully in line with international norms, including
the case law of the European Court of Human Rights;
12.1.3. provide for the possibility to appeal against any decision
to grant, or reject, a request to be recognised as a church, before
a normal court of law, both on substantial as well as on procedural
grounds;
12.2. the Act on Elections of Members of the Parliament, to:
12.2.1. ensure that the election districts are drawn up by an
independent authority on the basis of clear legal criteria;
12.2.2. ensure that the district boundaries themselves are not
defined by law, especially not by a cardinal law. In addition, the
Assembly recommends that the authorities 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. The Assembly notes that
with the adoption of the Act on Elections of Members of the Parliament,
the authorities responded to the recommendation of the Venice Commission
and the decision of the Constitutional Court regarding the disproportionality
of the election districts;
12.3. the Act on the Constitutional Court, to:
12.3.1. remove
the limitation of the jurisdiction of the Constitutional Court on
economic matters;
12.3.2. remove from the constitution the prohibition of the Constitutional
Court to refer back to its case law from before 1 January 2012;
12.3.3. introduce a mandatory “cooling-down” period in respect
of members of parliament, which already exists for members of the
government, leading officials of a political party or State leaders,
between the end of their political mandates and before the start
of their new function, before they can be elected as judge of the
Constitutional Court;
12.4. the Acts on the Judiciary, notwithstanding the improvements
made to the relevant laws in co-operation with the Secretary General
of the Council of Europe, to:
12.4.1. remove from the powers
of the Chairperson of the National Judicial Office the possibility to
transfer cases;
12.4.2. remove the possibility in the law for the Chairperson
of the National Judicial Office to annul the outcome of a competition
for the appointment of a judge;
12.4.3. to ensure that, by law, all decisions of the Chairperson
of the National Judicial Office can be appealed before a court of
law, both on substantial and on procedural grounds;
12.5. media legislation, to:
12.5.1. abolish registration
requirements for print and online media;
12.5.2. separate, functionally and legally, the Media Council
from the Media Authority;
12.5.3. ensure that, by law, all decisions of the Media Council
or Media Authority can be appealed before a court of law, both on
substantial and on procedural grounds.
13. The Assembly considers that each of the concerns outlined
above is inherently serious in terms of democracy, the rule of law
and respect for human rights. Taken separately, they would already
warrant close scrutiny by the Assembly. In the present case, however,
what is striking is 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.
14. When acceding to the Council of Europe, Hungary voluntarily
committed itself to upholding the highest possible standards in
relation to the functioning of democratic institutions, the protection
of human rights and respect for the rule of law. Regrettably, the
above-mentioned developments have raised serious and sustained concerns
about the extent to which the country is still complying with these
obligations. The Assembly, however, decides not to open a monitoring
procedure in respect of Hungary but resolves to closely follow the situation
in Hungary and to take stock of the progress achieved in the implementation
of this resolution.