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Council of Europe adds to Hungary's predicament

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Published 20 March 2012

The Venice Commission, a Council of Europe body specialised in constitutional matters, found yesterday (19 March) "numerous problematic elements" in the laws regulating Hungary's judicial system and even called for amending the country's new constitution. 

The development is expected to play an important role for the decision of the European Commission, which is currently considering a treaty violation procedure against Hungary in relation to the independence of its judiciary (see background).

On 20-21 February 2012, two separate delegations of the Venice Commission, the Council of Europe body on constitutional matters, visited Budapest. One of them examined the new legislation relating to the legal status and remuneration of judges and to the organisation and administration of courts, and the second one a newly adopted Hungarian law (Act) on religious freedoms.

The adoption of the Fundamental Law and even more so the adoption of the Act on the Legal Status and Remuneration of Judges (ALSRJ) and the Act on the Organisation and Administration of Courts of Hungary (AOAC) as well as the Transitional provisions of the Fundamental Law have brought about a radical change of the judicial system, the experts concluded.

"Even if it might be possible to justify some of the [newly introduced] elements in the framework of the Hungarian tradition, the reform as a whole threatens the independence of the judiciary. It introduces a unique system of judicial administration, which exists in no other European country," the Venice Commission stated.

The Strasbourg-based institution enumerated a long list of concerns: The election of the President of the National Judicial Office (NJO) for a nine year period (which can be indefinitely extended by a blocking majority of one third of members of Parliament), the very extensive list of competences of the NJO President, his strong influence on the appointment of court presidents and other senior judges, the possibilities to transfer judges against their will and the harsh consequences of a refusal, the regulation on early retirement of judges, etc.

"The Commission concludes that the essential elements of the reform – if they remained unchanged – not only contradict European standards for the organisation of the judiciary, especially its independence, but are also problematic as concerns the right to a fair trial under Article 6 of the European Convention on Human Rights.

More importantly, the Venice Commission takes the view that the new Hungarian Constitution should be amended "where necessary".

Up to now, the Hungarian authorities have shown some degree of flexibility as to amending some laws, but not the newly adopted Fundamental law.

"The Commission remains of the opinion that basic tenets of the independence of the judiciary including strong checks and balances should be regulated in the Constitution itself and that the Fundamental Law should be amended accordingly," the Venice Commission stated.

Next steps: 
  • 21 March: The Secretary General of the Council of the Council of Europe, Mr Jagland, will visit Budapest to discuss these two opinions – and a new report on media freedom that has been prepared by media freedom experts at the Council of Europe.
  • 7 April: Deadline for Hungary to respond to the Commission's two "reasoned opinions" and two "administrative letters".
EurActiv.com

COMMENTS

  • Quote - More importantly, the Venice Commission takes the view that the new Hungarian Constitution should be amended "where necessary".

    I can't remember ever voting for the VC, but have quite vivid recollection of voting for the current Hungarian government, amongst many reasons precisely to introduce this new legislation. Now just as a general principle of democracy: which institution (as an elected government) is supposed to exert any influence over national issues, the one elected by the people, for the people, or an outside body accountable to noone?

    By :
    Corrigator
    - Posted on :
    20/03/2012
  • Members of the EU are expected to follow EU directives to retain membership. Simple. If you want to do as you please, do so, but give up your EU membership first.

    By :
    Just Wondering
    - Posted on :
    21/03/2012
  • I’m sure, Corrigator, that you also can’t remember voting for President Pál Schmitt, who continues to function as Fidesz’s lapdog, rubber-stamping every document the government puts in front of him. Mr Schmitt was not elected by the people or for the people. Nor do you remember voting for Tünde Handó, Hungary’s new judicial czar, who has almost total control over Hungary’s judiciary. She hires judges and fires them; she evaluates judges and can reassign them at her own discretion. She can handpick judges to rule on specific cases. Most of her decisions cannot be appealed, and she is virtually unaccountable for her actions. Neither Schmitt nor Handó were elected by the Hungarian people, yet these two people, both appointed by Fidesz, wield considerable power within Hungary’s political system.
    All this populist claptrap about who is elected and who is not is by no means a general principle of democracy. It is pure and simple nonsense, just another attempt to divert Hungarians and other Europeans from the ruling party’s drive to acquire unassailable power. Every democracy has officials who are not elected by the people. Democracy is not mob rule; nor is it a spurious bauble to be hauled out by demagogues in order to dazzle their bewildered followers. Democracy involves much more than elections. To wit: accountability; transparency; checks and balances; majority rule, but only by including the minority and fully respecting minority rights; and separation of powers; but, above all, democracy requires action, not lip service. There is no need to continue this list here, but it does continue, and all responsible citizens will educate themselves in these matters. The raison d’etre of democracy is to establish and preserve institutions and values that limit and counterbalance the power of the state. Any concerted effort to increase the power of the state, an individual or a political party is, by definition, undemocratic. The duty of the press – a free press – is to criticize those in political power, not to attack them or praise them. A free press will keep the people sufficiently informed to allow them to exercise their responsibilities as citizens, and nothing is more able than a free press to keep politicians accountable.
    If you – Corrigator – are ignorant of European history and cannot understand the immense benefits all Europeans derive from EU membership (which is not to deny the fact that – like all organizations, including Hungary’s ’infallible’ ruling party – it has serious problems), then you may urge your fellow citizens to hold a referendum and vote to withdraw from the EU. First, however, it would only be right and proper to return the many tens (hundreds?) of billions of euros that Hungary has received from the EU. The country has benefited greatly from EU membership.
    There is also considerable noise coming from the ruling party and its supporters about Hungarians’ right to have their own constitution. This is true, but Hungarians do not have their own constitution. It is Fidesz’s constitution; it was written by them, and it is bloated with their ideology. The 12-item multiple choice questionnaire sent out last year does not constitute public involvement. The fact that public opinion polls have for some time now shown that only about 20% of Hungarians support Fidesz also belies the claim that the new constitution is a Hungarian constitution. This constitution has been forced on the country, just as the 1949 constitution (the so-called Stalinist constitution) was.
    Like a magician, Fidesz is accomplished at misdirection and sleight of hand. While supporters and detractors alike are busy following the ruling party’s right hand, the party is earnestly choking the country for its own benefit with its left hand. There is no end of specious pomposity and arrogant claims to moral and intellectual superiority. The reality is that you cannot blame, accuse or insult someone and yet fulfill your responsibilities at the same time. People can do one or the other, but not both. It appears that no one in Fidesz can open their mouth without attacking or blaming someone else for their failures. Yet the country is besieged by serious problems that seem to materialize out of thin air. Why didn’t anyone see these problems coming? Fidesz has taken its eye off the ball. They claimed for years that only they could solve Hungary’s problems, but they have not done this. We all know what happened during the Gyurcsány government, and no one is blaming Fidesz for creating the problems it inherited. Fidesz, however, has failed to live up to its promise to solve those problems. It appears that Fidesz is not even trying to solve those problems, and sadly it has become all too clear that the ruling party is very adept at creating new and quite profound problems. Hungary needs less deception, less self-serving rhetoric and less punitive vengeance. The country desperately needs governance. All Hungarians need this, not just the rulers and their supporters.

    By :
    Bab
    - Posted on :
    21/03/2012
  • "give up your EU membership first."

    As I have never approved it, there is nothing I can do about it.

    By :
    Corrigator
    - Posted on :
    21/03/2012
  • that you also can’t remember voting for President Pál Schmitt, who continues to function as Fidesz’s lapdog, rubber-stamping every document the government puts in front of him.

    Can't see the relationship between the VC and the Hungarian President, but obviously there is, surely interchangeable items in your mind. Funny, some things don't change - pretty much the same as the senile Göncz doing the same, but that was obviously "democratic".

    "First, however, it would only be right and proper to return the many tens (hundreds?) of billions of euros that Hungary has received from the EU. The country has benefited greatly from EU membership."

    Can we have our factories back then, too, that were purchased for the sole sake of market-buying, please?

    By :
    Corrigator
    - Posted on :
    21/03/2012
  • Corrigator, "As I have never approved it [EU membership], there is nothing I can do about it."

    You can become an activist and demand Hungary withdraw from the EU. Can you be bothered?

    By :
    awbMaven
    - Posted on :
    21/03/2012
  • [1] Corrigator says: ‘Can't see the relationship between the VC and the Hungarian President, but obviously there is, surely interchangeable items in your mind. Funny, some things don't change - pretty much the same as the senile Göncz doing the same, but that was obviously "democratic".’
    Really, dear Corrigator, I’ve given no indication that these items (as you say) are interchangeable in my mind. How presumptuous of you to think you know what’s in my mind! Have you forgotten your own words? Let me remind you: ‘Now just as a general principle of democracy: which institution (as an elected government) is supposed to exert any influence over national issues, the one elected by the people, for the people, or an outside body accountable to noone [sic]?’
    If you are as willing (and as generous) as I am to acknowledge your ability to communicate in English, the relationship is glaringly obvious. How can anyone (especially you!) miss your meaning? The issue you have defined is whether or not an unelected body, which you erroneously assume to be unaccountable, should have any influence over national issues. I made the point that Hungary has at least two prominent and powerful unelected (and therefore, according to you, unaccountable) bodies – or, owing to their singularity, officials – whose authority you do not challenge, while you are frantically champing at the bit to question the authority of other unelected (yet thoroughly legitimate and democratic) bodies. You have failed to distinguish between the two. What are your criteria? Why do you assume (wrongly) that all authorities in democratic political systems are elected? You have either slipped into hypocrisy or have been hoisted with your own devious petard. One way or the other, the rest of us are not as ill-educated and inexperienced as you assume.
    There is one further matter. As we are communicating in a public forum, may I request that you try to maintain an adult’s span of attention and stick to the subject? Former president Göncz, who enjoys considerable respect in the world beyond Fidesz’s shadow, has nothing to do with this issue. I am not the fallacious straw man you make me out to be. Can we stick to the topic? May we discuss the discussion? Or should we digress endlessly into your misconstrued fantasy until there is no discussion? Are we here to elucidate or to willfully misinterpret, deceive and evade?
    I will digress momentarily to inform non-Hungarian readers of Árpád Göncz, to whom you take some exception (to be honest, I can’t understand the sentence in which you refer to him, but you do seem to want to belittle him). Former president Göncz is a man of considerable political and literary achievement. Contrary to the “courageous” freedom fighters in Fidesz, Göncz actually did risk his life to challenge communist rule. He was active in 1956 and was arrested and sentenced to life imprisonment in 1957. (He was released after serving six years in prison.) Here is a true patriot, and, as is so often the case with true patriots, he is insulted by the do-nothing, big-mouth cowards who populate the current one-party system.

    [2] Corrigator says: "First, however, it would only be right and proper to return the many tens (hundreds?) of billions of euros that Hungary has received from the EU. The country has benefited greatly from EU membership." –– Can we have our factories back then, too, that were purchased for the sole sake of market-buying, please?
    Perhaps I was mistaken about Corrigator’s ability to communicate in English. Can anyone express Corrigator’s complaint in intelligible language? Either English or Hungarian will do. What does any of this have to do with factories? Why should “we” (who is/are this “we”?) get back something that was purchased (ostensibly from us)? What does “market-buying” mean in Corrigator’s sentence? Is Corrigator equating free handouts (billions from the EU) with legitimately purchased assets? Is this an attack on capitalism? Is Corrigator arguing that Orbán’s regime change has taken Hungary back to the days prior to the previous regime change? I’m truly at a loss with this one. On second thoughts, there is another possibility. If Corrigator has shifted the topic without telling us and is referring to the rampant corruption during the age of privatization in the 1990s, then he has a legitimate point.
    What motivates the endless invective and frequently self-contradictory and hare-brained attacks that are what the ruling party calls the Fidesz style? Sadly, even Corrigator has embarrassed him/herself with this adolescent nonsense. Why do they do it? I would suggest that these people feel guilty for not challenging communism until it was all over. They cannot bear the fact that the Hungarian communist party (the Hungarian Socialist Workers' Party) dissolved itself, dismantled its own communist regime in Hungary and pulled down the Iron Curtain with no help from anyone else. The self-righteous indignation that sends nationalists into an altered state of mind when anything about the past comes up (which is all the time these days) is merely an attempt to compensate for their failure to risk anything to end communism in Hungary. Most of the patriots at this point in the story are the communists themselves. The truly courageous dissenters from the communist age are, by and large, critical of Fidesz, and their writings can be found in English on the Internet.
    Disclaimer: I should reveal at this point that I am by no means pro-communist or even pro-socialist, and I support all of Fidesz’s announced goals. I merely disagree with the ruling party’s thorough dishonesty and its adolescent whining, both of which appear to have replaced its goals. As I wrote previously, you can only do one thing at a time: either govern the country or dissemble, complain and accuse. No one can serve two masters.

    By :
    Bab
    - Posted on :
    22/03/2012
  • Well done, Bab! Get the point Corrigator? I doubt it, though...

    By :
    Anonymous
    - Posted on :
    25/03/2012
Council of Europe, Strasbourg
Background: 

Hungarians voted overwhelmingly in April 2010 for a radical change in leadership, sending the ruling Socialists into opposition and giving the centre-right a qualified majority in parliament.

The election marked the biggest victory for any political party in a general election since the fall of communism 21 years earlier. However, several measures put in place by the new government have since fuelled controversy.

A controversial new constitution that entered into force on 1 January brought tens of thousands of protestors. They believe it undermines the independence of the central bank, the judiciary and the news media.

On 7 March, the European Commission has opened the second stage of two infringement procedures against Hungary for government interference in the judiciary and in the data protection authority. The next step could be a referral to the European Court of Justice.

The decision appears as another blow to Hungarian Prime Minister Viktor Orbán, who was slammed two weeks earlier with the threat to lose part of his country's regional funding for failing to correct its excessive deficit.

In the meantime, the war of words between Orbán and the European Commission escalated.

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