Erlend M. Leonhardsen is a Research Fellow at the Faculty of Law at the University of Oslo. Dag Sørlie Lund is an associate lawyer at Steenstrup Stordrange Law Firm in Oslo.
”'Our Aim is One Europe'. That was the bold statement made by the countries joining the EU in the 2004 eastern enlargement. The recent development in Hungary questions its continued commitment to this aim.
The Hungarian constitutional order introduced 1 January this year stands trial. The country must defend itself against the EU's allegations that the country is infringing EU law for disrupting the independence of the Central Bank and the data protection authority, forced early retirement of all judges above the age of 62, the independence of judges in criminal trials, nationalisation of private pension funds, the rights of religious and ethnic minorities and the freedom of the press. Thus the Hungarian constitutional order presents a challenge to the European rule of law.
The Commission has initiated infringement proceedings against Hungary over breaches of EU law, and the Council of Europe (CoE) has criticized the Hungarian Government for breaching the European Convention on Human Rights (ECHR). An astonishing 8,000 individual claims have been filed to the Strasbourg Court since December. In addition the United Nations High Commissioner for Refugees (UNHCR) has recently criticized Hungary for its treatment of asylum seekers. Excessive use of handcuffs and leaches, verbal and physical abuse and forced use of tranquilizers are among the complaints mentioned in the UN report.
Hopefully these efforts will bring Hungary back in line with the fundamental European values the country has committed itself to through accession to the EU in 2004 and to the CoE. Should Hungary's trajectory towards totalitarian rule once more continue, both institutions have weapons of last resort that may be imposed.
Both the CoE and the EU were responses to the horrors of Europe’s former authoritarian regimes, reflected in the legal instruments underpinning both organizations. Indeed, the ECHR was envisioned early on as the Community rights document.
The Statutes of CoE Article 3 requires that a country accepts the “principles of the rule of law, and the enjoyment by all persons […] of human rights and fundamental freedoms” as a member. Similarly, TEU Article 2 demands “respect for human dignity, freedom, democracy, equality, rule of law and […] human rights including the rights of minorities”.
These two sets of obligations are further merged in the EU’s dedication to the ECHR through TEU Article 6, and its imminent accession to the ECHR itself. By joining the CoE and the EU, Hungary too has committed to these values.
This nexus between human rights, democracy and the EU is an old one. From Schuman's pledge that the Community was open to all free European states; through the suspension of negotiations with Greece after the coup in 1960s and the refusal of letting Spain and Portugal join while they were dictatorships; via more elaborate conditionality requirements in the late 70s; to the Stuttgart declaration of the 80s; to the gradual treaty codifications in the 90s; to the Haider failure; to the Eastern enlargement requirements and the Lisbon solidification; the history is long and the direction is clear.
Less clear perhaps are the consequences awaiting Hungary upon these breaches of fundamental European values.
In addition to losing massively in the ECJ and the ECtHR, the country risks organizational sanctions. The Statutes of CoE Article 8 opens up for the suspension of a country’s rights of representation if it has “seriously violated” its values. Expulsion is the last resort.
Similarly Article 7 TEU makes it possible to suspend “certain of the rights” deriving from EU membership including voting rights.
In this assessment the values mentioned in article 2 will play a significant role. Moreover, so will CoE suspension. In our opinion compliance with the ECHR also serves as a key benchmark of Article 2 TEU fulfillment.
The CoE Convention on Minority Protection, too, strongly informs the interpretation of the minority protection criterion of Article 2. Hungary's law on permissible religions seems dubious with respect to several of this Convention’s provisions. This entails that the normative content of the Article 2 may have been breached.
Many have argued for the use of article 7, and that Hungary should be stripped of its EU voting rights. Should this happen, it will be the first time a member of an international organisation is excluded as a result of undemocratic practices. The yardstick is first and foremost Europe’s human rights instruments.
Hungary represents the first real challenge to the political ambitions of the EU. The outcome is uncertain, but the obstacles currently in place to avoid drifts towards authoritarianism, give cause for optimism. These obstacles are unique in modern international organizations and stands testimony to how deeply embedded the nexus between liberal democracy and human rights is in today's Europe. But while this nexus is, on paper, truly exceptional, its real utility will play out in the coming months."