EU ministers urged by RSF and its partners to address a decade-long campaign to dismantle Hungary’s independent media

Brussels, 18 May 2022 

 

Joint Letter from Civil Society Organisations to EU Governments 

Article 7(1) TEU Hearing on the Rule of Law, Democracy and Fundamental Rights in Hungary 

 

Dear Minister, 

We write to you ahead of the EU General Affairs Council’s meeting on 23 May 2022, where you will hear  the Hungarian government speak on the situation of the rule of law and other Article 2 TEU values in  Hungary.  

The hearing takes place at a time when the importance of the rule of law, democracy and fundamental  rights across Europe is in ever sharper focus. Fidesz’s recent re-election, leading to Viktor Orbán’s fourth  successive term as prime minister, provides a critical opportunity for Member States to act firmly and swiftly  to protect EU values. 

The upcoming hearing is an important opportunity to raise key concerns with a view to adopting urgent  recommendations and holding a vote regarding the clear risk of a serious breach of EU values in Hungary. 

 

BACKGROUND 

Next week’s hearing will be the fourth hearing on Hungary since the activation of the Article 7(1) TEU procedure  in September 2018. As recalled by the Court of Justice of the European Union (CJEU) in its judgment of 16  February 2022: ‘The purpose of the procedure laid down in Article 7 TEU is to allow the Council to penalize  serious and persistent breaches of the values contained in Article 2 TEU, in particular with a view to  compelling the Member State concerned to put an end to those breaches.’ 

On 5 May 2022, with an overwhelming cross-party majority, the European Parliament adopted a resolution calling on EU Member States to adopt concrete recommendations under the Article 7(1) procedure, with a  clear deadline for their implementation and a view to identifying a clear risk of a serious breach of EU values  under Article 7(1).  

Since September 2018, violations of fundamental rights in Hungary have escalated, persistently eroding the  democratic principles of the EU which Hungary has committed itself to. If these trends are not stopped a  definitive collapse of EU values in Hungary is foreseeable. 

 

KEY ISSUES 

The hearing on 23 May coincides with three recent developments: i) the renewal of the political mandate  of Fidesz following the April 2022 general election; ii) the proposal of the new government to amend the  constitution to create a new ‘state of danger’; and iii) the decision of the European Commission to trigger  the rule of law conditionality mechanism against Hungary. These developments link to three key sets of  issues that we urge you to raise at the hearing. 

 

THE APRIL 2022 GENERAL ELECTION AND LGBTQI REFERENDUM 

The preliminary conclusions of the full-scale OSCE electoral observation mission to Hungary indicated that  both the election and the referendum ‘were well administered and professionally managed but marred by  the absence of a level playing field’. The OSCE reached a similar conclusion in 2018, which suggests that  without serious corrective measures, recurrent structural failures will remain and continue to further  undermine Hungary’s future electoral integrity. In the OSCE’s assessment: 

• the ‘bias and lack of balance in monitored news coverage and the absence of debates between major  contestants significantly limited the voters’ opportunity to make an informed choice’. This  assessment raises acute concerns related to the right to political participation and media freedom in Hungary; and 

• the anti-LGBTQI referendum, was marred by a legal framework that was ‘largely inadequate for the  conduct of a democratic referendum’ and ‘did not provide for a level playing field.’ Even though the referendum was invalidated through a record number of abstentions and invalid votes, the  government still publicized and utilized the results.  

The unbalanced media coverage of the electoral campaign, coupled with disinformation generated by  Russian Federation operatives, highlights the lack of transparent, independent and effective media  regulation. In the last weeks, reminiscent of action against Klubradio, the Media Council refused to renew  the broadcasting license of another independent station Tilos Radio. Hungarian authorities are suspected  of arbitrarily using Pegasus spyware against at least three Hungarian journalists. The government  extensively used the COVID-19 pandemic as cover to introduce measures that disproportionately target  independent media and have a chilling effect on journalists.  

After the referendum, the National Electoral Commission fined organisations who campaigned to invalidate  the referendum. Related civil society challenges to the Kúria (Supreme Court) resulted in some fines being  dismissed while others were upheld, leading to legal uncertainty about the legality of such campaigns under  Hungarian law.  

We urge you to ask how the government plans to address the concerns of the OSCE, particularly those  stemming from a decade-long campaign to dismantle Hungary’s free and independent media and curb  the right of the opposition to campaign in elections. In addition, we call on you to question the protection  of freedom of expression and civic space, including in the electoral context. 

 

LEGAL AND JUDICIAL CHALLENGES 

The Government has used successive emergencies as a pretext to bypass democratic control and vest itself  with virtually unlimited power to rule by decree. On 3 May 2022, with no consultation and ahead of the  expiration of the COVID-19 emergency legislation, the Minister of Justice submitted a bill to transform the  constitutional system of special legal orders and authorize the Government to declare a ‘state of danger’ in  the case of an ‘armed conflict, war or humanitarian disaster in a neighbouring country’. This was  accompanied by another bill aimed at allowing the Government to maintain its excessive regulatory powers  acquired under the COVID-19 pandemic. Together they provide the government with a extremely broad  mandate to override acts of parliament and legislate via emergency decree. Amending the Constitution to  bend the legal system towards Fidesz’ desired policy outcomes, has been one of their long-standing  strategies to subvert constitutional order and install an illiberal regime. 

At the same time, Hungary has consistently failed to implement domestic and regional court judgments.  Over the last ten years, 71% of leading cases from the European Court of Human Rights (ECtHR) against  Hungary are pending execution. At least three recent rights-based judgments from the CJEU remain  unimplemented. In November 2021, the European Commission requested the CJEU to impose financial  sanctions on Hungary for failure to comply with a 2020 judgment in relation to EU rules on asylum and  returns. The 2021 judgment condemning the criminalization of organisations assisting migrants (the ‘Stop  Soros’ law) remains unimplemented. In addition, Hungary adopted a restrictive transposition of the Council  decision on the Temporary Protection Directive resulting in a discriminatory policy towards non-Ukrainian  refugees. As it stands, the Hungarian asylum system remains incompatible with the EU acquis and makes it  virtually impossible for people seeking international protection to obtain long-term refugee status. 

The non-implementation of judgments links to longstanding concerns under the Article 7(1) process  regarding the independence of the judiciary. The centralisation of the administration of courts has led to a  situation where the most powerful positions, namely the President of the National Office for the Judiciary  and the President of the Kúria, are elected by the legislature without any judicial involvement. The election  of the current President of the Kúria, was met with criticism by the UN Special Rapporteur on the  independence of judges and lawyers, who stated that the appointment ‘may be regarded as an attack to  the independence of the judiciary and as an attempt to submit the judiciary to the will of the legislative  branch, in violation of the principle of separation of powers’. 

We urge you to question the government on the consistency of the new bills on the ‘state of danger’ with  international standards, namely on their necessity and proportionality. We also call on you to ask  Hungary about the implementation of CJEU and ECtHR judgments, particularly in relation to the asylum  system and the ‘Stop Soros’ legislation and to respond to long-standing concerns on the independence of  the judiciary.

 

THE RULE OF LAW CONDITIONALITY MECHANISM 

On 27 April, the College of Commissioners approved the activation of the Rule of Law Conditionality  Regulation with regards to Hungary, pointing to ‘the systemic irregularities and deficiencies in the  management of Union funds that directly affect the EU budget, including systemic irregularities in the areas  of public procurement, conflict of interest, public interest trusts, lack of independent investigation and  prosecution.’ This decision, concerning the protection of the whole EU budget, following the previous move  not to approve the Hungarian recovery plan, is testament to the gravity of rule of law concerns that fall in  the scope of the Article 7(1) procedure. 

While the Rule of Law mechanism may contribute to the protection of the EU budget, it is unfit to address  the wider concerns about state capture of public funds in Hungary. 

The award by the Hungarian government of a 35-year long motorway concession to a consortium of private  equity funds, whose ultimate beneficiaries are obscure, is an example of how the government captures  resources in an opaque manner that could mask corruption. This highlights the near total opacity of the  system of allocating public funds, which is further exacerbated by the 2020 extension, of the statutory  deadline to reply to freedom of information requests, undermining the right to freedom of information.  

At the same time high-level corruption allegations remain uninvestigated or stalled. The most prominent  omission occurred in the so-called Elios case, where the questionable absorption of EUR 43 million, by a  company that belonged partly to the Prime Minister’s son-in-law, was investigated but did not result in  prosecution in Hungary despite findings by OLAF of corrupt practice. 

We urge you to ask the government to elaborate on how it plans to reform the anti-corruption framework to ensure transparency of all public funds, both those under examination through the Rule of Law  Conditionality Mechanism and those within the wider national budget. 

 

These developments all highlight persistent, structural and interrelated deficiencies with the respect for  democracy, the rule of law and fundamental rights in Hungary and point towards the need for urgent action.  It is the collective responsibility of all EU institutions to uphold the Union’s founding values. We thus  reiterate our long-standing calls to the Council and urge you to use the upcoming Article 7 hearing to seek  necessary inputs ahead of adopting recommendations under Article 7(1) TEU and a vote to determine of  a clear risk of a serious breach of the values referred to in Article 2 TEU. 

We stand ready to provide any further information you may require. 

Yours sincerely, 

 

SIGNED:

Amnesty International 

FIDH (International Federation for Human Rights) 

Human Rights Watch 

Hungarian Helsinki Committee 

International Commission of Jurists  

Netherlands Helsinki Committee  

Open Society European Policy Institute 

Reporters Sans Frontières 

Transparency International EU