by Luigi LIMONE (FREE Group Trainee)
This BLOG has already published or reblogged several posts on the worrying situation of fundamental rights and rule of law principle in Hungary. The most recent tense debate of the European Parliament on this issue took place in the presence of Hungarian Prime Minister Viktor ORBAN in Strasbourg on April 27. It has been widely relayed by the press (See the video stream here ) and rumors on the possible expulsion of the Fidesz party from the EPP political family have not been confirmed by the facts.
However also the LIBE committee which is in charge of protection of fundamental rights and values follows closely since several years the situation in Hungary and its last hearing on the subject took place on February 27,2017. (see below)
Hearing on “The situation of fundamental rights in Hungary” (27 February 2017)
In June 2016, Hungary’s President János Áder signed into law a package of draconian counter-terrorism measures, including a “sixth amendment” to the Constitution and amendments to laws governing the police, national security services and defence forces. The aim was to streamline the process to declare a state of emergency.
The package entered into force on 1 July 2016. Its measures rely on an extremely vague concept, a “terror threat situation”. This “terror threat situation” gives the executive wide-ranging powers that risk violating Hungary’s international human rights obligations. Such a vague definition violates the principle of legality, according to which the law is to be formulated in clear and unambiguous terms.
The police, other law enforcement officers and the military are permitted to use lethal force in a “terror threat situation”. In addition, the “sixth amendment” provides for wide scope for sweeping restrictions on the rights to freedom association and peaceful assembly, privacy and freedom of movement.
Hungarian authorities have been particularly aggressive in their attempts to draw a link between refugees and the threat of terrorism. Since 2015, the Hungarian government has taken concrete steps toward keeping refugees out of the country and it has invoked a “crisis situation due to mass immigration”, a distinct state of emergency empowering the police and military forces to “assist” the asylum authorities.
At the same time, amendments to the Criminal Code have led to the criminalization of refugees and migrants who entered Hungary irregularly through its southern border fence, instituting a wide rage of sanctions, including prison sentences and mandatory expulsion.
Eleven people have been convicted for illegal crossing of the border fence aggravated by alleged participation in mass riot. They were part of a larger group of refugees and migrants stranded at the border between Serbia and Hungary on 16 September 2015, the day after Hungary moved to completely close its southern border. All of them, including a blind elderly Syrian woman and a wheelchair-bound Syrian man living with a disability, were alleged to have participated in a mass riot in their attempt to enter the country unlawfully.
In November 2016, one of the eleven, Ahmed H. from Syria, was convicted for committing “acts of terror” and was sentenced to ten years in prison and final expulsion from Hungary. He was found guilty of using a megaphone to request that the police communicate with the refugees and migrants at the border and of throwing objects at them.
According to the government’s chief spokesman, Zoltán Kovács. Hungary will submit proposals to the EU to protect Europe’s borders by automatically detaining any asylum seeker for the whole period of their asylum application. At a briefing in London, Kovács said that anyone seeking asylum through Hungary would be kept in “shelters” for the whole period of their application, even though they would be free to go back to their own country at any point.
As regards the right to privacy, the Hungarian system of surveillance employed by the Anti-Terrorism Taskforce was found contrary to European human rights law by the European Court of Human Rights (see Szabo and Vissy v. Hungary). The taskforce had been given broad surveillance powers, including opening correspondence and reading electronic communications. The Minister of Justice can order such surveillance on any individual on the basis of national security, without prior judicial authorization and without requiring the taskforce to produce any evidence to support its request. The Court concluded that the Hungarian law endowing the Anti-Terrorism Taskforce with these surveillance powers violated the right to privacy, as there were insufficient legal safeguards to ensure protection against abuse.
Faced with this complex situation, on 16 November 2016 the LIBE Committee decided to set up a hearing to present a comprehensive picture on the situation of fundamental rights in Hungary. The hearing took place on 27 February 2017.
Following the opening remarks by Claude Moraes, Chair of the LIBE Committee, László Trócsányi, Minister of Justice of Hungary, took the floor. He clarified that the Hungarian government had always been open to dialogue and that Europe was facing a phase of deep uncertainty intensified by the Brexit, the terrorist threat and the migration crisis.
In his opinion, the migration crisis is one of the most serious challenges Hungary is facing, since the country is placed at the external border of the EU. He said that Hungary was taking huge responsibilities to protect the EU borders in an efficient manner. According to him, all the EU institutions and Member States have to put themselves the same goals for an effective protection of the Schengen system. In order to overcome the migration crisis, the EU needs to fight against irregular immigration as well as migrant trafficking, stop the tendency to mix up economic migrants and refugees and identify safe countries, as in the case of Turkey.
Miklós Szánthó, Director of the Centre for Fundamental Rights, a pro-government NGO, dealt with the situation of democracy in Hungary and in the EU. He said that democracy, including fundamental rights and the rule of law, still existed in Hungary and that was proven by the existence of a Constitution as well as legal and transparent procedures. In his opinion, there exists no comprehensive definition of democracy within the EU, apart from two elements which have been affirmed as fundamental marks of democracy, namely free elections and equal division of powers. He said that those elements were concretely realised in Hungary and that the EU, as provided by art. 4(2) TUE, should respect the way in which each Member State interpreted democracy and its values in compliance with its own perception of sovereignty. According to him, only Member States are entitled to frame their own legal framework relating to the protection of democratic values and fundamental rights and the EU should not impose supranational visions on national authorities.
According to Todor Gardos, Researcher at Amnesty International, the European Parliament should continue to put pressure on the Council and ask for clarifications about the situation in Hungary, since a number of serious threats to fundamental rights have been reported in the country over the last few years, such as uncontrolled use of imprisonment, weakness of the judiciary, restrictions on asylum and refugee rights, lack of protection for religious and ethnic minorities. For him, the most urgent threat is linked to the exceptional measures adopted by the government since 2015 with the aim of pushing refugees and migrants back at the Hungarian border with Serbia. Such measures could have extremely negative impact for vulnerable categories and children, which are massively sent to Serbia.
Gardos said that Amnesty International was extremely worried about the situation in Hungary, where refugees and migrants are more and more associated to criminals and terrorists. He mentioned, in particular, the story of Ahmed H, a Syrian national, living in Cyprus, who went to the border fence between Hungary and Serbia to help his parents enter into Europe to find international protection. Ahmed H. was arrested by the Hungarian police. He was accused of committing an act of terrorism, even though some videos have shown that he was just using his megaphone to talk with the Hungarian authorities and invite them to open the border. Hungarian criminal law is becoming increasingly stricter. The government is targeting Hungarian nationals nationals as well, on the pretext of controlling threats to national security and preventing terrorism.
In conclusion, Gardos said that Amnesty International was calling on the European Parliament to continue to supervise the situation of fundamental rights in Hungary and, if necessary, ask for a visit to Hungary, in order to put pressure on the Hungarian criminal law system, with regard to trial transparency in particular.
Stefánia Kapronczay, Executive Director of the Hungarian Civil Liberties Union, touched on two basic issues concerning fundamental rights in Hungary:
- a) freedom of expression. She said that the Hungarian government was increasingly restricting the national media market and limiting freedom of expression for civil society and NGOs with censorship and sanctions. For instance, several journalists were denied access to refugee camps during the crisis in 2015;
- b) the situation of active citizenship in Hungary. She reported several cases of silenced criticism, defamation against journalists as well as civil society activists and stigmatisation of civil organisations. She also said that the government was exercising strict surveillance over active citizenship and civil participation, with regard to NGO foreign funding in particular.
For Marta Pardavi, Co-Chair of the Hungarian Helsinki Committee, the most serious issue in Hungary right now is the respect for refugee human rights. She noted that Hungary was performing massive returns of migrants to Serbia, on the assumption that the latter was a safe country of origin or transit, and that in 2016 the government had decided to adopt further measures to deter migrants by closing access to protection. As a consequence, asylum seekers and migrants are now stranded in Serbia under inhuman and degrading conditions, since the situation in Serbia is becoming increasingly difficult due to overpopulation of refugee camps. She raised serious concerns over the abuses on migrants by the Hungarian authorities at the border with Serbia. Such abuses have been criticized by Frontex as well, but the Hungarian government has always refused to go into deep examination of what is happening at its border.
Whereas it is true that the Hungarian government has been elected under democratic principles and it should, therefore, be recognised as legitimate, a democratic society should always respect pluralism, human rights, freedom of expression and the rule of law.
Like in Poland, a deterioration of the rule of law has been reported within the Hungarian society. The amendments to the Constitution and the new measures adopted by the Hungarian government since 2010 have had an adverse impact on human rights across sectors and have negatively affected the separation of powers, an essential element of democracy and the rule of law. All counter-powers, from the judiciary and the legislative power to media and civil society have been systematically weakened or brought under control of the executive. Most laws are pushed through via fast-track procedures, which bypass democratic rules and limit parliamentary and public debate and stakeholder participation.
The amendments to the Constitution have been introduced to create a favourable framework for the adoption of new measures which risk violating fundamental rights, especially for refugees. The alleged connection between migration and terrorism has led to new discussions concerning the adoption of a new law on detention. For many years, Hungary has been notorious for applying asylum detention very frequently. Actually, since 2015 detention has become the rule and detention measures were justified on the pretext of fighting terrorism and preventing threats to national security.
The Hungarian government has the duty to protect human rights during border control measures and provide access to effective procedures. The adoption of a new law on detention would undermine refugee and migrant human rights and should, therefore, be avoided. Detention of asylum seekers should be a measure of last resort based on proportionality and deprivation of liberty should always be accompanied by adequate safeguards, such as individual examination, access to legal aid and the right to an effective remedy.