April 15, 2011

Dear Prime Minister Orbán,

I am writing on behalf of Human Rights Watch to express our concern in relation to aspects of Hungary's draft constitution.

As the constitution will be the fundamental document establishing the rule of law in Hungary and will be the governing document for the Hungarian courts, parliament and executive, it is important that it is in line with Hungary's obligations under international and European human rights law. We believe that the constitution falls short in protecting and respecting human rights in a number of areas, three of which we address below: the rights of people with disabilities, women, and lesbian, gay, bisexual and transgender (LGBT) people. We are also concerned about the reported lack of transparency and the exclusion of human rights groups in consultations over the drafting of the constitution to date.

Human Rights Watch is concerned that the draft constitution limits the opportunities for political participation for people with disabilities, particularly their voting rights. Article XIV of the draft constitution rightly states that everyone has legal capacity and that no one should be discriminated against on the basis of disability in exercising rights.

However, Article XXI of the draft constitution undermines this principle by stating that a judge can take away the right to vote from those with "limited mental ability." Although this provision may be an improvement from current Hungarian law, which summarily deprives individuals under guardianship of the right to vote, this provision stills falls short of international human rights standards because it could lead to the denial of the right to vote for many people with intellectual or mental disabilities, solely based on their disabilities.

The right to vote is the basis of political participation for all citizens in a democratic society and is contained in a number of international treaties, including Article 3 of Protocol 1 of the European Convention on Human Rights (ECHR).

In 2010, the European Court of Human Rights called on Hungary to improve its laws and practice concerning the right to vote for people with disabilities. In the case of Kiss v. Hungary, the Court found that Hungary was in violation of Article 3, Protocol 1, by enforcing a blanket provision in its domestic law that stripped voting rights from all individuals under partial guardianship, including people with disabilities.

Although the Court's decision did not entirely close the possibility to strip some people with disabilities of their right to vote, the UN Convention on the Rights of Persons with Disabilities (CRPD) fills that gap. Article 29 of the CRPD contains provisions that specifically guarantee the right to vote for all people with disabilities, obliging states parties to "ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others . . . including the right . . . to vote and be elected." The CRPD also stipulates in Article 12 that states parties "shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life," which includes voting and political participation. Hungary was the second country in the world to ratify the CRPD in 2006 and has an obligation to abide by its provisions, including in its constitution.

European human rights bodies have also issued authoritative interpretations of the right to vote for people with disabilities and have called on states to protect this right. In October 2010, the EU Fundamental Rights Agency issued a report outlining best practices of political participation for people with disabilities and concluding on the basis of the CRPD and European standards that the right to vote is "a fundamental right that all citizens of the Union should be able to enjoy, on an equal basis" and without regard to disability. Similarly, in March 2011, the Council of Europe's human rights commissioner Thomas Hammerberg stated on the basis of the CRPD that the right to vote for people with disabilities should be protected in all circumstances and that instead of being stripped of this right, individuals should receive support when needed in exercising it.

Based on Hungary's obligations under international and European human rights law, Human Rights Watch urges you to amend Article XXI of the draft constitution to omit restrictions on the right to vote for people with disabilities and ensure in legislation and practice that people with disabilities can receive support in exercising all of their basic rights.

Human Rights Watch is also concerned about Article II of the draft constitution, which states that "the life of the fetus shall be protected from the moment of conception." This provision may unduly limit the rights of women by allowing for unjustified restrictions on a woman's access to abortion and some types of contraception. Article II of the draft constitution would open the door for a departure from current Hungarian law on the right of women to choose and access abortion in the first trimester, and could lead to the Constitutional Court overturning this law. It is also out of step with European and international human rights instruments.

As Human Rights Watch has noted in its work in Latin America and in Ireland, restricting access to abortion and contraception jeopardizes a number of human rights for women, including the rights to life, health, liberty, non-discrimination, physical integrity, freedom of expression, and the right to be free from cruel, inhuman, and degrading treatment. A host of UN human rights expert bodies, including the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of All Forms of Discrimination against Women, the Convention Against Torture Committee, and the Committee on the Rights of the Child, share this interpretation. In their commentaries these bodies have frequently expressed concern about the relationship between restrictive abortion laws and provisions, clandestine abortions, and threats to women's lives, health and well-being. The UN expert bodies have also consistently linked a pregnant woman's right to decide about abortion without interference with her right to nondiscrimination and to equal enjoyment of other human rights.

Article II of the draft constitution as written calls into question Hungary's commitment to respect women's human rights. We urge you to amend the constitution to ensure respect for women's reproductive rights and the need to protect women from discrimination and other human rights violations.

Additionally, Human Rights Watch is concerned that the draft constitution lacks protections against discrimination based on sexual orientation or gender identity. Article XIV prohibits discrimination based on a number of characteristics, including "race, color, sex, disability, language, religion, political or other opinion, national or social origin, wealth, birth or any other circumstance whatsoever." This otherwise extensive list notably excludes reference to discrimination based on sexual orientation or gender identity, relying instead on interpretation to ensure that sexual orientation and gender identity are included in "any other circumstance." This is a notable omission given that sexual orientation is explicitly referred to in the non-discrimination provision of the EU Charter of Fundamental Rights (article 21). 

In addition, Article K of the draft constitution enshrines discrimination based on sexual orientation by defining marriage as between a man and a woman and leaving open the possibility that marriage may be the basis for the only type of "family" protected by the state.

The right to marry is a basic human right enshrined in both Article 12 of the ECHR and Article 9 of the European Union Charter of Fundamental Rights, as is the right to respect for private and family life in Articles 8 and 7 respectively. The right to equality and to be free from discrimination is also stipulated in article 14 of the ECHR and articles 20 and 21 of the Charter. 

In Kopf v. Austria in 2010 the European Court of Human Rights observed that a same-sex couple in a stable relationship constitutes "family life" under Article 8. Article K of Hungary's draft constitution as written goes against this European Court ruling by explicitly excluding same-sex couples from the only protected version of "family life" in Hungary-marriage-thereby excluding the family of same sex couples from constitutional protection. 

Hungary's commitment to non-discrimination for LGBT people is called into question by Article K and the lack of reference to sexual orientation and gender identity as protected characteristics in Article XIV of the draft constitution. We urge you to amend these articles to ensure that the rights of LGBT people are protected.

Human Rights Watch is also deeply concerned about the lack of transparency in the process of drafting the constitution, as well as the exclusion of opposition and civil society groups from the process and the rushed schedule for its drafting and passage. These concerns were also raised by the Venice Commission in its 28 March assessment following questions you posed to the Commission about the draft constitution. The Commission concluded that "a wide and substantive debate involving the various political forces, nongovernment organizations and citizens associations, the academia and the media is an important prerequisite for adopting a sustainable text, acceptable for the whole of the society and in line with democratic standards" and that "transparency, openness and inclusiveness, adequate timeframe and conditions allowing pluralism of views and proper debate of controversial issues, are key requirements of a democratic Constitution-making process." Openness and transparency in policymaking are also essential to ensuring respect for human rights.

According to reports from civil society organizations in Hungary, these elements have been lacking to date in the process of drafting and adopting the new Hungarian constitution. We urge you to delay the process of adopting a new constitution until there is an adequate opportunity for opposition and civil society groups to be included.

Thank you for your time and attention to these concerns. We would be happy to discuss them with you further.

Sincerely,

Rachel Denber
Acting Director
Europe and Central Asia Division