May 16, 2013

III. Limitations on Rights

Limitations on Political Participation

The new constitution restricts persons with “limited mental capacity” from exercising the right to vote. It also restricts persons with intellectual or psychosocial disabilities from voting if they have been deprived of legal capacity on the basis of a disability. [32]

The United Nations Committee on Rights of Persons with Disabilities, the expert body set up to oversee states’ compliance with the Convention on the Rights of Persons with Disabilities, in its September 2012 concluding observations on Hungary, expressed serious concerns about the provisions that exclude those with “limited mental capacity” from exercising the right to vote.  It recommended that “all relevant legislation be reviewed to ensure that all persons with disabilities regardless of their impairment, legal status, or place of residence have a right to vote, and that they can participate in political and public life on an equal basis with others.” [33] The committee requested that the Hungarian government submit a second periodic report by August 2014 with information on the implementation of its recommendations. The government had yet to respond publicly at this writing.

In November 2012 the government adopted a law on mandatory voter registration that may restrict the right to vote. [34]

In January 2013 the Constitutional Court deemed the registration requirement an undue restriction on voting rights and struck down the law.[35] The government subsequently stated that it would drop plans to introduce mandatory pre-voting registration in advance of the 2014 elections. Had it been enforced, the mandatory voter registration system would have risked excluding certain vulnerable groups from voting, e.g. those residing in remote areas with long travel to public notaries as well as the poorest and most vulnerable groups in society, such as homeless and members of the Roma community.

Limitations on Freedom of Religion

As a result of the constitution and cardinal laws that entered into force on January 1, 2012, 348 of 362 religious organizations previously recognized as “churches” under domestic law were automatically deregistered. The affected religious organizations were required to reapply for registration by the end of February 2012. Not all organizations met the deadline. Under current rules, the registration process, previously carried out by county courts, sits with a parliamentary committee controlled by the ruling party. Only 18 previously recognized churches were permitted by parliament to reregister and a further 66 were denied.[36]

Under the changes, to be recognized as a church, a religious group must meet two requirements. First, it must submit a document signed by a minimum of 1,000 people. Second, the group needs to have existed for at least 100 years internationally or in an organized manner as an association in Hungary for at least 20 years. Among those deregistered under the new requirements were a branch of the Methodist Church and the Dzsaj Bhim Buddhist congregation involved in social work with the homeless and members of the Roma minority. The March 2013 constitutional amendments permit the government to establish additional requirements for religious organizations to be registered as churches. These requirements would have to be introduced through a cardinal law. The proposed requirements are extremely vague: religious groups would have to enjoy societal support and cooperate within the interest of community objectives. In April 2013 the government submitted a proposal to parliament for a legal amendment to increase the minimum number of members for registration from 1,000 to 10,000 people.[37]

If a religious group cannot register as a church, the alternative is to register as a religious association and adhere to stringent criteria governing the internal structures of religious groups.

This has particular relevance for religious groups whose loss of registered status involves loss of state funding for social, healthcare, and educational services they provide to vulnerable groups in Hungarian society because religious associations do not benefit from access to state funds in the way religious groups recognized as churches do.

Representatives of two religious groups told Human Rights Watch that they had difficulties in meeting the criteria of a church and were not informed why their applications for registration were rejected. Human Rights Watch documented cases in 2012 where religious groups involved in social work largely financed by state subsidies (such as a branch of the Methodist Church and the Dzsaj Bhim Buddhist congregation) were stripped of their status as denominations, a measure which severely impacted their ability to continue social work including for the homeless and members of the Roma minority.

In October 2012 the Constitutional Court, on procedural grounds, declared unconstitutional a provision in the cardinal law that gave parliament the power to recognize churches and determine criteria for recognition. [38] On February 26, 2013, the Constitutional Court in a separate case brought by 17 religious groups held the same provision unconstitutional on the basis that recognition of churches was conducted by a political body, the parliament, instead of an impartial court. Under international human rights law, such a process must involve a fair hearing before an independent and impartial tribunal, a standard not met by a parliamentary committee.  The Constitutional Court declared the decision effective with retroactive effect, meaning that the 17 groups regained their status as churches. [39]

According to the Hungarian Civil Liberties Union (HCLU), a local human rights organization that acted for some of the groups in the February 2013 case, the legal effect of the ruling should apply to all religious groups stripped of their status as churches in February 2012. [40] According to the Hungarian Helsinki Committee, another local human rights organization, the 17 religious groups have yet to be added to the list of registered churches. [41]

The March 2013 constitutional amendments change the way religious organizations are registered in Hungary allegedly to prevent the misuse of state funds granted to registered churches. However, notwithstanding the responsibility the government has to ensure financial accountability for state funds, current regulations, and the manner in which they were introduced, fail to respect basic standards on both religious freedom and due process.

As currently amended, article 7 of the constitution emphasizes that denominations may be recognized by parliament in a cardinal law. It also says that parliament can determine the criteria for such recognitions. The decision to grant status can be appealed as it constitutes a legal change, which can be judicially reviewed by the Constitutional Court. However, the decision to deny status cannot be appealed because it is made by parliamentary order, which cannot be judicially reviewed by the Constitutional Court. This calls into question whether effected groups enjoy due process and have access to an effective remedy if they believe their rights have been violated.

According to the Organization of Security and Co-Operation in Europe’s Office of Democratic Institutions and Human Rights Guidelines for Review of Legislation Pertaining to Religion or Belief, “high minimum membership requirements should not be allowed with respect to obtaining legal personality.”[42] It further states that “[i]t is not appropriate to require lengthy existence in the State before registration is permitted.” After Slovakia, which requires 20,000 founding members for a religious group to be registered, Hungary now has the second highest membership number requirement in Europe.

The requirement that a religious group must have existed for 20 years in Hungary (or 100 years internationally) in order to be eligible for registration may contravene freedom of religion under the European Convention on Human Rights (ECHR). In a case against Austria concerning length of reregistration of Jehovah’s Witnesses, the European Court of Human Rights ruled that a 10-year period required for upper-tier registration was a violation of the ECHR.[43] The court stressed that with respect to reregistration procedures the state must provide weighty reasons for denying registration if the affected church already had obtained legal status and had not otherwise violated law.

In a March 2012 opinion on religious organizations, the Venice Commission raised concerns with respect to undue restrictions on freedom of religion, the denial of an effective remedy, and the discriminatory effects the deregistration had on over 300 religious organizations with no apparent objective and reasonable justification as mandated by international human rights law. [44]

Discrimination against LGBT People

The preamble and section 7 of the Family Protection Act, a cardinal law, adopted in December 2011, states that marriage is exclusively between a man and a woman.[45] In June 2012 the Hungarian ombudsman Máté Szabó filed a complaint with the Constitutional Court arguing that the Family Protection Act discriminates on grounds of sexual orientation as same-sex partners are not included in the definition of family.[46] In December 2012, the Constitutional Court declared the definition of family in the Family Protection Act unconstitutional.[47] It did so because the Family Protection Act excludes any family not based on marriage, even though those families are recognized as families in other laws, e.g. two cohabiting persons with a child to which only one party is the biological parent. However, the court’s judgment did not explicitly address the discrimination against families based on sexual orientation.

The March 2013 changes to the constitution cement the notion of family by defining it in article 50 as that of “marriage and parent-child relationships.” The definition excludes cohabitants and same-sex couples. The restriction on the definition of family is discriminatory as it differentiates between different types of relationships by granting some constitutional protection while ignoring others. Article 15 of the constitution on equality and nondiscrimination does not include sexual orientation as a ground for discrimination. Under the European Convention on Human Rights, governments have an obligation to protect all forms of family and not exclude families from the protection of the law on grounds such as marital status or sexual orientation.

Women’s Rights

The government’s strong focus on family also implicates women’s rights. The constitution states that “foetal life shall be subject to protection from the moment of conception.”[48] Women’s rights organizations in Hungary are concerned that the phrasing of the article opens the door to judicial interpretation, including by the Constitutional Court, in ways that could unduly restrict women’s reproductive rights and right to abortion. The government has yet to legislate on abortion since the constitution came into force.

Criminalizing Homelessness

The government passed a law making homelessness a petty offence, with repeat offenders liable to imprisonment, a fine, or both. More than 2,000 persons were convicted under the law in 2012. The Constitutional Court struck down the law in November 2012. Rather than accepting its ruling, the government instead incorporated into the constitution in March 2013 a provision permitting the criminalization of homelessness, thereby preventing future Constitutional Court review.

The inclusion of a provision making homelessness a crime into the constitution is the culmination of a process that started in November 2010 when the Hungarian parliament adopted an amendment to the “construction” law that defines the functions of public places and enables local governments to pronounce improper use of public spaces as a petty offence.

In November 2011 the law was amended to allow “repeat offenders” to be sentenced to jail for up to 65 days or a maximum 50,000 Hungarian forint (US$220) fine if arrested repeatedly within six months. According to the HCLU at least two homeless persons in the capital were prosecuted and fined under the 2010 law. The Budapest local government, despite the existence of a national law, passed legislation in May 2011 enacting the country’s first municipal law prohibiting the use of public spaces for habitual residence.

In April 2012 the Act on Petty Offences came into effect making it a criminal offense to reside habitually in public spaces or to store belongings in them. Repeat offenders risked being imprisoned for up to 75 days or fined up to 225,000 Hungarian forint ($1,000). According to the HCLU, between April and December 2012, while the law was in force, 2,100 persons had charges brought against them under the law and 1,544 persons were fined to a total amount of 40 million Hungarian forints ($170,000).[49] Eight homeless people in Budapest, who were among those convicted, requested to have their fines transformed to jail sentences, according to HCLU.

In December 2011 the Hungarian ombudsman filed a complaint with the Constitutional Court challenging the legality of the Act on Petty Offences before it came into force. In November 2012 the Constitutional Court ruled that the law was unconstitutional. The court held that for the state to punish those who have no choice but to live in a public area would be incompatible with the constitutional requirement of defense of human dignity. Prime Minister Viktor Orbán in December 2012 objected to the ruling, calling it “at odds with realities on the ground.”

The response of the government to the Constitutional Court ruling was not to abandon its efforts to criminalize homelessness. Instead, the March 2013 constitutional amendments permit parliament or local governments through decrees to “outlaw the use of certain public space for habitation in order to preserve the public order, public safety, public health and cultural values.”[50] Incorporating this provision into the constitution means that the court cannot rule any subsequent law criminalizing homelessness unconstitutional. The same article states that the state and local governments should strive to guarantee housing for homeless people but does not oblige authorities to do so. At this writing, no local governments have enacted decrees criminalizing homelessness.

The Act on Petty Offenses was criticized by UN experts on housing and extreme poverty who called on Hungary to repeal legislation criminalizing homelessness.[51] The same UN experts renewed their criticism in April 2013 in response to Hungary making homelessness a criminal offence under the constitution.[52]

Interference with Media Freedom

The government’s legal changes have had a negative impact on media freedom.

After taking office in May 2010, the government adopted a media law package without adequate public consultation. Three new media laws were adopted in 2010: the Act on the Modification of Certain Acts Regulating the Media and Communications ( August),[53] the Act on the Freedom of the Press and Fundamental Rules on Media Content (in November,[54] and the Act on Media Services and Mass Media, also known as the Media Act (December).[55] The acts specify new content regulations for all media platforms, outline the authorities of the new media regulatory bodies, and set out sanctions for breaches of the legislation.

Concerns with the media laws include a lack of political independence of the Media Council, which regulates media content and grants broadcast licenses; unjustifiably high fines for journalists; unclear requirements for content regulation; and inadequate protection of journalists’ sources.

The Media Council, a body established by the 2010 Mass Media Act under the National Media and Infocommunications Authority (generally known as the Media Authority) to “oversee and guarantee freedom of the press” has wide-ranging powers to regulate the media in Hungary.[56] In August 2011 the prime minster appointed Annamária Szalai as the president of the Media Authority and Media Council for a renewable nine-year term. Szalai died in April 2013. At this writing, her successor had yet to be appointed. The other four members of the council were appointed in August 2011 by the parliament for a renewable nine-year term. As the Council of Europe put it in February 2011, “The provisions regarding appointment, composition and tenure of existing media regulatory bodies demand amendment not least because they lack the appearance of independence and impartiality, quite apart from a de facto freedom from political pressure or control.”[57]

As a result of changes to the media laws adopted by parliament in March 2013, the appointment of the current head of the Media Authority will be limited to a nine-year term. The next head of the Media Authority will be appointed by the president of the republic rather than by the prime minister. The candidate will however be nominated by the prime minister and the president of the republic may only refuse the nominated candidate if he or she is not qualified for the position or if the acceptance of a candidate would seriously endanger the democratic functioning of the state. The members of the media council will continue to be appointed by parliament for nine-year terms.

The March 2013 changes fail to address the political nature of appointments of the members of the media council by parliament.

The concerns about the Media Council have been exemplified by the case of Klubrádio, an independent radio station. The station has been in legal dispute with the Media Council since April 2010, after the regulator refused to grant it the community station license which the station won by tender under the previous media regulator. Despite winning that tender and a November 2012 court ruling, the Media Council has continued to refuse to grant it the license. In April 2013 the Budapest Metropolitan Court of Appeal ruled in favor of Klubrádio, but at this writing the Media Council had yet to implement the ruling.

In March 2013 Klubrádio was granted a commercial license by the Media Council after a ruling by another Budapest court. The station now has a permanent license, but the drawn-out legal battle with the Media Council caused Klubrádio severe financial losses as a result of declining advertising revenues because of its uncertain future.

The high fines, ranging up to €700,000, for violations of the media laws affect both media outlets and individual journalists, reporters, and editors, and have a chilling effect on the way journalist report on news. According to the United States Department of State, by the end of November 2012, the Media Council had fined 66 media outlets a total of 80 million Hungarian forint ($360,000).[58] Independent media outlets told Human Rights Watch that they had been forced to engage in self-censorship because of unclear regulations and inconsistent enforcement. In radio broadcasting, a requirement states that 60 percent of the program content should be music, which effectively limits political radio shows.

The media laws also call for “balanced reporting,” a vague and imprecise requirement that is open to arbitrary interpretation by the Media Council.

Independent media outlets told Human Rights Watch that they have experienced a decline in public and private advertising revenue, which has had serious economic consequences for several media outlets. Senior staff at the daily newspaper Népszava and Klubrádio told Human Rights Watch that they attributed a cutting off of government advertising to their critical reporting on the current government.The media outlets attributed the decline in advertising from private sources to a political environment in which businesses are reluctant to appear supportive of media outlets critical of the government. As Peter Nemeth, editor-in-chief of Népszava, put it, “This is one way to make opposition voices disappear.” [59]

Several journalists and reporters told Human Rights Watch of instances of political interference in the editorial content of public television, with editors telling reporters what and how to report on certain issues. Since the adoption of the new media law package, in three waves of dismissals the state media broadcaster, MTVA, has made approximately 1,100 employees redundant, including editors and reporters. The most recent round of layoffs occurred in December 2012. Those dismissed include journalists who have been publicly critical of the editorial interference or participated in protests against it, and union organizers. MTVA insists that the redundancies are solely the result of the need for efficiencies following the merger of two state broadcasters in 2010.

The Constitutional Court scrutinized provisions in the media laws in a decision in December 2011. The court’s ruling required the government to adopt changes to the provisions pertaining to the regulation of media content, protection of journalists’ sources, and the institution of the media ombudsman by March 31, 2012.[60] In response, the government introduced parliamentary amendments to the media laws in May 2012 but the amendments failed to adequately address all the court’s demands, e.g. provisions relating to content regulation. The same amendments also failed to incorporate recommendations by the Council of Europe, particularly in relation to the appointment of the media regulator.[61]

In fact, instead of addressing concerns of critics, the May 2012 amendments introduced additional problematic elements into the laws. For example, they introduced a provision that states that the Media Council has no obligation to conclude contracts, a provision that the council could rely on in the future to avoid granting licenses to successful winners of future license tenders, as it sought to do with Klubrádio.

Article 5 of the Fourth Amendment introduces a provision in the constitution that prohibits speech aimed at violating the dignity of the Hungarian nation or the dignity of any national, ethnic, or religious minority group. This broad and potentially vague provision may be used to arbitrarily interfere with freedom of speech and expression, and risks having a chilling effect on journalists, artists, and others.

In February 2012 the EU Commissioner for Digital Agenda Neelie Kroes urged Hungary to seek advice from the Council of Europe on its media laws and implement any resulting recommendations. Kroes warned that, should Hungary fail to do so, she would consider asking the European Commission to invoke article 7 of the EU Treaty which allows the EU to suspend the voting rights of EU states whose actions create a “clear risk of a serious breach” of the EU’s values.[62] The Council of Europe in May said that the Hungarian government had failed to adequately address problematic provisions in the media laws.[63]

In January 2013 Council of Europe Secretary General Thorbjørn Jagland issued a premature welcome to the Hungarian government’s proposed changes to the media laws, which were adopted in March 2013. He made particular reference to a single nine-year term for the president of the Media Authority and Media Council, although in practice the same person, will be appointed by the president of the republic instead of directly by the prime minister. [64] He regrettably did not address the remaining concerns of the Venice Commission and the failure of the Hungarian government to comply with Council of Europe standards.

[32] Article 23.6. of the Fundamental Law, (accessed January 10, 2013).

[33] Convention on the Rights of Persons with Disabilities (CRPD), adopted December 13, 2006 by G.A. Res. 61/106, Annex I, U.N. Doc A/61/49 (2006), entered into force May 3, 2008, ratified by Hungary on July 20, 2007. Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Periodic Report of Hungary, adopted by the Committee at Its Eight Sessions (17-28 September 2012), CPRD/C/HUN/1/.

[34] Electoral Law, November 22, 2012, (accessed January 9, 2013).

[35] Constitutional Court decision, January 4, 2013, (accessed April 17, 2013), in Hungarian.

[36]Parliament Resolution 8/2012 (II.29), February 27, 2012, (accessed May 9, 2013).

[37] 2013. Evi … torveny a vallasi kozossegek jogallasaval es mukodesevel osszefuggo torvenyek az Alaptorveny negyedik modositasaval osszefuggo modositasarol, article 12 replacing article 14 cb., p. 7, (accessed May 8, 2013).

[38] Constitutional Court Decision 45/2012.

[39] Constitutional Court Decision 6/2013.

[40] Human Rights Watch telephone interview with Szabolcs Hegyi, Director of the Hungarian Civil Liberties Union (HCLU), May 9, 2013.

[41] Human Rights Watch email correspondence with the Hungarian Helsinki Committee to Human Rights Watch, May 7, 2103, on file with Human Rights Watch.

[42] Guidelines for Review of Legislation Pertaining to Religion or Belief, prepared by the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief in Consultation with the European Commission for Democracy Through Law (Venice Commission), June 2004, pp. 16-17, (accessed February 25, 2013).

[43] Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, application no. 40825/98, judgment July 31, 2008, paras. 77-79,{"itemid":["001-88022"]} (accessed February 25, 2013).

[44] Council of Europe, Venice Commission, Opinion 664/2012 on Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities. (accessed on January 10, 2013).

[45] Act CCXI of 2011 on the Protection of Families, adopted December 23, 2011. (accessed January 14, 2013).

[46] Ombudsman submission to the Hungarian Constitutional Court.$FILE/ATTPUM6C.pdf/2012_3012-0.pdf (accessed April 17, 2013), in Hungarian.

[47] Constitutional Court decision of December 17, 2012, “A családok védelméről szóló 2011. évi CXXI. törvény család-fogalmának és öröklési szabályának megsemmisítéséről,” (accessed April 17, 2013), in Hungarian.

[48] Fundamental Law, article 2, (accessed January 13, 2013).

[49] Hungarian Civil Liberties Union, “Violations of the prohibition of residing in public spaces between April 15, 2012 and November 15, 2012,” (accessed March 27, 2013).

[50] Fourth Amendment, article 8.

[51] UN Experts on Poverty and Housing, “Hungary’s homeless need roofs, not handcuffs,” February 15, 2012, (accessed March 27, 2013).

[52] UN Experts on Poverty and Housing, “Hungary is Entrenching the Criminalization of Homeless,” April 3, 2013, (accessed April 4, 2013).

[53] Act on the Modification of Certain Acts Regulating the Media and Communications (accessed January 9, 2013), in Hungarian.

[54] Act on the Freedom of the Press and Fundamental Rules on Media Content (accessed January 9, 2013), in Hungarian.

[55] Act on Media Services and Mass Media, (accessed January 9, 2013), in Hungarian.

[56]Ibid, article 132 (official translation).

[57]Council of Europe, “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” para. 39, February 25, 2011, (accessed April 30, 2013), emphasis in original

[58] US State Department, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices – Hungary, p. 20, (accessed April 25, 2013).

[59] Human Rights Watch interview with Peter Nemeth, editor-in-chief, Nepszava, January 27, 2012.

[60] Constitutional Court decision of December 19, 2011, (accessed January 14, 2013), in Hungarian.

[61] Expertise by Council of Europe Experts’ on Hungarian Media Legislation. (accessed January 14, 2013).

[62] Statement by Neelie Kroes, Vice President of the European Commission responsible for the Digital Agenda of the Hungarian Media Environment European Parliament Civil Liberties, Justice and Home Affairs Committee, Justice and Home Affairs Brussels, February 9, 2012. Reference SPEECH/12/80. (accessed January 13, 2013).

[63] Expertise by Council of Europe Experts’ on Hungarian Media Legislation. (accessed January 14, 2013). Expertise by Council of Europe Experts on Hungarian Media Legislation: Act CIV 2010 on the Freedom of the Press and the Fundamental Rules on Media Content and Act CLXXXV of 2010 on Media Services and Mass Media, May 11, 2012.

[64] Council of Europe Secretary General Thorbjørn Jagland press conference, January 29, 2013, (accessed January 30, 2013).