DOI: 10.5553/EEYHR/258977642019002001010

East European Yearbook on Human RightsAccess_open

Human Rights Literature Reviews

Hungary

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Alexandra Sipos PhD, 'Hungary', (2019) East European Yearbook on Human Rights 162-171

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    • 1. Introduction

      This review presents an overview of the past three years of relevant legal journals and publications in Hungary that aim to enhance legal development. The review consists of the following sections: a) relevant legal journals, b) other relevant reports by national bodies and NGOs, c) decisive human rights discussions and d) relevant doctoral theses. The review concludes with a summary.

    • 2. Relevant Legal Journals

      A review of the existing legal journals in Hungary shows that there are two types: journals that are specifically focused on human rights issues and practices and journals that could be considered legal journals in general, publishing articles on specific types of laws, which include reflection on the case law of the European Court of Human Rights and of the European Court of Justice. Fundamentum and Acta Humana can be considered as the first type, while Jogesetek Magyarázata, Jogtudományi Közlöny, Pro Futuro and Acta Juridica Hungarica are those journals that only partially reflect on human rights questions.1x Other Hungarian legal journals are Jogelméleti Szemle, Miskolci Jogi Szemle and Iustum Aequum Salutare.
      Fundamentum – The Human Rights Journal 2x ISSN 1417-2844. is a quarterly published journal, founded in 1997 by the Human Rights Information and Documentation Center Foundation (Emberi Jogi Információs és Dokumentációs Központ Alapítvány [INDOK]). Fundamentum’s main aim is to provide readers with knowledge and varied opinions on fundamental rights. Each published issue revolves around a relevant human rights issue at the time of publication. Some issues also include interviews with former judges, constitutional or international court judges. Contributions are made in Hungarian, but the journal occasionally publishes issues in English. Nevertheless, at the end of each issue, abstracts in English are available for each publication.3x Fundamentum’s website, available at: http://fundamentum.hu/ (last accessed 1 July 2019).
      Acta Humana – Human Rights Announcements 4x ISSN 0866-6628. is a quarterly published human rights journal. The first journal was published in 1990 by Emberi Jogok Magyar Központja Közalapítvány. Since 2012 the newly established National University of Public Service (Nemzeti Közszolgálati Egyetem, NKE) has been responsible for publishing Acta Humana. Acta Humana publishes the latest case law of ECHR (European Court of Human Rights), CJEU (Court of Justice of the European Union) and, at the national level, the recent decisions of the Curia (the highest judicial authority in Hungary) and of the Constitutional Court of Hungary. Since Hungary will, in 2020, introduce a brand-new administrative court system, the latest issue (2019/1) focuses on several aspects of administrative jurisdiction. The language of the journal is Hungarian, but publication in English is possible. Some issues are published only in English.
      Jogesetek Magyarázata (JeMa) 5x ISSN 2061-4837. was first published in 2010. The journal’s goal is to introduce structured case analysis to Hungarian legal professionals, researchers and readers. It aims to aid the development of domestic legal culture and to strengthen professional monitoring of judicial practice.6x Jogesetek Magyarázata’s website, available at: https://jema.hu/index.php?o=1 (last accessed 1 July 2019). The journal is published quarterly and consists of several columns such as constitutional law, criminal law, administrative law, private law sections, the Luxembourg and the Strasbourg column and, finally, a section dedicated to academic argumentation. JeMa accepts papers in Hungarian as its main goal is to provide Hungarian legal professionals and law enforcers with analysis of legal cases offering critical reflection on the argumentation used in them.
      Jogtudományi Közlöny 7x ISSN 0021-7166. is a monthly published journal. The original journal was founded in 1866 and was published until 1934. From 1946, the new form of Jogtudományi Közlöny has been curated by the Committee of Public Administration and Law of Hungarian Academy of Sciences (Magyar Tudományos Akadémia, Állam- és Jogtudományi Bizottság). As the journal is curated by one of the Committees of the Hungarian Academy of Sciences, it aims to provide a high level of academic thoroughness on legal issues while keeping in mind the practical usability by law enforcers.8x Jogtudományi Közlöny’s website, available at: https://hvgorac.hu/Jogtudomanyi_Kozlony (last accessed 1 July 2019). The journal is published in Hungarian.
      Pro Futuro – The Rights of Future Generations 9x ISSN 2063-1987 (print); ISSN 2063-2754 (online). is the legal and political science journal of the Faculty of Law of University of Debrecen. The journal is being published twice a year since the end of 2011. Pro Futuro’s vision is to provide answers to the emerging questions in Hungarian legal literature related to societal, economic and political changes faced by modern states and legal systems.10x Pro Futuro’s website, available at: http://profuturo.lib.unideb.hu/oldal/index/nyitolap (last accessed 1 July 2019). Pro Futuro accepts papers in Hungarian with abstracts in English.
      The Acta Juridica Hungarica – Hungarian Journal of Legal Studies 11x ISSN 2498-5473 (print); ISSN 2560-1067 (online). was founded in 1959 by the Hungarian Academy of Sciences. The journal is published quarterly and aims to

      present the achievements of high quality researches of domestic and foreign scholars from every field of the legal sciences and to inform the academic and scholarly community about the recent developments of the Hungarian and foreign legislation and legal literature. The Journal publishes only original research papers, review articles, book reviews, and announcements. The editors encourage contributions from outside Hungary, with the aim of covering the legal sciences in the whole of Central and Eastern Europe.12x Akadémia Kiadó’s website, available at: https://submit.akademiai.com/hjls/index.php/hjls (last accessed 1 July 2019).

      Until 1989 the journal published studies and reviews in four languages (English, French, German and Russian), but after 1990 the journal’s language is exclusively English.13x MTA Társadalomtudományi Kutatóközpont, Jogtudományi Intézet’s website, available at: https://jog.tk.mta.hu/acta-juridica-hungarica (last accessed 1 July 2019).

    • 3. Other Relevant Reports by National Bodies and NGOs

      The following section reviews the legal interpretation and development achieved through the work of a national body (Egyenlő Bánásmód Hatóság, Equal Treatment Authority), two NGOs and an online portal.
      In 2003, it was due to the transposition of the 2000/43/EC and 2000/78/EC directives that Hungary adopted the Act on Equal Treatment and Promotion of Equal Opportunities (Equal Treatment Act), which established the Equal Treatment Authority (Authority or EBH, following the Hungarian abbreviation).14x The website of the Equal Treatment Authority (EBH) – English version, available at: http://egyenlobanasmod.hu/eng . Its role is to investigate complaints on the infringement of the principle of equal treatment as well as to maintain and enforce that principle.
      All of its cases and decisions can be found on the Authority’s website. Apart from that, the EBH provides resources in the form of EBH booklets15x EBH’s booklets, available at: www.egyenlobanasmod.hu/en/ebh-fuzetek (last accessed 1 July 2019). offering an in-depth analysis of relevant cases related to the infringement of the principle of equal treatment. Since 2017, five EBH booklets have been published, two of which focus on harassment in the area of the workplace and that of education. Another booklet revolves around the case law of the Authority on discrimination in the area of education. The two remaining booklets are related to areas in the field of equal treatment that need further assessment and development – which these booklets provide. One question is how to interpret the protected characteristics ‘other situation, characteristic or feature’ as listed in the Act on Equal Treatment in Section 8(t). This non-exhaustive list of protected characteristics includes characteristics that are either essential features of human personality and that, because of this innateness, cannot be changed or forced to be changed, or they serve as the basis of group formation – meaning that the majority of society recognizes a group of people as distinct and homogeneous on the basis of these characteristics. While some characteristics have established understanding, the development of the exact definition of the concept of ‘other situation’ as a protected characteristic was left to institutions applying the Act on Equal Treatment. In its interpretation of ‘other status’, the EBH relies on the following criteria:

      to serve as a basis for the formation of homogeneous groups; it must lend itself as the basis for the formation of stereotypes; it must serve as a basis of social prejudice; and it must be associated with an underprivileged situation.16x EBH’s booklet No. 3: The use of other situation as a protected characteristic in the Equal Treatment Authority’s application of the law, p. 11, available at: www.egyenlobanasmod.hu/sites/default/files/kiadvany/EBH%203%20ENG%20web.pdf (last accessed 1 July 2019).

      Homelessness also falls within the scope of ‘other situation’ – based on the Hungarian Constitutional Court’s interpretation. Based on the case law of the Authority, citizenship, place of residence, temporary agency working status and special needs education might be considered protected characteristics within the scope of ‘other situation’. The other question the EBH reflects on is related to cases with multiple discrimination. The booklet states that even without explicit mention of multiple discrimination in the Act on Equal Treatment, the Authority has competence to investigate whether a complainant has suffered disadvantage in connection with more than one protected characteristic.17x EBH’s booklet No. 5: Multiple discrimination in the Equal Treatment Authority’s Case-law, pp. 19-20, available at: www.egyenlobanasmod.hu/sites/default/files/kiadvany/ebh-f%C3%BCzet_en.pdf (last accessed 1 July 2019). The EBH also gives an overview of the different forms of multiple discrimination and provides examples from its case law.
      Although the Equal Treatment Act in some respects (e.g. material scope) goes beyond what was actually required by the EU law, the practice of the Authority can be controversial. As presented previously, the EBH produces several publications on the principle of equal treatment; however, as a result of the missing culture of anti-discrimination, the weak regard for discrimination problems and the contentious independence of the Authority, issues of discrimination are not necessarily considered priority in contemporary Hungary. The Authority was also criticized for not being proactive enough in cases of violation of the principle of equal treatment regarding homeless people, vulnerable social groups (e.g. Roma people) and migrants. This might relate back to the missing culture of anti-discrimination as these groups’ disadvantaged position is rarely perceived as a result of discrimination.
      As for the NGOs with a human rights focus in Hungary, the work of Társaság a Szabadságjogokért (TASZ; Hungarian Civil Liberties Union, HCLU)18x HCLU’s website (Hungarian and English version), available at: https://tasz.hu/ and https://hclu.hu/ (last accessed 1 July 2019). can be considered a relevant source to track the development of human rights. HCLU was founded in 1994 by legal practitioners to provide legal aid to patients in the Institute of Neurology.19x Information available at: https://ataszjelenti.blog.hu/2019/03/11/tasz25_honnan_indult_a_tasz (last accessed 1 July 2019). HCLU has three main activities: providing legal assistance in individual cases free of charge, providing information on and raising awareness of fundamental rights and current societal issues, and, finally, contributing to legal development through its legal reform activity. HCLU focuses on a vast variety of human rights issues: the rights of patients, of people living with disability, of people living with HIV and of Roma and LGBTQI people; the right to vote and the freedom of assembly, speech, conscience and information, data protection, transparency and rule of law; rights of refugees and freedom of religion. Their work was especially important when several protests occurred in Hungary as they provided legal assistance and raised awareness on individuals’ rights in the case of peaceful protest. Some of HCLU’s latest successes are related to violation of the principle of equal treatment of Roma people. In 2011 in Gyöngyöspata, the police did not intervene when an extremist anti-Roma organization patrolled in the town and intimidated Roma habitants.

      HCLU initiated public interest litigation suit against the Police Headquarters of the County of Heves, based on the Equal Treatment Act. On 8 February 2017, the Curia declared its final decision that in 2011 the police in Gyöngyöspata discriminated against local Romas by not taking the appropriate steps against extremist organizations.20x HCLU Annual Report 2017, p. 9.

      Another noteworthy NGO is the Magyar Helsinki Bizottság (Hungarian Helsinki Committee), which was founded in 1989 and has provided legal assistance since 1994. The organization’s main goal is to help those whose human rights were violated by the state. Their main areas of activity are protection of the rule of law and strong civil society, protection of the rights of refugees, migrants and stateless people, monitoring law enforcement activities and protection of the rights of detainees.21x Hungarian Helsinki Committee’s website, available at: www.helsinki.hu/en/about_us/ (last accessed 1 July 2019). The organization demonstrated its expertise in the right to asylum pronouncedly during and after the migration crisis in Hungary as it provided legal help.
      Szuverén is an online portal that provides readers with public policy analysis and opinions on political, societal, legal and economic questions. Its aim is to give in-depth analysis of current political debate by offering broader contexts, highlighting the theoretical backgrounds of political debates and by providing an international perspective. Szuverén monitors the work of legislative, judiciary, special law enforcement bodies, economic-financial public institutions and governance.22x Szuverén’s website, available at: http://szuveren.hu/impresszum (last accessed 1 July 2019).

    • 4. Decisive Human Rights Discussions

      As it would be difficult to present all the noteworthy human rights publications, this brief section focuses on relevant and current debates on human rights issues. On the one hand, there are publications on human rights issues specifically related to Hungary, while, on the other, reflections can be recognized as a reaction to human rights questions arising in the European and international environment. Discussions specific to Hungary are related to autocracy and rule of law. There are also some discussions that infiltrate from the international legal scene and pose classical human rights questions such as migration or sexual abuse.
      Reflections on the Constitution and its amendments are ongoing since the Fundamental Law of Hungary was adopted in 2011. According to its newest amendment, rough sleeping (as in ‘habitual residence in a public space’) is forbidden, which leads to criminalization of homeless people.23x S. Walker, ‘Hungary’s Homeless Fear they are Viktor Orbán’s Next Target’, The Guardian, 2018 October 10, available at: www.theguardian.com/global-development/2018/oct/10/hungary-homeless-fear-they-are-viktor-orban-next-target (last accessed 1 July 2019). Several district courts, previous constitutional court judges, representatives of NGOs and even international institutions raised concerns regarding the law based on the constitutional amendment as it infringes several human rights (right to self-determination, principle of equal treatment) and principles of the rule of law. Further expanding the horizon, the realization and development of the human rights approach in Hungary is dependent not only on the constitutional framework but also on the way the political system and democratic institutions work. As for the political system, debates are frequent on rule of law and autocracy. Lately, Anna Unger published a notable paper making a comparison of competitive authoritarian hybrid regimes and electoral autocracy, arguing that currently the latter is the most suitable to describe the Hungarian political system.24x U. Anna, ‘A választás mint rendszerkarakterisztikus intézmény’, Fundamentum 2-3/2018, pp. 5-16, available at: http://fundamentum.hu/sites/default/files/fundamentum-18-2-3-01.pdf (last accessed 1 July 2019).
      Human rights discussions in Hungary are also affected by the country’s European and international embeddedness. While debates on the rights of migrants were widespread during and after the European migrant crisis, in Hungary legal scholars and NGOs reflected on the human rights issues related to migration such as the anti-immigrant campaign, mistreatment of migrants and asylum seekers. Recently, the UN raised its concern over Hungary’s violation of international law by denying food to migrants in the transit zone. Human rights and balancing concerns are also present at the level of the EU. Another human rights issue subject to scholarly and public debates, namely the case of sexual abuse, became a relevant topic with the #Metoo campaign. The Fundamentum journal published an issue focusing on sexual abuse in 2017. However, public debates often end up with this topic labelled as too taboo to be discussed further. Questioning the limits of the right to self-determination and victim blaming also feature in public discussions.

    • 5. Relevant Doctoral Theses

      The following section presents two doctoral theses: the doctoral thesis from 2018, of Éva Balogh (Marton Géza Doctoral School of Legal Studies, University of Debrecen), titled ‘Freedom of Criticism of Public Persons – Interaction Between the European Court of Human Rights and Constitutional Courts’, and the one from 2019, of Márton Gerő (Sociology Doctoral School, Eötvös Loránd University), entitled ‘Between Hopes and Reality – About Civil Society and Political Participation in Hungary Between 1990 and 2010’.
      In her doctoral thesis, Éva Balogh reflects on multilevel constitutionalism – the connection between national and international institutions. This connection includes horizontal and vertical communication networks that are interlinked with each other. This interconnectedness could lead to information exchange and legal harmonization, which reinforce “democracy, the rule of law and human rights protection”.25x É. Balogh, Freedom of Criticism of Public Persons – Interaction Between the European Court of Human Rights and Constitutional Courts, University Doctoral (PhD) Dissertation Abstract, Debrecen. p. 1.
      Balogh’s main assumption is that the interaction between the ECHR and the constitutional courts are mutual, meaning that the decisions of the ECHR affect the interpretation of constitutional courts and, at the same time, the case law of the ECHR is influenced by the interpretation of human rights of the constitutional courts. The author presents how and to what extent the aforementioned interaction exists by analysing judicial reasonings on expressions about public persons. In summary, her hypothesis rests on the existence of the interaction between the European Court of Human Rights and the constitutional courts. This hypothesis on interaction is backed up and is demonstrable with judicial deliberations in cases of judicial balancing related to expressions about public persons.
      The thesis has two clearly identified goals. The first goal is to reflect on the theoretical and institutional aspects of multilevel constitutionalism, especially indicating what factors are present and what role they play in its practice, defining the instruments subjected to analysis as well as describing the constitutional dialogue between the subjects. Balogh also aims to present justification for the dialogue between the ECHR and the constitutional courts. First, she refers to the development and spread of common human rights standards as well as the influence of globalization and law on each other. These elements lead to commonly accepted values of human rights. Second, she highlights the similarities between the activities of these courts. The other goal is to present the intensity and the directions of the aforementioned interaction in relation to expressions about public persons through relevant case law. In order to do this, the author established a conceptual theoretical framework on freedom of speech and press, which is used to analyse the interaction between the case law of the ECHR and the national constitutional courts.26x Ibid., p. 3.
      The dissertation is structured around these two goals. In the first part, Balogh focuses on the theoretical and institutional aspects. She presents the universal human rights approach, which is contrasted with the cultural relativism concept. She further examines the influence of globalization and law on each other. After this general framework, the author analyses the characteristics of the dialogue between courts to aid the case-law analyses in the second part. Balogh also determines five features of activity of constitutional adjudication and explores the constitutional characteristics of the ECHR human rights mechanism. She then identifies similarities and differences between the practice of the ECHR and the constitutional courts, as well as the similarities between the Convention on Human Rights and constitutions. Similarities in court practice include, on the one hand, using tests to examine the formal and substantive element; these tests are further developed by these courts. On the other, Balogh identifies judicial review of legal norms and practice as a similarity. Judicial review includes a reasonable freedom of courts regarding the interpretation of human rights issues. First, progressive interpretation to adapt to the changing environment and, second, precedent-based adjudication.27x Ibid., pp. 8-9.
      The second part – which encompasses the human rights analysis through the case law of courts on freedom of expression in relation to public persons – starts with an overview of the features of freedom of speech and the press and their limitations. Balogh then introduces theoretical-historical justification theories because these justifications are present in judicial adjudication. The interaction between courts can be recognized in their use of different justifications. The next part focuses further on the freedom of expression in relation to public persons: types of and content of expression, category of public persons, status of the person (relationship to public matters, contribution to public debate), statements of facts (true or intentionally false), quotation and report, value judgment and value judgment based on facts. These elements serve as the basis for analysis of the case law of the German Federal Constitutional Court, the Hungarian Constitutional Court and of the Strasbourg Court. After the analysis, Balogh concludes with the following: there is an interaction between the examined courts as they monitor each other’s practice, which in turn contributes to the development of human rights adjudication. This interaction tends to reflect on newly emerging human rights issues by developing new tools of examination of human rights. However, the further development based on this interaction is uncertain.28x Ibid., p. 14.
      The importance of this thesis lies in the role of freedom of speech and press in developing and sustaining democracy by making democratic public discourse and free self-expression possible. Balogh states that neglecting constitutional traditions in the case of freedom of expression about public persons raises new challenges as public persons often try to use legal instruments to restrain the press and to refer to their personality rights so as to avoid being seen in the status of public figures.29x Ibid., p. 2.
      Márton Gerő, in the first part of his doctoral thesis, ‘Between Hopes and Reality: The Impact of Civil Society on Democratization between 1990 and 2010 in Hungary’, examines the expectations towards civil society in Hungary during the Velvet Revolution and the extent to which the civil society was able to fulfil them. The expectations – which revolve around the role of civil society in contributing to the creation of democracy – are based on the literature published on civil society around and after the democratic transition. The general perception of the Hungarian civil society is that it is weak and that it could not completely fulfil these expectations, but Gerő emphasizes that civil society as a political strategy might have failed but that analytical and normative concepts of civil society should be taken into account to evaluate the role and success of Hungarian civil society.30x M. Gerő, Between Hopes and Reality: The Impact of Civil Society on Democratization between 1990 and 2010 in Hungary, PhD dissertation, Budapest, 2018. pp. 7-8. Gerő reviews the existing foreign and Hungarian literature to present several definitions of the concept of civil society in relation to the democratic transition in Hungary. He establishes five models (social order, second society, anti-politics, intermediary sphere and the opposition approach) and finds that the common core in their definition is voluntary association.31x Ibid., p. 208. In all models the main expectation towards civil society is the “increasing realization of the civil and political rights on the individual level”.32x Ibid., p. 11. Gerő stresses that it is necessary to make a distinction between failure of the project of civil society and abandonment of civil society as a political strategy. There is a widespread acceptance of the fact that civil society could not fulfil its role in the democratization project – but according to Gerő, the reasoning behind this is the different understanding of the concept of civil society. He emphasizes that the political strategy of civil society was abandoned and then further explains what led to the unconscious abandonment of the civil society strategy and the perception of its failure to fulfil its democratization role.33x Ibid., p. 210.
      In part two, Gerő measures and evaluates the trends in exercising political rights between 1990 and 2010 in Hungary. As the expectation from civil society is to help the process of democratization by increasing individual freedom (civil and political rights of the individual) and, consequently, democratic participation, he reflects on how to measure this freedom. He points out the shortcomings of existing methods for such measurement and establishes the action-based measurement. This type of measurement focuses on four fundamental rights: the freedom of expression, the freedom of association, the right to peaceful assembly and the right to take part in public issues. The level of these fundamental rights is influenced by the constitutional framework, changes in policies and regulations, political opportunity structures and political turbulence. Gerő then returns the expectations towards civil society, especially the associations’ role in advancing political participation, developing democratic skills and values and mobilizing citizens.34x Ibid., p. 16. Several types of association can be identified: political, non-political, interest based and religious. These types of associational participations are examined for correlations with political participation (represented by the four fundamental rights) through regression models. The conclusion of the doctoral thesis is the following regarding the influence of civil society on democratization: “belonging to voluntary associations has a correlation with exercising rights,”35x Ibid., p. 215. and this should be a causal relationship, but the direction of casualty cannot be concluded from the available data. Gerő explains the effect of associations in supporting fundamental rights and political participation: the effects of political socialization and mobilization could occur as participation in voluntary associations requires permanent engagement. Associations also contribute to mobilization of certain groups of people for different issues. However, no clear increase can be detected in the proportion of people realizing their rights or from being part of associations or from institutional processes.36x Ibid., pp. 215-216.
      The importance of this thesis lies in the analysis and tools it provides for further analysis in regard to the role of civil society in developing and sustaining democracy and rule of law. With the rise of popularism and authoritarianism, some trends can be identified: the labelling of civil society organization as either real or fake, against the nation, is used in public discourses and conflicts. As a counterbalance, civil society is expected to provide checks and balances and to safeguard citizens’ freedom.

    • 6. Summary

      Over the last few years, the debate on human rights issues in Hungary has been rich. The most important legal journal with a human rights focus is Fundamentum; other journals only partially reflect on these issues. In general, it can be said that legal journals are quick to reflect on rising human rights dilemmas. These dilemmas are either infiltrating from the European and international legal scene or are related specifically to Hungary.
      As it is was not possible to review all relevant doctoral theses, the featured ones reflect on two main and different approaches to the human rights situation in Hungary. On the one hand, there is a sociological point of view on the democratization of Hungary, the level of individual freedom after the democratic transition and the role of civil society in the enhancement of these. On the other, there is a judicial point of view on how the constitutional courts and the European Court of Human Rights interact with each other, which leads to legal development to tackle human rights dilemmas.

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