The Tavares Report

Report on Fundamental Rights in Hungary 

d

MEP Rui Tavares of Portugal.

In July 2013, the European Parliament of the European Union adopted the so-called Tavares Report criticizing many stipulations of Hungary’s Fundamental Law and its subsequent amendments on the grounds that they violated the fundamental European precepts of liberty, democracy and the rule of law.  

Hungary and the European Union

Hungary has been a member of the European Union since May 1, 2004 and is thus bound to observe regulations governing the political and economic functions of EU member states contained in the 1992 Treaty on European Union (known informally as the Maastricht Treaty) and its amendments.

The European Parliament Calls for a Report on Fundamental Rights in Hungary 

European Parliament (EP) adopted a resolution on February 16, 2012 in which it expressed “serious concern at the situation in Hungary in relation to the exercise of democracy, the rule of law, the respect and protection of human and social rights, the system of checks and balances, equality and non-discrimination.” The European Parliament asked its Committee on Civil Liberties, Justice and Home Affairs to examine specific issues related to this concern and present its findings to the EP in a report (source in English).

The Committee on Civil Liberties, Justice and Home Affairs delegated the task of writing the report to the Greens/European Free Alliance parliamentary-group committee member Rui Tavares of Portugal. Tavares presented the draft of his report entitled “The Situation of fundamental rights: standards and practices in Hungary” to the committee fourteen and a half months later, on May 2, 2013. After making amendments, the committee presented the Tavares Report to the European Parliament for consideration on May 29, 2013 (source in English).  

The European Parliament Adopts the Report on Fundamental Rights in Hungary

The On July 3, 2013, the European Parliament adopted the findings of the Tavares Report by a vote of 370 to 249 with 82 abstentions, while a further 65 Members of the European Parliament were not present at the vote (source in English). The vote was not conducted via roll-call, thus it is impossible to determine how each individual Member of the European Parliament (MEP) voted on this issue. 

Thus a total of 453 MEPs voted either to approve or not to reject the Tavares Report, while 249 voted to reject the report. There were 385 conservative, Christian-nationalist MEPs sitting in the European Parliament who might be ideologically inclined to support the Orbán government—275 from the European People’s Party caucus (of which both Fidesz and its Christian Democratic People’s Party affiliate are members), 56 from the European Conservatives and Reformists caucus, 32 from the Europe of Freedom and Democracy caucus and 22 of 31 caucus-unaffiliated Non-Inscrits (sources A and B in English).

If one assumes that all 65 of those MEPs who did not participate in the vote were members of this 385-member conservative, Christian-nationalist voting bloc, 71 of them voted either to approve or not to reject the Tavares Report. If one assumes that 32 of the 65 representatives in the evenly divided liberal/left-conservative/right European Parliament who did not vote on the Tavares Report were from the conservative, Christian-nationalist voting bloc, 104 of them voted either to approve or not to reject the Tavares Report. 

The European Parliament’s approval of the Tavares Report was not, therefore, the result of a “left-wing action” as Prime Minister Orbán claimed (see Swallowing the Frog).

The Tavares Report declared that many stipulations of the Fundamental Law and its subsequent amendments represented a clear and serious breach of the common European Union values of “liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law” proclaimed in Article 2 of the Treaty on European Union. 

The Tavares Report based the legitimacy of European Union criticism of fundamental rights in Hungary on Article 7 of the Treaty on European Union granting “EU institutions the power to assess whether there is a clear risk of a serious breach of the common values referred to in Article 2 by a Member State.” 

The report asserted that the European Parliament’s resolution “is not only about Hungary, but inseparably about the European Union as a whole, and its democratic reconstruction and development after the fall of the 20th-century totalitarianisms.” The reported stated that “violation of the Union’s common principles and values by a Member State cannot be justified by national traditions nor by the expression of a national identity when such a violation results in the deterioration of the principles which are at the heart of European integration, such as democratic values, the rule of law or the principle of mutual recognition . . .” (source in English).

The report stated that it had taken the previous findings of the Council of Europe’s Venice Commission into account in  its conclusions regarding the Fundamental Law and its amendments. 

See the English-language version of the Tavares Report. 

Specific Criticisms of the Fundamental Law and its Amendments in the Tavares Report 

Unilateralism 

The Tavares Report noted that the National Assembly had adopted the Fundamental Law “exclusively with the votes of the members of the governing coalition and on the basis of a draft text prepared by the representatives of the governing coalition” under conditions “restricting the possibilities for a thorough and substantial debate with the opposition parties and civil society on the draft text.”

The report stated, furthermore, that the Orbán government’s National Consultation on the Fundamental Law “consisted of a list of twelve questions on very specific issues drafted by the governing party in a way that could have led to self-evident replies.” 

Cardinal Laws 

The Tavares Report observed that “the Fundamental Law of Hungary refers to 26 subject matters to be defined by cardinal laws (that is laws the adoption of which requires a two-thirds majority), which cover a wide range of issues relating to Hungary’s institutional system, the exercise of fundamental rights and important arrangements in society.”  

The report asserted that “the extensive use of cardinal laws to set forth very specific and detailed rules undermines the principles of democracy and the rule of law, as it has enabled the current government, which enjoys the support of a qualified majority, to set in stone political choices with the consequence of making it more difficult for any new future government having only a simple majority in the parliament to respond to social changes, and thus of potentially diminishing the importance of new elections.”

The report therefore called upon the government Hungary “To reduce the recurrent use of cardinal laws in order to leave policy areas such as family, social, fiscal and budget matters to ordinary legislation and majorities.”

The Constitutional Court

The Tavares Report criticized the stipulation of the Fundamental Law according to which “the Constitutional Court‘s powers of ex post review of the constitutionality of budget-related laws from a substantive point of view have been substantially limited to violations of an exhaustive list of rights, thus obstructing the review of constitutionality in cases of breaches of other fundamental rights such as the right to property, the right to a fair trial and the right not to be discriminated against.”

The report observed that “the Fourth Amendment to the Fundamental Law further stipulated that the rulings of the Constitutional Court adopted before the entry into force of the Fundamental Law shall be repealed,” stating that the European Parliament is “extremely concerned about those provisions of the Fourth Amendment which repeal 20 years of constitutional jurisprudence, containing an entire system of founding principles and constitutional requirements. . . .”

The report furthermore criticized the provision of the Fourth Amendment to the Fundamental Law prohibiting the Constitutional Court from reviewing amendments to the law on substantive grounds.

The report thus called upon the government Hungary “To fully restore the prerogatives of the Constitutional Court as the supreme body of constitutional protection, and thus the primacy of the Fundamental Law, by removing from its text the limitations on the Constitutional Court’s power to review the constitutionality of any changes to the Fundamental Law, as well as the abolition of two decades of constitutional case law.”

The National Judicial Office

The Tavares Report stated that the “amendment of the cardinal laws on the judiciary as regards the power of the President of the National Judicial Office to transfer cases from the presiding court to another court to ensure the adjudication of cases within a reasonable period of time fails to lay down objective normative criteria for the selection of the cases to be transferred.”

The report thus called upon the government of Hungary “to limit discretionary powers of the President of the National Judicial Office in the context of the transfer of cases, which potentially affect the right to a fair trial and the right of a lawful judge.”

Mandatory Retirement Age for Judges

The report asserted that the “radical lowering of the retirement age for Hungarian judges, as well as prosecutors and notaries, from 70 to 62 constitutes unjustified discrimination on grounds of age.”

The Budget Council

The report noted that “a non-parliamentary body, the Budget Council, with limited democratic legitimacy, has been granted the power to veto the adoption of the general budget, thus restricting the scope for action of the democratically elected legislature and allowing the President of the Republic to dissolve the parliament.” The report therefore called upon the government of Hungary “to restore the prerogatives of the parliament in the budgetary field and thus secure the full democratic legitimacy of budgetary decisions by removing the restriction of parliamentary powers by the non-parliamentary Budget Council.”

Freedom of Religion

The report noted “with concern that the changes made to the Fundamental Law by the Fourth Amendment give the parliament the power to recognise, by way of cardinal laws and without a constitutional duty to justify a refusal of recognition, certain organisations engaged in religious activities as churches, which might negatively affect the duty of the state to remain neutral and impartial in its relations with the various religions and beliefs.”

Special Tax to Pay Court-Imposed Financial Obligations

The report asserted that there was uncertainty regarding “the conformity with EU law of the provision of the Fourth Amendment which enables the Hungarian Government to impose a special tax in order to implement EU Court of Justice judgments entailing payment obligations when the state budget does not have sufficient funding available and when the public debt exceeds half of the gross domestic product.”

Political Advertising in the Commercial Media

The report expressed “concern at the effects of the provision of the Fourth Amendment banning political advertising in the commercial media since, although the stated aim of this provision is to reduce political campaign costs and create equal opportunities for the parties, it jeopardizes the provision of balanced information.”

Independence of the Public Media

The report deplored “the fact that the creation of the state-owned Hungarian News Agency (MTI) as the single news provider for public service broadcasters, while all major private broadcasters are expected to have their own news service, has meant it has a virtual monopoly on the market, as most of its news items are freely available” (see Media Services and Support Trust Fund). 

The report recalled “the recommendation of the Council of Europe to eliminate the obligation on public broadcasters to use the national news agency, as it constitutes an unreasonable and unfair restriction on the plurality of news provision.”

Homelessness

The report expressed concern that the stipulation of the Fourth Amendment to the Fundamental Law providing municipal councils with the right to prohibit the habitation of public areas “could lead to homelessness being addressed through the criminal law,” recalling “that the Hungarian Constitutional Court had judged that similar measures contained in the Petty Offences Act were unconstitutional as contrary to human dignity” (see Orbán Government Homeless Policy). 

Recommendations: The Copenhagen Commission

The Tavares Report reiterated “the urgent need to tackle the so-called ‘Copenhagen dilemma,’ whereby the EU remains very strict with regard to compliance with the common values and standards on the part of candidate countries but lacks effective monitoring and sanctioning tools once they have joined the EU.”

The report therefore called “for the establishment of a new mechanism to ensure compliance by all Member States with the common values enshrined in Article 2 TEU [Treaty on European Union], and the continuity of the ‘Copenhagen criteria’; this mechanism could assume the form of a ‘Copenhagen Commission’ or high-level group, a ‘group of wise men’. . . “

The report stated that the purpose of the organization outlined above would be to “regularly monitor respect for fundamental rights, the state of democracy and the rule of law in all Member States, while fully respecting national constitutional traditions” and to “warn the EU at an early stage about any risks of deterioration of the values enshrined in Article 2 TEU [Treaty on European Union].”

Last updated: May 30, 2016.