Venice Commission Criticism of the Fundamental Law and the Fourth Amendment

Council of Europe Criticism of the Fundamental Law and its Fourth Amendment

The Council of Europe is an international organization based in Strasbourg, France, composed of all the states in Europe with the exception of Belarus and including Russia, Ukraine, Georgia, Armenia and Azerbaijan. The 47-member Council of Europe was established with ten founding members in 1949. Hungary joined the Council of Europe in 1990.

The Council of Europe should not be confused with the European Union, though the two organizations share the same flag. Unlike the European Union, the Council of Europe does not have the right to pass binding laws.

The Council of Europe’s European Commission for Democracy through Law, known as the Venice Commission because it was founded and meets in Venice, Italy, issued strongly critical opinions of the Fundamental Law at its plenary session on June 17–18, 2011 and of the Fourth Amendment to the Fundamental Law at its plenary session on June  14–15, 2013.

However, the Council of Europe’s Parliamentary Assembly in Strasbourg voted on June 25, 2013 not to initiate an official monitoring procedure against Hungary in spite of “serious and sustained concerns” regarding the country’s compliance with its obligations as a member of the organization (source in English). (The Council of Europe is currently monitoring ten member states: Russia, Georgia, Armenia, Azerbaijan, Ukraine, Moldova, Serbia, Bosnia and Herzegovina, Montenegro and Albania.)

Specific Criticisms of the Fundamental Law

The Venice Commission, which is composed of specialists in constitutional law from all 47 Council of Europe member states and 12 other countries, voiced the following criticisms of the Fundamental Law in its “Opinion on the New Constitution in Hungary” published on June 20, 2011 (source in English):

 —Stipulates too many Cardinal Laws requiring a two-thirds majority vote in the National Assembly to amend or repeal.

 —Contains “extra-territorial elements” that “may give rise to resentment among neighboring states” and “create inter-ethnic tension.”

—Prohibits the Constitutional Court from assessing the constitutionality of laws related to the government budget and taxation as long a state debt exceeds half of  gross domestic product unless these laws infringe upon the right to life and human dignity, the protection of personal data, the freedom of thought, conscience and religion or rights related to Hungarian citizenship.

—Reduces the retirement age for judges from 70 to the general retirement age of 62.

—Was drafted and adopted without sufficient transparency, public debate and dialogue between the National Assembly governing coalition and opposition.

—Defines marriage as “the union of a man and a woman,” thereby laying the foundation for the possible exclusion of same-sex unions. 

—Provides for the protection of embryonic and fetal life from the moment of conception, which may under certain circumstances come into conflict with the “positive obligations of the state to secure the physical integrity of mothers-to-be.”

Criticism of the Fourth Amendment to the Fundamental Law

The Venice Commission voiced the following criticisms of the Fourth Amendment to the Fundamental Law in its “Opinion on the Fourth Amendment to the Fundamental Law” published on June 13, 2013 (source in English):

—Declares the Hungarian Socialist Workers’ Party and its predecessors to have been criminal organizations and its leaders to be accountable without statute of limitations for the crimes they committed “using general terms without any chance for an individual assessment.” 

—Provides the National Assembly with the right to recognize Churches via Cardinal Law without “procedural guarantees for a neutral and impartial application of the provisions pertaining to the recognition of Churches.”

—Forbids all political advertisements in commercial media during officially defined campaign periods for national elections.

—Stipulates that the right freedom of speech may not be exercised in such a way as to violate the dignity of the “Hungarian nation or any national, ethnic, racial or religious community,” thus potentially infringing upon the right to free speech and limiting criticism of Hungarian institutions and office holders.

—Enables the National Assembly to pass laws compelling those who received government grants to cover the cost of university of tuition to repay these grants if they do not work in Hungary for an unspecified period of time following graduation, potentially infringing upon the right to freely choose a job or profession.

 —Grants municipal councils the right to pass local ordinances prohibiting habitation of public places and punish violation of such ordinances as Petty Offenses, thus, as the Hungarian Supreme Court earlier ruled, potentially infringing upon the right of homeless people to human dignity as defined in the Fundamental Law (see Orbán Government Homeless Policy). 

—Empowers the president of the National Judicial Office with the general authority to “exercise the central responsibility for administration of the courts” and the specific authority to transfer cases from one court to another without sufficient accountability to other judicial bodies, notably the National Judicial Council.

—Prohibits the Constitutional Court from referring to any of the decisions it made from the court’s establishment in 1990 until the introduction of the Fundamental Law on January 1, 2013.

—Stipulates that the Constitutional Court may only review amendments to the Fundamental Law on procedural grounds, thus making it impossible for the court to review amendments on substantive grounds.

—Authorizes the government to impose special taxes to cover the cost of payments stemming from a decision of the Constitutional Court of Hungary, the Court of Justice of the European Union or any other court as long as government debt exceeds half of gross domestic product.

Last updated: May 30, 2016. 

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