First come the Venice Commission criticisms, followed by the government response. You be the judge.

Issue and criticism: The Fundamental Law gives a description of family, which is exclusive to sexual minorities and single parent families.

Fact: Contrary to the Draft Opinion of the Venice Commission, the Fundamental Law does not contain a legal definition of the notion of family, neither a similar definition for marriage. Instead, it merely declares that the “basis of family ties” is marriage or the relationship between parents and children. (Not “and” meaning both at the same time as the Venice Commission puts it due to a mistake in translation)

This statement is of a moral character, defining family as the foundation for Hungarian society and under no circumstances is this is to be considered a normative content. That’s the reason both the Civil Code in force and the new Civil Code, recently adopted by Parliament (on 11 February 2013 as Act V of 2013), ensure consistency with the case law of the European Court of Human Rights as regards family relationships. Besides, the legal institution of the registered partnership (of same-sex couples) regulated in a separate Act since 2009 continues to be in force also under the Fundamental Law.

While it is clear that there are different approaches to defining marriage in Europe, the Venice Commission had formerly stated that the definition of marriage belongs to the Hungarian state and its constituent legislator.

Issue and criticism: The Fourth Amendment refers to the communist past, and sins of the communist dictatorship in the country.

Fact: The previous constitution was adopted by the last communist Parliament (most certainly not based on free elections) in 1989. It was therefore not a product of a nationwide political compromise or reconciliation, but was handed down by the monolithic ruling elite. Needless to say that constitution did not address the communist past by any measure.

We see that the country owes a debt to the oppressed, especially the survivors of the 1956 revolution and communist oppression, an acknowledgment of communist crimes and a tribute to those who stood up for freedom, suffering existential and life-threatening conditions as a result.

This particular part of the amendment has a declarative and political character that does not lay down hard and fast rules, but rather defines directions for further legislation.

Issue and criticism: The recognition of churches not guaranteed in a way that it ensures freedom of religion.

Fact: In Hungary, everyone has the freedom to choose his or her religion or other belief and to express it, and neither the Fundamental Law nor the rules of the applicable cardinal act limit the freedom of religion. This right was part of the preceding Constitution in a way that this regulation has not been modified by the Fundamental Law or by its Fourth Amendment. Furthermore, in the opinions supporting decision 6/2013, the Constitutional Court recognised that the freedom of religion is indeed ensured in Hungary.

The neutral guarantee of the free practice of religion and granting special status to those religious organizations (e.g. through registration of churches), which wish to cooperate with the state closely (like getting involved in state functions, such as elderly care or basic schooling) are two different matters. The fact that countries may differentiate (not discriminate!) among various religious organizations (churches) is also recognized by the Venice Commission in its 2004 Guidelines for Review of Legislation Pertaining to Religion and Belief: “[l]egislation that acknowledges historical differences in the role that different religions have played in a particular country’s history are permissible so long as they are not used as a justification for ongoing discrimination” (Chapter II.B.3).

The granting of this privileged status is subject to judicial control through the entire procedure by the ordinary administrative courts or by the Constitutional Court.

Issue and criticism: Media access for political parties is limited due to the amendment.

Fact: A particular type of political advertising, specifically TV and radio campaign spots, will be limited to state TV and radio channels, to ensure that air time on the national public channels during the campaign period will be free of charge and subject to strict allocation criteria. This clause is motivated by the legitimate demand that differences in the financial backing of parties should not distort access to television and radio during the electoral campaign. The limit (which is otherwise a common practice in other countries, e.g. France, Italy, Norway, Poland) in fact should guarantee access to these media and help level the playing field.

Also, within commercial radio and television, political talk shows, news programs, analyses, and similar programming come under no restriction. The only restriction that applies is with regard to commercial radio and TV advertising.

Issue and criticism: Freedom of speech is limited

Fact: According to the Hungarian Constitutional Court’s ruling “human dignity may put a limit on the freedom of expression.” The Venice Commission also stated that “the EU Charter places the individual and individual dignity at its heart.” This demand is also frequently formulated by minority organizations and as a country which has survivors of both the Nazi and Communist oppression, the government chooses to follow these directions.

According to the new Civil Code, which enters into force March 15, 2014, “in the event of any legal injury made before great publicity, to some essential trait of his or her personality, in relation to him or her belonging to the Hungarian nation or to some national, ethnic, racial or religious community, severely offensive to the community or unreasonably insulting in its manner of expression, any member of the community is entitled to enforce his or her personality right within thirty days. With the exception of surrendering the material advantage achieved through the infringement, any member of the community may enforce any sanction of the infringement of personality rights.” Under the Civil Code the party affected may, among others, ask the court to declare the infringement, to issue an injunction to stop the infringement, to seek damages.

So, in this regard, it is hate speech, not free speech, which is limited.

Normally, we would conduct this consultation, this back-and-forth, with the Commission in private until it arrives at a final position, but after the draft opinion was leaked, the Government of Hungary was compelled to respond publicly.

The Venice Commission is regarded as the authority on these matters, but we can’t have a reasonable dialogue if they don’t have a solid grasp of the facts. In its draft opinion, as we can see, the Venice Commission lacks a good command of the facts and even contradicts its own previous positions.

Source: A Blog About Hungary

This opinion does not necessarily represent the views of this portal, your opinion is welcome too via info@xpatloop.com