Systemic backsliding of the Rule of Law in Hungary: State Control
Viktor Orbán, the longest-serving current leader of an EU Member State, has presided over a sharp decline in democratic freedoms over the course of his tenure. Through a series of constitutional and legislative reforms pushed through parliament by his party’s enduring supermajority, Hungary has experienced a level of democratic backsliding so far unseen in the European Union.
This following article outlines how the systematic backsliding of the Rule of Law in Hungary, orchestrated by Orbán and the Fidesz party, has chipped away at EU values, endangering citizens’ rights, autonomies and freedoms, turning Hungary into a hybrid regime with unprecedented state control over academia, civil society and the media.
Interested to know more? Find out about the launch of the papers [1] on Rule of Law Backsliding in Hungary and in these articles on the background to the research and Rule of Law turning into Rule by Law in Hungary.
State control in academia
Academic discussion and independent research form the bedrock of public discourse on constitutional rights. In Hungary, small waves of change have been eroding the foundation of academia – after a number of subtle yet notable instances of academic freedoms crumbling away, fewer researchers are daring to voice dissenting opinions.
Seismic shifts
The changes made to the Hungarian Constitution in 2011 included an amendment – further expanded in 2013 – to a constitutional guarantee of freedom and autonomy of higher education, with wide-reaching effect. This amendment specifically allowed the government to ‘supervise’ and ‘govern’ the management of universities.
One of the first steps the government took under this provision was to hand-select the universities’ rectors. The government also initiated transformation plans for previously state-funded public universities. Corvinus University saw their founding assets moved into a trust fund, the Maecenas Universitatis Corvini Foundation. This State-managed foundation would theoretically be able to generate more funding, and create distance between the government and the university. However, it is run by an unelected, delegated board of trustees, with almost unlimited mandate as to how it operates.
A long shadow
The ripples of the government’s influence could be felt by academic researchers. The Central European University was ousted from operating in Hungary in 2019, in a manner declared a violation of WTO commitments and EU principles of academic freedom by the ECJ. The university was banned under a law that prohibited the operation of foreign-branch universities in Hungary. The law seemed targeted at the CEU, which holds American and Hungarian accreditation, and has dual legal recognition in the US and Hungary.
On an individual level, researchers have found themselves feeling repercussions for voicing critical opinions. In 2019, the journal for Debrecen law school was pressured to withdraw a paper documenting the dangers the appointment procedure poses to judicial independence.
The National University of Public Service had accepted to host an international conference on hate crime, with a focus on crime towards LGBT and immigrant communities, but cancelled for political reasons. Andrea Kozáry, a professor at the Faculty of Law Enforcement and Police Science, was fired after criticizing the cancellation. Another colleague, Ferenc Krémer, had been fired a few years earlier for similarly criticizing the government.
State Control in civil society
NGOs and civil society noticed a distinct shrinking of space around their operations, as the government began to close ranks against what they perceived to be foreign interference.
Unfair treatment
Hungary has received approximately 300 million EUR since 2004 through the Economic European Area and Norwegian Grants Scheme, through which Norway, Iceland, and Liechtenstein fund programmes in EU countries to reduce social and economic disparities. This foreign funding became a target for scrutiny, as state organs investigated NGOs that received financial support through the scheme. No further direct action was taken.
Leveraging the potential threat to national security, the Hungarian parliament adopted legislation in 2017 “on the Transparency of Organisations which receive Support from Abroad” (referred to as Lex NGO), which directly connected “funding from unknown foreign sources” with the potential to “endanger the political, economic interests of the country”. Under this law, if the funding an NGO receives is twice the amount referenced in another 2017 law aimed at preventing money laundering and terrorism, the NGO must register as a foreign-funded organisation, or face penalties. By explicitly linking a “transparency” regulation with a “terrorism” statute, the groundwork is set for future legislating against any foreign presence in Hungarian civil society. The 2020 judgment of the ECJ in Commission v Hungary found the legislation to be incompatible with EU law. However, as of writing, the Hungarian government has taken no steps to amend the legislation, and Norway announced in 2021 that it would not provide financial aid to Hungary, after the two states failed to reach an agreement over who should distribute the funds.
State control through media reform
The reform of the media has followed the now-familiar pattern of reformation and centralisation. With the threat of imprisonment or heavy fines, the voice of the media has been silenced. This chilling effect limits the freedom of public interest and objective journalism, and a dominant pro-government media prevents any meaningful opposition.
Oversight
The former media authority, the National Radio and Television Board, was dissolved, and the newly-established Media Council was filled with Fidesz-selected candidates. The Media Council has complete oversight over mergers, broadcast frequencies, and acceptable content – and has used its power liberally since its creation. All independent public broadcast providers have since merged under an umbrella organisation (MTVA), supervised by the Media Council, which can also appoint the president of the MTVA.
The most well-known instance of excluding a media broadcaster is Klubrádió. The left-liberal radio station was due to renew its radio frequency licence in 2011, and faced resistance from the Media Council. After a legal battle, the Media Council withdrew its opposition. In February 2021, the Media Council – now with greater powers and influence – announced it would not renew the license, citing “repeated legal violations” in the station’s content. Klubrádió’s radio frequency was auctioned off to pro-establishment broadcasters, and it is now only an online service.
Criminalising journalistic freedom
Finally, the Hungarian Parliament has used the COVID-19 pandemic to extend its powers over broadcast content. In a modification of the Penal Code, sharing ‘fake news’ relating to an emergency to the public is punishable by up to three years imprisonment. Sharing distorted or false information that would jeopardise the state’s attempts at public protection would receive one to five years imprisonment. While still currently limited to public health measures, these amendments are likely to have a chilling effect on journalistic freedom.
The freedom to gather material for investigation and broadcast has also been significantly curbed: media outlets published pictures, taken by drones, of the assets of Lőrinc Mészáros, a prominent business figure close to Orbán. In response, a new law regulating the use of drones and the publication of footage without the permission of the featured person or owner was passed, and was made punishable by up to one year imprisonment.
Follow us from more in-depth analysis on the systemic backsliding of the Rule of Law in Hungary. Find out about the launch of the papers[1] on Rule of Law Backsliding in Hungary and in these articles on the background to the research and Rule of Law turning into Rule by Law in Hungary.
[1] Please note that the NHC has supported the academics to make this research possible and has provided a platform to launch their findings, while in no way intervening in the selection of topics, substance, nor conclusions drawn from the studies.
List of papers:
Paper I: P. Bárd, N. Chronowski, Z. Fleck (2022) The Crisis of the Rule of Law, Democracy and Fundamental Rights in Hungary
Paper II: P. Bárd, A. Koncsik, Z. Körtvélyesi (2022) Tactics Against Criticism of Autocratization. The Hungarian Government and the EU’s Prolonged Toleration
Paper III: P. Bárd, N. Chronowski, Z. Fleck (2022) Inventing Constitutional Identity in Hungary
Paper IV: N. Chronowski, Á. Kovács, Z. Körtvélyesi, G. Mészáros (2022) The Constitutional Court
Paper V: P. Bárd, N. Chronowski, Z. Fleck, Á. Kovács, Z. Körtvélyesi, G. Mészáros (2022) Is the EU toothless? An assessment of the Rule of Law enforcement toolkit
Paper VI: Pending
Paper VII: Z. Fleck, Á. Kovács, Z. Körtvélyesi, G. Mészáros, G. Polyák, P. Sólyom (2022) The Changes Undermining the Functioning of a Constitutional Democracy
