"The report is not against Hungary, not against Hungarians"

Rui Tavares at the TEDxO'Porto 2013 conference.
Photo: Tiago A. Pereira, source: Flickr, License: CC BY-NC 2.0

August 2, 2013
On 3 July, the European Parliament adopted the resolution[i] “on the situation of fundamental rights: standards and practices in Hungary”, which sharply criticises the state of fundamental rights and the rule of law in Hungary, and formulated a number of recommendations for Hungarian authorities. MEP Rui Tavares, the rapporteur in charge of wording the report, discusses the resolution’s afterlife and its implications for democracy in Hungary and Europe.

--

It would be interesting to hear your expectations concerning the outcome of the procedure launched by the European Parliament. Contrary to what some believe, the report cannot be equated with the EU’s official opinion, and it is non-binding in character. Do you expect the Hungarian government to take the report seriously and to provide a detailed reply?

Let me start by saying that the resolution is binding for the Parliament. In addition to calling on Hungarian authorities to inform the EU’s institutions and the Council of Europe regarding the implementation of the measures requested in the report, the Parliament has also invited the Commission and the Council to each designate a representative who, together with the Parliament’s rapporteur and shadow rapporteurs, will assess the reply sent by the Hungarian authorities, as well as follow up on possible future modifications to ensure compliance with Article 2 of the Treaty on European Union[i]. Importantly, both President Barroso and Vice-president Reding of the European Commission have already announced that they will follow up on our recommendations. It is clear that we are entering uncharted territory, but the bottom line is that one of the institutions of the Union – and the only one which has the political legitimacy of being directly elected by the citizens – has now stated for the first time that a government of a member state has created a legal and constitutional framework which is incompatible with the laws of the Treaties. This will surely provoke the other institutions to action. If it does not, then we will have an enormous inter-institutional problem in the Union. Now, the Hungarian government has said it will work with the Commission and also have a political dialogue with the Parliament. This is precisely the framework in which the report is intended to work, so I expect that the recommendations regarding the restoration of the rule of law, democratic values and fundamental rights in Hungary will form a key part of the debate that the Hungarian government will need to have with European institutions. I am not in a position to say how detailed, how specific the reactions of the Hungarian government will be. What I can say is that the report requested the Conference of Presidents, the highest body of the parliament after the plenary, to assess the responses from the Hungarian government and to use the tools provided by the Treaty on European Union – including Article 7 – in the event that these responses are not satisfactory. Therefore, I think the framework is set up in a way that allows for a constructive dialogue no matter what the Hungarian government’s reply is.

Judging by the initial reactions of Viktor Orbán, who dismissed the report as unfair and biased – going as far as to compare it to the Soviet invasion of Hungary – it does not appear very likely that the Hungarian government will implement the recommendations contained in the report. Do you disagree?

Well, some would like the debate to be about questions which are not contained in the report – for instance, utility prices in Hungary. The report has nothing to do with that – not in its origins, not in its content, not in its intentions. Others would like to present the report as an accusation against Hungarians. The report is emphatically not that – it is not against Hungary, not against Hungarians. It is about a specific legal and constitutional framework set up by the government in the last two to three years. Finally, the report is not about the past. It is not about the Soviet Union and Hungary, although it is about democracy in Europe – and democracy in Europe has had a long and sometimes very complicated past. Rather, the report focuses on the present and the near future. Now, let me say something about the resolution[ii] passed by the Hungarian government in defence of Hungary’s sovereignty. Hungary’s sovereignty is not in question or under attack. What is in question is the compatibility of these sovereign measures and the values that we have in the Treaties, to which all member states are bound. No one doubts that Hungary is sovereign and that its parliament can legislate. Concerning the other part of the resolution, which deals with utility prices and the role of international companies, this is beside the point. I have nonetheless informed the President of the European Parliament, Mr Martin Schulz, on the insinuation contained in the Hungarian parliament’s resolution that the European Parliament’s actions could have been motivated by interests other than those of democracy and fundamental rights. I believe that these allegations are completely unfounded, but this matter should be dealt with in the framework of inter-parliamentary dialogue between the European and Hungarian parliaments.

Listening to you, I have the impression that you will not be satisfied if the outcome of this procedure is that the Hungarian government refrains from curbing fundamental rights in the future, but without changing the existing constitutional framework which is sharply criticised in the report.

The situation is clear in this regard. The report calls attention to the existence of unresolved problems in Hungary’s constitutional framework. Take the problems related to the independence of the judiciary. For instance, the judges who had been forced into early retirement and recently won their case in court[iii] have not been reinstated to their previous posts. This is something that needs to be resolved. The curtailment of the Constitutional Court’s scope of action is also in question, since the Venice Commission, the Council of Europe itself, and the UN High Commissioner for Human Rights have all formulated strong criticism in that regard. Then there is the constitutionally entrenched possibility of redirecting cases from one court to another court in the middle of a judicial procedure[iv]. Although the government has indicated that it is ready to remove the clause allowing for this from the Constitution, it has yet to adopt and enact new legislation. As you know, the report also formulated a general conclusion based on its detailed assessment of the situation of fundamental rights in Hungary. The conclusion formulated in the report is that the modifications introduced into the legal and constitutional framework amount to a systemic change, and that the general trend is a move away from the common values enshrined in Article 2 of the Treaty on European Union. Shortcomings such as the lack of a lively and open debate in society about fundamental pieces of legislation and insufficient time for adopting new legislation – which curtails the rights of the opposition – exhibit a clear tendency. Now, it is up to the Hungarian government and the parliamentary majority to decide how to correct this tendency, but everyone in and outside Hungary should know that the European Parliament and other European institutions will continue to carefully examine – for as long as necessary – whether this trend is corrected in a sufficient manner. As I said, the report provides for the rapporteur – myself – and the shadow rapporteurs to follow up on events and responses, and it also provides for setting up a “trilogue” between the three key European institutions: the Commission, the Council and the Parliament. So we will remain on the field, so to speak.

Still, isn’t there a risk that the report could further alienate Hungarian citizens from the European project? Some moderate opposition figures in Hungary who are otherwise in agreement with the report’s main conclusions have suggested that it touches upon issues in which the EU should not interfere – for instance, the definition of the family. How do you see this?

Well, let me clarify. We are not interfering with the definition of the family. We know that this is a national competence. It is up to national parliaments to decide whether they define marriage as linking a man and a woman, or whether they allow for same-sex marriage. The report only mentions the family in the context of those citizens who were previously covered by family law and now fall outside that definition. This means that there are citizens whose previously gained rights have been curtailed. The report simply asks the Hungarian government to take into account the legislative trend in Europe – which is moving in the direction of broadening the scope of the definition of the family – and the potential negative impact of a restricted definition of the family on the fundamental rights of those who will be excluded by the new and more restrictive definition. Concerning other issues, for instance anti-Semitism and anti-Roma sentiment, we used restrained, moderate language to call attention to the persistence of anti-Roma and anti-Semitic hate speech in the public sphere and in the Hungarian parliament. Now, some critics have focused on these issues in order to avoid having to talk about the core issues addressed in the report – the independence of the judiciary, the rights of the opposition, the powers of the Constitutional Court, which are the cornerstones of democracy – and to argue instead that the report wishes to push Hungary in a direction in which its sovereign, democratically elected government does not want the country to go. Let me stress again that this is emphatically not the case. Now, concerning the broader issue of Euroscepticism and, notably, whether the report may fuel such sentiment in Hungary, I must say that I have not had that impression from the discussions I have had with Hungarians. Even those who criticised the report felt that the dialogue between us was somehow natural; in other words, they did not feel that the debate should not be taking place at all. I would add that the Hungarian prime minister himself paid an important service to European democracy by coming to Strasbourg. Why? Because by participating in the parliamentary debate he made the European dialogue on the situation of fundamental rights in Hungary appear natural. So what is creating anti-European sentiment is not the report or the dialogue as such, but rather the commentary on them. My position on this is quite pragmatic: I believe that everyone has his or her responsibilities. The role of the European Parliament is to defend our common fundamental rights. That is what the citizens who elected us ask of us. I must say that I have heard Hungarians asking why the European Parliament is not doing more, in the sense of conducting similar investigations with regard to other member states. My reply has been that this is a completely fair point, which we must take into account in the future. One important comment though: Before 2009, the Lisbon Treaty was not in vigour, so the Parliament had no legal basis for conducting such procedures. But the point I wanted to stress is that citizens all over the Union are asking us to do more – not less – when it comes to fundamental rights in Europe. This is infinitely more important to them than the size of cucumbers in the EU.

We know from the outcome of the ballot that a number of right-wing European parliamentarians abstained from the vote. However, the majority of centre-right MEPs decided to oppose the resolution. Based on the debates that are behind you, do you see a realistic chance for overcoming the left-right divide with a view to creating the new institutions – e.g. a “Copenhagen Commission” – which the report deems necessary for building a “Union of Democracy”?

Well, in my opinion the left-right divide has already been overcome to a large extent in this particular case. Bear in mind that only one of the seven political groups in the European Parliament has an against vote in the voting lists on this report. Even the most Eurosceptic political group – Europe of Freedom and Democracy (EFD) – gave a free vote to its MEPs. Now, if the report went as far as is claimed by some of its opponents – who have suggested that it seeks to give significant new powers to the European Union – you could be sure to have an against vote on the part of the EFD. Let me also note that it is not only MEPs from the European People’s Party (EPP) who abstained from the vote, but also conservative MEPs belonging to the European Conservatives and Reformists (ECR), formed by the British Conservative Party, the Polish Law and Justice Party (PiS) and the Civic Democratic Party (ODS) of the Czech Republic. There could have been even more votes in favour had we not mentioned Article 7 in the text. This, however, was an obligation written into the resolution that gave us our mandate. Some of those who voted against the report assured us that they supported the intermediate measures contained in it: the recommendation to create a “Copenhagen Commission” and an “Article 2 TEU / Alarm Agenda”[v]. And there are also governments led by EPP member parties who have signalled that they would support the proposed rule of law mechanism. What is clear from this is that there is a common perception of the existence of a problem within the Union, and that this problem has to do not only with Hungary, but also with the Union itself. This is precisely what prompted us to formulate the idea of establishing a “Copenhagen Commission”. I think it is clear to most MEPs that there are limits and risks posed by the fact that the Parliament is a political institution and that it will remain a plural institution in the future. There is an awareness that political groups could retaliate against one another by following the precept “you talk about my country, I’ll talk about yours”, or – even worse – entering into a gentlemen’s agreement based on the precept “if you don’t talk about my country, I won’t talk about yours”. This would be a terrible thing because the Parliament could be unable to act in the event of a fundamental rights crisis in Europe. So we need to equip ourselves with technical, non-political instruments, such as the proposed “Copenhagen Commission”, which would be ready to press the alarm button when we have a problem.

Should we conceive of the “Copenhagen Commission” as the European Union’s Venice Commission? More importantly, what makes you think such a body would be able to fulfil its mandate of acting as the guardian of fundamental rights in the Union?

Yes, the comparison with the Venice Commission is correct. You could imagine the commission as a permanent body formed by experts such as the ombudsmen of the member states or representatives of the equal rights authorities of the member states. But this is something that still requires a lot of reflection and debate. The first steps towards such a permanent institution will be the establishment of a Copenhagen high-level group by the European Parliament and a number of forums for trans-European discussion, such as the Assises de la Justice of the Commission or the conference that we will organise with the national parliaments at the end of this year. One thing I would like to point out here is that one of the crucial questions will be whether the future “Copenhagen Commission” should be endowed with decisional powers or not. It is clear that granting the body such competences would require existing Treaties to be amended, whereas giving it largely consultative powers – such as “pressing the alarm button” when politicians do things they should not be doing – would only require an inter-institutional agreement between the Commission, the Council and the Parliament. I think the latter is very much within the realm of the politically possible. Moreover, I would also stress that such an expert body would make our work much easier because its experts could conduct the empirical analyses required for the fact-finding component of any report. Now, concerning your second question, for this body to function well it must have strong moral authority. To achieve this, it will have to be perceived from the outset as having unquestionable independence and unassailable technical expertise. This is why I mentioned the participation of ombudsmen and other “wise men” with distinguished careers and a deep understanding of the rule of law and the safeguarding of fundamental rights.

Moving away from the technicalities, let me finally ask you to what extent the investigation process culminating in the report has changed the perception of Hungary in the European political class. And, vice versa, to what extent has the Hungarian case changed the way these politicians think about Europe as a political community? 

Indeed, it has been a two-way process. On the one hand, we now know much more about the legal intricacies of what is going on in Hungary. The main task here was not to get lost in a sea of details. Of course, the details have to be there, but the point is to reach more general conclusions. I believe the debate has shown that our general conclusions were correct. The legal and constitutional changes implemented in the last two to three years in Hungary have been systemic, and the general trend is towards the concentration of power in the hands of the majority. But this conclusion has not blinded us – neither me, the other shadow rapporteurs nor our fellow MEPs – to the fact that Hungary has played a decisive role in the critical moments of building European democracy – sometimes in a tragic way. Everyone remembers how Hungary was abandoned in 1956. While I was researching for the report, I read old resolutions from the Council of Europe dating from 1956. These quoted the revolutionaries from Budapest who said they were fighting — and dying — not only for a free Hungary but also for a free Europe. So the European dimension already appeared there and then. The role of Hungary in 1989 is also well known to the point that I don’t even need to go into it in detail here. So there is no doubt that Hungary was and is an admirable country with an admirable people. The report has in no way changed that. Now, concerning the other side of the equation – what the report means for Europe – it has been clear for everyone working in the LIBE Committee (the Civil Liberties Committee of the European Parliament) that the consequences of the economic crisis would not be restricted to the socioeconomic realm. European history shows us that such crises tend to find expression in the political realm and have a negative impact on fundamental rights as well. It is sad, but we have not been immune to this tendency, as revealed by the current crisis of democratic representation all over Europe. Populist leaders appear, portraying themselves as infallible and having solutions to all problems. When their solutions fail, they generally look for excuses by instigating conflicts and laying blame on putative opponents. This is something that we Europeans need constantly to think about and to keep in mind. Thinking about how to solve the problems arising from the crisis cannot be left to politicians alone. You need pressure from below to push things in the right direction. What I am hoping for is that the case at hand will reveal important connections between national public spheres and events that are usually treated as separate and unique. I hope, for instance, that Hungarians will realise that if you mess with the rule of law in Hungary, then the same thing can happen in Romania or Slovakia, and some of the first people to bear the consequences will be the Hungarian minorities there. The lesson, of course, applies all over the continent. Let me remind you of what happened with the Roma recently in France, and how this was connected to debates and events in Romania, Bulgaria and even Germany. So I hope European citizens will realise that what is going on in another member state may have very powerful repercussions on their own lives.

--

Rui Tavares is a Portuguese politician and Member of the European Parliament working in the Greens–European Free Alliance group. He is Vice-chair of the Special Committee on Organised Crime, Corruption and Money Laundering and Member of the Committee on Civil Liberties, Justice and Home Affairs.

The interview was conducted and transcribed by Kristóf Szombati.

Footnotes:
[i]
The consolidated version of the Treaty on European Union can be accessed here.

[ii] The English translation of the resolution can be downloaded here (PDF)

[iii] On the request of the European Commission, the Court of Justice of the European Union ruled on 6 November 2012 that the abrupt and radical lowering of the retirement age for judges, prosecutors and notaries in Hungary violates EU equal treatment rules. The press release of the Court (available in English) can be downloaded here (PDF)

[iv] In 2012 Hungary’s government established a new National Office for the Judiciary (NOJ) and awarded its president a wide range of powers including the authority to transfer cases from one court to another. The Venice Commission, an advisory body of the Council of Europe, slammed the move for handing sweeping powers to the head of the new body in a March report, and the European Commission threatened legal action if Hungary did not amend this law, among several others. Despite these warnings Hungary’s parliament adopted a constitutional amendment on 11 March 2013 which entrenched the power of the president of the NOJ to transfer cases into the country’s Fundamental Law. Most recently the government announced its intention to amend the Constitution and to introduce new legislation with a view to limiting the powers of the president of the NOJ. The amendment procedure is currently in progress in the Parliament. For more information on the practice of the president of the NOJ concerning the designation of the court in charge in the year 2012 see the NOJ’s official report (available in English): 

[v] See paragraph 70 in the report.

Dossier: Focus on Hungary

The Heinrich Böll Foundation has compiled a dossier containing articles and interviews on the situation in Hungary since the right wing government came to power in April 2010. The driving goal behind the project is to analyze and interpret the changes in the domain of public life at ‘half-time’, two years before the next parliamentary elections.