Archive item

Title: Draft opinion on the Fourth Amendment to the Fundamental Law of Hungary
Other/original title:
Publisher: Council of Europe
Files: Venice-Commission-draft-opinion-on-Hungary-s-fourth-constitutional-amendment.pdf
Abstract: The Venice Commission, an advisory body of the Council of Europe, completed this draft opinion on the controversial Fourth Amendment to the Hungarian Constitution on 29 May; the document became public when it was accidentally put online briefly. The review, based on comments by Commission members Christoph Grabenwarter, Wolfgang Hoffmann-Riem, Hanna Suchocka, Kaarlo Tuori and Jan Velaers, focuses on the compatibility of the amendment with Council of Europe standards. The analysis scrutinizes provisions ranging from the protection of marriage and the recognition of churches to the autonomy of higher education and the incrimination of homelessness, including provisions on media access for political parties and limitations of the freedom of speech. The review also tackles provisions affecting the rule of law, judiciary independence and the Constitutional Court's authority, and the use of the Constitution and cardinal laws in general. Its analysis of a new provision on political advertising, which guarantees national parties free advertisements on public media but bans them from commercial outlets, finds several flaws. It cites the Constitutional Court ruling being overturned by this provision, which warned that such a ban "targets exactly the type of media that reaches voters in the widest range". It points out that the provision doesn't specify how much advertising the public media are to air. Modifying the provision to exclude only European elections, as the government suggested, would merely introduce an "arbitrary" distinction. Whereas the government referred to a European court case on Norway to illustrate how paid political advertising is prohibited in other countries too, the opinion notes that the court ruled against the Norwegian ban. The report also analyzes the new provision that "the right to freedom of speech may not be exercised with the aim of violating the dignity of the Hungarian nation or of any national, ethnic, racial or religious community". The terms used, it finds, are much broader than ruled justified to limit hate speech by European case law. The government has argued that the provision is intended to fight racist and anti-Semitic speech, but the report finds "no indication in the wording that [it] is only aimed at the protection of those communities". Instead, it "creates the risk that freedom of speech [could be curtailed] to protect majority instead of minority views".
Publication/ adoption date: 2013-05-29
Language: English