Democracy. The constitutional system that populations in the Western World expect their governments to abide by and ensure is maintained. Yet, it is under threat in these uncertain times. The global coronavirus pandemic has caused unprecedented legal reform to be passed by legislators across the world in order to handle the outbreak, many giving wide emergency powers to their government. Several countries have exercised caution, ensuring that their proposed laws have been scrutinised and do not violate international human rights treaties, yet others have been accused by critics of usurping democracy and the rule of law by disguising authoritarian legal reform as necessary to control the outbreak. Hungary, a member of both the European Union and the Council of Europe, is an example of the latter.
On the 30th of March 2020, the Hungarian parliament approved a bill granting Prime Minister Viktor Obran and his government emergency powers to control the coronavirus crisis. The powers granted by this bill were staggering, allowing the Prime Minister to rule by decree. Since the bill was enacted, over 80 decrees have been issued by the Hungarian government under the emergency powers, including changing the existing labour law, abandoning all protection for employees and enforcing military control on all Hungarian hospitals and around 150 private companies, who now can only make decisions with the approval of military personnel. The emergency legislation was introduced by the government to deal with the pandemic crisis and was supposed to be temporary, however, the bill has no expiry date and the government’s majority coalition control two thirds of the national parliament; human rights groups fear the emergency legislation may become permanent.
In response to the Hungarian emergency legislation, the European Parliament issued a statement outlining that the new Hungarian measures are “totally incompatible with European values”[1] and the European Commission is threatening legal action against Hungary. As a member of the European Union, Hungary’s domestic laws must be compatible with EU law, or else risk invalidity. Hungarian Justice Minister Judit Varga has counterclaimed the EU stating “If the EU wants to be able to claim it is a union of equal members, it needs to drop its double standards.”[2] Varga has advocated that the country is taking similar steps to other European nations and that there is “No power grab in Hungary.”[3]
The criticism facing Hungary is not only international but also domestic, with the legal scholar Gabor Halami stating that “Hungary is no longer a democracy”[4]. It is the Prime Minister who nominates and elects the judges sitting on the Constitutional Court preventing judicial independence. Halami believes they will refuse to make a ruling against the government on any serious political matter such as this. The President of Hungary, János Áder is also a member of the Fidesz ruling party and took only 2 hours to investigate whether the proposed bill was politically and constitutionally competent before signing it into law. With little possibility of successful legal action against the government able to be brought in the domestic courts, critics now look to the European Commission and the European Parliament for action.
As a member of the EU, Hungary is bound by the associated treaties which are directly applicable to EU member states.[5] Article 2 of the Treaty of Union[6] sets out the fundamental principle that the Union was created to respect ‘human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. Critics and human rights lawyers have advocated that the Hungarian emergency bill is a violation of Article 2[7] as it ignores the rule of law, removes democratic accountability of the government and threatens the freedom of journalists. As shown in the Costa case,[8] unlike international treaties, the EU treaties have created ‘its own legal system which, on the entry into force of the Treaty, became an integral part of the legal system of the member states and domestic courts are bound to apply.’[9] If the Commission decides to take action against Hungary regarding Article 2[10], the former has the power to launch infringement proceedings against the member state to the Court of Justice of the European Union under Art 258.[11] While the EU cannot unilaterally expel a member state, it does have the power to suspend certain rights through Article 7 of the Treaty of Lisbon[12] where it believes there is a clear risk that a member state is breaching an EU fundamental right such as freedom, democracy or the rule of law. In practice, however, Article 7 requires all other member states to agree to the suspension of rights and, in the current political climate, Hungary and Poland will likely support one another rendering Article 7 ineffective.
In addition to passing the emergency powers bill, Hungary passed a bill strictly limiting transsexual recognition. The new law, approved by the national parliament by 134 votes to 56, prohibits transsexual and intersex people from changing the gender that was registered on their birth certificate, stating that identity will be determined forever by “primary sex characteristics and chromosomes”.[13] This move has prompted heavy criticism from LGBTQ+ organisations such as the Hatter Society who deem the law to go against both the Hungarian constitution and the European Convention of Human Rights,[14] and Amnesty International arguing the law endangers the lives of transsexual people. The European Council itself has warned that the bill contradicts case law of the ECHR with the Commissioner of the Council of Europe calling it a “blow to the human dignity of trans people”.[15] Despite the international criticism, the bill will likely be signed into law by the Hungarian President and supported by the Hungarian Constitutional Court as they are both loyal to the Prime Minister and the government. In response to the criticism, the government supporting ‘Center for Fundamental Rights’ defended the law stating it was “to fill a legal gap and to get rid of some of the uncertainty of legal interpretation”.[16]
Known as a living instrument, the ECHR continues to transform and assert new positive obligations for Contracting Parties, transsexual rights in particular. Article 8 of the ECHR[17] protecting one’s “private and family life” has often been asserted by individuals to cover the recognition and protection of transsexual rights. In the Goodwin cases[18] the European Court of Human Rights in Strasbourg affirmed the recognition and protection of transsexual rights ruling that there was “the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexuality of post-operative transsexuals”.[19] With such recognition being now protected by the ECHR, Contracting Parties are afforded a narrow margin of appreciation in their state actions. This was demonstrated in the Y.Y v Turkey case[20] where the refusal by Turkey to authorise gender reassignment surgery to an individual because they were able to procreate was ruled by Strasbourg to be a violation of Article 8. While the Turkish Civil Code outlined that gender reassignment surgery would only be allowed where the applicant was incapable of procreating, Strasbourg deemed that Turkey only had a narrow margin of appreciation due to the intimate nature of transsexual rights and the wider recognition throughout Europe of such rights. As a result of the aforementioned case law, Hungary would most likely be found acting in violation of Article 8 concerning their new transsexual law. Strasbourg would also likely impose a narrow margin of appreciation on Hungary’s obligation under the convention as it is a widely held view in Europe to recognise transsexual rights, as demonstrated in Y.Y v Turkey.[21]
While the possibility of a Strasbourg ruling against Hungary is high, the effects of such a violation are more uncertain. While the Strasbourg court can rule that certain actions, omissions, laws or court decisions violate the ECHR, the court cannot itself invalidate or annul such acts. Instead, the Contracting Parties are bound by the findings of the ECHR in removing any violations of the Convention and ensuring such violations do not occur again. This was shown in the Manchester City Council v Pinnock[22] where the UK Supreme Court ruled that ‘This Court is not bound to follow every decision of the ECtHR’.[23] Further examples can be demonstrated in regards to Russia being in violation on 186 occasions and often being accused of continuing the state action.[24] Where a Contracting Party has been found to have violated the convention, the Council of Europe relies on the political weight of such a ruling to force the state to remedy the violation or risk international criticism. There are concerns, however, that the current coronavirus outbreak in Europe and the rest of the world will allow Hungary to evade the political consequences of their transsexual bill with members of the Council of Europe prioritising controlling coronavirus. Strasbourg may take many years to consider a complaint regarding the Hungarian bill, and during this time transsexuals will be unable to have their gender legally recognised or protected, risking the possibility of both discrimination and violence against them.
Hungary’s legal reforms have prompted criticism both domestically and internationally as “undemocratic” and “draconian”. Both the European Union and the Council of Europe have the power to initiate legal action against Hungary in their respective parliaments, yet both actions will result in a lengthy litigation period with no guarantee of success or end to the accused violation. The situation in Hungary is, however, part of a bigger issue emerging globally. In Poland, the government has been accused by critics of undermining judiciary independence, in Turkey journalists have been detained for their coverage of the pandemic and in Russia the state has been criticised for enabling thousands of facial recognition cameras enabling the police to arrest street protestors long after the pandemic ends. Globally, countries have been accused of using the coronavirus pandemic to usurp democracy and the rule of law through laws giving emergency power to the government, enabling a tighter authoritarian system. The pandemic has caused the world to live in unprecedented times, and this has necessitated emergency laws to be passed to control this virus. These legal measures must, however, be proportionate, temporary and scrutinised. Countries which seek to use the pandemic to enact draconian laws depriving individuals of their human rights must be held to account. Society will survive the coronavirus crisis, yet we must also ensure democracy survives as well.
[1]European Parliament, ‘Hungary emergency measures: MEPs ask EU to impose sanctions and stop payments’ (2020) <https://www.europarl.europa.eu/news/en/press-room/20200512IPR78917/hungary-s-emergency-measures-meps-ask-eu-to-impose-sanctions-and-stop-payments>, accessed 1 June 2020
[2] Judit Varga, ‘No power grab in Hungary’ (POLITICO, 25 March 2020) <https://www.politico.eu/article/coronavirus-hungary-no-power-grab/>, accessed 1 June 2020
[3] Ibid
[4] Felix Schlagwein, ‘“Hungary is no longer a democracy,” says Hungarian legal scholar’ (DW, 14 May 2020) <https://www.dw.com/en/hungary-is-no-longer-a-democracy-says-hungarian-legal-scholar/a-53442394>, accessed 1 June 2020
[5] Case 26/62 Van Gen den Loos v Nederlandse Administratie de Belastingen [1963] ECR 1, 2
[6] Consolidated Version of the Treaty on European Union [2008] OJ C115/13
[7] Ibid, art 2
[8] Case 6/64 Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] ECR 585
[9] Ibid, 593-4
[10] Ibid (n8)
[11] Consolidated versions of the Treaty of European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1
[12] Treaty of Lisbon [2007] OJ C306
[13] Shaun Walker, ‘Hungary prepares to end legal recognition of trans people’ (The Guardian, 26 April 2020) <https://www.theguardian.com/world/2020/apr/26/hungary-prepares-to-end-legal-recognition-of-trans-people>, accessed 1 June 2020
[14] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)
[15] Ibid n12
[16] Benjamin Novak, ‘Hungary Outlaws Changing Gender on Documents After Birth’ (The New York Times, 28 May 2020) <https://www.nytimes.com/2020/05/28/world/europe/hungary-transgender-law.html>, accessed 1 June 2020
[17] Ibid (n19), art 8
[18] Goodwin v United Kingdom, (App. 28957/95), 11 July 2002 [GC]
[19] Ibid, 85
[20] Y.Y. v Turkey (App. 14793/08), 10 March 2015
[21] Ibid (n19)
[22] Manchester City Council v Pinnock [2010] UKSC 45
[23] Ibid, 48
[24] European Court of Human Rights, ‘Russia Press Country Profile’ (2020) <https://www.echr.coe.int/Documents/CP_Russia_ENG.pdf>, accessed 1 June 2020
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Goodwin v United Kingdom, (App. 28957/95), 11 July 2002 [GC]
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