COMMISSION STAFF WORKING DOCUMENT 2022 Rule of Law Report Country Chapter on the rule of law situation in Hungary Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2022 Rule of Law Report The rule of law situation in the European Union

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COMMISSION
Luxembourg, 13.7.2022
SWD(2022) 517 final
COMMISSION STAFF WORKING DOCUMENT
2022 Rule of Law Report
Country Chapter on the rule of law situation in Hungary
Accompanying the document
Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions
2022 Rule of Law Report
The rule of law situation in the European Union
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1
ABSTRACT
As regards judicial independence, concerns expressed in the context of the Article 7(1) TEU
procedure initiated by the European Parliament, as well as in previous Rule of Law Reports,
remain unaddressed. This is also the case for the relevant recommendation made under the
European Semester. These concerns relate in particular to the challenges faced by the
independent National Judicial Council in counter-balancing the powers of the President of the
National Office for the Judiciary, the rules on electing the President of the Supreme Court,
and the possibility of discretionary decisions as regards judicial appointments and
promotions, case allocation as well as bonuses to judges and court executives. Following the
Supreme Court decision declaring unlawful a request for preliminary ruling, the European
Court of Justice ruled that such decision is contrary to EU law. As regards efficiency and
quality, the justice system performs well in terms of the length of proceedings and has an
overall high level of digitalisation. The gradual increase of salaries of judges and prosecutors
continues.
The implementation of most measures under the 2020-2022 anti-corruption strategy was
postponed and no new strategy has been announced. Shortcomings persist as regards
lobbying, revolving doors as well as political party and campaign financing. Independent
control mechanisms remain insufficient to detect corruption. Concerns remain regarding the
lack of systematic checks and insufficient oversight of asset declarations as well as the lack
of conflict of interest rules for the public interest trusts. The lack of a robust track record of
investigations of corruption allegations concerning high-level officials and their immediate
circle remains a serious concern, although some new high-level corruption cases have been
opened. The lack of judicial review of decisions not to investigate and prosecute corruption
remains a cause of concern, in particular in an environment where risks of clientelism,
favouritism and nepotism in high-level public administration remain unaddressed. The
Commission sent Hungary a written notification under the Regulation on a general regime of
conditionality to protect the EU budget in case of breaches of the principles of the rule of law.
The functional independence of the Media Authority needs to be strengthened. The continued
channelling of significant amounts of state advertising to pro-government media creates an
unlevel playing field in the media landscape. Public service media operates in a complex
institutional system, amid concerns over its editorial and financial independence. Media
professionals continue to face challenges in exercising their activities, including with the
surveillance of investigative journalists. Access to public information continued to be
hindered under the state of danger.
As regards the system of checks and balances, the transparency and quality of the legislative
process remain a source of concern. The Government has been using its emergency powers
extensively, also in areas not related to the COVID-19 pandemic as initially invoked. The
Commissioner for Fundamental Rights has gained more competences, but his accreditation
was downgraded following concerns regarding his independence. The ineffective
implementation by state organs of judgments of European and national courts is a source of
concern. Pressure continues on civil society organisations, whilst the public-interest trusts
receiving significant public funding and managed by board members close to the Government
have become operational.
2
RECOMMENDATIONS
In addition to recalling the obligation to comply with the rule of law-related rulings of the
ECJ and the rule of law related infringement procedures referred to in the country chapter, the
concerns raised under the conditionality regulation, the relevant concerns raised in the Article
7 TEU procedure initiated by the European Parliament, and recalling the relevant country-
specific recommendations under the European Semester, it is recommended to Hungary to:
 Strengthen the role of the National Judicial Council, while safeguarding its independence,
to effectively counter-balance the powers of the President of the National Office for the
Judiciary.
 Adapt the rules related to the Kúria to remove judicial appointments outside the normal
procedure, to strengthen eligibility criteria for the Kúria President, and to strengthen
control by judicial bodies over the Kúria President, taking into account European
standards, and to remove the possibility of reviewing the necessity of preliminary
references, in line with EU law requirements.
 Adopt comprehensive reforms on lobbying and revolving doors, and strengthen the
system of asset declarations, providing for effective oversight and enforcement.
 Establish a robust track record of investigations, prosecutions and final judgments for
high-level corruption cases.
 Introduce mechanisms to enhance the functional independence of the media regulatory
authority taking into account European standards on the independence of media
regulators.
 Strengthen the rules and mechanisms to enhance the independent governance and
editorial independence of public service media taking into account European standards on
public service media.
 Adopt legislation to ensure fair and transparent distribution of advertising expenditure by
the state and state-owned companies.
 Remove obstacles affecting civil society organisations.
3
I. JUSTICE SYSTEM
Hungary has a four-tier ordinary court system. 113 district courts operate at first instance,
while 20 regional courts hear appeals against district court decisions and decide on certain
cases at first instance. Five regional appeal courts decide on appeals against decisions of the
regional courts. The main role of the Supreme Court (Kúria) is to guarantee the uniform
application of the law. The Fundamental Law tasks the President of the National Office for
the Judiciary (NOJ), elected by Parliament, with the central administration of the courts. The
National Judicial Council is an independent body, which, under the Fundamental Law,
supervises the NOJ President and participates in the administration of the courts. Judges are
appointed by the President of the Republic following a recommendation of the NOJ President
based on a ranking of candidates established by the local judicial councils (composed of
judges elected by their peers). The NOJ President cannot deviate from this ranking without
the prior consent of the National Judicial Council. The Constitutional Court is not part of the
ordinary court system and reviews the constitutionality of laws and judicial decisions. The
prosecution service is an independent institution vested with powers to investigate and
prosecute crime. The Hungarian Bar Association and the regional bar associations are
autonomous self-governing public bodies.
Independence
Perceived judicial independence continues to be average among the general public and
low among companies. The level of perceived judicial independence by the general public
remains average, marking a slight increase from 40% in 2021 to 43% in 20221
. According to
data in the 2022 EU Justice Scoreboard, perceived judicial independence by companies
remains low, 34% of companies perceive judicial independence as ‘fairly or very good’, an
increase compared to the 32% in 20212
. As regards the general public, the five-year negative
trend in perceptions turned in 2022; as regards companies, after a significant drop in 2019,
perceptions continue to improve.
There have been no legislative steps to address concerns related to the lack of checks
and balances in the administration of courts. On 23 May 2022, in the context of the
European Semester, the Commission proposed3
to the Council to address to Hungary a
recommendation to strengthen judicial independence, noting that the National Judicial
Council continues to face difficulties in counter-balancing the powers of the NOJ President as
regards the management of the courts4
. Although there have been some positive
developments regarding the NOJ President’s cooperation with the National Judicial Council5
,
the powers of the National Judicial Council have not been extended to ensure effective
1
Figure 50, 2022 EU Justice Scoreboard. The level of perceived judicial independence is categorised as
follows: very low (below 30% of respondents perceive judicial independence as fairly good and very good);
low (between 30-39%), average (between 40-59%), high (between 60-75%), very high (above 75%).
2
Figure 52, 2022 EU Justice Scoreboard.
3
Recital (27), Recommendation for a Council Recommendation on the 2022 National Reform Programme of
Hungary and delivering a Council opinion on the 2022 Convergence Programme of Hungary.
4
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 2.
5
Stakeholders report that since November 2021, the NOJ President has regularly attended the meetings of the
National Judicial Council and has had an improved track record in reacting to the requests of the Council.
Thus, on 1 December 2021 the NOJ President agreed that the Office would cover the costs of the Council’s
website (contribution from the Hungarian Association of Judges for the 2022 Rule of Law Report, p. 11;
contribution from the European Association of Judges for the 2022 Rule of Law Report, p. 6).
4
oversight over the NOJ President6
, and further guarantees against possible arbitrary decisions
by the NOJ President are necessary7
. In its Opinion8
of 16 October 2021, the Venice
Commission recalled its previous consideration that the powers of the NOJ President remain
very extensive when wielded by a single person and their effective supervision remains
difficult.
The absence of effective control over the NOJ President increases the possibility of
arbitrary decisions as regards the career of judges. Judges’ first appointments are limited
to three years, at the end of which the court president assesses their suitability for judicial
tenure and may, if they are found suitable, request the NOJ President to recommend the
President of the Republic to appoint them for an unlimited period of time9
. On 4 November
2021, the second-instance service court attached to the Kúria ruled10
that judges who, after
their initial appointment, are found unsuitable for tenure by the court president, cannot
challenge the assessment report itself, but only have a remedy when proceedings are brought
against them by the court president with a view to establishing their professional
incompetence11
. There is no possibility to grant interim relief to prevent an interruption of the
judicial career during the review of the evaluation. Stakeholders have underlined that this
raises concerns as regards effective judicial protection of the judges concerned, affecting their
independence12
. After consulting the National Judicial Council, the NOJ President has
prepared a draft legislative proposal to amend the rules, which was subsequently agreed by
the Council13
. In another set of proceedings, on 2 June 2021, the Kúria ruled14
that there is no
6
Contribution from the European Association of Judges for the 2022 Rule of Law Report, pp. 10-11. The
NOJ President has not acted on a call made on 2 February 2022 by the National Judicial Council to initiate
disciplinary proceedings against a Regional Court President because of his failure to shield a senior judge
from undue external pressure. To be noted that the National Judicial Council has no legal basis to oblige the
NOJ President to initiate disciplinary proceedings against a court president.
7
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 5. For instance, the Integrity Policy issued by the NOJ President, which can be used to deter
judges from discussing in public issues related to judicial independence, has not been amended (ibid., p. 9).
Stakeholders argue that its provisions are unclear and leave room for arbitrary interpretation and may hinder
judges’ involvement in public discourse (Amnesty International Hungary (2021), Status of the Hungarian
judiciary, p. 24). Article 26(1) of the Fundamental Law and 39(1) of Act CLXII of 2011 prevent judges from
engaging in political activities.
8
CDL-AD(2021)036, para. 66, point a).
9
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 7. The court president
evaluates the overall performance of the judge based on the examination material and the documents and
assessments obtained.
10
Decision SzfÉ.9/2021/14. In the case at hand, the former judge challenged this decision before the
Constitutional Court; the case is pending (IV/00390/2022). Stakeholders relate the finding of unsuitability
for that judge to the fact that, on 7 September 2018, she had made a request for a preliminary ruling in an
asylum case (Judgment of the CJEU of 19 March 2020, Bevándorlási és Menekültügyi Hivatal (Tompa), C-
564/18, ECLI:EU:C:2020:218): joint contribution from Amnesty International Hungary and eight other
CSOs for the 2022 Rule of Law Report, p. 4.
11
Section 81 of Act CLXII of 2011 provides that if a judge is found unfit, the court president – when
communicating the evaluation results – calls on the judge to resign from office within thirty days. If the
judge fails to comply, the court president notifies the first-instance service court which opens incompetency
proceedings following the rules of disciplinary proceedings.
12
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 4.
13
Meeting of the National Judicial Council of 13 June 2022.
14
Judgment Mfv.X.10.049/2021/16. The plaintiff, a District Court judge, ranked first in two subsequent
application procedures for posts at a Regional Appeal Court. The NOJ President annulled both procedures
without any meaningful explanation, thereby preventing the plaintiff’s promotion. The judge concerned
challenged the Kúria judgment before the Constitutional Court; the case is pending (IV/03595/2021).
5
judicial remedy available against decisions of the NOJ President annulling a call for
applications. Stakeholders report that the NOJ President does not publish calls for
applications for all vacated judicial posts15
. Although there is an appointment and promotion
procedure in place, the NOJ President has extensively used the exceptions allowed by the law
to fill a vacancy without a call for applications. In 2021, the reassignment of judges after the
end of their secondment to other state bodies outside the judiciary was added to the list of
exceptions16
. As observed by the Venice Commission in its Opinion17
of 16 October 2021,
this system should not be used to institute a practice of bypassing the ordinary processes of
promoting judges, noting that there are no criteria established for the NOJ President to assign
a judge to a higher position.
The courts hearing administrative cases have been reorganised and the possibility of
discretionary termination of judges’ assignment raises concerns. As of 1 March 2022, an
‘omnibus’ law18
reorganised the judicial review of administrative decisions19
. The Budapest
Regional Appeal Court now hears appeals against first-instance decisions of the eight
regional courts with an administrative department. The Kúria hears petitions for review and
uniformity complaints limited to points of law. Exceptionally, in cases related to elections,
referenda and freedom of assembly20
the Kúria proceeds as a first and last instance court21
.
The Kúria reviews the legality of municipal decrees. Since there is no separate administrative
courts system, judges are specifically assigned, with their consent, to hear administrative
cases. In the Kúria, judges dealing with administrative cases are assigned by the Kúria
President; in other courts, they are assigned by the NOJ President upon proposal of the court
president22
. Neither the criteria nor the terms of an assignment or the termination thereof are
set out by law. In the absence of such criteria, such assignments can be terminated on a
discretionary basis, without the consent of the judge concerned. Judicial review is available
against these decisions23
. In the absence of criteria for the termination of the assignment,
there are doubts as regards the effectiveness of such judicial review. This possibility of a
discretionary removal from the pool of judges hearing administrative cases raises concerns as
regards judicial independence, given that it could exert undue pressure on the judges
concerned. According to European standards, individual judges must be free not only from
15
Contribution from the European Association of Judges for the 2022 Rule of Law Report, p. 5. Under Section
9(3) of Act CLXII of 2011, vacated judicial posts are not necessarily published, as the NOJ President may
decide to transfer the post to another court, or to fill the vacancy without publishing a call for applications.
16
Sections 8(f), 27/A, 58 and 62/C of Act CLXII of 2011.
17
Venice Commission (CDL-AD(2021)036), para. 59.
18
Act CXXXIV of 2021 was adopted by Parliament on 14 December 2021, without public consultation,
following the request of the Kúria President.
19
Another ‘omnibus’ legislation introduced structural changes to the existing court system seeking to make
administrative justice work faster and more predictably (2020 Rule of Law Report, Country Chapter on the
rule of law situation in Hungary, p. 6).
20
Except for the dissolution of an assembly by the police.
21
Section 229 of Act XXXVI of 2013.
22
Section 30(1) and (3) of Act CLXII of 2011 and Sections 76(5)(e) and 77(1) of Act CLXI of 2011.
23
Sections 76(5)(e) and 77/A(2) of Act CLXI of 2011 and Section 145(1) of Act CLXII of 2011). In 2021, the
NOJ President, following a proposal from the respective court presidents, unilaterally terminated the
assignment of several judges (including presiding judges) without any meaningful justification, with a 2-3
days’ notice (Decisions 102.E/2021 (IV. 26.) OBHE, 104.E/2021 (IV. 27.) OBHE, 122.E/2021 (V. 17.)
OBHE, 137.E/2021 (VI. 9.) OBHE, 166.E/2021 (VI. 28.) OBHE, 167.E/2021 (VII. 2.) OBHE, 176.E/2021
(VII. 22.) OBHE, 312.E/2021 (XI. 23.) OBHE). In their joint contribution for the 2022 Rule of Law Report
(pp. 4-5), Amnesty International Hungary and eight other CSOs also refer to such situation.
6
undue influences outside the judiciary, but also from within, such as from those who have
administrative responsibilities in the court24
.
Appointments to and the case allocation in the Kúria have raised concerns. As of 1
March 2022, as a rule, administrative cases are heard in the Kúria by panels of five judges25
;
in cases related to elections and referenda, the bench is composed of three judges26
. The
Kúria’s case allocation scheme assigns judges to chambers organised in civil, criminal and
administrative departments. The scheme for the allocation of cases between chambers27
does
not determine the composition of the judicial panel28
. The key elements of the case allocation
scheme are regulated by law29
. The case allocation scheme is established by the Kúria
President; the Kúria’s judicial council and the competent department give a non-binding
opinion30
and have limited powers31
. Litigants can consult the case allocation scheme and
obtain information about the number of chambers and their composition on the Kúria’s
website. The Venice Commission Opinion of 16 October 2021 analysed the Kúria’s case
allocation scheme and made proposals to the authorities32
. Stakeholders complained that the
Kúria’s case allocation scheme does not allow the parties to verify on the basis of which
criteria the composition of the bench has been determined33
. European standards34
require
that the allocation of cases within a court follow objective, pre-established criteria in order to
safeguard the right to an independent and impartial judge. As regards the appointments to the
Kúria, the concerns on the rules on electing its President, expressed in the 2021 Rule of Law
Report, have not been addressed35
. The number of judicial posts in the Kúria is not set by
statute but by a decision of the NOJ President36
. New judicial posts have been opened in the
24
See judgment of the European Court of Human Rights of 22 December 2009, Parlov-Tkalčić v. Croatia,
24810/06, para. 86.
25
Section 8(6) of Act I of 2017. Before this amendment, all cases were heard by three judges of the Kúria. In
civil and criminal cases, the Kúria President may set up five-judge panels for certain groups of cases,
following a non-binding opinion of the department concerned and of the judicial council of the Kúria (2021
Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 3). The Venice
Commission has recommended to determine in the law itself the criteria for setting-up a five-judge panel for
certain types of cases (CDL-AD(2021)036), para. 66, point b).
26
Section 229(2) of Act XXXVI of 2013.
27
Section 10(1) of Act CLXI of 2011.
28
Chambers in the Kúria include two to four presiding judges and three to five other judges. The panel hearing
a case is composed of judges belonging to the same chamber.
29
Section 10(1) of the Act CLXI of 2011.
30
Sections 9(1), 151(1)(d) and 155(c) of Act CLXI of 2011.
31
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, pp. 3-5.
32
The Venice Commission recommended that the opinion of the judicial bodies be made public and binding in
order to ensure the transparency of the process and increase the trust of the citizens in the good and impartial
functioning of the judiciary (CDL-AD(2021)036), para. 66, point b).
33
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 7. According to stakeholders, in 2021, in at least one politically sensitive case the composition of
the adjudicating panel was not in line with the case allocation scheme. Upon the freedom of information
request lodged by the Hungarian Helsinki Committee, the Kúria responded (2021.El.IV.H.35/2) that it does
not keep record of derogations from the case allocation scheme and that it has no obligation by law to inform
parties on any such derogation.
34
Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, para. 24. See
also judgment of the European Court of Human Rights of 2 May 2019, Pasquini v. San Marino, 50956/16,
paras. 100, 101 and 110.
35
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, pp. 5-6.
36
2020 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 5.
7
Kúria, mainly in the administrative department37
. According to stakeholders, due to the
points system38
applied for the assessment of applications, candidates with little judicial
experience or coming from a political career without judicial experience have also been
appointed39
. Stakeholders report that the practice of secondment extends far beyond its legal
objectives and may be used to circumvent the guarantees of judicial appointments in regular
application procedures40
.
The Court of Justice issued a ruling precluding the Kúria from declaring a request for
preliminary ruling unlawful. Following a decision of 10 September 2019 in which the
Kúria had considered a preliminary reference by a Hungarian court to the Court of Justice
unlawful, the Court of Justice ruled on 23 November 202141
that EU law precludes a national
supreme court, following an appeal in the interests of the law brought by the Prosecutor
General, from declaring a request for a preliminary ruling submitted by a lower court
unlawful on the ground that the questions referred are not relevant and necessary for the
resolution of the dispute in the main proceedings. The Court of Justice also found that EU
law precludes disciplinary proceedings from being brought against a national judge on the
ground that the judge has made a preliminary reference42
. On the same day, the Kúria issued
37
Contribution from the European Association of Judges for the 2022 Rule of Law Report, p. 5. In 2021, 14
judicial and 10 senior (executive) positions were opened at the Kúria, significantly changing its composition.
The Government notes that due to legislative changes that entered into force on 1 April 2020, the number of
administrative cases brought before the Kúria has almost doubled. This required the setting-up of new
chambers within the Kúria’s administrative department and an increase in the number of Kúria judges
dealing with administrative cases. As soon as the obstacles caused by the COVID-19 pandemic were
removed in 2021, 10 vacancies in the Kúria could be filled through calls for applications. Further vacancies
were also filled through calls for applications.
38
See 2020 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 2. Judicial
applications are assessed on the basis of a points system established by Decree 7/2011 of 4 March 2011,
issued by the Minister of Justice and based on Act CLXII of 2011, which contains an exhaustive list of
criteria to be taken into consideration in determining the ranking of applicants. The Minister of Justice can
define the number of points to be awarded for these criteria. The assessment system awards points based on
an interview and certain elements of the application file (e.g. length of service as a senior civil servant,
experience with the assessment and preparation of draft legislation). According to the Government, the
points system ensures that both candidates with a previous judicial experience and candidates coming from
outside the court system may be appointed a judge under the same conditions. It determines the objective
criteria for awarding points to candidates.
39
For example, a candidate who had been a State Secretary. Contribution from the European Association of
Judges for the 2022 Rule of Law Report, pp. 5-6.
40
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 7. In 2020, 43 judges were seconded to the Kúria (NOJ President (2021), 2020 Annual Report, p.
17). Some judges spend years at the Kúria without a call for applications. Judges can be seconded to another
court to support their professional development or to guarantee the even distribution of the workload
between courts (Section 31(2) of Act CLXII of 2011). The Government notes that by summer 2022, long-
term secondments to the Kúria have been completely abolished. As of 1 March 2022, the number of
administrative cases brought to the Kúria has been decreasing which also contributes to a significant change
in the practice of secondments.
41
Judgment of the CJEU of 23 November 2021, IS, C-564/19, ECLI:EU:C:2021:949.
42
On 10 September 2019, the Kúria held a preliminary reference by a District Court judge to the Court of
Justice to be unlawful, considering the questions irrelevant for the case at hand. The Kúria decision was of a
declaratory nature and did not annul the decision to refer the case to the Court of Justice. Nevertheless, in
October 2019, the ad interim president of the Budapest Regional Court, referring explicitly to the decision of
the Kúria, initiated disciplinary proceedings against the judge who issued the preliminary reference. In
November 2019, the court president withdrew his motion for the opening of disciplinary proceedings.
8
a statement43
confirming that until it decides otherwise, its decision44
is final and its
interpretation of the law binding. The procedural rules45
allowing to challenge before the
Kúria the necessity of a preliminary reference have not been amended. The Court of Justice
has made clear that a decision by the Kúria considering a preliminary reference unlawful is
liable to weaken both the authority of the answers that the Court is to provide to the referring
judge and the decision that the latter will give in the light of those answers46
.
The rules on the uniformity procedure have been amended. In response to the 16 October
2021 Opinion of the Venice Commission47
, as of 1 January 2022, Parliament amended48
the
rules of the uniformity procedure49
conducted by the Kúria. The legislative amendment
assimilated the rules of the uniformity procedure to those of the uniformity complaint
procedure which may be initiated by parties to proceedings50
.
Judicial salaries continued to increase, while the discretionary award of bonuses by
court managers continues to raise concerns. Judicial salaries have been increased over a
period of three years51
. In the third phase, as of 2022, the salary base for judges and
prosecutors was further increased by 13%. As regards bonuses, there is no statutory list or
definition of the types and forms of bonuses that the NOJ President and court presidents can
distribute among judges, nor are there clear criteria as to what serves as the basis of such
43
Kúria (2021), Statement regarding the judgment delivered by the Court of Justice of the EU in case C-
564/19. In an earlier statement dated 16 April 2021, the Kúria reaffirmed that its decision was limited to
declaring a violation of criminal procedure rules.
44
Bt.III.838/2019/11.
45
Sections 667 and 490(1) of Act XC of 2017.
46
Judgment of the CJEU, of 23 November 2021, IS, C-564/19, ECLI:EU:C:2021:949, paras. 74-75. In its
contribution to the 2022 Rule of Law Report (pp. 20 and 22), the European Association of Judges considered
that this could dissuade Hungarian courts from referring questions for a preliminary ruling to the Court of
Justice.
47
CDL-AD(2021)036.
48
Section 71 of Act CXXXIV of 2021 amending Act CLXI of 2011.
49
The Kúria’s uniformity decisions are binding on courts (Article 25(3) of the Fundamental Law). As
explained in the 2021 Rule of Law Report, the uniformity procedure – now renamed ‘preliminary reference
procedure in the interest of uniformity of law’ – can be applied in two scenarios. In the first scenario, when a
Kúria chamber wishes to deviate from the Kúria’s published case law, it must stay the proceedings and
request a uniformity decision. In the second scenario, the Kúria (vice) President, the heads of Kúria
departments and the Prosecutor General may request a uniformity decision if it is necessary to ensure the
uniform interpretation of the law, or to alter or annul a previous uniformity decision (2021 Rule of Law
Report, Country Chapter on the rule of law situation in Hungary, p. 4). Section 27(2) of Act CLXI of 2011
provides that the regional (appeal) court presidents may propose that the head of the competent Kúria
department make a preliminary reference in the interest of uniformity of law.
50
The amendment did not abolish the possibility to adopt the binding uniformity decisions as proposed by the
Venice Commission (CDL-AD(2021)036), para. 66, point c). Parties to the proceedings may lodge a
uniformity complaint against a final decision of the Kúria if it deviates from the Kúria’s published case law
(2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 4). After the
amendment, the preliminary reference in the interest of uniformity of law is decided by the uniformity
complaint panel (Section 34 of Act CLXI of 2011). Although the legal rules on the composition of the
uniformity complaint panel have not been changed (it is chaired by the Kúria President or Vice President; its
other members are selected by the chair), as of 1 January 2022, the Kúria President amended the case
allocation scheme to set up two uniformity complaint panels, each composed of the Kúria President and
Vice President and 19 senior Kúria judges.
51
2020 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 6. As of January
2020, salaries were increased on average by 32%, and as of January 2021, by 12%.
9
decisions52
. According to stakeholders, this wide discretion can lead to self-censorship by
judges53
. The NOJ President’s refusal54
to provide the National Judicial Council with
anonymised data regarding the award of bonuses further adds to a lack of transparency.
According to the interpretation of the NOJ President, this issue is not covered by the
supervisory powers of the National Judicial Council. According to the Council of Europe, the
principal rules of the system of remuneration for professional judges should be laid down by
law and systems making judges’ core remuneration dependent on performance should be
avoided as they could create difficulties for the independence of judges55
.
The rules on the removal of the Prosecutor General have been amended, while GRECO
recommendations remain to be fully addressed. Certain elements of the legal framework
led GRECO to issue recommendations to review the rules for appointment of the Prosecutor
General in order to safeguard the office from political influence56
. As of 18 November 2021,
an amendment to a cardinal law57
introduced the requirement of two-thirds majority of all
members of Parliament when voting on the removal of the Prosecutor General from office.
This rule applies to the incumbent Prosecutor General, elected in 2019 for a period of nine
years58
. The recommendation of GRECO to remove the possibility to maintain the Prosecutor
General in office after the expiry of his/her mandate remains unaddressed59
. Stakeholders
have expressed concerns as regards the discretionary powers of the prosecution service to
decide on the investigation and prosecution of cases, which are further amplified by the
strictly hierarchical architecture of the prosecution service enabling the Prosecutor General
and other senior prosecutors to instruct subordinate prosecutors and to reallocate cases
assigned to them60
.
52
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 8. There are
normative bonuses based on objective criteria (e.g. years of service) or measurable surplus activity. For the
latter, detailed guidelines have been issued by the NOJ President (Directive 5/2013 (VI. 25.) OBH).
53
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 10. In addition to deciding directly on end-of-the-year bonuses, it is often the discretionary
decision of the employer whether to allow the judge to participate in the activities that serve as the basis of
granting the bonus. E.g. a court president can prevent a judge from participating in projects, acting as an
instructor for younger judges or being a member in judicial working groups, which automatically deprives
them from the possibility of receiving such bonuses.
54
Letter (2021.OBH.III.D.1/34) of the NOJ President to the President of the National Judicial Council. The
NOJ President is of the view that this issue is not covered by the supervisory power of the National Judicial
Council.
55
Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, paras. 53 and
55. According to the Venice Commission, bonuses which include an element of discretion should be
excluded (CDL-AD(2010)004, para. 51).
56
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 8. See GRECO Fourth
Evaluation Round – Second Interim Compliance Report.
57
Section 85 of Act CXXII of 2021 amending Section 61/A(1)(i) of Act XXXVI of 2021.
58
The Prosecutor General is nominated by the President of the Republic from among prosecutors and elected
by Parliament with a two-thirds majority (Article 29(4) of the Fundamental Law). This rule has been
unchanged since 1 January 2012.
59
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 8.
60
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 12.
10
Quality
The digitalisation of the justice system continues to be overall high61. Hungary ranks very
high when it comes to digital solutions to conduct and follow court proceedings in criminal
cases and online access to published judgments by the general public. It also ranks high as
regards the use of digital technology by courts and prosecution services, and the existence of
digital solutions to initiate and follow proceedings in civil/commercial and administrative
cases62
. Moreover, Hungary has very good results as regards the promotion of and incentives
for using alternative dispute resolution methods63
.
Efficiency
The efficiency in civil and administrative cases remains high64. Hungary performs very
well as regards the estimated time needed to resolve litigious civil and commercial cases at
all court instances, to resolve administrative cases at first instance and at all court instances;
the number of pending civil, commercial and administrative and other cases, and pending
administrative cases65
. In January 2022, a new law66
on pecuniary compensation for delay in
civil proceedings entered into force. This law provides for compensation in the form of
pecuniary satisfaction in case of violation of the fundamental right to have civil proceedings
completed within a reasonable time. Administrative and criminal proceedings are not affected
by this law67
.
II. ANTI-CORRUPTION FRAMEWORK
The Ministry of Interior is responsible for the overall coordination of the anti-corruption
policy and oversight over the National Protection Service. As a law enforcement agency, the
National Protection Service is in charge of crime detection within the police, law enforcement
and other government agencies, including lifestyle monitoring and integrity tests of public
officials. A smaller division in the National Protection Service is also entrusted with
corruption prevention tasks, including intra-governmental cooperation and evaluation of the
anti-corruption strategy and action plans. The police can investigate private sector corruption
and corruption-related economic crimes. However, the investigation and prosecution of
corruption in the public sector fall under the exclusive competence of the Investigation
Division of the Central Chief Prosecution Office of Investigation and its five regional offices.
The prosecution service is supported by the investigative forces of the police and the National
Protection Service; it oversees investigations carried out by other investigative entities,
including the National Tax and Customs Administration. The State Audit Office contributes
to corruption prevention with its competences for the control of the financial management of
public funds, the monitoring of state-owned companies’ compliance with statutory public
disclosure obligations, as well as political party finance and campaign finance audits.
61
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 9.
62
See Figures 47, 48, 43 and 46, 2022 EU Justice Scoreboard.
63
Figure 29, 2022 EU Justice Scoreboard.
64
See 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 9.
65
See Figures 8, 9, 10, 14 and 16, 2022 EU Justice Scoreboard.
66
Act XCIV of 2021.
67
Contribution from Liberties for the 2022 Rule of Law Report, pp. 9-10. Joint contribution from Amnesty
International Hungary and eight other CSOs for the 2022 Rule of Law Report, pp. 16-17.
11
The perception of public sector corruption among experts and the business executives is
that the level of corruption in the public sector remains high. In the 2021 Corruption
Perceptions Index by Transparency International, Hungary scores 43/100 and ranks 26th
in
the European Union and 73rd
globally68
. This perception is relatively stable over the past five
years69
. The 2022 Special Eurobarometer on Corruption shows that 91% of respondents
consider corruption widespread in their country (EU average 68%) and 27% of respondents
feel personally affected by corruption in their daily lives (EU average 24%)70
. As regards
businesses, 75% of companies consider that corruption is widespread (EU average 63%) and
45% consider that that corruption is a problem when doing business (EU average 34%)71
.
Furthermore, 37% of respondents find that there are enough successful prosecutions to deter
people from corrupt practices (EU average 34%)72
, while 17% of companies believe that
people and businesses caught for bribing a senior official are appropriately punished (EU
average 29%)73
.
The implementation period of the 2020-2022 Anti-Corruption Strategy74
and of the
related Action Plan has been extended. In December 2021, the Government Resolution75
adopting the mid-term strategy and action plan was amended to postpone the deadlines for
the majority of the measures until the end of 202276
or the first semester of 2023. Most of the
strategy tasks are delegated to the Ministry of Interior, while the National Protection Service
is tasked with the overall coordination of the implementation of the strategy. Little
information is, however, publicly available on their activities to implement the strategy,
which reduces possibilities for public monitoring and oversight77
. Among the non-
68
Transparency International (2022), Corruption Perceptions Index 2021. The level of perceived corruption is
categorised as follows: low (the perception among experts and business executives of public sector
corruption scores above 79); relatively low (scores between 79-60), relatively high (scores between 59-50),
high (scores below 50).
69
In 2017 the score was 45, while, in 2021, the score is 43. The score significantly increases/decreases when it
changes more than five points; improves/deteriorates (changes between 4-5 points) and is relatively stable
(changes from 1-3 points) in the last five years.
70
Special Eurobarometer 523 on Corruption (2022). The Eurobarometer data on citizens’ corruption
perception and experience is updated every second year. The previous data set is the Special Eurobarometer
502 (2020).
71
Flash Eurobarometer 507 on Businesses’ attitudes towards corruption in the EU (2022). The Eurobarometer
data on business attitudes towards corruption as is updated every second year. The previous data set is the
Flash Eurobarometer 482 (2019).
72
Special Eurobarometer 523 on Corruption (2022).
73
Flash Eurobarometer 507 on Businesses’ attitudes towards corruption in the EU (2022).
74
Medium-term National Anti-Corruption Strategy for the period of 2020-2022.
75
The Action Plan was adopted by the Government Decision 1328/2020 of 19 June 2020 on the Mid-term
National Anti-Corruption Strategy for 2020-2022 and the accompanying action plan.
76
Measures affected by the postponement until 31 December 2022 comprise, for instance, trainings for
prosecutors on the use of surveillance tools in investigations; a corruption prevention pilot project for the
border control police; development of a Good Governance indicator system; dissemination of foreign bribery
information; trainings of integrity officers.
77
In 2021, three articles were made publicly available on trainings for officials in foreign services conducted
by the National Protection Service, on the OECD Public Integrity Toolkit, and a consultation of health
worker representatives. Apart from this, the website of the Ministry of Interior provides only information on
the main office holders in the ministry and news as part of the centralised Government communication,
https://kormany.hu/belugyminiszterium, while the website of the National Protection Service’s website only
links back to the official, dedicated anti-corruption website without any relevant content on activities either,
https://nvsz.hu/tevekenyseg/korrupcioellenes-tevekenyseggel-osszefuggo-kormanyzati-feladatokban-valo-
kozremukodes-0 and https://nvsz.hu/szervezet/nemzeti-vedelmi-szolgalat/korrupciomegelozesi-foosztaly.
12
implemented measures are those with the potential to contribute to a more effective detection
and prosecution of corruption in public institutions and state-owned enterprises78
as well as
the strategy implementation report79
. More generally and as previously noted, the scope of
the anti-corruption strategy is limited to fostering integrity in the public administration80
.
Strategic policy coordination in relevant anti-corruption areas, such as lobbying, ‘revolving
doors’, asset disclosure and political party financing, does not take place under the strategy,
as they remain outside its scope81
. Although an evaluation of the past ten years of Hungary’s
fight against corruption was reported to have taken place, there is no public information about
the preparation of a new strategic anti-corruption framework and action plan beyond 202282
.
Despite amendments to the Criminal Code to address foreign bribery, there is still an
absence of enforcement. The relevant anti-corruption offences are criminalised, including
bribery and foreign bribery83
. As reported last year, an amendment to the Criminal Code,
which entered into force on 1 January 2021, modified the definition of ‘foreign public
official’ by clarifying that it includes officials of foreign public enterprises, and introduced
stricter sanction levels for facilitation payments84
. There are concerns about the continued
absence of enforcement efforts as no new investigations into foreign bribery have started
despite OECD-recorded allegations and the presence of significant foreign bribery risk
factors, notably related to multinational enterprises exporting from Hungary in a number of
high-risk sectors85
. Regarding detection of foreign bribery, Hungary has yet to develop and
This would need to be seen in the context of the freedom of information law requiring proactive publishing
of data (see pillar III).
78
See European Semester country report on Hungary (2022). Information received from Transparency
International/K-Monitor/Corruption Research Centre in the context of the country visit to Hungary.
79
Measures affected by the postponement to 2023 relate, for instance, to the development of an automated
decision-support system to improve the transparency and accountability of the decision-making process (31
January 2023); a casebook on tackling corruption for practitioners (30 June 2023); data entries in the risk
assessment system of the National Protection Service (30 June 2023); a legal framework on corruption in
major infrastructure investments (30 June 2023); surveys on integrity management models for state entities
and state-owned enterprises (30 June 2023); and Implementation report of the tasks set out in the Strategy
2020-2022 by the Minister of Interior (31 May 2023 for the report of the Ministers; 30 June 2023 for the
summary report of the Minister of Interior).
80
The strategy includes primarily actions relating to the culture of integrity and e-administration, such as the
introduction and development of electronic solutions to increase transparency (e.g. automated decision-
making), monitoring integrity risks, integrity trainings for civil servants, and specialised anti-corruption
training for law enforcement, judges and prosecutors, cf. 2021 Rule of Law Report, Country Chapter on the
rule of law situation in Hungary, p. 11.
81
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 11, and 2020 Rule of
Law Report, Country Chapter on the rule of law situation in Hungary, p. 11.
82
Hungarian Competition Authority (2021), Press release, ‘A decade for integrity committed to eliminating
corruption’.
83
Hungary’s criminal code includes the relevant definitions of corruption and corruption-related offences and
criminalises, among others, active bribery (Sections 290, 293, 295 of Act C of 2012) and passive bribery
(Sections 291, 294, 296), and trading in influence, embezzlement, misappropriation of public funds, abuse of
office (Chapter XXVII), and failure to report a crime of corruption.
84
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 11.
85
OECD, Implementing the OECD Anti-Bribery Convention, Phase 4 Two-Year Follow-Up Report: Hungary
(2021), p. 3, para. 3 and p. 6 on recommendation 4.a., reporting that only one small-scale foreign bribery
case has been concluded, resulting in the conviction of 26 natural persons between 2008 and 2011, since the
entry into force of the Convention in Hungary. In turn, Croatia’s Supreme Court upheld in October 2021 its
verdict against the ex-prime minister of Croatia and the CEO of the Hungarian oil and gas company MOL,
for active and passive bribery in connection with MOL’s acquisition of stakes in INA, Croatia’s oil
company. Reportedly, the MOL’s CEO was tried in absentia, and sentenced to two years in prison.
Hungarian Spectrum (2021), ‘MOL’s CEO Zsolt Hernádi won’t be gallivanting around the globe any time
13
implement a dedicated strategy86
. Notably, criminal sanctions can be reduced or even be
dispensed by judges if the suspect confesses corruption, surrenders the illegally obtained
advantage, and discloses the circumstances of the criminal act to the authorities before they
become aware of the commission of the offence87
.
Integrity tests and ‘lifestyle monitoring’ continue to be the main tool to deter and detect
corruption in the public sector, while oversight could benefit from more independence.
The prosecution service considers the National Protection Service to be the main and
indispensable source for evidence-gathering to initiate corruption investigations and
prosecutions88
, in particular of petty corruption, such as gratuity payments in the healthcare
sector. The possibility of conducting covert surveillance of public officials through ‘integrity
tests’ to establish whether they commit corruption has to be approved by the public
prosecutor and, in case a suspected crime is detected, reported to the competent agency89
. The
‘lifestyle monitoring’ is conducted at the request of the responsible head of the public
institution and related findings can be a ground for dismissal of the public official90
. Other
detection tools, including asset declarations, whistleblower disclosures and registries, play a
relatively minor role in corruption investigations91
. State bodies with supervisory functions
have seen political appointments raising questions as to their impartiality in detecting
soon’. See also Hungary Today (2021), ‘Croatia Top Court Affirms Prison Sentence for MOL Chief
Hernadi’. In general, Hungary’s exposure to export-related foreign bribery risks largely stems from the
activities of multinational enterprises whose activities are expanding into new technology-based industrial
production, including in the transportation, healthcare and pharmaceutical industries – all sectors at high risk
of corruption, see OECD (2019), Implementing the OECD Anti-Bribery Convention, Phase 4 Report -
Hungary, p. 10. With regard to state-owned enterprises, the electricity and gas, transport and finance sectors
are at risk due to challenges in the implementation of effective governance arrangements, ibid, p. 8.
86
OECD (2021), Implementing the OECD Anti-Bribery Convention, Phase 4 Two-Year Follow-Up Report:
Hungary, following up on the OECD recommendation of the Phase 4 Report – Hungary (2019), p. 54.
87
Sections 290 to299 Act C of 2012 on the Criminal Code. According to the Government, the underlying
rationale for the reduction of dispensing of sanctions is to encourage the reporting and thus detection of
corruption crimes, while criminal liability would be established nevertheless. Under the UN Convention
Against Corruption State Parties can, but are not obliged to, allow for mitigating punishment to special
witnesses that assist the investigation of other, sophisticated offenders.
88
Information received from the Prosecutor General’s Office in the context of the country visit to Hungary.
See also Prosecutor General (2021), Parliamentary report on the activities of the Prosecution Service in
2020, p. 25. As reported last year, criminal proceedings for corruption offenses are mainly initiated on the
basis of the criminal investigation activities of the investigating authorities. The majority of the investigated
cases are detected by the National Protective Service, see 2021 Rule of Law Report, Country Chapter on the
rule of law situation in Hungary, p. 12.
89
The range of public officials who may be subject to the integrity test is defined in Act XXXIV of 1994 on
the Police. For more details, see National Protection Service website on integrity testing. As reported last
year, the amendment of 1 January 2021, broadened the scope of staff that may be subjected to integrity tests
to all members of the Government and the public administration, including medical staff and social workers,
see 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 12. The individual
concerned by the surveillance shall only be informed once evidence of corruption is detected and this
resulted in criminal proceedings. Input from Hungary for the 2020 Rule of Law Report.
90
The lifestyle monitoring takes into account whether or not the public official’s way of living is beyond
his/her salary. In order to conduct the lifestyle monitoring, the curriculum vita and a completed consent
declarations have to be submitted by the concerned person and those living in the same household, see
National Protection Service website on lifestyle monitoring.
91
Information received from the Prosecution Service in the context of the country visit to Hungary. See also
contribution from K-Monitor for the 2022 Rule of Law Report, p. 18, and 2021 Rule of Law Report,
Country Chapter on the rule of law situation in Hungary, p. 12.
14
corruption92
. Deficient independent oversight mechanisms and close interconnections
between politics and certain national businesses are conducive to corruption93
.
Some measures to improve corruption investigations involving EU funds have been
taken. Concerns exist regarding the frequent practice of the Hungarian authorities to
withdraw EU-funded projects in case of financial recommendations issued by the EU Anti-
Fraud Office (OLAF) or the opening of OLAF investigations, while amounts due are not
systematically recovered from the economic operator who committed the irregularity or
fraud94
. Similarly, the refusal of economic operators to cooperate during on-the-spot checks
conducted by OLAF have been in focus95
. In order to better protect the EU funds from
potential fraud and corruption, the Prosecutor General’s Office and OLAF have signed a
cooperation agreement in February 2022, which commits both parties to closer cooperation.
However, as it was recently signed, the effectiveness of the cooperation agreement will still
have to be seen in practice. The recent allegations regarding the existence of a corruption ring
in management authorities linked to national and EU funds raise concerns as to the lack of
systemic oversight96
.
Despite good inter-institutional cooperation and adequate levels of resources, challenges
remain in establishing a track-record of investigations, prosecutions and final
judgments in high-level corruption cases. The prosecution service reports adequate levels
of human and financial resources, and of specialisation to carry out their tasks97
, and the legal
framework provides the conditions for effective investigation and prosecution of corruption.
Cooperation between the relevant anti-corruption entities, including the prosecution service,
police, tax and custom authorities, and the National Protection Service, is considered good98
.
To facilitate more effective investigations, including in corruption cases, new IT systems for
the prosecution service are under development99
. The planned IT cooperation system for the
handling and sharing of sensitive data among investigative authorities aims at addressing by 1
December 2024 the persisting challenges in evidence-gathering, particularly with regard to
92
Appointments have recently also been sought for unusually long periods for a mandate, such as in the newly
created Supervisory Authority of Regulated Activities overseeing concessions, for which the President was
appointed in October 2021 for a period of nine years, while grounds for the termination of the mandate are
limited, or the appointment of the vice-president of the State Audit Office for the next twelve years. See
State Audit Office (2021), The President of the SAO has asked Dr. Mónika Karas to be Vice-President. See
also Freedom House (2022), Freedom in the World – Hungary Country Report, emphasising the
government’s broad control over auditing and investigative bodies; and the 2021 Rule of Law Report,
Country Chapter on the rule of law situation in Hungary, p. 12.
93
As recognised also by the OECD (2021), Economic Survey Hungary, p. 57; and also 2021 Rule of Law
Report, Country Chapter on the rule of law situation in Hungary, p. 12.
94
See 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 15. See also the
OLAF (2021), 2021 Annual Report, for the latest data on irregularities, as well as OLAF’s contribution to
the 2022 Rule of Law Report.
95
Cf. 2021 Rule of Law report, Country Chapter on the rule of law situation in Hungary, p. 15.
96
See Central Investigation Prosecutor’s Office (2022), Press Statement ‘Grants obtained through corruption’;
Telex (2022), ‘18 people questioned over bribery in Finance Ministry case’; Telex (2022), ‘Five arrested,
one placed under criminal supervision in corruption case involving Finance Ministry’.
97
Information received from the Prosecutor General’s Office in the context of the country visit to Hungary.
See also 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 11.
98
Information received from the Prosecutor General’s Office in the context of the country visit to Hungary.
99
The reform includes two IT components to handle sensitive information and to manage case files.
Information received from the Prosecutor General’s Office in the context of the country visit to Hungary.
15
obtaining relevant financial data from the currently numerous separate state registries100
.
Moreover, a new case management system is planned to take up operations in support of
prosecutorial investigations by 1 July 2026. The number of registered criminal procedures
initiated for corruption crimes increased in 2021101
. The overall increase is reportedly due to
the increase in the number of criminal proceedings opened for private sector corruption cases,
including primarily petty corruption102
. Furthermore, the increase in the number of
proceedings for public sector corruption significantly fluctuated over the years103
. The
indictment rates for corruption are reported to be overall high104
. Some new high-level cases
involving politicians were investigated in 2021105
. However, serious concerns remain
regarding the absence of a robust track record of investigations of corruption allegations
concerning high-level officials and their immediate circle106
. This poses a risk of low
100
The IT database would offer the possibilities to all prosecutors to interconnect and thus investigate criminal
cases, including through artificial intelligence and an open-source element, according to information
received by the Prosecutor General’s Office in the context of the country visit to Hungary.
101
See written contribution from the Prosecution Service in the context of the country visit, p. 6, stating an
increase from 872 (in 2020) to 1306 (2021).
102
With 185 private sector corruption cases initiated in 2020 compared to 317 proceedings initiated in 2021.
According to the prosecution service, the increase is due to the amendments to the Criminal Code in force
since 1 January 2021 and the criminalisation of informal facilitation payments (‘gratitude payments’) in the
health care sector, thus relating to petty corruption, see written contribution from the Prosecution Service in
the context of the country visit, p. 7.
103
Public sector corruption proceedings initiated varied over time: 853 (in 2019); 508 (in 2020); and 729 (in
2021). See in this context also the Prosecutor General’s released video message on the activities of the
Prosecution Service in 2020 (6 October 2021) on the annual report to Parliament on the activities of the
prosecution service, indicating that the trend of previous years of a growing number of registered criminal
procedures initiated for public sector corruption crimes was reversed and even dropped in 2020. See also the
Prosecutor General (2021), Extract of the Parliamentary report on the activities of the Prosecution Service in
2020.
104
Written contribution from the Prosecution Service in the context of the country visit, p. 8. See also 2021
Rule of Law report, Country Chapter on the rule of law situation in Hungary, p. 12. See also the OLAF
(2021), 2021 Annual Report, for the latest data on irregularities, indicating an indictment rate of 67% in
Hungary.
105
List of cases in the written contribution from the Prosecution Service in the context of the country visit, pp.
12 et seq. and Press release (2021), The Central Chief Prosecution Office of Investigation has interrogated
MP Dr Pál Völner concerning allegations of accepting bribes from the chief bailiff. The crime was
reportedly detected through phone tapping by the National Protective Service. The Member of Parliament’s
immunity was lifted on 14 December 2021, after he had formally become a suspect. While he resigned from
his position at the Ministry on the day the scandal broke out on 7 December 2021, he continued to serve as a
Member of Parliament, along with fellow MPs György Simonka and István Boldog, whose cases are heard
in court. None of the suspects were detained in pre-trial detention but remained with their seat in Parliament.
106
2020 and 2021 Rule of Law reports, Country Chapter on the rule of law situation in Hungary, pp. 10 (for
2020) and 12 (for 2021). See Átlátszó (2021), ‘Botched investigations: 20 important cases that got stuck with
prosecutors’, outlining that investigations have either stalled for a long time or, on the contrary, the
proceedings were quickly closed ‘in the absence of crime’, or no investigations were launched. Notably,
even where cases are dismissed at an early stage in the detection phase on lower levels of the police or the
National Tax Authority, the prosecution service has the right to take on the investigation and instruct the
police forces to act accordingly. In general, the Prosecutor General’s Office does not collect separate
statistics on ‘high-level corruption’ cases as this is not a category defined in criminal law but made reference
to corruption cases that concerned top executives performing public functions. See also Civitas
Institute/Transparency International (2021), Black Book II – Corruption and State Capture in Hungary.
Contribution from K-Monitor for the 2022 Rule of Law Report, p. 22; contribution from IDEA Institute for
the 2022 Rule of Law Report, pp. 11-12 with regard to EU funds-related cases. See also Bertelsmann
Stiftung (2022), Transformation Index: Hungary Country Report, highlighting that the prosecution of
corruption is limited to those cases, which can be considered political petty corruption, happening outside of
the negotiated rules of the power pyramid.
16
accountability, in view of the lack of judicial review for prosecutorial decisions not to
investigate and prosecute corruption allegations107
. Risks of clientelism, favouritism and
nepotism in high-level public administration remain unaddressed108
. The full implementation
of the GRECO recommendations as regards the effective functioning of the prosecution
would further strengthen the anti-corruption framework109
.
Hungary’s integrity rules on asset declaration and conflicts of interest require more
effective oversight and enforcement. Hungary has an extensive asset disclosure system in
place, that requires members of Parliament, Government officials and public officials to
declare their assets and interests110
. Concerns have been raised in particular regarding the
asset declarations’ content of members of Parliament last submitted in February 2021111
.
Asset declarations are verified only upon notification of suspicions, and potential follow-up is
left to the discretion of the public official’s employer or, in case of members of Parliament
and other high-ranking officials, to the Parliamentary Committee on Immunity112
. Any
incompatibility of conflicts of interest of members of Parliament must be declared to the
Speaker113
, following which, they are subject to certain restrictions pending the resolution of
the situation114
. However, neither declarations of interests nor information about any follow-
up are publicly available. Despite long-standing calls, no reform efforts have been initiated to
make the supervision, verification and enforcement of rules of conduct, conflicts of interest
and asset declarations for members of Parliament more effective115
. The government proposal
introducing amendments to the asset declarations rules for members of Parliament with an
indicative timeline for adoption on 27 July 2022 does not aim to address these calls to
strengthen the data verification, oversight or sanctions in case of failure to comply with the
107
2022 EU Justice Scoreboard, pp. 70-71, noting that victims of other crimes have the remedy of a judicial
review by means of ‘substitute private prosecution’. Notably, the Prosecutor General is accountable to
Parliament and members of Parliament can pose questions. However, they have no right to reply, and
Parliament cannot decide on whether the response was sufficient with the consequence in practice that
questions concerning the justification on the closure of high-level corruption cases can be refused and left
unanswered.
108
E.g. Bertelsmann Stiftung (2022), Transformation Index: Hungary Country Report, stressing that the highly
centralised political corruption became the main modus operandi of Hungarian politics, with political
corruption and informal power networks as key pillars of party-state capture. For an overview of alleged
corruption cases, Civitas Institute/Transparency International (2021), Black Book II – Corruption and State
Capture in Hungary. In addition, Corruption Research Center Budapest (2022), Corruption Risks and the
Crony System in Hungary: a brief analysis of EU funded contracts in Hungarian public procurement 2005-
2021; Corruption Research Center Budapest (2021), Political Favoritism in Public Tenders in Hungary:
Analysis of the odds of winning, investigating the system in Hungary based on data of more than 227 000
public tenders.
109
GRECO Fourth Evaluation Round – Second Interim Compliance Report, recommendation xiv, paras. 37 and
42. See also pillar I and 2021 Rule of Law report, Country Chapter on the rule of law situation in Hungary,
pp. 8-9.
110
Cf. also 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 12.
111
GRECO Fourth Evaluation Round – Second Interim Compliance Report, p. 11, para. 56. See also Hungary
Today (2022), ‘Asset Declaration: Hungary’s Politicians Hardly Have Any Savings’, Hungary Today
(2021), ‘MP’s Asset Declarations Yet Again Raise Concerns, Causing Calls for Stricter Rules’.
112
The Committee rejected almost all notifications as unsubstantiated in the years between 2017-2021 (15 out
of 16), while in the remaining case the procedure was not initiated due to the subsequent correction of the
declarations, see 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 13.
113
The Speaker is the President of Parliament.
114
Act XXXVI of 2012, amended in December 2019.
115
GRECO Fourth Evaluation Round – Second Interim Compliance Report, p. 5.
17
rules116
. In addition, the Government plans to introduce new rules on conflicts of interest, on
gifts and similar benefits for parliamentarians117
. Until then, conflicts of interest rules are not
applicable to members of Parliament, state secretaries and other public officials of the
government who serve, at the same time, as board members of ‘public interest trusts’, despite
the fact that these trusts receive significant public funding, entailing increased risks of
corruption118
. Since such trusts may receive funding not only from the Hungarian state but
also from the private sector and foreign states, the trustees may engage in fundraising and
lobbying activities. The legal framework has been challenged before the Constitutional
Court119
due to concerns regarding the separation of powers, as trustees are not prevented
from holding high ranking positions, such as Minister and member of Parliament, at the same
time. The absence of codes of ethics for members of the Government, state secretaries, or
members of Parliament represents another integrity gap. Verification procedures by the
National Tax and Customs Authority upon suspicions of unjustified wealth can only be
initiated if investigative authorities have also opened criminal inquiries, thus significantly
limiting the possibility for such verifications120
.
Lobbying rules remain incomplete with no systematic follow up in case of non-
compliance. Hungary has no comprehensive lobby regulation, transparency register or
legislative footprint in place to disclose contacts with interest representatives121
. According to
a 2013 Government Decree, employees of state administration bodies need to document
meetings and may only meet interest representatives in relation to their work after informing
their superiors, who may prohibit the meeting122
. However, there is no obligation to make the
encounters or the content public, nor are there any sanctions provided in the Decree in case of
failure to comply. No steps have been taken to establish a clear set of rules for contacts
between members of Parliament and lobbyists to address concerns regarding the level of
transparency in the decision-making process123
. Comprehensive lobbying rules would be of
particular importance with regard to the increasing number of ‘investments of major national
economic interests’124
, as they are exempted from regular requirements and safeguards in
order to simplify and accelerate investment procedures. This exemption applies regardless of
whether such investments are of private or public nature.
Post-employment rules and cooling-off periods are fragmented and apply only to a
small group of public officials. Overall ‘revolving doors’ are scarcely regulated with rules
existing only for a few institutions, such as the State Audit Office and the National Media and
Infocommunications Authority, while confidentiality clauses are contained in Hungary’s
labour code125
as well as in some specific legislation applicable to public officials126
. In
116
The proposal for the amendment of the Act XXXVI of 2021 was submitted on 21 June 2022
https://www.parlament.hu/irom42/00369/00369.pdf
117
Information received from the Government in the context of the draft report consultation.
118
The regulation on public interest was codified in April 2021, see Act IX of 2021.
119
Constitutional Court Case No. II/02280/2021.
120
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 13.
121
See also 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 13.
122
Government Decree 50/2013 of 25 February 2013.
123
See GRECO Fourth Evaluation Round – Second Interim Compliance Report, paras. 8-9.
124
While the concept of ‘investments of major national economic interest’ was introduced by Act LIII of 2006,
there has been a significant growth in the number of public and private investments declared subject to the
law with 67 investments being declared of major national interest only in the course of 2021. See
Government Decree 83/2021 of 23 February 2021.
125
Section 8(4) of Act I of 2012.
18
practice, however, these rules are not effectively enforced, as the Government is still to
specify the sectors and public officials’ positions to which cooling-off time restriction will
apply with regard to business careers of public officials in the area, in which they were active
beforehand127
. A code of conduct for members of Parliament that would include post-
employment guidelines is neither in place nor planned128
.
The regulatory framework on whistleblowers requires further steps to enhance their
protection in practice. Amendments to the current law have not yet been proposed to
transpose the EU Directive129
. Various state agencies operate online reporting channels,
including the Commissioner for Fundamental Rights130
, the Hungarian Competition
Authority131
, the Public Procurement Authority132
and the Prime Minister’s Office. The latter
can receive disclosures related to the misuse of EU funds133
. No steps have been taken yet to
address the major operational deficiencies in the whistleblower regime, including the limited
protection against retaliation and the risks of disclosure of the whistleblowers’ identity134
.
Challenges remain with regard to political party and campaign financing135. The State
Audit Office is responsible to oversee the use of public funds and to control the legality of
political parties’ financial management. However, political advertising on the social media
platform Facebook, including by financed third parties136
, is not considered to fall within the
legal definition of political advertising under the Electoral Procedure Act and has therefore
not been audited so far by the State Audit Office137
, even if recent elections have shown that
126
Section 93(1)(g) of Act CXXV of 2018, stipulating that a Government official shall retain classified
information and, in addition, not disclose to any unauthorised person or entity any fact which came to his
knowledge in the course of his activities and the disclosure of which would have adverse or beneficial
consequences for the State, a governmental authority, an employee or a citizen.
127
The term of the restriction specified by law is the equivalent of the time spent on the job subject to the
restriction, with a maximum of two years (Section 117(2) of Act CXXV of 2018). Section 117(1) provides
that the Government must determine the sectors and positions where a government official may not be
employed after the termination of his/her public service. That provision remains to be implemented.
128
GRECO has repeatedly called for the introduction of a code of ethics/ conduct for members of Parliament to
be adopted, covering, among others, post-employment rules, and complementary, practical measures for
their implementation, see GRECO Fourth Evaluation Round – Second Interim Compliance Report, pp. 3-4,
with reference to the Fourth Evaluation Report, p. 17.
129
Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. The OECD
recognised the positive aspects of the existing regulatory framework, but raised concerns as regards the
effectiveness of the protection of whistleblowers, see OECD (2021), Implementing the OECD Anti-Bribery
Convention, Phase 4 Two-Year Follow-Up Report: Hungary.
130
The Commissioner acts as a reporting channel and operates the electronic platform but has limited formal
competence as regards whistleblower complaints, including the forwarding of reports to competent
authorities. See 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 14.
131
Hungarian Competition Authority, General information about how Cartel chat works,
https://www.gvh.hu/kartellchat/kcfaq/faqentry_568311.html.
132
Public Procurement Authority, Public Procurement Anonymous Chat (KAC) launched,
https://www.kozbeszerzes.hu/hirek/elindult-kozbeszerzesi-anonim-chat-kac/.
133
See the Magyarorszag.hu portal, Public interest announcements, www.anti-lop.hu.
134
Including the limited protection against retaliation and the risks of disclosure of the whistleblowers’ identity.
See OECD (2021), Implementing the OECD Anti-Bribery Convention, Phase 4 Two-Year Follow-Up
Report: Hungary, p. 3.
135
2020 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 12.
136
This can include proxies, such as the so-called GONGOs, companies, informal grouping of people or
individuals that are involved in campaigning activities as special purpose vehicles to promote political
parties or candidates, the related spending of which would not appear in party accounts.
137
Information received by Transparency International and the State Audit Office in the context of the country
visit to Hungary. Act XXXVI of 2013 on electoral procedure covers media content or audiovisual content
19
most of the political party campaigning is taking place on this communication tool138
. While
some measures have been taken to ensure that political party financial registries are
transparent and up-to-date to clarify party income sources and campaign periods as well as to
ensure a more in-depth monitoring, overall concerns remain as regards the transparency of
party financing139
.
The trend of heightened COVID-19 related corruption risks in public procurement
persists140, including for public interest trusts. There is some transparency in public
procurement and monitoring by the Public Procurement Authority reportedly increased in
2021141
. Yet specific data on beneficiaries and overall amounts on exempted, pandemic-
related procurements is not publicly available despite hightened risks of corruption142
. At the
same time, the share of contracts awarded with a single-bidder, and thus without competition,
increased from 2020 to 2021143
. A Government Decree144
introduced measures to reduce this
high share of single bids targeting, however, only public procurements above the EU public
procurement thresholds, thus relating only to a limited number of procurements, while no
concrete timeline is in place145
. According to the Public Procurement Authority, fewer but
much larger investments have been procured146
. Furthermore, as reported previously147
, the
published in a press product promoting or encouraging a candidate organisation or an independent candidate,
while political advertising content on the social media platform Facebook is considered not to be from a
media promotion provider. Thus, its social media content does not qualify as press product within the
meaning of Section 146(b) of the Media Act. In this context, see also the Handbook of the State Audit
Office, Elections: Handbook prepared to support election regularity (23 December 2021).
138
BIRN (2022), Hungary Election: Virtual Smear Tactics Alive and Well on Facebook. According to
information received by the CSOs K-Monitor, Transparency International and Corruption Research Center
Budapest in the context of the country visit to Hungary, the amounts spent on Facebook being by far the
largest. See also Hungary Today (2022), Political Parties Spent HUF 3 Billion during Campaign Period on
Facebook Alone; BIRN (2022), Hungary Election: Virtual Smear Tactics Alive and Well on Facebook;
Euractiv (2022), Orban’s influencers shower cash, become largest social media spenders.
139
In practice, the State Audit Office (SAO) has limited competence to control the expenditure of political
parties, and only parties that have gained at least one percent on the ballot from the party list can be
monitored. Corruption risks therefore exist for public funds, for example, if parties below this threshold are
founded to obtain access to state subsidies, terminating their operations after the elections. Furthermore,
findings of the SAO that can result in serious sanctions, such as the withdrawal of state funds, cannot be
challenged before an administrative court. See also GRECO Third Evaluation Round - Second Addendum to
the Second Compliance Report, para. 24.
140
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 15.
141
Hungarian Government (2021), Press Statement, A decade for integrity, committed to eliminating
corruption.
142
In this context, see Átlátszó (2020), ‘The Government has abused the pandemic multiple times according to
K-Monitor and HCLU’.
143
Corruption Research Center Budapest (2021), Two tendencies in the Hungarian public procurement, pp. 3-4,
including an analysis of more than 250 000 public contracts awarded between 2005 and 2021 in general,
stating that the contracts awarded to single-bidders in 2021 rose to 34.6% in 2021 (from 32.1% in 2020).
According to the single bid indicator of the Single Market Scoreboard, until 2020, the proportion of
contracts awarded in procedures where there was just one bidder had stagnated around 40% between 2018-
2020, which was among the highest in the EU.
144
Government Decree 63/2022 of 28 February 2022, which entered into force on 15 March 2022.
145
The government target is to reduce the share of single bids for all public procurements below 15%, although
without a concrete timeline. Hungary also committed to developing a comprehensive performance
measurement methodology and to exploring measures to address some of the problems in the public
procurement sector. Government Decree 63/2022 of 28 February 2022.
146
Public Procurement Authority (2021), Flash Report: Hungarian Public Procurement in Numbers, p. 3,
reporting a 23% increase of the total value compared to 2020 and considerably above the level of the total
value calculated in the years prior to the coronavirus pandemic.
20
2021 law148
repealed a specific requirement of the public procurement law149
taking trusts
established by the state as well as legal persons managed by them, out of the scope of
application of procurement rules in respect of procurements financed by European Union
funds150
. This carries the potential to increase corruption risks in a procurement market that is
already vulnerable to corruption151
.
On 27 April 2022, the Commission sent a written notification to Hungary under the
budget conditionality Regulation152. The Commission has serious concerns about the use of
the EU budget in Hungary. The concerns relate to breaches of the principles of the rule of law
in relation to the use of public procurement and the functioning of the authorities
implementing the budget, financial control, audit, monitoring, accountability process,
transparency, prevention of fraud, corruption and other breaches of EU law, and the constant
failure to implement the recommendations addressed to the authorities for several years. This
is demonstrated by an exceptionally high level of financial corrections over the years,
documented by audit work and contradictory procedures. In the written notification, the
Commission also referred to possible breaches in connection to public procurement, such as
the limits to investigation and independent prosecution, as well as the lack of an effective
anti-corruption framework. Hungary replied to the written notification on 27 June 2022 and
the Commission is assessing the information and observations provided in the reply.
III. MEDIA PLURALISM AND MEDIA FREEDOM
Hungary’s Fundamental Law and sectoral legislation provide the legal framework for the
protection of media freedom and pluralism and for the right to access information held by
public authorities153
. The Media Act provides the legislative framework for both the
Hungarian media regulator as well as for the regulation of public service media. Hungary
transposed the AVMS Directive in 2019154
.
147
See 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 14.
148
Act VIII of 2021.
149
Section 5(3) of Act CXLIII of 2015, defining the entities required to apply public procurement rules: ‘In
respect of procurements financed by European Union funds trusts established by the State shall apply the
provisions of this Act, as well as legal persons maintained by such trusts […]’.
150
In 2021, several public-interest trusts were set up by the government performing public duties and donations
of public assets were made amounting to more than 2% of GDP. Public-interest trusts performing public
duties and legal persons maintained by them are not expressly covered by Section 5(1) of Act CXLIII of
2015. They may fall under Section 5(2) but in respect of procurements financed by European Union funds
that provision does not cover all situations that were covered by the former Section 5(3), repealed by Act
VIII of 2021. The same law also removed rules aimed at preventing conflict of interest, thereby allowing
holders of public office to sit on the board of trustees of such trusts, see further above. Cf. also OECD,
Economic Survey Hungary (2021), p. 58, recommending that all public procurements should be subject to
competitive tendering to secure transparent procedures and to improve cost efficiency, while full financial
scrutiny should apply, including to public-interest trusts.
151
Cf. European Semester (2022), p. 11.
152
Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020
on a general regime of conditionality for the protection of the Union budget, OJ L 433I, 22.12.2020, p. 1.
153
Hungary ranks 85th
in the 2022 Reporters without Borders World Press Freedom Index compared to 92th
in
the previous year.
154
Directive (EU) 2018/1808 amending Directive 2010/13/EU on the coordination of certain provisions laid
down by law, regulation or administrative action in Member States concerning the provision of audiovisual
media services (Audiovisual Media Services Directive) in view of changing market realities.
21
The functional independence of the Hungarian media regulator needs to be
strengthened155. While the Media Act provides for a detailed legal framework for the
establishment and operation of the Media Authority and while the authority is endowed with
sufficient funding for the accomplishment of its tasks, concerns persist over the Authority’s
functional independence. The decision-making body of the Authority - the Media Council -
remains composed of members all nominated by the ruling party156
. The Media Council’s
refusal to renew the broadcasting license of independent radio station Klubrádió, based on the
station’s failure to comply with certain administrative obligations, and which resulted in the
radio being taken off air, remains the subject of an ongoing Commission infringement
procedure against Hungary157
. On 14 April 2022, the Media Council refused to renew the
licence of another independent radio station, Tilos Rádió, based on the radio’s media service
provider having violated legal requirements on the use of inappropriate language four times
during a seven-year period158
. The 2022 Media Pluralism Monitor confirms its previous
assessment that while the rules governing eligibility and incompatibility of the Media
Authority’s board members are specified in the Media Act, they do not ensure objective and
transparent procedures in practice. It therefore, once more registers medium risk for Hungary
in terms of the independence and effectiveness of the Media Authority159
.
The channelling of significant state resources to pro-government media continues to
create an unlevel playing field in the Hungarian media landscape160. The majority of
CSOs and media experts concur that there has been an increase in the number of government-
critical outlets over the past decade but point out that the manner in which the significant
volumes of state resources are channelled to pro-government media outlets and other relevant
structures continues to create an unlevel playing field. Furthermore, there appears to be no
transparency in the distribution of these resources161
. An analysis of the impact of the
establishment of the ‘KESMA’162
media conglomerate in November 2018 found that the
latter has had a significant negative impact on the market for daily regional newspapers and
on the distribution and printing market and an impact on radio, with far less or negligible
impact on the television and national newspaper markets163
. The 2022 Media Pluralism
Monitor explains that in the sectors identified as having witnessed a significant impact, one
can observe ‘political’ or ‘ideological’ concentration in which outlets ‘on paper independent
155
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 16.
156
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 16. The former
President of the Council and Authority resigned one year prior to the end of her mandate.
157
The Commission considers that the Media Council’s decisions to reject Klubrádió’s application were
disproportionate and non-transparent and that Hungarian media law has been applied in a discriminatory way
in breach of EU telecoms rules, set out in Directive (EU) 2018/1972 establishing the European Electronic
Communications Code (Recast). On 17 June 2021, the Kúria upheld the Media Council’s decision.
158
International Press Institute (2022), ‘Hungary: Fidesz Media Council moves to silence independent station
Tilos Rádió’.
159
Media Pluralism Monitor 2022, country report on Hungary, p. 14.
160
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, pp. 17-18.
161
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, pp. 38-39.
162
Central European Press and Media Foundation. An ad-hoc report by the Centre for Media Pluralism and
Media Freedom concluded in 2019 that the establishment of KESMA would exacerbate the overall risks to
media pluralism in Hungary (2020 Rule of Law Report, Country Chapter on the rule of law situation in
Hungary, p. 14).
163
Contribution from the National Media and Infocommunications Authority, pp. 3-4 largely corroborated by
stakeholder meeting with the Hungarian Editors-in-Chief Forum and Mertek Media Monitor.
22
from each other, follow the same political interests and share the same narratives’164
. For
these reasons, the 2022 Media Pluralism Monitor confirms the previous year’s high risk
scores with regard to both news media concentration and state advertising in the country
respectively165
.
There are no plans to introduce legislation to enhance transparency of media
ownership166. The 2022 Media Pluralism Monitor continues to rate transparency of media
ownership at high risk, finding that ‘the legal provisions and the Media Council itself fall
short in guaranteeing effective transparency for all media, as well as effective and easy access
to the relevant information by the public, particularly for the disclosure of ultimate and
beneficial owners of media outlets’167
. Nonetheless, stakeholders do not consider this to be a
major concern given that most data can be found in the generic company register and that
offshore incorporation and registration in this field is rare168
.
Public service media operates within a complex institutional system amid concerns over
its financial and editorial independence. The Media Act provides the legal framework for
public service media via the establishment of a Public Service Foundation169
and a Public
Service Board, both of which exercise supervision over the Duna Media Service Nonprofit
Private Limited Company, the public service media provider with editorial responsibility for
the broadcast content170
. The Media Act provides for societal control over public service
media via the Public Service Board, composed of representatives of fifteen public bodies and
organisations171
. Under the Media Act, another entity, the Media Service Support and Asset
Management Fund (MTVA)172
is responsible for content acquisition and show production
and is, in effect, the employer of public service media journalists. The Fund’s substantial
annual budget is subject to parliamentary approval173
, but concerns exist as to the absence of
effective oversight over its spending174
. The 2022 Media Monitor considers this to be a high
risk area given that there is ‘a lack of transparency, civil control and oversight over the
budget of the Fund’ and that supervision is carried out by MTVA, which is, in turn, managed
164
2022 Media Pluralism Monitor, country report on Hungary, p.17.
165
2022 Media Pluralism Monitor, country report on Hungary, p. 17 and 24, respectively.
166
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 17.
167
Media Pluralism Monitor 2022, country report on Hungary, p. 17.
168
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 41.
169
Parliament elects the members of the Board of Trustees of the Public Service Foundation for a period of nine
years. Half of them are nominated by the governing faction and the other half by the opposition, while the
seventh member is nominated by the President of the Media Council. The Board of Trustees appoints and
terminates the employment of Duna’s executive director while Section 91 of the Media Act expressly lays
down that the Board of Trustees shall have no control over the content of public service media programmes.
170
Duna’s budget for 2022 is HUF 1.8 billion (approximately EUR 5 million).
171
Churches, public bodies, local government bodies, bodies of national and ethnic minorities, and other non-
governmental organisations nominate members to the Public Service Board. Its main function is the
supervision of the implementation of the Public Service Media Code.
172
The chairperson of the Media Council appoints, establishes the salary of and exercises employers’ rights
over MTVA’s Director-General, deputy directors, as well as the chairperson and all four members of its
Supervisory Board. The Media Council is responsible for approving MTVA’s annual plan and financial
policy and for determining the rules governing use and management of MTVA’s assets.
173
MTVA’s budget for 2022 is HUF 130 billion (approximately EUR 361 million).
174
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 41.
23
by the Media Council175
. Concerns persist as to public service media’s editorial independence
and stakeholders have pointed out its role in amplifying disinformation by third actors176
.
Journalists and media outlets continued to face diverse challenges in Hungary. Some
journalists have continued to face difficulties when attempting to access members of the
Government and are barred from attending certain events, while court proceedings targetting
certain journalistic investigations have been launched on data protection grounds177
. The
uncovered secret surveillance of journalists178
and the Tilos Rádió case constitute the two
new alerts registered on the Council of Europe’s Platform to promote the protection of
journalism and the safety of journalists concerning Hungary since July 2021.
Access to public information continues to be hindered. Access to public information has
been hindered under the ‘state of danger’: deadlines for public authorities to process such
requests were extended from 15 to 45 days (renewable once), also allowing them to charge
fees where the fulfilment of the access to public information request would endanger or
hinder the public authority in carrying out its task related to fighting the pandemic179
.
Stakeholders report that transparency of public-interest funds is inadequate, in particular due
to the limited scope of the disclosure obligations180
, and the lack of effective enforcement of
judicial decisions ordering the disclosure of data concerning public funds181
.
IV. OTHER INSTITUTIONAL ISSUES RELATED TO CHECKS AND BALANCES
Hungary is a parliamentary republic with a unicameral Parliament (National Assembly).
Parliament that, among other functions, adopts and amends182
the Fundamental Law of
Hungary, legislates, including cardinal laws183
, elects the Prime Minister, and elects – by a
175
2022 Media Pluralism Monitor, country report on Hungary, p. 24.
176
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 47; Political Capital: Russian Disinformation in Hungarian Public Broadcast Media: Complaint to
the European Commission, 2022; Contribution from International Press Institute for the 2022 Rule of Law
Report, p. 15.
177
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, pp. 46-47.
178
See pillar IV.
179
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 18.
180
Parliament has failed to implement Decision 7/2020 (V. 13.) AB of the Constitutional Court finding that the
right to freedom of information extends to all public data and that judicial remedies must exist to fulfil this
fundamental right vis-a-vis all persons handling public data. In Decision 15/2021 (V. 13) AB, the
Constitutional Court held that the derogations introduced during the ‘state of danger’ are in line with the
Fundamental Law. The Constitutional Court – as a constitutional requirement – also laid down that if an
access request is fulfilled within the deadline of 45 or 90 days, the data controller must record the reasons
justifying the endangerment of the performances of the public tasks of the controller in relation to the state of
danger, and it shall also inform the requesting party of these reasons. The Constitutional Court also pointed
out that the extension can only apply to public tasks that are related to the fight against the pandemic, thus
other types of – unrelated – public tasks are not included in the derogation.
181
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 46.
182
A two-thirds majority of all the members is required to adopt or amend the Fundamental Law.
183
The Fundamental Law provides for the adoption of 33 cardinal laws implementing its provisions and
containing detailed rules on the functioning of key institutions or on the exercise of certain fundamental
rights. They may be adopted or amended by a two-thirds majority of the members of Parliament present. The
Venice Commission criticised Hungary for using cardinal acts beyond what is strictly necessary, and even in
respect of detailed legislation, which has been considered questionable from a democratic perspective as it
makes it difficult to introduce reforms in the future (CDL-AD(2012)009, para. 47).
24
two-thirds majority – the top rank public officials of the country. The President of the
Republic is elected by Parliament. There are a number of institutions tasked with counter-
balancing the powers of the legislature and the executive and entrusted with guaranteeing the
respect of the constitutional order, including the Constitutional Court, the State Audit Office
and the Ombudsperson (‘Commissioner for Fundamental Rights’). In addition to the
Government, the President of the Republic and every parliamentary committee, any member
of Parliament may table a bill.
The lack of public consultation coupled with an accelerated legislative process has
further weakened the quality of the regulatory environment184
. Whilst the Government
has organised ‘national consultations’ on certain topics185
, the absence of effective public
consultation on draft laws raises questions as regards legal certainty and the quality of
legislation186
. CSOs report that decisions are made without the genuine involvement of
relevant stakeholders187
. The Government has been almost systematically failing to comply
with its legal obligation of publishing online draft laws for public consultations188
.
Government policies often circumvent existing consultation mechanisms by submitting
significant bills through individual members of Parliament or by using extraordinary or
urgent procedure189
. For business stakeholders, the quality of law-making is an important
factor for investor confidence and a reason for concern about effectiveness of investment
protection for nearly a quarter of companies in Hungary190
.
184
For example, a non-COVID-19 related legislative change to several parts of the Criminal Procedure Code
was adopted one day and entered into force on the following day. Another example is the proposed
amendment to the law initiated by the Minister of Justice, which has brought about substantial changes in the
practice of child custody. As there was insufficient consultation with the CSOs concerned, family rights
CSOs sent written comments to the Ministry expressing their concerns about several elements of the new
legislation (contribution from Hungarian Association of Judges for the 2022 Rule of Law Report, p. 14).
185
The Government notes that a total of five national consultations were held during the ‘state of danger’. The
consultations are conducted on the basis of direct inquiries from citizens. The Government considers that the
national consultation is a well-proven tool by which the opinion of the Hungarian people is regularly sought.
186
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 21.
187
Contributions from Civil Society Europe for the 2022 Rule of Law Report, p. 8; European Transport
Workers’ Federation for the 2022 Rule of Law Report, p. 18.
188
According to the government website, out of the 145 government draft laws in 2021, only three laws were
published for public consultations. From these three, only one can be deemed as having been genuinely open
for consultation; the other two drafts were published three weeks after the bills had already been submitted
to Parliament. Moreover, no amendments could have been submitted by the time the texts were published for
‘consultation’ (joint contribution from Amnesty International Hungary and eight other CSOs for the 2022
Rule of Law Report, p. 49). The absence of clear minimum deadlines for consultation resulted in a deadline
for comments expiring the same day as the draft bill was published (in 2018 this was the case for 9 out of the
18 draft laws published for consultation).
189
This happened for example in the case of Act LXXIX of 2021. To the original proposal to tighten penalties
for paedophile offences, the Legislative Committee tabled an amendment seeking to shield minors from
content referring to homosexuality, sex-change and divergence from self-identity corresponding to sex at
birth. The individual motion allowed Parliament to decide on the amendment without a public debate and
consultation (contribution from Hungarian Association of Judges for the 2022 Rule of Law Report, p. 14).
According to information available on the Parliament’s website, in 2021, 11 bills tabled by members of
Parliament (nine by the majority, one by the opposition, one by a non-allied member) were passed into law.
190
Figure 55, 2022 EU Justice Scoreboard indicates that ‘[F]requent changes in legislation or concerns about
quality of the law-making process’ is the most stated reason for concern about effectiveness of investment
protection for companies in Hungary. Eurobarometer survey FL504; replies to the question: ‘What are your
main reasons for concern about the effectiveness of investment protection?’ if the response to Q3 was ‘fairly
unconfident’ or ‘very unconfident’.
25
The Government has used its emergency powers extensively. As of 1 June 2022, the
Government terminated191
the second ‘state of danger’ it declared192
in January 2021 in
response to the COVID-19 pandemic. During the reporting period, Parliament authorised193
the Government to further extend the applicability of the Government’s emergency measures
until the end of the pandemic-related ‘state of danger’. The Government went beyond the
Parliament’s authorisation when it issued emergency measures194
to regulate matters
unrelated to the COVID-19 pandemic. It also used its emergency powers to overrule judicial
decisions, thereby limiting the right to strike195
and media freedom196
. Several emergency
measures have been challenged before the Constitutional Court, but most applications were
found inadmissible, or proceedings were discontinued on the ground that the challenged rules
were no longer in force. When deciding cases on the merits, the Constitutional Court
confirmed the ban on assemblies197
, the extension of the statutory deadline for addressing
access to documents requests198
, the rules related to COVID-19 immunity certificates199
and
the cancellation of a semester in higher education200
. On 24 May 2022, Parliament adopted
the Tenth Amendment, allowing the Government to declare a ‘state of danger’ in case of an
armed conflict, war or a humanitarian catastrophe in a neighbouring country. On 25 May
2022, the Government declared201
another ‘state of danger’ under the amended Article 53(1)
of the Fundamental Law, in view of the armed conflict and humanitarian catastrophe in
Ukraine and with a view to averting their impact on Hungary. On 8 June 2022, Parliament
adopted Act VI of 2022, authorising the Government to extend the applicability of emergency
measures until 1 November 2022.
191
Government Decree 181/2022 of 24 May 2022.
192
Government Decree 27/2021 of 29 January 2021.
193
Section 1 of Act CII of 2021 extended the authorisation until 1 January 2022; Section 84 of Act CXXX of
2021 further extended the authorisation until 1 June 2022.
194
E.g. the Government overruled Acts of Parliament to regulate the retail of fuel (Government Decrees
84/2022 of 5 March 2022 and 94/2022 of 10 March 2022) and the access to SIM cards by Ukrainian
refugees (Government Decree 88/2022 of 7 March 2022) before the adoption of the Tenth Amendment (see
below).
195
The court allowed the industrial action of the air traffic controllers of the Hungarian Air Navigation Service
Provider while determining the minimum service for air traffic control (Budapest Regional Appeal Court,
order of 20 July 2021, 2.Mpkf.35.080/2021/5). Yet, Government Decree 446/2021 of 26 July 2021 banned
any strike by air traffic controllers during the state of danger. (Contribution from Österreichischer
Gewerkschaftsbund for the 2022 Rule of Law Report, p. 17). Subsequently, the Constitutional Court
confirmed the constitutionality of this emergency measure (Decision 3065/2022 (II. 25.) AB).
196
Shortly after a court ruling (Budapest Regional Court, judgment of 27 January 2022, 109.K.705.866/2021/5)
quashing the ministerial decision limiting media access to hospitals, the Government issued an emergency
measure (Government Decree 33/2022 of 4 February 2022) allowing the administrative authorities to
regulate contacts between hospitals and the media.
197
Decision 23/2021 (VII. 13.) AB. The Constitutional Court established as a constitutional requirement that
the lawmaker may only suspend the exercise of the right of assembly in times of a state of danger for a
period of time and within the scope of what is indispensably necessary, and only in such a way that it must
examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the
suspension of the fundamental right.
198
The Constitutional Court ruled that extending the 15-day deadline for fulfilling freedom of information
requests to 45 and, in some cases 90 days during the ‘state of danger’ is constitutional as long as data
managers indicate the reasons that predict a likelihood that the fulfilment of the request within the 15-days
deadline may endanger the performance of their public service tasks in the state of danger.
199
Decision 27/2021 (XI. 5.) AB.
200
Decision 28/2021 (XI. 5.) AB.
201
Government Decree 180/2022 of 24 May 2022.
26
Investigations have been initiated following allegations related to the use of Pegasus and
equivalent spyware surveillance software against lawyers and journalists, while there
are concerns due to the absence of effective judicial supervision as regards the use of
secret surveillance measures outside criminal proceedings. The national data protection
authority carried out an investigation following allegations202
that at least ten Hungarian
lawyers, including the President of the Hungarian Bar Association, and at least five
Hungarian journalists203
, had been targeted by the Pegasus spyware204
. The report by the data
protection authority205
published on 31 January 2022 confirmed that the Hungarian
authorities206
had used the Pegasus spyware for covert surveillance of information systems
and premises, and that information gathering subject to authorisation207
was carried out with
respect to several persons identified in the press. The report concluded that the spyware had
been used in accordance with the relevant legal regulations. On 15 June 2022, the prosecution
service closed its investigation finding that there had been no unauthorised covert information
gathering or illegal use of covert means. Stakeholders also report that the rules of secret
information gathering are so loose in Hungary that lawyers, like any citizen, may legally
become surveillance targets208
and that the Minister of Justice has discretion in allowing the
secret surveillance for reasons of national security without any meaningful oversight and
control over the decision taken209
. Already in its judgment Szabó and Vissy v. Hungary210
, the
European Court of Human Rights found that authorisation and application of secret
surveillance measures lacked judicial supervision211
. The execution of the judgment is still
ongoing, and Hungary remains under enhanced supervision of the Committee of Ministers of
the Council of Europe. The absence of guarantees, including effective judicial oversight, in
case of secret surveillance of lawyers on grounds of national security, raises serious concerns
202
Direct36 (2021), ‘President of the Hungarian Bar Association and several other lawyers have been targeted
by Pegasus’. On 31 March 2022, Direkt36 also reported that a lawyer who acted as a defense counsel in a
high-profile murder case was also targeted by Pegasus.
203
Including investigative reporters, a newspaper editor, a photojournalist working on high-level corruption and
a media owner.
204
Contribution from Liberties for the 2022 Rule of Law Report, p. 7. Contribution from the Council of Bars
and Law Societies of Europe for the 2022 Rule of Law Report, p. 32. Joint contribution from Amnesty
International Hungary and eight other CSOs for the 2022 Rule of Law Report, pp. 12-13.
205
Findings of the investigation of the Hungarian National Authority for Data Protection and Freedom of
Information launched ex officio concerning the application of the ‘Pegasus’ spyware in Hungary, p. 50.
206
The Specialised National Security Service provides covert information and data gathering services to other
national security agencies and law enforcement agencies.
207
Section 56(1) of Act CXXV of 1995 on national security services provides that the services may, with
external authorisation, a) search residences in secret and record their observations with technical devices; b)
observe and record what is happening on the residence with the help of technical devices; c) open letters and
other postal items, inspect their contents and record them with technical devices; d) learn communication
through a public telephone line or some other telecommunication service transmitting said communication
and record the relevant observations by technical devices. In accordance with Section 58(2), intelligence
information gathering activities listed in Section 56(1), carried out during the performance of national
security tasks – with some exceptions – are authorised by the Minister of Justice.
208
Contribution from Liberties for the 2022 Rule of Law Report, p. 8. Joint contribution from Amnesty
International Hungary and eight other CSOs for the 2022 Rule of Law Report, p. 12.
209
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 12.
210
Judgment of the European Court of Human Rights of 12 January 2016, Szabó and Vissy v. Hungary,
37138/14.
211
The Government notes that the use of surveillance devices is subject to strict conditions and judicial or other
external authorization under Hungarian law. Regardless of professional orders, professions, occupations,
jobs, anyone can be subject to covert surveillance provided that the legal conditions are met.
27
because it weakens their independence, undermining the confidentiality of client-lawyer
communication212
.
Concerns as regards the independence of the Commissioner for Fundamental Rights
have been aggravated by the takeover of the responsibilities of the Equal Treatment
Authority by the Commissioner. In March 2022, the UN Sub-Committee on Accreditation
(SCA) of the Global Alliance of NHRIs (GANHRI) confirmed its earlier recommendation213
that the Hungarian national human rights institution be downgraded to B-status. The SCA
found that the Commissioner for Fundamental Rights ‘has not effectively engaged on […] all
human rights issues, including in relation to vulnerable groups such as ethnic minorities,
LGBTI, refugees and migrants as well as constitutional court cases deemed political and
institutional, media pluralism, civic space and judicial independence’214
. As of January 2021,
through new legislation, the Commissioner for Fundamental Rights took over all the
responsibilities and functions of the Equal Treatment Authority. In its 18 October 2021
Opinion215
, the Venice Commission criticised that the law was ‘adopted during the state of
emergency, in a rushed manner, apparently without consultation with civil society and other
stakeholders’. The Venice Commission concluded that as a result of the merger, ‘the new
system of protection against discrimination is overall more complicated and thus has the
potential to be less effective than the previous one’ and that this is a risk ‘that may undermine
the effectiveness of the work in the field of promoting equality and combating
discrimination’. According to stakeholders, the number of discrimination complaints has
significantly dropped after the merger216
.
The Constitutional Court continues to review final judicial decisions, including upon
request of public authorities217. The new possibility to review final judicial decisions upon
request of public authorities raises questions in particular as regards legal certainty218
.
Although it is not part of the court system, the Constitutional Court adjudicating on the merits
212
According to the Government, secret surveillance for national security purposes does not target the client-
lawyer relationship.
213
Global Alliance of National Human Rights Institutions (GANHRI): Report and Recommendations of the
Virtual Session of the Sub-Committee on Accreditation (SCA), 14-24 June 2021, pp. 12-13.
214
Global Alliance of National Human Rights Institutions (GANHRI) (2022): Report and Recommendations of
the Virtual Session of the Sub-Committee on Accreditation (SCA), 14-25 March 2022, pp. 43-47.
215
CDL-AD(2021)034, para. 57. The Venice Commission noted with regret ‘that no Director General for
Equality Treatment [within the Commissioner’s Office] has been appointed’ (para. 58) and that the
Commissioner could not confirm either the date for filling this vacancy or elaborate on the selection criteria,
although without a Director General for Equality Treatment, ‘it is hard to imagine the promotion and
visibility of equality mandate as required by ECRI General Policy Recommendation No 2’ (para. 44). The
Venice Commission expressed concerns (para. 42) that the Equal Treatment Directorate (ETD) ‘is currently
understaffed, which affects the overall quality of its performance’.
216
According to stakeholders, in 2019, the Equal Treatment Authority received 868 cases throughout the year,
whereas ‘in the first 6 months of 2021, the ETD received only 156 complaints, proportionate to the time only
one third of the 2019 number of complaints’ (Joint contribution from Amnesty International Hungary and
eight other CSOs for the 2022 Rule of Law Report, p. 52).
217
In 2021, the Constitutional Court quashed 23 final judicial decisions following constitutional complaints by
the parties, two of them being upon request of public authorities (the Northern Transdanubian Water
Management Directorate (Decision 16/2021. (V. 13.) AB) and the Government (Decision 33/2021. (XII. 22.)
AB)).
218
2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary, p. 24. According to the
Government, the availability of a constitutional complaint against a final and binding court decision
guarantees the general principles of legal certainty and constitutionality.
28
of the case has been characterised as ‘a court of fourth instance’219
. According to
stakeholders, in 2021, the Constitutional Court continued to overrule Kúria decisions in
politically sensitive cases220
. This role of the Constitutional Court, composed of members
elected by Parliament without the involvement of the judiciary, in reviewing judgments of the
ordinary courts, has also been raised by the Commission in the context of the 2022 European
Semester221
. As regards the constitutional control of the legislative and the executive, in
2021, the Constitutional Court annulled six legal acts and in 11 cases it did not annul the acts
but formulated requirements for their application.
The Government’s stance conditioning compliance with a judgment of the Court of
Justice of the European Union upon a ruling of the Constitutional Court raises
concerns. On 17 December 2020, the Court of Justice222
ruled that Hungary failed to fulfil its
obligations under EU law in the area of procedures for granting international protection and
returning illegally staying third-country nationals. On 26 February 2021, the Government
submitted a petition to the Constitutional Court seeking an interpretation of the Fundamental
Law, arguing that the implementation of this judgment raised a constitutional problem. In its
reply, on 7 December 2021, the Constitutional Court223
ruled that as long as the EU
institutions do not take the measures necessary to ensure the effectiveness of the joint
exercise of competences, Hungary is entitled to exercise the relevant non-exclusive field of
competence of the EU224
. On 12 November 2021, the Commission decided to refer Hungary
to the Court of Justice225
over its failure to comply with this judgment of the Court of Justice.
On 1 January 2022, Hungary had 47 leading judgments of the European Court of
Human Rights pending implementation. Hungary’s rate of leading judgments from the
past 10 years that remain pending is at 71%, and the average time that the judgments have
been pending implementation is over 6 years and three months226
. The oldest leading
219
Contribution from the Council of Bars and Law Societies of Europe for the 2021 Rule of Law Report, p. 23;
Contribution from the Kúria President for the 2021 Rule of Law Report, p. 2, considering that the
Constitutional Court acting in the same manner as ordinary appellate courts.
220
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 51. For example, on 14 December 2021, the Constitutional Court (case IV/03991/2021) quashed
the Kúria order (Knk.II.40.646/2021/9) not allowing that a referendum to be held about the availability of
gender reassignment treatment for children. Also, on 18 May 2022, the Constitutional Court (IV/234/2022)
quashed the Kúria order (Knk.I.40.792/2021/10) allowing a referendum to be held on establishment of the
Chinese Fudan University in Budapest.
221
Recital (27), Recommendation for a Council Recommendation on the 2022 National Reform Programme of
Hungary and delivering a Council opinion on the 2022 Convergence Programme of Hungary.
222
Judgment of the CJEU of 17 December 2020, Commission v Hungary, C-808/18, ECLI:EU:C:2020:1029.
223
Decision 32/2021. The Constitutional Court did not assess whether the incomplete effectiveness of the joint
exercise of competences was realised in the specific case. It also emphasised that the abstract interpretation
of the Fundamental Law cannot include a review of the Court of Justice judgment, nor does the procedure
allow it to rule on the matter of the primacy of EU law (contribution from the Conference of European
Constitutional Courts for the 2022 Rule of Law Report, pp. 15-16).
224
The Constitutional Court did not assess in the specific case whether the effectiveness of the joint exercise of
competences was incomplete. It emphasised that the abstract interpretation of the Fundamental Law cannot
extend to a review of the Court of Justice judgment or to the examination of the primacy of EU law
(contribution from the Conference of European Constitutional Courts for the 2022 Rule of Law Report, pp.
15-16).
225
Case C-123/22.
226
All figures are calculated by the European Implementation Network and are based on the number of cases
that are considered pending at the annual cut-off date of 1 January 2022. See the Contribution from the
European Implementation Network for the 2022 Rule of Law Report, p. 48.
29
judgment, pending implementation for 13 years, concerns the violation of the right to
freedom of assembly227
. On 1 July 2022, the number of leading judgments pending
implementation has decreased to 45228
. There are cases where state bodies refuse to execute
decisions of the domestic courts; several of these concern access to documents229
.
Independent civil society remains under pressure. Although legislation230
governing the
registration and operation of CSOs remained essentially unchanged in 2021, and conforms
with international standards231
, civic space in Hungary continues to be rated as
‘obstructed’232
. On 16 November 2021, the Court of Justice held that Hungary breached
Union law by criminalising233
the organisation of activities carried out with a view to
assisting the initiation of applications for international protection that do not fulfil the
national criteria for granting that protection234
. Hungary’s failure to implement this judgment
maintains the pressure on CSOs active in the field of asylum. The implementation of new
rules235
giving the State Audit Office the power of carrying out legality checks on the
accounts of CSOs with an annual balance sheet total exceeding a certain amount has been
scheduled for the first semester of 2022. Independent CSOs are often being labelled as
227
Judgment of the European Court of Human Rights of 7 October 2008, Patyi and Others v. Hungary,
5529/05, pending implementation since 2009.
228
Data according to the online database of the Council of Europe (HUDOC).
229
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 53. E.g., in August 2021, the Ministry of Finance was fined for the non-implementation of an
October 2019 judgment obliging the Ministry to disclose documents related to the loan agreement signed
with the Russian Federation with a view to finance the construction of the Paks II nuclear power plant. In
May 2021, the text was tabled in Parliament as a draft law and published. In another case, the Budapest
Regional Court (judgment 22.P.21.144/2021/6), confirmed by the Budapest Regional Appeal Court on 14
October 2021 (judgment 2.Pf.20.641/2021/4/II), ordered a government agency to provide a CSO with certain
data related to the impact of the COVID-19 pandemic from November 2020. The government agency failed
to execute the binding judicial decision until April 2022. According to the Hungarian Helsinki Committee,
one of the systemic problems contributing to this phenomenon of non-implementation is the lack of effective
and genuinely coercive enforcement tools (Hungarian Helsinki Committee: Non-Execution of Domestic and
International Court Judgments in Hungary, 2021, p. 10).
230
Act V of 2013 (Civil Code) regulates the legal forms of organisations: associations and foundations. Act
CLXXV of 2011 provides for rules of operation. Stakeholder report that under these laws, anyone can
register a CSO at the courts. With the introduction of an electronic system some years ago, this process has
become easier, though geographic differences among courts still prevail. The organisations can by and large
freely operate (Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022
Rule of Law Report, pp. 55-56).
231
Joint contribution from Amnesty International Hungary and eight other CSOs for the 2022 Rule of Law
Report, p. 54.
232
Rating by CIVICUS; ratings are on a five-category scale defined as: open, narrowed, obstructed, repressed
and closed.
233
Section 353/A of Act C of 2012, introduced by Section 11(1) of Act VI of 2018 (part of the so-called ‘Stop
Soros’ legislative package).
234
Judgment of the CJEU of 16 November 2021, Commission v Hungary, C-821/19, ECLI:EU:C:2021:930.
235
Under Act XLIX of 2021, the State Audit Office (SAO) annually prepares a report on civil organisations and
foundations with an annual financial balance over HUF 20 million. According to the Government, the ability
of CSOs to influence public life may be related to the means at their disposal; requiring transparency in the
operation and funding of CSOs is an overriding reason in the public interest. Stakeholders argue such an
audit may impose an unnecessary administrative burden on human rights defenders critical of the
government and could be misused to make their work as difficult as possible. According to stakeholders, the
law also discriminates against specific CSOs, as religious, sport and national minority organisations are
exempted from auditing. CSOs state that while the law is disguised as a legal measure intended to ensure
transparency, its purpose is to ‘stigmatise Hungarian civil society’, since transparency over the finances of
CSOs is already ensured under current legislation (contribution from CIVICUS for the 2022 Rule of Law
Report, p. 14; contribution from Philea for the 2022 Rule of Law Report, p. 4).
30
‘political’, thus not truly civic, and as ‘agents’ not serving the ‘national interest’236
.
Organisations representing the LGBTIQ community complain of being targeted by
Government’s smear campaigns237
. After the referendum238
related to the ‘Child-protection
Law’239
, the National Election Commission fined the CSOs that had called for invalid votes
be cast240
. The Kúria overturned most of these administrative decisions241
. CSOs have also
reported difficulties as regards access to justice, in particular growing obstacles in
challenging environmental permitting processes242
.
The State’s role in financing civil society raises questions. According to stakeholders, the
Government has centralised the distribution of funding through the National Cooperation
Fund and favours the financing of so-called GONGOs243
. Almost 40% of civil society’s
resources come from public funding244
; stakeholders report that such funding is uneven, lacks
transparency and is politically biased against independent organisations245
. In July 2021, the
236
Contribution from Ökotárs for the 2022 Rule of Law Report, p. 19.
237
A key message of the Government is that the sexual education of children should not be left to LGBTIQ
activists (contribution from Ökotárs for the 2022 Rule of Law Report, p. 19). Pro-government media present
LGBTIQ issues as an ideology, and accuse CSOs seeking to recruit more children to become LGBTIQ,
conflating sexual orientation and gender identity with paedophilia (contribution from ILGA-Europe for the
2022 Rule of Law Report, p. 15). According to the Government, the purpose of communication on the child
protection law is about the parents’ right to upbring their children and the protection of minors. The
Hungarian Fundamental Law strictly prohibits, and laws severely punish the exclusion and discrimination of
sexual minorities.
238
The 3 April 2022 referendum called by the Government failed because less than half of the voters cast a
valid vote.
239
Act LXXIX of 2021, adopted on 15 June 2021, lays down a number of restrictive and discriminatory
measures; in particular, it prohibits or limits access to content that propagates or portrays the so-called
‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’ for individuals
under 18. The Commission has launched infringement proceedings, because it considers that the law violates
a number of EU rules. In its Opinion of 13 December 2021, the Venice Commission assessed that the
amendments concerning ‘propaganda of homosexuality’ can hardly be seen as compatible with the European
Convention on Human Rights and international human rights standards (CDL-AD(2021)050, para. 95).
240
Decisions 324/2022, 325/2022, 327/2022, 328/2022 and 329/2022.
241
Two administrative chambers of the Kúria overturned Decisions 325/2022, 327/2022 and 329/2022 of the
National Election Commission (Orders Kvk.V.39.421/2022/5, Kvk.V.39.422/2022/3 and
Kvk.VI.39.423/2022/6, respectively). As regards Decisions 324/2022 and 328/2022, a third chamber rejected
on formal grounds the application of CSOs (Orders Kvk.IV.39.419/2022/4 and Kvk.IV.39.420/2022/4,
respectively, confirmed by the Constitutional Court in Orders 3216/2022. (V. 11.) AB and 3217/2022. (V.
11.) AB, respectively).
242
Contribution from Ökotárs for the 2022 Rule of Law Report, pp. 18-19. Contribution from Liberties for the
2022 Rule of Law Report, p. 8, Joint contribution from Amnesty International Hungary and eight other
CSOs for the 2022 Rule of Law Report, pp. 14-15.
243
Contribution from Civil Society Europe for the 2022 Rule of Law Report, pp. 14-15. GONGOs are
government-organised non-governmental organisations.
244
The total income of associations and foundations is approximately HUF 900 billion. Of this, somewhat less
than 40% comes from public funding, around 20% from private sources, with the rest originating from
generated own income and a variety of other sources (joint contribution from Amnesty International
Hungary and eight other CSOs for the 2022 Rule of Law Report, p. 54). The budget of the National
Cooperation Fund (NCF) was increased from HUF 3.4 billion to HUF 10.9 billion between 2012 and 2022.
In recent years, two new forms of support available to associations and foundations registered in Hungary
have been introduced: the Village Civil Fund and the Urban Civil Fund with a budget of HUF 5-5 billion for
each fund. 85% of NCF grants (HUF 9.7 billion in 2022) will be distributed through tenders. In the NCF,
five committees with 9 members each decide on the allocation of resources, and they partly carry out their
activities with representatives elected by CSOs (3 civil delegates).
245
Contribution from Ökotárs for the 2022 Rule of Law Report, pp. 18-19. In 2021, an Urban Civic Fund was
launched to replace the EEA/Norway Grants, but as Átlátszó revealed, about half of its biggest beneficiaries
31
failure to agree on an independent grant operator in charge of distributing funds to civil
society, led to Hungary losing funds from the European Economic Area and Norway Grants
Scheme, of which approximately EUR 9.6 million were earmarked for civil society246
. The
number of public-interest trusts247
has increased to 35. Twenty-one trusts are in charge of
operating formerly state-run higher education institutions248
that cover two-thirds of the
students in Hungarian higher education.
are organisations directly controlled by local politicians from the governing party or their affiliates
(contribution from CIVICUS for the 2022 Rule of Law Report, p. 14). While independent CSOs – e.g. those
engaged in human rights or LGBTIQ issues – are not formally excluded from applying for public funding,
they rarely have a chance to secure a grant.
246
While the donors and the Hungarian Government signed a Memorandum of Understanding in late 2020, and
the call for applications to find a fund operator managing the Active Citizens Fund was published
(contribution from Liberties for the 2022 Rule of Law Report, p. 8; joint contribution from Amnesty
International Hungary and eight other CSOs for the 2022 Rule of Law Report, pp. 14-15). Many arts
organisations struggle to continue their operations, also due to the loss of EEA/Norway grants (contribution
from Artistic Freedom Initiative for the 2022 Rule of Law Report).
247
Public-interest trusts are private law entities managed by a board of trustees of at least five natural persons,
appointed for an unlimited period of time. After the transfer of the rights of the founder from the Minister to
the board of trustees, only the board will be able to remove and appoint board members. The legislation
allows the founder to give up any form of control over the board of trustees, making its members
autonomous and irremovable.
248
Among the 106 board members, it is estimated that less than 25% have academic background and only three
persons have had a relevant international professional career. Over 70% of the board members have links to
the current Government or personally to the Prime Minister, including current and former ministers and
State secretaries, government commissioners, managers of the central bank, members of Parliament,
(deputy) mayors, vocal members of pro-government groups, relatives. Out of 21 universities that have
undergone the ‘model change’, 19 have boards with a majority of members thus linked to the Government.
32
Annex I: List of sources in alphabetical order*
* The list of contributions received in the context of the consultation for the 2022 Rule of Law report
can be found at https://ec.europa.eu/info/publications/2022-rule-law-report-targeted-stakeholder-
consultation_en.
Amnesty International Hungary (2021), Status of the Hungarian judiciary
https://www.amnesty.org/en/wp-content/uploads/2021/05/EUR2736232021ENGLISH.pdf.
Amnesty International Hungary, Eötvös Károly Policy Institute (EKINT), Hungarian Civil Liberties
Union (TASZ), Hungarian Environmental Partnership Foundation (Ökotárs), Hungarian Helsinki
Committee, K-Monitor, Mertek Media Monitor, Political Capital, Transparency International Hungary
(2022), Contribution for the 2022 Rule of Law Report.
Artistic Freedom Initiative (2022), Contribution from the Artistic Freedom Initiative for the 2022 Rule
of Law Report.
Átlátszó (2020), ‘The Government has abused the pandemic multiple times according to K-Monitor
and HCLU’ (‘A K-Monitor és a TASZ szerint többszörösen visszaélt a kormány a vírushelyzettel’)
https://atlatszo.hu/kozugy/2020/10/28/a-k-monitor-es-a-tasz-szerint-tobbszorosen-visszaelt-a-
kormany-a-virushelyzettel/.
Átlátszó (2021), ‘Botched investigations: 20 important cases that got stuck with prosecutors’
(‘Elszabotált nyomozások: 20 fontos ügy, ami megakadt az ügyészségen’)
https://atlatszo.hu/kozpenz/2021/09/16/elszabotalt-nyomozasok-20-fontos-ugy-ami-megakadt-az-
ugyeszsegen/.
Bertelsmann Stiftung (2022), Transformation Index: Hungary Country Report https://bti-
project.org/en/reports/country-report/HUN.
BIRN (2022), Hungary election: virtual smear tactics alive and well on Facebook
https://balkaninsight.com/2022/03/30/hungary-election-virtual-smear-tactics-alive-and-well-on-
facebook/.
Centre for Media Pluralism and Media Freedom (2021), Media pluralism monitor 2021 – country
report on Hungary
https://cadmus.eui.eu/bitstream/handle/1814/71949/hungary_results_mpm_2021_cmpf.pdf?sequence
=1&isAllowed=y.
Centre for Media Pluralism and Media Freedom (2022), Media pluralism monitor 2022 – country
report on Hungary.
CIVICUS, Monitor tracking civic space – Hungary https://monitor.civicus.org/country/hungary/.
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33
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most notorious murder cases’ (‘Pegasus-célponttá vált a védőügyvéd, amikor fordulat állt be
34
Magyarország egyik leghírhedtebb gyilkossági ügyében’) https://www.direkt36.hu/pegasus-celpontta-
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35
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36
birosag.hu/hu/sajto/buntetoeljaras-menetenek-megakasztasa-jogszeru-es-alapos-erdemi-dontes-
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37
Prosecutor General’s Office (2022), Press release: ‘Grants obtained through corruption’ (‘Korrupció
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10-29-12-00-00.
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szabalyszerusegenek-tamogatasa-erdekeben.
Telex (2022), ‘18 people questioned over bribery in Finance Ministry case’ (‘Tizennyolc embert
hallgattak ki vesztegetés miatt a Pénzügyminisztériumot érintő ügyben’)
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vesztegetes-miatt.
Telex (2022), ‘Five arrested, one placed under criminal supervision in corruption case involving
Finance Ministry’ (‘Öt embert letartóztattak, egyet bűnügyi felügyelet alá helyeztek a
Pénzügyminisztériumot érintő korrupciós ügyben’) https://telex.hu/belfold/2022/04/22/ot-embert-
letartoztattak-egyet-bunugyi-felugyelet-ala-helyeztek-a-penzugyminiszteriumot-erinto-korrupcios-
ugyben.
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for the 2022 Rule of Law Report.
38
Annex II: Country visit to Hungary249
The Commission services held virtual meetings in February and March 2022 with:
 Alapjogokért Központ
 Amnesty International Hungary
 Corruption Research Center Budapest
 Editors-in-Chief’s Forum (Főszerkesztők Fóruma)
 Eötvös Károly Policy Institute
 Hungarian Association of Judges (MABIE)
 Hungarian Bar Association
 Hungarian Civil Liberties Union (TASZ)
 Hungarian Helsinki Committee
 K-Monitor
 Kúria (the Supreme Court)
 Mathias Corvinus Collegium
 Mérték Media Monitor
 National Authority for Data Protection and Freedom of Information
 National Judicial Council
 National Media and Infocommunications Authority
 National Office for the Judiciary
 Nézőpont
 Office of the Commissioner for Fundamental Rights
 Office of the Constitutional Court
 Prosecution Service of Hungary
 Res Iudicata Association
 State Audit Office (Állami Számvevőszék)
 Századvég
 Transparency International Hungary
* The Commission also met the following organisations in a number of horizontal meetings:
 Amnesty International
 Article 19
 Civil Liberties Union for Europe
 Civil Society Europe
 European Centre for Press and Media Freedom
 European Civic Forum
 European Federation of Journalists
 European Partnership for Democracy
 European Youth Forum
 Free Press Unlimited
 Human Rights Watch
 ILGA Europe
 International Federation for Human Rights (FIDH)
 International Press Institute
249
The Hungarian government did not provide written input and decided not to participate in relevant meetings
of the country visit. However, it commented on the draft country chapter.
39
 Open Society European Policy Institute (OSEPI)
 Osservatorio Balcani e Caucaso Transeuropa
 Philea
 Reporters Without Borders
 Transparency International Europe