15 November 2024  * The Constitutional Court today rejected the constitutional complaint of Transparency International Hungary. This allows, at least for the time being, all the arbitrary provisions of the Sovereignty Protection Act that threaten the freedoms of citizens and the operation of independent news outlets and NGOs to remain in effect. Hungarian NGOs, as TI Hungary, the Hungarian Helsinki Commitee, Amnesty International Hungary and the Civilisation Coalition state in their joint statement will not back down and will continue to challenge the government’s dangerous political project before every possible legal forum. 

The so-called Sovereignty Protection Act was adopted by the governing majority in the Parliament last December. The parliamentary process, which involved amending the constitution, and the new legislation were met with fierce protests at home and abroad. Despite all efforts, the Sovereignty Protection Office (SPO) started its activities in February this year. 

Firstly, in June, an “individual investigation of comprehensive nature” was launched against Transparency International Hungary (TI Hungary), and then against the non-profit public benefit corporation that operates the investigative portal Átlátszó. TI Hungary immediately lodged a constitutional complaint against the Sovereignty Protection Act, which allows for a blatantly retaliatory and stigmatising procedure. 

TI Hungary’s constitutional complaint was supported by a joint amicus curiae petition submitted to the Constitutional Court by 31 NGOs. The European Commission launched infringement proceedings against the Hungarian state and announced in October that it would refer the legislation, which is contrary to EU law on several points, to the Court of Justice of the European Union under an accelerated procedure. Another important development is that in March the Venice Commission of the Council of Europe identified several fundamental rights problems regarding the Sovereignty Protection Act. 

Despite all this, the Constitutional Court has now decided that the legislation is fully compliant with Hungary’s constitution. According to the decision, the law does not allow the SPO to apply any legal consequences, consequently, the challenged provisions cannot be linked to the freedom of expression. For this reason, the Constitutional Court threw out the constitutional complaint seeking to establish this linkage. 

According to the Constitutional Court, the SPO is an “independent, autonomous state administrative body”, which does not qualify as a public authority and which does not exercise any administrative control in an administrative law sense, and cannot impose sanctions either. Since the SPO is not directly entitled to apply legal consequences, the Constitutional Court held that its actions are not covered by the protection of the right to a fair hearing. Moreover, since the reports of the SPO do not constitute either a public authority decision or any other administrative decision, there is no need to provide for a right to appeal against them. 

But in a state governed by the rule of law, intentional state malfeasance and arbitrariness cannot be “papered over”. And that is exactly what happened here. The Sovereignty Protection Act is not a law that serves the public good. It is a dangerous political propaganda product that serves the government’s sole interest to stay in power. It is not the sovereignty of our country that it protects; it only protects arbitrary government action. 

As with the Constitutional Court’s decision TI Hungary has exhausted the last domestic remedy available, and since it continues to believe that the law that established the Sovereignty Protection Office runs counter to the Fundamental Law of Hungary and international treaties, TI Hungary is taking the case to the European Court of Human Rights in Strasbourg. 

NGOs have opposed this law aimed at protecting arbitrary government action from the very beginning. TI Hungary’s complaint to the Constitutional Court and the 31 NGOs’ supporting submission have provided detailed legal arguments why many provisions of the law are unconstitutional: 

1) They violate the right to freedom of expression, to a fair administrative or judicial procedure, and the right to a remedy, and they also violate international treaties. 

2) The vaguely worded “law” violates the requirements of clarity and predictability of norms that are part of the rule of law. Moreover, no court precedent can be developed to clarify the concepts used in the law, as there is no legal remedy against the reports of the SPO. 

3) The “law” leaves an extremely wide margin for arbitrary interpretation and does not provide safeguards for people, NGOs and media actors against abuses by the SPO. The office wields powers that restrict the free formation and functioning of a democratic public opinion. 

4) The SPO has access to all the data and documents of the investigated organisations, which, especially in the case of anti-corruption and human rights organisations and media outlets, may result that people who would report violations and other abuses will be afraid to approach these organisations. This is not only contrary to the laws which require that privileged information must be protected (e.g. confidential information disclosed to lawyers or doctors), but also hinders the legitimate work of organisations that monitor the activities of the executive, while at the same time limits people’s right to information. 

5) The report of the SPO may suggest regarding any lawfully operating organisation that  it works against the fundamental interests, values and security of Hungary or that it advocates foreign interests. Thus, even without further sanctions, the arbitrary investigation and the absence of any legal redress has a chilling effect that can drive organisations and individuals away from the legitimate exercise of their fundamental constitutional rights. 

The Constitutional Court was not convinced by the legal arguments put forward by the NGOs. Yet the damage is already being felt, the chilling effect is already visible: many NGOs have decided to abandon certain activities, even though they are legal in every respect, or to stop making use of certain funds, even though these are also legally available (e.g. funds from the EU). 

The real aim of the SPO set up earlier this year is to prevent the free debate of public issues and to undermine the credibility of activities that are inconvenient for the government (e.g. human rights protection, active public engagement, fighting corruption, investigative journalism, etc.). 

It is in the vital interest of our country that this partisan “office” is abolished as soon as possible. Therefore, NGOs continue their legal struggle and, since the rights violations caused by the Sovereignty Protection Act cannot be remedied within the Hungarian legal system, they will ask international forums, including the European Court of Human Rights, to declare that the legislation violates fundamental rights and freedoms.