On December 12, the Hungarian government adopted the Law on the Defense of National Sovereignty (Law). The draft Law was submitted to the Parliament on November 21 by the Hungarian ruling party Fidesz and was adopted within 3 weeks, limiting possibility for consultation.
Background
The intention to adopt a sovereignty law package was first announced by the leader of Fidesz' parliamentary group at a press conference on September 21. The Law claims that Hungary’s sovereignty is increasingly under attack, and for years there have been attempts to exert influence, including during the 2022 parliamentary election campaign. The Law aims to create a body – Office for the Defense of Sovereignty - whose primary task is to make the various electoral and public decision-making processes transparent and to identify the actors involved in influencing them and the will of the voters.
The introduction to the Law also references developments at the European Union tackling foreign interference. Worryingly, the European Commission published its Defence of Democracy Package with a purpose to enhance the transparency and accountability of interest representation activities on behalf of third countries, which are aimed at influencing policies, decision making and the democratic space. In fact, many civil society organisations and experts, including ECNL, raised concerns during the drafting of the Defence of Democracy Package about its potential negative impact on fundamental rights and its potential spillover effect to other countries in the EU and abroad.
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What are the key elements of the Law?
The Law establishes a new Office for the Defense of Sovereignty with a broad mandate, including investigative, analytical, evaluative and proposing functions and activities. As part of its investigative function, among others, it will
- explore and investigate various activities carried out in the interest of another state, foreign body, organisation or natural person. This includes activities that are aiming to influence democratic debate and public decision-making processes, along with the activities that influence the decision-making procedure of persons exercising public authority, if they may harm or threaten the sovereignty of Hungary;
- identify and investigate organisations, whose activities using foreign funding may influence the outcome of elections, or that use foreign funding to influence the will of voters, or support such activities.
The Office will investigate individual cases, publish on its website the results of its case-by-case investigations, and issue annual national sovereignty reports. The annual reports will include the results of these investigations and the facts, findings and conclusions of the Office’s annual activities, including recommendations to the competent bodies and how they have taken the previous recommendations into account. No appeal will be possible against a report of the Office made public.
What are the key legal concerns about the Law?
The Law violates fundamental freedoms of association, expression and participation of individuals, but also of CSOs.
- Vague and can threaten anyone: The Law is formulated vaguely and can be applied very broadly. It fails to define key terms such as “sovereignty” and “interest representation activity”. It gives powers that can be arbitrarily used against anyone – specifically, the Office can investigate any individual or organisation if their activities are suspected of serving foreign interest or threatening national sovereignty. Under such vague powers, civil society organisations (CSOs) will operate under legal uncertainty and their work may be impacted by discretionary acts by the Office. For example, the Office might investigate public campaign of a CSO financed by the EU that aims to raise awareness of challenges in the healthcare system. In such case the Office might argue that campaigns criticizing the healthcare provision by the government aim to “influence the will or voters or support such activities”.
- Violates fundamental rights and international standards: The Office can investigate activities that aim to influence democratic debate and public decision-making processes. The Law can stifle any dissent and discourage people from raising their voices and participating in public discourse on important issues that affect their life. Participation in decision-making and freedom of expression are core to the right to freedom of association and assembly and their restrictions also jeopardize the right of CSOs to raise their voices and represent the communities they serve.
- Cannot be challenged: The Law specifically excludes the possibility to appeal against a public report issued by the Office; this violates the right to an effective legal remedy.
Reactions to the Law
Several stakeholders, including the representatives of civil society organisations, media and international community raised concerns about the draft Law:
- It can stigmatise, intimidate and silence brave citizens, who are actively participating in public life;
- It could target journalists, media, nonprofit organisations or businesses who speak out against policies and laws that curb the rights and jeopardise the future of Hungary’s people;
- In a country, where civil society organisations cannot operate freely, people's most basic rights are not being upheld.
In her statement, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, wrote “The proposal to establish an ‘Office for the Defence of Sovereignty’ in Hungary, that would be vested with broad powers to investigate any organisation or person suspected of serving foreign interests or threatening national sovereignty, poses a significant risk to human rights and should be abandoned” and “If this proposal is adopted, it will provide the executive with even more opportunity to silence and stigmatise independent voices and opponents”. She “calls on the Hungarian Parliament to shelve these proposals and use its legislative and oversight powers to uphold human rights and fundamental freedoms in line with the European Convention and the core values of the Council of Europe.”
The Mandates of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur on the situation of human rights defenders addressed the Government and expressed concerns "that the draft law appears to be a restrictive legislative measure that could negatively impact the enjoyment of fundamental rights and civic space in Hungary." They also urged the government "to refrain from adopting the legislative proposal as currently drafted and to seek international assistance and expertise from international and regional human rights mechanisms and bodies."
Overall, the Law contributes to the already existing threats and shrinking civic space in the country.
What is next?
The Law will come into effect the following day after its promulgation and the President of the Office for the Defense of Sovereignty will be appointed by February 1, 2024.
Considering all the concerns above, it is important to monitor closely how the Law will be interpreted and implemented by the authorities, and work with civil society to prepare strategies to protect their work and respond to potential restrictions arising from the Law.