Volume 9 Number 4

Fall 2000

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Hungary - Corruption scandals have continued to roil the Hungarian political scene. In October, Deputy Zoltan Szekely (Independent Smallholders’ Party [ISP]), chairman of parliament’s procurement committee, was caught red-handed taking a 20 million forints ($65,000) bribe. Szekely’s eventual arrest, however, was not the most serious blow to ISP, the second largest party in the ruling coalition. After several years of controversial political behavior, Jozsef Torgyan, the party’s leader, who is also the minister of agriculture, was accused of improperly reporting his income and possibly accepting bribes.

Shortly after the Szekely affair, the media published reports on Torgyan’s newly built, three-story villa equipped with a swimming pool and an indoor elevator, situated in one of Budapest’s posh neighborhoods. According to conflict-of-interest requirements, all MPs must submit a financial statement at the beginning and end of the four-year parliamentary cycle. Less detailed summaries of the statements are made public while the detailed versions are submitted to parliament (the Orszaggyules) and can be opened only during conflict-of-interest proceedings. There are legal sanctions for failing to submit the statements, but discrepancies between the two carry no legal consequences. Even in investigations into such conflicts, the relevant parliamentary committee does not have a free hand in opening the confidential statement and may do so only in very limited, clearly defined circumstances—for example, if the committee is investigating whether a deputy has violated incompatibility laws while serving as a board member of a state-owned company.

After reports circulated about Torgyan’s deluxe residence, opposition deputies—as allowed by the Law on the Status of Parliamentarians and parliament’s own house rules—initiated a conflict-of-interest procedure, claiming that his public statement did not disclose sufficient resources to purchase such a home. At first, Torgyan stated that he had earned the money from his work, before 1989, as a top lawyer. He stated, later, that the funds came from his family. When asked why these cash reserves were not reported in his public statement, he responded that he was afraid of being robbed so did not include them. As to opposition requests to disclose his detailed confidential statement, Torgyan replied that he would do so only if opposition deputies did the same, prompting three MPs from the opposition Alliance of Free Democrats (AFD) to ask the committee to publish their reports.

In the meantime, the committee on immunities and conflicts of interest, headed by Deputy Tamas Isepy of the main party of the ruling coalition—the Federation of Young Democrats–Hungarian Civic Party (FYD–HCP)—refused to initiate an incompatibility procedure against Torgyan. The argument that he lacked the funds to build his house was, by itself, insufficient, the committee concluded. Similarly, Isepy refused to make public the AFD deputies’ own statements, arguing that parliamentarians could not authorize the release of their statements. He then asked the ombudsman in charge of data protection for an advisory opinion on whether deputies can have the committee disclose their confidential statements. The ombudsman held that deputies had such a right, prompting the committee to disclose the statements.

In the following days, many politicians (the mayor of Budapest, opposition leaders, followed by parliament’s speaker and the prime minister) and then entire parliamentary factions published their detailed statements, both in newspapers and via the Internet. Yet Torgyan still refused. Stating that all politicians should disclose their statements, Prime Minister Viktor Orban (FYD–HCP) bid his to party post all its deputies’ statements on its website (www.fidesz.hu). Still refusing, Torgyan proposed the creation of an ad hoc parliamentary committee to scrutinize the confidential statements of all MPs, stating that he would authorize this and only this committee to inspect his statement. Meanwhile, FYD–HCP prepared amendments to the law on the status of parliamentarians to incorporate stricter—and annual—reporting requirements. Although FYD–HCP stated that the amendments were intended to make the process more transparent, the opposition criticized a provision allowing deputies to amend their statements retroactively if the committee were to point out certain discrepancies or questionable items.

But the opposition, which consists of AFD and the Hungarian Socialist Party (HSP), stated that they would not vote on the amendments until Torgyan divulged his statement. Because they require a two-thirds majority for passage, the amendments will fail without opposition support. While the opposition accuses the government of protecting Torgyan, the ruling coalition retorts that the opposition is simply delaying measures for increased transparency by refusing to vote on the legislation.

At the same time, on December 15, after the repeated and clarified request by AFD, the conflict-of-interest committee ordered incompatibility proceedings against Torgyan and his wife. Yet, it was still unclear whether the committee could examine his statement without his consent, since the conditions for doing so are narrowly defined. On December 19, Torgyan and his wife failed to appear for the committee hearing, and parliament voted (with the votes of the ruling coalition and the Hungarian Truth and Life Party [HTLP]) to postpone both the procedure and the creation of the ad hoc committee. The opposition still refuses to vote on the new legislation.

The long-term consequences of the Torgyan affair are unclear. But one thing is certain, that ISP’s popularity has been dwindling quickly—it regularly commands about 2 percent support as compared with the 14 percent achieved in the 1998 elections. Some commentators suggest FYD–HCP may call early elections to disassociate itself from the tarnished ISP and salvage its own image. Seeing the EU’s tacit acceptance of the situation in Austria—there was no official reference to Jorg Haidar’s election at the recent Nice conference—a coalition with the far-right HTLP, which is a member of the opposition but often supports the government, is not unimaginable.

On the other hand, Orban’s government proposed a two-year budget, adopted by parliament on December 19. (It is rare for a government to do this: budgets are almost always annual.) Having a budget in place until the 2002 elections, Orban might now consider ruling for the next two years with a minority coalition. (FYD–HCP has 141 seats in the 386-member parliament. The Hungarian Democratic Forum, with 17 seats, is also a member of the coalition.) Be that as it may, there is one sign that suggests FYD–HCP will not, at least, be running with Torgyan’s party in future elections—FYD–HCP recently suspended talks with ISP on party agreements for the 2002 elections.vOn June 20, parliament adopted amendments (Law No. 87) to the Law on the Protection of the Life of the Fetus (No. 29 of 1992) as required by Constitutional Court Decision 48/1998 (XI. 23.) AB, handed down in 1998. (For more on this decision, see Hungary Update, EECR, Vol. 8, Nos. 1/2, Winter/Spring 1999.) The previous law, which was ruled unconstitutional by the Court, allowed abortions if a woman declared that she was in "a state of emergency" (Art. 6.1.d). Under Art. 12.6 of that law, an emergency situation would exist "in the presence of factors liable to cause profound physical or moral disarray or to create unacceptable social circumstances that would endanger the healthy development of the fetus." The justices held that this definition was overly vague and found that the law did not provide sufficient means to counterbalance the woman’s control over the life of the fetus. The Court stressed that a counseling service was also necessary to shield the pregnant woman from adverse influences to which she might be subject.

The June amendments reiterate that a woman may have an abortion in an emergency situation (Art. 5.1). And again, this situation is defined as a condition that would result in physical or mental distress or social stigmatism (Art. 5.2). A woman who intends to terminate her pregnancy due to her emergency situation must consult a counselor at the Family Protection Service. If the woman decides to request an abortion, she must wait three days before her request is countersigned by the counselor (Art. 9.1.f). The pregnancy may be terminated eight days after a second meeting with the counselor (Art. 10.1).vAfter returning from its summer recess, the Constitutional Court decided two significant cases. A particular group, the Leftist Front–Young Workers’ Organization, had planned to organize a referendum prohibiting nuclear weapons in Hungary. But the Constitution prohibits referenda that would impinge on the fulfillment of international obligations (Art. 28.C.5.b). The National Electoral Commission had ruled, therefore, that the referendum would interfere with Hungary’s international obligations as a member of NATO. The initiators of the referendum requested the Constitutional Court to review the commission’s decision.

On July 6, in Decision 25/2000 (VII. 6.) AB, the Court unanimously upheld the commission’s decision. The Court attributed special significance to the fact that Hungary had held a referendum on NATO membership, which was approved by the electorate, in 1997. The Court noted that while the NATO treaty does not contain an express reference to nuclear weapons, the use of force required under the NATO treaty implicitly assumes the deployment of such weapons.

The significance of another Court ruling is less apparent but equally important. In Decision 29/2000 (X. 11.) AB, from September 10, the Court ruled unconstitutional a provision regarding the application of procedural rules of the regulatory-offenses code (Law No. 69 of 1999, dated March 1, 2000). Regulatory offenses are either lesser forms of crimes or more-serious breaches of administrative law. While crimes are defined in the Criminal Code and tried by criminal courts, regulatory offenses are defined in law, by governmental decree or by the decree of a local government, and are handled by administrative authorities (such as local governments, police officials, tariff officers, borderguards, and so on) in a special procedure. Before 1999, decisions by these authorities in dealing with regulatory offenses were not subject to judicial review. But a new code regulating these procedures was adopted in 1999, and Arts. 88.1 and 89.2 of the new code now made judicial review of decisions possible.

The petitioners challenged the constitutionality of the rules for the application of the code’s provisions. According to Art. 165.2, the new, 1999 code applies to regulatory offenses committed after its entry into force. The petitioners pointed out that, according to the code’s provisions, offenders who committed their offenses before the 1999 code had entered into force cannot request judicial review of the decision in their case, even if that decision came after the code became effective. According to the petitioners, this distinction violates Art. 70.A of the Constitution, which makes discrimination unconstitutional and violates the rule of law enshrined in Art. 2.1.

According to the Court, the 1999 code provides that its provisions are applicable to offenses committed after its entry into force. The challenged provision makes the procedural provisions applicable only if the offense was committed after the 1999 code entered into force and does not allow for the application of the new rules in ongoing cases. The Court agreed that this distinction was discriminatory and declared the challenged provision unconstitutional. The unconstitutionality of the provisions is effective ex post facto, dating back to the entry into force of the 1999 code.

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