Volume 9 Numbers 1/2

Winter/Spring 2000

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

Hungary - The struggle among the political parties over control of the media, especially over public broadcasting, has flared up again in Hungary. Although commercial television has reduced the role of the state-owned media, and the three public television channels are watched by barely 15 percent of viewers, important issues concerning the rule of law and conditions for fair political competition are at stake.

The current conflict results from a faulty law and the government's eagerness to exploit legal loopholes to its own advantage. (The government consists of the Federation of Young Democrats-Hungarian Civic Party [FYD-HCP] and the Independent Smallholders' Party [ISP].) The media law of 1996 sought to diminish the influence of political parties on broadcasting. In addi-tion to creating a legal framework for commercial broadcasting, the law created three boards of trustees (one for the two national public-television networks, one for Duna Television, which aims at ethnic Hungarians living in neighboring countries, among others, and one for the national public radio). According to the law, the three boards of trustees each have a presidium consisting of at least eight members, elected by simple majority vote in the parliament (or Orszaggyules). Half of the presidium members are to be nominated by the governing parties and the other half by the opposition. This arrangement is meant to guarantee a certain level of nonpartisanship in broad-casting. The presidia supervise spending, the nominations of directors to the various telecommunica-tions agencies, and the application of the rules governing the operations of the public-broadcasting agencies. The law also established the National Radio and Television Body (NRTB), which, among other things, assigns frequencies and supervises the operation of both public and commercial broadcasting stations.

Within two years of the law's passage, controversy erupted over the nominations of members to the various presidia. The debate began just after the government came to power in 1998 and tried to elect new members to the boards of trustees' presidia. The opposition accused the government of exploiting loop-holes in the law to pack the presidia with their own representatives and obstruct the opposition's ability to appoint their own representatives. (Technically, the crux of the issue was this: Did representatives from parties no longer in parliament count as representatives of the opposition or the government?) The conflict dragged on and eventually reached the Constitutional Court in 1999, which handed down a fairly ambiguous ruling on the matter, interpreted as a victory by both sides. (For the details of the ongoing controversy and a description of the Court's ruling, see Hungary Update, EECR, Vol. 8, No. 4, Fall 1999.)

The Court's ruling did not put the matter to rest, and the increasingly strident controversy continued when the mandates of the presidia for the national public radio and Duna Television and the NRTB expired in February 2000. The opposition accused the government of repeating its earlier maneuvers, attempting to elect presidia consisting only of govern-ment members or representatives friendly to it. The Hungarian Truth and Life Party (HTLP)-an extreme right-wing party that is not formally in the government but sometimes supports it-demanded two of the opposition's four slots on each presidia and the NRTB. The Hungarian Socialist Party (HSP) and the Alliance of Free Democrats (AFD), which together constitute the bulk of the opposition, insisted that the nomina-tions be split more evenly among the opposition parties in order to reflect their proportions in parliament. An understanding was never reached with HTLP, and HSP and AFD put forward their own nominations. The government stated that it would put the appointment of opposition candidates on the agenda only if HSP, AFD, and HTLP agreed among themselves on four candi-dates and, if they could not agree, the presidia and the NRTB would begin operating and making decisions with government members only.

Procurator General Kalman Gyorgyi, like many others, thought that this governmental hijacking of the presidia violated the Court's ruling on the matter, and issued a position paper declaring the government's actions unlawful. (The procurator general supervises the legality of the operation of public bodies.) Referring to the Court's ruling, he wrote that the presidia and the NRTB "can be formed exclusively from the candidates of one side, only if the other side fails to nominate candidates." But Gyorgyi's declaration left the govern-ment unfazed. Janos Ader (FYD-HCP), parliament's speaker, announced that it lacked legal force. Deputy Bela Turi-Kovacs (ISP) declared that the letter was a splendid piece of literature. (In a strictly legal sense, Turi-Kovacs may have been right. It seems that Gyorgyi can do little in this matter beyond airing his opinion.)

Apart from domestic critics, both Peter Tufo, the US ambassador to Hungary, and Michael Lake, the EU ambassador to Hungary, expressed concern over these events, warning that Hungary's reputation could be impaired if the government arrogantly ignored the opposition's demands. Prime Minister Viktor Orban (FYD-HCP) dismissed their criticism, adding that he would not take lessons on the Hungarian Constitution from foreigners.

On February 28, the parliamentary majority voted in new presidia and a new NRTB consisting of govern-ment members only. Ader did not put the appointment of opposition candidates on the agenda. On March 6, Kalman Gyorgyi, who had served as Hungary's procu-rator general since the political transition, resigned. He did not offer any reason for his resignation, and he is not required to do so by law. It is widely assumed that he resigned because Ader ignored his legal advice. Ten days later, at a lunch with EU ambassadors, Ader claimed-off the record-that Gyorgyi resigned because he recognized that he had misunderstood the Court's ruling. Ader's remark was immediately leaked to the press, but Gyorgyi remained silent.

The politically partisan presidia and NRTB repre-sent more than a cosmetic blemish. Many observers expect that they will make biased substantive decisions. Recent events seem to bear out this fear. On February 29, the outgoing NRTB made public its decisions concerning the distribution of local and regional frequencies among nonprofit applicants. FYD-HCP and HTLP members voted together in every instance. The criteria for granting these frequencies are fairly loose and are not based on any monetary considerations. For example, applicants are granted frequencies if they serve the public or if there is a public need for such a station. Forbidden Radio-a fiercely independent and outspoken station that began as a pirate radio station in the early nineties-lost its broadcasting rights to the newly created Foundation for Civic Broadcasting, which is run by individuals cozy with FYD-HCP. A consor-tium formed by BBC, Deutsche Welle, and Radio France was also denied a frequency, but a new organization that includes an HTLP deputy and city council member received a license. In addition, a radio station that repre-sented the Roma community was denied a frequency. The body has offered little explanation for its decisions.

Political interests dominate the private mass media as well. In 1997, two frequencies, previously used by state channels, were leased via a public concession. Although the best offer was made by Iris Television, which is owned by Central European Media Enterprises (CME), the NRTB allotted the channels to TV2 and RTL Klub. (Many believe that CME, which is owned by US Republican activist Ronald Lauder, lost the bid because it was considered too liberal politically.) Iris Television (which became a cable station and is now known as TV3) sued the NRTB, TV2, and RTL Klub, arguing that the RTL's bid was invalid because it did not contain certain required information such as a descrip-tion of its ownership structure. In March 1998, the Budapest Metropolitan Court upheld the NRTB's deci-sion. But on appeal, the Supreme Court held in favor of CME, ruled RTL's tender invalid, and ordered the NRTB to cancel its contract with RTL Klub. NRTB refused, referring to a 1957 law that denies the right of the courts to instruct state bodies in administrative matters. In January 2000, the Supreme Court made a so-called "legal harmonizing decision," according to which courts may decide on violations of privatization rules, thereby allowing it to decide on this matter. But then, in late February, the owners of TV2 and RTL Klub purchased TV3 from CME, ended its broadcasting activity, and withdrew the earlier petition to the Supreme Court. (Many legal experts argue that the peti-tion could not be withdrawn since the Supreme Court had already made its decision.) In a much criticized action, the Supreme Court threw out its earlier decision because the petition had been withdrawn. (Legal experts also doubt the validity of this move.)

The government has plans concerning the print media as well. It wants to create a large circulation daily paper that is conservative, nationally oriented, and progovernment, as well as competitive with the more leftist Nepszabadsag. Two dailies aspired to assume this mantle. The loss-making Magyar Nemzet, a paper with a rich and distinguished tradition, is owned by a subsidiary of the state-owned Postabank and is directly subsidized by taxpayers. Another paper in the red, Napi Magyarorszag, is owned by Mahir, an advertising firm with close ties to FYD-HCP. Napi Magyarorszag is printed at a discount by a press that also prints official gazettes. On April 17, Mahir bought Magyar Nemzet and merged the two papers. The result resembles Magyar Nemzet, while its content is closer to that of Napi Magyarorszag, which was the more conservative and progovernment of the two.

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In February, the Tisza River succumbed to an unprece-dented environmental catastrophe. On February 1, a huge amount of cyanide spilled into the Szamos River in Romania from a gold mine operated by Aurul Inc., a joint venture owned by an Australian firm and a Romanian state-owned company. The Szamos flows into the Tisza, a much larger river, in Hungary. The concentration of cyanide was 400 milligrams per liter (mg/l) in the Romanian section of the Szamos; it decreased to 32.6 mg/l where the Szamos met the Tisza. The Tisza crossed the Hungarian-Yugoslav border with a cyanide concentration of 1.49 mg/l. A deadly dose for fish is just a few tenths of a mg/l. Almost all the fish in the Tisza and the Szamos-and the better part of the fauna dependent on the rivers- died. According to estimates, it will take anywhere from five years to several decades for the rivers to recover fully. After some hesitation, Romanian authorities accepted responsibility, but the Australian firm still denies involvement pending litigation.

Since the cyanide poisoning, the Tisza has been polluted two more times with heavy metals from Romanian industrial plants. These incidents drew atten-tion to the sorry state of environmental protection in Eastern Europe. In Hungary, the situation may be better than in Romania; but Hungarian environmental protection does not meet EU standards. According to some EU officials, the state of the environment is the greatest obstacle to the accession of Hungary, Poland, and the Czech Republic to the EU.

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At the end of 1999, the Constitutional Court issued opinions in two cases challenging the constitutionality of highly politicized government measures. In 1999, parlia-ment amended a number of provisions in the Criminal Code and the Code of Criminal Procedure regarding drug-related offenses. The amendment broadened the definition of criminal activities, increased sentences for drug-related crimes, and narrowed various exemptions. The amended rules entered into force on March 1, 1999.

Previous to being amended, the Art. 282/A of the Criminal Code stated that "any person shall be exempt from punishment who cultivates, manufactures, acquires, or stores a small amount of drugs for his/her personal use; who committed any crime related to the consumption of drugs which is subject to less than two years of incarceration, provided that he/she presents documentary evidence before the rendition of the judg-ment of the first instance that he/she has been in continuous treatment preventing or curing drug addic-tion for at least six months." Article 137 of the Code of Criminal Procedure stipulated that the "investigation shall be suspended once, for a year, if the defendant undertakes therapy. The defendant shall show docu-mentary evidence that he/she has been in continuous therapy for at least six months within a year starting from the suspension." The newly amended Art. 282/A and Art. 137 still offered these exemptions but stated that they were for a "drug-addicted person" who committed the crimes outlined above. Offenders who could not prove that they were addicted to drugs could not invoke the exemption.

The petitioner claimed that the amendment was unconstitutional since trial courts, in the absence of provisional rules, could apply the new, stricter rules to those defendants who had committed their actions before the entry into force of the amended provisions. Such an application of the amended procedural rules imposed a stricter sentence ex post facto, contra- dicting Art. 57.4 of the Constitution ("no one shall be declared guilty and subjected to punishment for an offense that was not a criminal offense under Hungarian law at the time such offense was committed"). The petitioner requested that the Constitutional Court rule that the lack of a provisional rule constitutes an unconstitutional omission (Art. 1.e of the Law on the Constitutional Court).

The Constitutional Court examined the challenged provisions of the Code of Criminal Procedure in connection with the Criminal Code provisions. The Court unanimously ruled that the amended exemption rules in the Criminal Code do not constitute ex post facto legislation. The ex post facto effect is actually the result of the joint application of the Criminal Code and Code of Criminal Procedure and violates the principles of nullum crimen sine lege and nulla poena sine lege. Although these constitutional principles pertain to the substantive provisions of criminal law, it is consistent with the jurisprudence of the Constitutional Court to find that the rules of procedure violate these principles. As a result, the Court ruled the amended provision in the Code of Criminal Procedure unconstitutional and ordered parliament to rectify the situation. The cabinet introduced a bill in this regard in February 2000 that will grant an exemption for nonaddicted defendants as well.

The other decision before the Constitutional Court concerned pensions and central budget expendi-tures. A number of petitioners challenged a 1998 government measure that reduced the rate of pension increase. The original rule contained in the pension law (Act No. 81 of 1997) provided that social security pensions would be increased in January 1999 according to the net growth of income projected in 1998. The 1999 budget (Act No. 90 of 1998) amended this increased rate, stating that these pensions would be raised by 11 percent in addition to inflation, and it fixed a minimum-provided that it does not exceed a 25.5 percent overall increase of the pension. The reduction was implemented just three days before the increase would have gone into effect.

The petitioners claimed the original rule would have allowed for a greater increase in pensions and that the new rule introduced a smaller increase for most pensioners. The petitioners also argued that the amend-ment violated vested rights, the right to property, and the principle of predictability, which is a central element of the rule of law.

The Court's decision emphasized that the state has a constitutional obligation to maintain a social secu-rity system (Art. 70/E of the Constitution), but the detailed rules and the principles of the operation of such systems cannot be derived from the Constitution. According to the Constitutional Court, pension recipi-EAST EUROPEAN CONSTITUTIONAL REVIEW 20.WINTER/SPRING 2000 21 ents have no vested rights in the rate of increase, as fixed by the old provision. The new provision created a right for an increase but not for a specific rate of increase. Thus, the reduction of increase rate did not violate a vested right. It would be unconstitutional if the state did not provide any increase at all, or if the state would increase pensions on a case-by-case basis. Such a solution would disregard the insurance aspect of the pension system. It does not follow from the Constitution that the state must compensate for all negative economic consequences. The Court also held that the amendment does not infringe on property rights, as the lowered rate of increases does not consti-tute a reduction of insurance-based support.

Concerning the challenge against the three-day notice of the rate reduction, the Court held that, as there were no vested rights in question and as the law enforcement agencies were prepared to administer the amendment, the short notification period before the reduction became effective does not violate the rule of law.

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