After the European Court of Human Rights ruled that Hungary had failed to comply with its obligations in the case of two asylum seekers from Bangladesh (Ilias and Ahmed vs. Hungary, application no. 47287/15), some have suggested that certain provisions of the Convention be suspended and even that Hungary should withdraw from the Convention altogether. (1) What seemed an isolated remark at the beginning of last week turned out to be an idea endorsed by the government by the end of the week. (2) This gives rise to serious concerns. Universal human rights systems were introduced in the middle of the 20th century to protect the fundamental rights of the individual from the arbitrary use of state power – withdrawal from the Convention would convey a message to the contrary.
1. The decision of the European Court of Human Rights can be subject to criticism but withdrawal from the Convention cannot be sensibly argued.
In the wake of the horrors of the Second World War, to strengthen peace, human rights and democracy ten European countries established the Council of Europe in the framework of which the European Convention on Human Rights was adopted in 1950. Out of the post-communist countries Hungary was among the first ones to join the Council of Europe and thus became part of a uniquely efficient human rights system.
The idea of withdrawal from the Convention casts doubt on Hungary’s commitment to human rights and democracy. The guarantees enshrined in the Convention are of a minimum standard – complying with them is a must in constitutional democracies. Though the Hungarian Centre for Fundamental Rights argues that Hungary has an appropriate level of fundamental rights protection without adherence to the Convention too, the decisions of the Strasbourg court show that Hungary does not comply even with the minimum standards and has in-built systemic violations that have not been adequately addressed, e.g. secret surveillance without judicial control, (3) changes in the status of churches, (4) life sentence without eligibility for parole. (5)
2. The conditions of derogation from the Convention are not met.
States can derogate from the provisions of the Convention “in time of war or other public emergency threatening the life of the nation… to the extent strictly required by the exigencies of the situation.” (6) Hungary obviously does not meet these criteria, even though the government has unlawfully extended the state of emergency due to the refugee crisis for the whole territory of the country. In the recent past the possibility of derogation has been made use of by Ukraine after the attack of the Crimea, Paris after the terror attacks and Turkey after the putsch. Quite importantly, after Turkey notified the Council of Europe of its derogation from the Convention, the Secretary General pointed out that anyone can turn to the European Court of Human Rights during the period of derogation too. As it has always done in such cases, the Court will assess whether the conditions of derogation have been met by Turkey. (7)
3. The only country that has ever withdrawn from the Council of Europe and the Convention was Greece from 1967 to 1974 during its period of military dictatorship.
Following the takeover of power in 1967, the military junta in Greece made steps at derogating from the Convention but the derogation was challenged by Denmark, Norway, Sweden and the Netherlands. Greece did not wait for the decision of the Commission but withdrew from the Council of Europe voluntarily in 1969 and joined it again only after the end of the dictatorship in 1974. The Greek example shows that by denouncing the Convention Hungary would cease to belong to European democracies and also shows what consequences it may have if a state tries to derogate from the Convention without the necessary conditions being met.
4. As general principles fundamental rights constitute part of EU law.
Every EU member state is a member of the Council of Europe and the Convention. Article 6(2) of the Treaty on the European Union stipulates the EU’s accession to the Convention. The European Court of Justice has been referring to the convention since the 1970s. Article 6(3) TEU states that “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”
Derogation from the Convention would not yield any political benefit for the Hungarian government; quite to the contrary, the government would have to bear the consequences of such an unlawful step. Derogation will certainly not lead to the termination of procedures against Hungary. Nevertheless, it will seriously damage Hungary’s international reputation.
(1) Imre Vejkey (KDNP) on 20 March 2017: http://kdnp.hu/strasbourg-kontra-magyarorszag-szuverenitasa and the Center for Fundamental Rights: https://www.facebook.com/alapjogokert/posts/1463174997047901:0
(2) Statements by János Lázár and Lajos Kósa: http://www.mediaklikk.hu/2017/03/23/180-perc-ki-kell-e-lepni-az-emberi-jogok-europai-egyezmenyebol/
(3) Szabó and Vissy v. Hungary
(4) Hungarian Christian Mennonite Church and Others v. Hungary
(5) László Magyar v. Hungary; P.T. and T.A. v. Hungary
(6) Article 15(1) of ECHR
