by Mária Kovács and Szabolcs Pogonyi

In its opinion published on 20 June 2011 the Council of Europe’s advisory body on constitutional matters, raises concerns over the Hungarian constitution making process. The European Commission for Democracy through Law, better known as the Venice Commission, claims that the opposition parties and the wider public were not involved in the drafting of the new constitution signed into law on April 25. It adds that the Basic Law does not provide sufficient guarantees for the protection of fundamental rights.

In its report, the Venice Commission acknowledges that the new Hungarian constitution effective from 1 January 2012 “pays proper attention to the principle of friendly neighbourly relations and avoids inclusion of extra-territorial elements and formulations that may give rise to resentment among neighbouring states.” It also welcomes that the new constitution recognizes the importance of establishing harmony between international law and Hungarian law.

However, the Commission notes that the Preamble establishes Hungary’s responsibility for the fate of non-resident Hungarians, which “may hamper inter-State relations and create inter-ethnic tension”. The report finds it particularly problematic that Article D of the constitution promises that the Hungarian government will support non-resident Hungarians in “the establishment of their community self-governments” and “the assertion of their individual and collective rights”. The Venice Commission stresses that home-states are not obliged to grant collective rights to Hungarians living in their territories.

The Venice Commission emphasizes that kin-states may take an active role in the preservation of their kin-minorities, but minority protection should be the responsibility of home-states and kin-states may only help their kin-minorities in accordance with existing international and bilateral treaties, respecting friendly relations among states and in cooperation with home-states.

The Venice Commission also finds it problematic that the Preamble suggests that the Basic Law was written in the name of the Hungarian nation, including non-resident Hungarians but excluding minorities within Hungary (“nationalities”).

The Hungarian government harshly rejected the criticism of the Venice Commission. József Szájer, an MEP of the ruling Fidesz party, who was involved in the drafting of the new constitution, claimed that the Venice Commission “could not distance itself from the recent ideological attacks on the Hungarian constitution” and its authors had misunderstood the basic law on several counts.

Read the Opinion on the new Constitution of Hungary by the Venice Commission (with English translation of the Hungarian Basic Law).