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Shrinking space: Hungary’s anti-CSO legislation and its compatibility with the European Convention of Human Rights

Twan Meijers – 10989773 twan.meijers@student.uva.nl

Public International Law Leonie Huijbers

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ABSTRACT

Since being elected in 2010, Viktor Orbán and his Fidesz-party have increasingly tightened their grip on Hungarian society. Among others, his policy has focused on restricting the work of civil society organisations (CSOs). 2017 and 2018 saw the introduction of the ‘Lex NGO’ and ‘Stop Soros’ legislative packages. These laws restrict the funding for CSOs from abroad by labelling them with the stigmatising title ‘organisation receiving foreign funding’, and criminalise specific forms of action by creating a new criminal offense, ‘facilitating illegal immigration’. The laws limit the CSOs in their livelihood, but also disallows them to perform tasks that are inherent to their work, e.g., the distribution of informational material. Critics deem these interferences to be an infringement of the rights to freedom of expression and freedom of association, as enshrined in Articles 10 and 11 of the European Convention on Human Rights (ECHR). This paper analyses why this is indeed the case, particularly as both laws fail to fulfil the conditions necessary to lawfully limit these freedoms. The analysis focusses on the application of the conditions, having a legal basis, serving a legitimate aim, and being necessary in a democratic society, on the most controversial sections of the law; Article 1 of the ‘Lex NGO’, and Section 353/A of the ‘Stop Soros’ legislative package.

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TABLE OF CONTENTS

ABSTRACT ... 2

1. INTRODUCTION ... 5

2. METHODOLOGY ... 7

3. LEX NGO AND THE STOP SOROS PACKAGE ... 9

3.1 ANTI-CSO DISCOURSE UNDER THE ORBÁN ADMINISTRATION ... 9

3.2 LEX NGO ... 10

3.3 ANTI-IMMIGRATION POLICIES ... 11

3.4 IMMIGRATION, ANTI-CSO POLICY, AND GEORGE SOROS ... 12

3.5 STOP SOROS PACKAGE ... 13

4. ARTICLE 10 AND 11 OF THE CONVENTION: SCOPE AND INFRINGEMENTS ... 15

4.1 ARTICLE 10: FREEDOM OF EXPRESSION ... 15

4.2 FREEDOM OF THE PRESS ... 15

4.3 CIVIL SOCIETY AND ITS ROLE AS WATCHDOG ... 16

4.4 FREEDOM OF EXPRESSION AND THE STOP SOROS PACKAGE ... 16

4.5 ARTICLE 11: FREEDOM OF ASSOCIATION ... 17

4.6 FREEDOM OF ASSOCIATION AND THE LEX NGO ... 18

4.7 LIMITATIONS ... 19

5. PRESCRIBED BY LAW ... 20

5.1 STANDARDS ... 20

5.2 APPLICATION TO HUNGARIAN LAW ... 21

6. LEGITIMATE AIM ... 24

6.1 RESTRICTING FREEDOM OF EXPRESSION ... 24

6.2 LEGITIMATE AIM OF THE STOP SOROS PACKAGE ... 24

6.3 RESTRICTING FREEDOM OF ASSOCIATION ... 26

6.4 LEGITIMATE AIM OF THE LEX NGO ... 26

7. NECESSARY IN DEMOCRATIC SOCIETY ... 28

7.1 MARGIN OF APPRECIATION ... 28

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7.3 PROPORTIONATE MEASURES TO THE LEGITIMATE AIM ATTAINED ... 31

7.4 RELEVANT AND SUFFICIENT REASONS FOR A LIMITATION ... 32

7.5 STOP SOROS AND ITS NECESSITY IN A DEMOCRATIC SOCIETY ... 32

7.6 LEX NGO AND ITS NECESSITY IN A DEMOCRATIC SOCIETY... 35

8. CONCLUSION ... 39

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1. INTRODUCTION

Across the world, civil society is being threatened. Civil society, “the layer between state, business, and family in which citizens organise, debate and act”1 is increasingly facing squeezing measures. Collective action, especially when of a political nature, is in some countries actively countered. As such, civil society organisations, or CSOs, are considerably hampered in their work. Anti-NGO laws, administrative burdens, restriction of funding and criminalisation of activities specific to CSOs are just a few examples of such policy. The last fifteen years show a worldwide trend in which the freedom of expression and freedom of assembly and association is increasingly under pressure.2 Although this might be typical in authoritarian regimes, the problem has also emerged in democratic states, even in Europe. An example of a European state that has seen an active squeezing of civil society, is Hungary.

Over the past decade, Hungary’s prime minister, Viktor Orbán, has used its powers to reshape the Hungarian state. By rewriting the national Constitution, reshaping the judiciary and tweaking the electoral system to favour his Fidesz party, Orbán has created an environment in which his wish is the country’s command. Among others, soon after his election in 2010, the power of the Constitutional Court was limited, and the composition of that court was reformed in a fashion more favourable to him and his Fidesz party. Accordingly, the Hungarian Government would face fewer restrictions when implementing new legislation. Such a policy fits very well into Orbán ideal picture of Hungarian society. His yearly speech at the Hungarian summer university and student camp in Tusnádfürdőof in 2014 clarifies this ideal: “We have to abandon liberal methods and principles of organizing a society. The new state that we are building is an illiberal state, a non-liberal state.”3

In turn, the Orbán administration has introduced several legislative measures through which this non-liberal society is to be attained. Two of those measures purposefully limit the space for CSOs in the country: Act LXXVI or the Lex NGO, introduced in 2017, and Bill T333 or the Stop Soros package, introduced in 2018. The Lex NGO limits the access to funding by imposing

1 Antoine Buyse, 'Squeezing Civic Space: Restrictions On Civil Society Organisations And The Linkages With

Human Rights' (2018) 22 The International Journal of Human Rights. p. 967.

2 Antoine Buyse, 'Why Attacks On Civic Space Matter In Strasbourg: The European Convention On Human

Rights, Civil Society And Civic Space' (2019) Deusto Journal of Human Rights. No. 4/2019. p. 16.

3 Csaba Tóth, 'Full Text Of Viktor Orbán's Speech At Băile Tuşnad (Tusnádfürdő) Of 26 July 2014' (The

Budapest Beacon, 2014)

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certain stigmatising registration rules, and the Stop Soros package criminalises certain organisational activities performed by CSOs, in particular in relation to immigration.

Although the measures itself are arguably of a problematic nature, they may also be contrary to Hungary’s international legal obligations. Hungary is a Contracting State to the Council of Europe. As such, it has ratified the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (ECHR). The articles from this instrument are binding upon the Contracting States, and infringements of these rights are assessed by the European Court of Human Rights (ECtHR). Since Stop Soros package and Lex NGO involve actions protected by the rights to freedom of expression and freedom of association respectively, they may very well constitute such an infringement. This paper will analyse whether the Stop Soros package and Lex NGO are compatible with the freedoms of expression and association, as enshrined in Articles 10 and 11 of the European Convention of Human Rights.

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2. METHODOLOGY

To determine whether the Lex NGO and Stop Soros package are compatible with the relevant articles from the European Convention of Human Rights, this paper will answer the following research question:

“To what extent are the Hungarian Act LXXVI of 2017 (‘Lex NGO’) and Bill T333 (‘Stop Soros’) compatible with the rights to freedom of expression and freedom of association,

enshrined in articles 10 and 11 of the European Convention of Human Rights?”

To answer this question, this paper uses a variety of legal and academic sources. With regards to Hungarian legislation, this refers to the final versions of Act LXXVI (Lex NGO) and Bill T333 (Stop Soros package) and their explanatory texts, but also earlier draft versions of both measures that give insight to the reasoning behind the legislation. Furthermore, attention is paid to other Hungarian legislation to which the measures in question refer, or that prove to be of additional value in understanding Act LXXVI or Bill T333.

To assess the compatibility of the Lex NGO and Stop Soros package with the European Convention of Human Rights, hereafter referred to as “the Convention”, this paper uses the articles from the Convention, as well as case-law of the European Court of Human rights, hereafter referred to as “the ECtHR”. Furthermore, opinions and guidelines written by the European Commission for Democracy through Law, better known as the Venice Commission, are used to gain a better understanding of certain matters. The European Commission for Democracy through Law, hereafter referred to as “the Venice Commission”, provides legal advice to its member states and the ECtHR, in particular to help states to bring their legal structure in line with European standards.

Structure

The chapters of this paper will each analyse specific elements necessary to answer the research question. As this paper discusses limitations of rights of the convention, a considerable part represents an analysis on whether such limitations can be justified. The following overview briefly discusses the elements discussed per chapter:

- Chapter 3: Background information, and in-depth overview of the Lex NGO and Stop Soros package.

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- Chapter 4: In-depth overview of the rights to freedom of expression (Article 10) and freedom of association (Article 11), and an analysis of the infringements of these rights by the Stop Soros package and Lex NGO.

- Chapter 5: Analysis of the ‘prescribed by law’ requirement, and application to the provisions of the Stop Soros package and Lex NGO.

- Chapter 6: Analysis of the ‘legitimate aim’ requirement, and application to the provisions of the Stop Soros package and Lex NGO.

- Chapter 7: Analysis of the ‘necessary in a democratic society’ requirement, and application to the provisions of the Stop Soros package and Lex NGO

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3. LEX NGO AND THE STOP SOROS PACKAGE

3.1 A

NTI

-CSO

DISCOURSE UNDER THE

O

RBÁN ADMINISTRATION

The introduction of the Lex NGO and Stop Soros package are certainly not the first signs of Viktor Orbán’s aversion towards civil society. During the same speech in which Orbán substantiated his desire for a non-liberal society, he made his position towards civil society actors clear:

“And these political activists are, moreover, political activists paid by foreigners. Activists paid by definite political circles of interest. It is hard to imagine that these circles have a social agenda. It is more likely that they would like to exercise influence through this system of instruments on Hungarian public life. It is vital, therefore, that if we would like to reorganize our nation state instead of the liberal state, that we should make it clear, that these are not civilians coming against us, opposing us, but political activists attempting to promote foreign interests.”4

The speech set the tone for the discourse and policy that exemplified the years following. The position taken by Orbán is not unique. Some governments tend to create a political climate in which recipients of foreign funding are publicly delegitimized. Officials in Ecuador, Malaysia, Russia, and Venezuela, for example, have depicted CSOs receiving external support as “foreign agents” or “puppets of Western powers”.5 With the introduction of its ‘foreign agents law’ in

2012, Russia’s legal order even includes a law similar to the Lex NGO. By delegitimizing their work, states are seeking to exert control over the civil space in which CSOs operate, in order to silence critical and challenging voices.6 Such a motive fits well into the overall framework of Orbán’s policies, oriented at limiting Hungary’s liberal society.

Besides delegitimizing the work of CSOs, limiting access to funding, such as in the case of the Lex NGO, is considered a common tool by governments as well.7 Even though foreign funding might not be the only option for CSOs to be financially stable, it may very well prove to be a

4 Csaba Tóth, 'Full Text Of Viktor Orbán's Speech At Băile Tuşnad (Tusnádfürdő) Of 26 July 2014' (The

Budapest Beacon, 2014)

<https://budapestbeacon.com/full-text-of-viktor-Orbáns-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/> accessed 19 May 2020.

5 Thomas Carothers and Saskia Brechenmacher, ‘Closing Space: Democracy and Human Rights Support Under

Fire’ (2014) Carnegie Endowment for International Peace. p. 11.

6 Article 19, Civicus, European Centre for Non-Profit Law, and International Centre for NonProfit Law, Joint

Statement on the Promotion and Protection of Civic Space (March 2014).

7 Thomas Carothers and Saskia Brechenmacher, ‘Closing Space: Democracy and Human Rights Support Under

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vital source of income. The extent to which the measures are detrimental to the work of CSOs, depends largely on whether the restriction on foreign funding is enacted as an attempt to regulate or halt foreign interference as such, or whether it is part of a wider policy of squeezing civic space in the country.8 Following the Hungarian rhetoric, the initial aim of their anti-CSO policies seems to serve the first of these goals, as foreign supporters “would like to exercise influence through this system of instruments on Hungarian public life.”9 On the other hand, with the introduction of several measures aimed at limiting its liberal society such as restricting the power of its Constitutional Court, the Hungarian anti-CSO policies could well serve the latter goal as well.

3.2 L

EX

NGO

Act LXXVI of 2017 on the Transparency of Organisations Receiving Foreign Funds, usually referred to as the ‘Lex NGO’, proved a first legislative step in the limitation of civil society in Hungary. According to the bill’s preamble, the steps are taken primarily to limit the influence of foreign groups supporting the CSOs in Hungary: “as the support provided by unknown foreign sources to organisations established under the freedom of association might lead to it being used by foreign interest groups to promote – through the social influence of these organisations – their own interests instead of community objectives in Hungary’s political and social life.”10

The act requires special registration of CSOs when funding from foreign sources rises above a certain threshold. When this is the case, the CSOs in question must register as “organisations receiving support from abroad” and label themselves as such on their websites, in press releases and other publications.11 Article 1(2) of the Act LXXVI refers to the threshold above which an organisation would require special registration. This is the case when a CSO is receiving “any financial or other economic support originating directly or indirectly from abroad”, which on a yearly basis exceeds “twice the amount specified in Article 6 paragraph (1)(b) of Act LIII of 2017 on the Prevention and Combating of Money Laundering and Terrorist Financing”.12

Accordingly, the amount of funding that would lead to a CSO being regarded as an

8 Antoine Buyse, 'Squeezing Civic Space: Restrictions On Civil Society Organisations And The Linkages With

Human Rights' (2018) 22 The International Journal of Human Rights. p. 971.

9 Csaba Tóth, 'Full Text Of Viktor Orbán's Speech At Băile Tuşnad (Tusnádfürdő) Of 26 July 2014' (The

Budapest Beacon, 2014)

<https://budapestbeacon.com/full-text-of-viktor-Orbáns-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/> accessed 19 May 2020.

10Act LXXVI of 2017 on the Transparency of Organisations Receiving Foreign Funds, Preamble. (HU) 11 Ibid. art. 2(5).

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“organisation receiving foreign funding”, is 7.2 million HUF. This translates to approximately 21.000 euros.13

Paragraph (4) of Article 1 of Act LXXVI deserves some extra attention, as it refers to associations to which these rules do not apply. Accordingly, the act does not apply to:

a) associations and foundations which are not regarded as civil society organisations;

b) associations under the scope of Act I of 2004 on Sports; c) associations pursuing religious activities;

d) ethnic minority organisations and ethnic minority associations as per Act CLXXIX of 2011, as well as the foundations that are, based on their deed of foundation, engaged in activities directly related to the protection and representation of the interests of a given ethnic minority or to the cultural autonomy of the ethnic minority.

As Article 1(4) refers to associations “not regarded as civil society organisations”, it requires defining CSOs in order to determine what can, and what cannot be regarded as a CSO. To this end, Article 1(4) refers to Act No. CLXXV/2011 on the Right of Association, Non-profit Status, and the Operation and Funding of Civil Society Organisations. This act presents general rules applicable to the legal status of associations and foundations, and their financing. Article 2(6) of Act CLXXV defines a civil society organisation as including: a) a civil company, b) an association registered in Hungary, excluding political parties, trade unions and mutual associations, c) a foundation, excluding public foundations and party foundations.14 This definition is considerably broad, causing the ‘Lex NGO’ to limit the activities of a wide range of organisations.

3.3 A

NTI

-

IMMIGRATION POLICIES

Under the Orbán administration, Hungary saw the emergence of a strict anti-immigration campaign. This campaign gained momentum after January 2015, after the terrorist attack in Paris against the office of Charlie Hebdo.15

13 Act LIII of 2017 on the Prevention and Combating of Money Laundering and Terrorist Financing, Article

6(1)(b). (HU)

14 Act No. CLXXV/2011 on the Right of Association, Non-profit Status, and the Operation and Funding of Civil

Society Organisations. art. 2(6). (HU)

15Ákos Bocskor, ‘Anti-Immigration Discourses in Hungary during the ‘Crisis’ Year: The Orbán Government’s

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The Fidesz-government deployed a range of tactics aimed at emphasizing an apparent connection between migration on the one hand, and on the other the destabilisation of public order and terrorism. Among others, billboards were spread across the country containing messages such as “Did you know that the Paris attacks were carried out by migrants?”, and a booklet was distributed to over four million Hungarian households presenting sentences such as “Illegal immigration increases the threat of terror”.16 As such, appealing to a fabricated need

to secure the nation against migrants has become a vital tactic to gain support for the Fidesz-government’s policies.17

The so-called ‘National Consultation on Immigration and Terrorism’, a nationwide questionnaire spread among the Hungarian population, was another step within the country’s anti-immigration discourse. The declared aim of such questionnaires is to discuss important matters with the public. However, critics have argued that this tool is merely used to confirm decisions already taken through biased, overly suggestive questions. Though highly suggestive, the consultation at least gave the appearance of impartiality. The results showed that the overwhelming majority of respondents supported the government’s position on the matter. In turn, subsequent action was easily justified by referring to these results.

3.4 I

MMIGRATION

,

ANTI

-CSO

POLICY

,

AND

G

EORGE

S

OROS

What then, is the connection between Orbán’s anti-immigration discourse, and the crackdown of CSOs? The answer to this lies with George Soros. George Soros is a Hungarian-American entrepreneur and founder of the Open Society Foundation, the largest private funder of civil organisations in the world. Among the organisations receiving funding are prominent NGOs such as Human Rights Watch and Amnesty International, and it is estimated that Soros has donated over $15bn of his personal funds through the foundation.18 However, according to

Orbán these organisations “are working tirelessly to bring hundreds of thousands of migrants

16 Céline Cantat, 'Governing Migrants And Refugees In Hungary: Politics Of Spectacle, Negligence And

Solidarity In A Securitising State' (2019) IMISCOE Research Series. p. 187.

17 Céline Cantat, 'Governing Migrants And Refugees In Hungary: Politics Of Spectacle, Negligence And

Solidarity In A Securitising State' (2019) IMISCOE Research Series. p. 187

18 'Open Society Foundations - Who We Are' (Open Society Foundation, 2020)

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into Europe. They are working to divert the Hungarian parliament and the Hungarian government from the path that has been determined by the people.”19

This quote, taken from his State of the Nation Address before the Hungarian parliament in 2017, emphasized the apparent connection between civil society and immigration, and the problematic nature of such a connection according to Viktor Orbán. Furthermore, there now was a figure representing the problem in the form of George Soros. However, the connection was not merely made with regard to Soros’ financed organisations alone, but to civil society in general. According to Orbán, emphasized at a meeting of European People’s Party (EPP) in early 2017, migration turns out to be more and more an NGO business and reveals that Europe has imported significant danger of terrorism.20

3.5 S

TOP

S

OROS PACKAGE

With combining the crackdown of civil society, slandering George Soros, and its anti-immigration policy, the Fidesz-government introduced a new law in 2018. Like before, the introduction was preceded by a national consultation, of which the results were favour of the position of the government.

Bill T333, or the ‘Stop Soros’-package, entails thirteen legislative amendments. While some are merely administrative in nature, others have more intrusive effects. For example, section 1 enlarges the power of the police with regard to their capabilities when combatting illegal immigration.21 However, the most controversial section of the legislative measures making up the Stop Soros package, is found in the amendments to the Hungarian Criminal Code. Section 353/A creates a new type of crime, criminalizing the work of persons or CSOs facilitating or initiating an asylum procedure in Hungary, as referred to in paragraph (1)(a) of Section 353/A. Equally, the provision criminalises organisational activities assisting a person entering Hungary illegally or residing in the country illegally, in obtaining a title of residence, as referred to in paragraph (1)(b) of Section 353/A.22 Among the categories of actions that fall under the term ‘organisational activities’, as referred to in paragraph (5), border monitoring in the sense of

19 'Prime Minister Viktor Orbán’s State Of The Nation Address' (Website of the Hungarian Government, 2017)

<https://www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-state-of-the-nation-address-20170214> accessed 20 May 2020.

20 Sarantis Michalopoulos, 'Orban Attacks The European Court Of Human Rights' (EURACTIV, 2017)

<https://www.euractiv.com/section/global-europe/news/orban-attacks-the-european-court-of-human-rights-at-epp-congress/> accessed 20 May 2020.

21 Bill T333 2018, Section 1. (HU)

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article 2(2) Regulation (EU) 2016/399 of the European Parliament and of the Council is listed. Most interestingly for the purposes of this paper, paragraph (5)(b) refers to the distribution of informational materials on the criminalised activities, or the creation of a network facilitating such acts. Upon being found guilty of the criminal offenses referred to in paragraph (5), a perpetrator could face a prison sentence of up to one year.

As the sanctions stipulated in Section 353/A of the Stop Soros package pertain solely to individual perpetrators, final emphasis should be put on the effect of these measures on a CSO of which a member has been convicted for one of the criminal offenses of the Stop Soros package. These consequences can be drawn from Act CIV of 2001 on measures applicable to legal entities under the Hungarian Criminal Code. Though not part of the Stop Soros package, the rules stipulated in Act CIV provide a certain basis for further action pursuant to conviction under Section 353/A. Sections 2 and 3 of the Act CIV provide for measures against the legal entity, CSOs in this case, when certain staff members are found guilty of having committed a criminal act intentionally aimed at or resulting in gaining benefit from said action. Possible consequences include the dissolution of the legal entity; limiting the activity of that legal entity; or imposing a fine. As such, conduct qualifying as a newly introduced criminal offense under the Stop Soros package, which might lead to imprisonment of the guilty individual, might also cause the dissolution of an associated organisation under Act CIV.23

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4. ARTICLE

10 AND

11 OF THE

CONVENTION: SCOPE AND

INFRINGEMENTS

4.1 A

RTICLE

10:

FREEDOM OF EXPRESSION

The rights generally associated with limiting space for civil society are the freedom of expression and the freedom of assembly and association. According to the ECtHR in the landmark case Lingens v. Austria, freedom of expression constitutes one of the essential foundations of a democratic society, “one of the basic conditions for its progress and for each individual’s self-fulfilment.”24 Article 10 of the Convention provides for the freedom of expression. The Article (art. 10) applies to "everyone", whether natural or legal persons.25 Therefore, a legal entity like a CSO should also be able to enjoy this freedom, just as much as any individual. Following Article 10’s first paragraph, the freedom of expression consists of three components, or individual freedoms: the freedom to hold opinions, the freedom to receive information and ideas, and the freedom to impart information and ideas. These three freedoms are to be enjoyed without interference by public authority.26

4.2 F

REEDOM OF THE PRESS

An important entity in the ECtHR’s case law on the freedom of expression is the press. Although Article 10 of the Convention does not explicitly refer to the freedom of the press/media or journalistic freedom, the ECtHR has developed extensive case-law drafting principles and rules granting the press a special status within the framework of the Convention.27 This press primarily enjoys this role as its media activities provide “the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders”.28 Consequently, it may rely on several additional freedoms. For example, they are permitted to, in some contexts, use strong terms when reporting: “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation”.29 Furthermore, the need for the media to get the news out in a timely manner should be considered when balancing this need against countervailing interests, as news “is a perishable commodity and to

24 Lingens v. Austria App no. 9815/82 (ECHR, 13 December 1986). para. 41. 25 Autronic AG v. Switzerland App no. 12726/87 (ECHR, 22 May 1990). para. 47.

26 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as

amended by Protocols Nos. 11 and 14, 4 November 1950, Article 10.

27 Monica Macovei. (2004). A guide to the implementation of Article 10 of the European Convention on Human

Rights. Human rights handbooks, (2).

28 Lingens v. Austria App no. 9815/82 (ECHR, 13 December 1986). para. 42.

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delay its publication, even for a short period, may well deprive it of all its value and interest.”30 Finally, while the press may bear some liability when adopting or endorsing the speech of another, they can generally not be held liable for the statements of other parties.31

4.3 C

IVIL SOCIETY AND ITS ROLE AS WATCHDOG

The relevance of freedom of press in limiting civil society, is found in the similar societal role that the ECtHR deems the press and CSOs to play. Presented by the ECtHR in Barthold v.

Germany for the first time, and later confirmed in Lingens v. Austria among others, the press

holds a task “as purveyor of information and public watchdog”.32 The press’ role as a watchdog makes incumbent on it to impart information and ideas on political issues, as well as on other areas of public interest.33 As such, the press creates forums for public debate on political and societal issues. This role is not solely played by the press but is also fulfilled by CSOs. They may therefore be characterised, like the press, as public watchdogs.34 According to the ECtHR, CSOs must be able to perform their activities effectively, and there exists a strong public interest in enabling such groups (and the individuals comprising it) to contribute to the public debate by providing information and ideas on matters of public interest.35 Therefore, the activities of CSOs warrant similar Convention protection to that afforded to the press.36

4.4 F

REEDOM OF EXPRESSION AND THE

S

TOP

S

OROS PACKAGE

To assess the Stop Soros package in light of the principles following from Article 10 and the ECtHR’s case law on the freedom of expression, one must highlight paragraph (5) of Section 353/A. As Chapter 3 of this paper has set out, paragraph (5) of Section 353/A refers to the types of “organisational activities” that are prohibited by the new amendments to the Hungarian Criminal Code. Particularly the prohibition on the distribution of information or informational materials on matters of immigration such as asylum procedures, as presented in paragraph (5)(b), deserves attention.

With regard to the role of watchdog that the ECtHR has ascribed to CSOs under Article 10 of the Convention, CSOs in Hungary are limited considerably in performing their tasks. CSOs

30 Observer and Guardian v. the United Kingdom App no. 13585/88 (ECHR, 26 November 1991). para. 60. 31 Jersild v. Denmark App no. 15890/89 (ECHR, 23 September 1994). para. 35.

32 Barthold v. Germany App no. 8734/79 (ECHR, 31 January 1989). para. 58. 33 Lingens v. Austria App no. 9815/82 (ECHR, 13 December 1986). para. 44.

34 Vides Aizsardzības Klubs v. Latvia App no. 57829/00 (ECHR, 27 May 2004). para. 42.

35 Steel and Morris v. The United Kingdom App no. 68416/01 (ECHR, 15 February 2005). para. 89 36 Társaság A Szabadságjogokért v. Hungary App no. 37374/05 (ECHR, 14 April 2009). para. 27.

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have a central role in contributing to the public debate by providing information and ideas on matters of public interest. This applies to CSOs in Hungary providing information and ideas on matters of immigration, through which they further public debate on the topic. Although information and opinions supporting immigration are contrary to the position of the Viktor Orbán and the Fidesz-government, CSOs should granted the opportunity to perform its tasks in distributing such information. After all, like the press, CSOs enjoy a wide range of freedoms when it comes to their freedom of expression. The prohibition in paragraph (5)(b) of Section 353/A of the Stop Soros package would thus be contrary to the principles following from Article 10 of the Convention, and the case-law of the ECtHR. As such, not yet taking into account any grounds for justification of the Hungarian measures, the Stop Soros package constitutes an infringement of the freedom of expression that CSOs should enjoy.

4.5 A

RTICLE

11:

FREEDOM OF ASSOCIATION

The freedom of association, enshrined in Article 11 of the Convention, protects the opportunity of individuals to associate with each other in pursuing common goals “whether of an economic, professional, political, cultural, recreational or other character”.37 This also means that citizens should be able to form a legal entity in order to act collectively in a field of mutual interest. According to the ECtHR in Sidiropolous and others v. Greece, the possibility to form such a legal entity is one of the most important elements of the freedom of association.38

To qualify as an association under Article 11, the association in question must have a private-law character. On several occasions, the ECtHR has described elements to determine whether an association is to be considered as private or public. For example, in Le Compte, Van Leuven

and De Meyere v. Belgium, the ECtHR applied these requirements to the Belgian order of

doctors. Following Le Compte, Van Leuven and De Meyere v. Belgium, the elements to consider are: whether the association was founded by individuals or by the legislature; whether it remained integrated within the structures of the State; whether the association was invested with administrative, rule-making and disciplinary power; and whether it pursued an aim which was in the general interest.39

37 Young, James and Webster v. The United Kingdom App nos. 7601/76; 7806/77 (ECHR, 13 August 1979).

para. 6.

38 Sidiropoulos and Others v. Greece App no. 26695/95 (ECHR, 10 July 1998). para. 40.

39 Le Compte, Van Leuven and De Meyere v. Belgium App nos. 6878/75; 7238/75 (ECHR, 23 July 1981). para.

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The fact that the ECtHR provides its own defining characteristics of an association that qualifies under Article 11 of the Convention, causes the term “association” to have an autonomous meaning. As such, the classifications of associations found in Contracting State’s national law have only relative value before the ECtHR.40 Accordingly, a state itself cannot classify an association as “public” to remove it from the scope of Article 11. Such a possibility would defy the object and purpose of the Convention, which is to protect its rights in a practical and effective way rather than theoretical and illusory. 41

Important for the analysis of the Lex NGO is to gain a better understanding of the position of CSOs within this framework. particularly with regard to funding. Although the relevant case-law of the ECtHR on this matter is limited, several Council of Europe bodies have provided their opinion on the freedoms necessary for CSOs to effectively perform their work. According to the Committee of Ministers, CSOs “should be free to solicit and receive funding – cash or in-kind donations – not only from public bodies in their own state but also from institutional or individual donors”.42 Such as stance has been reaffirmed by the Venice Commission in their Guidelines on Freedom of Association, drafted in cooperation with the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE). These guidelines dictate that CSOs should be able to exercise their functions freely, and should “have the freedom to seek, receive and use financial, material and human resources, whether domestic, foreign or international.”43

4.6 F

REEDOM OF ASSOCIATION AND THE

L

EX

NGO

The measures of the Lex NGO primarily target CSOs. As an association that is protected under Article 11 of the Convention needs to be of a private law character, this applies to CSOs as well. To be deemed such a private organisation, CSOs should fulfil the requirements drafted in the case-law of the ECtHR. Generally, civil society refers to all forms of social action carried out by individuals or groups who are neither connected to, nor managed by, the State.

40 Chassagnou and Others v. France App nos. 25088/94, 28331/95 and 28443/95 (ECHR, 29 April 1999). para.

100.

41 Ibid.

42 Committee of Ministers (2007). Legal status of non-governmental organisations in Europe. Recommendation

CM/Rec(2018)11, para. 50.

43 Guidelines on Freedom of Association (OSCE/ODIHR, Venice Commission, 2015) OSCE’s Office for

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Accordingly, CSOs are organisations that are “neither connected, nor managed by, the State.”44 This means that a CSO is neither created by the legislature, nor remains integrated in the structure of the State, fulfilling the first two elements of an association possessing a private law character. Considering the separateness from the State, a CSO is likely not to possess any rule-making or disciplinary power. Finally, the separateness from business and its profit-rule-making intentions causes the interests of CSOs to generally be of a general nature. As such, one may conclude that CSOs possess the private law characteristic necessary to qualify as an association that enjoys the protection of Article 11 of the Convention.

The Lex NGO actively impedes Hungarian CSO’s in their operations, by placing extra burdens on foreign funding. Furthermore, the stigmatising effect that the measures bring about contributes to the delegitimization of such organisations in Hungarian society. The need for special registration imposed on CSOs by Article 1 of Act LXXVI, limits the freedom to seek, receive and use financial resources of a foreign nature. Since CSOs to which the Lex NGO applies, qualify as an association protected by Article 11 of the Convention, one may conclude that their right to freedom of association as guaranteed by that article has been infringed upon.

4.7 L

IMITATIONS

Although the previous chapters have shown that the Stop Soros package constitutes an infringement of the freedom of expression guaranteed by Article 10 of the Convention, and the Lex NGO constitutes an infringement of the freedom of association guaranteed by Article 11, it is not possible to conclude that Hungary acted wrongfully in their introduction of these laws just yet. Both Article 10 and 11 of the Convention provide for conditions under which infringements, or limitations, are justified. These conditions, found in Article 10(2) and 11(2), are identical.

In order to be qualify as a justified limitation, the measure in question must be: prescribed by law, serve a legitimate aim, and necessary in a democratic society. The following chapters will elaborate on these conditions and apply them to the infringements of the Stop Soros package and Lex NGO.

44'Glossary Of Summaries - EUR-Lex' (Eur-lex.europa.eu, 2020)

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5. PRESCRIBED BY LAW

5.1 S

TANDARDS

The fact that any interference with one of the Convention’s rights is required to be prescribed by law, has been substantiated further by ECtHR in The Sunday Times v. The United Kingdom. Here the Court held that the “prescribed by law” requirement consists of two conditions: the measure must be adequately accessible and must be formulated sufficiently precise for the consequences of a breach to be foreseeable.45

5.1.1 Accessibility

With regard to accessibility of a measure, the ECtHR requires that a citizen should have “an indication that is adequate in the circumstances of the legal rules applicable to a given case”.46 In other words, the subject concerned should at least be able to have knowledge on the consequences that the measure brings about. In the case of a newly introduced statute, or a court-order, this may be achieved by publishing the measure in question.47

5.1.2 Precise formulation and foreseeability

Considering the required precision of a measure, the ECtHR sets out the need for a measure to be formulated in such a way as for the citizen to be able to regulate his conduct. This means that “he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”48 Given the fact that the foreseeability requirement is dependent on the circumstances of the particular case, the consequences do not need to be foreseeable with absolute certainty: “experience shows this to be unattainable.”49

In practical terms, the ECtHR will have to examine whether the provision in question was drafted in sufficiently clear and precise terms. If so, the citizen can easily assess the compatibility of its actions with the requirements of the measure.

45 The Sunday Times v. The United Kingdom App no. 6538/74 (ECHR, 26 April 1979). para. 49. 46 Ibid.

47 Silver and Others v. The United Kingdom App nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75;

7136/75 (ECHR, 25 March 1983). para. 87.

48 The Sunday Times v. The United Kingdom App no. 6538/74 (ECHR, 26 April 1979). para. 49. 49 Ibid.

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5.1.3 Safeguards against arbitrary intervention

A further condition that the ECtHR has presented in its case law, requires a measure to provide adequate safeguards against arbitrary interference with the infringed right. This condition is particularly important since the ultimate purpose of the “legality” requirement is to enable the ECtHR to ensure that all legitimate interferences are grounded both in national law, as well as “within the legal culture of the Council of Europe”.50 Generally, the ECtHR grants national authority discretion regarding the drafting and application of national laws involving rights of the Convention. This margin of appreciation varies according to the rights associated, and the circumstances of the case. However, a law cannot be drafted in such a way for it to allow national authorities unlimited discretion. A citizen must, as with his own conduct, be able to foresee the consequences of certain conduct of its national authorities. As such, certain safeguards must be in place in order to determine the boundaries of action. Therefore, the law must indicate with enough clarity the scope of any such discretion and the manner of its exercise, as reiterated in Maestri v. Italy.51

5.2 A

PPLICATION TO

H

UNGARIAN LAW

The introduction of Act LXXVI, or the ‘Lex NGO’, and Bill T333, or the ‘Stop Soros package’, provide for measures that may freely be derived from the respective pieces of legislation. Prima

facie such measures would therefore enjoy a legal basis, at least within the Hungarian legal

order. However, the requirement of being “prescribed by law” gives rise to multiple conditions that must be fulfilled.

5.2.1 Accessibility of the legal rules of the Lex NGO and Stop Soros package

With regard to the conditions set out in The Sunday Times v. The United Kingdom, the first condition to apply to the ‘Lex NGO’ and ‘Stop Soros’ package, is that of accessibility to the legislative measure in question. In case these rules are found in a statute or other legislative measure, publication of the rules in question would be sufficient to fulfil the accessibility-condition.52 Applying this to the situation in Hungary, we find that Act LXXVI and Bill T333 are published by the Hungarian government, and that their translations are easily accessible throughout the internet. In other words, a citizen involved in any conduct that involves the rules

50 Steven C. Greer (1997). The exceptions to Articles 8 to 11 of the European Convention on Human Rights

(Vol. 88). Council of Europe. p. 9.

51 Maestri v. Italy App no 39748/98 (ECHR, 17 February 2004). para. 42 – 43.

52 Silver and Others v. The United Kingdom App nos. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75;

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of the two laws, has the possibility to gain knowledge on the consequences should this conduct constitute a breach of their rules.

5.2.2 Precision of formulation of the Lex NGO and Stop Soros package

The second condition presented by the ECtHR in The Sunday Times v. The United Kingdom, the need for precisely formulated legal rules, requires a careful analysis of the language of the Lex NGO and Stop Soros package.

Turning to the text of the ‘Lex NGO’ first, Article 1(2) refers to “any financial or other economic support originating directly or indirectly from abroad”, in assessing the status of an organisation for the purposes of this law. When applying the standard from The Sunday Times

v. The United Kingdom to this article, it can hardly be concluded that “directly or indirectly”

qualify as “precisely formulated” terms. For example, it cannot be established with certainty whether a financial contribution provided to a civil society organisation by another legal person which has a seat in Hungary, but is partly dependent on foreign funding, would qualify as indirect financing or not.53 Taking into account the ECtHR’s demand for a citizen to be able to foresee the consequences of a given act, Article 1(2) Act LXXVI lacks the required clarity to allow for such foreseeability. Even though the rules of the Lex NGO are accessible for any citizen, the failure of Article 1(2) to provide for foreseeable consequences causes the act to lack legal foundation; the limitation is not effectively “prescribed by law”.

Paragraph (5) of Section 353/A deserves attention when applying the second condition of The

Sunday Times v. The United Kingdom on the Stop Soros package. This paragraph presents a

list of activities that are considered to be an “organisational activity” as referred to in paragraph (1) of Section 353/A. Among others, paragraph (5) lists the building or operating of a network as a criminal offense, as well as the distribution of information material or the commission of such activities.54 However, this list is open-ended. Section 11 of the detailed reasoning behind the Stop Soros package emphasizes the non-exhaustiveness of paragraph (5), and refers to the fact that “the exact content of the organizing activity cannot be fully listed, therefore, paragraph (5) of the new provision defines the most typical components of the organisational activities with an appropriate abstraction as an interpretative provision”.55

53 CDL-AD(2017)015, “Opinion on the Draft Law on the Transparency of Organisations Receiving Support

from Abroad”. para. 45.

54 Bill T333 2018, Section 353/A. (HU) 55 Ibid.

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In The Sunday Times v. The United Kingdom, the ECtHR noted that the consequences of a breach “need not be foreseeable with absolute certainty”.56 This reasoning is of importance in the analysis of the Stop Soros package, as it would be impossible to list all prohibited “organizational activities” in Section 353/A paragraph (5). It would thus seem that the mere provision of typical examples, leaving further discretion to the national court applying the law, would provide enough clarity for the consequences to be foreseeable for a citizen. On the other hand, the interpretation of the provision is left to the responsibility of the domestic courts of Hungary.57 Considering the broad formulation of paragraph (5), this means that Hungarian domestic courts are given the freedom to include virtually any activity when applying Section 353/A. It thereby provides the courts a disproportionately broad discretion, with little to no safeguards to protect the citizen. As such, the last condition that can be inferred from the ECtHR case-law, the need for safeguards protecting against arbitrary intervention, cannot be considered to be fulfilled either.

56 The Sunday Times v. The United Kingdom App no. 6538/74 (ECHR, 26 April 1979). para. 49.

57 Venice Commission Opinion no. 889/ 2017 Preliminary Opinion on the Draft Law on the Transparency of

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6. LEGITIMATE AIM

6.1 R

ESTRICTING FREEDOM OF EXPRESSION

The list of the possible grounds for restricting both freedom of expression and freedom of association is exhaustively set out in Articles 10 and 11 ECHR. As such, national authorities must identify whether the value or interest protected by the respective provision is one that is enumerated for it to qualify as a legitimate aim. Article 10(2) lists the following aims that legitimize the limitation of the right to freedom of expression: “national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”58

The protection of public order proves particularly important for the purpose of assessing the Stop Soros package, in light of the right to freedom of expression. ECtHR case-law suggests that the expression limited by the measure under scrutiny must show a clear link with the potential disorder, e.g. the incitement of violence.59 For example, in the case of Incal v. Turkey, the ECtHR ruled on the distribution of an informational leaflet that was considered a threat to public order by the Turkish authorities. Though strongly criticising the Turkish government, the leaflets did not contain any call for violence or disorder. As such, is was not possible to establish a link between the language of the informational materials and potential disorder.60 The fact that Section 353/A of the Stop Soros package restricts the provision of information with a similar aim, suggests the importance of a link between the information provided and the possible disorder that measure aims to prevent. In the case of the Stop Soros package this means a link between the provision of information on asylum procedures and migration, and disorder as a result of terrorist acts.

6.2 L

EGITIMATE AIM OF THE

S

TOP

S

OROS PACKAGE

The aim of the Stop Soros Package is rather easily found, as set out in the formal reasoning attached to the bill. The bill sets out the following principle aims: (i) to combat illegal migration; (ii) to prevent Hungary from becoming an immigrant country; and (iii) to protect

58 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as

amended by Protocols Nos. 11 and 14, 4 November 1950, article 10(2)

59 Sürek v. Turkey (No. 3) App no. 24735/94 (ECHR, 8 July 1999). para. 40. 60 Incal v. Turkey App no. 22678/93 (ECHR, 9 June 1998). para. 72.

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national security and public order.61 Of these three aims, only one qualifies as a legitimate aim

at first sight, as it is included in one of the exhaustive lists included in Articles 10 and 11 ECHR: the prevention of disorder in society . The other two appear to be illegitimate aims.

A good example of another case where the prevention of disorder and “the facilitation of illegal immigration” appear to be intertwined, is Mallah v. France. Here the applicant was convicted in criminal proceedings for having facilitated the entry and stay of an irregular foreigner. The ECtHR accepted that the French legislation criminalising the facilitation of the unauthorised residence of an alien served the legitimate aim of prevention of disorder or crime.62 A similar reasoning could be used when assessing the situation in Hungary, as the rhetoric on immigration mainly involved the risks of immigration in bringing terrorism and disorder to the country. However, the legislation in Mallah v. France targeted illegal immigration and organised networks such as smugglers who help, in return for large sums of money, foreigners to enter or remain illegally in the territory. Section 353/A does not intend to combat a phenomenon like human trafficking. Particularly when taking into account the rhetoric of Viktor Orbán and the Hungarian authorities on the risks of migration, the fear of terrorism takes a central position. On the matter of protecting the public order, the measures thus try to ‘protect’ the Hungarian population from terrorism by restricting influx of ‘terrorist’ migrants.

Considering the reasoning of the ECtHR in the case of Incal v. Turkey, the abovementioned protection requires a link with the potential disorder which the measures aim to prevent. As the fear of terrorism forms a central tenet of the Stop Soros package, one must be able to establish whether the distribution of information/informational materials that Section 353/A paragraph (5) prohibits, could directly incite the disorder of a terrorist act. According to the reasoning attached to the bill, organizational activities promoting asylum seekers to stay in Hungary increasingly threatens the public order.63 This means that the Hungarian authorities deem the provision of information and informational materials on the stay of asylum seekers in Hungary to form such a threat. Following Incal v. Turkey, the ECtHR would require the informational materials to potentially incite terrorist acts, in order for the protection of public order to qualify as legitimate. When focusing on the prohibited content, one could hardly establish that this would be the case. The provision of information that Section 353/A paragraph (5) limits would only inform the public on matters of immigration, such as asylum procedures in Hungary. In

61 Bill T333 2018, Section 353/A. (HU)

62 Mallah v. France App no. 29681/08 (ECHR, 10 November 2011). 63 Bill T333 2018, Section 353/A. (HU)

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no way would this information incite violence or disorder (in the form of terrorism). The link with public disorder is solely made by the Hungarian authorities, following the anti-immigration stance that follows overtly present. The absence of a connection between the prohibited provision of information and the threat perceived by the Hungarian authorities, causes the aim listed to lose its legitimacy.

6.3 R

ESTRICTING FREEDOM OF ASSOCIATION

When considering limiting the freedom of association, we find similar ‘legitimate aims’ as in the case of limiting freedom of expression. However, Article 11(2) presents a more restricted list. Therefore, limitations of this right can be justified in fewer situations than when assessing limitations of freedom of expression. Rather obviously, “for preventing the disclosure of information received in confidence” and “for maintaining the authority and impartiality of the judiciary” are left out, as they are not applicable to the right in question.

Like with any other interference, the aim of an interference must qualify as one of the legitimate aims enumerated in Article 11(2) of the Convention. Among others, the ECtHR has considered the prevention of money laundering, as part of the aim of preventing disorder or crime, a legitimate aim when interfering with the right to private and family life (Article 8 of the Convention).64 Although such an aim has not (yet) been brought forth by the ECtHR as a legitimate aim in its case-law on limiting the freedom of association, it has been included by the Venice Commission in their joint Guidelines on Freedom of Association together with OSCE/ODIHR. When the prevention of crimes such as money laundering serves as the main aim of the interference, “it is justified to require the utmost transparency in matters pertaining to foreign funding”.65 This is particularly relevant in the case of the Lex NGO, as the rules in

Article 1 aim to create a more transparent system of foreign funding for CSOs.66

6.4 L

EGITIMATE AIM OF THE

L

EX

NGO

When assessing Act LXXVI, it is questionable whether one of the aims is indeed the underlying reason to impose restrictions on the freedom of association. Although the Explanatory Memorandum, added to one of the earlier drafts of the law, speaks of the fact that “account must be taken of the challenges posed by financial flows of non-transparent origin associated

64 Michaud v. France App no. 12323/11 (ECHR, 6 December 2012). para. 99.

65 CDL-AD(2013)023, Interim Opinion on the Draft Law on Civic Work Organisations of Egypt, para. 43 66 Act LXXVI of 2017 on the Transparency of Organisations Receiving Foreign Funds, art. 1. (HU)

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with money laundering and the financing of terrorism”67, this seems to be of lesser importance.

The primary aim, or at least the aim to which most attention is paid in the Explanatory Memorandum, is to limit the influence of international civil society groups on Hungarian society:

“A common tool to this is financial support provided on various legal grounds, which may, directly or indirectly, be suitable for influencing the operation of a civil society organisation, possibly to the extent that it significantly transforms the basic goals of the civil society organisation concerned. Such financial support is provided with the aim to enforce the own interests of the supporting interest groups in the Hungarian political and social life using the societal influence of the civil society organisation.”68

Such an aim would not qualify as a legitimate aim under Article 11(2) ECHR. Furthermore, even if the brief mentioning of combatting terrorism and money laundering would be understood as the main aim of the legislative measures, its execution would still raise substantial doubts. Turning once again to the Explanatory Memorandum, we find that the law “shall not apply to the organisations listed, considering the fact that either they do not qualify as non-governmental organisations in the first place, or their operation is linked to the exercise of other fundamental rights”69, which refers to the organisations listed under Article 1(4) of Act LXXVI.

This explanation defies the purpose that the law brings forth as the legitimate aim; if an act aims at ensuring greater transparency in the public space, and as such means to prevent financing of terrorism and money-laundering, it should apply to any organisations operating in the public space. Any of these organisations could engage in the criminal acts that Act LXXVI arguably aims to prevent when the transparency of their funding is not regulated by a special act. Excluding these kinds of organisations from the scope of the law would therefore seem contrary to the contended aim. This inconsistency, as well as the prominence of other illegitimate aims in the Explanatory Memorandum, makes it impossible to conclude that Act LXXVI intends to attain a legitimate aim.

67 CDL-REF(2017)025, Hungary: Draft Law on the Transparency of Organisations Receiving Foreign Funding

and Explanatory Memorandum

68 Ibid. 69 Ibid.

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7. NECESSARY IN DEMOCRATIC SOCIETY

The case-law of the ECtHR has presented several standards that constitute the condition of “necessary in a democratic society”. Generally, for a limitation to be considered “necessary”, national authorities must present how the measures corresponded to a “pressing social need”. Although states enjoy a certain margin of appreciation, the ECtHR gives final ruling on whether the restriction is reconcilable with the right in question. To do so, it must determine whether the measures were “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify the measures are “relevant and sufficient”.70 In doing so the ECtHR has to establish whether the national authorities did apply standards which were in conformity with the principles embodied in the relevant articles of the Convention, and that they based themselves on an acceptable assessment of the relevant facts. This involves establishing whether the national authorities acted reasonably, carefully and in good faith.71 Particularly important in assessing the conditions that constitute the requirement of “necessary in a democratic society”, is the margin of appreciation that Contracting States enjoy. This margin of appreciation determines the strictness of the scrutiny of the ECtHR in each case, considering the implementation and application of a right of the Convention.

7.1 M

ARGIN OF APPRECIATION

The margin of appreciation doctrine refers to the latitude that the ECtHR provides to national authorities of Contracting States in implementing the rights of the Convention. The ECtHR’s point of departure is that the definition of the fundamental rights of the Convention ought to be identical for all citizens living in the Contracting States of the Council of Europe. Such a common minimum standard emphasizes the idea of universal human rights, which the Convention aims to establish throughout Europe. As such, the margin of appreciation becomes relevant in cases where national authorities deviate from the norms presented by the Convention, and limit the rights provided for by its articles.72 A State’s margin of appreciation determines the extent of national authorities’ freedom to decide whether they deemed its measures “necessary in a democratic society”.

70 The Sunday Times v. The United Kingdom App no. 6538/74 (ECHR, 26 April 1979). para. 62. 71 Vogt v. Germany App no. 17851/91 (ECHR, 26 September 1995). para. 52.

72 Janneke Gerards, 'Margin Of Appreciation And Incrementalism In The Case Law Of The European Court Of

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In the Belgian Linguistic Case (No. 2), the ECtHR clarified its relation with national authorities as being of a “subsidiary nature”.73 In the view of the ECtHR, "it is for the national authorities to make the initial assessment" regarding the conformity of certain measures with the Convention.74 In making this judgment, national authorities are granted a certain margin of appreciation. Such a margin of appreciation is necessary, as the conditions throughout the Contracting States vary considerably. As the ECtHR argued in the case of Handyside v. United

Kingdom, the first case in which the margin of appreciation doctrine was addressed, “it is not

possible to find in the domestic law of the various Contracting States a uniform European conception of morals.”75 Therefore, “State authorities are in principle in a better position than the international judge" (the judges of the ECtHR in this case) to decide on the implementation of a right of the Convention.76

7.1.1 Scope

The extent of the margin of appreciation that the ECtHR grants to national authorities can vary considerably. An important condition that has been considered by the ECtHR in determining whether Contracting States enjoy a wide or narrow margin of appreciation, is the importance of the particular right to the functioning of a democratic system. For example, with regard to the freedom of expression and the freedom of the press, the case of Handyside v. the United

Kingdom emphasized how any restrictions on the freedom of expression must be established

convincingly. Additionally, the judgement in The Sunday Times v. The United Kingdom highlighted the fundamentality of a free press for a democratic system.77 The close scrutiny that limitations of these rights require, corresponds to a limited margin of appreciation for the Contracting State, being the United Kingdom in the cases of Handyside and The Sunday Times.

With regard to the freedom of association, national authorities are granted a similar margin of appreciation as with the freedom of expression. In Sidiropoulos v. Greece, the ECtHR stressed the importance citizens being able to form a legal entity “in order to act collectively in a field of mutual interest”.78 The way in which national legislation implements this freedom, and particularly the way it limits it, provides and insight in “the state of democracy in the country

73 Case “relating to certain aspects of the laws on the use of languages in education in Belgium" App nos.

1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64 (ECHR, 23 July 1968). para. 10.

74 Handyside v. the United Kingdom App no. 5493/72 (ECHR, 7 December 1976). para. 48. 75 Ibid.

76 Ibid.

77 The Sunday Times v. The United Kingdom App no. 6538/74 (ECHR, 26 April 1979). para. 65. 78 Sidiropoulos and Others v. Greece App no. 26695/95 (ECHR, 10 July 1998). para. 40.

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concerned.”79 As such, Contracting States enjoy only a limited margin of appreciation, which goes hand in hand with rigorous supervision from the ECtHR.

7.1.2 Margin of appreciation in case of the Stop Soros package and Lex NGO

As the ECtHR has determined that a limited margin of appreciation is in place for Contracting States in matters of freedom of expression and freedom of association, the Stop Soros package and Lex NGO should be assessed accordingly. Chapter 4 of this paper has already established that the two laws constitute an infringement, or limitation, to the rights to freedom of expression and freedom of association. As the Stop Soros package infringes the freedom of expression of CSOs, thereby limiting their fundamental role as a public watchdog, it requires a similar margin of appreciation as prescribed in The Sunday Times v. The United Kingdom.

Similarly, Chapter 4 established that the measures of the Lex NGO constitute an infringement of Hungarian CSO’s freedom of association. The stigmatising registration that the law requires is incompatible with the freedom of an association to seek funding abroad. Therefore, this limitation of the freedom of association requires the same limited margin of appreciation that the ECtHR granted under Sidiropoulos v. Greece.

7.2 A

PRESSING SOCIAL NEED

To understand the condition “necessary in a democratic society”, one must first understand how the ECtHR interprets the term “necessary”. Turning to Handyside v. The United Kingdom again, it becomes apparent how the ECtHR handles such interpretation: the term "necessary" in this context does not have the flexibility of expressions such as "useful", "reasonable", or "desirable", but implies the existence of a "pressing social need" for the interference to be legitimate.80 In determining whether such a pressing social need is indeed attained through the measures, Contracting States enjoy their margin of appreciation. However, that margin goes hand in hand with supervision from the ECtHR. The extent of the margin of appreciation is dependent upon the circumstances, and the rights involved. The final determination as to whether the interference in issue corresponds to such a need is therefore made by the ECtHR.81

79 Ibid.

80 Handyside v. the United Kingdom App no. 5493/72 (ECHR, 7 December 1976). para. 48. 81 The Sunday Times v. The United Kingdom App no. 6538/74 (ECHR, 26 April 1979). para. 59, 62.

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