Freedom of Association in Hungary
Constitutional provisions
The Constitution of the Republic of Hungary of 1949, amended in 1989, guarantees the right to freedom of assembly and association. “Everyone has the right to establish organizations whose goals are not prohibited by law and everyone has the right to join such organizations”. A two-thirds majority of Members of Parliament present is required to pass a law on freedom of assembly and a law on the operational and financial management of political parties (Article 63 of the Constitution).
Primary legislation
The Act on the Right of Association of 1989 (Act II of 1989; hereinafter: Association Law) is the primary law regulating freedom of association in Hungary. According to the Association Law, the right of association is a fundamental freedom. Hungary recognizes freedom of association and ensures its free exercise (Art 1). In this Act, the main focus is on civil society organizations. A civil society organization is a voluntarily-established self-governing organization formed for a purpose stated in its statute, having registered membership and organizing its members’ activity in furtherance of its purpose (Art 3.1).
Content of the Law: The Association Law in Hungary guarantees the right to form civil society organizations, the right to join civil society organizations and the right to voluntarily discharge from such organizations. Under the right of freedom of association, private persons, legal persons and their organizations not possessing legal personality may form and operate civil society organizations (Art. 2.1) A civil society organization may be founded for any purpose consistent with the Constitution and not prohibited by law (Art. 2.3).
Formation of civil society organizations: a civil society organization is founded when at least 10 founding members have decided to establish it and 10 members have adopted its statute and elected its managing and representative bodies (Art. 3.4). Mass movements, political parties and trade unions are also civil society organizations, albeit with some distinctions: unregistered members may also participate in the activities of a mass movement; only private persons may be members of a political party or a trade union (Art. 3.2; 3.3). Private persons may decide to form a community without operating on a regular basis and having a registered membership. These communities are allowed under the law but have no legal entity status and are not considered as “civil society organizations” (Art 5).
Registration of civil society organizations: Once formed, a civil society organization shall apply for court registration. As such, a civil society organization comes into existence only upon court registration (Art. 4.1 of Act 1989). Upon request, the court should register a civil society organization within 60 days; failure to meet this deadline results in automatic registration (Art. 15.4). Courts can only deny registration if the purpose of the civil organization violates the laws of the country, including the Constitution.
Financial management of civil society organizations: civil society organizations may engage in economic-entrepreneurial activities for the achievement of their purpose; however, civil societies may not be formed with the principal objective of engaging in business activities. The assets of a civil society organization shall be constituted mainly through membership fees as well as through endowments and contributions from legal and private persons. Members of civil society organizations shall not be liable with their property for the organization’s debts, apart from the payment of membership fees (Art. 18 and 19).
Restrictions on freedom of association and supervision of civil society organizations: The Constitution and the Act on Freedom of Association set some restrictions on the freedom of association. No activity of any person may lead to the violent acquisition and exercise of political power, nor to the exclusive possession of public power (Art. 2.3 Constitution); no armed organization with political objectives shall be formed under the right to freedom of assembly (Art. 63.2 Constitution and Art. 2.3 of the Act II of 1989). The right of association shall not constitute a criminal offence nor shall the exercise of this right be used to commit a criminal offense; the right to assembly shall not prejudice the rights and liberty of others (Art. 2.3 of the Act II of 1989). No civil society organization shall be established primarily for business purposes.
The Public Prosecutor’s Office shall supervise the legality of civil society organizations’ operations, with the exception of political parties. In case of violating set restrictions, the public prosecutor may file a claim to the court. The court dissolves the civil society organization if the legal operation of the organization cannot be ensured by other means.
Associations, public corporations and sport associations according to the Civil Code: According to the Civil Code of the Republic of Hungary (Act IV of 1959), societies are voluntarily-established self-governing organizations that are formed for the purposes defined in their statutes, with registered membership, and which organize their members' activities in order to achieve their objectives. Societies are legal persons. The provisions pertaining to societies in the Hungarian Civil Code should be applied to civil society organizations formed on the basis of the right of association, according to the Association Law (Art. 61-64). Unless otherwise provided by law, the provisions pertaining to societies shall be duly applied to public corporations. Public corporations are self-governing organizations with registered membership whose establishment has been ordered by law. Typical public corporations are professional chambers (such as the Hungarian Medical Chamber), bar associations and other corporations. Public corporations perform public duties related to their membership and/or the activities performed by their members (Art. 65). Sports associations are vested with all necessary authorizations defined by law, and exercise their prerogatives by way of self-government. Unless otherwise prescribed by law, the provisions on societies from the Civil Code apply also to sports associations (Art. 66).
Political parties: While the Hungarian Constitution does protect freedom of association in explicit terms, it does not prescribe an express right to form political parties. The Constitution provides that political parties may be established and may function freely, provided they respect the Constitution and the laws adopted in accordance with the Constitution. Political parties participate in the development and expression of the popular will (Art. 3 (1,2)).
Political parties in Hungary operate under the Constitution, under the Association Law, which has special provisions for political parties as described above, and under the Hungarian Party Law (Act XXXIII of 1989 on the operation and financing of political parties). According to the Hungarian constitutional and legal regime, it is relatively easy to form and register a political party. Ten Hungarian citizens who agree to adhere to the legal rules on the operation and financing of political parties, and who organize a founding meeting where they draft a charter of operations and elect their leadership, may form a political party. Parties must have registered membership (Art. 1 of Party Law). The Party Law, however, does not refer to any further substantive criteria to define a political party. The registration process is similar to that of any civil organization and is administered by courts; registration cannot be denied if all conditions prescribed by law are met. Requests for registration are seldom denied. Parties cannot be established or operate at workplaces and in schools (Art. 2.1). The dissolution of parties is very rare; it may occur on the basis of a proven record of unlawful operation. The dissolution of a political party is carried out by regular courts based upon a request (motion) of the Public Prosecutor, for the reasons set forth in the Association Law (see above). The legality of the operation of political parties, just like in the case of any association, is supervised by the Public Prosecutor.
In 2007, the party register administered 170 parties in Hungary; however, the register does not include political organizations that define themselves not in terms of political parties but in terms of other associations. Those who intend to enter the race for Parliamentary seats need to form a political party but others who merely wish to enter the political exchange of ideas often stay as registered (political) associations or unregistered movements under the Law on Freedom of Association..
Despite the existence of certain rules on the financing of political parties, election campaign expenditures are not always fully transparent. Under the law, political parties may use and sell their property, may establish limited liability companies, may invest their assets in stocks (but not in shares), may print and disseminate promotion materials. The assets of political parties may include membership fees, normative state substitutes, properties provided by the state, and other donations. Parties must report on their financial activity annually.
Case law
1) In a case which led to the Constitutional Court Decision 6/2001, a Hungarian art association complained to the Constitutional Court that freedom of association is not fully guaranteed in Hungary because the formation of civil society organizations is subject to court registration. The respective association claimed that the right to freedom of association cannot be subjected to court registration, even if court registration is (in most cases) only an administrative burden. The Constitutional Court summarized the main European tendencies for registration criteria regarding civil society organizations and concluded that in a democratic society, both the free registration and the mandatory court registration are widely used and are both acceptable. Therefore court registration of civil society organizations in Hungary was found to be constitutional.
2) The Rainbow-case. The Rainbow Association, promoting the rights of gay and lesbian people, applied for court registration in 1994. The court denied registration unless the Association modified its charter by excluding minors under the age of 18 from joining the Association. The appellate court affirmed the first instance decision based on the Hungarian Criminal Code which renders it a criminal offence to endanger minors. The Supreme Court of Hungary turned to the Hungarian Constitutional Court to decide the conflict between freedom of association, guaranteed by Art. 63 of the Constitution, and the provisions of the Constitution obliging the state to protect the physical and mental integrity of children (Art. 67 of the Constitution). The Constitutional Court found that the membership of children in homosexual organizations can be denied because the state has a duty to protect children against risks which they as minors cannot fully assess or foresee in all their possible negative effects. The Rainbow Association then filed an application to the European Court of Human Rights, which dismissed it as inadmissible. The ECtHR noted that the limitation on freedom of association through the exclusion of the underaged served the legitimate interest of protecting the rights and freedoms of others. (Szivárvány társulás versus Hungary, 35419/97 Decision of 12 May 2000).
3) The Rekvényi case. The Independent Police Union turned to the Hungarian Constitutional Court claiming that the restriction from party membership for the personnel from police, armed-forces and civil intelligence service is unconstitutional. The Union believed that everyone has the right to join political parties. After the Constitutional Court declared the case not admissible for procedural reasons, the petitioner turned to the European Commission for Human Rights claiming a violation of Articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In 1998, the Commission decided that Hungary had violated the right to freedom of expression but did not violate the right to association. Shortly after, the European Court of Human Rights examined the case and ruled that Hungary had not violated freedom of expression nor the freedom of association. (Rekvényi v. Hungary, 25390/94, Judgement of 20 May 1999).
Prepared by Forgács Nóra in May 2011
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