Human rights and freedom are not necessarily a given in some places. We need only to look to neighboring Poland and nearby Hungary, where significant steps have already been taken to restrict freedom and human rights. The thermometer below shows what specific rights and freedom are being „frozen out“ in these two countries.
Poland’s new judicial reform systematically undermines the independence of the justice system by giving political control over the courts to the executive power. This threat makes it easier to politicize the system of recruiting judges, court cleansing, and intimidating or bullying “inconvenient” judges. The work of the courts at many levels can now be intervened not only by the Minister of Justice, but also by other politicians and officials. In addition, the Minister also acts as the Supreme Public Prosecutor and may appoint and dismiss the court chairman. He suggests disciplinary proceedings that, as a result, may deprive judges of their roles.
Since 2010, Hungary has enacted laws that lead to restricting court independence. This brings disruption to the democratic principle of the separation of state powers. Judges who express criticism of these changes face defamation campaigns. The culmination of the reform is that, from 2020, administrative courts are to come under direct control of the Ministry of Justice. These courts should be responsible for matters regarding elections, freedom of assembly, public procurement, asylum procedures or general protection against unlawful proceeding and decisions by public authorities. The planned reform will thus join together the executive and judicial powers - all into the hands of the Minister of Justice.
The Polish Government systematically restricts freedom of assembly and expression. The amendment to the Assembly Act in practice allows for different approaches to different types of assembly. In reality, it prefers some assemblies over others and thus threatens the right to peaceful protest, which should not be denied depending on the type of assembly. There is a difference in the way police intervene during protests. During some protests, the police use excessive force and arrest more protesters. Participation in peaceful protests is criminalized when an increasing number of individuals, under the pretext of committing alleged offenses or crimes, are prosecuted for attending rallies.
Hungary attempts to curb manifestations of disapproval by banning peaceful protests and using excessive force against demonstrators.
In June 2018, Hungary amended the Constitution by adding an article on “protecting Christian culture”. According to it, 'freedom of expression and the right to assembly must not damage the personal and family life of others and their homes'. In addition, a new law on freedom of assembly was adopted in October 2018, which made it more difficult for people to protest publicly. Since then, authorities have often made use of the law and not allowed protests. The measures violate the internationally recognized right of assembly and lead to a reduction in public expression of disagreement. There are situations in which the police do not try minimizing violence against those involved in protests and demonstrations, rather conversely, they try to persuade participants to not submit criminal complaints for attacks against them.
In the name of protecting traditional values and the family, the Government Party of Law and Justice (Prawo i Sprawiedliwość) is attacking NGOs that promote women's rights, fight domestic violence and prohibit abortion. The government sends various audits to nonprofits, confiscating documentation and computers. When civil servants support these organizations, they face threats.
The establishment of the National Institute of Freedom has provided another governmental instrument to limit the activity in the civil sector and gain control over it. It distributes funds to organizations and is supervised directly by the government, which has the power to decide on the financing of specific projects.
By gradually adopting controversial laws, Hungary restricts and stigmatizes the activities of NGOs operating in the country. For example, under the 2017 Act organizations that are financially supported from abroad must be designated as "foreign-funded civic organizations" and must report the amount of financial contributions from abroad, including information on contributors. In 2018, the LexNGO2018, nicknamed "Stop Soros," was adopted, which aims at organizations and even individuals and criminalizes assistance to refugees and migrants. NGO workers, journalists, as well as some academics, are referred to as Soros' army or Soros' mercenaries. The name list contains 200 people, including employees of the Hungarian Amnesty branch.
The ruling Law and Justice Party strives to limit one of the fundamental rights – the right to bodily autonomy – by seeking a total ban on abortion and restricting the right to contraception. The right to bodily autonomy guarantees a person's right to make decisions about their own body, including the right of a woman to freely decide about her pregnancy. The current Polish legislation allows abortion only in precisely defined cases. These include situations where the life of a mother or child is threatened, or a woman becomes pregnant after being raped.
In 2018, the Higher Education Act was adopted, which introduced supervision of universities and established the function of an administrator who falls directly under governmental supervision. The law undermined the independence of institutions and prioritized political decisions over scientific ones. The result was the departure of the Central European University (CEU) in Budapest. The Hungarian Government has also removed the Master's program "Gender Studies" from the list of accredited fields. The government's official reason for discontinuing this field is "low student interest" and "ideological contradiction with the direction of the ruling party". The latest development in Hungary's efforts to limit academic freedoms is the new law that Parliament passed in July 2019, which moves the Hungarian Academy of Sciences under the newly established government-controlled institution.
Media independence in Poland is seriously threatened. According to the non-profit organization Freedom House, which evaluates countries according to the degree of freedom, the rating of Poland decreased from "Free" to "Partially free". This is due to the government's efforts to curb independent and critical news coverage, excessive political interference in the public media, and to limit speeches regarding Polish history and identity. At present, the freedom of the media is radically restricted, thanks to which the government Of the Law and Justice party manages to further its own ideology through the media and to disseminate a biased interpretation of historical events.
In November 2018, the Central European Press and Media Foundation (KESMA) was established. Many people close to Prime Minister Viktor Orbán entrusted their media titles to this new foundation. These included a total of 476 media titles covering all kinds of dailies, tabloids, and many television and radio stations, including the sole nationwide broadcast commercial radio. Government Decree 229/2018 enabled this transaction without a public tender, which was justified by being "in the interest of the public." As a result, government media control over 80% of the entire media market and are characterized by propaganda practices and omitting presentations by guests from the opposition or criticizing ranks.
Since 2015, the Polish government has been systematically trying to weaken the independence of the judiciary system by putting it under the control of the executive power at various levels. A series of reforms affects the functioning of the Supreme Court (NS), the National Judicial Council (NRS), the Constitutional Court and even the general courts. It jeopardizes the division of power within the state and thus the function of a democratic rule of law, including the independence of the judiciary, which is a prerequisite for the right to a fair trial and observing human rights.
The Minister of Justice has been given exclusive authority to appoint and dismiss court presidents without giving any reason. During the first six months, 18% of all court presidents or vice presidents were replaced. At the same time, the function of the Minister of Justice was combined with the function of the Supreme Public Prosecutor. This can change or cancel prosecutors' decisions, dismiss them or request information regarding individual cases.
In addition to the new powers the Minister of Justice has in appointing and dismissing judges, the legitimacy of the court-filling process has been weakened by an amendment to the Supreme Court Act and the National Judicial Council (NRS) Act. Judges must pass through the NRS network, which nominates them for being appointed to the function. However, the independence of the NRS is indeed questionable because its members are politically cast, which - as the EU has confirmed - is in contradiction with the Polish constitution. After the European Court of Justice recognized that the law violated EU law, another amendment allowed judges to return to office. However, they were not granted the same conditions or positions as they had before leaving and were forbidden to pass down decisions. One of the judges who refused to respect this prohibition faced disciplinary punishment. At the same time, Poland is being prosecuted under Article 7 (1) of the Treaty on European Union (TEU) for infringement of Article 2 of the Treaty on grounds of concern that judicial reform could be a systemic threat to the rule of law in Poland.
The amendment to the General Courts Act makes disciplinary proceedings a powerful weapon in the hands of the government. It can be used to remove uncomfortable judges and silence criticism and public debate about the independence of the judiciary. At least 11 judges and several representatives are facing disciplinary proceedings for criticizing judicial reform. Some participated in actions to support the independence of the Polish judiciary or submitted a preliminary question to the European Court of Justice regarding the compliance of new laws to EU administration.
There is a defamation media campaign taking place, evidenced on state television, pro-government press, social networks and billboards. It portrays a particular judge as harming Poland's interests and standing above the law. Because of this, judges are faced with a variety of threatening reports. Under anonymous accounts, people are publishing personal hate posts especially directed at judges who have expressed disagreement to the reforms. The published information is classified as confidential documents addressed exclusively to the Polish Government and, therefore, it is suspected that the accounts could be linked to the government.
Measures against specific judges intimidate other judges, and that simply, the state silences their possible criticism or public debate on topic of threats to the Polish judiciary.
The reform impacts not only the judiciary whose independence it threatens, such as the specific judges and prosecutors involved, but also, above all, it impacts the Polish public and its right to be protected through the courts.
According to the European Association of Judges and the European Commission, the Hungarian judiciary has been in "constitutional crisis" since May 2018. The question of who will oversee the administration of the courts has resulted in a propaganda campaign against the inconvenient judges who question this reform. The situation is not helped by the persisting conflict between the two main participants of the judiciary - the National Judicial Office (NJK) and the National Judicial Council (NRS).
Until now, administrative proceedings have been the responsibility of general courts that are not subject to state power. On 28 June 2018, however, the seventh amendment to the so-called Foundational Law (analogous to the Constitution) came into force, under which "administrative courts" should be established. The law’s enactment provoked mass protests in Hungarian cities and also severe criticism from the authorities and representatives of the European Council, the European Commission, and the UN. The Act on Administrative Courts is completely lacking a safety system of so-called checks and balances - in the supervision of the administrative court functions, power is concentrated in the hands of a few players. Under the new law, the Minister of Justice (a political member of the government) and the chairman of the Supreme Administrative Court (elected by Parliament) alone decide on the appointment and promotion of judges, the budget of administrative courts, and the allocation of specific cases. After the law comes into effect, there would be no authority against the Minister and the Chairman to supervise and balance their activities; the governmental party would thus have direct control over appointments to the courts, the funding and allocation of cases. The law coming into effect would be a practical liquidation of an independent administrative judiciary and endangerment to citizens' right to a fair trial. Administrative courts are also responsible for dealing with election complaints, conflicts over the duty of government to provide information, public administration, public procurement, asylum applications and the like.
Despite Parliament's challenge to the law, the Constitutional Court ruled in favor of the law. On 2 July 2019, the National Assembly passed the LXI 2019 Act, which postponed the Act on Administrative Courts indefinitely, but its launch may come at any time and could also lean on constitutional grounding.
The National Judicial Bureau (NJC) and its chairperson have broad powers in important areas of appointment and promotion of judges, drafting budgets and administration. The National Judicial Council consists of 14 judges and a chairperson, whose main responsibility is to supervise the Office. Board members also have the right of veto over the nomination of judges. Following pressure from the NJK in April 2018, Council members resigned, some of whom were forced to resign directly by the Chairwoman Tünde Handó or by the judges appointed by her. The Chairwoman declared the Council illegitimate as the number of its members fell from 15 to 11. The Assembly elected new members of the Council only after five months, in October 2018, and because of violations of procedural rules (namely from bypassing an election by secret ballot), no new members were elected. In May 2019, the NRS sent a proposal to Parliament to recall Chairwoman Handó for deliberate obstruction of the NRS's effective functioning. However, in June 2019 Hungarian Parliament voted against Chairwoman Handó's dismissal from her post.
Also, the escalating pressure on judges who openly criticize reform or draw attention to the danger of a conflict between the Council and the Office is a warning signal. In July 2019, the Hungarian Office for Personal Data Protection and Freedom of Information found that in February 2019 the President of the Regional Courts had unlawfully expelled 51 Judges from his district, all members of the Judicial Association. The pro-government media continues to defame individual judges and further seek to discredit them - not only those who are members of the National Judicial Council, but also judges who publicly criticized the Hungarian judicial system and reforms.
The 2016 amendment to the Police Act considerably strengthened law enforcement authorities’ power of control. This reason can lead to more frequent abuse of the law and endangerment of people who exercise their right to peaceful protest. For example, the amendment introduced provisions about secret surveillance. This new amendment does not have to take place only within the framework of criminal investigation. Thus, people have no idea if they are being watched or by whom.
In July 2017, demonstrations took place in more than 100 Polish cities. Thousands of people filled the streets to express their disagreement to the reform of the judiciary.
The police responded with massive security measures near the Parliament building and the Presidential Palace, thus preventing the demonstrators to protest peacefully. Dozens of protesters were subsequently charged with minor offenses; criminal proceedings were initiated with some.
Moreover, authorities are increasingly approaching different types of assembly in a different way. In April 2018, an amendment to the Assembly Act came into force, according to which "cyclical" gatherings, events organized by the same entity at the same place several times a year, take precedence over other events announced at the same place at the same time. In practice, the new regulation has led to a ban on many "anti-government" assemblies. The double standard is clearly visible in police interventions and raises concerns that state law enforcement agencies can favor pro-governmental and nationalist demonstrations over other events.
Hungary attempts to curb manifestations of disapproval by banning peaceful protests and using excessive force against demonstrators.
In addition, the Constitutional Amendment prohibits the establishment of 'foreign populations' in Hungary and criminalizes homelessness. The ban on homelessness raises concerns about discrimination and threats to the right to life. It also particularly affects those who are already marginalized.
In Hungary, there is growing hatred towards certain groups in society, whether they are refugees, foreigners in general, or the LGBT community. The government is not trying to prevent these sentiments. In many cases when parade participants, at protests or demonstrations, were attacked the police deliberately failed to ensure demonstrators sufficient protection - for example, they deliberately arrived late or discouraged the victims from reporting violent crimes. In contrast, during peaceful demonstrations and protests against the ruling party, inappropriate interventions of the police using disproportionate force were reported. The participants were fined and taken into custody without conclusive evidence legitimizing these police interventions.
The introduction of an institute restricting the right to freedom of expression and the right to protest could seriously damage internationally recognized civil rights at the expense of the right to privacy and family life. Peaceful protest and expression of opinion does not affect the privacy of ordinary citizens, but it only affects politicians, who are obliged by their titular function to bear the "greater criticism", as the European Court of Human Rights has recognized many times.
On November 3, 2016, thousands of street protesters all across Poland filled the street to protest the ruling Party of Law and Justice and its attempt to enforce a total abortion prohibition. Since coming to power in 2015, the Law and Justice party government has attacked organizations that promote women's rights and refuse their financing, often without any justification. The Law and Justice party leaders deliberately defamed women's rights organizations and described their work as "dangerous to family and traditional values". Civil servants who worked directly with women's rights organizations were brought before disciplinary boards and threatened to lose their jobs.
On November 17, 2017 in Poland, documents and computers were confiscated in a police raid from two women's rights organizations after a demonstration protesting the abortion law.
The Law and Justice party has also significantly reduced the funding flow for some non-profit organizations.
In 2017, the Act on the National Institute of Freedom - Center for the Development of Civil Society was passed. The new institution should support the development of civil society and redistribute funds to the non-profit sector. In practice, however, the reality is quite the opposite. NGO staff have virtually no influence on the functioning of the institution. According to the law, representatives of NGOs in the Institute Council have only five seats out of eleven.
In 2017, the Polish government also submitted a new draft of the anti-corruption law.
Non-profit organizations must publish detailed information about small donors. If they do not, they could be prosecuted. In this case transparency can be used as a means of intimidating citizens and gives authorities too great a power in deciding which information should be publicly available.
Hungary's officials continue silencing dissent and conducting slanderous campaigns against individuals and organizations that are trying to hold the government accountable, warning that it is worsening. The government intervenes against them through new laws that bend fundamental rights and freedoms, including governmental control over media and the judiciary.
In 2017, Hungary adopted the Transparency Act on Foreign-Supported Organizations - LexNGO2017 - which is inspired by the Russian Foreign Act of 2012. This law forces civil society organizations that receive direct or indirect foreign financial support in excess of 7.2 million forints ($24,271USD) per fiscal year to re-register as "foreign-funded civic organizations" and to use this label in all their publications, campaigns, and websites. The law states that non-governmental non-profit organizations that are subsidized from abroad can serve foreign interests for money laundering and international terrorism. Organizations that fail to uphold these requirements face high fines and eventually suspension of activity.
LexNGO2018 ("Stop Soros") then passed the National Assembly new criminal legislation imposing a special tax of 25% on any funds received by civil society organizations carrying out activities "facilitating / promoting migration." These activities include, for example, the distribution of information material and the establishment or operation of a network supporting the facilitation of “illegal migration”. The vague terminology contained in this law could consider a large number of activities as criminal, including: campaigns, providing legal support to migrants and refugees, and conducting research into human rights violations in Hungary. The penalty is up to a year in prison. The law deliberately targets NGOs that support the rule of law, the protection of refugees, migrants and other marginalized groups, and the provision of social and legal services that are insufficiently safeguarded by the state. In practice, laws are used to silence government criticism, discredit nonprofit work, and create a negative reputation with the public. The criminalization of these activities is a direct attack on the work of NGOs and individuals who strive to respect fundamental human rights. They also have a deterrent effect on other people, who are thus discouraged from working in the civil sector.
The activities of non-profit organizations are gaining importance in Hungary as a high number of asylum seekers, refugees and migrants (including children and minors) have long been exposed to ill-treatment. In March 2017, the National Assembly passed a law allowing the automatic transfer of all asylum seekers to transit areas for the duration of their asylum procedure. The transit zones at the Röszke and Tompa crossings at the Serbian border are the only facilities where people can apply for asylum in Hungary. In these transit zones, foreigners are faced with poor physical treatment from police officers, are not provided with information on the management process, and are denied food. Hungary thus violates several points of the European Convention on Human Rights. The camps can only be exited through Serbia, but by leaving, applicants automatically lose asylum seeker status in Hungary because the government in Budapest considers Serbia a safe country.
Since 2015, when the Law and Justice Party came to power, The Law and Justice Party has been incrementally pursuing policy that weakens reproductive rights. Under Polish law, abortion is only permitted if the life of the mother is endangered, the pregnancy is the result of a crime (e.g. rape), or the fetus is severely damaged. In 2016, however, the government proposed a law that would introduce a total ban on abortion - with one exception - endangering the life of the mother. This proposal provoked thousands of protests and the proposal consequently did not go through.
In 2017, the Polish government was denounced for violating European values when legislation restricting women's access to the “morning after” pill was passed. The law, signed by the president despite the disapproval of human rights organizations and the recommendations of the European Medicines Agency, classified emergency contraception as a prescription medicine. This means that women and girls over the age of 15 have to make an appointment with a doctor to gain access to the medicine, which markedly reduces the possibility of preventing unwanted pregnancy. According to Polish NGOs and Brussels MEPs, the change will have the greatest impact on rape victims and people from more isolated places.
Among other things, Poland violated the rights of a 14-year-old girl who became pregnant after getting raped. Two hospitals in different cities refused her an abortion even though she was allowed one under the current law; she only succeeded in a hospital 500 km from where she lives. In dealing with the case, she faced harassment and intimidation from hospital workers, police and others. There was also a serious breach of medical confidentiality when the circumstances of the girl's case and other information leaked to the media and was published on the Internet. The court ruled that there had been a violation of Article 8 of the European Convention and ordered Poland to pay the girl compensation for both material and emotional harm.
The future of the EU depends on its ability to defend its fundamental values - free education definitely belongs among them. In December 2017, the European Commission decided to sue Hungary before the Court of Justice of the EU regarding an amendment to the CCIV Act from 2011 on national tertiary education, which disproportionately restricts EU and non-EU universities’ performance of activities. The Commission found the new law in contradiction to the right to academic freedom, the right to education, and the freedom to conduct business, as is established in the European Union’s Charter of Fundamental Rights.
The law adopted in July 2019, which establishes government control over the Hungarian Academy of Sciences, further restricts academic freedom in the country. The Academy of Sciences previously consisted of 15 institutions, 150 research groups and about 3000 researchers. The new law liquidates the 15 mentioned institutions and creates only one state research center, Eötvös Loránd, under which all researchers will fall. This institution will be headed by a thirteen-member Board of Directors, with six members appointed by the government, six by the academic community, and the chairman will be appointed by the Prime Minister himself on the basis of a proposal of the Board of Directors. Researchers seek to ensure that government appointed members make up only a third of the board, not half. The Board will decide on the funding of projects and will also have the power to appoint the directors of individual research centers - this change will allow the government to decide what types of scientific projects will be funded and who will manage them. The new law has limited the budget of the Academy of Sciences for 2020 – whereas the institution's 2019 spending was planned at 56.2 billion forints (4.4 billion crowns), the 2020 budget is calculated at only 17 billion forints (1.3 billion crowns). As a result, the budget of workers working in various areas of natural and social sciences will be reduced to a quarter next year. With this Act, the Hungarian Government gains control over another area of Hungarian public life. In September 2019, President of the Academy of Sciences László Lovász lodged a constitutional complaint with the Hungarian Constitutional Court. According to his complaint, the new legislation violates the constitutionally grounded freedom of science and the right to property.
Last but not least, there is disproportionate control over Hungarian public education (in particular the July 2019 Act) and the ignorance of the ongoing EU proceedings against Hungary for violating the Racial Directive. The country faces criticism because it discriminates against Roma children education access and segregates them from ordinary primary schools.
The Public Education Act, for example, mandates compulsory education begins at the age of 6, regardless of the child's best interest, and it does not allow the use of teaching methods and materials other than those prepared by the state.
In January 2016, a new media law came into force. He strengthened the powers of the Minister in appointing heads of Polish public television and radio. As a result, 140 public media employees resigned or were dismissed in April. In December 2016, the Polish Constitutional Court ruled that the authorities acted unconstitutionally by excluding the National Council for Radio and Television Broadcasting (KRRiT) from deciding on the composition of the new administrative and supervisory boards of public service broadcasters. The new National Media Council, which had been authorized in June to appoint people to these positions, ignored this decision.
At the same time, the Law and Justice government tries to limit the voices of those questioning the preferred governmental interpretation of history, which deliberately fails to mention Poland's involvement in World War II atrocities. In February 2016, TVP (Polish Television) aired the film "Ida" about a Catholic nun who discovers that her parents were Jews who were killed during World War II. The film was preceded by a twelve-minute introduction, in which commentators stated that the film inaccurately documents Polish history. In April, prosecutors interviewed Jan Gross, a Holocaust historian, for five hours regarding allegations of public insult to the nation. All of this was because of a 2015 article in which Gross stated that the Poles killed more Jews than the Nazis during the Second World War. President Andrzej Duda's office is now considering depriving Gross of the Order of Merit award he received in 1996.
In April 2016, an amendment to the national media law, along with two related proposals, was submitted. The bill would turn public radio and television stations into "national media" and move further from an editorially independent model of public service to a system that promotes the government’s political and ideological agenda. The law amendment contained numerous vague provisions on what should be broadcast and required the public media to disseminate the views of the Prime Minister, the President and the spokespersons of both Houses of Parliament (Article 13). In the end, the law did not pass.
In December 2016, the ruling Law and Justice party tried to restrict journalists' access to Parliament's legislators; because of the opposition’s resistance and public pressure, the party eventually withdrew the initiative.
According to the OSCE Election Observation Mission, citizens' access to information was restricted during the parliamentary elections in 2018 and even freedoms of the press and association were restricted. While the public media provided candidates with free platforms according to the law, the news clearly favored the ruling coalition. During the election campaign, there was no room for debates in which the government could clash with the opposition - commercial media sided with either one side or the other. Among other things, the right to free access to information has been restricted in Hungary - the amendment has expanded the breadth of information not subject to being automatically released to the public and has raised the fee for requesting such information.
The state media is also engaged in propagandistic editorial practices. In December 2018, a series of non-violent demonstrations took place in front of MTVA. During the protests, some members of the Parliament from the opposition entered a building, making it clear that they wanted to publicly protest, yet they were physically attacked by security guards. Many of them are not allowed to appear in public places, while politicians and experts supporting the ruling party are given any length of broadcasting time. The media is thus becoming the ruling party’s powerful political instrument.