For instance, in the area of human rights in law enforcement and the criminal justice system, we successfully advocated for the setting up of a civilian complaints board so that complaints regarding fundamental rights violations by police officers would be decided by a body that is external to and independent from the police. Through research and fact-based advocacy, we convinced stakeholders that a system in which legal aid lawyers to be appointed for indigent defendants were chosen by police investigators, would unavoidably lead to substandard criminal legal aid work. As a result, the law was amended to make sure that legal aid lawyers are assigned to the defendants by the bar associations instead of the police. Our achievements confirmed my initial conviction that human rights law could be a very important vehicle of positive societal change. Besides offering remedy to individual violations, it can contribute to improvement on a larger scale through conveying important normative messages and providing protection to the vulnerable. However, as of 2010, the political and legal context of our work changed radically, although incrementally. Using its constitutional supermajority in parliament, the government elected in 2010 started to systematically weaken the system of checks and balances by eliminating or occupying all the institutions that can exercise any control over the executive branch.  The instrumental use of the law, including Hungary’s Constitution, played a crucial role in this process.

For example, after the Constitutional Court had quashed a piece of legislation that aimed to retroactively impose an extremely high tax on severance payments that were paid to state employees dismissed after the change of government, the new majority government deprived, through a legal amendment, the court from its right to review the constitutionality of tax-related legislation. In this context, a provision was introduced into the Constitution expressly allowing for the imposition of similar taxes, and then a new version of the quashed legislation was passed. The Constitution was also amended to raise the number of Constitutional Court judges and change the rules of nominating them in a way that deprived the parliamentary opposition from any possibility of meaningfully influencing the process, which then led to the packing of the court. Then the President of the Supreme Court was removed after criticizing the government’s plans to reform the administration of the judiciary for its impact on judicial independence. The list of how the law has become, instead of an instrument of protection for the weak, a powerful tool in the hands of those who wished to undermine its rule in order to get rid of the limitations of their power could be continued almost endlessly.

For me as a human right lawyer, seeing this process unfold in an escalating manner has been especially challenging for a number of reasons. First, because constructive human rights based dialogue with the authorities has become impossible, although in a well-functioning liberal democracy, this is a very important element of human rights lawyering, often preceding hardcore litigation. As the ruling majority sees both human rights norms and the watchdog organizations and lawyers trying to enforce them as one of the forms of limitation they aim to shuffle off, the channels for such dialogue have been gradually closed off. One particular example of this is the termination of those agreements of cooperation on the basis of which the HHC was allowed to monitor places of detention for almost two decades.

Second, since the ruling party has the majority required to amend the Constitution, they can shape the legal framework however they wish without overstepping the boundaries of what is lawful from a strictly formal point of view. This “procedural impeccability” poses the difficult dilemma of how long one should comply with laws whose substantive compliance with important human rights standards is questionable, and when comes the point when it is justified to engage in civil disobedience. This decision is made more difficult by the third issue, namely the increasing absence of an effective institutional infrastructure for the enforcement of human rights standards. When the independence of the judiciary, the Constitutional Court and other institutions designed to protect individual freedoms often from the state is undermined, and when such institutions are packed with government loyalists and are unwilling to take up conflicts with the executive branch, the moving space for enforcing such freedoms through the traditional legal means is severely restricted. According to its most traditional understanding, civil disobedience can only be resorted to, when one has tried all the legal routes that offer a reasonable prospective of righting a wrong, or if there are not any such routes. In a system, where the boundaries are blurred, and where one can still get good and fair judgments from those individual judges who have preserved their integrity, but at a systemic level, the chances for such an outcome are constantly decreasing, it is a tough choice to make whether to stick with litigation. 

And still, I believe in the legal route for a number of reasons. One is exactly the legalistic nature of the regime, and the importance it attaches to the appearance of lawfulness. Due to this feature, legal reprimands (taking the form of a court judgment against it) cut deeper into the regime’s self-esteem and identity than political or diplomatic criticism.[1]Second, legal action offers an easier and more direct route for watchdog NGOs and activists out of the confines of the captured domestic institutional framework than the very important advocacy work. After ticking the box of exhausting the increasingly ineffective domestic remedies, there is a straightforward way to international fora, such as the European Court of Human Rights (ECtHR), where a clear verdict on compliance with international human rights standards can be sought. Finally, there is defiance. When the now ruling party attempted to monopolize the Hungarian tricolor by calling on its sympathizers to wear it all the time and thus make it theirs, my response was that it also belonged to those compatriots of ours who disagreed with them. The law is ours too; we should not allow it to be monopolized for undermining the rule of law. We should keep using it for what its true purpose should have always been: evening out the playing field and protect the weak from the strong.

[1] Kapronczay, S.  – Szabó, M. D., ’Felszabadulva’, Magyar Narancs, 25 June 2020.