How the Open Society Foundations Are Defending Free Speech in Hungary

Why are the Open Society Foundations filing a case in the European Court of Human Rights?

The European Court of Human Rights (ECHR) case is being filed in the name of our Hungarian legal entity, the Open Society Initiative–Budapest, which complains that Hungary’s “Stop Soros” legislation violates its rights to freedom of expression, association, and assembly that are guaranteed by Articles 10 and 11 of the European Convention on Human Rights. A separate case is being filed before Hungary’s Constitutional Court, arguing that the legislation similarly breaches rights guaranteed in the Hungarian constitution.

Open Society’s ECHR application addresses amendments to Hungary’s criminal code, that took effect on July 1, which make it a criminal offense for an individual or an organization to offer support—including legal advice—to migrants or refugees entering Hungary. It also challenges a new 25 percent tax on funding for activities and organizations that “promote migration.”

The complaint argues that these measures breach Open Society’s rights under Article 11 of the European Convention, which protects the rights to freedom of assembly and association. The application also argues that the legislation has a wider, chilling effect on the rights of civil society groups in Hungary, and establishes a dangerous precedent, restricting Open Society’s right to freedom of expression, protected under Article 10 of the European Convention.

Open Society is filing cases before the Constitutional Court and the ECHR on the same day, rather than awaiting a response from the Hungarian courts, because of the current and ongoing damage being done by the legislation and because Hungary’s courts have become increasingly reluctant to challenge the government.

The jurisdiction of the ECHR covers all 47 members of the Council of Europe, who are contracting parties to the European Convention on Human Rights.

What will these laws mean in reality?

The “Stop Soros Law” threatens criminal sanctions, including possible imprisonment and fines, for a broad range of otherwise legitimate activities, such as any assistance—legal, technical, or otherwise—to asylum and residence applications

The tax law is also broadly written in a way that will make it possible for the Hungarian government to target all funding for human rights groups and NGOs, even if only a small part of their work involves refugee or migrant issues.

Is the “Stop Soros Law” about migration?

In 2017, just over 3,300 asylum seekers arrived in Hungary—a country of almost 10 million people. Yet the Hungarian government has continued to portray migration as an existential threat to the security of the Hungarian people. It has used the resulting public anxiety to win electoral support and to portray its critics as enemies of the state.

The fact that the Hungarian government is clearly maintaining control of its borders since the crisis of 2015 gives the lie to the government’s claims that the work of NGOs is somehow facilitating “illegal” migration. The clear purpose of this legislation is to intimidate and silence groups who defend the civil and political rights of all Hungarians—all under the pretext of combatting a supposed threat to national security that does not exist.

This approach represents a dangerous precedent that can be used in the future to restrict other rights, such as women’s rights, rights of LBGTI, and the right to freedom of religion.

As such, the Open Society Foundations believe that this legislation is a test of the commitment of European States to ensure respect for human rights and the rule of law. 

What is the Open Society Foundations’ current status in Hungary?

The Open Society Foundations reluctantly closed their international hub office in Budapest at the end of August following a relentless, government-sponsored and taxpayer-funded campaign against Open Society and our founder George Soros. Growing restrictions on our lawful activity made it impossible for us to retain a substantial presence in Hungary.

Is the European Union currently taking any action against Hungary?

The European Union has two principle mechanisms for taking action against members who violate European Union law, covering all 28 members of the Union.

One requires the European Commission—the Union’s executive—to launch a challenge before the Luxembourg-based Court of Justice of the European Union known as an “infringement procedure.” There are four ongoing infringement procedures against Hungary:

  • On July 19, 2018, the European Commission launched the first step of infringement proceedings by sending a letter of formal notice concerning the Stop Soros law.
  • In December 2017 and July 2018 the Commission took the final step in the infringement process and referred three cases to the Court of Justice of the European Union: (1) the 2017 NGO law that requires civil society organizations to declare themselves as ‘foreign funded,’ (2) the 2017 case on the Higher Education Law that targets the Central European University, and (3) the 2015 Asylum laws

The other mechanism, the Article 7 process, is designed to prevent member states from backsliding on European values and the rule of law. Article 7 of the Treaty of the European Union, which governs EU members, allows political sanctions to be taken in case of breach of the European Union’s core principles, listed under Article 2 of the Treaty, including respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. On September 12, by a two-thirds majority, members of the European Parliament voted to pursue proceedings against Hungary through the Article 7 process. 

The Hungarian Helsinki Committee (HHC), a Budapest-based human rights organization that receives some of its funding from the Open Society Foundations, filed two applications before the ECHR over these same two laws on Wednesday, September 19. Why are you also filing?

Any individual or group can file an application before the Court if their rights under the European Convention on Human Rights have been violated. In this case, the applications from HHC and the Open Society Foundations focus on different aspects of the rights violations suffered.

The two filings highlight and support each other—HHC’s complaint underlines the concerns raised by the Open Society Foundations over the threat posed by these laws to independent civil society groups in Hungary. It also raises violations to Articles 10 (regarding the right to freedom of expression), 11 (regarding the right to freedom of association), and 18 (regarding illegitimate aims pursued by the legislation) of the European Court of Human Rights. Other affected groups may also file additional applications.