Marina Ban, Asser Institute
Abstract
In the last decade, the Hungarian state has become the one of the symbols of the rise of right-wing populism in Europe. The self-proclaimed founder of the idea of ‘illiberal democracy’, the country’s public life and legal system has transformed since 2010. My paper intends to examine one specific area in such transformation: the role of memory politics and the legal governance of Hungarian historical memory.
Since 2010, antagonizing the legacy of the country’s pre-1990 communist regime has been significantly stressed in local politics of memory. The Fundamental Law of Hungary, entering into force early 2012, has placed particular emphasis on distinguishing itself from the previous communist constitution. In addition, it has created the Committee of National Memory, tasked with investigating the ‘crimes of the communist past’ and, if necessary, bring those responsible to justice. Furthermore, the state’s previous memory-related legislation has been altered to include the prohibition of the ‘denial of the crimes of the communist regimes’ in addition to the renewed prosecution of a communist political leader of the 1950s.
Nevertheless, in the eagerness of rejecting the memory of communism, several controversies arise in the transformation of Hungary’s memory laws. These include questionable standpoints on historical events, omission or distortion of historical facts, as well as the legal development of particularly distinct and fascinating system of historical memories. The paper looks for answers regarding (1) the development of the changes in Hungary’s historical memory with the aid of the law, (2) the content and controversial aspects of Hungary’s current memory laws and lastly (3) the ongoing conflicts such transformation brings with different European institutions, most importantly, the European Court of Human Rights.
Introduction
‘The societies of Central and Eastern Europe seem to be incapable of dealing with the traumatic chapters of their recent past and sufficiently close it.’[1] These are the words of Hungarian scholar Péter Apor, who cites the inability of these states to arrive at a ‘smart and widespread compromise in society about the assessment and condemnation of different political dictatorships.’[2] The Hungarian government has recently embarked upon a quest to finally deal with the legacy of the atrocities and totalitarian regimes of the 20th century, however the results until now are quite questionable. The Hungarian efforts include a significant transformation of the official historical narrative presented in legal instruments and to the public. References to historical memory in different Hungarian laws have existed pre-2010, but they were few in number.[3] The change is clearly visible as historical memory is elevated to the constitutional level in the new Fundamental Law in addition to further introduction of criminal measures connecting to the legacy of the communist regime. However, simultaneously, the shift of the official historical narrative has become a building block in the Hungary’s slow transformation into an ‘illiberal democracy.’[4] This paper concentrates on one aspect of the shift, the growing and more and more aggressive antagonizing of the memory of the country’s communist regime.
Theodor Adorno, in his essay ‘What Does Coming to Terms with the Past Mean?’, reflects on the ability of West Germany to work through the Nazi past and therefore being able to leave it behind to build a better future.[5] Jürgen Habermas further notes the conviction of keeping memories alive and the importance of the legacy of the war prominent in West Germany’s collective memory is from the viewpoint of the country’s future.[6] Critical assessment of the events, but also the idea that reconciliation helps not only in creating a better future (by learning from historical mistakes), but it is also crucial in the remembrance to the victims. Therefore, a duty or responsibility is implied in working through historical traumas in order to assist the nation in moving forward.[7] The German context of dealing with the past connects explicitly to the memory of the Holocaust, but the same idea can easily be applied to the legacy of communism, due to the historical similarities between the totalitarian regimes.[8]
Following this line of argumentation, the Hungarian state is not unjustified in seeking to separate itself from its totalitarian past. Nevertheless, the process of this change could be questioned. In 2014, Prime Minister Viktor Orbán has declared that Hungary has stepped on the path towards becoming an illiberal state.[9] He defined the illiberal state as standing on the foundation of a ‘nationalist’ ideology.[10] While the building of the illiberal state has at first been regarded as a ‘local oddity’ in the region, since then t has been categorized as the initial sign of a much greater crisis of the rule of law in Europe.[11] In the context of Hungarian politics of memory, the process of strengthening the new regime includes a growing focus towards the condemnation of the communist regime, as well as the central theme of nationalism and Christianity. Therefore instead of critical assessment in coming to terms with the past, the new legal measures directed at establishing an official historical narrative become tools of the abuse of historical memory.[12] Therefore a new version of the Hungarian historical narrative is being created as part of the efforts to legitimize and consolidate a new regime.[13]
On order to demonstrate this process the paper touches on three question: in the first section, it will examine the treatment of the communist past of Hungary in the two decades between the democratic transition and the ascent of Fidesz into power.[14] In the second section, the 2010 turning point in Hungarian politics of memory will be given due consideration, with the focus on the new legislation on historical memory being introduced both in the new constitution and in the criminal code. The third section then elaborates on the conflicts that the current situation presents between Hungary and different European institutions. Specifically, it will examine the developments of the debate concerning the status of the five-pointed red star as a communist totalitarian symbol.
The Memory of the Communist Regime between 1990 and 2010
Attempts to come to terms with the legacy of the communist regime have been slow and quite controversial in Hungary once the country has transitioned to democracy. This connects to several unique characteristics surrounding the Hungarian transition: (1) the lack of any significant legal prosecution of prominent figures of the communist regime in the immediate aftermath of the transition, (2) the almost complete lack of lustration and (3) the quite odd constitutional reform.
The explanation of these oddities lies in the peaceful nature of the transition. The turn towards democracy has been driven by a series of roundtable negotiations between the governing Hungarian Socialist Worker’s Party and the coalition of the opposition.[15] The transition ultimately resulted in a mix of reform within the existing communist institutions and legal measures while it remained a peaceful revolutionary event.[16]
Therefore, hardly any need has emerged for intense political prosecution. The most prominent leader and face of the Hungarian Socialist Workers’ Party, János Kádár has already passed away in 1988. His death has already provided a push towards the negotiations. Other prominent figures of the party have either agreed to a quiet retirement or they have put their willing efforts towards the compromise of the transition and have built their careers further after 1990.[17] In addition, the communist ruling party was transformed into the Hungarian Socialist Party (which still exists today) and other parties with a communist spirit were also not banned. Several ex-communist politicians have participated in public life in the 1990s and onwards. For example, former Minister for Internal Affairs, Gyula Horn who belonged to the progressive wing of the communist leaders, have become prime minister in 1994. As a result of these developments, widespread prosecutions of political leaders and collaborators have largely been abandoned. The only exception from under this compromise included the prosecution of individuals who were suspected to be involved in massacres following the 1956 revolution.[18] The process of lustration was similarly soft. The parliament has not passed a specific lustration law, as it happened in Slovakia.[19]
The final odd aspect of the transition entails constitutional reform. During the negotiation process, the still-communist controlled parliament enacted an interim legislation instead of drafting a completely new constitution.[20] This law has profoundly transformed the previous communist constitution introduced in 1949 into a document with democratic values in order to ensure the rule of law, the separation of powers, the respect for human rights, the democratic process and the acceptance of the values of international law.[21] Even though this document was supposed to be temporary, for almost two decades no consensus could be formed in parliament to draft a new constitution. The interim legislation has not made any specific reference to the past, only to the fact of the democratic transition.[22]
As a result, for twenty years the memory of the communist regime has been become a mix of efforts at distancing democratic Hungary from the crimes committed but also displaying at a fair amount of nostalgia as well. On the one hand, the distance from the previous regime has been exemplified in the glorification of the 1956 Revolution. This has already started with the pronouncement of the new Republic of Hungary on 23 October 1989, the anniversary of the revolution of 1956. Furthermore, one of the symbolic moments of the democratic transition included former communist party members and officials admitting that the events of 1956 were actually a fight for freedom, instead a “counter-revolution,”[23] an illegal uprising against a legitimate government. In line with these developments, 23 October was proclaimed a national holiday, memorials were erected for the victims and the memory of the revolution is taught to every single Hungarian schoolchild. One of the most significant memorial site to the crimes of the communist regime is the House of Terror, opened to the public in 2002.[24]
The only punitive legal measure enacted in connection to the memory of communism has been an amendment to the Hungarian Criminal Code concerning the prohibition of the public display of totalitarian symbols.[25] This provision has introduced a ban on publicly spreading and using five different symbols in public: the swastika, the SS runes, the Arrow Cross, the hammer and sickle and the five-pointed red star.[26] However, exceptions from the provision included display with an educational, academic or artistic aim.[27] The legislator provided its reasons for creating this provision as such:
The extremist political ideologies of the 20th century, in order to violently gain and solely possess power, have created dictatorships, in Hungary and in Europe, which have ignored human rights and led to mass extermination of Hungarian citizens.
The Hungarian parliament, reasoning that the symbol of states, organizations and movements which followed such ideologies can tear up painful scars and are incompatible with our constitutional values….[28]
Despite the memorial sites and harsh condemnations, nostalgia for communist crimes has crept into Hungarian politics of memory in the aftermath of the transition. This manifests perfectly in the foundation of the Memento Park just outside Budapest. This open-air museum displays many artworks, statues, street signs and other object which have been officially replaced.[29] Even the museum’s name suggests rather fond remembrance. Not to mention the fact that historical figures such as Vladimir Lenin have their likenesses exhibited in the park.[30] Furthermore, this nostalgic view on communism has not been unique to Hungary, as the ideology has been far less widespread in Western-Europe, and therefore its memory is actually not considered as dangerous as the memory of any Nazi-type political system.[31]
The Turning Point
Since 2010, the official viewpoint on the legacy of communism has transformed, with specific efforts aimed at wiping away any nostalgia that might have remained in the eyes of the public. In the guise of legal measures, three instances are notable in this respect: (1) introduction of the prohibition on the denial of the crimes of the communist regimes, (2) the utter condemnation of 1944-45 in the National Avowal in the Fundamental Law and lastly (3) the foundation of the Committee of National Memory in the fourth amendment of the Fundamental Law.
The prohibition on the denial of crimes have been introduced in 2010 under Article 269/C of the Criminal Code. Initially, the provision had only covered the notion of explicit Holocaust denial.[32] However, this has later been rephrased to include the ‘genocide and crimes against humanity committed by the National Socialist and communist regimes.’[33] Since its inception, the constitutionality of the prohibition has been questioned but after careful deliberation, the Hungarian Constitutional Court have allowed it to stand, by citing the danger of incitement and hateful speech that lurks behind negationist speech.[34] Nevertheless, while the prohibition is regularly being used in cases concerning Holocaust denial, it is far less frequently employed to the denial of the crimes of the Hungarian communist regime. In fact, the only occasion the provision has been cited in the communist context happened in early 2011, when Béla Biszku, previous Minister for Interior Affairs and Central Committee Member of the Hungarian Socialist Workers Party, gave an interview to a Hungarian TV channel about his role during the crackdown in the aftermath of the 1956 Revolution. His in-air statements have led representatives of the Jobbik Party to bring a case against him for the denial of the crimes of communist regimes. Even so, the case has ended in the dismissal of charges.[35] However, soon afterwards, Biszku was brought back in court, accused of crimes against humanity for his activities in late 1956. His prosecution marks the sole occasion of legal retaliation against an ex-communist high-ranking official in Hungary. After years of deliberation, his second trial ended with a conviction in December 2015. However, he passed away in March 2016, in the midst of the appeal procedure.[36]
In addition to the introduction of criminal measures, the condemnation of the communist regime has been elevated to the constitutional level. After Fidesz gained a two-thirds majority in parliament in 2010, the government has rapidly started the drafting a completely new constitution, to replace the 1989 interim provisions. The Fundamental Law of Hungary came into force in 2012 and contains strong references to Hungary’s past, including the communist period. Firstly, the National Avowal (Nemzeti Hitvallás) states:
We do not recognise the communist constitution of 1949, since it was the basis for
tyrannical rule; therefore we proclaim it to be invalid.
We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected organ of popular representation was formed. We shall consider this date to be the beginning of our country’s new democracy and constitutional order.[37]
In fact, the National Avowal expresses more that most constitutional preambles with respect to history. Not only does it establish and declare a version of the Hungarian historical past much more extensively than most constitutions do, but it also connects the history of the nation to current political values as well as an imagined vision of the future.[38] Already its name suggests a strong stance on history. It is named ‘national’ therefore an exclusively Hungarian declaration on history, and thus carries all the political discussions on the interpretation of who is recognized to be Hungarian and what that exactly means.[39] In addition, this section is not called preamble, but instead ‘avowal’ which in the Hungarian original means declaration but with historically religious undertones.[40] The declaration is not only national but also carries a certain amount of Christian values. Therefore, the strong condemnation of the communist regimes suggests that totalitarian political systems do not fit into such national-Christian narrative.
While the condemnation of the National Avowal is merely declarative, the posthumously-amended Article U of the Fundamental Law takes actual steps to deal with the legacy of the communist regime. This article contains the foundation of the Committee of National Memory which is tasked with (1) the preservation of the memory of the communist regime on the state level, (2) the investigation of the internal workings of the communist dictatorship and (3) providing cooperation and support to the Prosecutor’s Office to bring perpetrators of totalitarian crimes to justice.
The task of the Committee of National Memory is actually quite similar the Polish Institute for National Remembrance, in fact, the two institutions have set up a cooperation agreement.[41] However, contrary to the Polish Institute, the Committee’ mandate originates from the constitutional level, whereas the Polish Institute has been initiated from a regular law.[42] Therefore the Committee’s activities are much more difficult to alter or desist as it would require a constitutional change. Furthermore, while the Polish Institute investigates ‘Nazi, communist and other crimes against peace’, the Hungarian Committee is only tasked to uncover the crimes of ‘communist dictatorship.’[43] In addition, the Hungarian Committee is allowed to initiate legal cases, if their research uncovers somebody to have been a communist collaborator.[44]
The Committee of National Memory seems to have drawn inspiration from truth commissions, albeit it does not have judicial decision-making power.[45] On the other hand, it is tasked with the preservation of memory as well. Nevertheless, the Committee’s work can be questioned from two fronts. First of all, the fact that it has been established so late after the democratic transition. Secondly, the fourth constitutional amendment in which Article U has been introduced has been heavily criticized both by Hungarian constitutional lawyers, as well as different European institutions. While understanding and commending the Hungarian government’s efforts to come to terms with their past, the Venice Commission explicitly stated that:
The main problem of Article U lies in the fact that it does not foresee any procedure that permits the examination of each individual case, but attributes responsibility for the past by using general terms (“holders of power”, “leaders”) and vague criteria without any chance for an individual assessment.[46]
While the Committe of National Memory itself has not received criticism, the legal package within which its existence had been validated came under heavy fire from the Venice Commission.
The Case of the Red Star
The European institutions have not ever been entirely content on Hungary’s treatment of its communist legacy, and their discontent has been magnified due to the post-2010 developments in Hungarian politics of memory. Nothing exemplifies this more than the struggle over the five-pointed red star. The public display of the red star has been banned in Hungary in the aforementioned 1993 amendment to the Criminal Code. While the provision has been debated internally, in 2000, the Hungarian Constitutional Court found it to be in line with the interim constitution of Hungary.[47] In its decision, the Constitutional Court has stressed the foundational aspect of the right to freedom of expression, it nevertheless declared that such a little time passed since Hungary’s transition to democracy (only 10 years) that the threat of the reinstatement of the communist regime as a by-product of movements using the communist symbols was very much real.[48] Therefore, Hungary’s special situation called for such desperate legislative measures, and the mitigating facts included that the symbols could actually be used for educational or artistic purposes, just not political, propaganda activities, according to the law. In addition, the Constitutional Court also proclaimed the restrictions to be the least and only possible measures in the protection of public peace and the dignity of the victims. These two factors, with special stress on the protection of human dignity served as vital justifications for the verdict.[49] Furthermore, The Constitutional Court found that the “core idea” expressed by using such symbols is ultimately contrary to the country’s democratic values.[50]
However, the situation has changed drastically in 2008, when the European Court of Human Rights proclaimed the violation of Article 10 of the ECHR in the case of Vajnai v. Hungary (2008). The applicant’s public use of the red star has been vindicated as the Court found no contempt for democratic values and the dignity of the victim’s in the applicant’s conduct. [51] Furthermore, twenty years of stable democracy will not be shaken by the display of a symbol which signifies not only communist parties, but the international workers’ movement.[52] Lastly, the Court has also drawn the line between the right to freedom of expression and the dignity and sensibility of the victims within the communist context, and proclaimed that the essentiality of freedom of expression is in a democratic society, therefore it cannot be silenced by sensibilities of people affected by the brutality of the communist regime.[53]
Despite these developments the contemporary socialist government has not implemented the Vajnai decision, and the prohibition remained in the Criminal Code. When Fidesz came to power in 2010, the Hungarian viewpoint has not changed. Not even in the light of further condemning decisions of the ECtHR[54] which was later joined in 2013 by the opinion of the Hungarian Constitutional Court. The Constitutional Court has been inspired by the arguments of the ECtHR in reversing its previous opinion and declaring the symbol ban to be in conflict with the Fundamental Law.[55]
The Hungarian government still has not relented, in fact, in 2017, it has chosen to expand the ban. There have always been exceptional situations in which display of the red star has been permitted: in logos, artworks, history books etc. However, the provision is now in the process of an amendment to include the prohibition of the use of the symbols for ‘commercial gain.’[56] The extension of the ban’s scope therefore will have disadvantageous effects on any brand or business that uses the red star in its logo, companies such as Heineken, Converse, Milky Way etc.[57] The opinion of the European Commission has been sought by the Hungarian government after the amendment’s inception, and surprisingly, the Commission has let it pass and has claimed no conflict with EU law. The provision is on the autumn 2017 schedule of parliament and could be voted into law in the coming months. In addition, it is worth mentioning that the European Court of Justice has declined to comment on the Vajnai case when the Budapest Regional Court has asked for a preliminary ruling on the older version of the totalitarian symbols ban.[58] However, it remains to be seen what effect the extended provision might have on the companies involved under its scope. It is possible that the issue of the commercial use of the red star may find its way to a European court once again.
Conclusion
The memory of the communist regime is a huge baggage on the shoulder of the Hungarian state. Since 2010, renewed efforts have been directed at coming to terms with the legacy of this totalitarian dictatorship. Certainly, the initiation of a proper national public debate about aforementioned legacy is long past its due date, however the manner and results of this procedure is not without controversy. While the communist past has caused conflict between the Hungarian state and the European Court of Human Rights even before 2010, its resolution is certainly not looming closer, on the contrary, the divide seems to be widening.
The growing number of legal measures towards the remembrance of communism as well as the stance of Fundamental Law supports this trend. The new official Hungarian historical narrative manifests in the National Avowal of the Fundamental Law, however ‘it does not inspire any self-reflection, rather only focuses on the glorious past.’[59] While the Fundamental Law is named a ‘historical constitution’ what it actually does is ‘keeps silent on sensitive issues while being explicit about matters they considered to be essential for the shaping of citizens’ identity.’[60] Antagonizing the memory of the communist regime without critical assessment and an open public debate does not bring Hungary closer to finally coming to terms with its recent totalitarian past. In fact, instead it misuses the historical narrative for political reasons, namely the legitimation of the illiberal state.
[1] All translations from Hungarian are those of the author.
Péter Apor, ‘Hitelesség és Hitetlenség: Emlékezet, Történelem és Közelmúlt-Feldolgozás Kelet-Közép Európában’ (Authenticity and Scepticism: Memory, History and Coming to Terms with the Recent Past in East-Central Europe) [2010] Korall 159.
[2] Ibid. 159.
[3] The best example of a post-transition Hungarian memory law is the criminal ban on the public display of totalitarian symbols (Article 269/B of the Hungarian Criminal Code)
Nevertheless, there is significant difficulty on what memory laws are and what qualifies as a memory law. For more information on memory laws see: Uladzislau Belavusau, ‘Memory Laws and Freedom of Speech: Governance of History in European Law’ in András Koltay (ed), Comparative Perspectives on the Fundamental Freedom of Expression (Wolters Kluwer, 2015). and
Aleksandra Gliszczyńska-Grabias, ‘Memory Laws or Memory Loss? Europe in Search of Its Historical Identity through the National and International Law’ [2014] Polish Yearbook of International Law 161.
[4] Attila Ágh, ‘Cultural War and Reinventing the Past in Poland and Hungary: The Politics of Historical Memory in East–Central Europe’ (2016) 45 Polish Political Science Yearbook 32.
[5] Theodor Adorno, ‘What Does Coming to Terms with the Past Mean?’ (1986) Bitburg in moral and political perspective 117.
[6] Douglas Kellner and Jürgen Habermas, The New Conservatism: Cultural Criticism and the Historian’s Debate (MIT Press 1992). 234.
[7] Ibid.
[8] Coming to terms with the memory of World War II and the Holocaust is also controversial in Hungary. See for example: Raz Segal, ‘Beyond Holocaust Studies: Rethinking the Holocaust in Hungary’ (2014) 16 Journal of Genocide Research 1. and
Krisztián Ungváry, ’ Krisztián Ungváry. “Ungarn: Erinnerungskultur und Politische Konflikte”. 3-4 (2013) Südosteuropa Mitteilungen 180.
[9] Speech of Viktor Orbán at Tusványos, 28 July 2014: https://mno.hu/belfold/orban-viktor-teljes-beszede-1239645 (in Hungarian)
English translation: https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/
[10] Ibid.
[11] Renáta Uitz, ‘Can You Tell When an Illiberal Democracy Is in the Making? An Appeal to Comparative Constitutional Scholarship from Hungary’ (2015) 13 International Journal of Constitutional Law 279.
More on Europe’s rule of law crisis: Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, 2014).
[12] Attila Ágh, ‘Cultural War and Reinventing the Past in Poland and Hungary: The Politics of Historical Memory in East–Central Europe’ (2016) 45 Polish Political Science Yearbook 32.
[13] Ibid.
This view is further inspired by the analysis of Tzvetan Todorov on the use and abuse of memory. Todorov mainly concentrates on totalitarian dictatorships and their politics of memory, however his idea on the subjectivity and interest-based construction of historical memories is relevant here.
See: Tzvetan Todorov, ‘The Uses and Abuses of Memory’ In Howard Marchitello (ed.), What Happens to History: The Renewal of Ethics in Contemporary Thought (Routledge, 2001) 11.
[14] Fidesz has actually already held power between 1998-2002, however, the party did not have a two-third majority in parliament and therefore could not execute constitutional-level changes.
[15] Istvan Pogany, “Constitutional Reform in Central and Eastern Europe: Hungary’s Transition to Democracy,” International and Comparative 42 (1993): 334.
[16] Writing on the eve of the transition in 1989, Timothy Garton Ash referred to the process as a ‘refolution’, a mix of a reform and a revolution
Timothy Garton Ash, “Refolution in Hungary and Poland,” The New York Review of Books 36 (1989): 9 (7)
[17] Lavinia Stan, “Goulash Justice for Goulash Communism? Explaining Transitional Justice in Hungary,” Studia Politica. Romanian Political Science Review 2 (2007): 270.
[18] Even among them, mostly mid-level officials were tried. The legality of such prosecutions have been challenged before the European Court of Human Rights, see: Korbély v Hungary, 9174/02, 2008.
The far-right wing Jobbik party was the only political force which has constantly been pushing for the retaliation of communist crimes.
[19] Due to lack of proper lustration, most documents about the communist regime in Hungary (especially those concerning the Secret Service) are classified. Problems with access to these sources reached the ECtHR in Kenedi v. Hungary, 31475/05, 2009.
[20] 1989. évi XXXI. törvény az Alkotmány módosításáról (Act on Amendments to the Constitution)
[21] Istvan Pogany, “Constitutional Reform in Central and Eastern Europe: Hungary’s Transition to Democracy,” International and Comparative 42 (1993).
[22] Miklós Könczöl, ‘Dealing with the Past in and around the Fundamental Law in Hungary’ in Uladzislau Belavusau and Alexandra Gliszczyńska-Grabias, Law and Memory: Addressing Historical Injustice by Legislation and Trials (forthcoming in October 2017, Cambridge University Press)
[23] The first politician to do so was Imre Pozsgay in an interview with Magyar Rádió (Radio of Hungary) on 28 January 1989)
[24] On the House of Terror see for example: Zsolt Horváth, ‘The Redistribution of the Memory of Socialism: Identity Formations of the “Survivors” in Hungary after 1989’ in Péter Apor and Oksana Sarkisova (eds), Past for the Eyes: East European Representations of Communism in Cinema and Museums after 1989 (Central European University Press 2013).
[25] 1993. évi XLV. törvény a Büntető Törvénykönyvről szóló 1978. évi IV. törvény módosításáról (1993 Act on Amendments of the 1978/IV Act on the Hungarian Criminal Code)
[26] 1978. évi IV. törvény a Büntető Törvénykönyvről szóló (Act on the Hungarian Criminal Code) Article 269/B
[27] 1993. évi XLV. törvény a Büntető Törvénykönyvről szóló 1978. évi IV. törvény módosításáról (1993 Act on Amendments of the 1978/IV Act on the Hungarian Criminal Code)
[28] Ibid. preamble
[29] Hedvig Turai, ‘Past Unmastered: Hot and Cold Memory in Hungary’ (2009) 23 Third Text 97.
[30] Ibid.
Such display of a similarly-positioned leader of a Nazi-like totalitarian regime would be unimaginable
[31] Alexandra Gliszczyńska-Grabias elaborates extensively on the double standard present in the European institutions (especially in the European Court of Human Rights). See for example: Aleksandra Gliszczyńska-Grabias, ‘Communism Equals or Versus Nazism? Europe’s Unwholesome Legacy in Strasbourg’ (2016) 30 East European Politics and Societies and Cultures 74. and
Aleksandra Gliszczyńska–Grabias and Grażyna Baranowska, ‘The European Court of Human Rights on Nazi and Soviet Past in Central and Eastern Europe’ [2016] Polish Political Science Yearbook 117.
[32] 2010. évi XXXVI. törvény a Büntető Törvénykönyvről szóló 1978. évi IV. törvény módosításáról (2010/XXXVI Act on Amendments of the 1978/IV Act on the the Hungarian Criminal Code)
[33] 2010. évi LVI. Törvény a Büntető Törvénykönyvről szóló 1978. évi IV. törvény módosításáról (2010/LVI Act on Amendments of the 1978/IV Act on the the Hungarian Criminal Code)
[34] 16/2013. (VI. 20.) AB határozat (16/2013 Decision of the Hungarian Constitutional Court)
András Téglási argues that this decision has created ’a hierarchy with no flexibility in favor of human dignity’ and therefore is in direct conflict with earlier interpretations on the right to freedom of expression and its connection to dignity by the Hungarian Constitutional Court.
See: András Téglási, ‘Véleményszabadság vs . Emberi Méltóság – Egy Rejtélyes Alaptörvény-Módosítás Nyomában’ (Freedom of Expression vs. Human Dignity – Investigating a Mysterious Constitutional Amendment) (2015) 6 Acta Humana 25.
[35] On the process of the case (in Hungarian): http://www.origo.hu/itthon/20110127-vadat-emeltek-biszku-bela-ellen-a-kommunista-bunok-tagadasa-miatt.html
[36] A Fővárosi Ítélőtábla, mint másodfokú bíróság Budapesten, a 2015. év március hó 18., május hó 15. és június hó 01. napján megtartott nyilvános ülés alapján meghozott végzése(Judgment of 01 June 2015 of the Budapest-Capital Regional Court of Appeal)
[37] Fundamental Law of Hungary, National Avowal
It is also quite questionable whether Hungary has actually lost its self-determination on 19 March 1944, the day German forces occupied Hungary. Especially since governor, Miklós Horthy and the elected government stayed in power until the autumn of 1944.
See: Krisztián Ungváry, ‘Mesterterv? A Deportálások Döntési Mechanizmusa’ (‘Masterplan? The Decision Mechanism of Deportations’), 149 (2015) Századok 1.
[38] Horkay Hörcher Ferenc, ‘A Nemzeti Hitvallásról’ (Concerning the National Avowal) in András Jakab et al. (eds) Alkotmányozás Magyarországon és máshol (Constitution-making in Hungary and Elsewhere) (MTA TK Politikatudományi Intézet, 2012) 287.
[39] Ibid.
The nationalistic vision of the National Avowal quite compliments teh efforts towards the creation of an illiberal state.
[40] In actuality, the Hungarian word ’hitvallás’ has been used for example to describe the ’Augsburg Confession’, the summary of the evangelical theological views of Martin Luther And Philipp Melanchton
[41] For details see: https://www.neb.hu/hu/lengyel-magyar-egyuttmukodes
[42] Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation
[43] 2013. évi CCXLI. Törvény a Nemzeti Emlékezet Bizottságáról (Act 2013/CCXLI on the Committee of National Memory)
[44] Ibid.
[45] Unlike, for example, the Truth and Reconciliation Commission of South Africa.
[46] Opinion on the Fourth Amendment of the Fundamental Law, Adopted by the Venice Commission at its 95th Plenary Session (Venice, 14-15 June 2013) 8.
[47] 14/2000. (V. 12.) AB határozat (14/2000 decision of the Hungarian Constitutional Court)
[48] Ibid.
[49] Ibid.
[50] Ibid.
[51] Vajnai v. Hungary, 33629/06, 2008, paragraph 49.
[52] Ibid. paragraph 49. and 52.
[53] Ibid. paragraph 57.
[54] See: Fratanoló v. Hungary, 29459/10, 2011 and Noé, Vajnai and Bakó v. Hungary, 24515/09, 24539/09 and 24611/09, 2014.
[55] 4/2013. (II. 21.) AB határozat (4/2013 decision of the Hungarian Constitutional Court)
[56] T/14441 sz. Törvényjavaslat Az önkényuralmi jelképek kereskedelmi célú hasznosításának tilalmáról, valamint az ezzel összefüggő egyes törvények módosításáról (Proposition of law on the prohibition of the commercial use of totalitarian symbols)
[57] In actuality, the Hungarian government has been accused of tailoring the bill to Heineken as teh Dutch company had been involved in a legal battle with the Hungarian-Transylvanian brewer, Igazi Csiki Sör.
See (in Hungarian): https://444.hu/2017/03/13/lazar-es-semjen-olyan-torvenyt-nyujtott-be-ami-bortonnel-fenyegeti-a-heineken-forgalmazojat
[58] Case C-328/04 of 6 October 2005. The Court declined to comment due to lack of jurisdiction.
[59] Horkay Hörcher Ferenc, ‘A Nemzeti Hitvallásról’ (Concerning the National Avowal) in András Jakab et al. (eds) Alkotmányozás Magyarországon és máshol (Constitution-making in Hungary and Elsewhere) (MTA TK Politikatudományi Intézet, 2012) 305.
[60] Miklós Könczöl, ‘Dealing with the Past in and around the Fundamental Law in Hungary’ in Uladzislau Belavusau and Alexandra Gliszczyńska-Grabias Law and Memory: Addressing Historical Injustice by Legislation and Trials (forthcoming in October 2017, Cambridge University Press) 261.
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T/14441 sz. Törvényjavaslat Az önkényuralmi jelképek kereskedelmi célú hasznosításának tilalmáról, valamint az ezzel összefüggő egyes törvények módosításáról (Proposition of law on the prohibition of the commercial use of totalitarian symbols)
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