In the latest RevDem Rule of Law podcast Oliver Garner discusses the work of the Hungarian Helsinki Committee. András Kádár is an attorney at law and co-chair of the Committee. Amongst other engagements and positions he is the Hungarian member of the European Network of Legal Experts in the Non-Discrimination field. Márta Pardavi is the other co-chair of the Committee and she also co-leads the Recharging Advocacy for Rights in Europe (RARE) program. Previously, she has been a policy leader fellow at the EUI School of Transnational Governance in Florence.

Oliver Garner: Could you provide some information to our listeners on the work of the Hungarian Helsinki Committee and the experience of acting as a civil society organization promoting democracy and Rule of Law during the Orbán regime?

Márta Pardavi: Many people think the Hungarian Helsinki Committee belongs to an international network of human rights organizations, and in fact this is true but not in the formal sense. The Helsinki Committee in Hungary, as all the other Helsinki organizations around Europe, are all independent national civil society organizations.  Our organization grew out of the 1980s and the group of political dissidents who founded it. When it became a formal organization in 1989 it was one of the first that was registered in Hungary. At the time, not having a law on associations meant that its status was actually registered as a ‘political organization’. This is of course, almost historical. Since the mid-1990s, the Helsinki Committee has been one of the biggest Hungarian human rights organizations.  It has been providing legal assistance and doing strategic litigation in Hungary and in human rights courts in Europe and even globally. We have been doing a lot of monitoring, advocacy, and research. Traditionally, the first two fields of our involvement were refugee protection and looking at how law enforcement and criminal justice live up to their human rights standards. Since 2010, however, an additional field of our focus has developed, which is focused on the Rule of Law, the civil society space, and the idea that there should be checks and balances in the Hungarian constitutional framework.

András Kádár: I think that it was a very important realization that there was a certain degree of naivety or optimism in the period between 1994 and 2010 when we had a rule of law system that was not optimal nor ideal but fundamentally functioning with institutions that made it possible for us to provide rights protection in our fields. And so we took the ‘end of history’ optimism for granted, that the institutional and cultural democratic infrastructure was there, and within that infrastructure we provided assistance and we tried to improve the situation for our specific target groups.

Only after 2010, when this incremental but very conscious process of democratic backsliding started did we realize along with a lot of NGO partners and a lot of politicians, that what we had been taking for granted is something that we have to protect very adamantly.

This is rights protection, the infrastructure of checks and balances, and the rule of law culture itself. The backsliding also resulted in a change in our focus in terms of activities.  Before then we focused more on the legal parts, and while we still do a lot of litigation, we realized that when we talk about the fundamental framework and structure we have to put more emphasis on communication – making our constituents, and even our adversaries, understand why all these values that might seem so abstract at first sight are so important. So there was a lot of improvement in our communications activities – advocacy came to the forefront, especially international advocacy, because when your possibilities within the borders of the country are reduced, you have to start looking for alternatives. International opinion and EU institutions come in handy in such situations when, within the borders, your rights protection possibilities are reduced. So there was a shift in both the topics we addressed and the tools that we have been using.

It’s fascinating to hear about that shift, and I think those are lessons that would stretch beyond Hungary and to other countries in Europe and beyond.

You mentioned in your answer, Márta, that there is a conception that the Committee is part of an international body and you mentioned some of the history. I think that some of our listeners may be wondering why the name is the “Helsinki” Committee.  I understand this has some special significance regarding the history of human rights in the Soviet bloc during the Cold War, so could you explain a little bit of this history to our listeners?

Márta Pardavi: Yes, this is definitely something that I think is super relevant today. It is very interesting, not only for history, but for the present day too. But still, for the general public the Helsinki final act, that inspired not only the Organization for Security and Cooperation in Europe (OSCE) to spring into life, but also a very vibrant civil society network, is not so well known. Quite often Hungarians who call our office asking for help or legal assistance think that we have some connection to the Finnish capital, that we speak Finnish, or that our head office is in Finland.  This is quite amusing.

But the origins of both the civil society movement and the whole Helsinki process are very serious and they spring from the mid-1970s when, at the height of the Cold War, the opposing blocs sat down and agreed on some maybe trivial and some very fundamental principles of dialogue.  A big batch of these principles concerned what was then called the human dimension, but I would call it human rights.

So human rights and democracy, and democratic institutions, and the international agreements that were brokered by the Helsinki final act actually inspired citizens in the Soviet bloc to take these rights that their governments had signed on to for real and to start using them.

Then the Moscow Helsinki Group, a very courageous group of mostly natural scientists, was born. After their activities reporting on human rights violations and political repression in Russia, they faced very severe sanctions and many of them had to leave the Soviet Union, their home, and went into exile. Others were imprisoned. Still, their courage inspired many citizens around the world. Political dissidents in the Eastern bloc and citizens in Western European countries continued to receive information from human rights dissidents, and would convey it to their own national governments, raising the issue of human rights dissidents and political repression with their foreign ministries, and lobbying them so that they would then bring it back to the counterpart governments in the Helsinki dialogue process.

The idea that human rights are not an internal matter, but instead that they are an international matter, and citizens should care about what is going on in other countries, and we have a right and a responsibility to uphold the human rights framework across borders is very connected to the Helsinki civil society movement.

Helsinki Watch was born out of this movement and so were quite strong organizations mostly in Northern Europe. They all still exist today, and we cooperate with them closely. In the meantime, Helsinki Watch broadened its geographic remit. It is called Human Rights Watch now, and it is a much bigger organization than the 40 plus colleagues we have here in Budapest, but it is still very much based on the same idea.

The period that András talked about, which was perhaps a short promising period of gradual development of human rights in Hungary, was very much based on the idea that we should have dialogue, not just transnationally, but also with local authorities. So much of our work was very much focused on reporting human rights issues and making suggestions for improvements to the Hungarian authorities. For a very long time from the mid-1990s until 2017, we had access to closed institutions such as prisons, police jails, and immigration detention centers, where we were allowed to go in and then make recommendations to the relevant authorities. Of course, many times they did not take up these recommendations, but we did have an opportunity for this kind of dialogue, which over time became something that was accepted as part of working with civil society, and as a very important part of democracy.  Then, in 2017, all these really important and sometimes pioneering agreements that we had with law enforcement agencies were terminated for political reasons.  Today, in 2023, I think the idea of the Helsinki process is perhaps more understandable as we see many of the characteristics of the mid-1970s coming back.

András Kádár: I think that there is an important strategic lesson that we can draw from that period. The basic concept behind the Moscow Helsinki Group’s activities was that, if the Soviet Union signed up for certain values, then we should actually act as if these values could be demanded from the government. Obviously, the risks that we are facing are nothing compared to what they were facing at the time, but to some extent our strategies are rooted in that approach. So, if Hungary has signed up for the Geneva Convention on Refugees, then it is our role, task, and right to call upon the Hungarian government to actually comply with those obligations. We are saying let’s pretend that we live in a country that respects the obligations it undertakes. I think it is a viable and important strategy for us still today. In that regard we are carrying on with those activities.

András, you mentioned there that the risks are very different today than they were during the Cold War. But we do, of course, have a situation in which Russia’s aggression in Ukraine means that this dialogue, that was the goal between West and East, is probably in a worse state today than it was in the 1970s. On the topic of the war in Ukraine, the CEU Democracy Institute has recently published a Working Paper by Bálint Madlovics and Bálint Magyar that makes the argument that Viktor Orbán has tried to maintain Hungary’s pivot role between the West and Russia despite the war in Ukraine. In your work with the Committee, have you seen any government policies that would support this argument? For example, have you seen a lack of support within Hungary for Ukrainian refugees?

Márta Pardavi: Hungary is infamous for its very hostile policies on migration, excluding refugees, and even excluding access to international protection, both in the physical sense of erecting fences and violent pushbacks at the borders, but also in the legal sense of making it basically impossible even to apply for asylum within the country.

So when Russia invaded Ukraine on February 24 2022 we were very worried that this anti-migration policy, which has been such a stable hallmark of the Orbán government since 2015, might apply to refugees fleeing Ukraine.  We were very happy to see that it did not.

I think that the Hungarian government should be given credit for opening its borders in the very first days and allowing basically every Ukrainian refugee to come in, and also for providing a fast legal response by giving temporary protection to people who were fleeing Ukraine. This is very important, but then there are many other aspects to providing actually effective protection to refugees. The dual system is still very much in place; if you are fleeing the conflict in Ukraine, most individuals will not have issues coming into Hungary, but after that moment I think that refugees face a lot of obstacles. For people who are not fleeing that conflict, there is no way into Hungary and there is no way to access protection.  For those who are fleeing the war in Ukraine, what we’ve seen is that the Hungarian government, compared to those in the Central European region, could have put a lot more effort into making it a smoother process to access protection over time. 

In the first few days this was an absolutely unexpected emergency, so we did not have the same level of expectation on day one of this refugee crisis than on day 30, or in the fourth or fifth month.  And while other EU Member States in the region were trying to find ways to receive the refugees with a very warm welcome by citizens and by authorities, the Hungarian citizens really did a great job that was very visible and very tangible. But the Hungarian authorities did not do a great job, and could not come up with smooth application processes or translators, and could not make the legal opportunities easily and effectively accessible in practice. Of course, these practical issues or obstacles were coupled with the very distinct position of the Hungarian government vis-à-vis Russia.  I think that this has led to a lot of refugees from Ukraine moving on to other countries. The number of people who stay in Hungary and enjoy temporary protection – the legal status that was opened for refugees from Ukraine – is about 30,000 people, which is far less than most of the Central Europeans countries, such as Czechia, where there is a much higher number of refugees.

Now that the initial opportunities for Hungarian volunteers to assist have been almost closed down, and the institutional state approach has taken over the reception system, refugees are pretty much invisible in Hungary. So the sense of solidarity and public support is also at a much lower level. There are big charity organizations which have been receiving a lot of public funds, including European Union funds and international support, but also Hungarian government funding, to take care of the refugees in terms of reception and shelter, but many of these services are very uneven. At the same time, I think that the idea that we have refugees from the war next door, and we have a moral and legal responsibility to welcome them and to make them feel safe, is very much absent from the government’s narrative, and from the social narrative too. Our office in Budapest has Ukrainian flags draped on its balconies, but otherwise if you walk around town you hardly see any flags expressing solidarity with Ukraine. I think that this is very much reflected in the government’s refugee policy too. It is a little bit “out of sight, out of mind”.

András Kádár: To give an example, if you are a Russian dissenter who fled to Ukraine before the war and then you flee to Hungary because of the war, you do not have the possibility to ask for asylum. You are not a Ukrainian citizen so this kind of temporary protection does not apply to you. You may want to apply for asylum, but this is something that you cannot do within Hungary. Because of the peculiarities of the Hungarian asylum system, you would be required to travel either to Kiev or to Belgrade to ask the Hungarian embassies there to allow you to re-enter Hungary so that you can submit an asylum application. I think no explanation is required for how bizarre and how absurd the system is. Also, if you are a third country national coming from Ukraine, you are not entitled to different forms of the limited help that is available for Ukrainian citizens. This kind of general hostility towards asylum seekers and the very conscious elimination of the integration system – the system of support – takes its toll in this particular situation.

The other thing that is worth mentioning is a kind of double-speak that we experience. The Hungarian government complies with its obligations under EU law as far as temporary protection is concerned. Also, to a relatively greater extent than not, Hungary votes with the majority as regards sanctions, although reluctantly. So, when you look at what the Hungarian government is doing from this strictly technical, procedural point of view, and then you look at what the Hungarian government is doing from the outside, it looks not very committed, but it looks OK.

But when you look at the communication of government mouthpiece media in Hungary then you see a completely different picture. Then you see Russian propaganda emanating from all these talking heads that are important supporters of the government.

It is well known and, I think, undoubtable fact that the pro-government media’s messages are actually written in political circles. If you look at the content of messaging for domestic purposes, you see a completely different picture and you see a lot of themes from Russian propaganda which might be part of the reason why you cannot see the flags, and why you see the willingness to help decreasing in Hungary. There is a kind of dual game that the Hungarian government is playing for the domestic and for the international audiences.

This is a very nuanced picture of the situation that I am sure will be incredibly informative for our listeners. It is clear from your answers that, as an organization, the Helsinki Committee is very well plugged into developments on the ground in Hungary. So could you provide an update for our audience, especially for those who may be more Brussels focused, on where exactly Hungary stands in relation to its compliance with the Rule of Law budget conditionality regulation and the milestones in order to access the Recovery and Resilience plan?

Márta Pardavi:  We would really like to give you a good answer, but very, very few people actually know. One of the interesting features of this whole process is that the negotiations are very much happening behind closed doors – there is very little transparency in the process.  I understand that this discretion is important to build up trust between the Hungarian government and the Commission, but it also means that much of the legislation on very fundamental issues relating to the rule of law is being negotiated with Commission officials rather than in public view. So it is hard to say where things stand.  The Hungarian Helsinki Committee is following this process extremely closely and we have provided a lot of information to the public, to Member States, to the Commission, and to anybody who is willing to listen and read our updates about the problems that the Rule of Law conditionality and the suspension of funds should address, our position on how these problems should be solved, and our analysis on the progress that is happening in Hungary.

What I can give you now as an update is that we were expecting a lot of legislative proposals to be submitted to the Hungarian Parliament, particularly focusing on the independence of the judiciary. There was a very big package of legal changes that was produced by the government, and it was available for public consultation. This was both a stipulation of the agreement of the milestones, but also something that was quite novel that has not happened a lot in the last few years in Hungary.  We commented on that, together with our NGO partners, and since then there has not been much public information about when this package will be submitted to parliament and what changes the government has perhaps taken up from our suggestions. So there is certainly a delay.

There is a lot of money being frozen and suspended – altogether it is about €30 billion. And it is clear, I think, that in the next few months Hungary probably will not see most of that money. If some amount does come to Hungary from the Commission, then that would mean that there was significant and real progress particularly on the independence of the judiciary.

But there are other milestones that require an anti-corruption system to be set up or improved. Much of what we have seen – and I am sure that András has a lot of details on this – suggests that the implementation of the milestones is half-hearted, and they will not make a huge dent in the illiberal structure. The changes that the milestones can bring are important, but they probably will not reverse the course that the Hungarian government is on. This is something that we have to accept. The EU toolbox is not going to fix all the problems: the conditionality regulation and the milestones relating to the recovery and resilience plan, and even the enabling horizontal conditions, are unable to cover the entire spectrum of all the human rights and fundamental constitutional democracy issues that arise in Hungary.

András Kádár: I think that it is important to see that what Márta mentions is half-hearted compliance. Basically, I think that there are two strategies that the government has been using. One is this kind of facade compliance – they are trying to comply with the requirements on paper in a way that disturbs the operation of the system as little as possible. A brief example is provided by what is happening with the Board of Trustees of the Public Trust Funds that run universities in Hungary. There are talks about politicians and government ministers having to go from these Boards. But we don’t hear anything about is what is happening to the rights and the prerogatives of these boards which now can have a very significant impact on the functioning of universities.  The problem is not only whether a minister can be on the Board or not, but whether a Board consisting of people appointed by the government could actually interfere with the freedom of academia, and the freedom of the university. I don’t want to go into further nuances, but basically we see this attitude of “let’s comply, but let’s comply in a way that doesn’t really interfere with how we operate the system”. 

The other thing which shows that there is no culture change is that, in areas which are not concerned with the milestones or other requirements, you see the very same way of operating. For instance, when it comes to curbing the teachers’ right to strike, and when it comes to cracking down on the Hungarian Medical Chamber, a law is passed in two days that changes their status while the discussions are still on. 

So, in those areas in which there is not a very specific requirement from the EU, you see the continuation of the same illiberal practices and the complete lack of respect for the fundamental values that characterize the Rule of Law state.

It is really valuable to hear the reality of perceived compliance in practice as a result of your local knowledge. You’ve reminded me that the last time I was in Budapest I saw protests by teachers, probably in relation to this curb of the right to strike that you mentioned. That is something that we do not see being reported as much with all the focus on EU issues.

For my final question, you are both lawyers by training who work in the civil society engagement sphere. Following the failure of the Péter Márki-Zay electoral bid last year to be Prime Minister, do you believe that the solution to Rule of Law backsliding can be found through legal adjudication at the national and the transnational level? Or do you think that the solution has to be found through political contestation? Is there perhaps a means of marrying these two different fields, especially with regard to upcoming elections such as in Poland this year?

András Kádár: Oh, I think that is a tough question and for us as lawyers it is pretty painful to see what has happened to the legal system.

The reason why I went into law was that I saw law as a means to even out the playing field when you have someone very powerful against someone who lacks that kind of power – the state against the individual.

This is also why I started to work for the Hungarian Helsinki Committee. I saw the law as the way to counterbalance this kind of power asymmetry. Because of the specificities of the Hungarian constitutional situation, namely that the governing party has a constitutional majority so they can change the constitution any time they want, it makes it very difficult to grasp the problems through legal means. Whenever you go and win a case in court, the government can change the legislation, or they can change the law while a court case is actually going on, which has happened regarding the teachers’ protests and strikes. From the formal point of view, it is very hard as a lawyer to grasp and fight this.

Another factor to take into account is the capture of the courts, which is an ongoing procedure. This is not as aggressive nor as conspicuously blatant as in Poland, but it is still going on and it has progressed. However, I do not think that we need to give up the legal route altogether. One reason is that we can take legal action outside the borders of the country. We can take cases to Strasbourg, and we can take cases before the Luxembourg Court of the European Union, although it is a bit more difficult to do so. So, in the legal arena, you still have this possibility of channelling politically sensitive cases outside of the Hungarian court system.

The other reason why I do not think that we should give up the legal response is because one of the key messages relating to the constitutional situation of the present government is that they do everything lawfully. They claim that, of course, no one is above the law, yet we can change the law if it is needed, but we are legally based. These arguments that the Hungarian government has been using are rooted in a valueless legalism. For that reason, legal losses really cut into the flesh of this system. They are more difficult to achieve than before, but sometimes these kind of losses undermine this argument that everything happens according to the laws. When you look at those laws through the lens of international human rights norms, or other international values, then you can show that this might not be the case. However, I think it is very important, because of the same legalism and because of the same constitutional situation, to also focus on advocacy, communication, and the more political tools that are there for the friends of democracy. So, my basic conclusion is that we should not give up on the law just because we have a situation like this, but we really have to start using other tools as well.

Márta Pardavi:  To add to this, I think it is important to continue to use litigation and legal tools because these concerns about the Hungarian regime’s Rule of Law backsliding are not political concerns. This is not about ideological differences –  this is about the core values that the European Union must cherish and uphold because otherwise we lose trust among Member States, among citizens, among companies, and we lose trust in the European project. In this respect, it is extremely interesting to see how the Commission’s case against Hungary over the LGBTQI+ propaganda law will unfold, because it is the very first time that the European Commission is basing its claim explicitly on Article 2 of the Treaty on European Union by saying that the core European values are being infringed by the pervasive discriminatory nature of the Hungarian legislation.

This could advance the European project in a way that was perhaps unexpected even a few years ago, and without using legal tools and legal arguments, this would not happen.

Politics are, of course, very important and shape societies and the EU at perhaps a much faster rate than the legal approach. But we need to use the legal tools to underscore the idea that there is a very strong legal foundation to the European Union.  This applies no matter the Member State – it applies to the Hungarian government’s actions just as much as to any other EU Member States.

This transcript has been edited for length and clarity.

In collaboration with Karen Culver.