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Oct 14, 2020

Here are a few observations on the European Commission’s 2020 Rule of Law Report

Fair hearing, equal treatment, foreseeability, objectivity and impartiality are essential, but the Commission’s rule of law review cycle manifestly fails these criteria, according to the Ministry of Justice.

In what is referred to as a “non-paper,” Hungary’s Ministry of Justice has issued a detailed criticism of the European Commission’s 2020 Rule of Law Report.

What follows is the complete text:

Hungary is firmly committed to respect for the rule of law. The Fundamental Law and the State structure of Hungary are based on the rule of law. Rule of law is one of the values on which the European Union is founded and is part of the common constitutional heritage of Member States.

Regrettably, rule of law has been turned into a tool of political pressure by a number of initiatives in the European Union. The Commission’s 2020 Rule of Law Report is another example of this.Its concept and methodology is flawed, its sources are unbalanced and its content is unfounded. It cannot serve as a basis for any further discussion on rule of law in the European Union.

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Arbitrary scope and lack of clear reference points

According to the Checklist, there shall be legal safeguards against arbitrariness and abuse of power. The Commission’s approach does not conform to this principle. Firstly, the choice of topics is arbitrary and tendentious. There is no generally accepted definition of rule of law that may serve as the basis of a comprehensive review. The Checklist might be regarded as guidance for assessment of the situation of rule of law. However, the Commission does not apply the Checklist consistently and in its entirety: On the one hand, it reduces; on the other hand, it extends its scope.

Media pluralism, for example – as opposed to media freedom – is clearly not a rule of law issue. On the other hand, protection of the rights of ethnic and national minorities or the national frameworks addressing anti-Semitism are notably absent. Corruption appears in the report, but the text remains silent on money laundering, where systemic institutional failures have been recently exposed in some Member States, including Denmark and Sweden.

The report on Belgium mentions the so-called Comité P, an external body with authority for police oversight. However, the report fails to mention that the Chovanec case, where a Slovak national died because of police brutality, has been investigated by Comité P for two years now without any tangible results. Interestingly, the Commission does not consider this to be an issue related to rule of law.

There is no justification offered as to why the Commission selected or omitted topics for assessment. Such tendentious interpretation of the rule of law results in a focus on a few pre-determined Member States that have been chosen for political reasons.

While the Commission stresses that the evaluation is based on well-established European standards, in several cases, it is at least questionable whether there are any such standards (e.g., “transparent allocation of state advertising” or “public information campaigns”). In other fields, Member State solutions are highly divergent (e.g., independent prosecution service or subordinated to the Ministry of Justice; existence of constitutional courts; judicial self-government or court management by ministries or authorities).

Tendentious use of sources and weak methodology

Since the Commission does not have the resources or the expertise to maintain its own monitoring system, its report is based mostly on external sources. Its reliability and objectivity, therefore, depend on the selection and quality of these sources, the selection of which, unfortunately, is non-transparent and biased.

During the course of this year, Hungary has provided the Commission with detailed analyses to assist with the preparation of the report. The Commission essentially disregarded our contribution. On the other hand, it refers extensively and repeatedly to certain civil society organisations (CSO) – in the case of Hungary, 14 sources from 12 CSOs to be exact. Of these, 13 sources come from 11 CSOs that have recently received financial support from the Open Society Foundations.

The result is a host of circular references. The very same CSOs are the preferred sources of reference of the Commission’s previous communications and sources of reference in reports by other international organisations that are also used as sources for the rule of law report. In fact, the report has been written by these CSOs, even the parts that seemingly come from other sources.

Even non-circular references to external reports are arbitrary. GRECO recommendations are referred to extensively in the case of Hungary in the context of judicial independence. However, no reference is made to the unimplemented GRECO recommendation addressed to the Netherlands on the exclusion of a parallel legislative mandate for active judges. The Hungarian chapter refers to the annual report of OLAF. This is not the case for Belgium. Otherwise, we might have learned that between 2014 and 2018, there were twice as many cases closed with recommendations concerning traditional own resources for Belgium than for Hungary. The Hungarian chapter also refers to the country-specific recommendations of the European Semester. This is not the case for Belgium, Denmark, Luxembourg and Sweden, even though all of those reports call for an effective enforcement of the anti-money laundering framework. The Media Pluralism Monitor – often quoted when it comes to Hungary – identifies high risk to the plurality of the media market in Finland. Of course, the Finnish chapter remains silent on the issue even though it admits that there are no specific rules governing transparency of media ownership.

The report disregards a number of sources that could have contributed to a more in-depth and nuanced analysis. For example, the report on the Netherlands does not refer to any surveys by the Netherlands Association of Journalists even though it was consulted in the course of horizontal meetings.

The report does not clarify how the Commission synthesized the findings. Was there a weight attached to each source; if yes, how were these calculated? Did the Commission filter circular references? How did contradictory findings influence the outcome? How did the Commission verify the neutrality and reliability of the comments obtained?

It is also unclear how and by what methods the Commission reached its conclusions as there are no defined indicators under the specific issues. As the Commission’s procedure lacks a transparent and objective methodology, it is inevitably inconsistent and biased. Therefore it does not comply with the rule of law requirement that there shall be legal safeguards against arbitrariness and abuse of power.

Double standards

The Commission claims that it evaluates all Member States based on uniform and objective criteria. Even if this was indeed the Commission’s aim, which is doubtful considering recent statements by Commission Vice President Jourová and Commissioner Reynders, the report is a manifest failure in this regard. The formal and substantial comparison of the country-specific chapters clearly demonstrates double standards.

The Commission questions the independence of the Hungarian prosecution service, even though the Prosecutor General is not subordinated to any other organ or official and may not be instructed. The Commission, however, does not find it a cause for concern that in certain Member States, the prosecution service may be instructed by the Ministry of Justice even in individual cases or that the Prosecutor General may be dismissed or suspended by the government.

Hungary and Belgium have received the same number of alerts on the Council of Europe’s platform to promote the protection of journalism in the period 2019-2020. The Commission’s interpretation: In Hungary, there is a “systemic obstruction” of independent media, while in the other country, intimidation is “relatively rare”.

The Report is basically silent on positive trends and solutions in Hungary. Hungary adopted a comprehensive anti-corruption strategy that the Commission fails to mention in the horizontal report while praising other Member States regardless of the fact that they have not yet adopted such a strategy. The Commission gives a detailed analysis of the alleged shortcomings of the Hungarian legislation on whistle-blower protection. Yet in the case of Belgium, where no such comprehensive regulation exists, it only makes a passing reference.

The Commission’s report does not treat similar situations equally. Thus, it does not comply with the rule of law requirements of equality before the law and non-discrimination.

Fair procedure

The Checklist also provides that equality of arms and right to be heard shall be guaranteed. The Commission modified the scope of the assessment during the course of preparation by including the measures related to COVID-19. This happened after the deadline for the submission of national inputs, limiting the possibility to explain the national measures.

The Commission modified the schedule as to when comments could be made to the draft reports from June-July to the end of August, thus substantially reducing the possibility that the comments could have a real impact on the content of the Report (with a view to the planned adoption of the Report in September). The input and the opinion of the Hungarian Government appear only sporadically in the Report; our comments relating to the methods and outcome of the assessment were largely neglected.

The Commission’s process did not ensure an exchange of arguments on an equal basis. Thus, it does not comply with the basic rule of law requirements related to fair hearing.

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Fair hearing, equal treatment, foreseeability, objectivity and impartiality are basic requirements of any mechanism based on the principle of rule of law.

The Commission’s rule of law review cycle manifestly fails these criteria.

Rule of law cannot be promoted with tools that do not comply with the basic elements of rule of law itself.