We call upon European decision-makers to investigate the root causes behind the Court’s persistent indifference towards grievous violations of European values.
The Hungarian government has reshaped the election framework over the last 12 years with the aim to provide an undue advantage for the ruling Fidesz party. In 2014 and 2018 the members of the OSCE/ODIHR Election Observation Missions observed various violations to the right to free elections, including gerrymandering.
Gerrymandering has had a great impact on the results of the Hungarian parliamentary elections in 2022 as well. According to the numbers of the National Election Office, approximately 1,000,000 voters were affected by unequal constituency boundaries. This is approximately 12% of all registered voters.
The Venice Commission’s Code of Good Practice in Electoral Matters clearly states that gerrymandering is a violation of the right to free elections, which requires single-member constituencies to have an equal number of voters. The maximum admissible departure in the size of the constituencies should seldom exceed 10% and never 15% (see section 15 of CDL-STD(2003)034).
The maximum admissible departure from the distribution criterion adopted depends on the individual situation, although it should seldom exceed 10% and never 15%,
Code of Good Practice in Electoral Matters – Guidelines and Explanatory Report – Science and technique of democracy, No. 34 (2003) CDL-STD(2003)034-e
The NGO “Hungary Free and Fair” has supported a Hungarian voter in presenting a case to the courts built precisely on this argument. It has been foreseeable since November 2020 that during the parliamentary elections of 2022 the number of voters in twelve single-member constituencies deviate by more than 15% from the national arithmetic mean of voters in single-member constituencies. This deviation should have caused the annulment of the current election result.
The court proceeding started in February 2021 with a constitutional complaint at the Hungarian Constitutional Court, and it was escalated to the European Court of Human Rights in November after the Hungarian Constitutional Court had refused to provide legal remedy.
The European Court of Human Rights delivered its decision in February 2022. Surprisingly the ECHR has refused legal remedy too. In the Court’s view, the allegedly breached right is “outside the range of rights and freedoms guaranteed by the Convention or the Protocols thereto“.
The Court’s decision is a huge blow to the efforts of civil society to fight for multiparty democracy and free elections. Gerrymandering affects the right to free elections because it violates the requirement of equal representation. Therefore, the question of constituency boundaries falls clearly within the range of rights and freedoms guaranteed by the Convention and the Protocols. The Court, moreover, has delivered various decisions over the past years in connection with constituency boundaries.
It is absolutely unclear as to why Judge Gilberto Felici failed to recognize the application’s connection to Article 3 Protocol 1 of the Convention, and it is also unclear why he ignored the Venice Commission’s guidelines on electoral matters.
We are very much concerned by the increasing number of decisions in which the European Court of Human Rights overlooks grievous violations of European values. The Court, for example, has refused to provide protection for Hungarian consumer debtors against retroactive legislation (see nos. 27514/15 and 13876/16 (BÁRDI and VIDOVICS against Hungary)).
Since 2010 the Hungarian government has acquired considerable influence over the judicial appointment process. As a result, the Hungarian Constitutional Court and the regular courts are filled with acquiescent jurists who are willing to pervert the course of justice in order to protect the government’s interests. In view of this situation it is of extraordinary importance that the ECHR handles applications from Hungary with a high degree of due diligence, because the ECHR is currently the only legal forum where Hungarian citizens can hope for effective legal remedy against Mr Orbán’s authoritarian government.
As long as the Court fails to change its legal practice, it is enabling Mr Orbán’s chokehold on civil society.
We call upon European decision-makers to investigate the root causes behind the Court’s persistent indifference towards grievous violations of European values.
Please download the PDF copies of the application and the decision in PINT v. HUNGARY no. 55537/21 for your information.
ANNEX
List of single-member constituencies and their deviation from the national arithmetic mean of voters
ENDS
Hungary Free and Fair 