On 15 November 2024, the Hungarian Constitutional Court published its decision (not yet available in English) rejecting the constitutional complaint brought by Transparency International Hungary against the Sovereignty Protection Office (hereinafter “the SPO“). The petitioner argued that the functioning of the SPO was unconstitutional because its activities violated four fundamental rights, including freedom of expression, due process (fair trial), effective remedy, and fair administrative procedure. The Constitutional Court dismissed the petition, but the decision contains interesting findings that may affect the legislator’s future regulation of the SPO.

The Decision of the Hungarian Constitutional Court

The Constitutional Court has ruled based on a constitutional complaint lodged by the Transparency International Hungary Foundation. In the decision, the Constitutional Court began a long discussion on the complex interpretation of the concept of sovereignty, why it is essential to protect sovereignty and ‘which sovereignty’ the new office is supposed to protect. Special emphasis was also placed on the protection of constitutional identity and its relationship to sovereignty.

The petition of Transparency International was rejected, stating that the fundamental rights it identified were not in fact violated.

• As regards the violation of the right to an effective remedy and the right to a fair trial, Transparency International complained that there is no remedy against the investigative procedure conducted by the Office, even though the Office is not bound by any procedural rules and should therefore be able to ensure an adequate and effective remedy against potential violations.
• As regards the infringement of the right to freedom of expression, the applicant submits that the Protection of National Sovereignty Act restricts the applicant’s right to express its views on any social or political matter as an independent organisation, since its views criticising public authority may be considered by the Office as having an impact on the outcome of the elections, and the Office may therefore at any time initiate proceedings against the applicant, even as a form of retaliation.

First of all, the Court held that the Office is not a public authority in the legal sense and that its action does not therefore infringe the fundamental right to a fair hearing by a public authority. Taking also into account that the Office has no power to impose sanctions and that the report published by the Office has no legal consequences, the fact that there is no legal remedy against that report and that no administrative action may be brought on the basis of the Office’s action does not infringe the right to a remedy. Very importantly, however, the Court stressed that the content of the report can be appealed on points of law in civil proceedings for violation of personality rights, such as defamation or reputational damage. 

As for freedom of expression, the Court stated that according to its practice the unconstitutionality of a norm in relation to freedom of expression or freedom of the press can be established beyond doubt if it criminalises or penalises the exercise of this fundamental right. However, in relation to the expression of opinion, no such legal consequence has been provided for in the Office’s procedural rules. Therefore, the Office does not infringe freedom of expression.

In my view, the Court’s decision was mostly right considering the fact that, in the absence of any sanction that the Office can impose under the law, there is no actual infringement of the fundamental rights that may be invoked. Taking also into account that the SPO does not actually issue administrative acts, it is understandable why it does not qualify as a public authority (in the sense of administrative law) either. According to the National Sovereignty Protection Act, the SPO is an autonomous state administration organ which carries out analytical, assessment, proposal-making and investigative activities. The problem is that, although the SPO is not a public authority, it can still carry out investigative action without having to comply with the guarantee rules applicable to public authorities. True, even if it does not have to comply with these principles, the report issued by the SPO is not an administrative act, and can be challenged in civil proceedings.

However, there are questions that arose which have not been answered by the Court and which have been criticised by two of the dissenting justices.

At the heart of the dissenting opinions is the question of why the Office does not qualify as an “public authority” and therefore why the constitutional requirements of due process do not apply to it, despite the fact that “it can be established that the legal rules governing the Office’s procedure lack provisions of a guarantee nature which should be included in the Protection of National Sovereignty Act because the SPO, by virtue of its public powers, investigates individual cases and performs acts of an evidentiary nature in which the persons concerned are obliged to cooperate. They must be afforded the protection of fundamental procedural rights. This is a function of the right to a fair hearing.” [168]

The dissenters agree that the complaint had to be dismissed because it was unfounded but maintain that the Office’s procedure should be supplemented by safeguards. The approach should not be based on whether the Office is or is not an administrative authority, but, since it is established by law and its activities affect natural or legal persons, it should provide them with adequate safeguards to enforce their rights in the course of the Office’s proceedings.

Despite the unanimous rejection, the dissents argued that the Sovereignty Protection Office did not have specific procedural rules set for it under the law. In my opinion, this finding will affect the future regulation of the SPO, and the Hungarian National Assembly may amend the law.

Comments on the importance of the Decision

One may well wonder why exactly this Constitutional Court decision is important. As is well known, the SPO was created to prevent foreign influence in the elections that took place in 2022, as also mentioned in the establishing piece of legislation, the Protection of National Sovereignty Act. After the law was passed, it was met with a huge backlash in political communication from the opposition concerning the government creating an authority that was actually harassing NGOs and the free press. The Constitutional Court’s decision clarifies that these allegations lack legal merit mostly because the authority does not have any powers that could render the operation of press or civil society organisations to operate in Hungary.

It is undoubtedly a fact that the law was adopted very quickly and therefore has a number of shortcomings, to which the Venice Commission has already drawn the attention of the Hungarian Government, but overall, the work of the Office is in reality similar to that of an information centre. Despite this character, I think it is certainly useful – in agreement with the two dissenters – to create additional procedural guarantees regarding the operation of the Office through amending the relevant legislation.

Such reforms should also extend to define the institutional character of the SPO. According to Hungarian administrative law, this office is an autonomous state-administrative body accountable to the Parliament and is bound by its Acts. The head of the Office is appointed by the President of Hungary upon the recommendation of the Prime Minister (as would be the case for autonomous regulatory bodies – a different type of institution), but despite this, the work of the Office is independent of the Government. The SPO is subordinated only to law, shall not be instructed by another person or organ in the exercise of its functions. The Office makes its reports public and then sends them to the Government and the National Security Committee of Parliament. This sequence of events demonstrates that the Office is primarily there to inform the electorate and then the Executive and Legislative branches.

Under this rationale, the Office’s tasks should be divided into two groups. The first group is the analytical, evaluative, and proposing activities, whereby the Office operates like a think tank. It produces written materials to alert people to the dangers of foreign intervention in elections and influencing democratic processes. The second group is investigative activity, where it monitors organisations that carry out specific activities – such as advocacy, disinformation or influencing democratic debate – on behalf of a foreign person or organisation that could threaten Hungary’s sovereignty. In addition, it also investigates organisations that influence either the outcome of elections or the will of voters but do so to serve foreign interests.

As can be seen, the Sovereignty Protection Office is intended to protect the freedom of elections from foreign influence, while engaging in research regarding sovereignty. Although this protection is primarily provided by the national security agencies, a separate institution has been created for this purpose, which has been questioned by many in our country. In my opinion, the Office’s operation can also be justified by the fact that it can inform citizens about information that has already been filtered, since the Constitutional Protection Office is not allowed to publish its internal reports. And even if it did, they would not be credible anyway due to strict executive control over the activities of national security agencies and therefore lacking the type of autonomy that the Sovereignty Protection Office enjoys in this case.

Conclusions

In today’s globalised world, it is becoming less and less possible for a state to run its own affairs completely free from any external influence. While this can be explained by interdependence, external influences are now affecting the choices of the states concerned, which is a matter of concern. It is no coincidence that more and more states are asking how elections can be protected from foreign influence. The Hungarian law on the protection of sovereignty, although it has several shortcomings, could be a good answer to the question of how to counter foreign influence. But as identified, there is room to improve it based on other solutions applied in different countries such as the United Kingdom and Singapore. We hope to engage some interested parties in this conversation about how to develop protections for national sovereignty.

Gergely Kerkovits is a law graduate and PhD student of the Péter Pázmány Catholic University in Budapest. He is writing his doctoral dissertation on the relationship between civil society organisations and the state. His research focuses on freedom of association, sovereignty protection, public consultation, fundamental rights protection in international organisations. He is also a junior researcher of the MCC Public Law Center.