COMMON EUROPEAN STANDARD? HUNGARY’S (NON-)COMPLIANCE WITH THE RULINGS OF THE EUROPEAN COURT OF HUMAN RIGHTS

Resumo

Over the past few years, Europe has experienced an alarming trend of backsliding on fundamental European values reflected in various regional treaties, most notably the European Convention on Human Rights. Beyond non-compliance with treaty obligations per se, another dangerous trend is the non-implementation of judgments of regional (human rights) tribunals. Several Central and Eastern European countries, including Hungary, have a very serious non-implementation problem not only in relation to the judgments of the European Court of Human Rights but also to the rule-of-law related rulings of the Court of Justice of the European Union. This growing resistance displayed against the judgments of the two Courts has become systemic in various countries, threatening the foundation of a common European standard. Against this backdrop, the objective of this contribution is to critically assess the trends of outright refusal of, and symbolic compliance with Court rulings prevalent in Hungary; to identify the reasons of this behaviour; and to formulate suggestions as to the measures to be taken in order to strengthen action by the European bodies. The structure of this contribution is as follows. First, it identifies the unimplemented leading cases concerning Hungary, based on data retrieved from the Hudoc database of the Council of Europe. The term “leading case” is used to describe cases that arise from a structural or systemic problem. Second, analysis of the Court’s jurisprudence concerning Hungary will serve to identify the main structural problems of the contemporary Hungarian legal order. Third, put in a wider European context, the contribution also provides insight into the rule-of-law related cases before the Court of Justice of the European Union, most of them being infringement cases initiated by the European Commission, while some of them are raised by national actors through the preliminary reference procedure. In the conclusions section, it is argued that the Council of Europe, and the Committee of Ministers should step up efforts to secure implementation. In fact, a project was adopted with the aim of reducing the backlog of outstanding unexecuted leading judgments. It remains to be seen whether this effort yields results. In the case of the EU, the toolbox is more divergent, ranging from softer measures (promotion, prevention) to response (enforcement at EU level when national mechanisms falter), with the potential of securing a higher level of respect. Although the EU can boast of a stronger enforcement mechanism, also providing for financial penalties, it has so far shown reluctance to actually put them into practice against the main violators. It is argued that European organisations should not be afraid to use the tools at their disposal to take decisive action against States that try to evade their treaty obligations by creating the appearance of norm-conform behaviour without actually giving up their original goals.