Rights Revolution and Counter-Revolution: Democratic Backsliding and Human Rights in Hungary

Abstract

Abstract The Article discusses the democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country, a Member State of the European Union. The main argument of the Article is that paradoxically the non-legitimate 1989 constitution provided full-fledged protection of fundamental rights, while the procedurally legitimate 2011 constitution-making resulted in curtailment of rights and their constitutional guarantees. The Article first describes the democratic transition that occurred in 1989–1990 as a rights revolution and the results of the 2011 “illiberal” constitution, called Fundamental Law, as counter-revolution. The second part of the Article illustrates the constitutional and statutory regulation of human rights protection after this “rule of law revolution,” and the activist jurisprudence of the first Constitutional Court using the concept of an “invisible constitution” to protect human rights. The third part discusses the rights provisions of the new Fundamental Law and several statutes dismantling the guarantees of human rights, with special attention to the decreased possibilities of state institutions, such as the Constitutional Court, the ordinary judiciary and ombudsmen, as well as civil society organizations to effectively protect fundamental rights. The fourth part assesses the efforts of European institutions to force the Hungarian government to comply with the human rights standards laid down in the European Convention of Human Rights and in the Treaty of the European Union. The Article concludes that neither internal nor external challenges could prevent the development of a new authoritarian regime with no guaranteed human rights.