The political campaign leading up to the recent Hungarian general elections was deeply flawed. One of the constitutionally suspicious steps of the party in power (Fidesz) was to blur the lines between the official communication of the Government (as a constitutional organ) and the campaign messages of Fidesz (as a candidate party). Unfortunately, none of the state institutions involved in the adjudication of the case could adequately address the constitutional issue.
Brief Summary of the Case
Whenever one was walking home, going to pilates, visiting her grandma or just walking the dog, she was likely to come across one of the huge billboards of Fidesz featuring Viktor Orbán’s charmingly smiling face together with a short message: “Hungary first”. Despite all the efforts of Fidesz to reassure the electorate of their patriotism, some opposition candidates had concerns regarding the lawfulness of such billboards. The case went all the way from the National Elections Commission, through the Kúria (Supreme Court) to the Constitutional Court, but none of these organs could find and adequately discuss the real constitutional issue relating to such unlawfulness.
The Momentum Movement Party filed a complaint with the National Elections Commission alleging the incompatibility of these billboards with some of the principles of democratic elections. First, it was argued that the principles of fair elections and of the exercise of rights in good faith were violated, because it was difficult for an ordinary citizen to ascertain if the billboards were part of the political campaign of Fidesz (as a candidate in the elections) or if they were elements of the Government’s official communication. The name of the political party was barely visible to the naked eye, and the design of these billboards very much resembled the visual features of previous official government communication. Secondly, Momentum claimed that the government abandoned its neutral position in the political campaign by allowing Fidesz to use the visual design of official government communication, which put the party in a more favorable position (compared to other candidates), thus violating the principle of equal opportunity.
The National Elections Commission did not appear to be convinced by the arguments, because it rejected the complaint. The Commission concluded that the person on the billboard (Viktor Orbán) was easily identifiable and it did not pose any serious difficulty either to determine which political party’s candidate he was. In addition, the billboard itself did not carry – either explicitly or implicitly – any message of the official government communication. Consequently, the commission found the complaint ill-founded.
The Kúria, in the revision procedure, arrived at a different conclusion and changed the decision of the Commission. The candidate and the party must be easily and specifically identifiable based on the billboard itself. This is the requirement flowing from the principles of fair elections and of the exercise of rights in good faith. The billboard in question did not meet this criterion, because the name of the candidate party and the publisher could barely be seen from a reasonable distance. In other words, the Kúria found an objective reason (letters / print that were too small) amounting to a violation of the law; therefore the judges did not find it necessary to continue their examination and to discuss the misleading character of the billboards and their compatibility with the principle of equal opportunity.
It certainly does not come as a surprise that Fidesz was not satisfied with the decision of the Kúria, so the party challenged the judgment before the Constitutional Court. Equally unsurprisingly, the Constitutional Court found the judicial decision by the Kuria unconstitutional for violating the petitioner’s freedom of expression. The essence of the reasoning of the Court is the following: as a general rule, during political campaigns, billboards can be placed everywhere freely. Any restrictions relating thereto can be found in an exhaustive and closed list in the act on the electoral procedure itself. The Kúria acted unconstitutionally when it found that a ‘further’ criterion stemmed from the statutory provisions on the general principles of the electoral process. This requirement of “prompt identifiability” does not figure in the exhaustive list of restrictions, therefore the interpretation of the supreme judges was overly restrictive which led to the violation of the petitioner’s freedom of the expression.
What is the Problem?
It seems that apart from the original petitioner itself (Momentum Party), nobody could really grasp the essence of the constitutional problem of this case. The real issue here is: whether it is unconstitutional to blur the lines between the official communication of the government and the political campaign messages of a candidate party, which can potentially put the latter in a more advantageous position compared to other candidates. To see more clearly the essence of this issue, it is worth taking a short look at the relevant jurisprudence of the German Federal Constitutional Court (FCC).
According to the interpretation of the FCC, the principle of free elections means that voters must be able to form and express their political opinion in a free and open process, in which political parties play a significant role. Consequently, on the one hand, state organs must never use their official position for influencing the formation of the popular will (especially in a political campaign); on the other hand, candidate parties must also enjoy equal opportunity to actively participate in the campaign. These requirements oblige the Government to remain as neutral as possible in its communication with the citizens. Of course, it is the duty of the Government to inform the public about its policies and questions of public interest, but its official communication must not reflect or side with the position of a candidate political party. The public easily associates the actions and opinion of the government with those of the party behind it. This public perception can strongly increase the candidate party’s chances in the political contest, which is incompatible with the principle of equal opportunity. In sum, the Government in power must not influence the political contest in the campaign in any way which implies the prohibition to identify themselves (explicitly or implicitly) with any candidate party. (For a recent and comprehensive overview see Thomas Kliegel’s article in the German Law Journal)
This is, of course, a very brief and necessarily superficial summary, but it highlights the point of the Hungarian case: the political messages of a candidate party (even if their politicians form the current cabinet) must be clearly distinguishable from the official communication of the Government. Even the minutest of impressions that the State may ‘side’ with the opinion of, or supports one of the candidates, must be avoided. In this election campaign, Fidesz and the Hungarian Government used the same slogan (“Hungary first”) and very similar visual designs during their communications to the public at large.
As was pointed out last year by Maximilian Steinbeis (in one of his previous articles), regarding the “Stop Brussels” campaign, Fidesz and the Hungarian Government have never refrained from blurring the lines between Government communication and party propaganda. In this instance, it is regrettable that none of the state organs involved in the adjudication of this case could grasp and adequately discuss the essence of the constitutional problem.