Requested by: Parliamentary Assembly, Monitoring Committee

Recommended Measures:
85. The Venice Commission would like to make the following key recommendations: a. As concerns the amendment to Article L paragraph (1) of the Fundamental Law (regarding marriage as the union of one man and one woman, and the addition that “The mother shall be a woman, the father shall be a man”), its compatibility with Article 8 of the ECHR (right to respect for private and family life) and Article 14 (prohibition of discrimination) taken in conjunction with Article 8 of the ECHR mainly depends on the fact whether the law of Hungary allows (1) for adoptions by unmarried opposite-sex couples or (2) for adoptions by single heterosexual parents. If this is not the case, no violation of the ECHR can be found, at least not regarding the current jurisprudence of the ECtHR. However, problems with a view to the prohibition of discrimination under the ECHR would arise, should Hungary in its family law allow for adoptions by single, albeit only heterosexual parents, or for adoptions by unmarried, albeit only opposite-sex couples. This constitutional amendment should not be used as an opportunity to withdraw existing laws on the protection of individuals who are not heterosexuals, or to amend these laws to their disadvantage. b. As concerns the prerogative of the Minister of Family Affairs to provide or refuse a consent for single persons adoptions, the Commission recommends that the interpretation and application of the constitutional amendments, especially in the drafting of the implementing legislation, should be carried out in a way that the principle of non-discrimination on all grounds, including on the basis of sexual orientation and gender identity, is thoroughly implemented. In order to do so, clear criteria should be established, limiting the discretionary power of the Minister. c. The amendment “Hungary shall protect the right of children to a self-identity corresponding to their sex at birth” should be repealed or modified to ensure that it does not have the effect of denying the rights of transgender people to legal recognition of their acquired gender identity. It also recommends that the system of birth registration and legal recognition of gender identity comply with the non-discrimination requirements of both international human rights law and applicable Hungarian non-discrimination norms, which are to be applied in a strict manner with regard in particular to the right of transgender people to legal recognition of their acquired gender identity and the complex situation of intersex children. d. The amendment “Hungary […] shall ensure an upbringing for [the children] that is in accordance with the values based on the constitutional identity and Christian culture of our country” may be considered consistent with European standards only if the constitutional principles and education laws are effectively implemented. In order to do that, the public-school system must provide an objective and pluralist curriculum, avoiding indoctrination and discrimination on all grounds, respecting parental convictions and their freedom to choose between religious and non-religious classes. e. Article 7 of the Ninth Amendments relating to Article 38 of the Constitution and introducing in the Fundamental Law the “public interest asset management foundations performing public duties” should be reconsidered; these foundations should rather be regulated by statutory law, clearly setting out all relevant duties of transparency and accountability for the management of their funds (public and private), as well as appropriate safeguards of independence for the composition and functioning of the board of trustees. These laws should take into account the significant role of universities as places of free thought and argumentation, providing for all due measures to guarantee the proper safeguard of academic independence and institutional autonomy. f. Articles 6 and 9, and 11 of the Ninth Amendment amending the Fundamental Law of Hungary relating to declarations of war, control of the Hungarian Defence Forces, and the “special legal order” that pertains to state of war, state of emergency and state of danger mainly leave the specification of most details to Cardinal Acts, which could eventually raise some serious questions regarding the scope of the powers of the State during states of exception. g. As concerns the abolition of the National Defence Council and the entrusting of its powers to the Government – which is less broadly representative – while it is not contrary as such to European standards it leads to a concentration of emergency powers in the hands of the executive which cannot be considered an encouraging sign, notably in the absence of any clarification in the explanatory memorandum for the ratio or the necessity of such modification.