The rise to power of Victor Orbán’s right-wing populist coalition in 2010 has gradually transformed Hungary’s constitutional identity from a young liberal democracy to an increasingly illiberal state.Footnote 1 This shift first surfaced in domestic structural changes, where the government managed to institutionalise its illiberal values that now permeate the entire state apparatus, including the captured highest courts.Footnote 2 By embedding these values into a new Fundamental Law, the government carefully crafted Hungary’s identity around the state’s national history, particularly around the memory of injustices linked to foreign occupation.Footnote 3 In turn, scholars note that the state became dismissive of international authority as the representative of ‘Western liberal values’ that is often associated with the imagery of a foreign oppressor. This most notably surfaced in its attitude toward the EU and its Court of Justice, which became popular targets of the state’s criticism, followed by resistance to the rules they establish.Footnote 4 Surprisingly, however, the sporadic cases of criticism have never been as intense nor have they resonated as loudly in the government’s attitude toward the other European court, the European Court of Human Rights. Contrary to claims in the literature, Hungary has never directly confronted the institution in its dialogue, not even in cases that have not been (and simultaneously do not seem likely to be) successfully implemented.Footnote 5
Whilst one might ascribe this to the state’s indifference toward the subsidiarity-based Strasbourg Court, this does not seem to be the case. Quite the contrary – as evident from the Committee of Ministers’ official webpage, Hungary complies with 75% of its rulings and from a statistical perspective seems as ordinary a Council of Europe member as any.Footnote 6 In this respect, the new member states (i.e. those joining the Council after the 1990 expansion), like Hungary, on average comply with 75% of Court judgments.Footnote 7 Hungary consistently reports on planned remedial measures to the Committee of Ministers as the Court’s supervisory body, participates in its meetings and pays a very high percentage of just satisfaction awards.Footnote 8 Furthermore, the state regularly discusses the implementation of the Court’s judgments domestically.Footnote 9 In fact, the European Convention on Human Rights and the Court’s case law have been mentioned in parliament four times more often after 2010 than in the previous era, with such references coming from both the ruling and the opposition parties.Footnote 10
This, however, reveals only part of the story. If we exclude from Hungary’s compliance record alternative instruments, namely friendly settlements and unilateral declarations, since the incentive structure of the Strasbourg Court allows states to be largely (arguably even completely) in control of whether and when they are concluded, Hungary’s compliance rate drops to 67%.Footnote 11 Even more, if we focus merely on compliance with leading cases – the important precedent decisions that constitute the basis for remedial measures and are thus the focus of the Committee’s supervision – Hungary’s compliance record settles at a final 46%.Footnote 12 In this respect, interviews with domestic stakeholders reveal that since 2010 Hungary has rarely taken any substantive steps toward implementation, especially in high-profile and politically sensitive cases (cases relating to mega-politics identity questions),Footnote 13 and – what is more – it often simply copies and repeats its previously submitted measure reports, offering no actual developments.Footnote 14
There is an obvious dissonance between the international statistical image, suggesting a solid compliance rate and an honest effort to comply, and the domestic reality, where a significant share of important Court judgments remains unimplemented. Based on this, this paper reveals that rather than directly confronting the Court, Hungary in 2010 began employing subtler, but arguably equally harmful, strategies of non-compliance aimed at appeasing both international and domestic audiences.Footnote 15 This, I suggest, allows it to simultaneously keep its benefits from the EU membership that depend on (a certain degree of) European Court of Human Rights compliance and at the same time instil domestic legitimacyFootnote 16 into an illiberal regime by quietly resisting international authority. Such a sail between the proverbial Scylla and Charybdis (compliance and resistance) fuels Hungary’s endeavour to control the narrative of compliance, which, to avoid international and domestic political repercussions, the state deems to work better with a silent face-off and an effort to maintain an average compliance rate rather than overt pushback.
By deconstructing Hungary’s post-2010 strategies the paper seeks to, first, describe how the particular phenomenon of an illiberal shift fuelled the state’s unique attitude toward the Court, and second, understand why this came about. Relying on original data that involves several pieces of information on all 1,105 adverse Court rulings ever rendered against Hungary, the paper offers an empirical contribution to existing compliance theories, which, by observing state behaviour from a static lens, seem to be limited in explaining implications of identity shifts in recently emerged illiberal states. In particular, the Hungarian case shows a clear contrast between its previous liberal and post-2010 illiberal eras and allows for studying the effects of Hungary’s identity shift, facilitated by a more than 12-year long rule of the illiberal government. This offers exceptional hindsight into the precise effects of states’ illiberal shifts on their (non)compliance with international human rights courts’ rulings, uncovering also the potential reasons behind such behaviour. Understanding the process may offer insight for cases beyond Hungary, and – given that illiberalism seems to be on the rise worldwide – potentially even beyond Europe. Second, whilst the existing compliance literature deconstructs in detail the particular behaviour of European liberal democracies (the European West), it generalises the behaviour of illiberal states (stereotypically positioned in the marginalised European Central-East) and – as a default – considers them equally resistant to all international authority. Focusing on Hungary, the paper on the contrary unravels how particular circumstances shape unique strategies that such states pursue in different contexts. Third, and connected to this, the paper examines the concept of a subtle pushback against the Court, which due to its concealed nature is largely overlooked in typical backlash studies.
Before delving into the study, a few preliminary remarks are necessary. The paper borrows the basic assumption of international relations that state identity crucially shapes its behaviour.Footnote 17 To understand the notion of ‘identity’, the paper applies the approach of Doreen Lustig and Joseph Weiler, adopting its loose perception. Accordingly, it encompasses a state’s constitutional identity, which informs its political identity, its constitutional values and its approach to fundamental rights.Footnote 18 It also includes what Lustig and Weiler term ‘other additional “identitarian” aspects of the polity’ which involve the state’s national identity, formed by the nation’s collective and unique history and culture.Footnote 19 Furthermore, the paper focuses on secondary compliance, which – in contrast to the primary compliance with underlying international norms – studies states’ respect for the Court rulings addressing violations of such norms.Footnote 20 In this respect, I understand compliance as a formal closing of a case before the Committee of Ministers after the Court’s supervisory body is content with states’ reports on adopted remedial measures, submitted internationally. On the other hand, the study differentiates between compliance and implementation, namely an actual change in states’ behaviour following successful domestic incorporation of reported measures in their legal systems.Footnote 21 Accordingly, strategies of non-compliance addressed in this paper relate to evasive tactics of (illiberal) states to limit the impact of Court judgments,Footnote 22 pursued either in an international or a domestic setting, depending on the target audience. In this respect, the literature currently sees illiberal states as hybrid regimes between constitutional democracies and full autocracies.Footnote 23 The paper approaches their study and the study of their implications for human rights descriptively, thereby avoiding normative implications.Footnote 24
The paper proceeds as follows. By relying on my original dataset, I first deconstruct the three post-2010 strategies of Hungary’s non-compliance to describe precisely how it engages in controlling the narrative of its European Court of Human Rights compliance. Then, I investigate why Hungary pursues these strategies by applying rationalist and constructivist theories of state behaviour to Hungary’s specific circumstances. Finding that the two theories are static and thus fall short in explaining the implications of states’ (political) change, I build on the constructivist notion of state identity by complementing it with Doreen Lustig and Joseph Weiler’s notion of the third wave of constitutionalism, which I refer to – in Marlene Wind’s words – as an identitarian counterwave.Footnote 25 After this, I conclude.
The how: Hungary’s post-2010 strategies of non-compliance
In his study of states’ strategies of compliance with the European Court of Human Rights, Andreas von Staden finds that among today’s liberal democracies in Europe non-compliance with the Court’s judgments is politically non-viable and as such almost irreconcilable.Footnote 26 This limits states’ freedom of choice to deciding merely upon the extent to which each judgment is complied with. Courtney Hillebrecht in this respect notes that states face a ‘spectrum of compliance obligations’, which allows them to ‘pick and choose the parts of the rulings with which they want to comply’.Footnote 27 She emphasises that although it is rare for states to comply with judgments in their entirety, their tendency – as she further refers to Darren Hawkins and Wade Jacoby – is to comply at least partially.Footnote 28 Based on this, liberal democracies engage in rational calculations, aimed at minimising any domestic changes necessary to still bring about compliance, which underpins what von Staden terms as strategies of minimising the impact of the Court’s rulings.Footnote 29
Whilst, according to the above scholars, compliance of liberal democracies relates to respecting at least a minimum of each European Court of Human Rights judgment, a different concept seems to apply to non-liberal states (including but not exclusively limited to illiberal states).Footnote 30 The literature notes in this respect that the standard of acceptable behaviour seems to be loosened by such states advocating for their own perception of (inter)national values and norms, thereby indeed involving compliance but also potential non-compliance. Informed by these considerations, Mikael Madsen et al. in their typology of non-compliant behaviour in backlashing states add another two types of non-compliance to partial (non)compliance: limited non-compliance, relating to particular subsets or content of particular cases; and systemic non-compliance, exceeding sporadic forms of non-compliance in repetitive cases.Footnote 31 Indeed these strategies are reflected in non-liberal states’ non-compliance practices before the Court.
Yet, whilst the typical backlashing strategies are inherently overt, my empirical analysis reveals that Hungary seeks to pursue subtler pushback techniques, which seem to have received less attention in the literature. In this respect, scholars so far agree that compared to overt pushback, its subtle counterpart conveys less clear messages of disagreement to international and domestic audiences and that because of its covert nature, it remains uncertain whether it may cause larger systemic consequences.Footnote 32 Yet, whilst subtle pushback, as its name suggests, indeed fails to signal defiance, I find that it may nevertheless send a different message. International relations literature terms this a ‘status signal’ for projecting states’ preferred image to international and domestic audiences.Footnote 33 By deflecting its attention, the state is able to circumvent international scrutiny, which may, especially when combined with other strategies such as subverting the public perception of the international court, undermine its domestic authority over time.
In Hungary, I argue, this is reflected in its three strategies that control the narrative of compliance, which surfaced in my mixed-methods analysis of the original dataset. I use mixed methods to triangulate, complement and develop findings of each individual method, seeking to obtain as comprehensive an image of Hungary’s behaviour as possible. In particular, the study underlying the following section consists of the international and domestic image of Hungary’s compliance process.Footnote 34 The international part of the analysis on one side relies on the original dataset comprised of several pieces of information collected from HUDOC (the Court and the Committee of Ministers’ official database) on all 1,105 of Hungary’s adverse Court rulings since the first ruling in 1997.Footnote 35 The study employs a descriptive and inferential statistical analysis to understand Hungary’s general behaviour in the process of Ministers’ supervision. On the other side, the international part includes a qualitative analysis of all documents on each case published on HUDOC.EXEC by several different actors, including the Hungarian government, non-governmental organisations and the Committee itself. The second part of the study looks beyond the international by focusing on the domestic context. Here, I rely on a national legal expert to collect and correctly understand every piece of information we could find on each Court ruling, including by looking into records of parliamentary sessions and its various committees, state officials’ statements and different ministerial webpages. We also investigated all media outlets that have ever reported on any of the cases, non-governmental organisations’ reports and statements and domestic scholarly works. Informed by the findings of the quantitative and qualitative analysis, I also supplemented the data with semi-structured interviews with representatives of the department under the Hungarian Ministry of Justice entrusted with the implementation of the Court’s rulings, different non-governmental organisations and domestic scholarship.Footnote 36
The first strategy relates to a striking increase in Hungary’s use of alternative instruments (friendly settlements and unilateral declarations) after 2010, which, according to my analysis, today represent more than 50% of all of its cases before the Court.Footnote 37
In the broader context, this increase coincides with significant structural changes within the Court’s system in the first decade of the 2000s.Footnote 38 The system was then overflooded with systemic and repetitive cases stemming predominately from the new Council of Europe member states, which called for potential solutions.Footnote 39 Consequently, the Court’s Registry first began facilitating the use of alternative instruments in cases of a systemic or repetitive nature which clearly indicated that there was a violation, which was later institutionalised with the 2010 entry into force of Protocol 14 to the Convention.Footnote 40 Today, every application filed at the Court is mandated to enter a 12-week friendly settlement phase, which makes settlement of all types of cases preferable to all Court proceedings.Footnote 41
Although scholars raise several concerns in this respect,Footnote 42 the use of alternatives is generally perceived as legitimate since it in principle benefits all involved parties: the Court’s system is relieved of repetitive cases and is thus able to invest its resources in more important (precedent-setting) cases; states avoid often burdensome adverse judgments, their naming and shaming effect and – due to lower monetary obligations entailed in alternative instruments – get away with cheaper compensations;Footnote 43 and the applicant gets financial redress faster and with more certainty.Footnote 44 There is also a safety pin installed in this regard: the Court acts as a watchdog by accepting only alternative instruments that meet the Convention standards, which generally also means that they are limited to less severe violations such as violations of a fair procedure (Article 6 of the Convention) and personal property violations (Article 1 of Protocol 1).Footnote 45
This seems to have resonated well in Hungary. My analysis shows that whilst the state concluded only four settlements before 2010, it settled an additional 527 and issued 25 unilateral declarations out of total 1,105 cases after that year. This in sum corresponds to 50% of its cases before the Court, which – to compare – is 26% more than other new Council of Europe members and 42% more than the old member states.Footnote 46 To better imagine Hungary’s increased use of alternative instruments after 2010, Graph 1 depicts chronologically the share of Hungary’s alternative instruments (mid-grey boxes) contrasted against the trends of its closed (dark boxes) and open cases (light-grey boxes). Whilst in this regard in 2010 the ratio between successfully closed cases that were initially rendered in Court proceedings and alternative instruments amounted to 55% and 40% respectively, this ratio shifted after that year. In its peaks in 2012 and 2017 alternative instruments jumped to striking 70% of all decisions against Hungary, whilst closed ‘ordinary’ cases represented only 10-15% of all cases.
If the difference between pre- and post-2010 era cases depicted above already seems striking, the graph reveals only a part of the story. Veronika Fikfak in this respect highlights that in order to comprehend an overall image of actual cases settled, one needs to distinguish between the absolute number of reported settlements and the absolute number of actual applications contained therein, since several victims with similar applications may appear before the Court and may thus be joined in one claim.Footnote 47 Applying this to Hungary, the number of all applications that ended in settlement in reality amounts to 2,899, which is more than five times the number of all cases that ended in an adverse judgment in Court proceedings. Similarly, the number of claims joined into the 25 unilateral declarations in reality amounts to 88 individual petitions.
Keeping this in mind, scholars offer several alternative explanations for why states settle, warning that instead of being legitimate, alternative instruments can strategically be used to avoid the Court and its domestic impact. As noted by Madsen et al., states may deliberately settle cases to minimise the domestic impact of its rulings.Footnote 48 Furthermore, Fikfak claims that settlement can halt petitions, which has two potential implications. First, alternative instruments allow states to hide a substantial and systemic domestic problem.Footnote 49 This holds especially true for Marc Galanter’s repeat players, namely experienced states who account for the fact that they would participate in many similar future Court proceedings.Footnote 50 They have the means necessary to strategise on whether to settle or enter Court proceedings, as they may well be concerned about the possible precedential value of a judgment that would necessarily affect the outcome of future proceedings.Footnote 51 In turn, if states avoid precedent-setting judgments, they also avoid addressing domestic issues that require bringing about often costly domestic change.Footnote 52 Second, scholars find that alternative instruments can hardly be rejected by victims, which – by the incentive structure of the Court’s system facilitating their use – allows states to be in full control over whether and when to enter Court proceedings.Footnote 53 In fact, unilateral declarations can even institutionally be concluded against applicants’ will, which makes them an appealing target for states’ threats that if they refuse to settle, a unilateral declaration would be pursued instead.Footnote 54 Accordingly, both instruments enable states to play a numbers game: they can strategise whether to avoid or enter Court proceedings, which makes adverse judgments (and thus violations) disappear from their official records, as well as effectively preventing applicants from bringing complaints to the Court.
A critic might nevertheless argue that Hungary’s use of alternatives is a legitimate consequence of the incentive structure of the Court’s system, rather than an avoidance strategy. The challenge in this regard is to disaggregate the causal effect of the 2010 illiberal shift in Hungary from the causal effect of Protocol 14, which entered into force in the same year. There are three empirical arguments to support the strategy argument.
First, the analysis of a broader European Court of Human Rights context reveals that by settling on average 50% of its cases after 2010, Hungary is an outlier even among new Council of Europe members. There are only two states, namely North Macedonia and Serbia, who settle more frequently.Footnote 55 Generally, existing empirical studies reveal that despite the institution facilitating their use, the majority of member states only rarely engage in alternatives to Court proceedings.Footnote 56 Whilst the new members settle up to 24% of cases, Fikfak finds that the old member states settle three times less often, in only 8% of their cases. In fact, several states, Switzerland for instance, settle only exceptionally, arguing that their default position is to ‘defend the position of national authorities’ before the Court.Footnote 57
Second, by arguing that it represents an established practice in Hungary, the use of alternatives is frequently expected from the government by members of parliament. For instance, the government’s plan to settle was discussed at the annual parliamentary committee in 2013 addressing a systemic issue of excessive length of judicial proceedings. There, the State Secretary assured that the government agrees with Court’s rulings and would settle future cases stemming from the issue.Footnote 58 Another example followed the 2012 Faber and Tatar and Faber cases, where the Court found a violation of Article 10 in fining the applicants for an unannounced protest in front of the parliament.Footnote 59 At the 2013 meeting, one parliament member queried why settlements were not concluded in pending similar cases, as this is Hungary’s established practice ‘in cases where the government feels that they concern violations of rights in their entirety’.Footnote 60 It seems from this that, irrespective of the underlying violation, Hungary strategically avoids entering Court proceedings where the existing issues are anticipated to inevitably generate future adverse judgments.
Third, the content of alternative instruments reveals Hungary’s endeavour to avoid the Court in areas outside the usual contexts of less severe procedural and property violations that could – if alternative instruments were not concluded – be subject to important precedent-setting judgments. To imagine this more clearly, Graph 2 depicts chronologically the nature of violations underlying all of Hungary’s concluded alternative instruments.
This shows that in 2018 – the same year that the Court increased its scrutiny over the issue of unlawful and excessively long pre-trial detentions – the state began concluding alternative instruments in areas of more severe violations, namely issues of personal liberty and security enshrined in Article 5 of the Convention (grey line). Hungary settled 7 such cases in 2019, 13 in 2020 and 5 such cases in 2021.Footnote 61 Although these numbers may seem far from striking, the overall number of complaints entailed in these settlements in fact amounts to as many as 169 individual applications. In addition to their quantity, the issue lies also in their context. Namely, in 2018, when such settlements began, the Court deliberated on applying the pilot-judgment procedure to address a potential systemic issue of unlawfulness and excessive length of pre-trial detentions, persisting in Hungary since 2013.Footnote 62 While highlighting a high number of complaints, the Court ultimately deemed the pilot-judgment procedure unnecessary at that stage.Footnote 63 Nevertheless, it left the door open for a re-deliberation, noting that one of the relevant circumstances for identifying systemic issues is also the number of similar complaints accumulated in the Court’s docket over a period of time.Footnote 64 Given that 169 applicants had already complained of the same issue in just three years, Hungary’s strategy to settle seems to be the only factor preventing the Court from re-deliberating the pilot-judgment procedure, which would set a precedentFootnote 65 for future cases.
From this, it is apparent that Hungary has profited from the European Court of Human Rights’ incentive structure, encouraging alternative instruments. This has ultimately allowed the state to be fully in control of whether to enter or avoid Court proceedings. In the long run, such avoidance of Court’s jurisdiction and denial of its power to set precedential binding judgments may also lead to a diminishment of the Court’s authority in Hungary.
The second strategy resembles the type of behaviour that the social work literature describes as disguised non-compliance. The term was coined by Peter Reder et al., who noted the behaviour of abusive parents who resist undertaking required changes by instead working towards creating a false impression of cooperation to mask their own intentions.Footnote 66 Such behaviour effectively deflects the attention of the intervening body, neutralises its authority and returns the relationship to the status quo.Footnote 67 Legal and public administration academia traced similar patterns in what they term as symbolic or creative compliance,Footnote 68 whereby states offer ‘merely rhetorical lip service to formal obligations’ or adopt ‘intentionally perfunctory measures that are only intended to mask a government’s true intention not to comply’.Footnote 69 In this context, I find that Hungary engages in two types of attention-deflecting behaviour, intended for an international audience. Both serve as a tool for portraying continuous work towards the implementation of Court rulings, reflected through regular submissions of measure reports and cooperation with the Committee of Ministers.
The first type of deflecting behaviour is autocratic legalism.Footnote 70 This phenomenon relates to non-liberal governments seeking to benefit from the superficial appearance of democracy and legality, whilst in fact they are circumventing and abusing the constitutional and (inter)national legal constraints.Footnote 71 For example, as a consequence of the illiberal coalition obtaining a parliamentary majority in 2010, and maintaining a supermajority ever since 2014, the Hungarian government is able to change any law at will, no matter what its (often formalistic) substance. My interviews with Hungarian non-governmental organisations suggest that this proves useful when Court judgments require legislative amendments, which, although void in substance, can swiftly be adopted without any meaningful domestic deliberation.Footnote 72 According to the interviewees, this leads to over-codifying a specific field, whereby Hungary ‘plays a game’ of how far it can go to simultaneously pursue its own agenda and stay within the boundaries of the law.Footnote 73
In particular, the interviews point to three areas where Hungary pursued such strategy, namely life sentences without parole (the Laszlo Magyar case), loss of church status of minority religion communities (the Magyar Keresztény Mennonita Egyház and others case) and police ill-treatment cases (thr Gubacsi case). The analysis of my empirical data reveals that out of 65 leading cases rendered after 2010, in its implementation reports to the Committee of Ministers, Hungary cited 27 legislative remedial measures: 10 of these rely on existing legislation, whilst in 17 new legislation was adopted. Among those, seven cases – including all three cases pointed out in the interviews – were subject to non-governmental organisations’ follow-up, indicating a gap between compliance and implementation. Indeed, all three areas highlighted in the interviews raised concerns of (inter)national stakeholders.Footnote 74 They point out the shortcomings of adopted legislation, such legislation avoiding the real issue at hand as well as it being merely an ineffective ‘cosmetic change’.Footnote 75 For instance, following the Laszlo Magyar case, where the Court condemned the lack of possibility of parole in Hungarian life prison sentences, the Committee of Ministers even expressly noted Hungary’s swift legislative amendment before finding it insufficient because it made life sentences de jure, but not de facto reducible.Footnote 76
Interviews further suggest that Hungary employs another type of deflecting behaviour: the state regularly submits to the Committee reports that contain copy and pasted parts of previous reports already submitted in the case (referred to as ‘copy-paste reports’). The aim of this is to conceal the lack of actual progress in the implementation of the judgment.Footnote 77 My datasetFootnote 78 reveals a striking resemblance between general measure reports in particular cases, especially in politically sensitive cases, and minimalFootnote 79 to no progress throughout the years of supervision. These cases – all of them remain open under Ministers’ supervision – concern Roma applicants,Footnote 80 prisoners serving a life sentence,Footnote 81 forcibly retired former judgesFootnote 82 and state surveillance victims.Footnote 83 For example, in 2016, the case of Baka addressed Hungary’s constitutional amendment that resulted in the premature termination of the mandate of the former President of the Hungarian Supreme Court. Although Hungary seemingly proceeded as usual after the ruling by first paying the just satisfaction award and later submitting several reports on planned or adopted remedial measures, a comparison of those reports from 2017-2022 (especially those submitted in 2021 and 2022) reveals their (textual and semantic) similarity, but no actual developments. Indeed, Hungary maintained throughout the supervision process that the violation was an isolated incident.Footnote 84 This is surely not the case, given that the constitutional amendment that changed the nature of professional requirements for the position itself fails to comply with the rule of law.Footnote 85
Building the narrative for a domestic audience
The third strategy relates to Hungary’s seeking to build its own narrative about the Court to subvert the opinion of the domestic audience. In this respect, though academia only recently started investigating the field, scholars so far agree on two points. First, curbing public opinion plays a role in delegitimising international adjudication.Footnote 86 Second, public opinion is moveable and as such a popular target of resisting governments’ strategies to embed criticism of international tribunals into the regular mainstream domestic discourse, public life and politics.Footnote 87 This has several implications. By seeking to influence public opinion, governments on the one hand wish to mobilise the public against the Court to decrease the costs of non-compliance and, by amplifying backlash, of a potential exit from the institution.Footnote 88 On the other hand, to gain popularity and domestic public support populist governments increasingly rely on speaking against international courts by picturing them as ‘tools’ of ‘liberal elites’ that seek to enforce their preferences over the ‘will of the people’.Footnote 89 By conceiving and pushing forward a negative narrative about the institution they take issue with, governments seek to strengthen their domestic legitimacy and thus facilitate citizens’ belief that their government is better than the (inter)national alternatives and thus deserves obedience.Footnote 90
Against this backdrop, my interviews suggest that public opinion about the Court in Hungary is (and stays) relatively good.Footnote 91 Even the government in this regard notes that ‘the opportunity to turn to the European Court of Human Rights in Hungary is well known’, indicating also that people often resort to the Court for justice.Footnote 92 Interviews further reveal that Hungarian non-governmental organisations use this knowledge for strategic mobilisation of citizens to pursue mass litigation, which would make culminated compensation sums more costly for the state.Footnote 93
Although analysis of the Court’s compensation awarded to Hungarian applicants throughout the years (see Graph 3) reveals that the Court after 2010 indeed increased the average amount per judgment compared to the previous era, my linear regression models reveal that this represents no incentive for Hungary’s speed or likelihood of compliance.Footnote 94 With the average compensation rising from €7,580.50 before 2010 to €19,649.40 after that year, the state after 2010 takes more than twice as long to comply with a judgment (3.6 years) than before (1.5 years).Footnote 95
The increased awards, however, may have led to another move by the government. In anticipation of a potential (further) rise in monetary compensations (stemming both from European and potentially domestic courts giving force to European judgments), the government set the scene to ‘counterbalance’ the effects of these judgments.Footnote 96 In 2013 the state proposed an amendment to the Fundamental Law, in which it included a provision that set legislative basis for an additional tax on the Hungarian people.Footnote 97 The tax would be introduced when Hungary incurred a payment obligation by (inter)national court judgments in an amount that exceeded the quantum dedicated for such payments in the state budget.Footnote 98 Effectively, therefore, if the Strasbourg Court or domestic courts implementing its judgments were to increase the just satisfaction amounts or find Hungary in violation more frequently, the costs of compliance with these judgments would be borne by the Hungarian taxpayer. The provision raised concerns in the Venice Commission, which emphasised that it may lead to an aversion against European courts due to the financial burden on the Hungarian citizens.Footnote 99 They would in turn blame such institutions instead of the state which – as the perpetrator of violations – triggered payment obligations in the first place.Footnote 100 Although the provision was later excluded from the final text, it reveals that Hungary is well aware of how the financial burden of compensation awards can resonate domestically and damage the reputation of the Court.
Another example of building a domestic narrative relates to what Eszter Polgári terms ‘double talk’.Footnote 101 According to Polgári, the government often speaks against the Court to the Hungarian public and the press, whilst its representatives nevertheless support (often formalistic) legislative amendments addressing the judgments behind closed doors. Unlike direct confrontation with the Court, this type of criticism does not reflect in the state’s dialogue with the institution but is limited strictly to the domestic context. My analysis reveals in this respect that representatives of the government were critical toward the Court after cases addressing Roma issues,Footnote 102 prison overcrowding,Footnote 103 indiscriminate criminalisation of the display of totalitarian symbols,Footnote 104 expulsion of asylum-seekers,Footnote 105 and life-sentences without parole. This undermining of the Court, however, had no implications for the actual remedial measures that were ultimately reported to the Committee of Ministers. For example, after the Court condemned Hungary’s criminalisation of totalitarian symbols at peaceful demonstrations in the 2008 Vajnai case, one of the government’s representatives referred to the European Court of Human Rights judges in the media as ‘idiots’ who in their ignorance of Hungary’s specific historical context ‘think it is an acceptable thing and part of the freedom to have someone demonstrate with the red star’.Footnote 106 Nevertheless, a decision of the Constitutional Court that annulled the contested legislative basis set into motion a legislative procedure, which resulted in the parliament agreeing to amend domestic legislation.Footnote 107
The why: rationalist and constructivist theories in light of the identitarian counterwave
To explain why states comply with international rulings, academia has for decades relied on two strands of theories – rationalismFootnote 108 and constructivism.Footnote 109 Whilst the rational school focuses on states weighing the costs and benefits of non-compliance to pursue maximum (economic) utility of their actions,Footnote 110 constructivism sees the motives behind compliance in an interplay of internalised normative behaviour and states’ identities shaping their interests.Footnote 111 Although the theories have historically divided scholarship, many academics today believe that they are complementary.Footnote 112 For instance, in his hybrid model, von Staden complements the logic of rationalism with constructivism to study compliance of European liberal democracies where, he claims, the idea of non-compliance with the Court’s judgments seems almost irreconcilable.Footnote 113 In this context, he finds, liberal states rather focus on minimising the impact of judgments by offering the least burdensome remedial measures that still satisfy the minimal requirements of the ruling. He explains this as states’ rational choice within normative constraints, where the obligation to comply with adverse Court judgments ‘restricts the spectrum of legally permissible choices available to states, without […] eliminating choice altogether’.Footnote 114
Less, however, has been written in this respect on illiberal states. In their realm, non-compliance indeed seems less irreconcilable. In fact, in cases like Hungary, where the shift to an illiberal populist regime continues to be supported by the majority of voters,Footnote 115 one would expect non-compliance with international norms and values to be even a politically pursued option. Yet, the specific set of circumstances makes Hungary’s attitude toward the Court unique. In a similar vein, as scholars study liberal states’ compliance strategies, I initially approach the study of Hungary’s behaviour by marrying rationalism and constructivism. However, to understand the implications of its 2010 shift to illiberalism, I suggest that the constructivist notion of a static state identity should be complemented by findings on the consequences of illiberal states’ political change on the international regime. In this respect, Lustig and Weiler’s notion of an identitarian counterwave seems appealing as it explains this exact process. I explain this in more detail below.
Rationalism and the benefits of Hungary’s EU membership as the incentive for compliance
Derived from economics, rationalism argues that compliance is a result of states’ rational weighing of instrumental costs of compliance against the potential costs of non-compliance.Footnote 116 Accordingly, when deciding how to act, states engage in means-end calculations to maximise their utilities and efficiency, whereby they typically pursue material interests.Footnote 117 These calculations can, however, be manipulated by other actors through mechanisms that Andrew Guzman identifies as the three R’s of compliance – namely reputation, reciprocity and retaliation – which increase the cost of violations and may facilitate cooperation.Footnote 118
Unlike the Luxembourg Court, which imposes sanctions, the Strasbourg Court relies on the legitimacy of its rulings to persuade states into compliance, along with a possibility of potential political pressure from other states that takes place at the Committee of Ministers’ meetings.Footnote 119 Due to this absence of sanctions, non-compliance with the Strasbourg Court’s rulings seems to have no direct financial costs, which, at first glance, makes the rational compliance pull weak. Yet, though indirect, there is another mechanism of pressure that contributes to compliance with its rulings in the EU part of Council of Europe members – an EU membership.Footnote 120 Scholars note in this respect that the EU plays a sustaining as well as a constraining role in Hungary.Footnote 121 As concerns sustaining, Hungary is a net beneficiary of EU’s cohesion policy.Footnote 122 In 2014-2020 the state was projected to receive up to 3.69 per cent of its gross national income from the EU cohesion fund, which fuelled nearly all of its national resources for the national development policy.Footnote 123 These monetary benefits, scholars agree, make the costs of a potential voluntary exit of Hungary from the EU extremely high.Footnote 124
By facilitating the protection of fundamental human rights, the EU on the other side acts as a political and, more recently, even a legal constraint on Hungary’s attitude toward the Strasbourg Court. In this respect, Hungary’s potential systemic non-compliance or, ultimately, an exit from Council of Europe, could represent a ‘serious and persistent breach’ of EU’s fundamental principles enshrined in Article 2 of TEU.Footnote 125 The state can in principle not be expelled from the EU, but systemic non-compliance with the Court’s rulings could potentially trigger political sanctions under Article 7 TEU.Footnote 126 Although less straightforward, the EU’s Rule of Law Mechanism might have recently introduced legal repercussions also for European Court of Human Rights disobedience under the threshold of systemic non-compliance. Namely, after Hungary’s non-compliance with several Luxembourg Court judgments as well as high-profile Strasbourg Court judgments was considered in all the 2020, 2021 and 2022 EU Commission’s Rule of Law Reports,Footnote 127 the state today faces an application of the Rule of Law Conditionality Regulation. This makes acquiring common EU funds conditional on Hungary’s respect for the rule of law (which seems to entail compliance with Strasbourg Court judgments as one of the institutional issues related to Hungary’s checks and balances), in which case the EU could potentially freeze Hungary’s €6.14 billion yearly share from the EU budget.Footnote 128
This seems to have three types of implications for Hungary’s rational calculations. First and more broadly, its EU membership prevents Hungary from weighing to the side of authoritarianism and thus to the realm of systemic human rights violations existing, for instance, in Russia and Turkey.Footnote 129 This makes Hungary’s constitutional position stable and corresponds to what Hungarian academia describes as constitutional illiberalism, deriving its power from the illiberal Fundamental Law.Footnote 130 Second, the fear of EU sanctions does indeed create a rational Strasbourg Court compliance incentive, but it is due to a relatively high threshold where only systemic non-compliance triggers sanctions, only of limited power. As my interviews uncover, this reflects in Hungary taking no issue with low-cost judgments (such as isolated violations) that have little or no actual and political implications, where the costs of compliance are insignificant compared to the high cost of a potential systemic non-compliance.Footnote 131 Third, in high-profile cases the stakes of Hungary’s cost-benefit weighing seem significantly greater. On one side, potential compliance – in addition to actual costs normally connected to implementation of complex Court casesFootnote 132 – also bears political costs, since conforming to ‘Western liberal values’ could jeopardise the government’s political position by challenging its illiberal identity and thus its domestic legitimacy. This is also a common ground, where, I argue below, constructivist explanations of Hungary’s behaviour complement rationalism. On the other side, blatant non-compliance with high-profile judgments may, due to their political and legal salience and consequently increased international scrutiny, increase the likelihood of EU sanctions. In this respect, a successful balancing along the spectrum of compliance demands that Hungary control the narrative of compliance, which necessitates the use of the above strategies of non-compliance.
Constructivism and the identitarian counterwave: Hungary’s post-2010 illiberal identity as justification for non-compliance
Unlike rationalists, constructivists look beyond a mere pursuit of material utility and seek incentives for state compliance also in other, non-material factors.Footnote 133 Constructivism places states’ identities at the centre, explaining that they are shaped through states’ interaction with cultural-institutional context, which consists of (non)legal norms and several actors in the (inter)national arena.Footnote 134 Identities then act as ‘generators of interests’, which facilitate compliance.Footnote 135 Constructivists argue that this allows for predictability of state behaviour since, in principle, state identities and thus their interests remain consistent.Footnote 136 Accordingly, compliance over time becomes an ‘internalized social practice that makes normative prescriptions for acceptable behaviour, thereby also making behavioural claims upon actors’ that cannot be reduced to merely instrumental interests.Footnote 137
In practice, an example of this process unfolding in Europe was observed by Lustig and Weiler during what they termed the second wave of constitutionalism.Footnote 138 After seeking to restrain the unlimited domestic executive power which spread during World War II in the first wave, states in the second wave began jointly promoting international norms and institutions as the higher law, which in turn poured back into states’ national constitutions.Footnote 139 This cross-fertilisation was, according to scholars, facilitated particularly because it was already consistent with their own national values and, accordingly, their (liberal) identities.Footnote 140 In this general context, Hungary became party to the Convention in 1992 and, accordingly subject to the Court’s jurisdiction, as the first state from the post-Communist bloc.Footnote 141 The young liberal state was initially strongly dedicated to becoming a Convention-compliant member of the Council of Europe, which it expressed by amending its legislation before accession to meet the Convention standards.Footnote 142 Although in the two decades that followed domestic legislative proposals and court judgments only rarely explicitly referred to the Convention and the Court’s case law, significant efforts to raise awareness of the Court’s rulings and the Convention were made during that period.Footnote 143
Yet, states’ identities can change, pulling their interests along, which can have transformative consequences for the system.Footnote 144 In this respect – because they rely on predictability – both, rationalism and constructivism fall short in explaining states’ identity change as well as its implications for compliance.Footnote 145 By unfolding how states’ identity shift contributed to the rise of resistance to European courts, Lustig and Weiler’s idea of an identitarian counterwave seems to mitigate for this limitation and is able to complement the constructivist idea of a stable state identity. Accordingly, the third (counter)wave in Europe occurred as a reaction to the first two waves.Footnote 146 In the context of the 2008 economic and the 2015 refugee crisis,Footnote 147 the counterwave emerged because states began taking issue with several challenges of the common international regime, related, for instance, to the legitimacy of (international) judicial review, the focus of human rights on protecting an individual against the state instead of emphasising their responsibilities, flattening states’ national identities, etc.Footnote 148 In reaction, states (particularly their courts) began first, taking back the power to exert control over international governance and adjudication, and second, emphasising national identity as the new standard of reasoning and justification.Footnote 149 In this context, illiberal states such as Hungary today seem to call for a reconfiguration of ‘internationally mandated’ conceptions of human rights to a national view, that preserves their own cultural, social and political identities.Footnote 150 By doing so, they detach the perception of human rights from its classical liberal understanding, seeking to transform it into an expression of national identity, which creates tension with the international authority.Footnote 151
This shift affected Hungary’s attitude toward the Court, particularly its choice of strategies in an important way. Enshrined in the Preamble of the 2011 Fundamental Law, Hungary today places values such as Christianity, preservation of nationhood and community at the very top of its value system, which sets the tone for its perception of human rights.Footnote 152 Accordingly, in their focus on an individual instead of a community and on the liberal ‘Western values’ instead of the conservative ‘true Hungarian values’, fundamental rights as required by an international authority seem to differ from the national (that is the government’s) perception.Footnote 153 This causes friction. In turn, the state refuses to comply, not with all judgments, but, as Erik Voeten terms it, ‘only those judgments that fit with pre-existing domestic mobilisation narratives around these mega-politics identity questions’.Footnote 154 More specifically, this relates to the politically sensitive Court judgments that touch upon issues where the government sees a collision between the Hungarian national identity and the liberal value system. Yet, whilst maintaining a dialogue with the CourtFootnote 155 to nevertheless convey the signal to the international audience that it respects the Court’s system (here constructivism complements the rationalist view), the state on one side employs a direct strategy of disguising its non-compliance and on the other side a subtler strategy of avoiding Court proceedings, which improves its compliance record and prevents future engagement with high-salience cases. This resistance to ‘externally imposed values’ also fuels the government’s endeavour to build its own narrative of the Court domestically. As an external authority, the Court and its ‘imposition’ of liberal values is, in the government’s view, linked to the imagery of historical foreign occupation and is thus illegitimate, whilst the government itself as an embodiment of true ‘Hungarian values’ is portrayed as the preferred and the only legitimate alternative. In this context, the state seeks the favour of the public by blaming the Court for an increased burden of taxation and by a domestically-confined criticism of the institution.
The paper sought to unravel how and why Hungary, hidden behind its average compliance record, silently faces off the Court. To do so, while simultaneously seeking to benefit from pursuing its own (inter)national interests, the state developed three strategies, aimed at controlling the narrative of compliance. The first one allows Hungary to avoid Court proceedings by concluding alternative instruments, which improves its compliance record, allows it to make adverse rulings – including important precedent judgments – disappear from its official record and prevents applicants from accessing the Court. As a second strategy, Hungary disguises its non-compliance by submitting copy-paste reports on often formalistic legislative amendments, which serves as a status signal to convince the international audience of its persistent work toward implementation. The third strategy aims to subvert public opinion by building a negative domestic narrative about the Court. After unfolding these strategies, the paper set to uncover why – given that the state openly admits its illiberalism and defiance to international institutions – Hungary nevertheless engages with the Court by construing these strategies whilst it does so little to actually implement its (high-profile) rulings. The paper finds the reasons for this in Hungary’s specific circumstances. The first is its EU membership, that on the one hand rationally constrains and on the other incentivises it into compliance. The second is a 2010 identitarian illiberal shift that fuels Hungary’s resistance to the Court’s rulings. Together, the paper concludes, these incentives explain Hungary’s (non)compliant behaviour before the Court and the choice of its particular strategies that nurture it.
This research is part of the Human Rights Nudge project which received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant agreement No. 803981). The use of the particular methodology underlying this paper was conceived within the Human Rights Nudge team. I am grateful to my supervisor Dr Veronika Fikfak for her advice and feedback and Ms Zita Barcza-Szabó, who made possible a look into Hungary’s domestic context by collecting the data for qualitative research and providing relevant translations.
For supplementary material accompanying this paper visit https://doi.org/10.1017/S1574019623000044.