Hungary: Information on legislative changes regarding sexual minorities, including their implementation (July 2012-June 2013)

1. Legislative Changes

1.1 Act CCXI of 2011 on the Protection of Families

Human Rights Watch states that the Hungarian family protection act, adopted in December 2011, defines marriage as being "exclusively between a man and a woman" (May 2013, 22). The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) also states that the family protection act defines "the family unit as heterosexual" (May 2013, 82). According to Section 7 of Act CCXI of 2011 on the Protection of Families, family is a "system of relations which generates an emotional and economic community of natural persons, based on the marriage of a man and a woman, next of kinship or adoptive guardianship" (Hungary 2011, Sec. 7). Human Rights Watch reports that the Hungarian ombudsman filed a complaint with the Hungarian Constitutional Court stating that the Act "discriminates on grounds of sexual orientation as same-sex partners are not included in the definition of the family" and in December 2012, the definition of the family in the Act was declared "unconstitutional" (May 2013, 22). However, Human Rights Watch notes that the court declared the definition "unconstitutional" because the family protection act "excludes any family not based on marriage" and the "court's judgement did not explicitly address the discrimination against families based on sexual orientation" (Human Rights Watch May 2013, 22). Human Rights Watch further notes that rather than accepting the ruling of the constitutional court, "the government introduced legal changes in March 2013 that added the provisions to the constitution and curbed the power of the constitutional court to review changes to the constitution, preventing the court from striking down the measures anew" (16 May 2013). Similarly, in correspondence with the Research Directorate, a representative of Háttér Support Society for LGBT people (Háttér) in Hungary wrote that in response to the constitutional court ruling, the Hungarian Parliament "elevated the exclusionary definition of family to the constitutional level" (18 June 2013).

1.2 Constitution

ILGA indicates that a new constitution entered into force in January 2013 (May 2013, 82). Two other sources also report that amendments to the country's constitution were implemented in 2013 (Human Rights Watch May 2013, 22; US 19 Mar. 2013). Sources note that the new constitution restricts the definition of marriage to a union "between a man and a woman" (ibid.; ILGA May 2013, 82). Similarly, Human Rights Watch points out that the new definition "excludes cohabitants and same-sex couples" (May 2013, 22). According to Article 1 of the fourth amendment to the Constitution of 2013, marriage is "understood to be the conjugal union of a man and a woman based on their independent consent" (Hungary 2013, Art. 1). Human Rights Watch points out that "[t]he restrictions on the definition of family is discriminatory as it differentiates between different types of relationships by granting some constitutional protection while ignoring others" (May 2013, 22).

Two sources note that the constitution does not include sexual orientation as a ground for discrimination (ibid., 23; ILGA May 2013, 82). ILGA indicates that "sexual orientation and gender identity are only implicitly covered under 'other status'" (ibid.).

1.3 Criminal Code

The US Department of State's Country Reports on Human Rights Practices for 2012 reports that a new criminal code was adopted by Hungarian parliament on 25 June 2012 (US 19 Apr. 2013, 43). Several sources indicate that it will enter into force on 1 July 2013 (ibid.; AI 29 June 2012; ILGA 16 July 2012). Amnesty International (AI) reports that the old criminal code "prohibited assaults on the grounds of nationality, ethnicity, race or religion" (29 June 2012). The new code extends the grounds to include sexual orientation, gender identity (US 19 Apr. 2013, 43; ILGA 16 July 2012; AI 29 June 2012) and disability (ibid.; ILGA 16 July 2012).

AI notes that despite legal provisions, "there has been a systematic problem in their implementation in the past" (AI 29 June 2012). The US Country Reports 2012 also indicates that

[d]espite legal protections, right-wing extremists continued to abuse members of the LGBT community. Law enforcement and other authorities often disregarded the hate element of these crimes, and no protocol or regular training on the subject existed. (US 19 Apr. 2013, 43-44)

Similarly, AI states that there is a lack of procedures and guidelines for police and prosecution services related to the investigation of hate crimes, which "will continue to lead to problems of implementation of the legislation in practice" (29 June 2012). AI further notes that there is a lack of specialized units on investigation of these crimes within the police (29 June 2012).

The representative of Háttér Support Society for LGBT people in Hungary stated that even if legal provisions are in place, LGBT people "do not feel safe to turn to state institutions" for help because they fear that "the homophobia and transphobia at the highest level of political decision will trickle down to various state institutions, including the police, prosecution, and courts" (Háttér 18 June 2013). According to the representative, the protection offered to LGBT people mostly "remain[s] only on paper" (ibid.). Furthermore,

hate crime legislation in general - not just against LGBT victims - is severely under-enforced. Many reported incidents are not qualified as hate crimes and investigated - if at all - as a less sever[e] crimes. Police receive minimal or no training on how to deal with LGBT victims of crime. This results in severe underreporting: a large scale study (n=1674) [conducted by Háttér] among LGBT people in 2010 found that only 13.4% of victims of violent homophobic or transphobic incidents report it to the police or other authorities. (ibid.)

Further information on the implementation of the legislation could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Amnesty International (AI). 29 June 2012. "New Hungarian Criminal Code: a Missed Opportunity to Do More on Hate Crimes." [Accessed 12 June 2013]

Háttér Support Society for LGBT People (Háttér). 18 June 2013. Correspondence from a representative to the Research Directorate.

Human Rights Watch. 16 May 2013. "Hungary: Rule of Law Under Threat." [Accessed 6 June 2013]

_____. May 2013. "Wrong Direction on Rights." [Accessed 5 June 2013]

Hungary. 2013. Fourth Amendment to Hungary's Fundamental Law. [Accessed 14 June 2013]

_____. 2011. Act CCXI of 2011 on the Protection of Families. [Accessed 10 June 2013]

International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). May 2013. Lucas Paoli Itaborahy and Jingshu Zhu. State-Sponsored Homophobia: a World Survey of Laws: Criminalisation, Protection and Recognition of Same-sex Love. [Accessed 13 June 2013]

_____. 16 July 2012. "New Hungarian Criminal Code Sanctions Homophobic and Transphobic Hate." [Accessed 12 June 2013]

United States (US). 19 April 2013. Department of State. "Hungary." Country Reports on Human Rights Practices for 2012. [Accessed 5 June 2013]

_____. 19 March 2013. Library of Congress. "Hungary: Constitutional Amendments Adopted." [Accessed 14 June 2013]

Additional Sources Consulted

Oral sources: Attempts to contact representatives of the following organizations were unsuccessful: Hungarian Helsinki Committee; Labrisz Lesbian Association, Budapest.

Internet sites, including: British Broadcasting Corporation; The Budapest Sun; The Budapest Times; B92.net; Council of Europe; The Daily; ecoi.net; Equal Rights Trust; European Union - EU Agency for Fundamental Rights, European Commission, Intergroup on LGBT Rights, European Ombudsman, European Parliament; EUobserver.com; EUR-lex; Euronews.com; Factiva; Global Equality Today; GlobalGayz; Hatter Association for Gay People; Hungarian Helsinki Committee; Hungary - Constitutional Court of Hungary, Ministry of Public Administration and Justice, Office of the Commissioner for Fundamental Rights, Police; Hungary Around the Clock; Labrisz Organization; Legislationline; LGBTQ Nation; Magyar Tavirati Iroda; Minority Rights Group International; The New York Times; Nouvelle-Europe.eu; Open Society Foundation; Pink News; Politics.hu; United Nations - Refworld; United States - US Embassy in Budapest.