Nick Kenny, a student at the University of Law in London, discusses the issues with disability rights in Hungary...
In 2007, Hungary ratified the Convention on the Rights of Persons with Disabilities (CRPD), a wide-ranging and forward-thinking treaty designed to advance the human rights of those with disabilities. This reflected on the international level what Hungary seemed to be doing on the national level. The year before, Hungary adopted a new National Disability Programme to better assist those living with disabilities. Yet, thirteen years after ratifying the Convention, the committee entrusted with monitoring it reported that the situation for people with disabilities looks bleak. How did things get here, and how can the law advance disability rights in Hungary for the future?
Despite adopting the CRPD, Hungary has a checkered history on disability rights. It has been very common for those with disabilities to be placed under “guardianship,” or the legal control and authority of another individual. A guardian is usually appointed by the court when it finds that an individual has limited capacity to make decisions for themselves. Guardianship has its origins in Hungarian civil codes dating from the 1950s, although its scope has attracted more recent legal attention. Being placed under guardianship used to mean you automatically lost that most fundamental of civil and political rights- the right to vote (Article 70, paragraph 5, of the Constitution of Hungary). However, in 2010 the European Court of Human Rights ruled that this breached Article 3 of Protocol 1 (the right to free elections) of the European Convention on Human Rights. It found that this “indiscriminate removal of voting rights” could not be justified, especially concerning the rights of “a particularly vulnerable group.”
This issue was also brought to the Committee on the Rights of Persons with Disabilities, the body established to oversee the CRPD’s implementation. In 2011, six individuals who had lost their vote after being placed under guardianship submitted a complaint. The Committee ruled that Hungary had breached Article 29 CRPD, which is the right to political participation.
In 2012, following these decisions, Hungary did in fact change its Constitution. However, it still allowed those deemed to have “limited mental capacity” to lose their vote (Article XXIII(6)). The only difference was that this was now at the court’s discretion, rather than being automatic.
Although this arguably complied with these decisions, it was hardly a dramatic change. It also did not go uncriticized at the time, with the European Network on Independent Living arguing it still breached Article 29 CRPD. Article 29 requires Hungary to ensure those with disabilities can “fully participate in political and public life on an equal basis with others…including the right and opportunity to vote.”
However, this was not enough to stop it from entering Hungary’s Constitution. It is not obvious that this change has much improved the situation for those with disabilities. According to the recent report by the Committee on the Rights of Persons with Disabilities, 54,656 people with disabilities were living under guardianship in 2008. By 2013, this had increased to 61,563, of which 59,956 were disenfranchised. In 2017, 49,565 were disenfranchised out of 55,056. In other words, the numbers have stayed at similar levels for almost a decade.
It was no surprise, then, that the Committee on the Rights of Persons with Disabilities – the same body that had issued the 2011 decision – was petitioned by various disability rights groups to investigate these issues. In their report, presented on April 16 this year (to little press attention, given its arrival at the height of COVID-19 chaos), they roundly criticised the treatment of those with disabilities in Hungary. They held that the disenfranchisement of those under guardianship was, along with other factors, a clear violation of the Article 12 CRPD right to equal recognition before the law.
This was not the end of their conclusions, though. The Committee went on to consider the right under Article 19 CRPD for those with disabilities to live independently and choose where and with whom they live. Here they were particularly distressed at the widespread system of social care institutions in which almost 25,000 people with disabilities are housed, including children under 12. The choice to enter such institutions is often not made by the person with disabilities, and they are frequently geographically isolated, separating residents from the rest of society. Conditions within these institutions were described as “inhuman,” with residents “segregated and discriminated based on impairment.” The report also stressed these institutions’ constant surveillance and lack of privacy and, most worryingly, that “violations of sexual and reproductive health and rights, including non-consensual sterilization were also observed.”
Of serious concern amid these outrageous human rights abuses is that EU money is used to support these institutions. The Committee reported that they were bankrolled, in part, by the European Structural and Investment Funds. These are the collection of funds that the EU provides to promote sustainable development in under-resourced parts of Europe.
In other words, EU money designed to assist the most disadvantaged of the continent is funding serious human rights breaches and Hungary’s violations of a treaty (the CRPD) which the EU has itself signed. This has prompted disgust from observers. Steven Allen, co-director of the disability rights organisation Validity, commented that:
“[T]his report has serious implications for the EU which has consistently failed to prevent Hungary from systematically misusing…European funds, with profound consequences for people now being forced to live and die in institutions flying the EU flag.”
Finally, the Committee found that Hungary had breached its obligations towards equality and non-discrimination under Articles 4 and 5 CRPD by over-institutionalizing people with disabilities and placing them under guardianship, which in their view constituted direct discrimination. They particularly criticised how women faced a serious risk of gender-based violence – even forced contraception or forced abortion – when institutionalized or under guardianship.
Where, then, for disability rights going forward is there much chance of progress, given how little improvement there has been in the years following Hungary’s ratification of the CRPD? Is there even much use in international bodies leveling criticism at Hungary like this? Hungary is no stranger to international criticism for breaches of the rule of law, so one would be forgiven for suspecting the Committee’s report may be ignored by Orbán’s administration. It could well play into a narrative of patronizing international institutions arrogantly misunderstanding and disparaging Hungary.
The widespread disenfranchisement of those with disabilities is a significant barrier to change. If those who would benefit from these improvements cannot themselves vote, there isn’t much political advantage in promising them – though perhaps the one delivering these improvements might be rewarded in the following election by those enjoying these newly-received voting rights.
The role of the European Structural and Investment Funds may be crucial in driving change. Since their money supports those institutions committing human rights violations, any financial pressure they can exert may prove more effective than political pressure from activists or international organisations.
However, this is not the first time the EU heard of human rights abuses in Hungary’s EU-funded institutions. The EU Commission received a complaint in 2017 from the disability rights organisation Validity about issues in a particular institution that had enjoyed EU funding. Their response was merely that the funding of such institutions was not itself prohibited by the CRPD or any EU rules. In other words, they were not at fault for merely funding these institutions and could not be held responsible for Hungary’s breaches of human rights. Hopefully, after this report they will take a more robust response and use their financial leverage to put an end to these abuses.
This is the key advantage of international integration: the more states rely on one another, or on supranational organisations like the EU, the more pressure can be exerted on recalcitrant states that violate their citizens’ human rights. Of course, this can be criticized on the grounds that it disturbs a state’s sovereignty over its own affairs. Arguably, though, when a state has adopted a treaty (like the CRPD) and thus assumed international law obligations regarding how it treats its citizens, it has made these the concern of the international community and so must be prepared to face scrutiny.
Overall, it remains to be seen what substantial action will be taken to improve the lot of those with disabilities. Given that the Committee’s report is only a couple of months old – and the COVID-19 crisis still rages on – there has been little official comment so far. All we can hope for the moment is that, after this report, there might be sustained publicity and awareness for the plight of persons with disabilities which might in turn push it up Hungary’s domestic political agenda. In the meantime, many thousands remain deprived of both their physical freedom in these institutions, and their political freedom to make their voice heard at the ballot-box.
Nick Kenny holds a Master’s and Bachelor’s from the University of Oxford and is currently studying at the University of Law in London.
Suggested citation: Nick Kenny, Deprived of Voice or Home: Disability Rights Under National and International Law in Hungary, JURIST – Student Commentary, July 10, 2020, https://www.jurist.org/commentary/2020/07/nick-kenny-disabilityrights-hungary/.
This article was prepared for publication by Cassandra Maas, JURIST staff editor. Please direct any questions or comments to her at email@example.com
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