Monday, May 7, 2012

Hungarian cardinal law on protection of Families reviewed by the Venice Commission



The Venice Commission is currently reviewing the Hungarian cardinal law on the Protection of Families. This law has been strongly criticised, especially for defining family as “based on the marriage of a man and a woman,” and for protecting human life since conception  and concludes that this law respects the letter and the spirit of international treaties on family and follows the legitimate aim to set foundations for the recovery of the country through the protection of life and family. The  European Centre for Law and Justice (ECLJ) submitted a Memorandum[1] to the Venice Commission demonstrating that this law respects the letter and the spirit of international treaties on family and follows the legitimate aim to set foundations for the recovery of the country through the protection of life and family.
By: Grégor Puppinck, PhD, Director of the ECLJ (http://www.eclj.org)

On 23rd December 2011, the Hungarian Parliament adopted Act CCXI of 2011 on the Protection of Families. It pursues the objectives to protect the children and families and to remedy the present demographic crisis. The law expresses that “the family is an autonomous community established in human history before the emergence of law and the State, which rests on moral grounds.” The law also recognises family as “the most important national resource of Hungary. As the basic unit of society the family is the guarantee for the nation’s survival and the natural environment of the development of human personality, which must be respected by the State”. This law takes concrete measures to ensure an effective protection of families, providing for a sort of family mainstreaming, in particular in the fields of employment and State support.
This law has been strongly criticised, especially for defining family as “based on the marriage of a man and a woman,” and for protecting human life since conception. Pursuant to those critics, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) requested the European Commission for Democracy through Law (known as the Venice Commission) to give an opinion on this law. This opinion is under preparation and will be adopted and published during its next plenary session, in June 1012, along with four other opinions. Today, in anticipation to this Opinion, the ECLJ submits a Memorandum assessing this law with regard to the international commitments of Hungary to the Venice Commission. 
The ECLJ Memorandum observes that the Hungarian cardinal law on the protection of families, both in its philosophical basis and concrete measures, is in accordance with international and European law, in particular with the European Social Charter[2] and the 1989 Convention on the Rights of the Child which states, inter alia, that “the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”. 
Concerning the issues of abortion and homosexuality, the Venice Commission already acknowledged, in its 2011 opinion on the new Constitution of Hungary[3], that Hungary respects European and international law while defining marriage as the union of a man and a woman and protecting of human life since conception[4].
This law has been adopted in the context of both a demographic and economical crisis. The economic and financial situation in Hungary is highly problematic. At 1.33 children per woman, Hungary has the third lowest fertility rate across the OECD. The demographic issue is now a matter of survival for the country. Establishing the necessary conditions for child-bearing and child-rearing is the responsibility of the State, and that is the aim of the law at issue.

This law corresponds to present concerns such as the link between stable families and demography and the role of the family during a crisis. State support for families, reconciliation between work and family and promotion of parenting are increasingly recognised as necessary to ensure adequate conditions for child-bearing and child-rearing. In the past months the Parliamentary Assembly of the Council of Europe (PACE) adopted several resolutions emphasising the importance of stable families in time of crisis and taking “the view that demographic changes, low birth rates, population ageing and women’s increasing participation in the workforce are some of the factors which are driving societies to invest in human capital by adopting dynamic family policies.” [5]
Finally, it clearly appears that the criticisms regarding this law are unjustified and only based on ideological prejudice regarding abortion and homosexuality. In fact, this law, while fully respecting the letter and the spirit of international treaties provisions on family, tries to set the foundations for the demographic and economic recovery of the country, which requires the protection of life and family.
 
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[1] Available on the ECLJ website at this address:  http://eclj.org/PDF/eclj-memorandum-hungarian-law-on-the-protection-of-families.pdf
[2] The Social Charter express, both in the 1961 text and in the 1996 revised version: “With a view to ensuring the necessary conditions for the full development of the family, which is a[2] fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means (Art. 16)”. According to Article 33-1 of the Charter of Fundamental Rights of the European Union, “The family shall enjoy legal, economic and social protection”. 
[3] Adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011)

[4] In May 2011, the ECLJ has also published a Memorandum on the Hungarian new constitution of 25 April 2011. A copy is available on the ECLJ website. http://eclj.org/pdf/ECLJ_Memorendum-Hungarian-Constitution_20110519.pdf 
[5] Resolution 1720 (2010) of 19 January 2010 on “Investing in family cohesion as a development factor in times of crisis”. See also Resolution 1864-2012 of January 27, 2012.
The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007. The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others. The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).

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