Skating on Thin Ice – Campaigning in a Secondary School?

Luca Sevaracz

Likewise, with other tasks, the digital transition in education did not go entirely smoothly during the outbreak of the COVID-19 pandemic. This health crisis implied a multi-faceted challenge, even for developed countries like Hungary. One of the most intense questions was how the state can ensure equal access to digital education, regardless of the pupils’ and their families’ financial backgrounds. This problem area resurfaced during the election campaign period when the Curia (the Supreme Court of Hungary) had to answer a frequently raised question: whether it was campaigning, or it shall be considered exercising the right to hold office. From a politician's point of view, it always fulfils the requirements of a skating-on-thin-ice situation.

On the fourth day of the official election campaign period, one of the ruling parties’ members of the National Assembly attended a ceremonious handover of digital tools in a secondary school located in the single-member constituency where he was the ruling parties’ candidate again. This event was pursued within the framework of a project coordinated by the Government. The candidate also shared a post on his public Facebook account about the successful delivery with the following short passage: “…The teachers and the students were provided with laptops by the Government of Hungary. Our goal is to make digital education accessible to everyone. […] Hungary is going forward, not backward.” The applicant based his request on the principles (the fairness of the election, equal opportunities for candidates and exercising of rights in good faith in accordance with their purpose) of Act XXXVI of 2013 on Electoral Procedure, as well as, underlyingly one subsection of Act CXC of 2011 on National Public Education (NPEA) which generally prohibits any type of political activities in public educational institutions.

In its decision (Kvk.I.39.245/2022/3.), the Curia differentiated between two questions, since the applicant had not precisely determined whether he referred to the slogans used on social media as a justification for the possible violation of both Acts or he requested the Court to declare the separate violation of the EPA’s principles. Examining the attendance of the candidate, the Court held that it shall not be considered a campaign activity, since it did not aim to influence voters’ choices. Contrary to that, the candidate only exercised his right to hold office (which cannot be generally restricted under the jurisprudence of the Hungarian Constitutional Court) as the current member of the National Assembly elected in the school’s single-member constituency. Therefore, the violation of both Acts cannot be established regarding the candidate’s attendance. Subsequently, the Curia stated that the candidate’s Facebook post cannot be linked to the violation of the NPEA, thus violation of the EPA’s principles cannot be inferred from that either. Furthermore, the applicant had not submitted a detailed justification for the separate violation of the EPA’s principles, consequently, the Supreme Court rejected the substantive examination of the same.

Then, the petitioner brought a case before the Hungarian Constitutional Court (HCC) which examined the possible limitation of parliamentary representatives’ activities on the basis of standing for re-election. The Constitutional Court upheld the ruling of the Curia, and after having onsidered its previous case law, the HCC maintained, similarly to the Curia, that in these situations, a case-by-case analysis is required.

September 2022


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