Hungary’s Sovereignty Protection Authority will be able to investigate just about anything and anyone

One of the key elements of the so-called sovereignty protection bill submitted by the Hungarian government on Tuesday evening is the establishment of a so-called Sovereignty Protection Authority (SPA) as of 1 February next year. The agency, which will be set up to "safeguard" political sovereignty, will be able to investigate "processes suggesting foreign interference". Exactly what is considered 'foreign interference' is not clear, but the question of who this authority will be allowed to investigate is also open to interpretation: it will be up to the legislator to interpret what 'any act of disinformation aimed at influencing democratic debate and the state's societal decision-making processes' is as they see fit.

The office would be given a wide range of tasks: it would be responsible for developing a "methodology for evaluating threats to sovereignty" and then, based on this information and its evaluation, "analysing the enforcement of national sovereignty". They will also make proposals and recommendations for measures aiming to safeguard Hungary's sovereignty. And one of its most important tasks will be to produce an annual report.

The President of the Sovereignty Protection Authority is to be appointed by the President of Hungary for a term of six years, on the recommendation of the Prime Minister. The first President will be proposed by Viktor Orbán by 1 January and appointed by Katalin Novák by 1 February 2024 at the latest. The first President could thus be in office as late as the beginning of 2030.

Who may be investigated is open to interpretation

The powers given to the SPA as to whom it may investigate can be interpreted quite broadly. On the one hand, it will have the power to investigate "advocacy for and acts of disinformation aiming to manipulate information on behalf of another state, foreign entity or natural person", and on the other hand

"activities aimed at influencing democratic debate and the state's and the society's decision-making processes, if they may infringe on or threaten the sovereignty of Hungary".

The broad interpretation of the agency's powers is made possible precisely because of the wording of the section referring to, "activities aimed at influencing democratic debate and the state's and society's decision-making processes". Practically anyone fits under this umbrella, including journalists, not only organizations standing for election or NGOs. This type of legislation, and such a provision being left so vague, is typically used by autocratic regimes.

The purpose then, is to ensure that no one knows exactly how a particular section is to be interpreted, so that the legislator can use the law for their own purposes.

Additionally, it is precisely because of this broad interpretation that the authority's powers can also have a deterrent effect, as has already been seen in the case of the so-called child protection (but heavily anti-LGBTQ ) law.

The proposal details the possibility of reviewing and investigating organisations which use foreign funding to influence the outcome of elections, as well as those who use foreign funds to influence voters. "Influence" is also a broad term in these cases, which means that if any election-related organisation receives funds from abroad, it can effectively be investigated by the office.

If the SPA detects an irregularity that it deems worthy of an infringement procedure, criminal prosecution or other proceedings, it will notify the competent authority. In other words, the Sovereignty Protection Authority will only "map" and investigate, but if they believe that there is genuine suspicion of a criminal offense, they will basically refer the case to the relevant authority for investigation and further action.

According to one of the provisions in the draft, the new agency will work to "promote transparency" and should also work in partnership with all public authorities to "safeguard national sovereignty". Again, how someone defines "safeguarding national sovereignty" is also up for interpretation. However, recent political statements from members of the governing parties, for example from Fidesz group leader Máté Kocsis, have made it clear that they consider it a matter of political 'national sovereignty' that 'the Hungarian left is being funded using the shared funds of European citizens: newspapers, websites, and pseudo-NGOs have received EU funds, while they haven't given any money to the teachers'. This is just one example, but it demonstrates how broadly the concept of 'national sovereignty' can be interpreted.

The SPA will investigate individual cases, and the results will be made publicly available on the agency's website. These "notices on findings" will contain the facts uncovered during the investigation, but will also include "help" interpreting them. In fact, they will also provide information on what should be interpreted and how.

The Big Annual Report

In a report to be produced each year by 30 June, the Authority will report on the efficiency of "legislation affecting national sovereignty" and on problems with its implementation. It will also contain recommendations for the various competent bodies and will describe how these bodies have implemented recommendations in the past.

The report will include the names of organisations which have failed to comply with their obligation to provide information to the SPA, i.e. those who have not complied with the agency's requests will be publicly named.

Those who are to be included in the report will be notified before it is published.They will be able to make comments, and the Authority will have to justify why it is not taking those comments into account.

In order to ensure that the report is not completely weightless, the Authority will send the findings to the Parliament's committee dealing with matters of national security (currently the Committee on National Security) and to the Government. The Government will then have three months to send a response on the agency's findings, in which it will outline how it will proceed based on the same. In other words, the agency, which is led by the leader proposed by Viktor Orbán, will send recommendations to the government led by Viktor Orbán on what more should be done to further safeguard "national sovereignty".

How will they operate?

The agency may request information and data for its investigations from any state or local government body and other organisations or individuals relevant to the case in question. 15 days will be given to respond to the SPA's request, but if no response is received, that will be just enough for the body to include the name of the organisation and its "offence" in the SPA's annual report.

The Sovereignty Protection Authority will be able to access, inspect and make copies of all data of the investigated organisation, state- or local government body which are connected to the case under investigation. It may also request information from any member of the staff of the institutions or entities being investigated and may request copies of any documents, including those stored on an electronic device, which may be relevant to the case under investigation.

The President of the SPA may also request that the Parliament's Committee on National Security summon the head of the organisation under investigation for an inquiry.

This may happen if one of two things are true: if the investigated organisation failed to provide the SPA with the requested information within 15 days, or if the nature or "gravity" of the case justifies it.

The SPA's president must be a higher education graduate with no criminal record and must not be a threat to national security. The position is not compatible with any other public mandate or office. The president must also provide a declaration of assets.

The Sovereignty Protection Authority will also have two vice-presidents, who will be appointed by the president and will be subject to the same requirements as the president.

As the proposal reveals, sovereignty may also be researched, as the SPA will also have a research institute. Its task will be to support the work of the agency and to "carry out independent scientific work", which will be done by the head of the agency and the staff. The research institute will issue publications on sovereignty, organise conferences and may even commission external experts.