Orbán's constitutional amendment is populist, unnecessary and a gutting of presidential clemency

If a thief were to steal a mobile phone from a 13-year-old girl, he would never be eligible for a presidential pardon because he had committed a crime against a minor, whereas a terrorist or someone who has murdered a member of the Roma community just because they are Roma could both be eligible for clemency.

This was the example lawyer András Gál, who represented the sexually abused victims of the Bicske children's home in court, gave previously to illustrate the practical problems raised by Viktor Orbán's constitutional amendment. According to this amendment, in the future, no presidential pardon would be available to anyone who has deliberately committed an offense against a minor. In other words, this does not only concern the perpetrators of paedophile crimes. The text reads as follows: "(8) The President of the Republic may not exercise his or her right to pardon described under paragraph (4), point (g) in case a crime has been deliberately committed against a minor."

One of the functions of presidential clemency is to correct the administration of justice and to bring the verdict closer to society's sense of justice in cases where the law is unable to address or take into consideration certain circumstances. A good illustration of this is the well-known (in Hungary – TN) case of Kitty Simek, a 14-year-old girl who shot and killed her stepfather while he was asleep in 2002, for which she was sentenced to time in prison. However, the then President, Ferenc Mádl, granted her a pardon, which was justified by her stepfather having abused both the girl and her seriously ill mother for years.

Last Thursday, following the public outcry over Katalin Novák's clemency decision, Prime Minister Viktor Orbán announced that he would propose a constitutional amendment. That was the first time the Prime Minister addressed the public after the outbreak of the political scandal known as the clemency case. And although since then, two important figures in his power structure, President Katalin Novák and former Justice Minister Judit Varga, who was the intended EP list leader of Fidesz in the upcoming EP elections have both resigned over the case, he still has not said anything further.

Limiting presidential pardons is right, but this is not the way to do it

"We are seeing yet another example of populist legislation, where laws are being rewritten by politics in response to the momentary public mood," András Vaskuti, professor at the Department of Criminal Law at ELTE University's Faculty of Law said about Viktor Orbán's proposed constitutional amendment. Vaskuti considers restricting the President's pardoning powers a legitimate goal, precisely due to the potential for abusing the right, as exemplified by the pardon granted by Katalin Novák to Endre K., who had covered up the pedophile case of the director of the children's home in Bicske, and György Budaházy, who was sentenced to a final prison term for terrorism.

To this we would add that this is not the only problem with Novák's pardons, mentioned above:

in the absence of a public justification, the message sent to society is that if you have the right connections to the powers that be, you may even be able to get out of a serious sentence. Viktor Orbán's amendment, however, does not address these concerns,

which is further indication of the fact that it was drafted without any professional and societal consultation. This is another reason why Orbán's statement in the explanatory memorandum to the submitted constitutional amendment claiming that the 'controversy' surrounding Novák's decision is thus being brought to a satisfactory conclusion is inaccurate.

There are thus several important issues that the Prime Minister's move does not settle. Additionally, this also means that, in the future, no one would be able to receive a presidential pardon if they have been convicted of a crime against a minor, even if the legal environment has changed or if there is a change in their family or health situation that might otherwise be considered a legitimate reason for such a decision.

Another intriguing question is why the amendment is limited to offenses against minors, as restricting the possibility for pardon may also be justified in cases of corruption and crimes against life, Vaskuti added.

According to the criminal attorney, even failure to pay alimony could constitute an offense against a minor, which illustrates how broad this category is and how little thought was given to the practical implications of the constitutional amendment.

Moreover, most of the penalties for offenses against minors are not serious enough to require a presidential pardon. According to the university professor, the amendment's clumsy wording also makes it unclear whether it also applies to procedural clemency. Procedural clemency allows the president to block cases that have not yet been judged by a court.

Mother who helped terminally ill child die could not be pardoned either

Similar concerns were raised by Kristóf András Kádár, co-chair of the Hungarian Helsinki Committee. In his opinion, the very fact that the constitutional amendment was submitted so suddenly raises a number of questions. The mechanism of presidential clemency is necessary because the law is not infallible, and unforeseen situations may arise for which the law is unable to prepare, he explained.

Such was the case of Györgyi Binder, who in 1993 killed her 11-year-old daughter, who was suffering from an incurable disease, and who had specifically asked her mother to do so. Binder was sentenced to a two-year prison term, but was pardoned by the then President, Árpád Göncz.

Under Viktor Orbán's constitutional amendment, Györgyi Binder could no longer receive a pardon because she committed a crime against a minor.

This would effectively undermine the corrective function of the presidential pardon. This is no longer such an abstract issue in Hungary, as the case of the constitutional lawyer Dániel Karsai, who suffers from an incurable disease, ASL, has brought the issue of euthanasia back into the spotlight in recent months.

György Magyar, who is representing the Italian anti-fascist I.S., who is currently being held in Hungary, called the constitutional amendment announced by Viktor Orbán a professional bluff, and said that the power of clemency should not be tampered with in this way.

"It has clearly not been thought through in terms of constitutional and public law. It would hollow out the power of clemency and make lawmaking impossible."

The lawyer also said that exercising the right to pardon has nothing to do with the criminal offense itself. According to him, the question is not what crime a person has committed and against whom, but rather whether he or she is worthy of pardon.

András Gál, quoted at the beginning of the article, was of a similar opinion, which is why he considers the constitutional amendment unnecessary. "Pardon is an existing, legitimate legal institution. What happened here was a misguided use of the pardon. They might as well insert it into the Fundamental Law that members of the government are not allowed to pee into the Danube from the embankment. There is no need to include this because none of them would think of such a thing," he said earlier. According to Magyar, it is entirely feasible that in certain cases a perpetrator might receive a heavier sentence because he or she committed a crime against a minor, but this should not be confused with the power of clemency.