To study the changing data protection regulations, we should first examine the expectations arising from social changes in the domain of elections and referendums. We cannot ignore the of course varied, historical experience of people who are old enough to vote. Older generations have a deep fear that roots back to the era when they were classified according to their world view, political opinions (class alien elements kulak, reactionary) and greatly determines their voting behaviour.
At the four-part referendum on 26 November 1989, with a nearly 60% turnout rate[1], then at the free elections on 25 March 1990 and 8 April 1990[2], the feeling of change and the importance of belonging were strong determining factors in the development of the parliamentary democracy after the dictatorship.
At the time, under the strong social impact of injuries and expectations, a wide range of voters did not bother with the processing of their personal data. There was a tense historic sentiment; abandoning and confronting the old regime were dominant. Being a leftist or a rightist did not only mean a choice of values but an attitude towards occupation and dictatorship. The so-called Duna-gate eavesdropping scandal, started by József Végvári, a retired police major of the Internal Security Service, was the first sign of the surveillance of the opposition parties, which still did not raise the question in the voters that they could also be subjects to surveillance. The major who revealed the secret was decorated with the Commander's Cross of the Order of Merit of the Hungarian Republic twenty years later, on the national holiday of 15 March 2010, and on the same day, dr. Bertalan Kaposvári, the retired vice president of the Supreme Court, was decorated with the same, as he, as a military judge, reprimanded the major for his revealing of state secret in 1990.
After the first freely elected parliament formed itself on 2 May 1990[3], surveillance activities of the various internal security services started to be revealed to the public, for the exploration of which activity many bills were drafted, and it shaped how lawyers later thought about data protection.
How could the citizens be efficiently protected, what regulations could ensure the freedom of expression and the protection of personal data? In this context, besides personal data, we must consider special data such as political views or party affiliation.
The right to the protection of personal data appeared in Section 34 of Act XXXI of 1989 on the Amendment of the Constitution, having entered into force on 23 October 1989, with the proclamation of the Republic of Hungary. In the Republic of Hungary everyone has the right to the good standing of his reputation, the privacy of his home and the protection of secrecy in private affairs and personal data.[4]
It is quite understandable, after the decades of dictatorship, that the Amendment of the Constitution entering into force with the proclamation of the third Republic of Hungary separately specifies the protection of personal data among the fundamental rights.
The Parliament, the Constitutional Court and the previous commissioners of data protection[5] played a key role in the development of data protection law in Hungary; after the latter position was discontinued, it is the National Authority for Data Protection and Freedom of Information (hereinafter referred to as NAIH) which acts as the data protection authority.
In the electoral procedure, voter personal data need to be processed and protected in var-
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ious fields, including the handover of contact details in the voter register to the candidates, to the nominating organisations, the system of nominating candidate MPs, the signatures collected for a referendum initiative, rules of the election campaign, or the assurance of the secrecy of the election itself.
Sometimes the regulations need to be changed due to the changing technical setting or the newer methods of candidates and nominating organisations, recommended by Hungarian or international political consultants.
Data protection issues of each domain of the electoral procedure should be examined within this context, considering the changes in the regulation, decisions of legal protection organisations relating to them, and the reasons for the current practice
According to Section 153 of Act XXXVI of 2013 on the Electoral Procedure (hereinafter referred to as Electoral Procedure Act), names and addresses of the voters in the voter register of the relevant ward are, subject to the provisions of Section 89,
(a) provided, at the request of the candidate, for the election district concerned, by the election office attached to the election commission having jurisdiction over the registration of the candidate,
(b) provided, at the request of the nominating organisation setting up a list, for the election district specified by the nominating organisation, by the National Election Office, within 5 days, but after their registration under Section 132 at the earliest.
According to Paragraph (1) of Section 154 of the Electoral Procedure Act, the provision of data under Point (a) of Section 153 is subject to the candidate's verification of the payment of the one month's amount of the mandatory minimum wage[6] as a fee for the data provision to the account of the National Election Commission. According to Paragraph (2) of the same Section, the provision of data under Point (b) of Section 153 is subject to the fact that the nominating organisation setting up the list verifies the payment of one month's amount of the mandatory minimum wage[7] as a fee for the data provision for each of the electable MPs in the election district based on lists to the account of the National Election Commission.
According to Paragraph (1) of Section 155, data provided within the context of such data provision may be used for the purposes of political campaigns only.
It is forbidden to use them for other purposes, to copy them, or to disclose them to third persons. According to Paragraph (2) of this Section, the candidate or the nominating organisation setting up a list, registered under Section 132, shall destroy data so provided on the day of the election at the latest, and they shall provide the election office having provided the data with the relevant protocol within three days.
The candidate or the nominating organisation gets the names and addresses in the voter register of the election district if they verify the payment of the amount of one month's mandatory minimum wage, on the condition that such data may be used for the purposes of direct political campaign, and they shall be destroyed on the day of the election at the latest.
To keep voters who will surely vote and are strongly affiliated to their party and to get newer ones, modern party campaigns continuously update their voter databases.
It is hard to imagine that they do not check data provided lawfully and voluntarily by the voters and correct them according to the latest address list due to a change of name, family status (marriage, divorce) or a new name under a given address, whom they could contact directly. It is forbidden to copy purchased voter register data, it is however difficult to prove such an act; it is, however, beyond doubt that it is in the interest of the candidates and nominating organisations.
Any unauthorised processing of personal data, misuse of personal data affects the legitimacy of MPs elected in the electoral procedure and their bodies; legislation should, therefore, consider not only the revealed,[8] but also the hard-to-prove, hidden - but still reasonable - phenomena. The NAIH issued a position concerning the nomination slips[9]. In this case, potential cases should be modelled according to the potential misuses and these options should
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be excluded. A candidate wants to win a seat in Parliament; to this end, he or she wants to convince voters and wants to contact as many as possible of them, for which he or she needs the most detailed voter register. Just like in the business world, where businesses try to get as many data as possible about their consumers and their habits in order to generate the highest possible profit.
The development of communication devices entails a change in the scope of relevant data. While previously home addresses were the most interesting; today, the focus is on email addresses, telephone numbers, profile sites on social media pages. Due to the comprehensive data collection of candidates, nominating organisations, the basis is still the voter register for election districts, because only those worth being contacted who are eligible to vote in the election district.
In its position[10], the National Authority for Data Protection and Freedom of Information explained that databases for different purposes must be separated from each other. The legal safeguard liked to data provided from the voter register of the lection district is that such data must be destroyed on the day of the election at the latest and the protocol documenting this destruction must be submitted to the election office in three days. Accordingly, the voter register may not serve as a basis for any database voluntarily provided by the voters and used by the candidates or nominating organisations. Practical compliance with this declarative regulation is another question.
According to Paragraph (1) of Section 45 of Act C of 1997 on Electoral Procedures (hereinafter referred to as Electoral Procedure Act of 1997), the central body maintaining the register of the personal data and home addresses of voters shall provide the candidates, nominating organisations - at their request, in exchange for a fee, and under the same conditions - with the surnames, first names, and home addresses of voters in the voter register after the 20[th] day before the date of the election. This service is also available with the additional categorisation of the voters according to their gender, age, or home address.
Decision No. 175/2011. (XII. 29.) of the Constitutional Court established that Section 45 of the Electoral Procedure Act of 1997 is unconstitutional, therefore it nullified it.
According to the mover, the contested statutory legislation is in conflict with the provision in Paragraph (1) of Section 59 of Act XX of 1949 on the Constitution of the Republic of Hungary (hereinafter referred to as the Constitution), laying down that in the Republic of Hungary everyone has the right to the good standing of his reputation, the privacy of his home and the protection of secrecy in private affairs and personal data.
According to the mover, Section 45 of the Electoral Procedure Act of 1997 grants the right to the candidates, nominating organisations to request a copy of the published voter register and the surnames, first names, and home addresses of the voters, but it does not provide the voter with the right to disable the processing of his or her personal data. To support the position, the mover referred to several previous decisions of the Constitutional Court,[11] and the position of the data protection commissioner.[12]
The Constitutional Court derived the freedom of self determination from the right to human dignity declared in Section 54 of the Constitution. In one of its previous decisions[13], it already established that human dignity, as the mother right of general rights relating to personality includes the right to the freedom of self determination.
The Constitutional Court specified the various aspects of the right to self determination; in one of its decisions[14], it explained the content of the freedom of informational self-determination in terms of fundamental rights. Paragraph (1) of Section 59 of the Constitution provides for the protection of private secrets and the protection of personal data; in its practice, the Constitutional Court linked the right to informational self-determination, the active aspect of the right to the protection of personal data, to the protection of personal data, while the protection of privacy has defined as a right derived from human dignity.[15]
The Constitutional Court[16] interprets the right to the protection of personal data as a right of informational self-determination. Accordingly, the content of the right to the protection of personal data, ensured in Section 59
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of the Constitution, is that everybody disposes over the exhibition and use of his or her personal data. Unless provides for otherwise by the law, personal data may be recorded and used with the consent of the data subject. The entire processing must be made monitorable and controllable to everybody. Everybody has the right to know who, where, when, and for what purpose uses his or her personal data.
An act of Parliament may, exceptionally, require mandatory data provision and provide for the use of data. Such an act of Parliament limits the fundamental right to informational self-determination and is only constitutional if it meets the conditions specified in Section 8 of the Constitution. The state may limit a fundamental right if the functioning or protection of another fundamental right and freedom, or the protection of other constitutional values is otherwise not possible. This is also set out in the Fundamental Law of Hungary[17]. The protection of another fundamental right or freedom, or another constitutional purpose are not enough for the constitutionality of the limitation of the fundamental right, it must meet the requirement of proportionality as well: the importance of the goal to be achieved and the gravity of the violation of a fundamental right made to this end should be proportional. In the limitation, the legislator must apply the lightest means capable of achieving a given goal. The limitation of the content of a right is unconstitutional[18], if it is done without a contingent reason, arbitrarily, or if the gravity of the limitation is disproportionate to the goal to be achieved."
The Constitutional Court examined whether Section 45 of the Electoral Procedure Act of 1997 limited the right to informational self-determination for a constitutional purpose and in compliance with the requirement of proportionality.
According to the practice of the Constitutional Court[19], an election campaign is the functioning of the freedom of expression, and, being a fundamental right, it may not be limited[20]; this may, however, function against a handful or rights only.
The Constitutional Court reviewed two possible solutions. One of them is that the central body keeping the register of the personal data and home addresses of citizens may provide the personal data of the voters in the name register for campaign purposes if the voter has given his or her expressed consent to that; this is the so-called opt-in rule; it is adopted by the Research and Direct Marketing Data Act[21] and the Business Advertising Act.[22]
The other solution would mean the conditional limitation of the right to informational self-determination. Accordingly, the voter would be entitled to prohibit the disclosure of his or her personal data for campaign purposes; however, until he or she does not do that, candidates and nominating organisations may request it from the keeper of the register and use it for the purposes of contacting and liaising with him or her within the context of the election campaign - this is the so-called opt-out rule.
In the view of the Constitutional Court, this solution could create a proper balance between the exercising of the right to informational self-determination and the right to the freedom of expression.
In June 2006, József Petrétei, the then minister for justice and law enforcement, proposed a bill[23] in the name of the Government in order to prevent the provision of data of voters who prohibited the disclosure of their names and home addresses to third persons under a separate act of Parliament, but the bill was not adopted.[24]
According to Paragraph (1) of Section 89 of the Electoral Procedure Act, having entered into force on 21 June 2013, the voter has the right to prohibit that election bodies disclose his or her registered data under Section 153. According to Paragraph (2) of the same Section, in his or her request, the voter may make a statement limiting or prohibiting the disclosure of his or her data, as allowed in the act on keeping records on the personal data and address of citizens.
Guideline No. 3/2014. of the National Election Commission, which is about certain issues of passenger transportation by bus on the day of the election, is very expressive. Parliament adopted Act CCVII of 2013 on the amendment of certain Acts related to the Fifth Amendment of the Fundamental Law at its session on 2 December 2013; its Section 9 amended the regula-
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tion of the Electoral Procedure Act with the following Section 143/A, under which the voter is entitled to use the assistance of other persons in requesting mobile ballot boxes and getting to the voting room. According to Paragraph (2) of the same Section, however, no public call may be announced for the requesting of mobile ballot boxes and transportation to the voting room; it is not allowed to use buses to transport voters to the voting room.
Guideline No. 3/2014. of the National Election Commission touches upon the definition of bus transport, referring to Point II. (e) of Appendix No. I to the Joint Decree No. 1/1975. (II. 5.) KPM-BM under, which an autobus is a vehicle for passenger transport that does not connect to electrical overhead lines and has, including the seat of the driver, more than nine permanent seats.
This regulation only means an upper passenger limit for the onetime transportation in a single vehicle; however, it does not provide a solution for the organised transport which, reasonably presumably, takes place based on a register. This tolerated behaviour raises special concern in minor settlements[25], as it is obviously inconsistent with the fundamental principles of the electoral procedure.[26] The decision adopted by the Court of Appeal of Pécs in this regard[27], for the local government election on 12 October 2014, well illustrates the issues arising from the insufficiency of the regulations.
What could be the solution to ensure data protection that is safer than the current regulation? In my view, the role the state plays in the electoral procedure is some kind of a mediation between the voters and the candidates, nominating organisations. Taking the mail of registered candidates, nominating organisations with state assistance either through a subsidy in mailing costs; the amount of the discount provided from the price of the service gets from one pocket of the state into the other. This solution could allow for cost effectiveness as well, and setting the appropriate deadline could allow for the delivery of the mail of the different candidates, nominating organisations in one go. Last, but not least, campaigning candidates, nominating organisations would not continuously disturb voters in their homes. This could allow for the attainment of the goal that the voters are called for participation in the election, as those who have disabled their data would get only the notification letter of the election bodies. It would be important for a thought-out election, and improve the equal opportunities of the candidates, nominating organisations, if the election bodies informed the voters not only about the date and place of the election, but also about the candidates, nominating organisations, and lists registered in their election districts.
This would allow voters to collect information even about those candidates, nominating organisations that do not have the business support to display themselves on billboards and other advertising surfaces.
Taking this thought further, the state could, in addition to simple enumeration, provide information on the same scope of data to support the decision of the voters, e.g. preliminary assets declaration (their comparison in case the candidate held the position over multiple cycles), proof of being registered as not having any public-law debt, educational qualification, integrity, criminal records, submission of a detailed budget of the campaign to the election commission concerned, the final accounts of which should be settled still before taking the mandate, and both should be disclosed upon submission.
If the accounts do not meet either the obligation of settlement or preliminarily set conditions, then the MPs position of the elected MP could ultimately be discontinued by operation of law, leading to an interim election. These recommendations could reinforce public confidence, considerably increase transparency, and improve the current poor quality sold with advertisements towards quality selection.
Is recommendation necessary at all? How did the system of recommendation develop after the political changes in 1989-1990? Do the candidates have equal opportunities or the candidates, nominating organisations can have databases that give them advantages in the recommendation of candidates? Do the numbers of recommendations still play a role in
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the registration of individual MP-candidates, mayor candidates, local councilor candidates? Is the data protection risk proportionate to the continuation of the institution of recommendation? Does the institution of recommendation really have the goal to limit the number of potential candidates? Do the other candidates increase the chances of re-election of the incumbent MP, as votes get dispersed among the many candidates and the MP wins with the most votes on the single-round election even despite a low turnout rate? Can the state aid increase the number of candidates, nominating organisations without accountability and can the regulations support the distribution of votes in the single-round system? Finally, let's ask the question again: is recommendation necessary at all?
Parliament adopted Act LXIV of 1990 on the Election of Local Councilors and Mayors (hereinafter referred to as Local Elections Act) at its session on 3 August 1990. The President of the Republic set the first round of the election of local councilors and mayors to 30 September 1990; hence, the electoral procedure had to be conducted based on a piece of legislation having entered into force less than two months ago, on 9 August 1990, on the date of its promulgation. It would have been quite difficult to perform this task in such a short time without the experience gained at the parliamentary election held on 25 March and 8 April 1990, given the missing election culture after 40 years of dictatorship.
According to Paragraph (1) of Section 25 of the Local Elections Act, the voter who may exercise his or her voting right in the election district may recommend a candidate. Candidates may be recommended from the 35[th] day until the 18[th] day before the election. The recommendation may not be withdrawn.
It is prohibited to offer, request, give, or accept valuable consideration for the recommendation. According to Paragraph (2) of the same Section, each voter may recommend one candidate only. If the voter has recommended multiple candidates, than all his or her recommendations shall be invalid.
According to Paragraph (3) of the same Section, a voter may accept recommendations based on single-member constituency and lists in a single settlement only. In Budapest, a voter may accept recommendations based on single-member constituency, lists of districts of the capital city, and lists of the capital city itself.
According to Paragraph (4) of the same Section, if the voter was recommended candidate in multiple places, then he or she must declare until the 17[th] day before the election at the latest which recommendation he or she accepts.
According to Paragraph (1) of Section 26 of the Local Elections Act, the voter recommended as candidate or his or her proxy may personally open the recommendation sheet in the office. Voters recommended as candidates are to make a written statement upon the opening of the recommendation sheet that he or she has the right o vote, accepts the recommendation, does not accept a recommendation at other places, and he or she is to tell the name of the recommending party or social organisation or the fact that he or she has been recommended as an independent candidate. According to Paragraph (2) of the same Section, candidates may be recommended in person on the recommendation sheet in the office or via mail addressed to the office. The recommendation sheet or the letter sent to the office includes the name of the recommended person, the name of the recommending person, his or her home address, personal identification number and his or her own signature.
According to Paragraph (3) of the same Section, one can use recommendation slips to make one's recommendation. The recommendation slip is to be put into the sealed box, personally, in the presence of the proxy of the municipal clerk or a member of the local election commission. The recommendation slip may contain the name of the recommended person, the name of the settlement and the serial number of the single-member constituency.
The so recommending voter must be registered, which means the registration of his or her name, home address, personal identification number, and his or her statement that he or she has the right to vote. The box containing the recommendation slips must be opened every day and the recommendation sheets in it must be counted for each recommended person and their number must be recoded on
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the recommendation sheet. Recommendation sheets sent via mail are invalid.
Why is this regulation important in terms of data protection? Because the identification of the recommending persons and the fact of the recommendation separate from each other, the person of the recommender cannot be traced back from his or her recommendation. This means a higher level of data protection in comparison to the application of the current recommendation sheet. It ensures the same anonymity for the recommendation as the secrecy of the vote.
Act LXII of 1994 on the Amendment of Act LXIV of 1990 on the Election of Local Councilors and Mayors brought about comprehensive changes, the main directions of which are summarised in the general reasoning of the bill[28].
The local government election became a single-turn election, thresholds of validity and effectiveness (40% and 25%, respectively) were eliminated,
The ratio of voter recommendations necessary for recommendation changed (from 1% to 3% for candidates to the local council; from 3% to 1% to 5%, subject to settlement size, for mayors),
The voter can use his or her recommendation to support multiple candidates at the same time; one voter may, however, still recommend one candidate only once;
The collection of recommendation slips, as applied in the election of MPs, is replaced by the recommendation sheet and the system of secret recommendation,
Having reviewed the main elements of the electoral reform of 1994, one can see that it meant radical changes in comparison with the rules of the first free elections. The winner of the elections wanted to increase its chances through the regulations, rewriting relevant rules directly before the local government elections.
According to the modification of 1994, one can put forward recommendations in two ways:
either on the recommendation sheet, which the nominating organisations and the independent candidates may request in the mayor's office; this document includes the name, home address, personal identification number, and own signature of the recommending person, and the name of the nominating organisation and the recommended person, or the fact of independent recommendation.
Secret recommendation was also an option, the voter can fill in the recommendation form in the mayor's office, after verifying his identity, then he or she throws it into the dedicated, sealed box. This recommendation form does not include the personal particulars of the recommending voter.
In terms of data protection, the second, secret recommendation option is exemplary for data protection, later regulations stepped back from this.[29] This solution provided full protection to the voter, his or her person was not identifiable in any way. Signing the recommendation slip allowed the candidate or the nominating organisation to access the personal data of the voter - moreover, the personal identification number, the use of which was limited by the law - , while the signing of recommendation sheet also allowed the same to other voters signing and collecting the recommendation sheet.
In its reasoning to its 2008 decision[30] concerning the signature sheet of a nationwide popular initiative, the Supreme Court drew the conclusion that the persons who signed the signature sheet disposed over their own personal data when they made it possible to persons who later signed that signature sheet to know their personal data, and this behaviour implying consent excludes the establishment of any infringement. The recommendation sheet of candidates is similar to that. According to the regulations in force[31], candidates may be recommended on the recommendation sheet only, the recommendation sheet includes the name of the recommending voter, his or her personal identification number, home address in Hungary, and the name of his or her mother. The recommending voter signs the recommendation sheet with his or her hand.
As one voter may recommend multiple candidates, the issues of data protection described above repeat themselves during the same recommendation period and, logically, with other persons. This increases the risk that more and more people can access the personal data the
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voter voluntarily provided without being authorised to do so, they do not appear as controllers, and are not accountable regarding the requirement the Information Act imposes on controllers.
According to the reasoning of the Electoral Procedure Act, the recommendation sheet has the following advantages.
The breaking of mailboxes ends completely. In addition to the fact that this sentence does not make any sense, because mailboxes are broken not only for recommendation slips; the thing is that this is the rarer case, even because of the limited time period. Stealing blank recommendation slips does not make any sense without personal data. The legislator withholds the fact it set out in its statement again that the candidate, nominating organisations could have filled in the blank recommendation slips based on lists of uncertain origin. Only the candidate or the nominating organisation setting up the list may request data provision from the voter register.[32] The plural[33], however implies the possibility that the registered candidates or nominating organisations ensure the candidature for candidates, nominating organisations without any real activity based on the data of the voter register to divide the votes casted for the other side. The recommendation sheets can be filled in with data that perfectly comply with the voter register but lack the active consent of the recommending voter and are signed with an uncontrollable, false signature.
The reasoning for the Electoral Procedure Act allows for the discontinuation of the practice that the voters only fill in their personal data and leave the rest with the nominating organisations. Based on the foregoing, this does not ensure any safer solution. The use of the word "practice" is expressing, it strengthens the presumption that larger nominating organisations aided smaller nominating organisations of the other side, and they could have misused personal data provided to them.
A leftist voter could have easily become the recommender of a small rightist party with a blank recommending slip filled in by the leftist nominating organisation it supported but not bearing the name of the nominating organisation. The so-recommended candidate could have contributed to the winning to the favourite leftist candidate by taking away votes from the candidate of a larger rightist nominating organisation. This is viable the other way around. The functioning of the basic principles of electoral procedures,[34] which the public discourse summarises as the fairness of elections, may only be ensured if data protection requirements are fully met. This is the basis of a democratic state.
If the legislator leaves open a so-called grey zone, which, let's not forget, may be created by mixing black and white, then it clearly not excludes the black zone, which might lead to the end of democracy. If the acquisition of public authority is facilitated not by lawful means but opportunities provided by the law, then the exercise of power will also be similar. And the power of legislation might even lead to the spreading of regulatory solutions allowing misappropriations specified in the law.
According to the reasoning of the Electoral Procedure Act, misappropriations can be linked to candidates, nominating organisations, and are therefore easier to prove. It is an opportunity, but not necessarily a lifelike one, because the number of voters who would consciously follow their recommendation is very tiny. Moreover, in the system of multiple recommendations, the recommending person may not know, either physically or technically, on which page of which recommendation sheet his or her recommendation will appear again, even though that recommendation does not belong to him or her. The election commission having territorial jurisdiction registers all nominating organisation, candidates, and lists on the fourth day following their announcement at the latest.[35] The voter in the central voter register, candidate, nominating organisation, and any individual or legal entity, organisation without legal personality may submit an appeal against the decision at first instance of the election commission.[36]
The appeal and the request for judicial review must be so submitted that it arrives to the election commission having adopted the contested decision on the third day following the adoption of the decision in question at he latest.[37]
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Accordingly, if the person or entity concerned wants to seek legal remedy due to an inappropriate recommendation, then he can do that until the registration of the candidate becomes final and non-appealable.[38]
This can be between three and seven days as from the announcement of the candidate. Though the election office having territorial jurisdiction destroys the recommendation sheet on the 90[th] working day following the election;[39] a recommendation that does not belong to the person who have apparently made it does not have any impact on the electoral procedure after the registration of the candidate becomes final and non-appealable.
According to the reasoning of the Electoral Procedure Act, the recommendation sheet is more economical than the recommendation slips. Though this argument stands, it is still a question whether it might override data protection requirements. The announcement of the candidate, nominating organisation replaces the announcement for the data protection register, excluding an excess procedural element and making the electoral procedure smoother, because filling in the forms is also quite a challenge for the candidates, as these are hard to understand without the assistance of election offices.
A voter who wishes to be an independent candidate and the nominating organisation wishing to put forward a candidate must hand over all the recommendation sheets made available to them to the election office within the time limit available for the announcement of the candidate. The implication of the non-fulfilment of this obligation is that the election commission registering the candidate will impose a fine on its own initiative.
The fine amounts to 10,000 HUF for each recommendation sheet not submitted.[40] Previously, this amount was unrealistically high, the half of the monthly amount of the mandatory minimum wage, 50,750[41] HUF in 2014. This implied considerable[42], uncollectable debt. The procedure is bureaucratic and expensive if the recommendation sheet is not submitted in due time. Representatives of the so-called fake nominating organisations are expected to lose their fortune, legal entities will not have any property, because even those learned from the sanctions applied in 2014 who did not enter the campaign accordingly. We can expect that the heads of nominating organisations will be homeless people, from whom the receivables may not be collected if a fine is imposed because they do not have any wealth, which increases the number of politicians who declare themselves as poor in their assets declarations.
This, however, frightens fair people away from entering the contest, because they are afraid from the considerable fine imposed on them due to the faults of their activists. Finally, we must answer the question whether recommendations are needed at all.
In my opinion, the current recommendation system is, considering the experiences gained so far, unnecessary.
It has become a tool of political competition, in which the candidates, nominating organisations who have the data of voters who support them in this way or another. We would require a modern recommendation system that guarantees equal opportunities to all candidates wishing to test themselves on the elections in acquiring their candidature.
Public confidence, trust in the independent procedure of election bodies, the organisations participating in the remedial proceedings, trust in procedures ensuring equal opportunities for candidates, nominating organisations are important factors of the electoral procedure. If somebody is looking for a job, the availability of the unknown candidate's official certificate of good conduct is important for the employer. The authority verifies certain facts,[43] such as that the candidate is not included in criminal records, does not fall within the scope of prohibition from public affairs, teaching or employment, driving, or any official action, etc.
If, for public confidence, certain activities are subject to the availability of an official certificate of good conduct, then it is particularly true for the activities of MPs, local councilors, and mayors. An MP, local councilor, or mayor should have a full integrity certificate.
The legislator has already set an obligation for already-elected MPs in terms of the database of taxpayers with no public-law debt[44], and also a sanction for non-compliance, which might result in the discontinuation of the MP-relationship.
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The Act uses the term 'conflict of interests' for MPs[45], while it uses the term "unworthiness[46] for local councilors, mayors. In case of MPs, a conflict of interests must be established for the MP who has public-law debt towards the state after the exploitation of all potential review proceedings if he or she fails to settle such debt within sixty days as from the receipt of the relevant notification according to the provisions of the decision permitting any instalment payment or deferred payment.
Concurrently with the establishment of the conflict of interests, Parliament calls the MP to put an end to the conflict of interests or to take steps for its discontinuation in five days and to report it to the Speaker. Parliament, at the same time, says that if the MP fails to put an end to the conflict of interests or fails to take steps for its discontinuation or he or she fails to announce this to the Speaker, then his or her mandate will, based on this decision, be terminated in five days as from the establishment of the conflict of interests.[47]
Being included in the database of taxpayers with no public-law debt is therefore a requirement, non-compliance with which entails the termination of the MP mandate by declaring a conflict of interests in consideration of the rules above. This appears to be in conflict with the requirement that the assets declaration has a box[48] for public-law debts. Though the regulations at a time limit for the settlement of such debts, an MP may, however, be expected to be included in the database of taxpayers with no public-law debt, already as a candidate.
Local councilors have 30 days after being elected to request their registration in the database of taxpayers with no public-law debt. A verification of the request must be submitted to the local council until the last day of the month of the submission. If it is established that the local councilor has public-law debts and does not comply with the conditions for registration in the database, then he or she will be erased from the database and the state tax authority will notify the local council and the government office of the same in writing. This only does not constitute unworthiness, but is an important piece of information for the council and the government office.[49]
In case of local councilors, the local council shall adopt a decision on the termination of the mandate of the local councilor, due to unworthiness, who has public-law debt towards the state or local government after the exploitation of all potential review proceedings if he or she fails to settle such debt within sixty days as from the receipt of the relevant notification according to the provisions of the decision permitting any instalment payment or deferred payment.[50]
According to the reasoning of Act CLXXXIX of 2011 on the Local Governments of Hungary (hereinafter referred to as Local Governments Act), the mandates of local councilors and councilors of the self-governments of national minorities are particularly important positions in public life, the acquiring of which constitutes the trust of voters, and means widespread empowerment and legitimacy from the society to manage public affairs.
Participation in the activities of local government bodies requires both moral and legal integrity from the councilors having won the trust of voters, and an important, indispensable element of this is the moral purity and leadership of the citizens taking public offices.
To prevent any misappropriations of the legal institution of unworthiness, the Act orders the procedural rules for conflict-of-interests cases to be applied as a guarantee for procedures concerning unworthiness.
It is the court who is entitled to establish unworthiness; in its decision, it establishes the reason for unworthiness specified by the law and notifies the local council entitled to decide, and the capital city or county government office.
It would be worth sanctioning not being in the database of taxpayers with no public-law debt under the same concepts for MPs and local councilors; the case should be either conflict of interests or unworthiness for both.
Requiring registration in the database of taxpayers without public-law debt was an important change; it would, however, be worth making it a condition not only for becoming an MP or local councilor, but a candidate as well.
It should be considered that the application of such a fact should not apply to the election
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period but for a preceding period as well, e.g. for continuous 5 years.
If submitting an application for an above-mentioned job advertisement is subject and is not valid without an official certificate of good conduct, then this could be expected for candidates wishing to become MPs or local councilors as well. Voters should not waste their attention on candidates who do not reach a certain degree of morality.
The quantity requirement of recommendations could be replaced by the human quality requirement. This could put an end to the excess and costly recommendation procedure, together with the enforcement procedure linked to the bureaucratic fining of recommendation sheets.
This paper has so far focused on the opportunities to acquire the personal data of voters. What can these data be used for in the campaign and what protection do voters have? The past years have shown that commercial, advertising tools and methods appeared in election campaigns, they continuously follow the changes and have become more sophisticated and aggressive. This is why similar protection is required both in commercial and election campaigns.
One of the most effective campaign tools is personal contact, which usually takes place on the street, in public spaces or in the homes of voters.[51] The so-called hawker method is learnt, elaborated in advance, applies targeted messages and a winning style.
Efficiency is further increased by the targeted contacting of voters based on a preference list. Reaffirming supporters, winning uncertain voters and making opponents unsure.
How is it possible that voter databases are made exploiting the opportunities of the current regulations? The referendum initiatives, consultation questionnaires allow for the acquisition of the personal data of citizens on a voluntary basis.
The number of referendum initiatives submitted to the National Election Commission between 15.05.2002 and 15.05.2006 was 100, 10 of which were certified with a signature sheets.[52]
The number of referendum initiatives submitted to the National Election Commission between 15.05.2006 and 13.05.2010 was 1,022,118 of which were certified with signature sheets,[53] amongst them, the so-called social referendum of 9 March 2008 was effective, asking for the opinion of the voters in three issues, the daily hospital care fee, the GP consultation fee and the training contribution.
4,061,015 voters from the total of 8,040,125 turned out at the ballot box, which is a turnout rate of 50.51%. The questions were widely supported, because the rate of yeses was above 80% in all three questions.[54]
The initiator submitted 321,805 signatures, while the threshold was 200,000[55]; though, this is the normal procedure, because it is worth submitting more signatures due to the potentially invalid ones. The initiator, however, continued to collect signatures by collecting so-called supporter signatures.
According to Paragraph (1) of Section 4 of the Privacy Act, personal data may be processed only for specific reasons, with a view to exercising rights and fulfilling obligations. All stages of processing must comply with the purpose of processing; the recording and processing of data must be fair and lawful. In its position[56], the NAIH drew the attention of processors to compliance with this rule. With a view to honouring the principle of purpose limitation, non-collection of personal data on the recommendation sheets after the authentication of the recommendations and the signatures initiating the referendum (as the purpose specified by the law has been achieved) should be made an important guarantee requirement for signature collections for MP and local candidate recommendations and referendum initiatives.
Increasing political support in itself does not constitute purpose limitation and provides further opportunities to acquire personal data. I would stress that the inclusion of these guarantee rules into the current regulations would be necessary so that the legislator can reduce
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the opportunities of personal data misappropriation.[57] It is difficult to prove these sets of facts,[58] the opportunity should therefore be minimised. According to the principle of data minimisation set out in Paragraph (2) of Section 4 of the Privacy Act, only such personal data may be processed which are indispensable for and capable of the achievement of the purpose of processing. Personal data may be processed to the extent and for the time necessary for the achievement of the goal.
It is, of course, still possible to collect supporter signatures in compliance with the rules of the Privacy Act; this should, however, be separated from the electoral and referendum procedures. In case of signature collection on a voluntary basis, the scope of valid supporter signatures is determined by the law.[59] By contrast, a so-called simple supporter signature does not imply the provision of personal data.
The voter may believe with justice to have supported a specific candidate or a referendum initiative on a specific question by providing his or her data. To express his or her sympathy, however, he or she does not need to provide his or her personal data, including the personal identification number.
Persons collecting the signatures process these data uncontrollably until they submit them to the election bodies. Compliant processing is a matter of activist preparedness and moral attitude. It is also not a by-thing that it has become easier to employ party-affiliated persons as heads and vice heads of government offices and district offices[60], and these persons have access to state records; so, possessing the personal identification number, they can access further personal or special data as well.
To understand what hierarchical guarantee systems are necessary for the elaboration or regulating systems, an interview published during the writing of this paper is a good example.[61] In this interview, a former head of a county government office reported that, before the last elections, government officers gave activists the contact details of people entitled to equity pension, and the activists contacted these people.
This paper does not want to draw attention to the assessment of such illegality in terms of criminal law, either the trueness or falseness of such a statement, but the opportunity to misappropriate personal data. Both the protection of databases in state registers and the requirement of appropriate professional qualification and political independence from the managers of such databases are important guarantees. If the case really happened, then one can assume that the perpetrators did not even know about the gravity and criminal law consequences of their actions. The above example well illustrates that the increasing role of the state can ensure the protection of personal data via election bodies; the provision of data from the voter register to candidates and nominating organisations means total exposition under the current regulations.
The legal, physical, and technical solutions of data protection all serve the exclusion or minimisation of injuries related to data protection.
The data protection requirements in the Privacy Act require the controller and the processor to consider the current level of technology at the time of taking and applying data security measures. Among the many potential processing solutions, that should be chosen which ensures a higher level of personal data protection, except if it would mean disproportionate difficulties to the controller.[62]
This requirement should, in my view, appear in the regulation as well, because the most efficient protection is if the legal regulations already exclude or minimise the chance of misuse of personal data.
The number of referendum initiatives submitted to the National Election Commission between 15.05.2010 and 29.09.2013 was 537, in which 37 signature sheets were certified.
The number of referendum initiatives submitted to the National Election Commission between 30.09.2013 and 17.01.2014 was 116, in which no signature sheets were certified.
The number of referendum initiatives submitted to the National Election Commission between 18.01.2014 and 01.08.2017 was 242, in which 14 signature sheets were certified. During this period, at the submission of the referendum initiative concerning the Sunday closure of shops, the intrusion of the so-called bald men in the National Election Office on 23 February 2016 prevented the submission of the
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referendum question, which the National Election Commission condemned in a decision[63].
This unprecedented aggressive action in the building of an autonomous administrative body lead, at the call of the Prime Minister, to the amendment of the Referendum Act[64] and the Parliament amended the act concerned by the referendum initiative[65], so no referendum took place.
On the next day, on 24 February 2016, the Government suddenly initiated a referendum, within the framework of an exclusive press conference of the Prime Minister, in the following question: Do you want that the European Union can require the settlement of non-Hungarian citizens into Hungary without the consent of the Parliament?
At the national referendum held on 2 October 2016, 3,646,334 of the total 8,272,625 voters turned out at the ballot boxes, which meant a turnout rate of 44,08%, so the referendum was invalid. The question was widely supported, as the rate of nays was above 98%.
It is worth mentioning the Budapest referendum initiative against the organisation of the 2024 Budapest Olympics, where 266,151 signatures were submitted to the Budapest-Capital Election Commission.
Thanks to the number of signatures, the Government requested the General Assembly of the Capital City in a Decision[66] to withdraw[67] its application for the organisation of the 2024 Summer Olympics. The final and non-appealable decision[68] of the Curia and the final and non-appealable decision of the Regional Court of Kaposvár adopted in a similar case[69] provided different interpretations of the law. The Curia's team analysing the case law of suffrage should focus on the assessment of this difference, but this should be the subject of another paper. Another consequence of the signature collection for the referendum was the emergence of a new political movement, which processed the personal data of more than 250,000 voters.
The importance of data protection is illustrated by the case of the Yandex. Metrica analytic service put on, and later deleted from, the e-platform of the latest national consultation[70], which the NAIH describes in detail in its report. More than 10,000 questionnaires were filled in just in one day, when the Yandex measuring code was removed. This was the personal data breach when user data of Hungarian citizens, their opinion, i.e. special data, were forwarded to a server abroad. This is a good illustration of how justified it is to change the legislation and the solution to ensure efficient data protection for voters.
The Recommendation of the data protection commissioner of 21.10.2010 regarding processing related to election campaigns[71] sends a clear message to the legislator by proposing that it should replace the current system of recommendation with a legal regulation allowing for a method not requiring any processing of personal data, which would at least reduce the number of processing and the quantity of processed data.
Considering the 25-year long functioning of the democratic rule of law and the legal and institutional changes, my summarising proposal would be strengthened independent election bodies which are independent from the person elected. This must be a requirement for the head of each election body; and these officials should have a mandate longer than that of the person, body elected, and should only be removed under redefined, appropriate guarantees. The broadest possible range of people can be involved in public life through the compliance with the requirement of separation and separate processing of voter personal data, compliance with the principles, rules of the Privacy Act, and the application of efficient data protection solutions. The introduction of a voter identification number could be a solution for separate processing. This voter identification number would not link to other data and only the independent election bodies could identify the voter.
A more intense involvement of the state would be necessary to put an end to the provision of data to the candidates, nominating organisations from the voter register. In this case, the state could act as a mediator between the voters and the candidates, nominating organisations, with a view to a more efficient protection of personal data. In addition, voters would get more authentic and more varied information about the candidates, which would reduce total costs through its transparency.
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Its potential social effects could be a separate research project. This solution could increase a more active, broader involvement in public life, individual responsibility in social issues, conscious voter behaviour, which would affect the behaviour of the voted, as they would work under a stronger social control. The quality selection of MP candidates would be supported, on the one hand, by the insertion of a new box on the form to request an official certificate of good conduct, which would be necessary to become an MP candidate, on the other hand, by the elimination of recommendation sheets, resolving their data protection issues and their bureaucratic issues related to the financial sanctioning of their non-submission. This would result in a quality selection instead of the quantity of the signatures for recommendation. The selection from candidates of integrity is a prerequisite to the elimination of individual legislation for those of economic power. A representative body consisting of rule-abiding citizens can be a real representing power. ■
NOTES
* This paper has been made within the framework of the programmes initiated by the Hungarian Ministry of Justice to raise the standard of legal education.
[1] http://valtor.valasztas.hu/valtort/jsp/t0.jsp
[2] http://valtor.valasztas.hu/valtort/jsp/t0.jsp
[3] http://www.parlament.hu/naplo34/001/001tart.html
[4] Section 59 of Act XX of 1949 on the CONSTITUTION OF THE REPUBLIC OF HUNGARY
[5] 1995-2001: László Majtényi 2001-2007: Attila Péterfalvi 2008-2011: András Jóri
[6] 127,500 HUF as from 1 January 2017, 138,000 HUF as from 1 January 2018
[7] 138,000 HUF according to Point (b) of Paragraph (1) of Section 2 of Government Decree No. 430/2016. (XII. 15.) on the establishment of the mandatory minimum wage and the guaranteed wage minimum
[8] https://www.naih.hu/files/712_2014_anasfoglalas.pdf
[9] https://www.naih.hu/files/703_2014_anasfoglalas_ajanloivek_taj_jogrol.pdf
[10] NAIH/2015/4133/6/V
[11] Decision No. 20/1990. (X. 4.) of the Constitutional Court, Decision No. 15/1991. (IV. 13.) of the Constitutional Court, Decision No. 1486/B/1996. of the Constitutional Court, Decision No. 35/2002. (VII. 19.) of the Constitutional Court, Decision No. 1202/B/1996. of the Constitutional Court, Decision No. 34/1994. (VI. 24.) AB of the Constitutional Court, Decision No. 876/B/1996. of the Constitutional Court,
[12] Recommendation of the data protection commissioner regarding processing related to election campaigns, 21.10.2010.
[13] Decision No. 8/1990. (IV. 23.) of the Constitutional Court
[14] Decision No. 15/1991. (IV. 13.) of the Constitutional Court
[15] Decision No. 46/1991. (IX. 10.) of the Constitutional Court, Decision No. 67/2011. (VIII. 31.) of the Constitutional Court,
[16] Decision No. 15/1991. (IV. 13.) of the Constitutional Court,
[17] Fundamental Law of Hungary, FREEDOM AND RESPONSIBILITY, Paragraph (3) of Article I
[18] Decision No. 30/1992. (V. 26.) of the Constitutional Court. Decision No. 67/2011. (VIII. 31.) of the Constitutional Court,
[19] Decision No. 39/2002. (IX. 25.) of the Constitutional Court, Decision No. 6/2007. (II. 27.) of the Constitutional Court,
[20] Decision No. 36/1994. (VI. 24.) AB of the Constitutional Court,
[21] Point (d) of Paragraph (1) of Section 3 and Section 17 of Act CXIX of 1995 on the Use of Name and Address Information Serving the Purposes of Research and Direct Marketing
[22] Paragraph (4) of Section 6 of Act XLVIII of 2008 on Essential Conditions of and Certain Limitations to Business Advertising Activity
[23] Bill No. T/237. on the Amendment of Act XXXIII of 1989 on the Operation and Financial Management of Political Parties and Act C of 1997 on the Electoral Procedure, and certain other Acts of Parliament, in this connection
[24] Ákos Cserny - Balázs Révész: Adatvédelmi szempontok érvényesülése a választási eljárások során [The functioning of the aspects of data protection in electoral procedures] Választási dilemmák [Election dilemmas] TANULMÁNYOK az új választási eljárási törvény nóvumai és első megmérettetése tárgyában [STUDIES in the subject of the novelties of the new electoral procedure act and its first test] Választási Rendszerek Kutatóműhely [Research Workshop on Electoral Systems] National University of Public Services, Budapest 2015
[25] http://www.nvi.hu/hu/nvb/allasfoglalasok/2014/2014-102.html
[26] Fundamental principles in Points (a), (b) and (e) of Paragraph (1) of Section 2 of the Electoral Procedure Act
[27] Court of Appeal of Pécs, No. Pk.III.20.021/2014/2.
[28] The general reasoning of Act LXII of 1994 on the Amendment of Act LXIV of 1990 on the Election of Local Councilors and Mayors
[29] Zoltán Pozsár-Szentmiklósy: Alapjogok az új választójogi szabályozásban [Fundamental Rights in the New Electoral Regulations] pp. 7-8 MTA Law Working Papers Magyar Tudományos Akadémia / Hungarian Academy of Sciences, Budapest ISSN 2064-4515 http://jog.tk.mta.hu/mtalwp2014/16
[30] No. Kvk.II.37.098/2008/4.
[31] Paragraph (2) of Section 122 of the Electoral Procedure Act
[32] Section 153 of the Electoral Procedure Act
[33] Paragraph (3) of Section 122 of the Electoral Procedure Act
[34] Paragraph (1) of Section 2 of the Electoral Procedure Act
[35] Section 132 of the Electoral Procedure Act
[36] Paragraph (1) of Section 221 of the Electoral Procedure Act
[37] Paragraph (2) of Section 224 of the Electoral Procedure Act
[38] https://www.naih.hu/files/703_2014_allasfoglalas_ajanloivek_taj_jogrol.pdf
[39] Section 128 of the Electoral Procedure Act
[40] Paragraph (2) of Section 124 of the Electoral Procedure Act
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[41] Paragraph (1) of Section 2 of Government Decree No. 483/2013. (XII. 17.) on the establishment of the mandatory minimum wage and the guaranteed wage minimum
http://www.valasztas.hu//hu/download/684/NVB_birsag2_20140530.pdf
http://www.valasztas.hu//hu/download/684/ogy_birsagok_osszesito_20151214.pdf
[43] KEKKH Criminal Registration Authority
[44] Database of taxpayers free of public-law debt in Point 32 of Section 178 of Act XCII of 2003 on the Rules of Taxation
[45] Section 88 of Act XXXVI of 2012 on the Parliament
[46] Paragraph (1) of Section 38 of Act CLXXXIX of 2011 on the Local Governments of Hungary
[47] Paragraph (2) of Section 93 of Act XXXVI of 2012 on the Parliament
[48] Point of Schedule No. 1 to Act XXXVI of 2012 on the Parliament
[49] Paragraph (4) of Section 38 of Act CLXXXIX of 2011 on the Local Governments of Hungary
[50] Point (d) of Paragraph (1) of Paragraph (1) of Section 38 of Act CLXXXIX of 2011 on the Local Governments of Hungary
[51] Recommendation of the data protection commissioner regarding processing related to election campaigns, 21.01.2010.
[52] http://www.valasztas.hu/hu/download/869/nepszavazas_stat_2017_08_01.pdf
[53] http://www.valasztas.hu/hu/download/869/nepszavazas_stat_2017_08_01.pdf
[54] http://www.valasztas.hu/hu/ovi/42/42_0.html
[55] Paragraph (1) of Article 8 of the Fundamental Law of Hungary
[56] Guideline of 29 September 2015 of the National Authority for Data Protection and Freedom of Information on the data protection requirements of preliminary information
[57] Section 219 of Act C of 2012 on the Criminal Code of Hungary
[59] Paragraph (2) of Section 122 of the Electoral Procedure Act, Paragraph (2) of Section 15 of Act CCXXXVIII of 2013 on Initiating Referendums, the European Citizens' Initiative and Referendum Procedure
[60] Paragraph (2) of Section 20/D. of Act CXXVI of 2010 on the Metropolitan and County Government Offices, on the Formation of Metropolitan and County Government Offices
https://mno.hu/belfold/kitalalt-a-volt-foigazgato-fidesz-pres-alatt-a-kormanyhivatalok-2413897
[62] Paragraph (6) of Section 7 of the Privacy Act
[63] Decision No. 15/2016. of the National Election Commission
[64] Act XLVIII of 2016 on the Amendment of Act CCXXXVIII of 2013 on Initiating Referendums, the European Citizens' Initiative and Referendum Procedure
[65] Act XXIII of 2016 to amend certain Acts concerning working in the retail sector on Sundays
[66] Government Decision No. 1093/2017. (II.22.)
[67] Decision No. 212/2017. (03.01) of the General Council of the Capital City
[68] Kpkf.IV.37.347/2017/3.
[69] 20.PK.21.627/2016/2.
[70] https://www.naih.hu/files/Adatved_jelentes_naih-2017-2088-20-V.pdf
[71] Recommendation of the data protection commissioner regarding processing related to election campaigns, 21.01.2010.
Lábjegyzetek:
[1] The author is PhD student, Doctoral School of the Faculty of Law at the University of Pécs.
Visszaugrás
