THE OMBUDSMAN'S PETITION TO THE CONSTITUTIONAL COURT ON THE HUNGARIAN ACADEMY OF ARTS
The Hungarian Academy of Arts Association was founded in 1992 and functioned as a civil society organization for almost twenty years. The Basic Law passed in 2011 provided for the establishment of a public body with an unchanged name, putting it "Hungary shall protect the freedom of scientific research and artistic expression of the Magyar Tudományos Akadémia (Hungarian Academy of Sciences), the Magyar Művészeti Akadémia (Hungarian Academy of Arts) …" Pursuant to this, the HAA as an association had ceased to exist and it was established as a public body. Pursuant to the legal provisions, only members of the Hungarian Academy of Arts association can participate in the establishment. The HAA received the property rights of the Műcsarnok (Kunsthalle) and the Pesti Vigadó (Vigadó Concert Hall), and has several other entitlements to influence the cultural public life.
A civil society organization turned to the Commissioner for Fundamental Rights, asking him to review the Act establishing the HAA. Based on the complaint, the ombudsman pointed out that the state, independent of its form and content, has to protect the works of art neutrally. Artistic freedom is not violated in itself if the state has cultural priorities but it may not regard either of the trends as exclusive and it has to avoid assessing the content of art. It therefore follows that the public body embodying artistic freedom has to be neutral and many-sided.
Based on the applicable Act, members of the HAA could come from only one civil society organization (the Hungarian Academy of Arts association) and it was not possible for members of other artistic organizations to become founding members. Máté Szabó stressed that nothing prevents members of a civil society organization becoming members of the HAA. However, the artistic freedom is violated if founding members of a public body designed as an embodiment of neutrality and many-sidedness come from members of exclusively one civil society organization set out in a statute. Considering this, the ombudsman asked for the annulment of the provision on the basis of which the founding members are the ordinary members of the HAA and the provision on the method of election of further members. As long as the membership of the HAA does not meet the requirement of pluralism, the admission of new members may not be simply the consequence of the nomination and decision of the old members.
The ombudsman raised the attention to that as well that the conditions of membership can be set out only in laws. Consequently, the provision providing possibility for the HAA to set out requirements for membership in its Articles of Association is contrary to the Basic Law.