News

The state of danger affects the operation and the responsibility of the Constitutional Court as well

20 April 2020

The Act on the containment of coronavirus adopted by the National Assembly also affects the Constitutional Court. As long as the announced state of danger exists, the members of the Court bear enhanced responsibility. The state of danger also implies that – in case the National Assembly does not have sittings – the Constitutional Court shall act as the main control of the Government’s orders. With account to this, the president of the Constitutional Court has taken multiple measures.

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Justice András Varga Zs. has been elected as the Vice-President of the Sub-Commission for Constitutional Justice of the Venice Commission

11 December 2019

The Sub-Commission is responsible for providing opinions on regulations concerning constitutional courts in the Members States of the Council of Europe and in other Member States of the Venice Commission. The members of the Sub-Commission, besides the liaison officer, are ex officio members of the Joint Council on Constitutional Justice which is a body of primary importance in the dialogue between the constitutional courts and equivalent bodies.

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Bilateral Meeting Between the Constitutional Court of Hungary and the Constitutional Court of the Republic of Croatia

26 November 2019

At the bilateral meeting, the Constitutional Court of Hungary (CCoH) was represented by President Tamás Sulyok, Judges Ildikó Marosi and András Zs. Varga, Secretary General Botond Bitskey and Attila Szabó, Head of the Presidential Cabinet, whilst the Constitutional Court of the Republic of Croatia (CCoRC) was represented by President Miroslav Šeparović, Vice-President Snježana Bagić, Judge Davorin Mlakar and Ksenija Podgornik, Director of the Presidential Office.

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Official working visit of the Constitutional Court of Romania

22 November 2019

On 13-15 November 2019, the delegation of the Constitutional Court of Romania, headed by Mr Valer Dorneanu, PhD, President of the Court, and composed of Mr Varga Attila, Judge, Mrs Claudia-Margareta Krupenschi, Assistant Magistrate-in-chief, Director of the President Office, and Mr Károly Benke, Assistant Magistrate-in-chief, at the invitation of Dr Sulyok Tamás, President of the Constitutional Court of Hungary, paid an official working visit to Gyula, Republic of Hungary.

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The dialogue between the European Court of Human Rights and the Constitutional Court of Hungary is continuous and exemplary

30 September 2019

The Vice-President of the European Court of Human Rights (ECHR) visited Hungary and Budapest for the first time, and the first institution he paid a visit to was the Constitutional Court (CC). Róbert Ragnar Spano was accompanied by Péter Paczolay, the Hungarian member of the Strasbourg-based court and the former president of the CC. During their visit, they discussed the current issues of interpreting the law with Tamás Sulyok, the President of the Constitutional Court, who also presented to the Vice-President of the ECHR the operation of the institution.

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HUNGARIAN FUNDAMENTAL RIGHTS GAIN INTERNATIONAL ATTENTION

19 September 2019

Constitutional dialogue and facilitating international relations are of essential importance for safeguarding our national identity. The Constitutional Court of Hungary was one of the first constitutional courts to put forward this idea in the European Union. Maintaining and expanding the dialogue was the aim of the event initiated and organised for the third time by the Constitutional Court with the participation of the representatives of the diplomatic corps in Hungary. 45 embassies accredited to Budapest were represented at the event held in the House of Traditions.

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THE CONSTITUTIONAL COURT ORGANISED IN BUDAPEST A EUROPEAN LEVEL SUMMIT CONFERENCE ON CONSTITUTIONAL IDENTITY

9 March 2019

For the first time in the history of the institution, accepting the invitation of the President of the Constitutional Court, Koen Lenaerts, the President of the Court of Justice of the European Union and Andreas Voßkuhle, the President of the German Federal Constitutional Court arrived to Budapest and held keynote speeches at the conference “Constitutional EU-dentity 2019”. The constitutional courts of Austria, the Netherlands, the Czech Republic, Latvia, Luxembourg, Italy, Switzerland and Slovenia were represented by their presidents or vice-presidents. In addition to our foreign guests, the President of the Republic, the President of the Constitutional Court, the Minister of Justice, Hungarian dignitaries of public law, scholars of constitutional law, public administration professionals and representatives of the academic sphere also attended the conference. The matchless international professional event took place at the Hungarian Academy of Sciences. The conference offered an exceptional opportunity for the participants to facilitate the international dialogue of constitutional courts.

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THE CONSTITUTIONAL COURT’S INTERPRETATION OF THE FUNDAMENTAL LAW SHALL BE RESPECTED BY EVERYONE

5 March 2019

The Constitutional Court stated in its recent decision: the applicability of the European Union’s law in Hungary is based on the Fundamental Law. During the interpretation of the Fundamental Law, the Constitutional Court takes into account the obligations binding Hungary on the basis of its membership in the European Union and under international treaties, nevertheless, the interpretation provided by the Constitutional Court shall not be derogated by any interpretation provided by another organ. The Constitutional Court also established that granting asylum to a non-Hungarian national who arrived to the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution shall not be regarded as a constitutional obligation of the Hungarian State. This, however, shall not exclude that the Parliament may grant asylum to such persons under the substantive and procedural rules it may specify.

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THE CRIMINAL CODE’S NEW STATUTORY DEFINITION SANCTIONING THE FACILITATING OF ILLEGAL IMMIGRATION IS NOT IN CONFLICT WITH THE FUNDAMENTAL LAW

5 March 2019

According to the decision of the Constitutional Court, with appropriate judicial interpretation the criminal offence of facilitating illegal immigration shall not be considered realised if the aim of the activity is limited to the mitigation of the sufferings of those in need and to the humanitarian treatment of such persons. To reinforce this, the Constitutional Court laid down as a constitutional requirement that the new statutory definition shall not be applicable to the altruistic conducts that perform the obligation of helping the vulnerable and the poor.

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All NEWS AND EVENTS

LATEST DECISIONS/SUMMARIES

Decision 242/2020 on establishing a constitutional requirement

21 May 2020

In an ongoing lawsuit related to a land trade dispute, the Győr Administrative and Labour Court requested the Constitutional Court to annul one of the statutory provisions related to the Act on the trade of land. The Constitutional Court rejected the judicial initiative, however, it also ruled ex officio that in case of the application of a section of the Act on Certain Measures and Transitional Regulations related to the Act on Agricultural and Forestry Land Trade it is a constitutional requirement that the court may not refrain from applying Hungarian law, provided that EU law is not affected. In the case which gave rise to the judicial initiative, the plaintiff (a legal person) had had registered rights of use in respect of a number of real estates, however, the administrative authorities revoked its rights of use in line with a provision of the disputed section of the Act. According to the essence of the petition, the lawmaker violated the requirement of legal certainty, the prohibition of legislation with retroactive effect and the right to property when it resolved in the disputed statutory provision an issue, which has been subject to debate both in the legal literature and in the judicial case law, by declaring the right of use constituted for the benefit of a legal person was an error in conflict with the law. The Constitutional Court stated in its decision that the challenged provisions did not directly terminate a right and thus they did not infringe the petitioner’s right to property; the right of use has been abolished by law for the future, therefore, the provision does not violate the prohibition of retroactive effect either. The Constitutional Court also found that, although he had not upheld the petition, initiating the petition was still reasonable. Namely, in its recent rulings, the Curia, based on the CJEU’s SEGRO judgement, had first declared the application of the provision at issue in the present case to be contrary to European Union law, thus, based on the principle of the primacy of Union law, it had excluded the application of the Member State’s regulation contrary to Union law, and then extended it to situations not affected by EU law. The Constitutional Court therefore considered it necessary to resolve in the case the contradiction that arose between the primacy of EU law and the Fundamental Law as a result of judicial interpretations. Apart from the act of the lawmaker, only an annulment decision adopted by the Constitutional Court may terminate, with universal effect, the applicability and the force to be applied of a valid and effective Hungarian law; the decision of a court with such content is excluded by the Fundamental Law. According to the Constitutional Court, in the absence of a specific legal act uniformly applicable in the Member States of the European Union, a court cannot ignore a law in force by way of the broad interpretation of the judgement of the Court of Justice of the European Union. On the contrary: the Fundamental Law obliges all state bodies, including the courts to defend the constitutional identity of Hungary. An unjustified failure to apply the existing domestic law violates the principle of the rule of law, therefore, the arbitrary non-application, for whatever reason, of domestic law in force is in conflict with the Fundamental Law, thus it shall not be allowed either by the unjustified application of EU law or by resolving a perceived but in fact non-existent collision. The Constitutional Court thus established as a constitutional requirement that the court may not dispense with the application of Hungarian law, provided that EU law is not affected. Taking into account the constitutional requirement is mandatory for the courts not only in the case under investigation, but also in general, and in case of any doubt in this respect, it is justified to submit a judicial initiative to the Constitutional Court concerning domestic law, because only in this case will the Constitutional Court be in a position to resolve a potential collision.

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Decision 23/2019 on disclosure the image of a person exercising public authority

18 July 2019

Summary of the decision: In a constitutional complaint procedure, the Constitutional Court annulled the judgement of the Budapest-Capital Regional Court of Appeal delivered in the subject matter of the violation of the right to image. The television channel that submitted the constitutional complaint had aired a report in the news about a trial at the Curia, and in the broadcast the face of the accused person had been masked, but the face of the staff member of the penal institution accompanying the accused person had been visible. The employee of the penal institution had filed a claim against the TV channel and as a result the proceeding courts condemned the channel for the violation of personality rights, as the concerned employee of the penal institution had not agreed to the disclosure of his image. The petitioner then submitted a constitutional complaint with reference to the violation of the freedom of expression and the freedom of the press. According to the petitioner, the concerned video recording provided information about the events of the present time and it was a report about an event challenging the public interest in terms of exercising public authority, therefore no consent by the affected person was necessary for making the recording and airing it. The Constitutional Court held that the relevant constitutional question in the case was whether the image of a person exercising public authority at a court trial could be disclosed freely with reference to the freedom of the press, i.e. whether a media content showing an identifiable a person attending a court trial and exercising public authority there could be made accessible. As interpreted by the Constitutional Court, if a person exercising public authority becomes identifiable in this quality in a certain media content, the protection of the image, in itself, shall not justify the restriction of the freedom of the press. The “protection of the image” may only restrict the freedom of the press, if the disclosure of the image causes the injury of a fundamental right or of another constitutional value. Therefore, as a general rule, the persons exercising public authority should tolerate the disclosure of their image during their official activities. The order of the trial and the independence of the judicial system are constitutional values that, in general, justify the restriction of the freedom of the press, however, it does not mean that the activity of the press could be totally restricted at a court trial. Nevertheless, if the persons directly affected by the lawsuit do not raise an objection against reporting by the media, then other persons may not challenge the exercising of the freedom of the press by referring to the order of justice. As the courts that had proceeded in the case had delivered judgements contrary to these constitutional limitations, the Constitutional Court annulled the challenged judgements.

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Decision 19/2019 on the violation of the rules on staying habitually on public ground

18 June 2019

The regulation in the Act on Offences regarding the prohibition of staying habitually on public ground is not contrary to the Fundamental Law. The Constitutional Court rejected the judicial initiatives challenging the provisions of the Act on Offences prohibiting staying habitually on public ground. The Constitutional Court stated as a constitutional requirement that the challenged sanction under the law applicable to minor offences shall only be applicable, if the placement of the homeless person was verifiably granted at the time of committing the conduct.

The petitioning judges held the challenged provisions to be contrary to the principle of the rule of law as well as the right to human dignity. They referred to a decision of the Constitutional Court adopted in 2012 – annulling a statutory definition of a minor offence of essentially similar content – as well as to the text of the Fundamental Law amended meanwhile, which does not justify the criminalisation of staying habitually on public ground.

In the decision published today by the Constitutional Court, with due account to the amended regulation of the Fundamental Law – prohibiting for everyone in general staying habitually on public ground – it took a stand on the inapplicability of the 2012 decision of the Constitutional Court. The Constitutional Court shall follow the text in force of the Fundamental Law and it is not empowered to review the content of the Fundamental Law or the amendments of the Fundamental Law. In the course of exercising his or her constitutional rights, the individual is responsible not only for himself or herself, but also for the other members of the community; the exercising of rights should be in balance with his or her responsibility for the community.

Violating a prohibition laid down in the Fundamental Law, i.e. an unlawful conduct shall not be protected by the Fundamental Law. According to the decision, the challenged regulation complies with the constitutional requirement applicable to the law on minor offences, and also enforces its guarantees. The regulation shall impose a sanction against anyone who resists to dispense with staying habitually on public ground despite of the relevant prohibition laid down in the Fundamental Law and despite of receiving multiple explicit warnings. Therefore, the relevant statutory definition of the offence does not sanction a state (being homeless), but it shall impose a legal consequence on violating the obligation of cooperation.

The Constitutional Court pointed out that in the respective case the examination focused on the right of self-determination and the autonomy of action, as the restrictable part of the former, rather than the untouchable “core dignity” of human dignity. This, however, may not result in the violation of a certain prohibition under the Fundamental Law, or the committing of a minor offence. In line with the values of the Fundamental Law, no one shall have the right to be destitute or homeless; this state is not part of the right to human dignity.

To the contrary, if the State left the individual alone without caring for him or her, it would cause an injury, since the right to human dignity is seriously violated by the marginalisation of the individual from the human society. The Constitutional Court underlined that the petitioning judges failed to verify that those who use the services of the welfare system are treated as objects and that they are dehumanized. Neither is it verified that in case of using the services of the welfare system, the affected persons are placed among circumstances without human dignity. If indeed such a situation would still occur, the protection of fundamental rights shall be granted for the party whose right has been violated.

Furthermore, the State’s obligation of protecting institutions shall result from the Fundamental Law. The State can fulfil this obligation by providing for introducing the affected persons into the welfare system. In the absence of cooperation by the individual, the sanction under the law applicable for minor offences shall be the ultimate tool available for the State. At the same time, the Constitutional Court stated as a constitutional requirement that the challenged sanction under the law applicable to minor offences shall only be applicable, if the placement of the homeless person was verifiably granted at the time of committing the conduct. In addition, the authorities applying the law should take into account the constitutional obligation aimed at protecting the vulnerable, as well as the fact that the protection of the rights of the affected persons can only be granted by way of introducing them into the welfare system. Justice Béla Pokol attached a concurring reasoning and Justices Ágnes Czine, Imre Juhász, Ildikó Hörcherné Marosi, Balázs Schanda, István Stumpf and Péter Szalay attached dissenting opinions to the decision.

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Decision 14/2019 on establishing the conflict with the Fundamental Law and on annulling the ruling No. 59.Szk.1163/2017/6/I of the Szombathely District Court

17 April 2019

The Constitutional Court stated that the ruling No. 59.Szk.1163/2017/6/I of the Szombathely District Court is in conflict with the Fundamental Law, therefore the Constitutional Court annulled it. The petitioners of the constitutional complaint painted with colour paint the cracked parts of a pavement segment partly for the purpose of preventing accidents and partly for the purpose of calling the attention of the authority and of the general public to the defects of the pavement surface. The authority of infractions warned the petitioners because of committing a public cleansing misdemeanour. The court proceeding with the case on the basis of the objection made by the petitioners then concluded that the petitioners’ conduct of using other person’s property for the expression of their opinion without the consent of the owner had been dangerous to the society as it had violated the owner’s right of disposal. The petitioners turned to the Constitutional Court against the final ruling of the court. In the petitioners’ opinion, the judicial decision injures their right to the freedom of expression as well as their right to the freedom of artistic creation. The Constitutional Court has found the petition well-founded. All conducts bearing a communicative message and not affecting the object of private property or affecting it with the owner’s consent, and not causing damage to the object of public property shall be covered by the constitutionally protected realm of expressing opinions. The person expressing an opinion share his or her ideas not only by saying words, but also by using images, symbols or by wearing items of clothing. It is the duty of the courts to assess whether the conduct under review is protected by the freedom of expression or it is an act of vandalism. In the present case, the conduct was an act of communication interpretable by the public both according to the subjective intention of the person “expressing the opinion” and according to an objective assessment. The Constitutional Court stated: the court failed to interpret the petitioners’ conduct adequately, and it restricted disproportionately the petitioners’ right to the freedom of expression. The court also failed to take note of the absence of the conduct’s dangerousness to the society. Justices dr. Egon Dienes-Oehm, dr. István Balsai, dr. Imre Juhász, dr. Attila Horváth, dr. Béla Pokol and dr. Mária Szívós attached their dissenting opinions to the decision, while Justices dr. István Stumpf and dr. András Varga Zs. attached concurring reasonings.

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Decision 2/2019 on interpretation of the Fundamental Law

8 March 2019

On behalf of the Government of Hungary, the minister of justice submitted a motion to the Constitutional Court requesting the interpretation of the Fundamental Law concerning the relation between the Fundamental Law and the law of the European Union. The background of the case is that the European Commission sent an official notice to Hungary – in the framework of an infringement proceeding – in which it explained that according to the Commission’s interpretation the provisions of the Fundamental Law on asylum violate the relevant regulations of the European Union. The particular constitutional issue raised by the petitioner was the relation between the interpretation of the Fundamental Law by an organ of the European Union and the genuine interpretation provided by the Constitutional Court.The Constitutional Court pointed out: Hungary participates in the European Union in the interest of developing the European unity, for the purpose of expanding the freedom, prosperity and security of European nations. The Union law does not fit into the hierarchy of the domestic sources of law; it has been made part of the legal system by a constitutional order incorporated in the Fundamental Law. In most cases the parallel existence of Union law and domestic law does not cause any constitutional dilemma as the two normative systems are based on a common values. However, with regard to the assessment of certain national norms, the Constitutional Court and the European Union may reach different conclusions. Since the Fundamental Law requires compliance with the Union law, as a constitutional obligation, collisions may be resolved by paying respect to constitutional dialogue.However, the genuine interpretation of the Fundamental Law is the duty of the Constitutional Court and all organs or institutions shall respect it in their own procedures. The Constitutional Court has committed itself to constitutional dialogue: in the present case it interpreted the Fundamental Law in line with the so called Europe-friendliness by interpreting the content of the norm to also comply with the law of the European Union.Regarding asylum, the Constitutional Court underlined: the right to asylum is not the refugee’s individual subjective right and it stems from the international treaties undertaken by Hungary. A non-Hungarian national who arrived to the territory of Hungary through any country where he or she was not persecuted or directly threatened with persecution shall have a claim, protected as a fundamental right, to have his or her application assessed by the authority. It is the duty of the Parliament to determine and lay down in a cardinal Act the fundamental rules on granting asylum.Justices dr. Egon Dienes-Oehm, dr. István Stumpf, dr. Mária Szívós and dr. András Varga Zs. attached concurring reasonings, and Justices dr. Ágnes Czine, dr. Imre Juhász, dr. Béla Pokol and dr. László Salamon attached dissenting opinions to the decision.

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Decision 3/2019 on the support of illegal immigration

7 March 2019

Constitutional complaint aimed at establishing the lack of conformity with the Fundamental Law and annulling Section 353/A of the Act C of 2012 on the Criminal Code (facilitation and support of illegal immigration)

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Decision 1/2019 on the case of pouring paint on a Soviet memorial

13 February 2019

The Court examined the following: on what grounds may a physical act be regarded as an expression of opinion and whether in this context pouring paint on a monument is to be protected on the basis of the freedom of expression.
The petitioners of the constitutional complaint threw balloons filled with orange paint at the Soviet military memorial located on Szabadság Square in Budapest several times. According to their account, it was an act of raising attention to express their political opinion, namely their negative opinion about the Government’s policy of favouring Russia. The court of first instance established that the petitioners’ act classified as a minor offence of public nuisance. According to the reasoning, the apparently anti-social character of the petitioners’ act was at the same time suitable to incite indignation and alarm. The petitioners lodged an appeal to the Budapest-Capital Regional Court that maintained the force of the ruling of first instance. The court agreed that the political opinion can be expressed by means other than verbal ones, but at the same time the court also held it absolutely necessary that the target of the act should be clear for the bystanders – an element missing in the present case.
The Constitutional Court reinforced: the citizens participate in public debates in many ways – not only in written or oral forms. The Fundamental Law protects the passing on of political opinions to others — disregarding the form of its manifestation. It is important to assess, however, whether or not a certain act falls into the scope of the freedom of expression. The Constitutional Court pointed out – taking also into account the case law of the Supreme Court of the United States and of the European Court of Human Rights – that in order to consider an act as an expression of opinion, the perpetrator’s intention of acting for the purpose of expressing his or her opinion is a necessary but not sufficient condition. The act under review should also be a communication, which is interpretable by the public.
It is a special feature of monuments that they express in physical form their message addressed to the community. Monuments can be covered, unveiled, enwreathed etc. Negative opinions, protests about a monument may also take a physical form. Blemishing a monument, e.g. pouring removable paint on it may, under certain circumstances, fall into the scope of expressing opinion in public affairs, but only if the act is a communication interpretable by the public in line with the subjective intention of the person “expressing his or her opinion” and also according to objective evaluation. Even in such a case it should be assessed in the concrete case whether the freedom of expression or the protection of public order should enjoy priority.
As underlined by the Constitutional Court in this case: the interpretation of the law provided by the court of second instance, i.e. that the aspects of the freedom of expression are only applicable under certain conditions to the case of pouring paint on a statue, is compatible with the Fundamental Law. The court did not violate the criteria of constitutionality when it failed to include the concrete act under the scope of the freedom of expression, therefore the Constitutional Court rejected the constitutional complaint.
Judges dr. Ágnes Czine, dr. Imre Juhász, dr. Béla Pokol, dr. Mária Szívós attached dissenting opinions, while Judges dr. Egon Dienes-Oehm, dr. László Salamon, dr. István Stumpf, dr. Marcel Szabó and dr. András Varga Zs. attached concurring opinions to the decision.

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Decision 24/2018 on the annulment of a judicial decision

28 December 2018

The concrete case at the Constitutional Court was based on a constitutional complaint. The petitioner had a nasal septum operation in anaesthesia and after waking up he developed symptoms of aphasia (speech disorder) and limb paralysis on the right side of his body. The National Rehabilitation and Social Expert Institute established that the petitioner had a health damage of 80 percent due to cerebral haemorrhage, hypertonia, one-side paralysis and obesity, and it classified the petitioner into disablement category II. The petitioner brought an action against the medical institution where the operation had been made, requesting the payment of damages by the medical institution due to the failure of the clinics to perform expectable diligence. As a secondary claim for the case of the court establishing that the defendant clinics did indeed perform due diligence, the petitioner requested to establish that his right to proper information had been violated. As on the basis of the primary claim, the Budapest-Capital Regional Court had established the clinic’s liability for damages and the Budapest-Capital Regional Court of Appeal approved this judgement, neither of the fora had to decide about the secondary claim. Upon the defendant’s application for review, the Curia annulled the final judgement, changed the judgement of first instance and rejected the claim.
In the constitutional complaint the petitioner alleged, among others, the violation of the right to fair court procedure. According to the petitioner, the Curia rejected his claim without examining the merits of the secondary claim. The Constitutional Court underlined in its decision: the right to turn to court as a part of the right to a fair court proceedings means more than a simple right to start court proceedings – it also implies the right to have the legal debate adjudicated by the court on the merits of the case. The obligation to have the claim exhausted raises a requirement concerning the judicial decision that the courts should decide about all elements of the claim and the counterclaim in the holdings of the judgement as the result of the examination on the merits. The Curia rejected the petitioner’s claim with final force, but one of the elements of his claim has not been examined on the merits by any of the judicial fora. The Curia laid down in its judgement, in accordance with the rules of the old Act on civil proceedings in force at the time of the procedure, that it had no possibility in the review procedure to examine the merits of a secondary claim formulated as a contingency. However, the Curia undoubtedly had the possibility to deliver a judgement in the review procedure that allows the lower courts to examine the merits of the secondary claim. Indeed, it follows from the right to turn to court, as a partial entitlement of the right to fair trial, that when the Curia changes the final judgement and rejects the claim in the framework of the review procedure, this decision should not result in a situation – notwithstanding an apparent accumulation of claims – where one of the lements of the contingent claims is not examined on the merits by any of the judicial fora.
Accordingly the Constitutional Court established that the judicial decision challenged by the constitutional complaint was contrary to the Fundamental Law, therefore the Court annulled it. Judge László Salamon attached a concurring opinion to the decision.

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Decision 21/2018 on disability benefits

14 November 2018

The lack of a regulation allowing for the appraisal of the actual condition of a person with a reduced ability to work violates Hungary’s international obligations.

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Decision 17/2018 on noise emission threshold of race courses with international licence

10 October 2018

The Constitutional Court adopted a decision in the case of the noise protection of race courses with international licence. Due to the violation of the right to a healthy environment, the Court annulled with future effect certain provisions of the decree on noise protection. Of course the affected race courses may also be operated in the future in the framework of the currently applicable legal regulations, as the decision of the Constitutional Court does not result in losing their functionality.
The procedure of the Constitutional Court was based on a judicial initiative Due to the excessive noise pollution the plaintiffs of the basic case had started an action against a company in exclusive State ownership that operates a race course with international licence in Mogyoród. The court’s initiative was aimed – among others – to the examination of the constitutionality of the noise protection decree amended in the period under litigation. The amendment resulted in significantly increasing the noise pollution breakpoint and according to the initiative this would result in the decrease of the achieved level of protection and violates the right to a healthy environment. Accordingly, the Constitutional Court, acting in its power of norm control, examined the constitutionality of the noise protection regulations.
The right to a healthy environment, enshrined in the Fundamental Law, has a substantial element, namely that a specific level of protecting the environment, once achieved, should not be decreased. The prohibition of stepping back is not automatic, it shall be enforced in accordance with its function during the protection of fundamental rights. The Constitutional Court also established on the basis of the complex examination that noise emission is covered by the scope of the right to a healthy environment and the challenged regulation – despite of the more severe provisions applicable to the noise emitting party – as a whole resulted in stepping back from the previous level of protection as it fails to apply an appropriate counterweight regarding the possibility of a significantly higher noise level over the impact area. In particular, it fails to provide a counterweight regarding the increased levels applicable to the days subject to an exemption, although these levels are well above the levels according to the general rules and they may be used during as much as 40 days without interruption.
The Constitutional Court pointed out that the operation of the race course with an international licence has beneficial effects on tourism, on the motorsport, on the domestic and the international image of Hungary and it also has positive effects on the national economy, such as the increase of tax revenues. All these factors support the position that it is of public interest to operate in Hungary a race course with an international licence. However, no public interest may justify stepping back, namely a situation where the population of the neighbouring settlements should tolerate – without protective measures – a noise level higher than in the past.
The Constitutional Court also assessed whether decreasing the level of protection could be justified by the fundamental right to enterprise. The operation of the race course qualifies as an enterprise and pursuing this activity results in the noise pollution of the environment. The Constitutional Court established that although a step-back might be necessary in this context, as the races usually come along with high noise emission, but this would not be proportionate. The lawmaker has not selected one of the most moderate means suitable for achieving the purpose, but it institutionalized a solution disproportionately expanding over these. The functional operation of the race course with an international licence does not require to have a noise emission higher by 5 dB on each day of the year, or to have, in the exemption system, a significantly higher noise emission (65 and 70 dB) even during a continuous period of as much as 40 days. Based on the above, the Constitutional Court annulled as of 31 December 2018 the special rules applicable to the noise originating from race courses with international licence. Judge dr. Imre Juhász attached a dissenting opinion to the decision and Judges dr. Mária Szívós, dr. Egon Dienes-Oehm and dr. András Varga Zs. joined to it.

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Decision 13/2018 on declaring that Section 1 and Section 4 of the Act on amending, with respect to water abstractions, the Act LVII of 1995 on Water Management

4 September 2018

With regard to the amendment of the Act on water management, the President of the Republic submitted to the Constitutional Court an initiative on preliminary norm control. According to him, the provision allowing the construction of water projects without permission and reporting until the depth of 80 meters is in conflict with the Fundamental Law. As recalled by the President of the Republic in his petition, the prohibition of stepping back from the achieved level of protection is an obligation of the State, laid down in the Fundamental Law, for the purpose of protecting the environment. Earlier the deputy commissioner for the interests of future generations and eleven professional organisations also argued against the challenged provision. Before adopting its decision, the Constitutional Court had requested the minister for the interior, the minister of justice, the deputy commissioner for the interests of future generations and the Hungarian Academy of Sciences. The Court underlined in the decision: in every case when the regulations on protecting the environment are modified, the precautionary principle and the principle of prevention should be taken into account as the failure to protect the nature and the environment may induce irreversible processes. Sub-surface water reserves are finite i terms of their quantity and quality, and they are renewable only to a limited extent. In Hungary, the construction of driven wells has been subject to a permission since 1960. This offers a possibility for the authority to track the volume of water use that can be authorised without endangering the water reserves. Sub-surface waters may only be used to the extent not resulting in the excessive use of the reserves. Among others, also Hungary’s revised watershed management plan for the year 2015 established that more than half of the sub-surface water bases are vulnerable. The authorities may specify by way of the permissions to be issued in advance the technologies to be applied and the depths of the new wells to be established in a safe manner. Uncontrollable water abstractions without State control may ultimately lead to damaging the ecosystems. The Constitutional Court noted that in addition to deteriorating the quality of waters, putting the Act into force may also imply risks concerning the public health.

As recalled by the Constitutional Court, only 4% of the surface water reserve of Hungary is generated within the borders of the country, at the same time, Hungary is located in an area significantly subject to the consequences of climate change, therefore the responsible management of sub-surface water reserves is of primary importance. According to the decision, the regulation that plans to use posterior control by the authority instead of the process of issuing preliminary permissions in the interest of preserving sub-surface waters is a step-back compared to the level of protection already achieved, therefore it is contrary to the Fundamental Law. The risk of the deterioration of quality caused by the wells constructed without permission, thus by neglecting professional and quality requirements, may directly influence the living conditions of the present generations as well. The permissions to be obtained in advance not only provide the authorities with information on the volume of waters, but they may also motivate economizing water, for example due to the obligation of paying a water reserve contribution. Justices dr. Ágnes Czine, dr. Balázs Schanda and dr. István Stumpf attached concurring reasonings, while Justices dr. Egon Dienes-Oehm, dr. Imre Juhász, dr. Béla Pokol, dr. Mária Szívós and dr. András Varga Zs. attached dissenting opinions to the decision.

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Decision 3/2018 on the transparency of the foundations established by the Hungarian National Bank

20 April 2018

The Constitutional Court established: there is a lack of conformity with the Fundamental Law manifested in an omission, as the legislator failed to secure, by way of the Act CLXXXI of 2007 on the transparency of support provided from public funds, the transparency of the support provided to natural persons by the foundations established by the Hungarian National Bank and financed from public funds. In the first case serving as the basis of the constitutional complaint, the petitioner filed a request for data related to grant applications to one of the foundations of the National Bank of Hungary. Due to the refusal of the data request, the petitioner brought an action for the judicial review of the refusal. The Budapest-Capital Regional Court proceeding in the case on first instance obliged the defendant to perform the data request, but it rejected the claim aimed at obtaining the personal data of the natural person applicants. Then the Budapest-Capital Regional Court of Appeal, as the court of second instance, also refused to bind the foundation to disclose the names of the winner applicants, as it held that the data of the natural person applicants were neither data of public interest nor data public on grounds of public interest. The case underlying the second constitutional complaint had a similar course of events. The petitioner claimed in both constitutional complaints that the challenged judgements violate the right to have access to data of public interest. The Constitutional Court has not found the constitutional complaints well-founded. [It would fall into the competence of the Constitutional Court if the task to be completed was the interpretation of the concept of data relating to public funds and national assets, namely the types of data that the Fundamental Law qualifies as data of public interest in this scope. However, the question raised in the basic case was the accessibility of the personal data of natural persons who are winners of the applications for grants of the defendant organisations financed from public funds. Thus the only question the Constitutional Court could examine about the judicial decision was whether the judicial decision violated or not the scope of interpretation set by the Fundamental Law, this way restricting access to the data of public interest (data public on grounds of public interest). In the present case, the Constitutional Court could not verify the a breach of the Fundamental Law by the court. Still the legislator must adopt regulations securing the balanced enforcement of fundamental rights to the greatest possible extent. However, the the legislator failed to secure appropriately the transparency of the supports provided by the foundations established by the Hungarian National Bank and financed from public funds and the accessibility of the data related to the beneficiaries of this fund. The Constitutional Court – acting ex officio – verified the violation of the Fundamental Law, manifested in an omission, and called upon the Parliament to meet its legislative duty by 30 September 2018. Justices dr. Béla Pokol and dr. András Varga Zs. attached dissenting opinions to the decision.

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