Certain provisions of the Act on Election Procedure held contrary to the Fundamental Law12 January 2013
On its plenary session of 4 January 2013, the Constitutional Court – based on the petition of the President of Hungary − has declared that certain provisions of the new Act on Election Procedure are contrary to the Fundamental Law of Hungary. According to the Constitutional Court, the fact that all voters are obliged to register unjustifiably restricts the right to vote. Certain provisions of the rules of electoral campaign have also been found contrary to the Fundamental Law.
The President submitted his petition on 6 December 2012. Based on his petition, the Constitutional Court has examined the conformity with the Fundamental Law of the concerned provisions of the Act on Election Procedure. The Act was already adopted by the Parliament but not yet promulgated. In his petition the President explained that certain regulations of the mandatory registration in the central system restricted unproportionally the right to vote. According to his position, also several provisions of the rules of election campaign are contrary to the Fundamental Law, because these violate the freedom of expression and the freedom of press. The President of Hungary requested the Constitutional Court to examine other provisions of the Act specified in the petition if the contents of these provisions are closely related to each other.
1. The Constitutional Court has declared that in the Act additional conditions are defined: in order to practice the right to vote, a previous registration should be done. Regarding these provisions, the Constitutional Court has examined whether there is any constitutional reason for the previous registration. Taking the practice of the European Court of Human Rights into consideration, the Constitutional Court has declared that in case of citizens domiciled in Hungary, the mandatory registration disproportionately restricted the right to vote without any reason, thus this is contrary to the Fundamental Law.
The State, regarding the official register at its disposal, shall ensure the participation of the voters from this official register at the election without any previous request for registration. The Constitutional Court has pointed out that the central register is mentioned in the concerned Act as it contained the necessary data of the voters trustworthily, thus this central register is applicable for the elections. However, the possibility of the request for registration facilitates the exercise of voting for certain groups of voters. In this case, the registration is well-founded. These groups include the Hungarian voters without domicile in Hungary; those members of the national minority living in Hungary who wish to vote on national minority list; and those who need help to take part in elections. It would be a disproportionate limitation of the right to vote if those voters whose right to vote without previous registration cannot be ensured,,could only registrate at their permanent domicile and not at their usual residence.
The Constitutional Court has found discriminatory the exclusion of the possibility of personal registration of voters living in Hungary without address.
2. In connection with the rules of election campaign, the Constitutional Court has declared that the freedom of expression and the freedom of press are disproportionally limited, because according to the Act during the electoral campaign the publication of political advertisements is allowed only in the public media service, thus these rules are contrary to the Fundamental Law. The rules that ban the publication of public opinion polls regarding the elections within six days before the elections has also been found contrary to the Fundamental Law.
Dr. Péter Kovács judge attached concurring opinion, Dr. István Balsai, Dr. Egon Dienes-Oehm, Dr. Barnabás Lenkovics, Dr. Béla Pokol and Dr. Mária Szívós judges attached dissenting opinion to the decision.
The translation of the decision can be read on this link.