General information

The constitutional complaint

The rules on the constitutional complaints have changed significantly due to the entry into force of the Fundamental Law and of the Act CLI of 2011 on the Constitutional Court (hereinafter: ACC).

Constitutional complaints may be submitted at the Constitutional Court mainly when the right of the petitioner guaranteed by the Fundamental Law is violated by a judicial decision. Exceptionally, the constitutional complaint procedure may also be initiated when, due to the application of a law contrary to the Fundamental Law, or when such legal provision becomes effective, rights are violated directly, without a judicial decision. The constitutional complaint therefore is not a claim for judicial review and the Constitutional Court is not a forum for legal remedy in a concrete case.

Another important rule of the ACC is that the Constitutional Court admits the complaint only if a conflict with the Fundamental Law significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance.

According to the new rules, there are three types of proceedings based on constitutional complaint.

a) The first type of the constitutional complaint proceedings is the one that was available also based on the precedent Act on the Constitutional Court (1989). In this procedure a person or an organisation affected by the concrete case may submit a constitutional complaint according to 26 (1) of the ACC, in case their fundamental rights have been violated by the application of an unconstitutional law, and there is no other instrument for legal remedie.

The subject of the review is the law, the application of which led to the unconstitutionality. The legal consequences of the proceedings of the Court may be the annulment or exclusion of the application of the law found to be contrary to the Fundamental Law.

b) The second type of constitutional complaint is based on 26 (2) of the ACC. According to this, the Constitutional Court proceedings may also be initiated exceptionally if, due to the application of a law contrary to the Fundamental Law, or when such law becomes effective, rights were violated directly, without a judicial decision, and there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy. This means that in case of the second type of complaint proceedings there is no judicial decision, the violation of rights guaranteed in the Fundamental Law occurs directly. The subject of the examination is the legal norm itself.

c) With the third type of constitutional complaint the petitioner challenges a judicial decision. With the new Act on the Constitutional Court entering into force, the constitutional complaints may be submitted not only against the laws, but also against concrete judicial decisions. The person or organisation affected in concrete cases may turn to the Constitutional Court against the judicial decision that was contrary to the Fundamental Law if the decision made, regarding the merits of the case or other decisions terminating the judicial proceedings, violates their rights laid down in the Fundamental Law, and the possibilities for legal remedy have already been exhausted by the petitioner or no possibility for legal remedy is available for them. The subject of the examination is the judicial decision and not the law (similarly to the ”Urteilsverfassungsbeschwerde” in the German constitutional system). When the Court establishes that the judicial decision is contrary to the Fundamental Law, the Court shall annul the decision.

 

The conditions of initiating Constitutional Court proceedings

1. The right to initiate

The Constitutional Court proceeds on the basis of the petitions submitted by entities authorised to do so in accordance with the Fundamental Law and with the ACC.

In the course of constitutional complaint proceedings, legal representation is not mandatory. If the petitioner is represented by lawyers (attorneys-at-law or law firms), the right to represent has to be certified. Lawyers, attorneys-at-law, law firms or representatives of rights defender social organisations who have passed the bar examination may act as legal representatives. The counsel of a legal person or of other economic organisations shall enjoy the legal status of an attorney-at-law. Constitutional complaints may be submitted only by those who are concerned in the case before courts or authorities.

2. Submission of the petition

Written petitions for initiating proceedings shall be filed directly at the Constitutional Court. The Constitutional Court shall immediately inform the President of the Republic and the National Election Committee about the receipt of a petition on the examination of the Parliament’s resolution related to ordering a referendum.

Nevertheless, petitions for constitutional complaint – with the exception of rights violated directly, without a judicial decision – have to be filed at the court of first instance and they shall be addressed to the Constitutional Court. The court of first instance shall forward the constitutional complaint to the Constitutional Court. The court may suspend the execution of the decision contested in the constitutional complaint until the Constitutional Court’s proceedings are concluded.

Exceptionally, the constitutional complaint may be submitted directly to the Constitutional Court, if rights were violated directly, without a judicial decision due to the application of a law contrary to the Fundamental Law, or when such law becomes effective, if there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy.

3. Substantive criteria of the petition

The petition must contain an explicit request. A petition is explicit if it clearly indicates the provision of an Act that establishes the competence of the Constitutional Court to adjudicate the petition, and establishes that the entity has the right to submit petitions; the reasons for initiating the proceedings and – in case of a constitutional complaint – the substance of the violation of the right guaranteed by the Fundamental Law; the provision of a law or the judicial decision to be examined by the Constitutional Court; the provisions of the Fundamental Law or of an international treaty that are violated.

The petition shall also contain a reasoning that specifies why the contested law, the provision thereof, the judicial decision or the resolution of the Parliament is contrary to the specified provision of the Fundamental Law or the international treaty, and as well as an explicit request for the annulment of the law, the provision thereof or the judicial decision, and for the content of the Constitutional Court’s decision.

The examination conducted by the Constitutional Court shall be exclusively limited to the specified constitutional request. This provision does not affect the competence of the Constitutional Court with regard to declarations that may be performed ex officio.

The petitioner may repeatedly submit a petition with the same content only if the underlying grounds of the previous petition have changed significantly.

With the exception of constitutional complaints, petitions submitted to the Constitutional Court shall not be withdrawn.

4. Formal criteria of the petition

The petition has to be submitted in written form and filed with the Constitutional Court, or in case of constitutional complaint, at the court of first instance.

No procedure shall be started upon petitions submitted by e-mail.

The petition has to include the name and address or seat of the petitioner, and – if the petitioner is a public law official – his or her office.

In constitutional complaint proceedings, the petitioner shall make a declaration on processing his or her personal data.

The petition shall be signed.

The petitioner shall certify the existence of the preconditions of the proceedings.

5. Charges and fines

The proceedings of the Constitutional Court are free of charge.

Petitioners have to bear their own costs incurred in the course of the Constitutional Court proceedings.

The panel of the Constitutional Court or the single judge may impose a procedural fine on the petitioner and it may order him or her to pay the extra costs if the petitioner exercises the right to petition in an abusive manner; similar measures may be taken against those petitioners or other persons participating in the proceedings whose willful conduct delays or hinders the completion of the Constitutional Court proceedings. The amount of the procedural fine may range between HUF 20,000 and HUF 500,000; the person on whom the fine is imposed shall pay the fine until the date specified in the ruling of the Constitutional Court. When determining the amount of the procedural fine, the gravity and the consequences of the act that resulted in imposing the fine shall be taken into consideration.