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.

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.

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.

The full text can be accessed here and the data-sheet of the decision is available here.

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.

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.

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)

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.

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.

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.

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.

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.