During the period of the epidemic emergency and the restrictive measures imposed due to the new wave of the epidemic, the Constitutional Court’s bodies will continue to meet online and the court staff will work in general from home.

The Constitutional Court declared that the challenged judgements of the Curia and of the Budapest-Capital Regional Court were in conflict with the Fundamental Law and annulled them. The petitioner data protection authority received a notification, in which the notifier objected to the data controller’s processing of data relating to the collection of signatures to force joining the European Public Prosecutor’s Office. The petitioner conducted a data protection investigation procedure, followed by an ex officio procedure, and in its decision found that the controller had collected personal data without legal basis, had not provided adequate information to the data subject, and therefore the authority ordered the controller to delete the data and to pay a data protection fine. The Budapest-Capital Regional Court, acting on an appeal by the data controller, annulled the provision of the decision ordering the data controller to delete the data. The judgement stated that, under the GDPR, the data subject is the person who has the right to request the controller to erase personal data relating to him or her without undue delay. According to the reasoning of the judgement, the data protection authority was not entitled to order the erasure of personal data in the absence of a request by the data subjects. Following a request for review by the defendant authority, the Curia upheld the judgement of the first instance. In the petitioner’s view, the judgement of the Curia violates the right to a fair trial and the right to legal remedy, and in its view the Curia’s judgement restricted the petitioner’s competence in a manner that is contrary to the Fundamental Law. In its decision, the Constitutional Court found that the courts, in their decisions and deliberations in the context of the right to the protection of personal data, failed to recognise that the broad supervisory control of data protection authorities had also been guaranteed under the Fundamental Law, EU law and obligations under international law before the GDPR. If the authority finds during the inspection that the processing of personal data by the controller is unlawful, it follows from the effective protection of fundamental rights, which is the main task of the authority, that it can not only inspect and detect unlawful personal data processing, but also order the erasure of such data ex officio (in order to protect the fundamental rights of third parties). The plenary session of the Constitutional Court thus stated that the challenged judgements of the Curia and the Budapest-Capital Regional Court were in conflict with the Fundamental Law, therefore annulled them.

The Constitutional Court has dismissed the petition seeking a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of Section 5 (2) of Act LXVI of 1992 on the Register of Personal Data and Residential Addresses of Citizens. In the view of the Court, the amendment to the Act can only affect the place of exercise of the right to vote in single-member constituencies, but does not otherwise affect the conditions of political participation in any substantive way. The petitioning Members of the National Assembly requested the Constitutional Court to find that Section 5 (2) of the Act, which entered into force on 1 January 2022, as amended by Act CXIX of 2021, was unconstitutional by non-conformity with the Fundamental Law and to annul this provision retroactively to its entry into force. Under the definition prior to the amendment, the conceptual element of the place of residence of a citizen was habitual residence. Accordingly, the citizen’s place of residence was the residential address of the dwelling in which the citizen lived. By contrast, the amendment removes the requirement of habitual residence, since, pursuant to the amended wording of the Act, the place of residence of a citizen is the residential address of the dwelling or accommodation which serves as the basis for the citizen’s official relations with the State and with natural and legal persons and organisations without legal personality, as well as for his rights and obligations linked to the place of residence. The petitioning Members of the National Assembly consider that, as a result of the amendment, the register of residential addresses is no longer able to provide proof of actual presence of a person in the place of residence. Since that register forms the basis for the electoral roll, the requirement of a closer link with the place of residence, which is of decisive importance in the mixed electoral system for the general election of Members of the National Assembly and in the referendum, is no longer applicable. The contested provision therefore infringes the requirement of the rule of law laid down in Article B (1) of the Fundamental Law and restricts the right to vote and to hold a referendum without a legitimate aim. In its decision, the panel of the Constitutional Court explained that the amendment to the concept of the permanent place of residence was necessary for legislative reasons, because the register of personal data and residential addresses of citizens, as established by the Central Statistical Office, did not reflect the reality in a significant number of cases, and the new definition of the concept of permanent place of residence chosen by the legislator seemed suitable to resolve the difference between the data content of the publicly authentic register and the actual factual situation. Apart from the amendment of the concept of the permanent place of residence, the legislator did not change either the mixed electoral system or the rules on the right to vote in local and European Parliament elections and local referendums and in single-member constituencies, which are closely related to the permanent place of residence. Nor does the change in the concept of the permanent place of residence in itself affect the conditions for political participation. Apart from the right to participate in local and European Parliament elections and local referendums, the change in the concept of the permanent place of residence can only affect the place where the right to vote in a single-member constituency is exercised, that is, the single-member constituency in which a voter entitled to vote in a single-member constituency can vote. In the light of the above considerations, the Constitutional Court dismissed the petition for a finding of unconstitutionality by non-conformity with the Fundamental Law and annulment of with retroactive effect to the date of its entry into force of the impugned provision.

The Constitutional Court rejected the constitutional complaints for the declaration of a conflict with te Fundamental Law and annulment of the Government Decree No. 27/2021 (I.29.) on the declaration of a state of danger and the entry into force of emergency measures, and the Government Decree No. 449/2021 (VII.29.) on the compulsory use of the coronavirus vaccination. According to the provisions challenged in a large number of petitions, in order to protect the health and life of citizens, employees of health care providers are obliged to take up the vaccination by 1 September 2021 (15 September 2021 after the amendment of the decree) in the case of single-dose vaccines, or the first dose of the vaccination in the case of double-dose vaccines, and the second dose of the vaccination by the date set by the vaccinating physician. The government decree that entered into force on 19 November 2021 also required taking a third vaccination. Failure to take up the vaccinations shall result in immediate termination of the employment of the employee by way of dismissal or termination and the employee shall not be entitled to any notice period of dismissal or termination to any severance pay. However, the employee is exempted from the obligation if he/she is contra-indicated for medical reasons to take up the vaccination and this is supported by a medical opinion. The Constitutional Court has received a large number of constitutional complaints (almost 300), drafted on the basis of different model motions, but with essentially the same wording, concerning the mandatory vaccination against COVID-19 for health workers. The Constitutional Court merged these model motions in the present case, and admitted the constitutional complaint on 5 October 2021, and subsequently, in the course of the substantive examination, ruled on the case with urgency. The petitioners are health care workers subject to the government regulations. In their view, the contested provisions infringe the right to human dignity, the right to working conditions which respect health, safety and dignity, and the fundamental right to physical and mental health. As explained in the petitions, the government decrees on the mandatory use of the coronavirus vaccination, going beyond the mandate of the Fundamental Law, impose a disproportionate legal burden on the non-use of the vaccination and are unreasonable in relation to the objective pursued. In its decision, the Constitutional Court stated that the contested regulation serves the continuous operation of the health care system and the safety of patient care, and within the framework of these state objectives, the enforcement of the right to life and health of the members of society, the patients. The Constitutional Court recognised the enforcement of the right to life and health guaranteed by the Fundamental Law, the protection of institutions, the reduction of the health, social and economic impact of the coronavirus epidemic, and, in particular, the continuous functioning of the health care system and the safety of patient care as legitimate objectives of the mandatory vaccination of health care workers. In its decision, the Constitutional Court, also referring to the position taken by the World Health Organization (WHO), stressed that the achievement of public health objectives – in particular the containment of a serious epidemic and the mitigation of its consequences – may justify the use of coercive legal instruments as a last resort. In the present case, although the law-maker did not use direct coercion to require vaccination, it undoubtedly exerted strong pressure on health professionals (i.e. those who come into direct contact with patients) by imposing adverse legal consequences for failure to taking up the vaccine. The aim is to increase vaccination coverage in the health sector, which is the most critical sector for tackling the epidemic. In the Constitutional Court’s view, the actual obligation to taking up vaccination constitutes a proportionate restriction of the right to health self-determination, therefore the creation of the sanction under the contested legislation did not result in a disproportionate interference with the petitioners’ right to health self-determination and the essential content of that right. On the basis of the above, the Constitutional Court considered that the restriction of fundamental rights provided for was necessary and proportionate, and therefore rejected the petitions for a declaration that the contested provisions of the government decrees were contrary to the Fundamental Law and for their annulment.

The Constitutional Court established as a constitutional requirement that the law-maker may only suspend the exercise of the right of assembly in times of a state of danger for a period of time and within the scope of what is indispensably necessary, and only in such a way that it must examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right or its restriction exceeding the requirement of proportionality under the Fundamental Law. In the case at issue, the petitioner sought the declaration that certain provisions of the Government Decree on the second phase of protective measures applicable during the period of state of danger were contrary to the Fundamental Law and the annulment of those provisions. According to the contested provisions, it is prohibited to assemble or gather in public ground or public places, or to organise, hold or be present at the place of an event or gathering during the time of the state of danger. In the petitioner’s view, the contested provisions unnecessarily and disproportionately restrict, in fact, empty out the right to assembly, and by excluding the consideration of the circumstances and by laying down the general prohibition in the law, deprive the petitioner of the possibility of effective judicial remedy. In its decision, the Constitutional Court stated that the right to assembly is one of the most important fundamental political rights, which is the cornerstone of any democratic society, but the protection against the coronavirus epidemic, the minimisation of risks as far as possible, is also a prominent, constitutionally justified objective of the state. Although it would be an exaggeration to state that all fundamental rights must be fully respected in order to protect against an epidemic, in the present case, the temporary exclusion of the freedom of assembly, one of the riskiest fundamental rights for the spread of the epidemic, can be considered a necessary restriction. In its decision, the Constitutional Court stressed, however, that the proportionality of the rules is particularly important in terms of the time: the longer the period of suspension of the exercise of a fundamental right, the stronger justification is needed for maintaining the restriction. The complete exclusion of the exercise of a fundamental right cannot be justified on the basis of the danger alone, but it must be decided on a recurring basis whether the circumstances actually justify the suspension of the fundamental right. Therefore, the Constitutional Court, in addition to rejecting the constitutional complaint, attached a constitutional requirement to the challenged legislation, according to which the legislator may suspend the exercise of the right of assembly only for the time and within the scope strictly necessary even in times of a state of danger, and is obliged to examine at reasonable intervals whether the circumstances giving rise to the restriction still justify the suspension of the fundamental right.

The Constitutional Court declared to be in conflict with the Fundamental Law and annulled the rulings of the Szekszárd Regional Court and the Paks District Court in the subject-matter of keeping contacts. In the case underlying the proceedings, the petitioner was a father living separately from his child, and the child was not handed over by the mother to the father with reference to the emergency situation ordered due to the coronavirus epidemic. The petitioner asked the court to order the enforcement of contacting, however his request had been rejected by the court at first instance, upheld by the court of second instance. According to the petitioner, his right to a fair trial and his right to family life and contacting have been violated due to the grossly contra legem application of the law in the rulings and the lack of adequate reasoning. In its decision, the Constitutional Court found that the proceeding court had failed to comply with the requirement of the gentle equalization and fair balancing of fundamental rights’ positions based on the principle of proportionality, because it had decided to restrict contacting rights solely on the basis of the general epidemic risk as a remote, abstract health risk. The judicial decisions could therefore lead to the emptying of this right, therefore the Constitutional Court annulled the challenged judicial decisions.

In the course of the proceedings initiated by the motion of the President of the Republic, the Constitutional Court found that Section 49 (1) of the Act on Amendments to Certain Energy and Waste Management Acts, passed by the National Assembly on 15 December 2020, was contrary to the Fundamental Law. Under the challenged paragraph of the Act, the possessor of waste may dispose of it only by transferring it to the State, the concessionaire or the concessionaire’s subcontractor, which waste thus becomes the property of the State, the concessionaire or the concessionaire’s subcontractor; according to this, the ownership of production and industrial waste is taken away by law. However, as explained in the petition, these wastes represent value, but the law does not provide for the related compensation in any way, and it even foresees the obligation of the original waste holder to pay for these wastes, which causes double damage to the producer with respect to commercially tradeable wastes. In the opinion of the President of the Republic, the amendment violates the provision of the Fundamental Law guaranteeing the protection of the right to property by ordering the withdrawal of the property of production and industrial waste without full, unconditional and immediate compensation. In its decision, the Constitutional Court found that the challenged provision does in certain cases indeed restrict the ownership of waste by the possessor of waste who is also the owner of waste in such a way as to cause to it real and pecuniary disadvantage without providing for an obligation of compensation to secure proportionality. The Constitutional Court emphasized that it is the task of the law-maker to create a sufficiently differentiated system that simultaneously creates compensation for waste owners and takes into account the full enforcement of mandatory public service, environmental and public health aspects in such a manner to make them comply with our regulatory obligations under EU regulations. The President of the Republic also initiated to declare that Section 38 (2) and Section 62 of the Act are contrary to the Fundamental Law, but the Constitutional Court rejected the motion to that effect.

In addition to rejecting the motion for posterior norm control, the Constitutional Court established as a constitutional requirement that Section 5 of the Act on the investment project in relation to the capacity conservation of the Nuclear Energy Plant of Paks and modifying certain related Acts is applicable to the subcontractors of the Russian party and the subcontractors of the Hungarian party only if they are considered to be organisations performing a public duty. Section 5 of the Act excludes, for a period of thirty years from the date of its creation, the disclosure of all “business data”, “technical data” and “data on which a decision is based” as data of public interest related to the implementation of the expansion of the Paks Nuclear Power Plant. The petitioning MPs asked the Constitutional Court to declare this provision to be contrary to the Fundamental Law and to annul it with retroactive effect to its promulgation. According to the petitioners, this is contrary to the fundamental right to have access to and disseminate data of public interest and to the provision of the Fundamental Law stating that all organisations managing public funds must give public account of their management of public funds. In its decision, the Constitutional Court established that the disclosure of the data for the purpose of substantiating the decision may be restricted by a specific Act of Parliament in accordance with the Act on the Right to Informational Self-Determination and Freedom of Information. The protection of national security interest and intellectual property rights indicated by the challenged Act may justify a restriction on the disclosure of the data for the purpose of substantiating the decision. The Constitutional Court further held that, contrary to the petitioners’ claim, the text of the Act prescribing thirty years for the closure of the data concerned cannot be considered a disproportionate restriction, as it cannot be held an ex lege restriction; it is only a statutory presumption assuming that within this period the publicity of the data could damage the values to be protected. However, as the Act itself requires a “public interest test” to be performed, the restriction can only be applied if there is a greater public interest in it than in the disclosure of the data concerned. In view of all this, the Constitutional Court found that the challenged provision of the Act did not cause any unnecessary or disproportionate restriction of the referred to provisions of the Fundamental Law, therefore it rejected the petitioners’ motion for posterior norm control. However, in order to facilitate the application of the law, the Constitutional Court considered it necessary to establish as a constitutional requirement: the challenged provision of the Act is applicable to the subcontractors of the Russian and Hungarian parties only if they are to be regarded as organizations performing a public duty.