Acting ex officio, the Constitutional Court stated that the omission by the National Assembly had resulted in a situation in conflict with the Fundamental Law, because together with restricting the retail trade of electronic cigarettes and the connected products to the tobacco shops with mandatory concession, it failed to provide appropriate compensation for those affected by the restriction of the right to enterprise, therefore, the Constitutional Court called upon the National Assembly to meet its obligation of legislation. The decision is based on the initiative of MPs for posterior norm control and the constitutional complaint submitted by a company trading with electronic cigarettes and its accessories, who challenged the provision in the Act on repelling smoking among young people and on the retail trade of tobacco products, restricting to tobacco shops the retail trade of certain products, such as electronic cigarette, refill cans and electronic devices imitating smoking. Since 2011, the petitioner company has been specialised on the retail trade of electronic cigarette and its accessories through its webshop and its shops, however, due to the amendment of the law in 2016, it had to terminate its commercial activity related to the relevant products, it had to close its shops and to dismiss two thirds of its employees, and it could not sell the remaining stock of products. Due to the prohibition of online sales, the business activity of the petitioner company has become impossible, and the law-maker failed to provide for compensation, failed to provide for an opportunity to continue its operation by announcing new concessions. According to the petitioner, the regulation violated its right to property and the right to enterprise, and it is also against the prohibition of discrimination. In the context of the right to enterprise, the Constitutional Court pointed out in the decision that the scope of protection of this fundamental right covers both the market entry and the continuation of a commenced activity, although it underlined that the relevant fundamental right does not guarantee that no changes may take place in the legal environment. In enacting a limitation, the legislator is bound to employ the most moderate means suitable for reaching the specified purpose, i.e. the limitation should not exceed the level absolutely necessary for achieving the constitutionally justifiable objective. In the context of the restriction of the right to enterprise, the subject matter of the explicit concern is the manner of its practical realisation: the position of the enterprises engaged in the retail trade of electronic cigarettes already operating at the time of the entry into force of the amendment of the law was made less advantageous due to the fact that the law-maker did not pay any attention to their fundamental right to maintain their business activity, or to the actual damage incurred in the particular case, resulting from the statute under review. Based on the above, for the purpose of eliminating the situation being contrary to the Fundamental Law – also with due regard to the need to proceed by saving the law in force – the Constitutional Court stated that there has been a situation contrary to the Fundamental Law caused by an omission, as the provisions of the Act and of the fundamental Law may be harmonised by way of establishing a legislative omission and by making a call upon the law-maker.

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.

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.

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 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.